-
As part of our global pro bono programme I am delighted that we have been able to support the
Royal Foundation of The Duke and Duchess of Cambridge and Prince Harry and United for Wildlife in producing this important report on the legislative framework regulating the trade of wildlife in eleven key countries. As the report shows, there is still much work to be done to combat illegal trade of wildlife but we hope it will be useful in assisting United for Wildlife in their invaluable work.
I have great pride in the fact that 55 DLA Piper lawyers across ten of our offices globally have been involved in this project. We look forward to hearing the outcome of the London Symposium and supporting further the outstanding work of the Royal Foundation of the Duke and Duchess of Cambridge and Prince Harry and United for Wildlife.
Sir Nigel Knowles Managing Partner DLA Piper
UNITED FOR WILDLIFE
Through his Foundation, His Royal Highness The Duke of Cambridge has brought together an unprecedented collaboration between seven of the world's most influential conservation organisations and the Royal Foundation of The Duke and Duchess of Cambridge and Prince Harry. The partnership, named "United for Wildlife", is a long-term commitment to tackle the global challenges to the world’s natural resources so they can be safeguarded for future generations.
The partnership between Conservation International, Fauna & Flora International, International Union for Conservation of Nature, The Nature Conservancy, Wildlife Conservation Society, WWF-UK, the Zoological Society of London and the Royal Foundation will lead the way to substantially increase the global response to major conservation crises.
DLA PIPER
Our pro bono programme: As one of the largest law firms in the world, DLA Piper develops, manages and delivers pro bono in size, scale and scope unlike any other law firm. With more than a dozen dedicated lawyers around the world developing and managing our pro bono projects, and more than 4,200 international lawyers ready to provide pro bono services, we deliver seamlessly coordinated global projects as well as individualised one–on-one services with extraordinary dedication and commitment.
We are concerned about access to justice and rule of law around the world. Our global pro bono practice acts for and with some of the world's leading global charities, aid agencies, NGOs, UN agencies, governments and academic institutions around the world. DLA Piper’s commitment is unparalleled and every lawyer makes a serious and sustained effort to do pro bono work. In 2013, the firm devoted over 200,000 hours to pro bono initiatives, making us one of the largest providers of pro bono legal services in the world.
As a thought leader in the creation and delivery of pro bono services, we engage in innovative pro bono projects, maintain a leading pro bono practice and help build a pro bono culture in the legal profession around the world. We are noted for our depth in areas such as juvenile justice, heirs’ property law, human rights, non-profits and charities, and poverty law.
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To maximise our impact, we send teams of lawyers in-country to work alongside our partners and clients whenever possible. We focus our work on legal education designed to strengthen a country's legal system and improve the skills of its judges and lawyers, women and children’s rights, access to justice and law reform, environmental protection, economic development and food security.
Read about our global pro bono programme and New Perimeter at www.dlapiperprobono.com.
TABLE OF CONTENTS
EXECUTIVE SUMMARY ...... 1 BOTSWANA ...... 5 1. EXECUTIVE SUMMARY ...... 6 2. PRINCIPLE LEGISLATION ...... 7 3. PENALTIES ...... 11 4. ANCILLARY LEGISLATION ...... 12 5. JUDICIAL PROCESS AND CAPACITY ...... 20 6. CONCLUSIONS ...... 27 CAMEROON ...... 30 1. EXECUTIVE SUMMARY ...... 31 2. PRINCIPAL LEGISLATION ...... 31 3. PENALTIES ...... 39 4. ANCILLARY LEGISLATION ...... 43 5. JUDICIAL PROCESS AND CAPACITY ...... 52 6. CONCLUSIONS ...... 54 CHINA ...... 56 1. EXECUTIVE SUMMARY ...... 57 2. PRIMARY LEGISLATION ...... 57 3. PENALTIES ...... 60 4. ANCILLARY LEGISLATION ...... 62 5. JUDICIAL PROCESS AND CAPACITY ...... 68 6. CONCLUSIONS ...... 73 DEMOCRATIC REPUBLIC OF THE CONGO ...... 74 1. EXECUTIVE SUMMARY ...... 75 2. PRINCIPAL LEGISLATION ...... 76 3. PENALTIES ...... 86 4. ANCILLARY LEGISLATION ...... 89 5. JUDICIAL PROCESS AND CAPACITY ...... 93 6. CONCLUSIONS ...... 96 KENYA ...... 98 1. EXECUTIVE SUMMARY ...... 99 2. PRINCIPAL LEGISLATION ...... 100 3. PENALTIES ...... 105 4. ANCILLARY LEGISLATION ...... 107
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5. JUDICIAL PROCESS AND CAPACITY ...... 112 6. CONCLUSIONS ...... 123 MALAYSIA ...... 127 1. EXECUTIVE SUMMARY ...... 128 2. PRINCIPAL LEGISLATION ...... 128 3. PENALTIES ...... 134 4. ANCILLARY LEGISLATION ...... 147 5. JUDICIAL PROCESS AND CAPACITY ...... 152 6. CONCLUSIONS ...... 157 THE PHILIPPINES ...... 158 1. EXECUTIVE SUMMARY ...... 159 2. PRINCIPAL LEGISLATION ...... 160 3. PENALTIES ...... 166 4. ANCILLARY LEGISLATION ...... 173 5. JUDICIAL PROCESS AND CAPACITY ...... 183 6. CONCLUSIONS ...... 185 THAILAND ...... 188 1. EXECUTIVE SUMMARY ...... 189 2. PRINCIPAL LEGISLATION ...... 190 3. PENALTIES ...... 193 4. ANCILLARY LEGISLATION ...... 198 5. JUDICIAL PROCESS AND CAPACITY ...... 199 6. CONCLUSIONS ...... 204 TANZANIA ...... 207 1. EXECUTIVE SUMMARY ...... 208 2. PRINCIPAL LEGISLATION ...... 208 3. PENALTIES ...... 213 4. ANCILLARY LEGISLATION ...... 218 5. JUDICIAL PROCESS AND CAPACITY ...... 223 6. CONCLUSIONS ...... 230 UGANDA ...... 232 1. EXECUTIVE SUMMARY ...... 233 2. PRINCIPAL LEGISLATION ...... 235 3. PENALTIES ...... 244 4. ANCILLARY LEGISLATION ...... 248 5. JUDICIAL PROCESS AND CAPACITY ...... 253
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6. CONCLUSIONS AND RECOMMENDATIONS ...... 255 VIETNAM ...... 257 1. EXECUTIVE SUMMARY ...... 258 2. PRINCIPAL LEGISLATION ...... 258 3. PENALTIES ...... 265 4. ANCILLARY LEGISLATION ...... 269 5. JUDICIAL PROCESS AND CAPACITY ...... 273 6. CONCLUSIONS ...... 279 DLA PIPER CONTRIBUTORS ...... 281
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EXECUTIVE SUMMARY
By
Michael S. Lebovitz Heidi Newbigging Alice Puritz
Project Leaders and General Editors DLA Piper - London
In 1975, the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) entered into force through ratification or accession by ten countries. Today, 179 countries are Parties to CITES, and yet illegal trade in wildlife has continued to proliferate to the point where it ranks behind only illegal trafficking in drugs, guns and human beings in the value of the illegal trade.
Each of the 179 Contracting Parties has some form of principal domestic legislation implementing CITES and setting out offences relating to the illegal trade in wildlife which are subject to prosecution through some form of domestic judicial process. Many Contracting Parties also have ancillary legislation that can be used to prosecute illegal trade in wildlife. Examples include legislation with respect to money laundering, illegal use of weapons and anti-corruption legislation.
Numerous factors are often cited as drivers of the proliferation of illegal trade in wildlife including wealth, poverty and cultural demand. Strong principal and ancillary legislation and enforcement through an effective judicial process act as deterrents to this criminal activity. By contrast, weak or limited legislation enforced on a haphazard basis by a judiciary with limited experience or capacity to prosecute not only fails to deter but furthers an environment where those engaging in such activity are emboldened. Notwithstanding the number of contracting parties to CITES, work still needs to be done to strengthen legislation around the world and improve prosecutorial and judicial capacity and processes.
DLA Piper was engaged by the Royal Foundation of the Duke and Duchess of Cambridge and Prince Harry (the "Royal Foundation") on behalf of the United for Wildlife partnership to review and evaluate the state of legislation and judicial processes with respect to illegal trade in wildlife in eleven countries: Botswana, Cameroon, China, Democratic Republic of Congo, Kenya, Malaysia, the Philippines, Tanzania, Thailand, Uganda and Vietnam. A team of 55 lawyers from 15 DLA Piper Offices around the world reviewed and analysed the relevant principal and ancillary legislation and domestic prosecutorial and judicial processes, using this information to produce a report for each country.
Following an executive summary, each country report includes an overview of the principal legislation on illegal trade in wildlife. This is also the domestic legislation implementing CITES. The reports then discuss the criminal penalties (fines and imprisonment) associated with illegal trade in wildlife, with an emphasis on whether such penalties cause the crime to be considered a "serious crime" within the meaning of the United Nations Office of Drugs and Crime ("UNODC"). The reports also review relevant ancillary legislation that can be used to prosecute crimes associated with the illegal trade in wildlife. Each report then assesses the local judicial process and capacity to enforce
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the domestic principal or ancillary legislation. The reports then conclude with observations and recommendations based on the findings of the country team.
The reports reveal a host of weaknesses. Except with respect to Kenya, whose new principal legislation is untested, weaknesses exist in the principal legislation of each of the countries analysed. Substantial inconsistencies exist in terms of the penalties for violating local law. Several reports discuss limitations regarding prosecutorial power or experience. Every report identifies issues with judicial procedure and capacity. The only consistent theme in the country reports is that significant work needs to be done in every country in order to effectively tackle the illegal wildlife trade.
Principal Legislation
Each of the countries analysed is a Party to CITES and each has enacted principal legislation implementing the Convention into domestic law.
Perhaps a bright spot in our analysis of principal legislation was Kenya's recognition that its principal legislation was weak and antiquated, leading to the enactment of its new Wildlife Conservation Management Act.1 In most of the other countries, the state of principal legislation is mixed at best. In some countries, principal legislation is ineffective because important provisions must be implemented through separate regulations which have either not yet entered into force or do not benefit from public transparency.2 Similarly, the principal legislation in Tanzania called for the establishment of an autonomous agency to administer that law. Five years since the new principal legislation entered into force, the agency has not been formed.3
Jurisdictional and bureaucratic barriers are also prevalent. In China, enforcement of principal legislation is under the jurisdiction of a national agency, but the budgets of the local divisions of that agency are set by local officials who may have competing interests.4 In Malaysia, principal legislation varies by state resulting in a lack of uniformity.5 Similar issues exist in the Democratic Republic of the Congo ("DRC"), where implementation of principal legislation is left to provincial governments.6
Penalties
A law will act as a deterrent only where the penalties for violating that law are proportionate to the prohibited activity. In other words, the penalty for violating the law should be such that the crime is viewed as a serious crime. For the purposes of our analysis, we used the UNODC benchmark for a "serious crime" as one that carries a minimum prison sentence of four years.
Violation of principal legislation is a serious crime in most of the countries analysed. In China, sentence of life imprisonment and a death sentence were both upheld in the case of illegal hunting of pandas.7 Notable exceptions exist though including Cameroon, the DRC and, in certain cases, Thailand.8
1 Kenya 1.2 References are to the section number in the identified country report. 2 Cameroon 2.2 3 Tanzania 2.2 4 China 2.1.3 5 Malaysia 2.2 6 DRC 2.2.1 7 China 5.5 8 Thailand 3.1
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Many reports noted a lack of consistency in setting the penalty by the prosecution or the judge. Where there is prosecutorial or judicial discretion, wide variations occur. There is a strong need for clear, unambiguous sentencing guidelines.9 Moreover, where there are inconsistencies in principal legislation at the local or provincial level, there are also inconsistencies reported with respect to penalties.10
Ancillary Legislation
Significant ancillary tools exist in most countries to assist in the prosecution of illegal trade in wildlife. These tools include legislation relating to money laundering, use of weapons, racketeering, corruption and customs violations. Even where violation of principal legislation would be considered a serious crime, in most countries, violations of ancillary legislation often carry harsher sentences. Ancillary legislation is a useful supplement to the enforcement of principal legislation. 11 Kenya, for example, has decided to prosecute illegal wildlife trade under its legislation relating to anti-money laundering, organised crime and terrorism.12
The use of ancillary legislation depends strongly on the willingness of a prosecutor to use that tool and the experience of a judge in prosecuting illegal wildlife trade under that legislation. Many reports discussed this weakness.
Ancillary legislation and related tools can also be used to curb demand. This can be seen in China's ban on the use of rhinoceros horns and tiger bones in medicinal wine, powder and traditional medicines. 13
Judicial Process and Capacity
Each report reviews the judicial process for prosecuting illegal wildlife crime. Many reports describe specific prosecutions and, where available, statistics on successful prosecution. As noted above, the lack of sentencing guidelines gives considerable discretion to both the prosecutor and the judge. The reports include several examples of judicial discretion leading to lower or suspended sentences, or failure to impose mandatory fines.14
As can be expected with the developing countries included in our study, the most significant issue relates to prosecutorial and judicial capacity and resources. Prosecution staff and judicial offices are often underfunded, whether because of budget constraints or because of a political unwillingness to provide the necessary resources. Moreover, illegal wildlife crime is often hard to prosecute because of the lack of resources needed to secure or evaluate forensic evidence. Such evidence is often necessary to distinguish between a "wild" and a "domesticated" animal.15
9 Malaysia 5.2.5 10 Malaysia 6.1.2 11 China 4.4 12 Kenya 4.3 13 China 2.2 14 Malaysia 5.2 15 China 4.6, Thailand 6.1.1
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Some reports noted the lack of a reporting system on the prosecution of illegal wildlife crime. Publication of judicial decisions and maintaining statistics on illegal wildlife crime prosecutions would lead to increased uniformity in sentencing and increased likelihood of successful prosecution.16
Observations and Recommendations
As noted at the outset of this summary, and as will be readily observed from a reading of the country reports, considerable important work needs to be done to strengthen the enforcement of wildlife crime legislation around the world. Each report contains a number of observations and recommendations that are applicable to the country under discussion. From these, a number of general recommendations arise as follows:
Model legislation - Many countries have amended or updated their principal legislation. Kenya updated its principal legislation in January 2014. Tanzania's legislation is also relatively new. As public pressure increases around the world to address the proliferation of illegal trade in wildlife more effectively, we anticipate that more countries will continue to update their domestic legislation. Greater consistency could be achieved by the development of a model wildlife act that would be used as a basis for countries as they update domestic legislation.
Model sentencing guidelines - Coupled with a model act, model sentencing guidelines could also be developed as a basis for the establishment of domestic sentencing guidelines for wildlife crimes.
International database - Given the lack of resources in many countries, an international database could be developed for the publication of judicial decisions and prosecution statistics relating to wildlife crimes.
Multilateral initiatives/exchange of information - There are numerous opportunities for countries to collaborate on legislative and judicial initiatives, particularly in those countries that share a border, such as Kenya and Tanzania. These could include cooperation on a species-by-species basis where countries have similar issues with respect to enforcement. For example, Kenya and Tanzania could cooperate with respect to illegal trade in ivory, partnering perhaps with a "demand" country such as China.
Prosecutorial and judicial training - Standardised training modules could be developed and made available online or delivered locally or regionally. The CITES Secretariat, the international organisation dedicated to monitoring wildlife trade, TRAFFIC, or another entity or organisation could maintain a database of training programmes for access by prosecutors and judges around the world.
Although our analysis covers only eleven countries, we have no doubt that the issues summarised above and discussed in detail in our reports are equally relevant in a substantial number of the 179 CITES member countries. We are also conscious that the above recommendations all require a great deal of resources, both economic and human, to achieve their implementation. We stand ready to work with the Royal Foundation and United for Wildlife to continue this important initiative and assist with further research and the implementation of the above recommendations in order to take further steps to combat the illegal wildlife trade.
16 Malaysia 6.2.3
4
BOTSWANA
Team leader and editor - Helen Hall - DLA Piper
Team members - Alice Puritz, Lindsay Gerrand, Yasmin Bailey, Jennifer Griffin, Rachel Turnbull - DLA Piper
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1. EXECUTIVE SUMMARY
Botswana is often cited as a champion in the war against the illegal trafficking of wildlife on the African continent. The country's president Ian Khama is well known as a conservationist17 and has implemented strict anti-poaching and wildlife policies including the recent temporary ban on hunting on public land which came into force at the start of 2014.
Botswana has a well-trained military force protecting its wildlife in certain areas of the country18 and this is often credited with the low incidences of poaching reported in Botswana. However, with suspected poachers often originating from neighbouring countries and the shoot to kill policy resulting in a lack of criminal proceedings, the scale of the poaching problem in the country is unclear.
As detailed below, there are significant custodial sentences available for breaching wildlife conservation policies within Botswana, falling well within the UNODC toolkit definition of serious offences. However, the availability of solely financial penalties remains, some of which are very low in light of the fact that Botswana is designated as a Middle Income country with a GDP per capita of around $9,50019. These fines seem woefully inadequate given the financial rewards available in this international trade.
Botswana's judicial process is relatively well developed for dealing with wildlife crimes, with a structured court system specifically for the prosecution of wildlife crimes and dedicated governmental groups with wide ranging powers of questioning and arrest working together as the executive in order to intercept poachers and other wildlife criminals. However, there still appears to be a lack of cohesion between the respective bodies involved in the initial apprehension, evidence gathering, prosecution and judging of the case which has resulted in a number of cases being dropped or unnecessarily protracted.
The illegal wildlife trade is often facilitated by corruption, through bribery of customs or government officials, falsification of documentation and other means. Corruption is also used by perpetrators of wildlife crimes to avoid punishment for their criminal behaviour, often by bribing court staff or other officials. Furthermore, crimes related to the illegal wildlife trade are often predicate offences to other criminal behaviour such as money laundering and financing of terrorism. The legislative and prosecutorial framework put in place by a country to tackle corruption is therefore equally important, if not more so, than legislative and other measures taken to tackle the illegal wildlife trade directly.
Ranked as the least corrupt country in Africa20, Botswana is ranked number 30 on a list of 177 countries ranked from least to most corrupt by Transparency International, the global coalition against corruption.21 The index ranks countries according to perceived corruption in the public sector of that country, using data from a variety of reputable sources. Botswana’s overall ‘corruption score’ is 66/100, with 0 being corrupt and 100 being very clean,
17 Ian Khama: A conservation icon or a hostage of Western tourism interests? Spencer Mogapi, Sunday Standard, http://www.sundaystandard.info/article.php?NewsID=18197, 20 October 2013 18 The Botswana Defence Force and the War against Poachers in Southern Africa, Small Wars and Insurgencies, Vol. 16, No. 2, 170-191, June 2005 19 Is Small Really Beautiful? Community-based Natural Resource Management in Malawi and Botswana, World Development Vol. 34, No. 11, pp. 1942–1957, 2006 20 Africa Review, Botswana and Cape Verde least corrupt on TI's Africa index, http://www.africareview.com/News/Botswana-Cape-Verde- and-Seychelles-top-TIs-corruption-index/-/979180/2097020/-/13pseecz/-/index.html, 3 December 2013 21
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demonstrating that although Botswana is making progress towards becoming a clean country, there is still much to be done. Although Botswana is perceived to be relatively corruption free in the judicial process, there is nevertheless some evidence of corruption resulting in judicial irregularities.
Botswana has a reasonably comprehensive regulatory framework in place to address various corruption-related offences, such as bribery and anti-money laundering; it is also party to international conventions in these areas. However, it has no legislation criminalising the financing of terrorism. While not entirely robust, the legislation does go some way to addressing these issues. However, the necessary resources both financial and human to effectively implement the current framework through avenues such as monitoring, data collection and prosecution of crimes under the legislation, are insufficient.
2. PRINCIPLE LEGISLATION
2.1 Legislation summary
The Republic of Botswana is divided into 9 districts which are further divided into 15 councils22. In total, 17% of the land area has been set aside as national park or game reserves and its Wildlife Management Areas comprise over 20%23.
There are a number of pieces of legislation which govern wildlife management issues in Botswana including the Wildlife Conservation Policy 1986 (currently under review), the Tourism Policy 1990, the National Conservation Strategy 1990, the Tourism Act 1992 and the Tribal Grazing Lands Policy (TGLP) 197524, which are predicated on the wise use of the country's natural resources. However, the most significant pieces of legislation regarding the illegal trade in wildlife are the Wildlife Conservation and National Parks Act 1992 and the Wildlife Conservation Policy 1986.
2.1.1 The Wildlife Conservation and National Parks Act 199225
This Act ("WCNPA") commenced on 11 December 1992 and is the primary statute controlling hunting, poaching and wildlife trade in Botswana. This legislation implements Botswana's responsibilities under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES).
Part IX of the WCNPA covers general provisions with regards to hunting. The Act imposes geographical limits on where individuals are able to hunt, which animals can be hunted and the methods which can be used in the hunting of certain animals. Apart from a couple of exceptions, individuals must possess a licence in order to legally hunt in designated hunting areas. However, since 1 January 2014 the government of Botswana has introduced a temporary ban on the issuing of licences for the hunting of protected and partially protected game animals26. This has had the effect of banning hunting of these animals on public
22 Global Forum for Rural Advisory Services, http://www.g-fras.org/en/world-wide-extension-study/africa/southern-afrca/botswana.html accessed 11 April 2014 23 Law Library of Congress, http://www.loc.gov/law/help/wildlife-poaching/botswana.php accessed 25 March 2014 24 Law Library of Congress, http://www.loc.gov/law/help/wildlife-poaching/botswana.php accessed 25 March 2014 25 Available at http://www.elaws.gov.bw/law.php?id=940 accessed on 11 April 2014 26 Botswana: Hunting Ban Takes Effect, http://allafrica.com/stories/201401240031.html, 23 January 2014.
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land. It remains to be seen what, if any, impact this ban will have on the illegal trade in wildlife.
Wildlife in Botswana is classified into different categories: protected game animals (Sixth Schedule), partially protected game animals (Seventh Schedule, Part I), designated game animals (Seventh Schedule, Part II), game birds (Seventh Schedule, Part III) and non-designated animals. Protected game animals include cheetah, wild dog, otter, rhinoceros and pelicans. Partially protected game animals include the leopard, lion, elephant, chobe bushbuck and eland. The illegal hunting of protected and partially protected animals carries severe penalties and falls under the definition of serious crimes according to the standards set out in the UNODC toolkit - "conduct constituting an offence punishable by a maximum deprivation of liberty of at least four years or a more serious penalty"27. However, it should be noted that the penalties also include the option for the offender to receive only a fine.
Section 60 of the WCNPA prohibits the sale of any game animal or non- designated animal or the meat, eggs or trophy of any such animal without a permit or proof of landholders privileges. Section 60(2) also states that any such items found in a shop, store or other place of business shall be presumed to have been acquired for the purpose of sale. It is also an offence under section 61 WCNPA to purchase such items unless they are purchased at certain specified locations.
Part X of the WCNPA deals with the export and import of animals, trophies and meat. It is an offence under section 62 for any person to export from or import into or transport through or re-export from Botswana any animal, or trophy, meat or eggs thereof except in accordance with a permit. The export and import of any animals listed under the appendices to the CITES convention shall only be permitted in accordance with the provisions of CITES. Selling or otherwise dealing in or manufacturing articles from any trophy illegally obtained in or imported into Botswana is also an offence under section 64.
Sections 68, 69 & 70 of the WCNPA deal specifically with the importation, transfer and possession of tusks, ivory and rhinoceros horn. Anyone who acquires tusks or ivory within Botswana or imports them into the country without a certificate of ownership, must produce the items to a licensing officer within 7 days. It is an offence to possess such items without a certificate of ownership. Under section 69, no person may transfer ivory without also transferring the relevant certificate of ownership or proof of registration. Any killings of a rhinoceros must be reported to a licensing officer within 7 days of the killing and the horn produced. Subject to this rule, it is an offence to possess, transfer or in any way deal in rhinoceros horn.
2.1.2 Wildlife Conservation Policy 198628
The Wildlife Conservation Policy of 1986 (“WCP”) aims to encourage the development of a commercial wildlife industry which is viable on a long term basis. The WCP aims to do this by allowing for the management and utilisation
27 United Nations Convention against Transnational Organized Crime, Art 2(b) 28 http://www1.eis.gov.bw/EIS/Policies/Environmental%20Policies/Wildlife%20Conservation%20Policy.pdf
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of wildlife resources on a sustained basis. The WCP is however, currently under review29.
The WCP recognised that “illicit hunting on a commercial basis” has increased in Botswana and that for conservation to be effective “measures must be both capable of enforcement and fully enforced”30. Therefore, whilst the WCP aims to promote the utilisation of wildlife on a sustained basis, it requires measures regarding the promotion of wildlife utilisation to comply with controls relating to conservation.
The aims of the WCP can be broken down into (1) rural development (which includes creating economic opportunities by realising the full potential of Botswana's wildlife resources) (2) citizen participation in wildlife utilisation and (3) government control of wildlife development31. The latter is essentially concerned with Botswana's wildlife conservation goals and includes adapting or introducing legislation which permits, encourages or monitors development of the wildlife industry, as well as improving management and administration of wildlife resources in particular in regards to hunting licences, the terms and conditions applicable to these and the penalties imposed for any infringement. Notably, the WCP states that relevant legislation will be reviewed from time to time by the Government to "reinforce the realisation of Botswana's wildlife conservation aims"32.
The policy lists various wildlife utilization activities which will either be introduced or modified as a result of the WCP, including the process and sale of wildlife products and the export and import of wildlife33. The WCP notes that Botswana’s trade in live animals and animal products is controlled by means of international standards in regards to imports, exports and re-export permits, which have been designed to ensure that any such trade in any species poses no danger to that species34. Moreover, it notes that Botswana is a party to the CITES convention and therefore observes the provisions of the convention and the convention's list of animals which are threatened or endangered by trade35. The provision specifically notes that Botswana strictly controls its trade in animals such as crocodiles, lechwe, leopards and cheetah. These provisions are paramount as they reflect the fact that the policies adopted or promoted by the WCP are CITES compliant.
The WCP also further develops the concept of Wildlife Management Areas (“WMAs”) which were established under the Tribal Grazing Land Policy of 197536. This is a concept also established in other African countries by their respective wildlife laws37. WMAs constitute a type of land zoning which are
29 http://www.loc.gov/law/help/wildlife-poaching/botswana.php 30 Wildlife Conservation Policy 1986, para 1.7 31 Wildlife Conservation Policy 1986, para 6.3 32 Wildlife Conservation Policy 1986, para 6.3.3 33 Wildlife Conservation Policy 1986, para 7.5 34 Wildlife Conservation Policy 1986, para 7.5.13 35 Wildlife Conservation Policy 1986, para 7.5.13 36 Wildlife Conservation Policy 1986, para 3.3 37 For example Tanzania
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distinguishable from parks and reserves. Notably, the WCP differentiates WMAs from national parks and game reserves on the basis that these are primarily preservation areas and therefore the total preservation of wildlife resources is sought. On the other hand, in WMAs licensed hunting is permitted on a regulated basis. Although the policy builds on the concept of WMAs, it does not set out the framework or implementations of these.
2.2 Species-specific legislation
As noted above, the legislation which is in place often distinguishes between the degrees of protection afforded to different species. In addition as discussed below, the maximum penalties which can be imposed for breaches of S. 62 WCNPA in respect of import or export of animals or parts thereof, do increase in respect of elephant or rhinoceros.
In addition, S.67 of the WCNPA deals specifically with the killing of elephant and rhinoceros. Any person who kills an elephant shall produce its lower jaw, tail and tusks to a licensing officer within 7 days of the killing together with the license or permit. Failure to do so means that the licensing officer may refuse to register the tusks. If the licensing officer is not satisfied that the tusks have been lawfully obtained or that possession or ownership is in accordance with CITES, he may retain them pending further investigation.
2.2.1 Elephants38
In December 2013 there was a meeting co-hosted by the International Union for the Conservation of Nature (IUCN) and the Government of Botswana, at which representatives from 30 countries discussed the current elephant poaching crisis and the illegal ivory trade. As a result of which, 14 Urgent Measures39 were approved by consensus to tackle the crisis.
Crucially, the countries agreeing to the measures include those implicated along the entire ivory trade chain from source to transit and destination. Botswana has signed the urgent measures agreement.
