Following on from the report issued in January 2016 (see publications page for all of these documents), a suite of guidance documents has been issued to assist delivery on some of the recommendations:
Conducting Surveys of Court Outcomes
Drafting Wildlife Offences
Prosecution Services – Guidance on Conduct and Competencies
Why these in particular?
The court survey one was easy. Having designed a survey for a Kenyan NGO back in 2013, and watched them and others embark upon similar forays into an unfamiliar criminal justice sector, it was evident that there was a need for some guidance on best practice to avoid certain problems. For instance, if you don’t have buy in from national authorities, such reports become a vehicle only to raise money from donors as opposed to actually helping prosecution, judicial and investigation authorities to deliver justice. If you don’t have a good eye on your national law society code of ethics, it can be very easy to fall foul of those rules in your efforts to ‘assist’ on prosecutions. And if you shout too loudly in the press about on-going cases, you not only annoy the prosecution but you can potentially derail a trial through ill-considered disclosure.
Kenya is often hailed as being tough on wildlife crime. It has a penalty of life imprisonment for offences regarding critically endangered species. What you may not know is that the High Court has thrown that provision out because of drafting errors. Five years on and it still hasn’t been addressed. Poor drafting can scupper the best intentions and often highly expensive interventions – think the endless training of prosecutors, judges and investigators who frankly cannot do anything with that training if the law is drafted in a way that stops them achieving their aims. The recent forestry act in Kenya is another example with not even a mention of CITES in the entire Act. Rodah Ogoma, the Senior Assistant Director of Public Prosecutions in Kenya said in response to this publication, the move to create this guidance was “extremely timely adding” and “Our experience so far would have been easier had these guidelines already been in existence” (sic).
In this document I have focused only domestic offences rather than international trafficking as these are to some extent covered by the CITES model law. The United Nations has picked up both model laws and are working to combine both into one.
Sentencing guidelines – where do I start? Inconsistent sentencing practice is a bugbear to all in the criminal justice system. You can have the best laws, the strongest prosecution, an efficient trial process but when magistrates fail to apply the same principles to all sentencing exercises, you get a result that undermines public confidence and demotivates all those who have worked so hard to bring criminals to justice. I see this often expressed in ‘a fine with imprisonment in default’. The imprisonment term will be hailed as ‘tough on crime’ and ‘a strong message has been sent out to the public”. Take this for instance:
Sounds wonderful. But read the small print. It was actually a total of a 1000USD fine with the 13 years only if he couldn’t pay. I wouldn’t be surprised if he had thrown the cash at the clerk of the court and walked out in to his chauffeur driven BMW X5.
The rich walk, the poor go to prison. This approach is not justice.
In Uganda, Chief Magistrate James Ereemye, the head of the newly-established Uganda Standards, Utilities and Wildlife Court in Kampala, singled out the Model Sentencing Guidelines, calling it “a timely tool”. He said: “It will mitigate the sentencing challenge in the court. These guidelines will help develop much needed jurisprudence in wildlife and environmental justice.”
Finally, prosecution standards. Having worked at both the private Bar, the UK Crown Prosecution Service and then the Foreign & Commonwealth Office, this draws on the basic competencies that one would hope for in a prosecutor, and sets out some basic principles on conduct such as the charging standard, the approach to bail, trial advocacy and other matters. I was pleased to hear that Florence Magoma, head of the Kenya Wildlife Service (KWS) Prosecution Unit, say “The launch of these documents will enable us to establish our new Prosecutions Unit to the highest standards. This has come at an opportune time and we look forward to applying the principles from this guidance.”