Kenya’s Cabinet Secretary (Minister) for Tourism and Wildlife last week announced plans to change the country’s wildlife law to make wildlife crime a capital offense punishable by death. Currently, a conviction of wildlife crime involving endangered and threatened species in Kenya attracts the severest punishment, which is life sentence or fine of not less than twenty million shillings or both.
Controversial endorsement by CITES
Contrary to United Nations’ position on death penalty, the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) – a United Nations (UN) convention – appeared to endorse the move by Kenya in a tweet on May 11, 2018 [see photo below].
CITES is an international agreement – primarily, between governments of UN member countries – whose primary aim is to ensure trade in specimens of wild animals and plants does not threaten their survival. It entered into force in 1975. States and regional economic organizations join and adhere to its conditions voluntarily. Kenya officially joined the convention in 1979.
The UN Secretary General António Guterres much like his predecessor – Ban Ki Moon – is on record for saying that, “the death penalty has no place in the 21st century.” UN General Assembly’s resolution 69/186 of 18 December 2014 on moratorium on the use of the death penalty calls on all UN member countries including Kenya to among other things reduce the number of offences for which the death penalty may be imposed and establish a moratorium on executions with a view to abolishing the death penalty. Therefore, it is ill advised for CITES to urge Kenya along the path of the proposed plan to introduce death penalty for wildlife crime.
Why the death penalty is ill advised
Evidently, Kenya’s plan to introduce death penalty for wildlife crimes is ill advised for at least three reasons. First, reliance on the death penalty is declining both globally and locally. The last time Kenya executed a death row convict was 1987. On July 30, 2010, the Court of Appeal in Kenya ruled that mandatory death sentences are unconstitutional. On October 24, 2016, President Uhuru Kenyatta commuted all the country’s death sentences to life imprisonment. In a nutshell, reality does not only render the death penalty undesirable but also ineffective.
Second, the Wildlife Conservation and Management Act of 2013 that is now under consideration for amendment has only been in force for about five years. Obviously, not enough time to gauge efficacy particularly considering the complexity of wildlife conservation and management in Kenya. Besides, considering Kenya’s experience with shoot to kill policy in the wildlife sector and the corresponding persistence of the poaching menace, I can guarantee that the death penalty – if introduced – will not deter poachers. Research from neighbouring Tanzania shows that poachers continue to engage in poaching despite the dangers associated with it because “poaching pays”.
Third, proponents of the death penalty are at best escapist. The real concern should not be that existing law is not working. Rather the concern should be on why the existing law is not working as expected and then finding sustainable and ethical solutions. Several factors may explain why the existing wildlife law has not worked as expected. Some of these factors include laxity in enforcement, under resourced relevant government agencies (e.g. KWS), corruption, prolonged electioneering period, and the racially divided politics of wildlife conservation in Kenya. The death penalty proposal is informed by a quick fix mentality that is ill equipped to solve the complex problem of wildlife poaching.
Way forward
Considering the foregoing facts, it is only prudent that the Kenyan government reconsiders the death penalty proposal. In seeking a solution to the poaching problem, which threatens the country’s economy, security and wildlife, the government should consider the following suggestions.
Economic empowerment of conservation area communities by ensuring that wildlife conservation works for them. Often, the benefits of wildlife conservation accrue disproportionately to the global community while the costs of the same accrue disproportionately to the local community. To this end, there is a need to acknowledge the reality of racial, class and gender disparities in wildlife conservation in Kenya as a necessary step in understanding the power dynamics that shape the country’s wildlife sector.
Ensure that relevant government agencies such as KWS and Kenya Police Service are well resourced and accountable. With a financially struggling KWS and corrupt police service, it is foolhardy to expect satisfactory enforcement of the country’s wildlife law. Moreover, new national institutions such as the Kenya Wildlife Conservancies Association (KWCA) should be accorded more decision-making authority on matters wildlife conservation to ensure community voice is not silenced.
The Kenyan government and its relevant agencies should strive to collaborate with global and regional State and non-State actors with the sole aim of building a wildlife crime buster network. Past experience with this strategy shows that it can be quite effective in addressing the poaching menace. For instance, the 2014 collaboration between Kenya Wildlife Service and the International Criminal Police Organization (INTERPOL) led to the the arrest of a suspected poaching boss, Feizal Ali Mohammed, accused of trafficking large quantities of ivory. In 2016, Feizal was convicted of illegal possession of ivory worth 44 million shillings and sentenced to 20 years in jail with a 20 million shillings fine.
Ultimately, tackling Kenya’s poaching problem requires a multipronged, multi-actor and multi-scalar approach that upholds human rights and dignity while guaranteeing the survival of wildlife species for posterity. An approach that involves death penalty for convicted poachers does not fit this bill. Moreover, the nature of wildlife conservation in Kenya is such that the death penalty will disproportionately affect the capability deprived men and/or women who largely engage in poaching for survival while leaving the real culprits – organized crime, corruption and global demand – unscathed.
Jeremiah Ogonda Asaka, Ph.D. 