The measures include:
a) a zero-tolerance approach to dealing with wildlife crime;
b) enhancing enforcement capacity and strengthening international co-operation for dealing and reacting to poaching incidents;
c) plans to introduce elephant poaching and ivory trafficking as standing agenda items on National Security Committees;
d) steps to reduce the demand for ivory in consumer markets;
e) the introduction of secure ivory stockpile management measures;
f) support for local communities to advance their rights and capacity to manage and benefit from wildlife and wilderness resources.
38 http://www.traffic.org/home/2013/12/5/nations-agree-urgent-measures-to-curb-elephant-poaching.html, accessed 16 April 2014 39 African Elephant Summit Gaborone, Botswana 2-4 December 2013 Urgent Measures 3 December 2013 https://cmsdata.iucn.org/downloads/african_elephant_summit_final_urgent_measures_3_dec_2013.pdf, accessed 21 May 2014
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The governments also agreed to pool resources to improve the monitoring of live elephant populations, the reporting of illegal elephant killings to MIKE40 and the reporting of ivory trafficking cases to ETIS.41
2.2.2 Fish
The Fish Protection Act 1975 deals specifically with controls and regulations in respect of fish protection.42 Any person who uses or permits to be used any explosive, poisonous or noxious substance for the purpose of killing, stunning or disabling fish or in any way rendering fish more easily caught shall be guilty of an offence and liable to a fine not exceeding P500, or to imprisonment for a term not exceeding 12 months, or to both.
2.2.3 Wildlife Conservation and National Parks (Cheetahs) (Killing Suspension) Order
This subsidiary legislation was passed in 2005 and introduced an outright ban on the killing of Cheetahs even if the circumstances satisfy a condition in section 46 (1) of the WCNPA. The penalty for breaching this order is a fine not exceeding P1000 and up to 1 years' imprisonment.
2.2.4 Wildlife Conservation and National Parks (Lions) (Killing Restrictions) Order
Introduced in 2005, this subsidiary legislation provides conditions which must apply in addition to those in section 46(1) WCPNA in respect of killing a lion. The burden of proof lies with anyone who kills a lion, to prove that it was necessary and in compliance with the requirements of the order. The penalty for breaching this order is a fine not exceeding P1000 and up to 1 year's imprisonment.
2.2.5 Wildlife Conservation (Possession and Ownership of Elephant Tusks or Ivory) Regulations
These regulations set out the steps that must be complied with in the event that an individual comes across or obtains an elephant tusk as well as the transport and storage arrangements for such items.
3. PENALTIES
3.1 Penalties for specific offences
The Wildlife Conservation and National Parks Act 1992
The illegal hunting of the majority of protected game animals is a fine of up to P10,000 (approx. US$1,15043) and 7 years' imprisonment. However, if the offence involves a
40 Monitoring the Illegal Killing of Elephants: the CITES-managed poaching monitoring system http://www.cites.org/eng/prog/mike/index.php, accessed 21 May 2014 41 The Elephant Trade Information System http://www.traffic.org/home/2013/10/23/etis-dissecting-the-illegal-ivory-trade.html managed by TRAFFIC on behalf of Parties to CITES, accessed 16 April 2014 42 http://www.elaws.gov.bw/desplaylrpage1.php?v=VI&vp=&id=931, accessed 16 April 2014 43 Currency conversion tool used via www.xe.com. All currency conversions carried out at 12:00 on 11 April 2014.
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rhinoceros the maximum fine rises to P100,000 (approx. US$11,480) and up to 15 years' imprisonment.
The hunting of partially protected animals without a licence is punishable by a fine of P5,000 (approx. US$574) and up to 5 years' imprisonment. However, if the animal is an elephant then the penalties rise substantially to a fine of up to P50,000 (approx. US$5,740) and 10 years' imprisonment.
Hunting designated game animals including baboon, caracal, wildcat and zebra without a licence carries a penalty of P2,000 (approx. US$230) and 2 years' imprisonment whilst hunting a designated game bird such as a spur wing goose, Egyptian goose, whitefaced duck or snipe without a licence can be punished by P1,000 (approx. US$115) fine and a 1 year prison term. Hunting a non-designated animal or violating the terms of a licence is punishable with a fine of up to P500 (approx. US$57) and up to 6 months in prison.
Any person who illegally exports, imports, transports through or re-exports from Botswana any animal or trophy, meat or eggs is liable to a fine of P10,000 (approx. US$1,150) and imprisonment up to 7 years. However, where the contravention involves an elephant or a rhinoceros, the penalties are escalated to P100,000 and P50,000 respectively with a prison sentence of up to 10 years.
Selling, dealing in or manufacturing any article from illegal trophies is punishable by a P5,000 fine and 5 years' imprisonment. However, when the offence involves an elephant or a rhinoceros the penalties increase to P50,000 and P100,000 respectively and up to 10 years' imprisonment.
Any person who fails to produce ivory or tusks for registration or who is found in possession of any tusk or ivory and cannot produce a certificate of ownership, proof of registration or reasonable proof of lawful importation or possession thereof, is liable to a fine of P50,000 and to imprisonment for 10 years. In addition, any person who transfers unregistered tusks or ivory is liable to the same penalties. Any person who possesses, transfers or in any way deals in rhinoceros horn, shall be liable to a fine of P100,000 and to imprisonment for 15 years.
In addition, any animal killed unlawfully or any part of that animal is automatically forfeited
to the government of Botswana if an individual is convicted of the offence. In offences which are punishable by a fine greater than P2,000 the court is required by law to order the forfeiture of any of the tools used in the commission of the offence including a weapon or a vehicle. This is a very useful tool for the government. Any conviction for an offence with a penalty greater than P1,000 triggers the revocation of the offender's licence or permit unless the court states otherwise.
4. ANCILLARY LEGISLATION
4.1 Anti-money laundering
4.1.1 Proceeds of Serious Crime Act 1990 (PSCA)44
Section 14 of PSCA criminalises money-laundering in Botswana. Section 15 of PSCA criminalises the possession, concealment, disposal of or bringing into
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Botswana of any money, or other property, that may reasonably be suspected of being proceeds of a serious offence. The offence of money-laundering is broadly in line with international standards.45
PSCA fails to criminalise the following predicate crimes recommended by the intergovernmental organisation the Financial Action Task Force on Money Laundering (FATF):
4.1.1.1 participation in an organised criminal group;
4.1.1.2 terrorism and terrorist financing; and
4.1.1.3 illicit arms trafficking and environmental crime.
This has serious implications for the prosecution of crimes associated with the illegal wildlife trade, particularly in relation to racketeering, the arms trade and environmental crimes which are all associated with facilitation of the illegal wildlife trade.
The legislation also requires a list of entities (designated bodies) to comply with anti-money laundering requirements; however, not all financial activities recommended by FATF are covered – for example, brokers are not included.46 Further, the legislation specifies that designated bodies should identify their clients, but is silent on verification requirements. Overall, an absence of sufficient regulation combined with a lack of enforcement by the agencies of designated bodies, other than banks, where regulation is more robust, has prevented effective implementation of the provisions of PSCA.47
4.1.2 Banking legislation: Banking Act 1995, Bank of Botswana (Amendment) Act 1999 and Banking (Anti-money laundering) Regulations 200348
Together with PSCA, the banking legislation in Botswana creates a suspicious activity reporting regime. However, actual reporting remains low due to various limitations of the regime.49 There are also provisions to prevent tipping-off.50
The PSCA requires the setting-up of some anti-money laundering controls such as staff training; the banking legislation goes further, for example requiring an Anti-Money Laundering Officer to be appointed.51 However, the legislation contains no requirements in relation to the screening of employees by designated bodies.
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Overall, the banking legislation sets out a more rigorous regime for anti-money laundering prevention compared with PSCA.52 It sets out identification and verification requirements. Some areas still require improvement however – such as the introduction of regulations concerning high-risk customers.53 Enforcement (by the Botswana Bank) on the other hand has been more effective than for other designated bodies.54
4.1.3 Customs and Excise Act 197055
The Act requires the declaration of cross-border movements of currency. However, there is no capacity to restrain funds to establish evidence of money- laundering or financing of terrorism.
4.1.4 Criminal Procedure and Evidence Act (CPEA) 56
Both the CPEA and the PSCA provide for freezing, seizing or restraining orders. Effective tools are in place to identify and trace property.57
The regime has been used with success in connection with offences not linked to the proceeds of crime; it is largely untested in relation to dealing with the proceeds of crime.58
4.2 Financing of terrorism
Although Botswana has ratified the UN Convention on the Suppression of the Financing of Terrorism, it has no legislation criminalising the financing of terrorism.59 In addition, there is no legislation relating to the freezing of terrorist assets (as required by UN Council Resolutions 1267 and 1373).60 It is understood that the Government is taking steps to address this, but no draft legislation has been seen.61
4.3 Anti-Bribery
4.3.1 Corruption and Economic Crime Act 1994 (CECA)62
Part II section 3 of CECA establishes the Directorate on Corruption and Economic Crime (DCEC), the functions of which are set out at Part III section 6. These functions broadly encompass the investigation of suspected cases of
52 Ibid. para. 17. 53 Ibid. 54 Ibid. 55 www.burs.org.bw/phocadownload/Revenue_laws/CAP%2050-03%20Customs%20and%20Excise%20Duty%20Act.pdf accessed 13 April 2014. 56 < http://ppja.org/countries/botswana/Botswana%20Criminal%20Procedure%20and%20Evidence.pdf >, accessed 13 April 2014. 57
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corruption and economic crime and matters connected or incidental thereto. Part III sections 7-15 confer wide powers on the DCEC to carry out its functions, including powers to conduct inquiries and powers of search, seizure and arrest.
Part IV sets out the corruption-related offences under CECA:
4.3.1.1 Corruption by or of a public officer (s. 24)
4.3.1.2 Corruption in respect of official transaction (s. 25)
4.3.1.3 Acceptance of a bribe by a public officer after doing an act (s. 26)
4.3.1.4 Promise of a bribe to a public officer after doing an act (s. 27)
4.3.1.5 Corrupt transactions by or with agents (s. 28)
4.3.1.6 Bribery for giving assistance in regard to contracts (s. 29)
4.3.1.7 Bribery for procuring withdrawal of tender (s. 30)
4.3.1.8 Conflict of interest (s. 31)
4.3.1.9 Bribery in relation to auctions (s. 32)
4.3.1.10 Cheating of public revenue (s. 33)
4.3.1.11 Possession of unexplained property/unexplained standard of living (s. 34)
Part IV section 35 sets out defences to the above offences. Part IV sections 34-35 confer powers on the Attorney-General to apply for a confiscation order under the Proceeds of Serious Crime Act where a person has been found guilty of an offence under CECA (s. 34), or to apply for a restraining order where a person is the subject of an investigation under CECA (s. 35). Part VII deals with miscellaneous procedural matters.
Due to the difficulties associated with prosecuting corruption-related offences, evidential presumptions are set out at Part IV of CECA in order to assist the prosecution in the discharge of its burden. There has been a constitutional challenge that evidential presumptions violate the doctrine of presumption of innocence which has failed in the Botswana courts.63
A deficiency of CECA is that it targets corruption only in the public service and associated bodies. It does not criminalise equivalent behaviour in the private sector. However, offences committed in the private sector are prosecuted under the Penal Code, Company Law, Income Tax Law, and other related fiscal statutes.64
63 ‘Botswana Law enforcement lessons for investigators and prosecutors’, available via UN Public Administrations Network,
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4.3.2 The Penal Code65
The Botswana Penal Code criminalises the following corruption-related behaviours:
4.3.2.1 Official corruption, which can be summarised as the taking and giving of bribes by persons employed in public service in return for doing or omitting do something in the discharge of his or her duties (s. 99);
4.3.2.2 Extortion by public officers, where persons employed in the public service take a reward or receive a promise of such a reward for the performance of his or her duty above and beyond his or her pay (s. 100);
4.3.2.3 Receipt of property by public officers in order to show favour (s. 101); and
4.3.2.4 Sections 383-387 of the Penal Code concern offences relating to corrupt practices. Section 384 makes it an offence for any agent (not defined by the Penal Code, but presumably relates to all officers whether in the public or private sector) to accept or obtain gifts in return for doing something, corruptly give or agree to give a gift in return for an agent’s promise to do something and misuse of documentation.
Owing to the difficulty of proving corrupt practices, section 386 contains an evidential presumption of corrupt practices. In other words, where it is proved that a public officer has received money, gifts or other consideration, such payment shall be deemed to have been paid or given and received corruptly as an inducement or reward unless the contrary is proved.
4.4 Penalties and enforcement
4.4.1 Anti-money laundering offences:
At present, there does not appear to be any case law on whether the offence of money-laundering is autonomous. Further, criminal sanctions for money- laundering are not considered effective, proportionate or dissuasive. Two prosecutions have been put forward so far but no convictions have been achieved.66
Proceeds of Serious Crime Act 1990 (PSCA)
4.4.1.1 Section 14 of PSCA provides that a person who engages in money- laundering will be liable to imprisonment for up to three years or a fine not exceeding P10,000 (approximately US$1150), or to both. In the case of a corporate, directors, managers or partners of the relevant
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company who were in those positions at the time of the offence will be liable to a fine or up to P25,000 (approximately US$2,875).
4.4.1.2 Section 15 of PSCA provides that anyone who receives, possesses, conceals, disposes of or brings into Botswana any money, or other property, that may reasonably be suspected of being proceeds of a serious offence shall be liable to imprisonment of up to three years or a fine not exceeding P10,000 (approximately US$1,150), or to both. In the case of a corporate, directors, managers or partners of the relevant company who were in those positions at the time of the offence will be liable to a fine or up to P25,000 (approximately US$2,875).
4.4.1.3 Section 16 of PSCA provides that a person who knowingly contravenes the terms of a restraining order by disposing of, or otherwise dealing with money or property to which the order relates shall be liable to imprisonment of up to three years and a fine not exceeding P10,000 (approximately US$1,150), or to both.
4.4.2 Anti-bribery offences:
Corruption and Economic Crime Act 1994 (CECA)
4.4.2.1 Part IV section 36 of CECA sets out the penalties for a person ‘who is found guilty of corruption or cheating the revenue under this Part’, being imprisonment for a term not exceeding 10 years and a fine not exceeding P500,000 (approximately US$54,700),67 or to both. There do not appear to be penalties relating specifically to the offences set out by CECA, rather simply this blanket penalty relating to cheating the Revenue.
4.4.2.2 Part V of CECA provides that the prosecution of offences shall be referred to the Attorney General.
Penal Code
4.4.2.3 Official corruption (s. 99): imprisonment for up to three years.
4.4.2.4 Extortion by public officers (s.100): imprisonment for up to three years.
4.4.2.5 Public officers receiving property to show favour (s.101): imprisonment for up to six months;
4.4.2.6 Corrupt practices under section 384 of the Penal Code are punishable by imprisonment of up to five years where the transaction or matter to which the offence relates concerns a Government contract/contract proposal (including local authorities and other public bodies entrusted with Government funds) or a subcontract to execute works
67 Using an exchange rate of 1 BWP = 0.114800 USD, www.xe.com, accessed on 13 April 2014. This exchange rate is used throughout the report.
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set out in such a contract. Corrupt practice offences may not be prosecuted without consent of the Public Prosecutor (s. 387).
4.5 Additional Information
4.5.1 Anti-money laundering
Botswana is a member of the Eastern and Southern Africa Anti-Money Laundering Group (ESAAMLG).68 The Botswana Country National Strategy has not been published; however, there is a mutual evaluation report compiled by an assessment team comprising officers of the World Bank, which reveals the following:69
4.5.1.1 “Botswana has set up the key fundamentals of an anti-money laundering regime through various legislative and regulatory instruments, although there are some inconsistencies and several of these components fall short of meeting national standards.70
4.5.1.2 The legal and regulatory instruments provide for the criminalisation of money laundering, confiscation of proceeds of crime, preventive measures and suspicious transaction reporting;71 and
4.5.1.3 The key components of the institutional framework for anti-money laundering (law enforcement, prosecution and supervisory bodies) are in place. However, only the Central Bank has been enforcing compliance with the anti-money laundering requirements. All actors need enhanced training and resources to effectively implement the regime.”72
The report also identifies deficiencies and makes recommendations. The key challenge appears to be effective implementation of the current legal framework.73
Botswana has designated existing agencies, the Directorate on Corruption and Economic Crime, and the Botswana Bank, as the Financial Intelligence Unit (FIU) in relation to money-laundering rather than creating a new, separate entity to address this.74 The FIU does not meet international standards and is under- resourced.75 There is also insufficient co-ordination between different agencies in Botswana responsible for investigating and prosecuting to effectively tackle money-laundering.76 The Botswana Police Service, the DCEC and the Botswana Unified Revenue Service can conduct investigations. Prosecutions are led by the
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Office of the Director of Public Prosecutions (ODPP). Although the tools are available, the focus of investigations remains on predicate offences. In addition, DCEC already has responsibility for corruption crimes, which confuses the issue.
There is transparency within the banking system77 and there are plans to set up a Regulatory Agency for non-bank financial institutions.78 Although companies are registered in Botswana there is insufficient transparency surrounding beneficial ownership of corporations and little information concerning partnerships and sole traders.79 There is no mandatory registration of trusts and no mandated legal form for non-profit organisations, which may be vulnerable to abuse for the financing of terrorism.80
Although there is a National anti-money laundering Committee, generally speaking, national co-operation between different agencies on anti-money laundering requires improvement.81 Internationally, Botswana has ratified the international Conventions relating to terrorism, financing of terrorism and money-laundering and the Mutual Assistance in Criminal Matters Act 199082 sets out a framework for international co-operation on anti-money laundering. However, implementation of these Conventions is patchy and international co- ordination on anti-money laundering is still lacking in many respects.83 There is little statistical information and reporting on anti-money laundering and financing of terrorism, which is also a barrier to improvement in this area. Development issues, resources and budgetary constraints are also an impediment to the eradication of financial crime in Botswana.84
4.5.2 Anti-bribery
Responsibility for corruption in Botswana sits within the Directorate on Corruption and Economic Crime (DCEC). The Directorate tackles corruption within Government, public bodies and private sector organisations. It carries out ‘routine assignment studies’ and makes recommendations to the body or bodies concerned in order to detect and tackle corruption. It also provides workshops and seminars on issues such as Codes of Conduct and Ethics, seconds DCEC officers to Government Ministries and provides consultancy services.85 Botswana also has a National Anti-Corruption Forum, set up through the DCEC.86 To date, at least 197 prosecutions been brought by the DCEC, with a conviction rate of 87%.87
77 Ibid. para. 19 78 Ibid, para. 24. 79 Ibid. para. 28. 80 Ibid. paras. 30 & 31. 81 Ibid. para. 32. 82
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Awareness-raising campaigns mean that citizens are aware of the DCEC and its role in Botswana.
5. JUDICIAL PROCESS AND CAPACITY
5.1 Judicial process
5.1.1 Office Responsible for Criminal Proceedings
The Directorate of Public Prosecutions (DPP) is the office established under the Constitution (Amendment) Act 2005 and is headed by the Director of Public Prosecutions, appointed in terms of section 51A of the Constitution. The DPP is responsible for the prosecution of criminal cases before all courts of Botswana (other than a court-martial) and criminal applications and appeals arising from criminal litigation.
5.1.2 Court structure
Botswana operates a dual legal system with common law and statutes operating alongside customary law. The structure of the courts in Botswana is hierarchical and split into the superior (Court of Appeal and High Court) and subordinate courts (magistrates’ and customary courts).
Botswana also has four courts of special jurisdiction: the Industrial Court, Children’s Courts, the Land Tribunal and Courts Martial which have exclusive jurisdiction for labour matters, children in conflict with the law, tribal land issues and military offences respectively.
(i) Superior Courts
The Court of Appeal is governed by the Constitution and the Court of Appeal Act 2005. The Court of Appeal is the final court of appeal in all criminal and civil matters in Botswana. Appeals may be brought to the court as of right for matters originating at the High Court, or with leave to appeal from either the Court of Appeal itself or the High Court.
The High Court is governed by the Constitution and the High Court Act 2009. The High Court has unlimited original jurisdiction to hear and determine any civil or criminal matter and is also a superior court of record.88 The Constitution specifically gives the High Court jurisdiction over all matters in which there are allegations of violations of the rights enshrined in the Constitution.89 The High Court has appellate jurisdiction over decisions of magistrates’ courts and customary courts.90
88 Constitution s95, available at http://www.parliament.gov.bw/documents-and-reports/constitution-of-botswana 89 Constitution s18 90 Dr Robert Winslow assisted by Lorena D. Jackson, Crime and Society - a comparative criminology tour of the world; Africa; Botswana, available at http://www-rohan.sdsu.edu/faculty/rwinslow/africa/botswana.html
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(ii) Subordinate Courts
Magistrates' Courts are governed by the Magistrates’ Court Act 2008. All Magistrates' Courts have original jurisdiction to try all offences except capital punishable offences.91
There are five grades of Magistrate:
Chief Magistrate Principal Magistrate Senior Magistrate Magistrate Grade I Magistrate Grade II
5.1.3 Specific Judicial Process for wildlife offences
A court presided over by a Magistrate Grade I or higher shall have special jurisdiction to hear cases under the Wildlife Conservation and National Parks Act 1992, meaning that the Magistrates Courts are the court of first instance for wildlife offences92.
Most wildlife legislation imposes criminal sanctions in the event of contravention. There are various offences in relation to illegal hunting and penalties range from a fine of P500 and imprisonment of 6 months to a fine of P100,000 and 15 years imprisonment (in relation to killing a rhinoceros)93.
The Department of Wildlife and National Parks ("DWNP") has responsibility for conserving and managing Botswana's wildlife resources and habitats and the principal instrument used to fulfill this mandate is the WCNPA and its subsidiary legislation. The DWNP has wide-ranging powers to enforce the WCNPA through its wildlife officers, gate attendants and police officers. Under s73 of the WCNPA, officers have wide powers including warrantless searches and seizure, entry onto land, seizing vehicles, trophies and weapons, undertaking inspections and also, in the case of the gate attendant, the exercise of such powers as conferred by the wildlife officer, if they have reasonable grounds to believe that a person has violated the WCNPA. They may carry weapons to discharge their duties and make arrests based on suspicion. A wildlife officer can also have limited prosecutorial power. They may charge and summons for court appearance a person suspected of committing an offence under the WCNPA.94
91 ibid 92 The Wildlife Conservation and National Parks Act at s.77 93 Gareth Mauck, Wildlife legislation in Sub Saharan Africa: Criminal Offences, Conservation Action Trust , at p12, (2012). Available at http://conservationaction.co.za/wp-content/uploads/2013/11/Wildlife-Legislation-in-SS-Africa-Nov-13.pdf 94 The Wildlife Conservation and National Parks Act at s.76
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Although the principal enforcer of the regulatory regime is the DWNP, the Botswana Police Service (BPS) and the Botswana Defense Force (BDF) also share enforcement responsibilities95. The BDF is an arm of the Botswana military tasked with protecting wildlife from poachers and includes members of the army with tracking skills96. The BDF's anti-poaching operations are aimed mainly at cross-border poaching by armed gangs and it works closely with the DWNP and the Joint Military Commission in coordinating sting operations97.
5.1.4 General Prosecution process for criminal actions
The Criminal Procedure and Evidence Act 193998 requires the DPP to serve upon the accused person notice of his intention to indict him of the offences and provide a list of the prospective prosecution witnesses, together with a summary of their evidence.
Proceedings in all the courts (with the exception of trials under the National Security Act) are open to the public under section 10(10) of the Constitution.
During trial the prosecution presents all the evidence to prove the defendant committed the offence. Defendants have the right to be present and consult with legal representation in a timely manner, but the state provides legal representation only in capital cases. Those charged with non-capital crimes are tried without legal representation if they cannot afford it.
5.2 Prosecutions
There appears to be no central database or electronic record which gives reliable and/or up to date access to data regarding the prosecution of wildlife offences in Botswana. Botswana does not have a statutory or official basis for law reporting99 and even the law reporting database, the South African Legal Information Database (SALID), which should hold information from the Botswanan High Court, was last updated in 2012 with the most recent decision available being from 2 March 2010. Decisions from the Appeal court of Botswana show the most recent decision as being from 26 March 2013100. Botswana elaws gives cases up to and including 2011, but does not appear to have been updated since then. Cases from the Magistrates Courts are not reported on an official database and it is therefore only if they are appealed to the High Court that they are reported.
5.3 Challenges - lack of resources for evidence gathering and territorial conflict
The difficulties in prosecuting often stem from a lack of preparation due to a lack of resources at the evidence gathering stage and cases are most often withdrawn for this reason.
95 The Law Library of Congress, Global Legal Research Center, Wildlife Trafficking and Poaching: Botswana • Central African Republic • Kenya • Mozambique • South Africa • Tanzania at p1 (2013). Available at http://www.loc.gov/law/help/wildlife- poaching/wildlife-trafficking-and-poaching.pdf 96 Dan Henk, The Botswana Defence Force and the War Against Poachers in Southern Africa, 16(2) SMALL WARS & INSURGENCIES supra note 1, at 177–81 (June 2005), available at http://www.rhinoresourcecenter.com/pdf_files/124/ 1243173877.pdf. 97 Ibid at p185 98 Available at http://ppja.org/countries/botswana/Botswana%20Criminal%20Procedure%20and%20Evidence.pdf 99 Available at http://www.nyulawglobal.org/globalex/botswana.htm#_Law_Reporting 100 Available at http://www.saflii.org/bw/cases/BWCA/2013/
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It is often difficult to make arrests of suspected poachers as borders between Zimbabwe and Botswana are fiercely guarded and this can facilitate escaping poachers. In 2011 three Wildlife Officers from Zimbabwe were arrested in Botswana for allegedly straying into Botswanan territory in pursuit of suspected poachers. There was speculation that the arrests were in fact retaliation for the arrests of five rangers from Botswana earlier that year. Those rangers were detained for about a month for straying into Zimbabwe. It would appear that these tensions exist between the countries despite the Joint Military Commission, which is supposed to include representatives from neighbouring countries101.
In April 2014 the Senior Magistrate, Goodwill Makofi of Village Magistrate Court, withdrew a case in which four persons were accused of unlawful possession of a government trophy (Rhinoceros horns). The four were found in possession of rhinoceros horns contrary to section 70 of the Wildlife Conservation and National Parks Act. The divisional prosecution police asked the court to withdraw the trial as there was insufficient evidence supporting the accusations levelled against the suspects. The prosecutor in the case told the magistrate that investigators had since sent the two horns for examination at the forensic laboratories and were still awaiting results. The magistrate expressed concern that while the investigators awaited the results, publically, the court itself would be blamed for delaying the process, whereas the magistrate felt that the fault lay with the prosecution, thus he withdrew the case102.
In 2013 it was reported that "several" suspects engaged in illegal hunting were apprehended103, however there are no reports of any conviction for wildlife related crimes in 2013 in Botswana. This may be due to the lack of official law reporting, but may also be due to a lack of actual convictions104.
In 2012 there were 23 cases of poaching but only 5 convictions. The resulting fines were P1500, P1000 and P800105. Whilst the rate of conviction remains low, this is an increase on 2011 where there were only two apprehensions and one conviction.
Evidence gathering can be time consuming and costly, especially when a chain of illegal wildlife trade is involved. This is however an issue which is being addressed across Africa and specifically by Botswana. In the case of rhinoceros horn, South Africa has developed methods for analysing nuclear DNA allowing individual rhinoceros to be identified from horn, blood, tissue, etc. This has already proven to be very effective106. DNA evidence has been used successfully in a number of rhinoceros-related cases in South Africa and it is routinely used in numerous criminal investigations. Sample collection kits and data forms have been developed and widely distributed and conservation officers and enforcement authorities have been trained in DNA collection techniques to ensure that the chain of evidence is maintained and that the information collected can be used in court. Samples from
101 Dan Henk, The Botswana Defence Force and the War Against Poachers in Southern Africa, 16(2) SMALL WARS & INSURGENCIES supra note 1, at p185 at (June 2005) 102 Shapi, B, The Daily News, (2 April 2014),State Withdraw Rhino Horn Case. Available at http://www.dailynews.gov.bw/news- details.php?nid=10319 103 Kgathileng, T, The Daily News, (7 January 2013), Anti- Poaching Unit performs well, available at http://www.dailynews.gov.bw/news- details.php?nid=328 104 Ibid. 105 Ibid. 106 Convention on International Trade in Endangered Species of Wild Fauna and Flora - Sixteenth meeting of the Conference of the Parties, (3-14 March 2013) - Interpretation and implementation of the Convention Species trade and conservation of Rhinoceroses - Report of The Secretariat, para 52, Bangkok (Thailand), available at http://www.cites.org/eng/cop/16/doc/E-CoP16-54-02.pdf
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Botswana, Kenya, Namibia, Swaziland and Zimbabwe have been submitted to, and included in, the database107. In addition, the International Law Enforcement Academy in Gaborone, Botswana, has trained 350 law enforcement officers in wildlife crime investigations since 2002108.
