In February this year, Uganda took on the task of drafting sentencing guidelines for wildlife and forestry crime, a first for the African continent that, once adopted, will set Uganda apart and create a precedent for other countries faced with the scourge of wildlife crime, to follow suit.
In many jurisdictions across Africa, the current approach is to pass laws with high minimum terms of imprisonment. It sends out an impressive message for sure. But in my experience, the effect is counter-productive. A high minimum penalty – whether death, or life imprisonment, five or seven years imprisonment – can in fact undermine the very aims that we are seeking to achieve.
We want our court system to function in a way that deters criminals. We want our system to say “Watch out. You will get caught, you will get prosecuted, you will get convicted, it will be an appeal-proof conviction and you will get sentenced in this way. And it won’t take us three years to do it whilst you walk around on bail”.
That deterrent effect starts with strong prosecutions that are based on strong investigations.
It moves through a court system that can process and deliver justice without undue delay and where all parties are afforded the right to be represented.
And it ends with proportionate and consistent sentencing. This is important: sentencing must not allow for ‘forum shopping’ (i.e. defendants looking for courts where they know the magistrate is lenient or can be ‘leaned on’); or such a wide variance in sentence in different parts of the country that the public are left confused about how seriously to take a crime.
In trying to achieve that deterrent effect within a criminal justice pathway, the problem of delay is in fact fed by high minimum penalties.
In Uganda, the Uganda Wildlife Act sets a minimum of seven years imprisonment and/or a minimum fine of 10 million Ugandan shillings for importation or exportation of a protected species. In Kenya, for an offence involving an endangered species, the penalties look very stiff – a minimum of 20 million Kenyan shillings and/or life imprisonment.
But even for matters such as illegal entry into a national park or removing a geological object from a wildlife protected area, the high minimum term approach has caused more problems than solutions.
In 2013, I designed a survey for Wildlife Direct, a Kenyan NGO to look at the outcomes of wildlife crime cases over the preceding five years. It was the first survey of its kind in Kenya and possibly the continent.
It showed a 78% conviction rate that included the 65% of cases where a guilty plea was entered. In 2015, we worked together on a second survey that showed a fall in the fate of guilty pleas from 65% to to 48% in 2014 and just 19% in 2015.
In 2014, only 51% of cases were decided by the end of the year. In 2015 that figure fell further with only 40% of cases being concluded within the year. In a baseline survey of court cases in three major courts across Kenya in 2015, the average felony trial took 32 months to conclude for a total of just 7 hearing days; misdemeanours took 17 months.
With the advent of the Wildlife Conservation Management Act 2013 in Kenya that set such lofty minimum terms for nearly all offences, these surveys capture the predictable decline in the rate of guilty pleas and the increase in the number of trials in a system that is already groaning under the weight of unresolved cases. In Tanzania, an amendment to the Economic and Organised Crime Act opens up liability to between twenty and thirty years again with little apparent distinction between the levels of seriousness of the offence. A lot of people applauded. But in an observation at the Kisutu magistrates’ court in 2016, I observed an accused person being committed for trial to face that penalty if convicted – over a single ivory pinky ring. The time, money and other resources taken up with this one offence has yet to be quantified.
The culture of adjournments, so prevalent in so many countries across Africa, is a result of many factors including poor staffing levels, accused persons not being at court (either not warned, absconded or not bought by prison services); failures in disclosure, missing files, poor incentives for the judiciary, a lack of performance targets or where they exist, sporadic enforcement; difficulties in securing witness attendance with little resources for covering witness expenses, insufficient numbers of expert witnesses servicing an entire country; logistics and of course, corruption which can flourish in an environment of repeated adjournments. Delay is nearly always cited as a concern amongst the judiciary in my conversations across many jurisdictions. The prospects of a conviction grow ever smaller as witness fatigue, transfer of personnel, loss of exhibits and opportunities for corruption grown with each adjournment.
Further, in accepting that wildlife crime is one limb of organised crime, the opportunities – or rather, incentive – for a defendant to cooperate with law enforcement to pursue the ‘bigger fish’ further up the chain, are lost. What does a poaching foot-soldier gain by helping police if he is nonetheless facing a minimum term of seven years in prison whether he cooperates or not?
What often happens in practice is that defendants cooperate with law enforcement in exchange for no charge at all. The prosecution services – the agency that is supposed to make a decision on whether to prosecute or not – is often left out of the loop on these conversations between investigator and suspect. As a result, there is little accountability or transparency on these informal decisions allowing for a situation where police malpractice and corruption can occur – how desperate might a suspect be when faced with a minimum penalty of 20 years in Tanzania, for example?
For judges and magistrates, faced with high minimum terms that do not distinguish between a first time offender sporting a pair of ivory earrings, and an offender with a warehouse full of ivory and an extensive criminal network, there is deep discomfort with the prospect of convicting those that in their view do not merit such a harsh minimum sentence.
By taking away all discretion, judges may be left with a temptation to acquit even the most watertight cases on technicalities that should not normally be allowed to derail a criminal trial. Accordingly, legal precedent may be set that can skew the pitch for years. What is more, in Kenya, some magistrates have avoided the high minimum terms by using existing legislation that provides a perfectly legal loophole – a perverse situation arises then that a suspect faces life imprisonment or a huge minimum fine on the statute book but can receive a perfectly legal sentence of………… community service. This is absurd.
Another approach, frequently seen, it to impose a fine with the high minimum term of imprisonment set as a ‘default’. The unintended consequence may well be that the rich get out and the poor , the poorly connected or those of little value to the networks for which they once worked, go to prison.
The alternative (or complementary way) to address the issue of sentencing is to issue binding sentencing guidelines that set a ‘bandwidth’ for minimum and maximum sentences for a given crime, with magistrates and judges guided in their sentencing by the presence of aggravating and mitigating features.
Making such sentencing guidelines really stick will require a change in the law; robust prosecution appeal strategies are also necessary when judges don’t play ball, and an appeal court must be willing to uphold those sentencing guidelines.
The result of sentencing guidelines can be greater consistency and predictability that can foster an environment in which prosecution and defence can engage in a productive manner in relation to plea-bargaining. It can also provide law enforcement officers – and I include prosecutors and judges in this category – protection from intimidation and corrupting influences over the issue of sentence.
Uganda is the first country on the continent to design such sentencing guidelines for wildlife crime. This follows on the heels of its sentencing practice direction issued in 2013 that set prescriptive ranges of sentence for offences of theft, defilement, trespass and certain other offences and represents an approach that, as Space for Giants measures the impact and implementation, might provide the incentive needed for other jurisdictions across the continent to follow suit.
In the meantime, the advocacy for high minimum terms without addressing the issues raised above, needs to stop.