There has been a gradual increase in resource allocation for combatting poaching such as increased BDF and Joint Military Commission involvement, as well as attempts to raise awareness of the plight of wildlife in Botswana through hosting events such as the African Elephant Summit in 2013109. As a result there has been a gradual increase in the apprehension of wildlife criminals. However, the low conviction rate demonstrates that there still remains a disparity between apprehension and conviction, perhaps suggesting a defect in the judicial process.
5.4 Appeals
The Botswana Justice system has structured appeal procedures. As a general rule, a litigant who is dissatisfied with the decision of the court may appeal to a higher court within thirty days. Appeals may be against conviction or sentence and the appellant has to satisfy the court that his/her appeal is competent once this is challenged110. Cases from subordinate courts may be subject to a first appeal from the High Court111 and a second appeal to the Court of Appeal, which is the court of last resort and the court which has jurisdiction to hear appeals from the High Court in both criminal112 and civil cases. The first appeal may be raised on a matter of law/fact of criminal procedure but in the case of a guilty plea an appeal can only be pursued in relation to the extent or legality of the sentence.
Under s23 of the Criminal Procedure and Evidence Act 1939, any question of fact to be decided on appeal shall be decided on a balance of probabilities. Where the issue is whether a person has been convicted of, or charged with, or about to be charged with a serious offence, or has had a serious offence taken into account in being sentenced for another serious offence, the court must be satisfied beyond a reasonable doubt on the issue.
According to the Botswana elaws database and the SALID database, there are very few cases of wildlife offence related appeals (indeed, only one case has reached the High Court in the last 10 years).
In this case however, the Botswana judiciary in the Appeal Court appeared to take a pragmatic approach in interpreting procedural errors from the High Court. In Moremi and Others v The State 2011 1 BLR 392 HC, the appellants had pleaded guilty to unlawful possession of a Government Trophy under s71(3) of the WCNPA.
107 Ibid. 108 Available at http://www.whitehouse.gov/the-press-office/2013/07/01/fact-sheet-us-efforts-combat-wildlife-trafficking 109 Information available at: http://www.iucn.org/about/work/programmes/species/who_we_are/ssc_specialist_groups_and_red_list_authorities_directory/ma mmals/african_elephant/summit/ 110 Mathumo, Dimpho, M, (2006) , "Country Report: Botswana", in Work Product of the 131st International Training Course. UN Asia and Far East Institute for the Prevention of Crime and the Treatment of Offendor, pp137 - 144. Available at - http://www.unafei.or.jp/english/pdf/RS_No70/No70_14PA_Mathumo.pdf 111 S69 Criminal Procedure and Evidence Act. 112 Ntanda Nsereko, D (2011), Criminal Law in Botswana Daniel , Wolters Kluwer, Netherlands, at p30.
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They appealed on the grounds that the charge was defective in that the particulars of the offence with which they were charged did not allege and disclose any offence. They also appealed on the basis that the sentence of a fine of P5 000 or five years in default of payment of the fine was excessive and imposed a "sense of shock contrary the alleged finding of a skin of one Wildebeest and dried meat (biltong) in our joint possession". They further argued that the trial magistrate acted outside her jurisdiction on the question of sentencing and was influenced by irrelevant considerations of harm and impact that the alleged offence had on the tourism industry rather than on wildlife conservation.
The judge commented as follows on the grounds of appeal:
"On ground one - I have no doubt in my mind that the defect in the charge sheet notwithstanding, the appellants were not prejudiced in their defence as they clearly understood that they were accused of unlawful possession of a government trophy."
Therefore, despite the procedural irregularity on the part of the executive, the judge was willing to give effect to the purpose of the law. The appeal against conviction was dismissed, but the appeal against the maximum fine was upheld. The appellants were each sentenced to a fine of P2 000 or two years’ imprisonment in default of payment. This shows a judiciary, at least at Appeal Court level, willing to apply the golden rule to statutory interpretation, in considering the actual intention of the statute.
5.5 Judicial capacity
5.5.1 Issues
Corruption and time lapse
In November 2013, Chief Justice (CJ), Maruping Dibotelo released a circular on which the Law Society of Botswana is seeking an urgent opinion, stating that there is significant corruption within the judiciary113. Many argue that Botswana's judiciary are independent and, until the CJ's revelations, Botswana had enjoyed a relatively unspoilt reputation as a country with a low level of corruption. However, the CJ suggested that this corruption manifests itself inter alia as ‘forum shopping’ where Attorneys register the same case in two courts or bribe the courts’ registry staff to have their case assigned to a judge favorable to them114.
Under s103(1) of the Constitution, the Judicial Services Commission comprises the Chief Justice (CJ), the President of the Court of Appeal, the Attorney General (AG), the Chairman of the Public Service Commission, a member of the Law Society nominated by the Law Society and a person of integrity and experience not being a legal practitioner appointed by the President. The Law Gazette points out that, except for the member nominated by the Law Society, all members of the JSC are presidential appointees, and/or members of the executive115. The Chief Justice and the President of the Court of Appeal respectively are appointed
113 Motseta, S, The Stwana Times, (23 January 2014), Law Society seeks legal opinion on Chief Justice comments , available at (http://www.thetswanatimes.co.bw/news/legal/941-law-society-seeks-legal-opinion-on-chief-justice-comments.html 114 The Botswana Gazette, (7 November 2013), Is Botswana's Judiciary Independent? Available at http://www.gazettebw.com/?p=5867 115 Ibid
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by the President acting alone116. It is reported that there is no constitutional framework to guide the president in making his choice which could easily compromise the independence of the judiciary.
When public sector employees in Botswana conducted a two month long strike and were subsequently dismissed in 2011, the dismissed workers, through their unions, challenged their dismissal at the High Court. The High Court in 2012 ruled that their dismissal was illegal and declared that they should be reinstated. The government appealed and the Court of Appeal in 2013 overturned the high court ruling, resulting in the unions questioning the independence of the judiciary117.
In relation to wildlife offences, there have also been questions as to the exposure of the judiciary to bribery when dealing with potential wildlife criminals118. This has been tied in with the question of whether the criminal sanctions imposed for wildlife crimes are stringent enough to act as a deterrent, when comparing the proceeds from wildlife crimes to the potential maximum fines available to judges.
The maximum fine for unlawful possession and trading in ivory, currently stands at P50,000 (approximately USD 6,700) and 10 years' imprisonment. If this is compared to the average proceeds of illegally selling an elephant tusk, currently approximately USD 35,000 (based on an average price per kg of USD 700 and an average elephant tusk weight of 50kg119), it is clear that the financial rewards far outweigh the monetary penalties if caught. In addition, the criminal fine is fixed and therefore does not take into account the number of tusks.
Major Jackson John Sekgwama in his thesis on recommendations for anti- poaching in Southern Africa, states that offenders can use such high sums of money gained to bribe the executive arm of the law (police, wildlife rangers and whistle blowers).120 According to the Telegraph, on wildlife trafficking in Southern Africa: "successful prosecutions are rare. Evidence goes missing or is corrupted from the outset. Africa's courts are overloaded, and many judges can be bribed"121.
According to a recent report in the Botswana Gazette, the DPP has been concerned by the number of general criminal cases whereby alleged criminals have been investigated but are later acquitted without trial because of time lapse. The DPP confirmed that he was aware that some prosecutors and police officers take bribes from suspects. The Directorate on Corruption and Economic Crime stated that gathering evidence in such corruption matters is difficult as most cases take place across borders, which means that evidence gathering is problematic,
116 96(1) and 100(1) of the Constitution 117 Bertelsmann Stiftung, BTI 2014 — Botswana Country Report. Gütersloh: Bertelsmann Stiftung, (2014) at p10 para 6. Available at http://www.bti-project.org/reports/country-reports/esa/bwa/ 118 Jackson, John Sekgwama, Recommendations for making anti-poaching programs more effective in the Southern African region through the analysis of key variable impacting on the poaching of elephants in Botswana, Masters Thesis, Botswana Defence Force, Fort Leavenworth, Kansas (2012) p67 119 Ibid. 120 Ibid. 121 Pflanz, M, (February 2014), The Guardian, Botswana's rhino sanctuary leading the fight against ivory poachers, available at http://www.telegraph.co.uk/earth/wildlife/10627042/Botswanas-rhino-sanctuary-leading-the-fight-against-ivory-poachers.html
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particularly as there is not a unified process for prosecution and some countries can refuse to pass on evidence122.
Inadequate resource for evidence gathering to combat corruption
The Directorate on Corruption and Economic Crime blamed shortcomings in evidence gathering on a shortage of resources including skilled personnel, finances and vehicles which makes the prosecution process slower and allows some investigations to slip through the net123. A recent journal article further blames maladministration, whereby neither the courts nor other tribunals can offer a remedy when private citizens complain that public authorities, although they have acted within the law, have failed to observe the proper standard of administrative justice124.
According to Sekgwama, Botswana's "laws and policies governing wildlife conservation need to be tightened; otherwise, poachers can bribe everyone and still get away with huge sums of money"125.
6. CONCLUSIONS
6.1 Effectiveness of legislation
6.1.1 Principal legislation
The custodial sentences contained within the WCNPA are significant. However, the financial penalties available, even for offences involving specific species, are very low in comparison. This is particularly apparent when considering that many offenders will be connected to international organised crime and when the immense value involved in the successful illegal trade in these species is taken into account. In such cases, it is unlikely that even the highest financial penalties under the Act would provide a significant deterrent effect. Without statistical information regarding the penalties imposed upon those found guilty of breaching the legislation, it is possible that the significant custodial penalties contained within the legislation are not being utilised and thus not providing the strongest possible deterrent to those involved in this illegal trade.
6.1.2 Ancillary legislation
Botswana’s current regulatory framework is much better able to address various corruption-related offences, such as bribery and anti-money laundering, than that of many other sub-Saharan countries. It is also party to related international conventions. Despite this relatively encouraging situation Botswana has no legislation that criminalises the financing of terrorism. In addition to the partially sufficient nature of current legislation financial and human resources are not
122 Kgalemang, T, (24 April 2013) The Botswana Gazette, available at http://www.gazettebw.com/?p=1124 123 Ibid. 124 Melvin L M Mbao Professor in Public Law and Legal Philosophy, North West University and Gg Komboni, Attorney at law, Botswana, Promotion of good governance and combating corruption and maladministration: the case of Botswana, available at http://www.saflii.org/za/journals/LDD/2008/4.pdf 125 Jackson, John Sekgwama, Recommendations for making anti-poaching programs more effective in the Southern African region through the analysis of key variable impacting on the poaching of elephants in Botswana, Masters Thesis, Botswana Defence Force, Fort Leavenworth, Kansas (2012) p68
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sufficiently developed to enable the current framework to be implemented effectively.
6.1.3 Judicial Capacity
Botswana has an established judicial system which should be well placed to deal with prosecutions under the various pieces of legislation relating to wildlife crime. However, it appears that corruption within the judiciary combined with insufficient resources in terms of the investigation and preparation of cases against those accused of such crimes has resulted in low conviction rates in the country. Those prosecutions which are undertaken are often not reported or publicised. This makes any assessment of the success of the legislation and the judicial system as a whole very difficult.
6.2 Recommendations
Botswana has implemented a number of pieces of general and species specific legislation, which together have the potential to frustrate the illegal wildlife trade and bring perpetrators of such crimes to justice. However, the number of convictions under this legislation remains low. There needs to be a greater provision of resources for evidence gathering as well as increased training for investigators and prosecutors to ensure that cases can be proceeded with in a timely and efficient manner. It is likely that an increase in the number of successful convictions for wildlife crime will have a significant deterrent effect on those contemplating such criminal activity. Botswana should therefore ensure that convictions under wildlife legislation are recorded and publicised, both nationally and internationally. In addition, greater cross-border co-operation should be established with neighbouring countries to ensure that the arrest and prosecution of wildlife criminals is facilitated across this area of Africa.
Whilst corruption in Botswana is low in comparison with other African countries, the government needs to implement measures to tackle any corruption that is present in the judiciary and throughout the government departments involved in the investigation and prosecution of alleged wildlife criminals. Training programmes should be introduced throughout those departments to increase awareness of an individual's exposure to corruption and the likely consequences of such actions. In addition, tougher penalties could be introduced for government employees who are found to have engaged in corrupt behaviour.
The government of Botswana needs to educate the judiciary and ensure that where appropriate, custodial sentences are imposed rather than just monetary penalties. The government should consider amending the legislation to provide for greater financial penalties, which could be imposed in addition to a custodial sentence. In the absence of any amendments to the legislation, the government should provide guidance to the judiciary to encourage the imposition of fines towards the upper maximum provided for in the legislation. By failing to impose more significant sentences it is unlikely that this significant piece of legislation will have the deterrent effect required to impact upon the illegal wildlife trade in Botswana.
Botswana needs to build upon its current regulatory framework by improving implementation of the existing anti-money laundering framework, considering how to address the gaps in this framework, and then implementing and enforcing a more ambitious regime.126 In meeting these objectives the country should consider:
126
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1. Conducting a detailed review of the money laundering and terrorism financing risks and vulnerabilities; 2. significantly enhancing the implementation of all aspects of existing frameworks, ranging from detecting and prosecuting money laundering to preventing it occurring. This will require more integration, rapid and effective data sharing and coordinated action between all parties, and a more consistent approach to money laundering across all parties; 3. criminalising the financing of terrorism and changing domestic regulations and legislation to ensure that Botswana complies with its international obligations on terrorism financing; 4. setting up, using the current legal provisions, a Financial Intelligence Unit, mandated to receive, analyse and disseminate suspicious transactions reports; and 5. implementing mechanisms (training, incentives etc.) to enhance, across-the-board, resources and skills related to anti-money laundering.127
127 Ibid. para. 40.
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CAMEROON
Team Leader and Editor - Ann Byrd - DLA Piper
Team Members - Alice Puritz, James Rusert, Bryan Reid, Sarah Ritter - DLA Piper
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1. EXECUTIVE SUMMARY
Cameroon has enacted legislation aimed to protect and conserve wildlife through the Forestry, Wildlife and Fisheries Law of 1994 and the subsequent decrees and orders of the Prime Minister of Cameroon, the Ministry for Wildlife and other regulators listing protected and partially-protected animal species and geographical zones. There further are express limits or bans on certain methods of hunting, and regulation regarding the holding and distribution of live animals, trophies, and special products derived from wildlife (most notably, ivory). Penalties for violations of the various wildlife protection laws include monetary fines and/or imprisonment. Although the Cameroon Ministry of Wildlife and the public prosecutor have dual-jurisdiction for enforcement, the Ministry of Wildlife also has the authority and discretion to settle violations by “transaction,” which involves levying a monetary fine that is divided between several public funds without any court proceeding. Such “transactions” are often viewed as a source of irregularity and corruption. Cameroon’s wildlife protection laws have been further criticised for being ineffective and failing to take into account local custom and tradition.
Cameroon appears to be taking steps to combat corruption through national and regional legislation and by establishing governmental entities to investigate corruption, money- laundering and financing of terrorism. In addition, a specialised anti-corruption committee has been set up within each Government Ministry in Cameroon. Notably, however, Cameroon does not appear to have any national or regional legislation relating to organised crime, despite being a signatory to the UN Convention Against Corruption.
While the infrastructure for prosecuting wildlife trade violations exists in Cameroon, the actual rate of prosecution is very low and the penalties associated with such violations do not appear to be strict enough to have a deterrent effect. Only certain Cameroonian law enforcement officers in charge of forestry, wildlife and fisheries have the jurisdiction to investigate and prosecute violations, but such prosecutions are carried out through Cameroon’s general court system, which is severely lacking in government funding, sufficiently experienced judicial officers and, in some regions, sufficient court capacity. The result is a congested and slow court system.
Cameroon has significant legislative tools in place to combat the illegal wildlife trade, but more focus, attention and emphasis must be put on enforcement and resources in order to effect the greatest possible advancement and change.
2. PRINCIPAL LEGISLATION
2.1 Legislation summary
The Republic of Cameroon is a multi-party presidential regime located in the west Central Africa region. The Cameroon National Assembly consists of 180 members, who are elected for five-year terms, and meets three times per year to make legislation.128 Laws are passed on a majority vote, but rarely has the Assembly changed or blocked legislation proposed by the
128 “The World Factbook,” US Central Intelligence Agency, https://www.cia.gov/library/publications/the-world-factbook/geos/cm.html (January 31, 2014).
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President.129 Cameroon’s legal system is largely based on French Civil Law (due to former colonial rule), with some English common law and customary law influences.130
Cameroon’s wildlife-related legislation is believed, generally, to meet the requirements for implementation of CITES.131 The Forestry, Wildlife and Fisheries Law of 1994 (Law 94- 01),132 which was enacted on 20 January 1994, is the primary legislation governing wildlife trade in Cameroon (the “1994 Law”). Since its enactment, the 1994 Law has been implemented and augmented by decrees of the Prime Minister of Cameroon, orders enacted by the Ministry for Wildlife (“MINFOF”) and regulations set forth by the Minister for Wildlife (the “Minister”). In particular, the 1995 Decree to Lay Down the Conditions for the Implementation of Wildlife Regulations (the “1995 Decree”)133, adopted on 20 July 1995, reiterates and expands upon provisions of the 1994 Law. Two orders issued by MINFOF on 18 December 2006, Order No. 0648134 and Order No. 0649135 (collectively, the “2006 Orders”), further explain provisions set out by the 1994 Law and 1995 Decree. Specifically, Order No. 0648 sets out the protected species falling within each classification under the 1994 Law and Order No. 0649 establishes killing limits applicable to certain groups of animals.
2.1.1 F st , W l l an F sh s aw 1994 (th “1994 aw”)136
Protected animal species: Under Article 78 of the 1994 Law, animal species are divided into three categories for protection – Class A (fully protected), Class B (partially protected, but may be hunted, captured and killed pursuant to hunting permits) and Class C (partially protected, but may be captured and killed in accordance with regulations). All animals, however, including the fully protected species in Class A, may be hunted and killed under Articles 82 and 83 if: (1) MINFOF sanctions a controlled slaughter of animals it deems to pose a danger of damage to persons or goods; or (2) the animal is killed in self-defence or in defence of livestock or a farm.137 These caveats lead to one of the significant critiques of the 1994 Law, because “there is hardly any provision banning
129 “The World Factbook,” US Central Intelligence Agency, https://www.cia.gov/library/publications/the-world-factbook/geos/cm.html (January 31, 2014). 130 “The World Factbook,” US Central Intelligence Agency, https://www.cia.gov/library/publications/the-world-factbook/geos/cm.html (January 31, 2014). 131 CITES Standing Committee, National Laws for Implementation of CITES, Annex - Status of Legislative Progress for Implementing CITES (SC) 62, Doc. 23, 6-10 (July 2012). 132 Loi N° 94/01 du 20 janvier 1994 portant régime des forêts, de la faune et de la pêche, available here in French:
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activities involving some of these [protected] species.”138 The subsequently adopted 1995 Decree sets forth lists of the protected animals in Classes A, B, and C, as contemplated by Article 78 of the 1994 Law, which are to be updated once every five years.139
Protected geographical areas: Varying levels of protection for specific geographical zones may be set up, extended, classified or declassified by decree of the Prime Minister.140 Commissions are utilised to prepare reports on such proposed actions, and the Minister adopts the development plans and conditions for each area.141 Geographical zones range from “integral ecological reserves,” in which resources are given full protection and access may be had only by permission of the Minister for research purposes, to “cynegetic zones,” which are areas reserved for hunting subject to the payment of a fee, and are managed by the local services in charge of wildlife, natural persons, bodies corporate, or local councils.142
The 1994 Law and 1995 Decree also establish a regime of protected forests. “National forests” are any areas protected by the Ministry for wildlife and forestry reserve.143 “Community forests” and “communal forests” are protected areas managed by the Ministry in conjunction with local or neighbouring communities.144 Hunting is permitted in these forests as fixed by decree and subject to MINFOF management plans.145
Hunting: MINFOF has broad power to regulate, control, and prohibit hunting. Section 21 of the 1995 Decree provides that the Minister must create a hunting plan for each hunting area. All kills and captures in the hunting area must comply with the plan, which must specify the number of each species to be killed, the number to be captured, and the number that may be killed or captured per licensee.
Traditional hunting: “Traditional hunting” (defined in the 1995 Decree as hunting carried out using weapons made from materials of plant origin) is generally permitted, except in national forests and on private property. It does not require a permit, but is subject to conditions as fixed by decree.146 Under Section 24 of the 1995 Decree, traditional hunting is permitted for rodents, small reptiles, birds, and Class C animals. The products of traditional hunting must be used exclusively for food and cannot be marketed.
138 Charles Manga Fombad, The Effectiveness of Environmental Protection Measures in Cameroon’s 1994 Law Laying Down Forestry, Wildlife and Fisheries Regulations, 9 J. Envtl. L. 50 (1997). 139 1995 Decree to Lay Down the Conditions for the Implementation of Wildlife Regulations, Section 14. 140 Ibid., Sections 5-12. 141 Ibid., Sections 7 and 11. 142 1995 Decree to Lay Down the Conditions for the Implementation of Wildlife Regulations, Sections 2(2) and 3(1). 143 Forestry, Wildlife and Fisheries Law of 1994, Article 24. National forests are defined by decree or order. 144 1995 Decree to Lay Down the Conditions for the Implementation of Wildlife Regulations, Sections 2(16) and 2(19). 145 Forestry, Wildlife and Fisheries Law of 1994, Articles 92 and 95. 146 Ibid., Article 86.
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Licensed hunting: All hunting other than traditional hunting requires a licence. Section 34 of the 1995 Decree sets forth the types of licences available.147 The basic requirements to obtain a licence are found in Section 33 of the 1995 Decree, and include presentation of: (1) valid identification; (2) photograph; (3) curriculum vitae; (4) copy of police record less than three months old; and (5) evidence of paying required arms and other taxes. Licences cannot be issued to: (1) persons being prosecuted for hunting offences; (2) minors (under 20 years of age); (3) persons convicted for hunting offences committed in a national park or integral ecological reserve; (4) persons prohibited from residing in Cameroon; and (5) persons forbidden from holding a licence by court of law.148 Hunting licences are personal and non-transferable.149
“Rights accruing pursuant to hunting permits or licences are governed by the law on finances.”150 While the 1994 Law contains few parameters for licensing, it does include multiple provisions related to the monetisation of hunting. For example, tax liability arises from the capture and killing of animals, licensure as a professional hunting guide, hunting in designated hunting zones or national forests, and the collection of skins.151 The proceeds from hunting licences and taxes are split with 70% going to the Treasury and 30% going to a management and equipment fund for wildlife protection and conservation.152
Prohibited methods of hunting: While the 1994 Law does not set forth the rights and obligations associated with hunting licences in detail, it does prohibit some methods of hunting (except where special authorisation is obtained from MINFOF).153 For example, Article 106 imposes a complete ban on hunting with military weapons, detonators, and chemical products, and provides that MINFOF may regulate the calibre and model of weapons permitted to be used in hunting certain animals.
“Poaching” is defined in the 1995 Decree, Section 3(4) as “any hunting activity without a licence, out of season, in reserved areas or with prohibited vehicles or weapons.”154 Information regarding violations and penalties associated with hunting can be found in Section 3, below.
The regulation of holding and distributing live animals and products derived from wildlife: A certificate of origin must be obtained from MINFOF to hold or distribute live animals, their parts or trophies (trophies are defined in the 1994
147 The types of licences that may be obtained are: hunting licence; licence to capture wild animals; collection licence; hunting guide licence; licence to keep wildlife products; scientific research permit; game-ranching or game-farming licence; cinecamera and photographic hunting permit and licence (note that photography and filming of wild animals for commercial purposes falls under the definition of “hunting” contained in Article 85 of the Forestry, Wildlife and Fisheries Law of 1994). 148 1995 Decree to Lay Down the Conditions for the Implementation of Wildlife Regulations, Section 34. 149 Forestry, Wildlife and Fisheries Law of 1994, Article 87. 150 Forestry, Wildlife and Fisheries Law of 1994, Article 88. 151 Ibid., Articles 91, 93, 94 and 101. 152 Ibid., Article 105. 153 Ibid., Article 80. Some examples of banned activities include hunting in motor vehicles, hunting at night, and hunting with the aid of drugs or poison. 154 1995 Decree to Lay Down the Conditions for the Implementation of Wildlife Regulations, Section 3(4).
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Law, Article 97, as points, carcass, skull or teeth of an animal…and any part of the animal liable to interest the permit holder”). Certificates of origin are required to contain enough detail to allow identification throughout distribution.155 Similarly, MINFOF authorisation must be obtained for the export of live animals and products derived from wildlife. Anyone holding a hunting permit, however, may “freely dispose of” trophies, subject to payment of a tax.156
Certain “special products,” including ivory, may be used only in the manner fixed by decree.157 For example, both the transformation of ivory into arts and crafts and the holding of ivory for commercial purposes require a permit granted by MINFOF.158 There also is a tax associated with the transformation of ivory.159
2.2 Challenges to legislation
The 1994 Law has been roundly criticised both for its inefficiencies and for its practical effects. For instance, a 1997 article in the Journal of Environmental Law referred to the 1994 Law as “a very poor example of an environmental protection legislation” in large part because “[t]he most important matters which would have indicated in unequivocal terms the commitment to the conservation and sustainable management of natural resources are expressly reserved for subsequent regulation by decree, special instruments, statutory instruments, ministerial orders and other similar stipulations.”160 As a result, those terms are effectively taken “out of the public scrutiny of both parliamentarians and the ordinary citizens into the exclusive domain of politicians.”161 Although the 1995 Decree and the 2006 Orders eventually were put in place to implement the 1994 Law, another critic noted that “administrative red tape delayed the implementation of the law until [about 2004], when the first violator was prosecuted and jailed.”162
Others have criticised Cameroon’s principal legislation as failing to reflect any input from, or to account for, the traditions of the local population. One commentator notes that the 1994 Law prohibits the use of “home-made dane guns” and steel wire cable in hunting, which were “almost universal” among villagers, while also setting out procedures for obtaining gun permits that “are too cumbersome for the ordinary villager.163 Another article points out that environmental legislation in Cameroon fails to incorporate local, spiritual laws, which “are often more feared than legal penalties,” leading to certain animal species being better protected in sacred forests than in government protected areas.164 That same article notes the
155 Forestry, Wildlife and Fisheries Law of 1994, Article 98. 156 Ibid., Article 96. 157 Ibid., Article 9(3). 158 Ibid., Article 100. 159 Ibid., Article 100. 160 Fombad, The Effectiveness of Environmental Protection Measures in Cameroon’s 1994 Law, 43 and 57. 161 Ibid. 162 VOA News, Cameroon Government Regulates Bushmeat Trade (2010), available online at
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classification of elephants as a protected species and its conflict with the “traditional Baka society” rite of passage of killing an elephant.165
The 1994 Law’s practical effectiveness and primary purpose have been questioned because of what commentators refer to as the “commercialisation of wildlife.”166 Specifically, because much of the 1994 Law is devoted to taxation of permitting the wildlife trade, providing for auctions of seized carcasses, and setting out fines for violations of the law, with much of the funds collected going to the public treasury, Samuel Nguiffo, Director of the Centre pour l’Environnement et le Développement (Centre for Environmental Development) in Cameroon, and Marius Talla, an independent researcher on wildlife conservation and sustainable development related to natural resources in the Congo Basin, questioned whether the primary purpose of the 1994 Law was “conservation or revenue.”167 Another commonly lamented problem with the 1994 Law is the authority granted to MINFOF to settle transactions without any court proceedings.168 Such authority is “often viewed as a source of irregularities and corruption, especially in countries where the process lacks transparency.”169
2.3 Species-specific legislation:
2.3.1 Species protection classifications
In Cameroon, the specific animal species protection classifications required by Section 78 of the 1994 Law are set out in Order No. 0648/MINFOF,170 adopted 18 December 2006. The classifications, which are supposed to be reviewed every five years to ensure the list’s accuracy under the 1995 Decree, receive different levels of protection. Additionally, certain species are subject to killing limits established by the Order No. 0649/MINFOF,171 also adopted 18 December 2006.
Class A species: The highest level of protection is afforded to Class A Species. According to Section 2(1) of the 2006 Order No. 0648, “Class A comprises rare species or species threatened with extinction. As such, they are totally protected and it is forbidden to kill them.” Importantly, however, Section 2(2) contains an exemption for capturing or keeping Class A species where authorisation is obtained from the government “for management purposes or within the framework of scientific research or for reasons of protection of persons and their property.” Under Section 5, Class A species also include “[t]he young” of any animals listed in Classes A, B or C, as well as the eggs of birds listed in Classes A and B. Section 6 further specifies that Class A includes “species of Annex I of the CITES classification and species belonging to groups settled out of
165 Ibid., 16-17. 166 Ibid., 17 167 Ibid., 17. 168 Forestry, Wildlife and Fisheries Law of 1994, Article 146. 169 Nguiffo and Talla, Cameroon’s Wildlife Legislation, 17. 170 Order no. 0648/minfof of 18 december 2006 to set the list of animals of classes a, b and c, available here:
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the wild, in critical danger of extinction, in danger, vulnerable with regards to the classification of UICN[.]”
Table 1 (Class A Species).
Animal type Protected species
Mammals Lion, Leopard, Cheetah, African Caracal, Striped Pole Cat, Wild Dog, Gorilla, Chimpanzee, Drill, Mandrill, Eastern Black-and-White Colobus, De Brazza’s Monkey, Preuss’s Guenon, Preuss’ Monkey, Agile Mangabey, Angwantibo, Bosman’s Potto, Allen’s Bushbaby, Aardvark, Giant Ground Pangolin, African Manatee, Beecroft’s Flying Squirrel, African Elephant (with tusks of less than 5 kg), Black Rhinoceros, Giraffe, Red-Fronted Gazelle, Yellow Backed Duiker, Mountain Reedbuck, Hippopotamus, Topi Tsessebe, Water Chevrotain
Birds Lesser Flamingo, Lappet-Faced Vulture, Pllid Harrier, Cameroon Mountain Francolin, Great Snipe, Damara Tern, White-Naped Pigeon, Bannerman’s Turaco, Yellow-Casqued Wattled Hornbill, Yellow-Footed Honeyguide, Cameroon Montane Greenbul, Grey-Headed Greenbul, Crossley’s Ground Thrush, Dja River Warbler, Bangwa Forest Warbler, Banded Wattle-Eye, Verreaux’s Batis, White- Throated Mountain Babbler, Grey-Necked Picathartes, Ursula’s Mouse-Coloured Sunbird, Mount Cameroon Speirops, Mount Kupe Buh Shrike, Green-Breasted Bush Shrike, Monteiro’s Bush Shrike, Bannerman’s Weaver, Bates’s Weaver, White-Tailed Warbler, Denham’s Bustard, Hardlaub’s Duck, White-Crested Tiger Heron, African Skimmer, Eastern Wattled Cuckoo-Shrike, Dorst’s Cisticola, Tessman’s Flycather, Cape Gannet, Marbled Duck, Ferruginus Duck, Imperial Eagle, Corn Crake, Nubian Bustard, Black-Winged Pratincole, Mountain Saw- Wing, River Prinia, Bamenda Apalis, Ostrich, Barbary Falcon, White Stork, Black Stork, Greater Flamingo, Bateleur, Secretary Bird, Grey Parrot, Brown-Necked Parrot, Red-Fronted Parrot, Senegal Parrot, Red-Headed Lovebird, Black-Collared Lovebird, Green Turaco, Northern Crowned Crane, Saddle-Billed Stork, Rose- Ringed Parakeet
Reptiles African Sharp-Nosed Crocodile, Nile Crocodile, African Dwarf Crocodile, Green Turtles, Loggerhead, Hawksbill Turtle, Olive Ridley, Leatherback Turtle, African Spurred Tortoise, Eisentrau Chameleon, Pfeffer’s Chameleon, Four Horned Chameleon, Euprepis Des Nganha, Lepesme Skink
Batrachians Giant Frog
Class B species: Class B animal species receive “partial protection.” Section 3(1) of the 2006 Order No. 0648 specifies that the Class B species are those “that benefit from partial protection, and which can only be hunted, captured or killed by obtaining a wildlife exploitation title or licence.” Section 6 states that Class B includes, “species of Annex II to the exception of those already admitted into Class A at the national level of CITES classification and those of groups quasi threatened to minor preoccupations of the categories of UICN[.]”
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Table 2 (Class B Species).
Animal type Protected species
Mammals Eland, Bongo, African Buffalo, Roan Antelope, Hartebeeste, Elephant (with tusks of more than five kg), Sitatunga, Kob, Defassa Waterbuck, Bush Buck, Giant Forest Hog, Bush Pig, Wart Hog, African Civet, Genet, Serval, Chawless Otter, Bay Duiker, Peter’s and Harvey’s Duiker, Spotted Hyena
Birds Cameroon Olive Pigeon, Forest Swallow, Grey-Throated Greenbul, Cameroon Olive Greenbul, Mountain Robin-Chat, Brown-Backed Cisticola, Green Longtail, Cameroon Blue-Headed Sunbird, Yellow-Breasted Boubou, Rachel’s Malimbe, Little Oliveback, African Spoonbill, Knob-Billed Duck, Osprey, African Cuckoo Hawk, Honey Buzzard, Bat Hawk, Black-Shouldered Kite, African Swallow- Tailed Kite, African Fish Eagle, Palm-Nut Vulture, Egyptian Vulture, Hooded Vulture, African White-Backed Vulture, Rüppell’s Vulture, White-Headed Vulture, Western Banded Snake Eagle, African Harrier Hawk, Montagu’s Harrier, European Marsh Harrier, Gabar Goshawk, Dark Chanting Goshawk, Chestnut- Flanked Sparrowhawk, Shikra, Western Little Sparrowhawk, Ovampo Sparrowhawk, Black Sparrowhawk, Long-Tailed Hawk, Grasshopper Buzzard, Lizard Buzzard, Common Buzzard, Long-Legged Buzzard, Red-Necked Buzzard, Lesser Spotted Eagle, Greater Spotted Eagle, Tawny Eagle, Steppe Eagle, Wahlberg’s Eagle, African Hawk Eagle, Ayres’s Hawk Eagle, Long-Crested Eagle, Cassin’s Hawk Eagle, Crowned Eagle, Martial Eagle, Common Kestrel, Fox Kestrel, Grey Kestrel, Red-Necked Falcon, Red-Footed Falcon, European Hobby, African Hobby, Lanner Falcon, Saker Falcon, Peregrine Falcon, Arabian Bustard, White-Bellied Bustard, Black-Bellied Bustard, Yellow-Billed Turaco, White-Crested Turaco, African Grass Owl, Barn Owl, Sandy Scops Owl, European Scops Owl, White-Faced Scops Owl, Maned Owl, Spotted Eagle Owl, Fraser’s Eagle Owl, Shelley’s Eagle Owl, Verreaux’s Eagle Owl, Akun Eagle Owl, Pel’s Fishing Owl, Vermiculated Fishing Owl, Pearl-Spotted Owlet, Red-Chested Owlet, African Barred Owlet, African Wood Owl, Marsh Owl, Northern Puffback
Reptiles African Python, Royal Python, Müller’s Sand Boa, African Burrowing Python, Egyptian Cobra, Spitting Cobra, Black Mamba, Black Cobra, Green Cobra, Burrowing Cobra, African Small-Grain Lizard, African Savanna Monitor, Ornate Monitor, Bell’s Hinged Tortoise, Common Tortoise, Cinixys De Home, Elegant Turtle, Senegal Turtle, African Turtle, Cnemaspis de Perret (Gekos), African Fatty Tail Gecko, Stone Lygodactyle, Palm Dwelling Gecko, Aboreal Gecko, Agama Lizard, African Chameleon, Cameroon Chameleon, Crested Chameleon, Flap Necked Chameleon, Graceful Chameleon, Cameroon Saiffin Chameleon, Owen’s Three Horned Chameleon, Senegal Chameleon, Mount Lefo Chameleon, Dwarf Chameleon, Grand Gerrhosaure, African Snake Eye Skink, Chris Wild Skink, Amiet Skink, Fuhn Skink, Yellow and Purple Skink, Koutou Skink, Paulian Skink, Striped Skink
Class C species: Class C animal species are subject to population control measures. Under Section 4(1) of the 2006 Order No. 0648, the Cameroon government regulates the capture and killing of Class C species in order “to maintain the dynamics of their populations.” Such species include any mammals, reptiles and batrachians “other than those of Class A and B
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and birds of the Annexes III of CITES.” Section 6 also specifies that Class C shall include “species of Annex III to the exception of those already admitted into Classes B or A at the national level of CITES classification or belonging to groups of minor preoccupation according to UICN.”
2.3.2 Killing Limits Under the 2006 Order No. 0649172
The 2006 Order No. 0649 expressly sets forth the killing limits for certain species, by “group,” and specifies that, under Article 6 of the 1994 Law, killing a female of any listed species counts as two animals. In addition, under Article 7 of the 1994 Law, hunting permit holders are obligated to record the number and classification of animals they kill.
Group I Species: Under the 2006 Order No. 0649, the killing of the following Group I species, even with a “Large Hunting” permit,173 is limited to two (2) such animals: Lord Derby Eland (or Giant Eland); Bongo, Buffalo; Hippopotamus; Roan Antelope; Marshbuck; Kéwel; Waterbuck; Damaliscus (all species); and African Elephant.
Group II Species: The killing of Group II species is limited to four (4) such animals and only by holders of a Large Hunting permit:
o Mammals: Hartebeest, Kob, Giant Forest Hog, Red River Hog, Desert Warthog, Civet, Yellow-Backed Duiker, Black-Backed Duiker, Peter’s Duiker, Spotted Hyena;
o Birds: Martial Eagle, Tawny Eagle, Great Egret, Ducks, Abyssinian Ground Hornbill, Marabou Stork, Denham’s Bustard, African Grey Parrot, White-Bellied Bustard, African Harrier Hawk, Yellow-Billed Turaco, White-Crested Turaco, Violet Turaco, Great Blue Turaco; and,
o Reptiles: African Rock Python, Naja (all species), Nile Monitor, Desert Monitor.
Group III Species: Group III includes all animals specified in Class C of the 2006 Order No. 0648. The killing of Group III species is limited to four (4) such animals by holders of a “Medium Hunting” permit.174
3. PENALTIES
3.1 Penalties for Violations of the 1994 Law:175 The 1994 Law sets out with some specificity the penalties for various violations of Cameroon’s environmental laws and regulations.176
172 Arrete N° 0649/MINFOF du 18 décembre 2006 portant repartition des espèces de faune en groups de protection et fixant les latitudes d’abattage par type de permis sportif de chasse, available here in French: < http://laga- enforcement.org/Portals/0/Documents/Legal%20documents/Cameroon/Legal_Cameroon_Order_Fr_Arr%C3%AAt%C3%A9%20n%C2%B 00649%20du%2018%20D%C3%A9cembre%202006.PDF>, accessed 7 February 2014. 173 A “Large Hunting” permit is a sports hunting permit for “big game”. 1995 Decree, Section 35(2)(c). 174 A “Medium Hunting” permit is a sports hunting permit for “medium game”. 1995 Decree, Section 35(2)(b).
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3.1.1 Specific penalties
The following offences are subject to a fine ranging from 50,000 to 200,000 Central African Francs (“CFA”) (about US $100 to $400)177 and/or imprisonment for between 20 days and two months:178
(a) The failure to provide proof of legitimate hunting in the defence of self/livestock/crops within the 72-hour period prescribed under Article 83(2) of the 1994 Law;
(b) Any violation to the provisions on hunting under:
o Article 87 (requiring a permit for any non-traditional types of hunting);
o Article 90 (regarding issuing permits to persons who comply with regulations on possession of firearms);
o Article 91 (regarding affixing of fees and requirements for certificates of origin in connection with “killing, capturing or keeping . . . certain animals” determined by MINFOF);
o Article 93 (regarding requirement of professional hunting permits and payment of fees);
o Article 98 (requiring certificates of origin and, where appropriate, export permits for “[t]he keeping of and traffic in live protected animals, their hides and skins or trophies”);
o Article 99 (regarding permits and fees for capture of wild animals);
o Article 100 (regarding permits and fees for transforming and possessing ivory for commercial purposes);
o Article 101 (setting out that any person in possession of “a whole or part of a live or dead Class A or B protected animal . . . shall be considered to have captured or killed the animal” but stating that collection of such animals “for commercial purposes” may be subject to permitting and collection of fees); and
o Article 103 (regarding authorisation for breeding of wild animals on ranches or farms); or,
175 Loi N° 94/01 du 20 janvier 1994 portant régime des forêts, de la faune et de la pêche, available here in French:
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(c) Hunting without a licence or permit or violating the killing limits established by the 2006 Order No. 0649.
3.1.2 Hunting weapons violations
Any violation of the provisions of the 1994 Law regarding hunting weapons, as set out in Articles 106, 107, and 108, is subject to a fine ranging from CFA 200,000 to 1,000,000 (approximately US $400 to $2,000) and/or imprisonment for between 1 and 6 months.179
3.1.3 Violation of hunting season or zone
The killing or capture of any protected animal outside of the prescribed hunting season or in a prohibited geographical zone is subject to a fine ranging from CFA 3,000,000 to 10,000,000 (approximately US $6,000 to $20,000) and/or imprisonment for between 1 and 3 years.180
3.1.4 Additional penalties and aggravating circumstances
In addition to the specific penalties listed above, “forfeiture, restitutions, damages or reconditioning” may be imposed where appropriate.181 In such cases, the sanctions listed in each of the specific penalties above are doubled under the following circumstances: (1) where the perpetrator is a repeat violator; (2) where the violator is a “sworn official[] of the competent services” or a “judicial police officer[] with general jurisdiction or with their complicity”; (3) where “chemicals or toxic products” are used while hunting; (4) “[i]n case of escape”; or, (5) where the violator refuses to “obey orders from officials in charge of control.”182
3.1.5 Comparison to other penalties
As a means of reflecting the relative weight given to violations of Cameroon’s wildlife trade laws, the penalties for theft provided in Article 318 of the Cameroon Penal Code (as amended on 19 December 1990)183 are a fine of CFA 100,000 to 1,000,000 (approximately US $200 to $2,000) and five to ten years' imprisonment. Under Cameroon Penal Code Article 320, those penalties are doubled in cases of aggravated theft (theft involving use of violence, theft while carrying weapons, theft by breaking and entering, and theft using a motor vehicle), and where theft results in death or serious injury to another, the death penalty should apply.
3.2 Species-specific penalties
There are two express penalties related to specifically-protected animal species included in Classes A, B and C. Under Article 155 of the 1994 Law, a violation of Article 101 (any person in possession of “a whole or part of a live or dead class A or B protected animal . . .
179 Forestry, Wildlife and Fisheries Law of 1994, Article 156. 180 Forestry, Wildlife and Fisheries Law of 1994, Article 158. 181 Ibid., Article 162. 182 Ibid. 183 The Cameroon Penal Code is comprised of laws n°65/LF/24 and 67/LF/1 of 12 November 1965 and 12 June 1967,
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shall be considered to have captured or killed the animal,” except that collection of such animals “for commercial purposes” may be subject to permitting and collection of fees) or a violation of the killing limits established by the 2006 Order No. 0649, may result in a fine of CFA 50,000 to 200,000 (approximately US $100 to $400) and 20 days' to two months' imprisonment.
Article 158 of the 1994 Law further specifies that the penalty for “[t]he slaughter or capture of protected animals, whether during periods when hunting is prohibited or in prohibited zones” is a fine of CFA 3,000,000 to 10,000,000 (approximately US $6,000 to $20,000) and imprisonment of one to three years. The MINFOF, in conjunction with the Last Great Ape Organization of Cameroon (“LAGA”), a non-governmental wildlife law enforcement organisation, noted in its analysis of the 1994 Law that killing of Class A species will always be a violation of Article 158 because no hunting period or area is provided for such species – their killing is prohibited in all areas and at all times.184
3.3 Enforcement
Under the 1994 Law and the 1995 Decree, Cameroon takes a dual-jurisdiction approach to the investigation and prosecution of individuals violating wildlife protection laws. Specifically, Articles 141 and 142 of the 1994 Law provide that MINFOF agents who have taken an oath may, “without prejudice to the rights of the public prosecutor and police officers,” undertake to investigate and take action with regard to violations of environmental laws.
MINFOF also is specifically empowered under Article 146 of the 1994 Law to settle any such proceedings by “transaction,” again “without prejudice to the rights of the public prosecutor,” which will serve to extinguish the prosecution upon performance of the obligations by the violator (i.e., payment of the agreed-upon fine).185 Under the 1995 Decree, settlements by transaction must be agreed to by the Minister in charge of wildlife (for settlements “involving amounts of more than 500,000 francs”) or “his provincial representatives” (for lesser settlements). The 1995 Decree also provides that, “[u]nder no circumstances” may the settlement be for less than the amount of the minimum fine for the offence, though it may be more to take into account any damages. Section 78(4) of the 1995 Decree further prohibits settlements where the underlying offence involves: (1) “an offence committed in protected areas”; (2) “the killing of an animal belonging to [a] totally protected species” (presumably a class A species); (3) a second or further offence; or (4) “water pollution by poisoning.”
Where the violation is not settled by transaction, MINFOF may bring an action against the violator, just as the public prosecutor would (and may) do.186 Under Article 165 of the 1994 Law, “the competent courts of Cameroon shall have full jurisdiction” concerning violations of Cameroon’s environmental laws and regulations.
The enforcement provisions of the 1994 Law, whether effective in doing so or not, are drafted to be broad and to allow for prosecution of all members in the trafficking chain.187 For instance, Article 101 provides that anyone found with “a whole or part of a live or dead class
184 MINFOF and LAGA, The Wildlife Law as a Tool for Protecting Threatened Species in Cameroon (March 2012), 13, available at
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A or B protected animal . . . shall be considered to have captured or killed the animal.” Further, Article 150 provides, in Section (1), that natural persons and corporate bodies are both subject to criminal prosecution and penalties and, in Section (2), that “[a]ccomplices or any persons who have participated in any way whatsoever in the violation may incur the same sanctions as the author of the violation.”
Where fines are assessed or funds are otherwise received by the prosecuting authorities through auctions, transactions, sales or damages, Article 167 of the 1994 Law specifies that such funds are to be distributed as follows: “25% for the agents of the MINFOF or any other administration that has participated to the enforcement and collection steps”; “40% to the funds referred to in Article 68 [partly to the treasury and partly to ‘a Special Forestry Development Fund’], Article 105 [70% to the treasury and 30% to ‘a special fund for the development and equipment of areas for the conservation and protection of wildlife’] and Article 166 [regarding distribution of proceeds from taxes in accordance with finance laws]”; and, “35% to the Treasury.”188
4. ANCILLARY LEGISLATION
Addressing corruption is regarded by experts as one of the most critical factors in arresting the illegal wildlife trade.189 Corruption has been shown to facilitate all stages of the illegal wildlife trade, including poaching, trafficking, trade, sale and supply.190 This is achieved through various means, such as illegal payments for the issue of various documents, and the bribery of various officials and police officers.191 In addition, corruption facilitates impunity, meaning that those who have committed wildlife crimes are able to avoid punishment, for example through bribery to avoid investigations and illegal payments to manipulate court decisions,192 but also including among other things bribery to avoid the payment of taxes, duties, tariffs and other fees.193 The establishment of a strong legal framework against both wildlife trafficking and corruption is recognised as an essential component in combatting the illegal wildlife trade.194
In 2012, the anti-corruption organisation Transparency International placed Cameroon at number 144 on a list of 176 countries ranked from least to most corrupt.195 The President of Cameroon is elected by “popular vote” every seven years and has broad, unilateral powers to create policy, administer government agencies, and command armed forces. This authority includes the appointment of government officials at all levels from Prime Minister to Provincial governors, Divisional officers, and judges at all levels.
188 As noted in Section 2.2, supra, the various provisions providing for fines and taxes associated with components of wildlife trade have been criticised as “creat[ing] ambiguity about the principles underlying the law”, specifically whether the underlying principle is “conservation or revenue[.]” See Nguiffo and Talla, Cameroon’s Wildlife Legislation, 17. 189 Martini, Maira, 'Wildlife crime and corruption', ed. Chêne, Marie, (Anti-Corruption Resource Centre, Transparency International and CHR. Michelsen Institute, February 2013), p. 1. 190 Ibid., pp. 2-4. 191 Ibid., p. 1. 192 Ibid., pp. 1, 4. 193 Ibid., p. 4. 194 Ibid., pp. 1-2. 195 “Corruption Perceptions Index 2012,” http://www.transparency.org/cpi2012/results (January 30, 2014).
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4.1 Bribery and corruption
4.1.1 The Cameroon Penal Code ("Penal Code")196
The Cameroon Penal Code sets out a definition of corruption, various corruption- related offences and associated penalties. “Corruption” is defined as “'the soliciting, authorisation or receipt by a civil servant or public sector employees either for himself or on behalf of a third party, of offers, promises, donations or presents in return for the performance or non-performance or postponement of a function.”197 In addition, “corruption” includes “any civil servant or public sector employee who solicits or accepts remuneration either monetary or in kind for himself or a third party for something that has already been done or something that has already been refrained from doing'.198 Any person, not just a civil servant or public sector employee, may be found guilty of corruption, regardless of whether or not the act of corruption has its intended result.199
The Cameroon Penal Code sets out four additional corruption-related offences that are not necessarily related to the wildlife trade or legislation:
(a) Interest in an act: Any civil servant or public sector employee (including under some circumstances past civil servants and public sector employees, as set out by Article 131 of the Penal Code) who has either a direct or indirect interest in any of the following is guilty of an offence:
An act or decision over which he or she has control or of which he or she was in charge/monitored/administered/executed;
Concessions to private companies, cooperatives, mutual, etc. that he or she supervised or controlled;
Public or state deals or procurements with a legal or natural person;
In a matter where payment must be ordered or a liquidation performed.200
(b) Participation in an affair: A civil servant or public sector employee who, in his or her work capacity, must supervise or express an opinion on a company, public company or concession, and who collaborates or participates in some way in their financing or in their activities, is guilty of an offence.201
196 The Cameroon Penal Code is comprised of laws n°65/LF/24 and 67/LF/1 of 12 November 1965 and 12 June 1967,
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(c) Misappropriation/embezzlement: A civil servant or public sector employee who exonerates taxes, rates, or licence fees, or who sells state goods at a price less than that fixed by the state, is guilty of an offence.202
(d) Non-reporting of a deficit: Any civil servant or public sector employee who does not report a deficit in a cash register or in the accounts of an inferior public sector employee underneath him and does not report this to the nearest judiciary authority or to his superior, is guilty of an offence.203
(e) Abuse of functions: A civil servant who abuses his or her position for personal gain or private interests, is guilty of an offence.204
4.1.2 The General Statute of the Civil Service 1994 (Le Statut Général de la Fonction Publique, objet du décret n°94/199 du 7 octobre 1994) (the “Civil Service Statute”)205
The Civil Service Statute provides a regulatory framework for the recruitment, code of conduct and any necessary disciplinary proceedings against civil servants, including those who have are suspected of, or who have been found guilty of, charges relating to corruption.
Recruitment as civil servant: The Civil Service Statute prohibits the recruitment of persons as a civil servants if they have been found guilty of an offence that compromises their integrity, including influence peddling, deceit, corruption and diversion of public funds.206
Violation of rules and obligations: Civil servants are subject to a set of rules and obligations, any breach of which constitutes an error and exposes the civil servant to disciplinary sanctions.207 The “error” made by the civil servant may be professional or “extra-professional,”208 and may be the result of action, inaction or negligence on the part of the civil servant.209 The error further may arise from a deficiency, an attitude or a behaviour that leads to suspicion concerning the civil servant's morality, or that brings into disrepute the civil service.210 Where an error is suspected or presumed, the administration may take conservative measures against the civil servant, and the disciplinary procedure is fixed by decree.211
202 Ibid., Article 137. 203 Ibid., Article 138. 204 Ibid., Article 140. 205
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4.1.3 The Public Procurement Code 2004 (décret n° 2004-15 du 7 janvier 2004 portant code des marchés publics) (the “Public Procurement Code”)212
The Public Procurement Code exists to regulate the execution, running and control of public procurements, so as to achieve transparency in public procurements and ensure that corrupt activities are not influencing the outcome of such procurements.213 The Public Procurement Code extends to illegal trade in wildlife, where governments may have contracts relating to animal products.
4.1.4 The Cameroon Constitution (La Constitution du 02 Juin 1972)214
Article 66 of the Cameroon Constitution (amended by an order of 18 January 1996) provides that a long list of civil servants and other identified individuals must provide an inventory of their goods and possessions before and after their mandate in office. An associated law of 16 April 2006 created a commission in charge of the declaration of goods.215
4.2 Anti-money laundering and financing of terrorism
4.2.1 Decree on the organisation and functioning of the National Agency for Financial Investigation 2005 (décret n° 2005/187 du 31 mai 2005 portant organisation et fonctionnement de l'Agence Nationale d'Investigation Financière) (the “Finance Investigation Decree”)216
The Finance Investigation Decree concerns the governance of money-laundering and financing of terrorism in Cameroon. It does not contain any related criminal offences or penalties and is the only national legislation currently in force on this topic.217
The Finance Investigation Decree sets out detailed provisions relating to the mission, configuration and running of the National Financial Investigation Agency (l'Agence Nationale d’Investigation Financière) ("ANIF").218 ANIF is a Cameroonian agency which functions as a public financial information service.219 It has financial independence and decision-making powers on matters within its competences, although it is connected to the Ministry of Finance.220
Part of ANIF's mission is to investigate the origins of sums of money that appear suspicious in the context of money-laundering and the financing of terrorism, and
212
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where necessary, to pass this information on to the judicial authorities.221 ANIF must also hold a bank of data containing all information relating to such suspicions.
More generally, the Financial Investigation Decree sets out detailed provisions relating to the investigation of money-laundering by ANIF, and how the organisation will be funded - by the State, the Economic and Monetary Community of Central Africa ("CEMAC") and contributions from development partners (Article 22).
4.2.2 The 2003 Regulation on the prevention and repression of money-laundering and financing of terrorism in Central Africa (le Règlement N°01/03CEMAC/UMAC/CM du 04 avril 2003 portant prévention et répression du blanchiment des capitaux et du financement du terrorisme en Afrique Centrale) ("2003 CEMAC Regulation").222
CEMAC is active in the fight against money-laundering and financing of terrorism, and has established an organisation tasked with addressing these issues: the Central African Action Group against Money Laundering ("GABAC").223 Cameroon is a member of CEMAC, and legal instruments enacted by CEMAC are binding on in its members.224
The principal regulation, the 2003 CEMAC Regulation, defines money- laundering and financing of terrorism in Articles 1 and 2, respectively, and obliges each Member State to set up national financial investigations agencies.225 The Cameroonian agency ANIF appears to have been established as a direct result of this legislation. As such, ANIF is obligated to send trimestral reports on its activities to GABAC under Article 25 of the 2003 CEMAC Regulation.
Importantly, the 2003 CEMAC Regulation also sets out approved “coercive measures” and civil and criminal sanctions relating to money-laundering and financing of terrorism:
Articles 43 and 44 provides that judicial authorities may seize goods in the course of its investigations and may freeze assets/carry out other transactions as necessary.
Article 45 provides that legal or natural persons who are found to be in breach of the regulations are liable to disciplinary sanctions.
Article 46 provides that money-laundering (as defined by Article 1) is an offence. This includes attempted money-laundering and complicity in money-laundering through assistance, advice or incitement. Conspiracy to perpetrate an offence relating to money-laundering is also an offence.
221 Ibid., Article 3. 222 Ibid.; see also
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Article 47 sets out aggravating factors, while Article 48 sets out other offences linked to money-laundering.
Article 52 provides that financing of terrorism (as defined by Article 2) is an offence.
Other associated CEMAC instruments and guidance also exist in this area.226
4.3 Serious organised crime
Cameroon became a signatory to the United Nations Convention against Transnational Organized Crime on 13 December 2000 and ratified the Convention on 6 February 2006.227 There is evidence that Cameroon has drafted national legislation that addresses organised crime.228 It is unclear, however, whether the legislation has been implemented because it does not appear on a database of criminal legislation currently in force in Cameroon.229 It further is unclear whether the database is timely maintained and updated.
4.4 Penalties and enforcement - bribery and corruption
4.4.1 The Cameroon Penal Code – principal offences230
A civil servant or public sector employee who commits an act of corruption, as defined by Article 134(1) of the Penal Code, is subject to imprisonment for a period between five and ten years and a fine between CFA 200,000 and 2,000,000 (approximately US $ 415 and US $ 4,153).
The penalty for an act of corruption under Article 134(2) of the Penal Code that is facilitated rather than actually carried out by the “corrupt person,” is reduced to imprisonment for between 1 and 5 years and a fine between CFA 100,000 and 1,000,000 (approximately US $ 208 and US $ 2,078 ).
A civil servant or public sector employee who commits an act of corruption as defined by Article 134(3) of the Penal Code is subject to the same penalty as that provided by Article 134(2), above.
Under Article 134(A) of the Penal Code , any person guilty of an act of corruption, as defined by Article 134(1) or Article 134(3), will be subject to a penalty as set out for each type of corruption offence at Articles 134(1) and 134(3), respectively.
226 CONAC, 'Rapport sur l’état de la lutte contre la corruption au Cameroun', 2011, available here:
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4.4.2 The Cameroon Penal Code – other offences231
A violation of Penal Code, Article 135 (interest in an act), is punishable by imprisonment of up to five years and a fine between CFA 200,000 and 2,000,000 (approximately US $ 415 and US $ 4,153).
A violation of Penal Code, Article 136 (participation in an affair), is punishable by imprisonment between six months and two years and a fine between CFA 20,000 and 2,000,000 (approximately US $ 42 and US $ 4,153).
A violation of Penal Code, Article 137 (misappropriation/embezzlement), is punishable by imprisonment between two and ten years and a fine between CFA 20,000 and 2,000,000 (approximately US $ 42 and US $ 4,153).
A violation of Penal Code, Article 138 (non-reporting of a deficit), is punishable by one - five years' imprisonment.
A violation of Penal Code Article 140 (abuse of functions), is punishable by imprisonment between three months and one year and a fine between CFA 5,000 and 50,000 (approximately US $ 10 and US $ 104). If the offence is committed for personal gain or another's gain, the civil servant is liable to imprisonment between three months and three years and a fine between CFA 50,000 and 1,000,000 (approximately US $ 104 and US $ 2,079).
4.4.3 General Statute of the Civil Service 1994232
Article 94 of The General Statute of the Civil Service 1994 sets out four different groups of sanction for a civil servant who is to be disciplined for misconduct at work, with Group 'a' sanctions being the least severe, and Group 'd' the most severe. These sanctions are all related to disciplinary proceedings, and presumably the degree of the disciplinary issue, but are not related to specific offences or the criminal justice system:
Group “a” sanctions: a written warning, official reprimand;
Group “b” sanctions: delayed promotion for up to one year, demotion by one or two levels;
Group “c” sanctions: demotion in terms of class or grade, temporary exclusion not exceeding six months;
Group “d” sanctions: dismissal.
Article 95 of The General Statute of the Civil Service 1994 provides that sanctions must be justified and that all sanctions will go on the civil servant's record.
231 The Cameroon Penal Code is comprised of laws n°65/LF/24 and 67/LF/1 of 12 November 1965 and 12 June 1967,
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4.4.4 2003 CEMAC Regulation - Anti-money laundering
The 2003 CEMAC Regulation, Article 46, provides that a person found guilty of an offence of anti-money laundering is subject to imprisonment of between five and ten years and an a fine of up to five times the sum of money laundered but not less than CFA 10,000,000 (approximately US $ 20,791). In addition, Article 49 provides that directors and employees of companies such as casinos who have not complied with the regulations may be punished by a fine of between CFA 50,000 and 10,000,000 (approximately US $ 104 and US $ 20,791). Article 50 further provides that any person found guilty of an offence relating to money- laundering may be barred temporarily for at least five years, or permanently, from their profession.
4.4.5 2003 CEMAC Regulation - Financing of terrorism
Article 52 of the 2003 CEMAC Regulation provides that a person found guilty of an offence of financing of terrorism is subject to imprisonment of at least ten years and a fine of up to ten times the sum relating to the financing of terrorism, and in any event not less than CFA 10,000,000 (approximately US $ 20,791). Civil sanctions for corporations are set out in Article 53, including being forced to cease trading for a period or permanently, dissolution and negative publicity. Moreover, Articles 54 and 55 give the Member State in question the authority to confiscate the goods related to the crime in question.
4.5 Convictions and prosecutions and relationship with principal legislation
There is limited information available on convictions and prosecutions for corruption-related crimes in Cameroon.233 However, it is clear from information provided by the Cameroon National Anti-Corruption Commission (La Commission Nationale Anti-Corruption) ("CONAC") that Cameroonian government Ministries have prosecuted corruption-related crimes, including prosecutions by MINFOF for corruption crimes related to poaching.234 Sanctions imposed have included suspension of activities, monetary penalties, seizure of products obtained by infringement of the law and suspension from work during a determined period.235 As a result, it is difficult to say whether prosecutions are more likely to be brought under the ancillary or the principal legislation; however, what can be said is that the principal legislation would not be effective without a supporting framework of ancillary legislation that addresses issues of corruption, money-laundering, and related matters.
4.6 Activities of CONAC
Established in March 2006 by order of the executive, CONAC is an independent public organisation set up to combat corruption in Cameroon.236 CONAC has various official functions, including: to monitor and evaluate the effective implementation of the Government’s plan to fight against corruption; to gather, centralise and exploit information received in relation to corruption and associated offences; to conduct studies and investigations into corruption; to carry out physical inspections in relation to project implementation and public procurement; to disseminate information about combatting
233
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corruption; and to identify the causes of corruption and propose measures to eliminate it from all public or para-governmental agencies.237
CONAC's activities are wide-ranging, including communication activities,238 participation in international events,239 national and international collaborations and cooperation240, education seminars241 and investigations and enquiries.242 Its annual reports provide detailed and lengthy information about CONAC's activities, including its “sectoral” approach, whereby it investigates corruption within a sector, and makes recommendations for improvement within that sector. For example, relevant to the illegal wildlife trade would be its investigations within the transport sector, which include corruption in relation to roadside checks.243
CONAC also is looking into re-drafting of laws on prevention and suppression of corruption and associated offences,244 which would include a definition of “proceeds of crime” and “money-laundering.”245
CONAC is financed by funds from the State, development partners, donations and legacies of all natures and any other potential resources.246
4.7 Activities of ANIF
There is limited information available about the activities of the Cameroonian national agency ANIF. ANIF publishes an annual “report on its activities,” but they are brief and fail to provide either an analysis of money-laundering and financing of terrorism in Cameroon or a detailed report on the agency's activities.247
4.8 Executive governance
Ministerial departments are required to take an active role in the fight against corruption.248 Each Ministry has a specialised Anti-corruption Committee, or “Cell.” All Ministries with committees must approve a programme of action each year, and an annual report is submitted by the commission to the Minister, and then to CONAC.249
237 Ibid. 238 Ibid. p. 33. 239 Ibid. p. 34. 240 Ibid., pp. 36-37. 241 Ibid. p. 38. 242 Ibid. p. 39-40. 243 Ibid. p. 41. 244 Ibid. p. 108. 245 Ibid. p. 110. 246 Ibid. p.27. 247
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The Cameroon government has put in place a Government Plan to Combat Corruption and a Revised National Programme of Governance, with the goal of increasing the state's transparency and fight against corruption.250
The Cameroon Ministry of Justice is tasked with disciplining civil servants, including those who are subject to corruption charges.251 It also drafts specialist legislative and regulatory texts. In addition, the Superior State Inspection Commission is under the direction of the President of Cameroon, and it functions as a superior administrative body designed to evaluate and inspect state spending, budgets and state financial management generally.252 The Court of Finances also has a role to play, because it deals with public funds, as does the Judicial Police (a division of the police specialised in recording, evidence-gathering etc. in relation to crimes). Finally, the Agency for the Regulation of Public Procurement (l’Agence de Régulation des Marchés Publics, ARMP) regulates public procurement.
5. JUDICIAL PROCESS AND CAPACITY
The 1994 Law253 requires that only certain law enforcement officials have the jurisdiction to arrest, investigate and prosecute offences under it. Particularly, Article 141 of the 1994 Law states that, “sworn officials of the services in charge of forestry, wildlife and fisheries shall, on behalf of the State, local councils, communities or private individuals, investigate, establish, and prosecute offences relating to forestry, wildlife and fisheries.” However, despite the fact that a special prosecution unit is required for investigating, establishing and prosecuting such offences, the criminal cases are held before the normal criminal court system as outlined below.
Each region of Cameroon has three types of courts of first instance: customary courts, magistrates' courts (often simply referred to as the court of first instance), and high courts. The number of these courts assigned to a specific region varies according to population and resources in each region.254 The magistrates' courts and the high courts are the courts that, among other things, hear criminal proceedings related to prosecutions relating to violations of the 1994 Law. The magistrates' courts handle, among other cases, criminal matters that are either classified as simple (a sentence of 0-2 years) or misdemeanour (0-10 years), and the high courts handle, among other cases, criminal matters classified as felonies or cases where a misdemeanour is attached to one or more felonies.255
Recent examples of successful prosecutions of violations of the 1994 Law are as follows: (i) in November, 2013, the Court of First Instance of Djoum – South, convicted 2 dealers to 3 months' imprisonment each and 2 others to 2 months' imprisonment each for the illegal killing of elephants, and (ii) the Court of First Instance of Edea – Littoral convicted 1 dealer to 2 months' imprisonment and ordered payment of CFA 1,000,000 (about US $2,000) in damages
250 Ibid. p. 19. 251 Article 1(3) of decree n°02005/122 of 15 April 2005. 252
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in addition to fines and court fees for illegally trying to trade in elephant parts.256 More monthly reports of successful prosecutions of the 1994 Law (among prosecutions of similar laws in other countries) may be found at the LAGA website.257 Despite some successful prosecutions, many commentators do not believe the 1994 Law, including the penalties it imposes, is very effective as a deterrent to the illegal trade of wildlife. For example, one commentator notes that,
“[e]nforcement officials … have grave doubts about the deterrent effect of the penalties provided for breach. The fines, which are probably the only mandatory and serious sanctions that can be taken against a corporation are usually considered to be low as compared to the level of profits that may be generated by the breach. It may therefore be necessary to give more power to judges to impose fines which would take account and reflect not only the seriousness of the breach but also the means and resources of the offender.”258
Moreover, the incidence of prosecution is very low, occurring only in approximately 10 out of every 3,000 violations of the 1994 Law.259
Appeals from the courts of first instance are heard by Cameroon’s system of appeals courts. An accused may lodge an application for leave to appeal with the Court of Appeal within 28 days from the day of conviction/sentence.260 An appeal judge may refuse the appeal or conduct hearings to ensure the case is ready for review.261 When a case is ready for appeal, the Court of Appeal, comprising two or three Justices of Appeal, will either dismiss or allow an appeal orally and/or reserve written judgment to be handed down or delivered on a certain date.262 If the accused is successful in his/her appeal, the term of imprisonment may be reduced, but if it is not successful, the Court of Appeal may increase the sentence or order loss of time already served.263
Multiple sources suggest that judicial capacity-building is necessary to properly enforce the 1994 Law and any other criminal laws in Cameroon. As mentioned above, the incidence of prosecution is very low in relation to the number of violations which occur year after year. Some commentators have suggested that the lack of governmental funding and the lack of experienced judges and judicial staff contribute to this problem.264 The Global Conscience Initiative describes the judicial system in Cameroon as follows:
256 LAGA, Central and West Africa Wildlife Law Enforcement Network, Monthly Regional Wildlife Law Enforcement Briefing - November 2013, available at http://laga- enforcement.org/Portals/0/Documents/Regional%20Wildlife%20Law%20Enforcement%20Briefing%20-%20Nov%202013-1.pdf (last accessed 25 January 2014). 257
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“In terms of judicial distribution, there is technically supposed to be one magistrate court in each subdivision and one high court in each division. However, due to lack of governmental funds and general judicial disorganisation, some subdivisions and divisions are devoid of the appropriate judiciary. Other times, the judiciaries of several divisions might be all located in the same place, such as those for Kumba (which are coincidently all sitting at the city’s High Court).
Like those of most African and developing nations, the Cameroonian justice system faces several challenges:
Insufficient manpower. Cameroon suffers from want of experienced technocrats who could serve in the necessary roles of the justice system.
Insufficient funds: Underlying the lack of proper staffing is the lack of money to provide an expansive judicial infrastructure and to salary an educated, qualified legal staff.
Inexperienced judiciary: According to the civil law system, judges and magistrates attend judicial school and receive specific training for a career on the bench. Often, graduates from these schools are hired right away to serve as officers of the court. Their lack of experience can jeopardise sound decisions and leave them vulnerable to corruption.
Lack of proper legal divisions: Since all legal matters are channelled into the same courts, the Cameroonian legal system has become congested and slow. In order to speed up justice, legal divisions, primarily between civil and criminal matters, must be put in place to ensure an easy flow of justice.”265
6. CONCLUSIONS
6.1 Effectiveness of legislation
Cameroon’s legislative framework for wildlife protection and conservation has been in place for twenty years, including monetary penalties and possible imprisonment for various violations. Indeed, within the last decade, attention has been given to this important issue through certain legal orders setting out specific protected animal species and establishing kill limits. Unfortunately, Cameroon has an extremely low instance of actual prosecution for violations of the wildlife protection laws, the penalties do not appear to be severe enough to deter future violations, and the Cameroonian court system is underfunded and without the capacity to handle greater levels of enforcement.
There is little, if any, information regarding the implementation and effectiveness of Cameroon’s ancillary legislation designed to combat bribery, corruption, money-laundering and financing of terrorism, and currently there is no national legislation to combat serious organised crime. Anecdotal findings indicate that current anti-corruption systems are not effective.
265 Ibid.
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6.2 Recommendations
Further reform is needed in order to establish effective legislative and enforcement tools to combat the illegal trade of wildlife in Cameroon. Loopholes and opportunities for corruption in the current legislation need to be addressed, including implementation of checks and balances to ensure enforcement is consistent and meaningful.
Greater emphasis should be placed on the education, awareness, and training of enforcement authorities and agencies, including judicial officers.
Efforts should be made to increase the capacity of the courts to process all legal matters, including violations of wildlife protection and anti-corruption laws, and to alleviate some of the pressure currently causing the court system to be congested and slow.
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CHINA
Team Leader and Editor - Jonathan Leitch - DLA Piper
Team Members - Leigh Ferris, Ann Ford, Andrew N. Stein, Mercy Mba, Uttara Kale - DLA Piper
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1. EXECUTIVE SUMMARY
China is home to a vast variety of rare and endangered animals which, through the years, has created a booming trade that is pushing many of these species towards extinction. Despite China’s acceptance of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (“CITES”) over 30 years ago, commentators suggest that the country remains one of the world’s largest consumers of wildlife products, including elephant ivory, shark fin, tiger bone, rhino horn and pangolin scales. This is partially because of the valuable illegal trade market for many of these animal by-products worldwide, and partially because of China’s political and economic climate, wherein business and cultural preferences often take precedence over the often generalised and ambiguous national legislation.
China has passed one major law designed to implement CITES, the Law of the People’s Republic of China on the Protection of Wildlife. This was passed in 1989. Beginning in 1992, China began to enact a series of complementary and ancillary regulations designed to further implement CITES.
In addition to the primary legislation, the Law of the People’s Republic of China (“PRC”) on the Protection of Wildlife, this report discusses major ancillary legislation, penalties and enforcement, and judicial process and capacity. This report aims to shed light on China’s successes and pitfalls in this realm and to provide guidance on possible areas for future improvements.
2. PRIMARY LEGISLATION
2.1 Legislation Summary
2.1.1 aw th l ’s R l Ch na n th t t n W l l 266
Adopted on November 8, 1988 and in force as of March 1, 1989, the Law of the PRC on the t t n W l l (“W l l t t n aw”) was Ch na’s st st t wa s m l m nt ng CITES. Th law was “ m lat th s t t ng an sav ng th s s w l l which are rare or near extinction, protecting, developing and rationally utilizing wildlife resources and mainta n ng l g al alan s.”267
In January 1989, China’s Forestry and Agricultural Ministries published lists of Category I and II species protected under the Law. Category I species included giant pandas, Chinese river dolphins, Asiatic elephants, golden-haired monkeys, monitors, ibis, red-crested cranes, and many other species.268
The Wildlife Protection Law has 42 “Articles” divided into four “Chapters.”269
Chapter I describes “General Provisions” concerning the purposes and intent of the law. Most importantly, Article 3 decrees that all “[w]ildlife resources shall be owned by the state.”270
266 “Law of the People’s Republic of China on the Protection of Wildlife,” available at
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Moreover, the Wildlife Protection Law empowers the PRC citizens by granting them the “duty to protect wildlife resources and the right to inform the authorities of or file charges against acts of seizure or destruction of wildlife resources.”271 Chapter I also instructs that the departments of forestry and fisheries are responsible for nationwide administration of the law.272 However, the law gives China’s local provincial, municipal, and autonomous regions significant responsibility in its enforcement and administration.273
Chapter II concerns “protection of wildlife.” First, the state “shall protect wildlife and the environment for its survival, and shall prohibit the illegal hunting, catching or destruction of wildlife by any unit or individual.”274 Second, the state “shall give special protection to the species of wildlife which are rare or near extinction.”275 The wildlife receiving such protection are classified as “first class” or “second class.”276 The law instructs the State Council’s department of wildlife administration to draw up the lists of wildlife belonging to the two classes.277 In addition to these lists of nationally protected wildlife, the provinces, autonomous regions, and municipalities may also protect special wildlife of their own and the local governments are to maintain the list of any species receiving such local protection.278
Interestingly, the Wildlife Protection Law provides that if wildlife protection under the law causes crop losses or other losses, the local governments are to compensate for such losses.279
2.2 Challenges to Legislation
In his study, P.J. Li comprehensively discusses the challenges and the shortcomings of the Wildlife Protection Law.280 Li demonstrates that the challenges to the law can be categorized in terms of enforcement challenges and political challenges.281
In summary, Li explains that a primary shortcoming of the Wildlife Protection Law is its internal inconsistency between “protection and utilization”.282 The law self-describes its purpose as one not only for “protecting” wildlife species, but also for “utilizing” wildlife resources.283 As explained by Li, “critics have pointed out [that] the most important objective of the law is wildlife utilization. Protection is, therefore, the means for achieving the end of human utilization”.284
270 WLP Text, Article 3. 271 WPL Text, Article 5. 272 WPL Text, Article 7. 273 Ibid. 274 WPL Text, Article 8. 275 WPL Text, Article 9. 276 Ibid. 277 Ibid. 278 Ibid. 279 WPL Text, Article 14. 280 Li at 82. 281 Ibid.at 82-90. 282 Ibid. at 82. 283 Compare WPL Text, Article 1 with WPL Text, Article 4; see also Li at 82. 284 Ibid. at 83 (citing “Law-making and China’s Market Transition: Legislative Activism at the Eighth National People’s Congress,” Problems of Post-Communism, Vol. 49, No. 2 (Mar./Apr. 2002), 22-32).
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Another criticism of the Wildlife Protection Law concerns its list of protected wildlife. Critics believe the list is outdated.285 Moreover, expanding the list, or moving species from Category II to Category I is difficult.286 Critics also believe that including species on the protected list could actually harm the species because such an identification could attract poachers, thereby accelerating its extinction.287
The law also faces institutional difficulties. For example, Li reports that China’s Wildlife Protection Department (“WPD”) is under the State Forestry Bureau, but the WPD is “only one of the 9 functional departments in the SFB”.288 The SFB apparently exercises no power over the local WPDs.289 Moreover, Li reports that “[p]rovincial WPDs are beholden to the local officials who decide on their budget and staff needs and who care more about local growth.”290 The enforcement efforts of local WPDs are often resisted by local authorities and others that have the right to use the local land and the “resources” on such land.291
Similarly, government interference in judicial decisions in wildlife cases is not uncommon.292
2.3 Species-specific Legislation
2.3.1 aw th l ’s R l Ch na on the Protection of Wildlife293
Unfortunately, a comprehensive list of species protected by the Wildlife Protection Law does not appear to be publicly available. Two resources were located that provide information relevant to this question. However, their accuracy is undetermined:
“National Key Wild Protected Animals,” machine translated, available at http://jpkc.ahut.edu.cn/hjpj/dwml.htm (last accessed Jan. 28, 2014). This list, in Chinese, seems to identify specific species of animals and the category (I or II) that China has ascribed to them.
“List of Endangered and Protected Species of China,” available at http://en.wikipedia.org/wiki/List_of_endangered_and_protected_species_ of_China (last accessed Jan. 28, 2014). This Wikipedia compilation cites and expands upon the Chinese list of “National Key Wild Protected Animals” by including those species listed as endangered by CITES and the International Union for the Conservation of Nature.
285 Li at 83. 286 Ibid.at 84. 287 Ibid. 288 Ibid. at 86. 289 Ibid. 290 Ibid. 291 Ibid. 292 Ibid.at 87. 293 WPL Text.
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2.3.2 State Council Circular concerning the Ban on trade in Rhinoceros Horns & Tiger Bones, 1993294
This was a ban introduced by the State Council in response to growing concern about the use of rhinoceros horn and tiger bone in medicinal wines, powders and other traditional medicines.
The ban prohibits all trade of tiger bone and rhinoceros horn, the manufacture of medicinal products which include tiger bone or rhinoceros horn and transport of these products. All products produced before the ban were required to be sealed and banned from trade. Furthermore, the National Standard of using rhinoceros horn and tiger bone in medicines was abolished.
Being a Circular, this did not create any new offences but did state that violation of the Circular shall be investigated and handled by the State Administrative Department for Industry and Commerce and the Customs of the People's Republic of China according to law. The violator may then be prosecuted for a smuggling offence or some other offence under criminal law, if this is applicable.
3. PENALTIES
3.1 Wildlife Protection Law
Penalties for violating China’s Wildlife Protection Law are drawn from a mosaic of legal sources, including laws, legislative decisions, and court rulings.295 This includes China’s Criminal Code, its Customs Law, the 1988 National People’s Congress decision concerning illegal trafficking, smuggling, and profiteering of wildlife and wildlife products, the Supreme People’s Court decision concerning panda killing and panda pelt smuggling, and that Court’s decision on handling criminal cases involving wildlife.296
China’s administrative agencies have also enacted regulations that concern penalties for violating the Wildlife Protection Law. These include the “Regulations for Suppressing Crimes Affecting Public Security,” the “State Planning and Economic Commissions’ Notice on the Production and Sales of Hunting Rifles,” and the “Standard for Managing and Determining Criminal Cases Involving Terrestrial Wildlife Species.”297 Also relevant are the “Regulations of the PRC for the Implementation of the Protection of Terrestrial Wildlife,” the “Regulations on Management of Nature Reserves,” and the “Regulations on Management of Import and Export of Endangered Species of Wild Fauna and Flora.”298
Violations of China’s Wildlife Protection Law concern illegally trading, trafficking, and smuggling protected wildlife species; falsifying documents, and using banned hunting gear and methods.299 P.J. Li explains that offences are divided into three categories: “serious
294 “Circular of the State Council on Banning the Trade of Rhinoceros Horn and Tiger Bone," available at
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offense, very serious offense, and extremely serious offence”.300 Determining the offense category into which a particular act may fall can depend on, for example, the number and category of protected species hunted, the number of times banned hunting weapons or methods were used, the sales or purchase of protected species, and the amount sold.301
Offenders could face a wide range of consequences for violating these laws, including the death penalty.302 In his 2007 analysis of China’s Wildlife Protection Law, P.J. Li summarised penalties for violating such law and the myriad of relevant and ancillary laws or regulations. 303 This chart has now been amended and made current as of 2014:
Offence Level of Severity Penalties Sources of Law Up to 5 years Art. 341, Criminal Offence imprisonment and Code304 fine More than 5 years and up to 10 years Art. 341, Criminal Serious offence Illegal hunting, use imprisonment and Code305 of banned hunting fine gear, devastation of NPC Decision on rare and other Strictly Cracking 10-years to life wildlife resources Down on Serious imprisonment and Especially serious Crimes Against the fined or sentenced offence Economy to confiscation of
property Art. 341, Criminal Code306 Smuggling and profiteering in Up to 5 years Serious offence Criminal Code wildlife and imprisonment307 products Impairment of public security Public Security Up to 15 days’ (illegal possession Management and detention and holding of guns Penalty Regulations and ammunition)308
300 Ibid. 301 Ibid. 302 Ibid. 303 Li at 81. 304 “Criminal Law of the People’s Republic of China,” available at
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4. ANCILLARY LEGISLATION
4.1 Legislation summary
4.1.1 The Anti-Money Laundering Law of the People's Republic of China, 2007309
This is the country's principal anti-money laundering legislation. It focuses mainly on administrative and reporting standards which shall be put into place to prevent money laundering, and which is supervised by the administrative department in charge of anti-money laundering under the State Council.
The legislation places onerous obligations on financial institutions to know their clients, obtain and report full identities, formulate internal anti-money laundering control systems, conduct training for staff and create an adequate system for reporting dubious transactions.
Offences are quite wide under the law, and include the failure of a financial institution or any employee of a financial institution to fulfil their obligations under the act. Specific offences for financial institutions include failing to keep the information of customers and transactions records in accordance with the law, failing to report suspicious transactions, disclosing information in violation of confidentiality provisions, conducting transactions with customers whose identities are not yet clarified or refusing to provide materials which are under investigation. Employee offences include disclosing confidential information and investigating or taking out a temporary freezing order on a client in violation of the law.
The relevance here to the prevention of illegal wildlife trade will be an awareness from financial institutions that they and their employees will face sanctions if they in any way facilitate a transaction which is born out of funds which originate from unlawful sources, such as illegal wildlife trade. However, although the range of offences under the legislation is wide, corresponding penalties may lack the muscle required to act as an adequate deterrent.
4.1.2 Law of the People's Republic of China on Import and Export Community Inspection 1989310
Although geared mainly towards commodities, some elements of this law are directly relevant to the prevention of illegal wildlife trade. The law was implemented to improve inspection standards, establishing an Administration for Import and Export Commodity Inspection and local inspection authorities. Among its main principles is the protection of animal and plant health.
The local inspection authorities have considerable power over prohibited goods and must provide an inspection certificate to all goods which are subject to inspection under this law. They can also undertake a random inspection beyond that which is required under the legislation. Offences for individuals include
309 “Anti-Money Laundering Law of the PRC,” available at
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importing or exporting goods without customs inspection when required, and falsifying or remaking inspection certificates or documents. Individuals may also be guilty of a criminal offence; this will be dealt with under the Criminal Law of the People's Republic of China, 1989.
4.1.3 Customs law of the People's Republic of China, 2000311
This law supplements the Law on Import and Export Community Inspection 1989. Under Chinese customs law, the State Council sets up the Customs General Administration ("Customs") which is responsible for overseeing the administration of all customs offices within China. The legislation grants wide search powers to customs officers, including a power to examine inward and outward means of transport, any documentation relating to individuals or the means of transport for potential smuggling, any contracts, invoices, bank accounts, records or letters, and power to both interrogate and detain persons suspected of a crime in smuggling. Although this must be carried out within a designated surveillance zone, officers are permitted under the legislation to track down people outside of the zone and bring them back for investigation. They may also carry weapons to ensure proper fulfilment of their responsibility.
Offences under the law for individuals include transporting, carrying or mailing prohibited goods into or out of the territory and the very wide offence of doing any act which evades Customs supervision and control which constitutes an offence of smuggling under criminal law. Those people who purchase unlawfully imported goods may also be guilty of an offence, as are crew members on board vessels which transport prohibited goods. Fines may also be imposed on any individual.
Prevention of illegal wildlife trade can be facilitated here through stringent border controls, the vast power granted to customs officers to search and detain individuals, and the wide catchment of persons who may be guilty of an offence under the law. Penalties are dealt with under the Criminal Law of the People's Republic of China, which is discussed below.
4.1.4 Regulations of the People's Republic of China on Administration of Import and Export of Endangered Wild Animals and Plants, 2006312
These Regulations were put in place directly for the purposes of implementing CITES, and to strengthen the administration of import and export of endangered wild animals and plants. Primary responsibility is delegated to the competent departments of the State Council for forestry and agriculture.
The Regulations prohibit the import or export of endangered wild animals or plants or their products which are prohibited by CITES. They also lay down conditions which must be satisfied for the import or export of wild animals or plants where this is restricted. The source of the goods must be lawful, all documents truthful and valid, and all other standards set by the State Council met.
311 “Customs Law of the People’s Republic of China,” available at
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A stringent process of obtaining the relevant permits from Customs for export is also laid out, which does provide a more robust system of border supervision.
The only references to offences under the Regulations state that individuals who illegally import, export, smuggle or by other means endanger wild animals or plants shall be dealt with under Customs Law or Criminal Law, where appropriate. The Regulations also state that criminal liability will be imposed upon persons who forge import or export permits, or any staff member of the national scientific authority for import and export of endangered species who takes advantage of his or her position for his or her own benefit. These Regulations should be looked upon as an welcomed effort to consolidate CITES globally and not as a means of punishing individuals, which is addressed by customs and criminal legislation.
4.1.5 Criminal Law of the People's Republic of China, 1997313
This law outlines all behaviour which results in a criminal offence, across a number of different areas as outlined above. The law does not delegate authority like the other legislation examined, but merely lists a series of relevant criminal offences which are often related to violation of an associated law. As such, some of the offences have already been addressed in other ancillary legislation. However, there are others relevant to the illegal wildlife trade which have not yet been identified. Most of these are categorised as "crimes of undermining the socialist economic order" and include:
smuggling in violation of customs law;
regular smuggling or being ringleader of a smuggling group;
being a state functionary involved in smuggling;
tax evasion;
cruelly injuring animals with a personal motive;
unlawful fishing (in a prohibited area);
illegally catching or killing wildlife under state protection which are rare or near extinction, or illegally purchasing, transporting or selling wildlife which are rare or near extinction;
violation of game laws, specifically hunting in protected areas, damaging rare birds, beasts or animal resources;
assisting in covering up or concealing the source and nature of unlawful earnings from crime, or any attempt to assist money laundering.
313 “Criminal Law of the People’s Republic of China,” available at
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These offences cover many instances of criminality associated with the illegal wildlife trade, from the act of harming animals itself, to the smuggling of wildlife and body parts and the subsequent concealing of proceeds. The most relevant offence here is illegally catching, killing, transporting or trading wildlife under state protection which are rare or near extinction, which also carries the heaviest penalty of all the above. Considerable penalties are also in place for the other offences however, and will be examined in more detail below.
4.2 Penalties and enforcement
4.2.1 The Anti-Money Laundering Law of the People's Republic of China, 2007314
Most penalties outside of the 1997 Criminal Law involve administrative sanctions or fines. The heaviest can be found under the Anti-Money Laundering Law of 2007. As well as administrative sanctions, financial institutions can incur fines of up to £500,000 for misconduct which results in money laundering activity. However, individuals will face administrative sanctions at most. They will also face fines under the Customs Law of 2000, however the maximum amount is not specified.
4.2.2 Criminal Law of the People's Republic of China, 1997315
Once the specific conduct amounts to criminality, individuals are referred to the Criminal Law of 1997, which addresses violation across all relevant laws. Penalties for individuals include:
for smuggling in violation of Customs Law, up to 3 years in prison;
for regular smuggling or being ringleader of a smuggling group, 3-10 years in prison plus confiscation of smuggled goods, with a heavier penalty being imposed on a state functionary for the same offence;
for tax evasion, an order to repay all tax due and a fine, plus up to 3 years in prison;
for cruelly injuring animals with a personal motive, up to 2 years in prison or 2-7 years if a particularly serious offence;
for fishing in a prohibited area or using prohibited fishing implements or methods, if circumstances are serious, up to 3 years in prison, criminal detention, public surveillance or a fine;
for illegally catching or killing wildlife under state protection which is rare or near extinction, or illegally purchasing, transporting or selling said wildlife, up to 5 years in prison, 5-10 years for serious cases and not less than 10 years for especially serious cases, with concurrent fines;
314 See footnote 44, supra. 315 See footnote 48, supra.
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for violation of game laws, specifically hunting in prohibited areas and thereby damaging wildlife resources, up to 3 years in prison, criminal detention, public surveillance or a fine;
for attempting to cover up or conceal the source and nature of unlawful earnings or in any other way assisting any person or group with acts of money laundering, up to 5 years in prison and not less than 5 years in serious cases, with a concurrent fine of not less than 5% and not more than 20% of the sum of money laundered regardless of the severity of the conduct.
Although the range of offences under Criminal Law and other legislation are plentiful, enforcement of specific offences has been less promising. This is not only down to specific drafting and black-letter issues within the law, but also general public opinion, fast moving social and economic changes within China and also the poor response from central Government.
In terms of the Anti-Money Laundering Law of 2007, a source from the Chinese central bank has commented that Chinese courts tend to prosecute other criminal acts ahead of money laundering, such as corruption. Money laundering is quite infrequently pursued due to lack of legal resources etc.316 Another rationale is that banks and employees are over-reporting to avoid sanction - the Financial Action Task Force, an international money laundering watchdog, reported that the Chinese central bank received 8 million reports in the two years leading to 2012. The central bank has termed this "vengeful reporting", and states that it may be a product of an anti-money laundering law which is too stringent on offences for failure to report.317
With regard to the Criminal Law of 1997, there is a struggle to adequately enforce the vast range of offences against the individual. There are a number of outstanding reasons for this. Firstly, the principles which are being set out by the 1997 Law are generally abstract and thus difficult to enforce. The case often arises where it is almost impossible to decipher the exact conduct required by an individual in order for the offence to be made out. This makes enforcement unfeasible at times and it becomes increasingly hard to set a precedent for specific behaviour which will constitute an offence. The Law also lacks sentencing guidelines and prison sentences are often wide-ranging, which creates the same problem of consistency.
Furthermore, a lot has changed in China since 1997. The State has moved from a society ruled by people to one ruled by law. A transition into black letter law is hard to grasp for a population which previously functioned via custom and reputation, quite often to facilitate unlawful gain. The flipside of this in some territories is that economic and social development is moving faster than legislation, resulting in more and more loopholes to criminality which the 1997 Law has not provided for.
What is left is a situation where the country lacks unity in its approach to law enforcement, plainly seen here in the context of illegal wildlife trade and associated crimes. On one side, employees of financial institutions are over-reporting for fear of violation of money laundering laws, leaving the administrative department struggling to find cases meriting investigation. On the other, the general population either feels uncomfortable with paper-
316 Qing, K.G., “Exclusive – Risk Ranking: China Revamps Anti-Money Laundering Rules: Sources,” available at
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heavy criminal regulation or can find ways to avoid sanctions. Consider this alongside criminal legislation which is poorly drafted and based on abstract principles, and enforcement issues are a virtual certainty.
4.3 Relationship with principal legislation
In terms of range of offences, much of the ancillary legislation provides an extremely useful supplement to the principal legislation on wildlife trade.
The Anti-Money Laundering Law does place adequate pressure on financial institutions and employees to report cases to the administrative department. However, the thrust of this Law may be misguided. The fact that courts often prosecute individuals for corruption offences ahead of money laundering may suggest that a change in focus is required by legislators, in order to tighten the gap between illegal wildlife trade offences and subsequent offences relating to proceeds of money laundering.
Customs Laws,318 which now have their principles firmly embedded in the 2006 Regulations on Import and Export of Endangered Wild Animals and Plants, also grant officers very wide- ranging powers to investigate instances of smuggling, which naturally extends to any attempt to smuggle wildlife products out of China. There is also adequate criminal protection for this under the offence of smuggling. However this may be quite difficult to make out against an individual due to shortfalls in drafting, as discussed above.
Various criminal offences do compliment the primary legislation quite closely. The overarching offence of illegally catching or killing endangered wildlife, or illegally transporting or trading endangered wildlife contrary to the Criminal Law of 1997 does largely cater for a violation of the principal legislation from a criminal perspective. This is well supplemented by other criminal offences including cruelly injuring animals, harming animals in prohibited areas and smuggling.
However the issue here is not the range of offences and their relation to the primary legislation, but the enforcement capabilities of these laws, which need to improve if they are to act as a much needed reinforcement to primary legislation preventing illegal wildlife trade.
4.4 Additional information
It is extremely important that central Government support efforts to prevent illegal trade in wildlife and associated offences, beyond enacting legislation to this effect. Legislation with sufficient accuracy in defining offences may be the first step to securing a greater number of convictions.
Some makers of medicinal wine are under the impression that Government permits the use of tiger bones from tigers who have died naturally in captivity. This has led to the operation of tiger 'parks' which may be no more than tiger farms designed to allow the natural passing of tigers for medicinal use.319 Some Chinese government officials also reportedly drink this wine socially.320 If this practice is to change, legislation must be strengthened, offences must be
318 See footnote 46, supra. 319 Jones, R., “Exposed: Dark Secret of the Farm Where Tigers’ Bodies are Plundered to Make £185 Wine,” available at
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more specific and penalties enforced, and both public and government attitudes to protecting endangered wildlife must be improved.
5. JUDICIAL PROCESS AND CAPACITY
5.1 Prosecuting wildlife crime
Neither the primary nor ancillary legislation differentiate between the process for prosecuting wildlife crime and the process for prosecuting other types of crime. Thus prosecution of wildlife crime is in accordance with chapter 2 of the Criminal Procedure Law of the People's Republic of China321 ("CPL"). Chapter 2 of the CPL sets out the jurisdiction of the courts in determining where criminal cases will be heard. According to article 19, the Primary People's Courts shall have jurisdiction as courts of first instance over ordinary criminal cases except where the higher jurisdiction of the People's Courts apply. Thus, according to Article 20 of the CPL states that Intermediate People's Courts will have jurisdiction in the first instance over the following criminal cases:
counterrevolutionary cases and cases endangering State security; ordinary criminal cases punishable by life imprisonment or the death penalty; and criminal cases in which the offenders are foreigners.
Article 21 grants jurisdiction to the Higher People's Courts over major criminal cases that pertain to an entire province.
Article 22 grants jurisdiction to the Supreme People's Court over major criminal cases that pertain to the whole nation.
Wildlife crimes are unlikely to fall within the exceptional categories therefore, the Primary People's Courts shall be the court of first instances when prosecuting such crimes.
Thus it is most likely that criminal prosecution of wildlife cases in China will begin in the Primary People's Courts with rights of appeal in accordance with Chapter 3 of the CPL. Under Article 180 of the CPL, a defendant, private prosecutor or their legal representative may refuse to accept a judgement and has a right to appeal, in writing or orally, to the People's Court at the next higher level. The victim or his legal representative has a right to appeal a decision through the People's Procuratorate (Article 182 of the CPL)
The appeal should be lodged within five days from the date of receiving the written judgement and the People's Procuratorate shall, within five days from the date of receiving the request of appeal, decide whether or not to present the protest.
Article 183 of the CPL stipulates that the longstop date for an appeal against a judgement shall be 10 days and the time limit for an appeal against an order shall be 5 days.
321 “Criminal Procedure Law of the People’s Republic of China,” available at
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5.2 Sentencing guidelines for wildlife crimes
The sentencing guidelines for perpetration of wildlife crimes come from several sources of law, legislative decisions and court rulings.322 The length of the sentence will depend on the severity of the offence.
Under the Law of the People's Republic of China on the Protection of Wildlife 1988 ("LPW") offences are divided into three categories: serious offences, very serious offences, and extremely serious offences.
Serious offences involve the hunting of 5 locally-protected species or 1 Category I or 3 Category II State protected species at times when hunting is banned, in areas where hunting is banned, or using banned hunting equipment. In addition, the use of banned weapons 10 or more times, the setting of traps numbering 500 or more, or the digging of 100 or more pitfalls could qualify as a serious offence.
Very serious offences involve the hunting of 15 or more locally protected species or 3 Category I or 5 Category II state protected species, the use of banned hunting equipment 20 or more times, the setting of traps numbering 1000 or more, or the digging of 200 and more pitfalls. The hunting of 30 or more locally protected species or 5 Category I or 7 Category II state protected species, or the setting of 2000 or more traps could also qualify as a very serious offence.
Extremely serious offences involve the digging of 300 or more pitfalls. Similarly, illegal sales and purchase of 1, 2, and 3 Category I and 3, 6, 12 Category II state protected species would qualify as serious, very serious and extremely serious criminal cases. The severity of the cases is also determined by the sales amounts.
The table at paragraph 3 (Penalties) above shows that China’s Criminal Law to combat wildlife crime is extremely strict. Those involved in illegal wildlife trade in the country face severe penalties ranging from a 15-day detention period to life imprisonment.
5.3 Judicial enforcement of wildlife crime in practice
The implementation of the LPW and judicial sanctions did not prevent the wildlife crisis between 1989 and 1997 from occurring. The wildlife crisis saw the killing of 16 Asiatic elephants (1995), the smuggling of 22 monitors and 17 pangolins (1995), and indiscriminate hunting in South China’s forests by a 60-men hunting squad (1995). Other incidents which occurred during the wildlife crisis include the illegal hunting of two Siberian tigers (1993), 60 snow leopards, 118 elks, 1800 Tibetan antelopes, and 2000 other Category I and II state protected species.323
However, in recent years, judicial enforcement has become increasingly strict in an effort to improve the protection of China's wildlife.
The following cases concern giant pandas:
Chen Yonglin and Chen Zupei (Guangzhou Middle Ct. Nov. 25, 1987)—defendants Yonglin and Zupai were arrested for smuggling a panda skin out of China without a
322 Li at 80 available at
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license and were sentenced to long-term imprisonment (10-12 years) and deprived of their political rights for 4 and 3 years respectively.324
Jing Guolong and Others (Intermediate Ct. of Mianyang City, Sichuan Province Mar. 11, 1992) – The death sentence was upheld for one defendant for illegally hunting and killing a panda and deprived of his political rights for life. One other defendant was sentenced to 13 years and the others received suspended sentences of two and three years respectively.325
Using ivory related offences as an example (which represents more than half of China's wildlife crime),326 the following cases were reported:
Bu Luxiao and Others (Middle Ct. of Yunan Province, Xishuangbanna Autonomous Prefecture Aug. 18, 1995) (Highest People’s Ct. Nov. 1, 1995) – 14 people were prosecuted for illegal hunting and repeated speculation and smuggling of rare and endangered animals in Xishuangbannan Wildlife Natural Reserve. They were caught smuggling thirteen Asian elephants and a wild buffalo and had illegally bought and sold two pairs of ivory tusks. The Court sentenced Bu Luxiao to death and of the thirteen others: one was sentenced to death, two received life imprisonment, three received 13 years, and the rest received one to eight years in prison.327
8 people accused of illegal ivory trading received prison sentences of between 3 and 15 years. The case involved the import of 3.6 tonnes of ivory between 2010 and 2012;328
in the Zhejiang Province, 10 individuals were sentenced to serve jail sentences of 6.5 to 15 years;329
three Chinese citizens in Fujian Province were sentenced to periods of 7 to 15 years imprisonment for smuggling 7.7 tonnes of ivory from Africa;330 and
on 8 November, 2013, the Supreme Court of southern China’s Guangdong Province upheld the judgment of the court of first instance in an ivory smuggling case, as a result of which two ivory smugglers will be jailed for 12 and 14 years for smuggling 1.04 tonnes of ivory.331
324 Sharma, Charu, “Chinese Endangered Species at the Brink of Extinction: A Critical Look at the Current Law and Policy in China,” p. 239, available at
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According to a CITES article published in December 2013332,, recently, people caught buying and selling ivory outside of the regulated and official market are also receiving substantial prison sentences. For instance, a Chinese citizen was sentenced to 10 years' imprisonment in Beijing for ordering two whole ivory tusks and 168 small ivory carvings in Guangdong Province, although he claimed that they were for his own collection.333
The new crackdown on illegal trading and the severe sentences being issued by authorities for even small amounts of ivory is also being more widely publicised in an effort to reduce the amount of illegal ivory being traded.
According to China’s Supreme Court334, nearly 700 individuals were prosecuted during the past 10 years, with subsequent sentences for their involvement in wildlife crime ranging from 3 years' to life imprisonment.
Commenting on the increase in the number of prosecutions in China, Mr John E. Scanlon, the Secretary-General of CITES, stated that:
the efforts made in China to bring criminals involved in illegal ivory trade to justice are very encouraging. The high penalties being imposed by Chinese courts send a strong message to the people involved in this illegal trade and serve as a deterrent to others.
The high profit associated with illegal wildlife trade is a key factor driving the poaching and demand for ivory. The risk of detection, arrest and prosecution must be increased, and this must go hand-in-hand with strong penalties. The current spike in elephant poaching and illegal ivory trade must be matched by a steep rise in prosecutions and convictions, and these recent developments in China and elsewhere along the illegal supply chain are a clear step in the right direction.335
5.4 Administrative enforcement of wildlife crime in practice336
The laws and regulations listed in paragraph 2 to 4 above set out the mandates and responsibilities of the various Government agencies and administrative and regulatory bodies in terms of wildlife conservation management and law enforcement as follows:
The Department of Forestry under the State Council is mandated to be in charge of nationwide administration of terrestrial wild animals337; The endangered species import and export management body responsible for releasing import and import permits of wild animals and plants, as well as implementing CITES on behalf of the Chinese Government338;
332 Ibid. 333 Ibid. 334 Ibid. 335 Ibid. 336 Chen, J. “Current Status of Wildlife Protection in China,” available at
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The forest public security body is responsible for enforcing terrestrial wild animal- related administrative laws and criminal laws339; The Anti-smuggling Police are responsible for cracking down on smuggling endangered species340; The Industry and Commerce Administrative body is responsible for supervising and controlling wildlife and wildlife products in markets341; The Food and Drug Administrative body is responsible for managing the activities of using endangered species in medicines342; The nature reserve management agencies set up by forestry or environmental protection authorities are responsible for routine management and patrol in the nature reserves343; and Frontier defence officials, border control officials and other types of police bodies also have responsibility for enforcing wildlife-related laws and regulations.344
Thus judicial enforcement is not the only means through which Chinese wildlife laws are protected. The courts work hand in hand with other Government agencies and administrative and regulatory bodies to manage the use of wildlife resources and penalise the violation of wildlife laws.
Like judicial sanctions, administrative sanctions have become increasingly tough in recent years. Such sanctions may be appealed within 15 days of the relevant party receiving notification of the sanction.345 Some recent examples of administrative enforcement measures include:
27 November to 31 December 2011 - the National Forest Security Agency investigated and uncovered 4,821 cases of wildlife crime, punishing 2,809 individuals, and confiscated 276,100 animal heads, 9,546 wildlife products and 4,597 animal hides346;
9 April to April 2012 - the National Forest Security agency uncovered a total of 700 cases of wildlife crime, cracked down on 1,031 criminals, destroyed 13 criminal rings, and seized more than 130 thousand wild animal heads, nearly 2,000 wildlife products and 147 wildlife hides347; and
1 April to 30 April 2013 - during the so-called "Skynet action", the National Forest Security Agency investigated a total of 679 cases of wildlife crime (including 28 major cases), cracked down on 722 individuals and seized over one hundred thousand animals heads. This action effectively curbed the online and offline illegal trade in wild animals and their products and cut off the illegal trade chain in domestic collections, auctions and the pet industry, which has resulted in a significant decrease
339 Ibid. 340 Ibid. 341 Ibid. 342 Ibid. 343 Ibid. 344 Ibid. 345 Article 39 of the LPW 346 See footnote 65, supra. 347 Ibid.
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in illegal online trade information. As a result, China was awarded the world's 12th CITES Secretary‐ General's Certificate of Commendation.348
5.5 Additional Information
At present, the efforts of enforcement authorities are constantly being undermined due to increased poaching of rhinos, elephants and tigers which has largely been driven by increased demand for illegal wildlife products. This appears to be a function of a newly affluent society, where purchasing illegal wildlife products has recently developed both as an investment— essentially, the closer an endangered species is to extinction, the higher its investment value— and as a form of conspicuous consumption.349
Furthermore, despite recent judicial and administrative measures to combat wildlife crime, according to Madam Yin Hong, the Vice Minister of State for Forestry Administration and Chair of the CITES Enforcement Coordination Group, the challenge for China remains that
“The demand for wild animals and plants for traditional Chinese medicine and food is stimulating illegal trade and overexploitation of wildlife.”350
Therefore it appears that, without a change in the cultural attitude of Chinese citizens, the tougher measures currently being implemented are unlikely to result in a permanent and effective solution to the reduction and eventual elimination of wildlife crime in China and the challenge of protecting China's wildlife will remain an uphill struggle.
6. CONCLUSIONS
6.1 Effectiveness of Legislation
In conclusion, China’s regime of wildlife protection laws, regulations, and other legislative processes leaves much to be desired. While China has enacted laws and has implemented regulations, the barriers to successful enforcement of those laws and regulations are plentiful, and render such laws and regulations nearly ineffective.
6.2 Recommendations
In order to guarantee future success, wildlife protection in China must become more nationalised, have an expanded scope, and contain fewer exceptions for local customs. These improvements may prove difficult as China continues to value economic growth and cultural practices over the welfare of these animals.
The international community would be wise to continue to pressure China to enact wildlife legislation that can be enforced on a national and state level, and to provide more transparency into those efforts. In reality, however, the Chinese people must consider the environmental importance of these disappearing species over their deliciousness as delicacies and their value as goods before real change is realized.
348 Ibid. 349 “Wildlife Crime,” HOUSE OF COMMONS ENVIRONMENTAL AUDIT COMMITTEE THIRD REPORT OF SESSION 2012-13, Vol. 1, available at
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DEMOCRATIC REPUBLIC OF THE CONGO
Team Leader and Editor - Jeffrey Herschman - DLA Piper
Team Members - Elannie Damianos, Keelan F. Diana, Lauren Genvert Goetzl, Shari Helft Lennon - DLA Piper
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1. EXECUTIVE SUMMARY
The Democratic Republic of the Congo (the “DRC”) is a country rich in biodiversity. It is host to numerous critically endangered species, including the mountain gorilla, the African elephant, the okapi351, the chimpanzee, and the bonobo.352 While the DRC has in place a legislative framework prohibiting the illegal trade of wildlife as well as extensive hunting laws and regulations, species-specific legislation, and various ordinances establishing nature reserves — some of which are managed by the traditional communities in which they are located353 — this legislation is not adequately enforced. The DRC faces many challenges in combatting the illegal trade of wildlife.
The DRC, a former Belgian colony, is emerging from a dreadful period of mismanagement, political volatility, and internal conflict.354 After approximately eighty years of brutal colonial rule, several secessionist conflicts followed the DRC’s independence in 1960, which resolved into a long period of corruption and mismanagement under President Mobotu Sese Seko, the de facto dictator of Zaire, as the DRC was then known.355 The DRC entered the 1990s in a state of quasi-collapse. That decade was marked by successive episodes of increasing violence and internal conflict that have resulted in more than four million lives lost over the course of the past fourteen years.356 Against this historical backdrop, it is understandable why the protection and conservation of wildlife in the DRC has not been adequately addressed.
In addition to political and social instability, there are several further challenges the DRC faces in addressing the illegal trade of wildlife:
The growing ivory market has had a devastating impact on the DRC’s population of African elephants. The DRC is a known supply country for ivory, and enforcement of legislation preventing illegal poaching remains a significant issue as a result of corruption among government officials, the limited number of rangers available to police reserves, and the inability of these rangers to effectively redress poachers, who are generally heavily armed and well-funded. With a geographic area encompassing 2.345 million km² (or 905,600 square miles), the DRC simply does not possess the infrastructure or ability to monitor all of its wild areas.357
351 Conservation International website, accessed February 6, 2014, http://www.conservation.org/newsroom/pressreleases/Pages/Forest- giraffe-joins-growing-number-of-threatened-species.aspx 352 CITES website, accessed February 6, 2014, http://www.cites.org/eng/app/appendices.php 353 Fabiano Godoy, Wegener Vitekere and Luc Lango, Understanding Deforestation in Eastern Democratic Republic of Congo, Esri, Summer 2012, available at: http://www.esri.com/news/arcnews/summer12articles/understanding-deforestation-in-eastern-democratic- republic-of-congo.html. 354 "United Nations Development Assistance Framework, Democratic Republic of the Congo" accessed February 6, 2014 http://www.unops.org/SiteCollectionDocuments/Information-disclosure/UNDAFs/DR-Congo-UNDAF-2009-2013.pdf 355 "United Nations Development Assistance Framework, Democratic Republic of the Congo" accessed February 6, 2014 http://www.unops.org/SiteCollectionDocuments/Information-disclosure/UNDAFs/DR-Congo-UNDAF-2009-2013.pdf 356 African Wildlife Foundation Website, "The Mountain Gorilla", accessed February 6, 2014 http://www.awf.org/wildlife- conservation/mountain-gorilla 357 "Canadians for Human Rights in the Congo". Accessed February 6, 2014 http://www.humanrightsinthecongo.com/resources/ ; see also Kony’s Ivory: How Elephant Poaching in Congo Helps Support the Lord’s Resistance Army, available at www.enoughproject.org/files/KonysIvory.pdf .
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Every year, a rapidly growing Congolese population increasingly depends upon natural resources for its survival. This includes a reliance on “bush meat,” which is gathered from unregulated hunting operations and used for food and medicine.358 Additionally, in a country where the majority of citizens make a living via subsistence farming, a rapidly growing population results in increasing deforestation — one of the most significant threats to wildlife today.359
Finally, it should be noted that obtaining information regarding the illegal trade of wildlife in the DRC is extremely difficult. Despite being a signatory to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (the “Convention” or “CITES”), the DRC has not provided any import/export or illegal trade statistics in accordance with the Convention since 2005.360 Considering the DRC’s recent history, it is unsurprising that combatting this issue has proven to be so difficult.
2. PRINCIPAL LEGISLATION
2.1 Legislation summary
The DRC is a strongly decentralised, semi-presidential republic in which political power is divided between the executive branch, represented primarily by a President and Prime Minister, and a legislative branch, represented by a Parliament.361 Geographically, the DRC is composed of eleven semi-autonomous provinces: (1) Bandundu; (2) Bas-Congo; (3) Équateur; (4) Kasai-Occidental; (5) Kasai-Oriental; (6) Katanga; (7) Kinshasa, which is the capital city; (8) Maniema; (9) Province Orientale; (10) North Kivu; and (11) South Kivu.362 Each province has a provincial legislature (the “Provincial Assembly”) that elects a governor, and the governor is in charge of the provincial executive.363 Some powers fall within the exclusive control of the provinces, while others are held concurrently with the Central Government.364 French and Lingala are the lingua franca of the DRC; legislation, however, is written in French.365
This report identifies five principal pieces of domestic legislation connected to the illegal trade of wildlife in the DRC:
358 "The Democratic Republic of the Congo, Post - Conflict Environmental Assessment Synthesis for Policy Makers, United Nations Environment Programme". Accessed February 6, 2014 http://www.unep.org/disastersandconflicts/CountryOperations/DRCongo/PostConflictEnvironmentalAssessmentreport/tabid/55517/Default. aspx 359 African Wildlife Foundation Website, "The Mountain Gorilla". Accessed February 6, 2014, http://www.awf.org/wildlife- conservation/mountain-gorilla 360 “Biennial Report”. Accessed February 6, 2014. http://www.cites.org/eng/resources/reports/biennial.php. 361 Congo, Democratic Republic of the Government Profile 2013 Accessed February 6, 2014, http://www.indexmundi.com/democratic_republic_of_the_congo/government_profile.html. 362 Administrative Map of Democratic Republic of the Congo, available at http://www.nationsonline.org/oneworld/map/dr_congo_map.htm. 363 Congo, Democratic Republic of the Government Profile 2013 Accessed February 6, 2014, http://www.indexmundi.com/democratic_republic_of_the_congo/government_profile.html. 364 Congo, Democratic Republic of the Government Profile 2013 Accessed February 6, 2014, http://www.indexmundi.com/democratic_republic_of_the_congo/government_profile.html 365 Congo, Democratic Republic of the Government Profile 2013 Accessed February 6, 2014, http://www.indexmundi.com/democratic_republic_of_the_congo/government_profile.html
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The Constitution of the Democratic Republic of the Congo, 2006 (“Constitution”);366
Ordinance-Law 69-041 of 22 August 1969 on the Conservation of Nature (the “Conservation Law”);367
Law No. 82-002 of May 28, 1982, on Hunting Regulations (the “Hunting Law”);368
Order No. 056 March 28, 2000 CAB/MIN/AFF-ECNPF/01/100 of Regulating International Trade in Endangered Species of Wild Fauna and Fauna (CITES) (the “CITES Law”);369 and
Decree No. 014 of April 29, 2004, Concerning Measures for the Implementation of Law No. 82-002 of May, 1982, Related to the Regulation of Hunting (the “Order”).370
Notably, with the exception of the 2006 Constitution and the 2004 Order implementing the 1982 Hunting Law, this legislative framework dates from the period when the DRC was under the dictatorial control of President Mobutu Sese Seko.
The key provisions of, offences under, and penalties created by this legislation are summarised below.
2.1.1 The Constitution of the Democratic Republic of the Congo, 2006
The Constitution of the Democratic Republic of the Congo, adopted in February, 2006 (the “Constitution”), reserves to the Central Government: (i) the development of the law on nature conservation; (ii) the negotiation and entering into of international treaties for conservation; (iii) the import and export of products relating to the conservation sector; and (iv) the determination of regimes and hunting conservation (fauna and flora).371
2.1.2 National Strategy and Action Plan for Biological Diversity
The DRC adopted a National Strategy and Action Plan for Biological Diversity (“NBSAP”)372 in January 2002 pursuant to Article 6 of the United Nations Convention on General Measures for Conservation and Sustainable Use, which states that each signatory shall, in accordance with its particular conditions and capabilities, develop national strategies, plans, or programs for the conservation and sustainable use of biological diversity or adapt for this purpose existing strategies, plans, or programmes, and integrate the conservation and sustainable use of biological diversity into relevant sectoral or cross-sectoral plans, programmes, and policies.373
366 http://www.constitutionnet.org/files/DRC%20-%20Congo%20Constitution.pdf 367 http://www.droitcongolais.info/files/7.61.2.-Ordonnance-loi-du-22-aout-1969_Conservation-de-la-nature.pdf 368 http://faolex.fao.org/docs/pdf/cng4275.pdf 369 http://www.leganet.cd/Legislation/Droit%20administratif/Environnement/A.056.28.03.2000.htm 370 http://www.leganet.cd/Legislation/Droit%20economique/Chasse/A041.29.04.2004.htm; 371 The Constitution of the Democratic Republic of the Congo, 2006, available at www.constitutionnet.org/files/DRC%20- %20Congo%20Constitution.pdf . Articles 202(25) and 204(20). 372 Plan National Strategique d’Action en Matiere de la Diversite Biologique, Période de 2002 à 2010 available at https://www.cbd.int/doc/world/cd/cd-nbsap-v2-fr.doc. 373 The Convention on Biological Diversity, available at https://www.cbd.int/intro/default.shtml.
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The purpose of the DRC’s NBSAP is the management of its natural resources. The DRC has listed as a priority, from 2002 -2010, the following projects:374 (ii) A master plans for its national parks;
(iii) The production of promotional materials for ecotourism;
(iv) Protection plans and recovery of threatened species and ecosystems;
(v) Management plans for exploited species;
(vi) The Creation of a National Biodiversity Unit; and
(vii) The creation of a national focal point for the exchange of information on biodiversity.
In the NBSAP, the DRC provides, as secondary goals, the following:375
(i) A systematic inventory of its wildlife;
(viii) Strengthening of information, awareness, education, and training in biodiversity; and
(ix) Strengthening the capacity of the state structure responsible for coordinating and monitoring the implementation of the United Nations Convention on Biological Diversity.376 2.1.3 Order No. 056 March 28, 2000 CAB/MIN/AFF-ECNPF/01/100 of Regulating International Trade in Endangered Species of Wild Fauna and Fauna (CITES)
The stated purpose of this Order, which was enacted in 2000, is to enforce the provisions of CITES. It sets forth rules and conditions of detention, trade, and transport in the DRC of any species covered by the CITES Convention. 377 The Department of Forest Management and Hunting is designated as the governmental authority charged with the management of CITES.378 The Order charges the Department of Forest Management and Hunting with the obligation to prepare an annual report for submission to the Convention, containing a summary of information on the number and type of permits or certificates issued and a biannual report on legislative, regulatory, and administrative measures taken to implement the Convention.379 Agents designated as part of the CITES Management Body will have jurisdiction across the entire country with respect to violations of CITES and implementation of this CITES Order.380 This Order
374 NBSAP, Table 1. 375 NBSAP, Table 2. 376 Plan National Strategique d’Action en Matiere de la Diversite Biologique, Période de 2002 à 2010 available at https://www.cbd.int/doc/world/cd/cd-nbsap-v2-fr.doc. 377 Order No. 056 March 28, 2000 CAB/MIN/AFF-ECNPF/01/100, Article 1, available at http://www.leganet.cd/Legislation/Droit%20administratif/Environnement/A.056.28.03.2000.htm. 378 Order No. 056 March 28, 2000 CAB/MIN/AFF-ECNPF/01/100, Article 6, available at http://www.leganet.cd/Legislation/Droit%20administratif/Environnement/A.056.28.03.2000.htm. 379 Order No. 056 March 28, 2000 CAB/MIN/AFF-ECNPF/01/100, Article 7, available at http://www.leganet.cd/Legislation/Droit%20administratif/Environnement/A.056.28.03.2000.htm. 380 Order No. 056 March 28, 2000 CAB/MIN/AFF-ECNPF/01/100, Article 10, available at http://www.leganet.cd/Legislation/Droit%20administratif/Environnement/A.056.28.03.2000.htm.
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additionally empowers customs officers to audit documents accompanying the entry, exit, transit and shipment of any species affected by CITES.381
The CITES Management Authority established pursuant to this Order is charged with issuing permits for the import, export and trade of wildlife, which are subject to verification of compliance with wildlife laws and CITES restrictions. For endangered species, permits will be issued on the condition that (i) the Congolese Institute for the Conservation of Nature (“Institut Congolais pour la Conservation de la Nature”, ,“ICCN”) consents and certifies that such activity will not be detrimental to the survival of the species; (ii) the species was not obtained in violation of Congolese laws of fauna and flora; (iii) a CITES import permit from the destination country is presented; and (iv) there is evidence that the species will be prepared and shipped in a manner that will minimise risk of injury or disease or dangerous treatment.382 Exports of wildlife are limited to export quotas that may be established by the ICCN.383
2.1.4 Ordinance-Law 69-041 of 22 August 1969 on the Conservation of Nature
In 1969, the DRC’s Conservation Law established the legal institution now called the ICCN, which is the DRC’s national wildlife authority.384 The ICCN is charged with protection and management of the DRC’s national parks—which include five United Nations Educational, Scientific and Cultural (“UNESCO”) sites inscribed on the World Heritage List385—and the promotion of biodiversity. The ICCN has a paramilitary structure and is part of the judicial police force charged with handling offences under the Conservation Law, as well as the hunting, fishing, and forest legislation.386 The ICCN today is governed by the Act NO. 08/99 of July 7, 2008 and Decree No. 09/012 of April 24, 2009, and is under the authority of the Ministry of Environment, Nature, Conservation and Tourism.
The Conservation Law provides that any territory could be declared a “strict nature reserve” by order when the conservation of wildlife, flora, soil, water, and the environment requires. How often this provision of the Law is used to effect this purpose is unknown, however.387 The Conservation Law sets forth all of the following prohibited activities (subject to authorisation or waiver by the ICCN), none of which can be undertaken in a protected area:388
Camping or living in the wilderness;
381 Order No. 056 March 28, 2000 CAB/MIN/AFF-ECNPF/01/100, Article 10, available at http://www.leganet.cd/Legislation/Droit%20administratif/Environnement/A.056.28.03.2000.htm. 382 Order No. 056 March 28, 2000 CAB/MIN/AFF-ECNPF/01/100, Article 13-23, available at http://www.leganet.cd/Legislation/Droit%20administratif/Environnement/A.056.28.03.2000.htm. 383 Order No. 056 March 28, 2000 CAB/MIN/AFF-ECNPF/01/100, Article 40, available at http://www.leganet.cd/Legislation/Droit%20administratif/Environnement/A.056.28.03.2000.htm. 384 Ordonnance-Loi 69-041 du aout 1969, sur la conservation de la nature, Article 14, available at http://www.leganet.cd/Legislation/Droit%20administratif/Environnement/OL.69.041.22.08.1969.htm. 385 Democratic Republic of the Congo, UNESCO, available at http://whc.unesco.org/en/statesparties/CD/. 386 Ordonnance-Loi 69-041 du aout 1969, sur la conservation de la nature, Article 19, available at http://www.leganet.cd/Legislation/Droit%20administratif/Environnement/OL.69.041.22.08.1969.htm 387 Ordonnance-Loi 69-041 du aout 1969, sur la conservation de la nature, Article 1, available at http://www.leganet.cd/Legislation/Droit%20administratif/Environnement/OL.69.041.22.08.1969.htm 388 Ordonnance-Loi 69-041 du aout 1969, sur la conservation de la nature, Article 1, available at http://www.leganet.cd/Legislation/Droit%20administratif/Environnement/OL.69.041.22.08.1969.htm
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The introduction of dogs, traps, or firearms to detain, transport, or export wild animals, skins, pelts, or other non-agricultural products;
The harassment, hunting, capture, killing, frightening, or disturbance in any way of any kind of wild animal—even animals deemed harmful—except in cases of self-defence;
The removal or destruction of eggs and nests;
The killing, destruction, removal, or uprooting of plants or uncultivated trees;
The introduction of any non-native species of animal or plant;
The alteration of the appearance of the terrain or vegetation in making excavations, earthworks, or surveys, taking samples of materials, and all similar work;
The blocking of rivers, the removal or pollution of the waters directly or indirectly;
Fishing; and
Flying of an aircraft at a height of less than 300 meters.
2.1.5 Law No. 82-002 Ma 28, 1982, n H nt ng R g lat ns (th “H nt ng aw”)
The Hunting Law is perhaps the most extensive piece of legislation applicable to the protection and conservation of wildlife in the DRC. It was implemented in 1982, under President Mobutu Sese Seko, and remains in effect to this day, although its efficacy in curbing illegal hunting and poaching is unknown, and indeed the extent to which it is enforced is difficult to determine.
Article 2 of the Hunting Law dictates that the country’s wildlife is owned by the State itself, and must therefore be managed in the interests of the State. Wild Animals are classified into three categories: (1) fully protected, (2) partially protected, and (3) not protected.389 Information about what species of animals fall into these three categories is unavailable.
Exploitation of wildlife through hunting (or in any other way) is prohibited without an authorisation from the competent authority, and except in the case of special waivers granted to holders of scientific hunting permits, protected animals shall not be killed, captured, hunted, pursued, disturbed, or scared voluntarily, by any irregular means, or in order to harm the animals.390 Similarly, the removal or destruction of eggs and nests of game animals is prohibited unless approved by the Commissioner of the Department of State.391 Under the Hunting Law, fully protected animals shall not be disturbed, pursued, hunted, scared voluntarily, captured, injured, or killed unless this is done pursuant to a scientific permit; provoking fully protected animals wilfully and without authority is an offence for which the right of self-defence cannot be claimed.392 Partially protected animals may only be hunted
389 Law No. 82-002 of May 28, 1982, on Hunting Regulations, Articles 2, 26-33, 29 (http://faolex.fao.org/docs/pdf/cng4275.pdf). 390 Law No. 82-002 of May 28, 1982, on Hunting Regulations, Articles 4, 27 (http://faolex.fao.org/docs/pdf/cng4275.pdf). 391 Law No. 82-002 of May 28, 1982, on Hunting Regulations, Article 32 (http://faolex.fao.org/docs/pdf/cng4275.pdf). 392 Law No. 82-002 of May 28, 1982, on Hunting Regulations, Articles 27, 28 (http://faolex.fao.org/docs/pdf/cng4275.pdf).
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pursuant to a sport permit for big game, a permit for tourism, or special permits under the conditions established by the hunting authorities.393
Hunting permits may be granted pursuant to the Hunting Law for sport, tourism, rural hunting (subsistence hunting), commercial purposes, scientific purposes, and administrative purposes, and the State Commissioner may permit certain persons the right to hunt protected animals in protected areas for scientific purposes.394 Scientific hunting permits may likewise be granted to persons with recognised competence in the fields of natural sciences for which the slaughtering or capture of animas is sought, or to persons belonging to recognised scientific organisations.395 Information about the number of permits issued is unavailable.
The Hunting Law also governs the establishment of wildlife and hunting reserves: the State Commissioner of the Department has the power, on the proposal of the governor of each Province and the regional executive council, to establish wildlife reserves and hunting areas.396 Certain wildlife areas may be leased to tourism companies or professional hunting associations, but the following activities are forbidden in wildlife reserves:
(i) The introduction of domestic or exotic animals, firearms, traps, or any hunting weapons; (ii) Chasing, hunting, capturing, destroying, scaring, or disturbing any wild animal except in the case of legitimate self-defence or force majeure;
(iii) Causing irreversible deterioration of wildlife habitat; and
(iv) Flying aircraft at an altitude lower than 500 meters.397
Regarding the activity of hunting, annual hunting periods not exceeding six months are allowed in the regions located north and south of the Equator, but the State Commissioner has power to prohibit hunting for certain species of animals for a period determined in his discretion within a whole region.398 A hunting permit is necessary to hunt by certain special means—including by automatic weapons, poison and toxic products.399 The Hunting Law also prohibits the use of certain weapons for hunting unless the Department provides otherwise, on the basis of scientific reasons.400
The exportation of a fully or partially protected animal must be made pursuant to a Legitimate Detention Certificate issued by the relevant Department and subject to the payment of applicable taxes.401 It is prohibited under the Hunting Law to retain trophies or hunting products without a prior authorisation from the competent department, unless these trophies or hunting
393 Law No. 82-002 of May 28, 1982, on Hunting Regulations, Article 31 (http://faolex.fao.org/docs/pdf/cng4275.pdf). 394 Law No. 82-002 of May 28, 1982, on Hunting Regulations, Articles 5-7, 12 (http://faolex.fao.org/docs/pdf/cng4275.pdf). 395 Law No. 82-002 of May 28, 1982, on Hunting Regulations, Article 61 (http://faolex.fao.org/docs/pdf/cng4275.pdf). 396 Law No. 82-002 of May 28, 1982, on Hunting Regulations, Article 8 (http://faolex.fao.org/docs/pdf/cng4275.pdf). 397 Law No. 82-002 of May 28, 1982, on Hunting Regulations, Articles 13, 17 (http://faolex.fao.org/docs/pdf/cng4275.pdf). 398 Law No. 82-002 of May 28, 1982, on Hunting Regulations, Articles 18, 19 (http://faolex.fao.org/docs/pdf/cng4275.pdf). 399 Law No. 82-002 of May 28, 1982, on Hunting Regulations, Articles 20, 21 (http://faolex.fao.org/docs/pdf/cng4275.pdf). 400 Law No. 82-002 of May 28, 1982, on Hunting Regulations, Articles 20, 21 (http://faolex.fao.org/docs/pdf/cng4275.pdf). 401 Law No. 82-002 of May 28, 1982, on Hunting Regulations, Articles 70, 71 (http://faolex.fao.org/docs/pdf/cng4275.pdf).
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products are only retained temporarily or are being transported to be handed over to authorised persons.402
“Hunting products” under the Hunting Law include:
(v) The tusks of elephants, horns of rhinoceros, and teeth of hippopotami found dead or shot, as well as hunting products collected following an act of legitimate defence against the animal; and (vi) The skins, meat, and eggs of animals that have been shot dead or captured alive.
“Trophies” include any part of a wild animal, including skin, hair, teeth, ivory, bones, nails, eggs, or any other non-perishable element.403 2.1.6 Decree No. 014 of April 29, 2004, Concerning Measures for the Implementation of Law No. 82-002 of May, 1982, Related to the Regulation H nt ng (th “O ”)
Under the Order implementing the Hunting Law—which is more extensive than the Hunting Law itself, and suggests that this 1982 law is still fully in place—a “hunting act” consists of all manoeuvres employed to capture or slaughter big game animals, to search and pursue them as to capture or slaughter them, or to take their eggs, nests, broods, and younglings. However, it excludes the slaughtering of such animals by any holder of a hunting permit.404 Any request for an ordinary hunting permit must be made on a form established by the Administration of Hunting.405
Within forty-eight hours after the capture or slaughter of an animal, the holder of a hunting permit must write it down in his hunting notebook, including the date, location, administrative zone, species, and vernacular name of the animal.406 The holder of any hunting permit has to give to the competent authority and within a maximum of one-hundred and eighty days any trophy found by him or his staff, in the zone of capture or slaughter and during the validity of the permit as well as any trophy coming from animals found dead or slaughtered under coverage of legitimate self-defence during the same period.407
There are several specific types of permits under the Order, including sport permits for small game, which give the holder the right to hunt for birds and non-protected mammals outside of reserves and hunting domains.408 Sport permits for big game give the holder the right to hunt
402 Law No. 82-002 of May 28, 1982, on Hunting Regulations, Article 75 (http://faolex.fao.org/docs/pdf/cng4275.pdf). 403 Law No. 82-002 of May 28, 1982, on Hunting Regulations, Articles 74, 73 (http://faolex.fao.org/docs/pdf/cng4275.pdf). 404 Decree No. 014 of April 29, 2004, Concerning Measures for the Implementation of Law No. 82-002 of May, 1982, Related to the Regulation of Hunting, Article 1 (http://www.leganet.cd/Legislation/Droit%20economique/Chasse/A041.29.04.2004.htm). 405 Decree No. 014 of April 29, 2004, Concerning Measures for the Implementation of Law No. 82-002 of May, 1982, Related to the Regulation of Hunting, Article 25-27 (http://www.leganet.cd/Legislation/Droit%20economique/Chasse/A041.29.04.2004.htm). 406 Decree No. 014 of April 29, 2004, Concerning Measures for the Implementation of Law No. 82-002 of May, 1982, Related to the Regulation of Hunting, 28-29, 32 (http://www.leganet.cd/Legislation/Droit%20economique/Chasse/A041.29.04.2004.htm). 407 Decree No. 014 of April 29, 2004, Concerning Measures for the Implementation of Law No. 82-002 of May, 1982, Related to the Regulation of Hunting, Article 36 (http://www.leganet.cd/Legislation/Droit%20economique/Chasse/A041.29.04.2004.htm). 408 Decree No. 014 of April 29, 2004, Concerning Measures for the Implementation of Law No. 82-002 of May, 1982, Related to the Regulation of Hunting, Article 12 (http://www.leganet.cd/Legislation/Droit%20economique/Chasse/A041.29.04.2004.htm).
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for birds and non-protected mammals outside of reserves and hunting domains, as well as some partially-protected animals.409
There are two different types of tourism permits: the smaller of these gives the holder the right to hunt non-protected animals in the area he or she determines, and gives the holder the right to hunt non-protected and partially-protected animals in his or her hunting domain.410
A rural hunting permit is available to any Congolese national living in the territory and gives him or her the right to hunt, within the territory, non-protected animals for his or her own subsistence.411
A collective hunting permit permits other usage of traditional or customary hunting devices (i.e., lances, assegais, bows, crossbows, catapults, and traps made with local materials), and excludes firearms, non-customary traps, and metallic cables.412 These permits only authorise the hunting of animals upon advice from the local services for hunting, depending upon the local big game density.413
There are also a number of special permits under the Order, including: (vii) Scientific permits: these are valid for up to six months only, can be delivered outside of the open hunting period, must be delivered by the Minister in charge of hunting, and give their holder only the right to capture and slaughter certain specific animals enumerated in the permit itself.414 The holder of such a permit must register the slaughter or capture of any animals, but there is no applicable tax (with the exception of ivory).415
(viii) Administrative permits: These permits can be granted outside of the open hunting period, and authorise the slaughter or capture of any animal that reveals itself as dangerous.416
(ix) Commercial capture permits: These permits authorise their holder to capture or collect only non-protected or partially-protected animals to determine the species, sex, and number.417 In exceptional cases, the Minister can authorise, for specific and limited operations, the use of prohibited techniques or devices (i.e., netting, non-customary traps).418 At the end of each
409 Decree No. 014 of April 29, 2004, Concerning Measures for the Implementation of Law No. 82-002 of May, 1982, Related to the Regulation of Hunting, Article 13 (http://www.leganet.cd/Legislation/Droit%20economique/Chasse/A041.29.04.2004.htm). 410 Decree No. 014 of April 29, 2004, Concerning Measures for the Implementation of Law No. 82-002 of May, 1982, Related to the Regulation of Hunting, Article 14-16 (http://www.leganet.cd/Legislation/Droit%20economique/Chasse/A041.29.04.2004.htm). 411 Decree No. 014 of April 29, 2004, Concerning Measures for the Implementation of Law No. 82-002 of May, 1982, Related to the Regulation of Hunting, Article 17 (http://www.leganet.cd/Legislation/Droit%20economique/Chasse/A041.29.04.2004.htm). 412 Decree No. 014 of April 29, 2004, Concerning Measures for the Implementation of Law No. 82-002 of May, 1982, Related to the Regulation of Hunting, Article 18 (http://www.leganet.cd/Legislation/Droit%20economique/Chasse/A041.29.04.2004.htm). 413 Decree No. 014 of April 29, 2004, Concerning Measures for the Implementation of Law No. 82-002 of May, 1982, Related to the Regulation of Hunting, Article 18-19 (http://www.leganet.cd/Legislation/Droit%20economique/Chasse/A041.29.04.2004.htm). 414 Decree No. 014 of April 29, 2004, Concerning Measures for the Implementation of Law No. 82-002 of May, 1982, Related to the Regulation of Hunting, Article 20-21 (http://www.leganet.cd/Legislation/Droit%20economique/Chasse/A041.29.04.2004.htm). 415 Decree No. 014 of April 29, 2004, Concerning Measures for the Implementation of Law No. 82-002 of May, 1982, Related to the Regulation of Hunting, Article 31 (http://www.leganet.cd/Legislation/Droit%20economique/Chasse/A041.29.04.2004.htm). 416 Decree No. 014 of April 29, 2004, Concerning Measures for the Implementation of Law No. 82-002 of May, 1982, Related to the Regulation of Hunting, Article 22 (http://www.leganet.cd/Legislation/Droit%20economique/Chasse/A041.29.04.2004.htm). 417 Decree No. 014 of April 29, 2004, Concerning Measures for the Implementation of Law No. 82-002 of May, 1982, Related to the Regulation of Hunting, Articles 23 and 24 (http://www.leganet.cd/Legislation/Droit%20economique/Chasse/A041.29.04.2004.htm). 418 Decree No. 014 of April 29, 2004, Concerning Measures for the Implementation of Law No. 82-002 of May, 1982, Related to the Regulation of Hunting, Article 23-24 (http://www.leganet.cd/Legislation/Droit%20economique/Chasse/A041.29.04.2004.htm).
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capture operation, the holder must register the animals in the chief location of the territory where he captured, collected, or slaughtered them.419
The hunting season is regulated by the calendar provided by the governor of every province. The calendar can be modified by the Minister in charge of hunting, according to what wildlife needs to be rehabilitated, and upon proposal of the central administration in charge of hunting.420
The Order also regulates hunting guides. A hunting guide is anyone who is in charge of guiding hunting expeditions for a fee, for himself or on behalf of a company that specialises in hunting tourism. Only a person meeting the following requirements can obtain a hunting guide licence:
(x) He or she is of Congolese nationality (although the Minister of hunting can make exceptions);
(xi) He or she must be over 21 years of age;
(xii) He or she must be of good character;
(xiii) He or she must never have been sentenced for a hunting offence;
(xiv) He or she must have completed an apprenticeship;
(xv) He or she must have passed a probationary examination; and
(xvi) He or she must have first-aid knowledge of hunting in the area.421
The hunting guide is strictly liable for the following duties:
(xvii) Making his or her clients respect the regulations on hunting and preservation of fauna;
(xviii) Protecting his or her clients from dangerous animals;
(xix) Executing wounded animals; and
(xx) Promoting the sport characteristics of hunting.422
The permit for importation, exportation and re-exportation of any wild animal—even if it is also domesticated—is delivered by the managing organ (CITES) in charge of fauna.423 All
419 Decree No. 014 of April 29, 2004, Concerning Measures for the Implementation of Law No. 82-002 of May, 1982, Related to the Regulation of Hunting, Article 23-24, 31-32 (http://www.leganet.cd/Legislation/Droit%20economique/Chasse/A041.29.04.2004.htm). 420 Decree No. 014 of April 29, 2004, Concerning Measures for the Implementation of Law No. 82-002 of May, 1982, Related to the Regulation of Hunting, Article 3-4 (http://www.leganet.cd/Legislation/Droit%20economique/Chasse/A041.29.04.2004.htm). 421 Decree No. 014 of April 29, 2004, Concerning Measures for the Implementation of Law No. 82-002 of May, 1982, Related to the Regulation of Hunting, Article 45-46 (http://www.leganet.cd/Legislation/Droit%20economique/Chasse/A041.29.04.2004.htm). 422 Decree No. 014 of April 29, 2004, Concerning Measures for the Implementation of Law No. 82-002 of May, 1982, Related to the Regulation of Hunting, Article 54 (http://www.leganet.cd/Legislation/Droit%20economique/Chasse/A041.29.04.2004.htm). 423 Decree No. 014 of April 29, 2004, Concerning Measures for the Implementation of Law No. 82-002 of May, 1982, Related to the Regulation of Hunting, Article 41 (http://www.leganet.cd/Legislation/Droit%20economique/Chasse/A041.29.04.2004.htm).
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hunting permits should be submitted according to the CITES convention.424 The Minister of Hunting is the only one with authority to produce such permits.425
Finally, under the Order, the meat from animals slaughtered in legitimate defence or pursuant to an administrative permit cannot be sold. Rather, it should be distributed free of charge to the population residing in the immediate vicinity of the area of slaughter.426 2.2 Challenges to legislation
One shortfall of the constitutional reservation described in section 2.1.1 above is that the implementation of the national legislation in relation to forests, hunting and fishing as well as the environment, the conservation of nature and the catching of wild animals, is “subject to the exclusive competence of the provinces.” 427 Although the Congolese Constitution purports to be a statutory document to which all other forms of regulation are subsidiary, this clause— and similar clauses in the Hunting Law and Order—defer to the regional governments of the provinces in actuality.
The Criminal Code does not include the illegal wildlife trade as a criminal offence. Rather, the Congolese penal code only covers crimes of property related to the killing or damaging of domestic animals and cattle owned by third parties. Thus, under the Criminal Code, poaching is not a specifically enumerated offence, despite the fact that it is an activity generally undertaken by criminal syndicates and armed terrorist organisations such as the Lord’s Resistance Army, who pose major threats to the DRC’s vulnerable wildlife.428
2.3 Species-specific legislation
Under Congolese domestic law, the only available legislation aimed at protecting an individual species concerns the African grey parrot (or grey parrot), which is found in the rainforests of the DRC and is one of the most intelligent species of bird.
2.3.1 Grey parrot legislation
Formerly widespread across much of Africa, grey parrots are now threatened throughout much of their habitat due to extensive deforestation and trapping for the wild bird trade. Rarer than previously believed, in 2012 the African grey parrot was upgraded from the categorisation of “Near Threatened” to “Vulnerable” on the IUCN Red List of Threatened Species, which categorization it retains on the 2013 Red List. 429 A recent analysis suggests up to 21% of the global grey parrot population may be taken from the wild annually, primarily for the pet trade. The African grey parrot is listed on Appendix II of CITES,430 of which the DRC is a member party. This requires that exports be accompanied by a permit issued by a national authority and that a finding be made that the export is not detrimental to the species
424 Decree No. 014 of April 29, 2004, Concerning Measures for the Implementation of Law No. 82-002 of May, 1982, Related to the Regulation of Hunting, Article 42-43 (http://www.leganet.cd/Legislation/Droit%20economique/Chasse/A041.29.04.2004.htm). 425 Decree No. 014 of April 29, 2004, Concerning Measures for the Implementation of Law No. 82-002 of May, 1982, Related to the Regulation of Hunting, Article 44 (http://www.leganet.cd/Legislation/Droit%20economique/Chasse/A041.29.04.2004.htm). 426 Decree No. 014 of April 29, 2004, Concerning Measures for the Implementation of Law No. 82-002 of May, 1982, Related to the Regulation of Hunting, Article 37 (http://www.leganet.cd/Legislation/Droit%20economique/Chasse/A041.29.04.2004.htm). 427 The Constitution of the Democratic of the Congo 2005, Article 202(25) (http://www.oie.int/doc/ged/D11112.PDF). 428 Kara Moses, Lord's Resistance Army funded by elephant poaching, report finds, The Guardian, June 4, 2013, available at http://www.theguardian.com/environment/2013/jun/04/lords-resistance-army-funded-elephant-poaching. 429 http://www.iucnredlist.org/details/22724813/0 430 http://www.cites.org/eng/app/appendices.php
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in the wild. With exports totalling more than 350,000 specimens from 1994–2003, the grey parrot is one of the most heavily traded CITES-listed bird species. In response to continuing population decline and evidence of an unsustainable illegal trade, CITES recommended an export quota for wild live specimens of grey parrot for the DRC of 5,000. While the DRC has not yet submitted its annual reports for 2010, 2011 and 2012, a 15 November 2013 CITES report indicates that this quota was exceeded for 2009 and 2010.431
In 2001, the DRC enacted Ministerial Order No. N°CAB/ MIN/ AFF.ENV.DT/124/SS/2001 of 16 March 2001, which sets forth restricted hunting periods for the grey parrot in different regions in the DRC. The stated purpose of the Order is to provide further protection for the grey parrot, a bird protected under the Hunting Law, to ensure the long-term sustainability of the species.432
2.4 Additional information
According to the World Parrot Trust, local conservation efforts in the DRC are being stymied by state-level corruption. For instance, in 2010, the World Parrot Trust assisted with the confiscation of 500 grey parrots in the DRC and provided guidance on care and rehabilitation for their release into the wild. Corrupt government officials re-confiscated the birds before they could be released and returned them to the illegal bird traders, however.433
3. PENALTIES
3.1 Ordinance-Law 69-041 of 22 August 1969 on the Conservation of Nature (the “C ns vat n aw”)
Whoever destroys a wild animal in contravention of the Conservation Law shall be punished by penal servitude of one month to one year and a fine of ten to one hundred Zaires (it is worth noting that although the law itself provides for penalties in Zaires, this is an obsolete currency—the DRC now uses the Franc Congolais (CDF), and as such, this penalty is equivalent to .10 CDF, or ≤ .01 USD). If the animal is a gorilla, elephant, rhino, giraffe, okapi, zebra, buffalo, hippo, giant forest hog, warthog, lion, leopard, cheetah, greater kudu, an impala, an antelope, an antelope bongo, a topi antelope, or an oréotrague sututunga, the prison sentence shall be one year to ten years.
If the animal has total or partial protection as set out in Annexes I and II to the Decree of 21 April 1937 on hunting and fishing, the fine will be a thousand Zaires (1.00 CDF, or ≤ .01 USD).
3.2 Order No. 056 March 28, 2000 CAB/MIN/AFF-ECNPF/01/100 of Regulating International Trade in Endangered Species of Wild Fauna and Fauna (CITES)
Agents of the CITES Management Authority and custom officers are responsible for identifying, investigating and prosecuting violations of the provisions of this Order and as
431 http://www.cites.org/eng/notif/2013/E-Notif-2013-051.pdf 432 Ministerial Order No. CAB/MIN/AFF.ENV.DT/124/SS/2001 March 16, 2011, http://www.leganet.cd/Legislation/Droit%20economique/Chasse/AM.124.2001.16.03.2001.htm. 433 http://www.parrots.org/index.php/ourwork/learn_more/grey_parrot/
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such, they are empowered to commit any acts authorised by law to facilitate the achievement of this mission.434
Violations of this Order are punishable by a fine of $1.00-$20.00 USD, including the following acts:435
The import, introduction from the sea, export or re-export without a licence or appropriate CITES certificates, any specimen of one governed by this Decree species;
The possession, purchase, offer to purchase, acquisition for commercial purposes, use for profit, exposure to the public for commercial purposes, sale, offering for sale and transportation for the sale of any specimen of a species included in the Appendices to this Order in violation of this Order;
The obstruction of or interference with the action of the CITES Management Authority or any person acting on its behalf or authority in the exercise of powers and functions conferred on him or her under this Order;
The use of species specimens listed in Annex 1 for purposes other than those listed on the authorisation given at the issuance of the import permit or subsequently;
The use of a permit or certificate for any specimen other than that for which it was issued;
Non-compliance with conditions specified in a licence or certificate issued to him under this Order;
The use of a permit or certificate that is fake, forged or invalid, or altered without authorisation; and
The transport of a living specimen in a way that does not minimise the risk of injury, illness or cruel treatment.
When violations of this Order are committed by a legal entity, the fines are tripled.436
The Secretary General for the Environment, Nature Conservation, Fisheries and Forestry is charged with implementation of this Order.437
3.3 Law No. 82-002 Ma 28, 1982, n H nt ng R g lat ns (“Th H nt ng aw”)
The State Commissioner has the power to delegate the management and organisation of hunting activities to a specialised agency; the rangers of national parks and wildlife reserves
434 Order No. 056 March 28, 2000 CAB/MIN/AFF-ECNPF/01/100,Article 40 (http://www.leganet.cd/Legislation/Droit%20administratif/Environnement/A.056.28.03.2000.htm). 435 Order No. 056 March 28, 2000 CAB/MIN/AFF-ECNPF/01/100, Article 41 (http://www.leganet.cd/Legislation/Droit%20administratif/Environnement/A.056.28.03.2000.htm). 436 Order No. 056 March 28, 2000 CAB/MIN/AFF-ECNPF/01/100, Article 42 (http://www.leganet.cd/Legislation/Droit%20administratif/Environnement/A.056.28.03.2000.htm). 437 Order No. 056 March 28, 2000 CAB/MIN/AFF-ECNPF/01/100, Article 41 (http://www.leganet.cd/Legislation/Droit%20administratif/Environnement/A.056.28.03.2000.htm).
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are police officers.438 The Hunting Law contains both civil and criminal penalties. For example, any violation of the Hunting Law or its implementing measure is punishable by a maximum of 5 years’ imprisonment and/or a fine of 5 to 50,000 Zaires (.01 CDF, or ≤ .01 USD to 50.00 CDF, or .05 USD), and these penalties are doubled if a violation is committed:
In a wildlife reserve, hunting area or national park;
By a government agent or person in charge of a hunting tourism company; or
By a person who has contravened the Hunting Law or its implementing orders in the previous two years.439
Penalties are doubled in the case of the violation of restricted hunting areas or periods, and the legislation presumes guilt in the following situations:
Where a person is found in possession of a fully or partially protected animal, dead or alive, he or she is deemed to have captured or killed the animal;
Where a person is found at night outside of urban areas in possession of a hunting weapon and a frontal lamp or a lamp that has been modified to be fixed to the head or hair he or she is presumed to have hunted with the aid of an illuminating device; and
Where a person is caught in the act of hunting without a proper permit (i.e., poaching), he or she is presumed to have committed the crime and shall pay triple the tax established for obtaining the respective permit, without prejudice to other criminal penalties.440
3.4 Decree No. 014 of April 29, 2004, Concerning Measures for the Implementation of Law No. 82-002 of Ma , 1982, R lat t th R g lat n H nt ng (th “O ”)
The Order includes criminal provisions, such as the requirement that hunting guides are responsible for all offences committed by their clients during a hunting expedition organised or guided by them. Although a hunting guide is responsible for all offences committed by his or her clients during a hunting expedition he or she has organised or guided, no sentence of criminal imprisonment can be pronounced against him or her if he or she immediately informs the competent administrative authority of the fault, and if it is established after investigation that the offence was not committed by him or her, under his or her orders, or with his or her consent. If it is established that the hunting guide has allowed his or her clients to hunt in violation of the Order, the licence can be withdrawn without prejudice. In the event of a repeat offence, the licence is necessarily withdrawn.441
Any violation of the regulation on hunting committed by a hunting guide leads to the immediate suspension of his or her licence. If there is a conviction and sentence, the licence will be withdrawn permanently. When the offence is committed during a hunting expedition,
438 Order No. 056 March 28, 2000 CAB/MIN/AFF-ECNPF/01/100, Articles 10 and 11 (http://www.leganet.cd/Legislation/Droit%20administratif/Environnement/A.056.28.03.2000.htm). 439 Law No. 82-002 of May 28, 1982, on Hunting Regulations, Articles 10, 89 (http://faolex.fao.org/docs/pdf/cng4275.pdf). 440 Law No. 82-002 of May 28, 1982, on Hunting Regulations, Articles 86, 87 (http://faolex.fao.org/docs/pdf/cng4275.pdf). 441 Decree No. 014 of April 29, 2004, Concerning Measures for the Implementation of Law No. 82-002 of May, 1982, Related to the Regulation of Hunting, Article 62 (http://www.leganet.cd/Legislation/Droit%20economique/Chasse/A041.29.04.2004.htm).
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the competent authorities may stop the expedition immediately, without prejudice to the sanctions applicable by law.442
All violations of the law related to the protection of flora and fauna are punishable with either imprisonment for up to five years or a fine of 5 to 50,000 Zaires (.01 CDF, or ≤ .01 USD to 50.00 CDF, or .05 USD). The responsibility for enforcement of the Hunting Law rests with the General Secretary of hunting and the General Delegate administrator at the Congolese Institute for the Conservation of Nature (Institut Congolais pour la Conservation de la Nature).443
4. ANCILLARY LEGISLATION
4.1 The Criminal Code of 2004
The Criminal Code enacted by the DRC in 2004 provides that it is a criminal offence for any person to cruelly and unnecessarily kill or seriously injure any cattle or other domestic or tame animal owned by a third party.444 Beyond that, however, it does not create specific offences or penalties for illegal poaching and hunting activities. Specific offences and their penalties are summarised in section three below.
4.2 U.N. Security Council Resolution No. 2136 (S/RES/2136 (2014))
On 30 January 2014, the United Nations Security Council unanimously adopted Resolution 2136 (2014) under Chapter VII of the United Nations Charter (the “U.N. Resolution”). The U.N. Resolution renewed an arms embargo and related sanctions imposed on the DRC until 1 February 2015. While the Resolution’s main goal is to condemn all armed groups in the eastern Congo area and demand that the militias and paramilitary groups operating in that area cease violence, disband, and demobilise children from their ranks, the U.N. Resolution also expressly mentions the “linkage between the illegal exploitation of natural resources, including poaching and illegal trafficking of wildlife, illicit trade in such resources, and the proliferation and trafficking of arms is one of the major factors fuelling and exacerbating conflicts in the Great Lakes region of Africa.” Accordingly, the U.N. Resolution now applies the sanctions it previously adopted to “individuals or entities supporting armed groups in the DRC through illicit trade of natural resources, including gold or wildlife as well as wildlife products,” not just to paramilitary and militia groups.445
4.3 Act No. 06/014 of 12 June, 2006, Authorizing the Ratification by the Democratic Republic of the Congo to the United Nations Convention Against Corruption
Act No. 16/014 ratifies the United Nations Convention Against Corruption, which seeks to: (1) promote and strengthen measures to prevent and combat corruption more efficiently; (2) promote, facilitate, and support cooperation and technical assistance for the prevention of
442 Decree No. 014 of April 29, 2004, Concerning Measures for the Implementation of Law No. 82-002 of May, 1982, Related to the Regulation of Hunting, Article 64-66 (http://www.leganet.cd/Legislation/Droit%20economique/Chasse/A041.29.04.2004.htm). 443 Decree No. 014 of April 29, 2004, Concerning Measures for the Implementation of Law No. 82-002 of May, 1982, Related to the Regulation of Hunting, Article 69(http://www.leganet.cd/Legislation/Droit%20economique/Chasse/A041.29.04.2004.htm). 444 See Code Penal Congolais, Article 114. (http://www.ilo.org/dyn/natlex/docs/SERIAL/69343/69050/F279894825/Code%20penal%20(a%20jour%202004).pdf. 445 U.N. Security Council Resolution No. 2136 (S/RES/2136 (2014) (http://www.un.org/News/Press/docs//2014/sc11268.doc.htm).
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corruption and the fight against it; (3) promote integrity, accountability, and proper management of public affairs and public property.446
4.4 Decree No. 022 of 14 February, 1974, Creating a Wildlife Reserve in Areas of Bondo and Ango
This Decree creates a special reserve called “Wildlife Bomu.” All hunting of wildlife, capture of animals, destruction or removal of eggs, carrying of firearms (except under a permit issued by the Reserve administration), fishing, and the cutting, picking or acquisition of food from or damage to forest are all prohibited within the Reserve. The law incorporates the penalties of the Conservation Law by reference.
4.4.1 Penalties and enforcement
The ICCN is responsible for the management and monitoring of Wildlife Bomu and all national parks in the DRC. The ICCN is staffed by park rangers who patrol the parks collecting snares and relocating trackers and trap makers that poachers depend on to catch animals. The ICCN rangers are armed and have authority to arrest illegal hunters and poachers. Violations are penalised pursuant to the penalties established by the Conservation Law (see above).
4.5 Ministerial Order No. 024 of February 14, 1974, Establishing a Hunting Area in a Reserved Area of Rutshuru
This Order creates a reserved hunting area in part of Rutshuru, a Territory in North Kivu province in eastern DRC. In Rutshuru Hunting Area, hunting is permitted only for holders of (1) large resident permits and (2) general permits for non-residents covered by special permits issued by the curator of the estate after payment of a fee, not less than 20 Zaires, to be fixed by the Department of Agriculture and the domain administration on an annual basis.
The order imposes the following restrictions within the Hunting Area:
The curator of the field assigns to each hunter the block or blocks in which he or she is authorised to hunt, and the hunter may not hunt in that area more than seven days in a row. However, hunters, corporate clients, and holders of special hunting tourism permits hunting elephants are permitted to stay in the area for twenty-one (21) days, but must pay the state fee depending upon the length of their stay.447
Holders of a special permit may slaughter animals listed in Schedule 1 to the Order, after payment of the fees listed in the table.448
Each hunter or group of hunters in the field must be accompanied by a person designated for that purpose by the Registrar or his delegate.449
446 Law No. 06/014 of June 12, 2006 (http://www.leganet.cd/Legislation/JO/2006/JO.01.07.2006.L.06.14.pdf). 447 Ministerial Order No. 024 of February 14, 1974, Establishing a Hunting Area in a Reserved Area of Rutshuru, Article 4 (http://www.droitcongolais.info/files/7.61.3.3.7.-Arrete-du-14-fevrier-1974_Domaine-de-chasse-reservee_Rutshuru.pdf). 448 Ministerial Order No. 024 of February 14, 1974, Establishing a Hunting Area in a Reserved Area of Rutshuru, Article 5 (http://www.droitcongolais.info/files/7.61.3.3.7.-Arrete-du-14-fevrier-1974_Domaine-de-chasse-reservee_Rutshuru.pdf). 449 Ministerial Order No. 024 of February 14, 1974, Establishing a Hunting Area in a Reserved Area of Rutshuru, Article 7 (http://www.droitcongolais.info/files/7.61.3.3.7.-Arrete-du-14-fevrier-1974_Domaine-de-chasse-reservee_Rutshuru.pdf).
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The use of rifled arms of less than 8mm calibre, weapons of war, and muzzle- loaded weapons is prohibited, and unscored, unsophisticated ballettes may only be used for shooting game birds, small game animals, and antelope.450
It is forbidden to hunt animals by motor vehicle.451
Hunting is permitted year-round one-half hour before sunrise and until sunset.452
Outside the immediate food needs of the hunter, edible remains of slaughtered animals are to be distributed free to residents of localities in the area.453
Any animal injured shall, as far as possible, be chased and shot before the hunter can shoot another animal. Any injured animal shot and not found must be reported and will count towards the number of animals for which slaughter was approved and payment for slaughter will be due.454
Area inhabitants retain their customary rights to hunt for their own food needs; however, they must hold a personal licence and may hunt only unprotected animals and use only allowed traditional means of hunting.455
The Department of Agriculture and domain administration will determine, annually, the species and the maximum number of animals that may be slaughtered.456
4.5.1 Penalties and enforcement
Violations are penalised pursuant to the penalties established by the Conservation Law (see above).
4.6 Ministerial Order No. 045/CM/ECN/92 of May 2, 1992, Establishing and Defining a Natural Reserve Called Okapi
This Order creates a nature reserve in areas of Mambasa, Wama, and Watsa, Haut-Zaire, called “Okapi Wildlife Reserve” which covers 1,372,625 hectares. The following are prohibited in the Okapi Wildlife Reserves: (1) to introduce any animal or plant species, firearms, traps or hunting devices, to hold or transport wild animals living or dead, their skin or trophies, their meat or any other by-product of wildlife; (2) to pursue, hunt, capture, destroy, scare or disturb, in any way, any species of wild animals, even animals that are
450 Ministerial Order No. 024 of February 14, 1974, Establishing a Hunting Area in a Reserved Area of Rutshuru, Article 6 (http://www.droitcongolais.info/files/7.61.3.3.7.-Arrete-du-14-fevrier-1974_Domaine-de-chasse-reservee_Rutshuru.pdf). 451 Ministerial Order No. 024 of February 14, 1974, Establishing a Hunting Area in a Reserved Area of Rutshuru, Article 8 (http://www.droitcongolais.info/files/7.61.3.3.7.-Arrete-du-14-fevrier-1974_Domaine-de-chasse-reservee_Rutshuru.pdf). 452 Ministerial Order No. 024 of February 14, 1974, Establishing a Hunting Area in a Reserved Area of Rutshuru, Article 9 (http://www.droitcongolais.info/files/7.61.3.3.7.-Arrete-du-14-fevrier-1974_Domaine-de-chasse-reservee_Rutshuru.pdf). 453 Ministerial Order No. 024 of February 14, 1974, Establishing a Hunting Area in a Reserved Area of Rutshuru, Article 10 (http://www.droitcongolais.info/files/7.61.3.3.7.-Arrete-du-14-fevrier-1974_Domaine-de-chasse-reservee_Rutshuru.pdf). 454 Ministerial Order No. 024 of February 14, 1974, Establishing a Hunting Area in a Reserved Area of Rutshuru, Article 11 (http://www.droitcongolais.info/files/7.61.3.3.7.-Arrete-du-14-fevrier-1974_Domaine-de-chasse-reservee_Rutshuru.pdf). 455 Ministerial Order No. 024 of February 14, 1974, Establishing a Hunting Area in a Reserved Area of Rutshuru, Article 12 (http://www.droitcongolais.info/files/7.61.3.3.7.-Arrete-du-14-fevrier-1974_Domaine-de-chasse-reservee_Rutshuru.pdf). 456 Ministerial Order No. 024 of February 14, 1974, Establishing a Hunting Area in a Reserved Area of Rutshuru, Article 13 (http://www.droitcongolais.info/files/7.61.3.3.7.-Arrete-du-14-fevrier-1974_Domaine-de-chasse-reservee_Rutshuru.pdf).
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considered to be harmful, except in case of legitimate defence; or (3) to engage in exploitation of precious materials or exercise any activity that could alter the animal’s habitat.
The penalties of the Conservation Law are incorporated by reference for violation of the restrictions set forth by this Order.
4.6.1 Penalties and enforcement
The ICCN is responsible for the management and monitoring of the Okapi Wildlife Reserve. Violations are penalised pursuant to the penalties established by the Conservation Law and the Hunting Law (see above).
4.7 Departmental Decree No. 069 of December 4, 1980, Provisions Relating to the Issuance of Permits and Lawful Detention or Permits for Import/Export
The Decree authorises the legitimate detention of any living non-domesticated animal, any bird, or any trophy by the State Commissioner for the Environment, Nature Conservation, and Tourism or his representative until payment is made of the fee specified in Section 16 of Ordinance 79-244 of 16 October 1979.457
The following may exercise these detention rights: (1) the Secretary of State for the Environment, Nature Conservation, and Tourism, in the absence of the State Commissioner, for any detention in the city of Kinshasa; (2) the urban coordinator of the Environment, Nature Conservation, and Tourism in the city of Kinshasa and only for the holding of any unprotected animal; (3) the Regional Coordinator of the Environment, Nature Conservation and Tourism for any detention in his protected detention areas; (4) the sub-regional coordinator of the Environment, Nature Conservation, and Tourism in his respective sub- region and only for the holding of any unprotected animal; and (5) the Executive Officer at the Institute for the Zairian conservation or conservative, as appropriate, for the detention of any animal or bird obtained in a park, a field, or a reserve.458
Licensing of the import or export of any non-domestic animal, any bird, any insect, or any product or by-product of a dead animal falls within the exclusive jurisdiction of the State Commissioner for the Environment, Nature Conservation and Tourism.459
4.7.1 Penalties and enforcement
Offences shall be punished in accordance with the Decree of April 24, 1937 on hunting and fishing and Article 25 of Ordinance 79-244 of October, 16 1979, without prejudice to criminal and disciplinary sanctions.
457 Departmental Order N°069 of 4th December 1980 setting the provisions relating to the delivery of legitimate possession permits and importation and exportation permits, Article 1 (http://www.leganet.cd/Legislation/Droit%20economique/Chasse/A041.29.04.2004.htm). 458 Departmental Order N°069 of 4th December 1980 setting the provisions relating to the delivery of legitimate possession permits and importation and exportation permits, Article 2 (http://www.leganet.cd/Legislation/Droit%20economique/Chasse/A041.29.04.2004.htm). 459 Departmental Order N°069 of 4th December 1980 setting the provisions relating to the delivery of legitimate possession permits and importation and exportation permits, Article 4 (http://www.leganet.cd/Legislation/Droit%20economique/Chasse/A041.29.04.2004.htm).
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5. JUDICIAL PROCESS AND CAPACITY
5.1 Judicial process
There is a dearth of information available regarding the judicial process in the DRC, but a limited overview of the judicial process is provided herein.
The Congolese judiciary is currently undergoing several reforms to bring it into compliance with the terms of the Constitution of 2006.460 The Constitution does provide alleged violators of the law with rights to due process during arrest and detention, a presumption of innocence, a right to a fair trial, and a prohibition against retroactive laws.461
5.1.1 Existing Court System
Under the existing court system, criminal cases must be initiated by a representative of the state or a public prosecutor (officier du ministère public or magistrat debout) in one of four places: (1) the national department of public prosecutions, the Parquet General de la République, associated with the Supreme Court; (2) the General Prosecutor’s office at the Court of Appeal level, the Parquet General près la Cour d’Appel, associated with the Court of Appeals; (3) the Prosecutor’s office at the Civil Court Level, the Parquet près le Tribunal de Grande Instance; or (4) the Tribunal de Paix, for crimes punishable by less than five years’ imprisonment.462
Notwithstanding the fact that there is a civilian criminal justice system, under the current system, cases involving civilians who commit crimes with “weapons of war” are subject to the jurisdiction of the military courts.463 The military justice system is divided into three levels: (1) Tribunal Militaire de Garnison; (2) Cour Militaire; and (3) Haute Cour Militaire.464 These courts are then supported by Auditorat Militaire de Garnison, Auditorat Militaire Supérieur and Auditorat Général, respectively.465 Given the lack of any operational civilian justice component, some areas of the DRC are served exclusively by the military justice system.466
460 Dunia Zongwe, François Butedi and Phebe Mavungu Clément. “The Legal System and Research of the Democratic Republic of Congo (DRC): An Overview.” 461 Dunia Zongwe, François Butedi and Phebe Mavungu Clément. “The Legal System and Research of the Democratic Republic of Congo (DRC): An Overview.” 462 International Bar Association and the International Legal Assistance Consortium. “Rebuilding courts and trust: An assessment of the needs of the justice system in the Democratic Republic of Congo.” August 2009. Accessed January 27, 2014. https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&ved=0CCcQFjAA&url=http%3A%2F%2Fwww.ibanet .org%2FDocument%2FDefault.aspx%3FDocumentUid%3D54396461-F637-4842-AD27- 416E63413AB9&ei=VurmUqTiLZHwoASLq4GIBw&usg=AFQjCNHirM- WcjK9ZSYacWEDf8DbrDRefw&sig2=Ea2oHyou6QgRbTxHPV9PhQ&bvm=bv.59930103,d.cGU. 463 Dunia Zongwe, François Butedi and Phebe Mavungu Clément. “The Legal System and Research of the Democratic Republic of Congo (DRC): An Overview.” 464 International Bar Association and the International Legal Assistance Consortium. “Rebuilding courts and trust: An assessment of the needs of the justice system in the Democratic Republic of Congo.” 465 International Bar Association and the International Legal Assistance Consortium. “Rebuilding courts and trust: An assessment of the needs of the justice system in the Democratic Republic of Congo.” 466 International Bar Association and the International Legal Assistance Consortium. “Rebuilding courts and trust: An assessment of the needs of the justice system in the Democratic Republic of Congo.”
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The existing court system provides a similar structure for civil matters. Cases may be initiated in the Tribunal de Paix, the local tribunals for each town and rural zone, or the Tribunal de Grande Instance (the Civil Court), the Court of Appeal, or the Supreme Court.467
5.1.2 Constitutional Structure
The court system, as provided in the Constitution, is drastically different.468 It imagines a judicial service counsel (Conseil Supérieur de la Magistrature), comprised of judicial officers and prosecutors. The courts are then divided into the following jurisdictions: (1) ordinary or judiciary (i.e. civil and criminal); (2) public law or administrative; and (3) constitutional. The highest court in the “ordinary” section, which would encompass the civil and criminal prosecution of violations of the wildlife laws, is the Court of Cassation (Cour de Cassation). The prosecutor for the Court of Cassation is the procureur général près la Cour de Cassation. Under the new justice system, the military justice system will become part of the Court of Cassation. At this point, this system is still aspirational and it seems unlikely to be implemented any time in the near future.469
5.2 Prosecutions
There is very little information available regarding prosecution rates in general in the DRC, including information regarding enforcement of the laws concerning wildlife.
In general, it appears that the DRC operates under a very corrupt system of government, and such corruption unfortunately extends to the judicial system.470
According to one news story, however, prosecution is not an effective deterrent to wildlife and ancillary crimes in the DRC because Congolese law “allows for foreigners caught poaching to be deported” rather than prosecuted.471 According to Major John Bonyoma, a judge in the Goma Military Court, “[d]eportation undermines the fight against poaching. Legislation should be applied scrupulously to protect the animals and arrest foreigners.”472 Furthermore, according to a 2005 Biennual Report submitted by the DRC to CITES, there had not been any criminal prosecution of significant CITES-related violations during the reporting period—1 January 2003 to 31 December, 2004—nor were there any court actions of any kind for any CITES-related violations during that period.473
467 International Bar Association and the International Legal Assistance Consortium. “Rebuilding courts and trust: An assessment of the needs of the justice system in the Democratic Republic of Congo.” 468 Dunia Zongwe, François Butedi and Phebe Mavungu Clément. “The Legal System and Research of the Democratic Republic of Congo (DRC): An Overview.” 469 International Bar Association and the International Legal Assistance Consortium. “Rebuilding courts and trust: An assessment of the needs of the justice system in the Democratic Republic of Congo.” 470 International Bar Association and the International Legal Assistance Consortium. “Rebuilding courts and trust: An assessment of the needs of the justice system in the Democratic Republic of Congo.” 471 Taylor Toeka Kakala, “Congolese soldiers said to trade in illegal ivory.” Radio Netherlands Worldwide. July 30, 2013. http://www.rnw.nl/africa/article/congolese-soldiers-said-trade-illegal-ivory. 472 Kakala. “Congolese soldiers said to trade in illegal ivory.” 473 Dunia Zongwe, François Butedi and Phebe Mavungu Clément. “The Legal System and Research of the Democratic Republic of Congo (DRC): An Overview.”
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Finally, a significant issue with the enforcement of the DRC’s wildlife legislation may not be entirely the fault of the judicial system; it is likely also due to rangers’ inability to catch violators of these laws, whether due to the geographic size and difficult terrain of the areas they patrol, or to the fact that poachers are often heavily armed.474 News stories also suggest that military and national police have been involved in poaching themselves475 or have at least organised and condoned it,476 suggesting that there is little enforcement support for park rangers.
5.3 Appeals
Although it seems likely that there is a right of appeal within the court systems, no information explaining how the appeal process works or in what contexts appeals are mandatory, permissible, and impermissible, could be found.
5.4 Judicial capacity
Judicial capacity-building would be both advisable and incredibly useful in the DRC. As the International Bar Association and the International Legal Assistance Consortium noted in their August 2009 report, “Rebuilding courts and trust: An assessment of the needs of the justice system in the Democratic Republic of Congo” and outlined in more detail therein, “the DRC’s judicial sector continues to suffer from under-investment, corruption, and a severe lack of resources and infrastructure.”477
More specifically, the report found that the major issues facing the judicial system in the DRC include the following, among others: (1) a small judicial budget; (2) a shortage of judges and deficiencies in their training; (3) corruption; (4) a lack of independence of the executive; (5) a lack of enforcement of judgments; (6) inferior infrastructure and means of communication; (7) geographical restraints; and (8) the prevalence of “traditional” justice.478
Although the 2006 Constitution contains a contemplated judicial framework, the DRC lacks the resources, initiative, and knowledge to put these structures into effect. The corruption and impunity in the justice sector leads to a lack of trust in the judiciary, a failure to prosecute cases, or, when prosecuted, an inadequate result. Attention to and support in this area would likely significantly improve the efficacy of the legislation discussed above by making prosecution a more effective deterrent to wildlife crimes.
474 Wildlife Conservation Society. “WCS Documents Major Decline in Democratic Republic of Congo’s Last Large Forest Elephant Population,” February 28, 2013, accessed January 27, 2014. http://www.wcs.org/press/press-releases/drc-elephant-decline.aspx. Kasper Agger and Jonathan Hutson. “Kony's Ivory: How Elephant Poaching in Congo Helps Support the Lord's Resistance Army.” Enough: The Project to End Genocide and Crimes Against Humanity. June 3, 2013, accessed January 27, 2014. http://www.enoughproject.org/reports/konys-ivory-how-elephant-poaching-congo-helps-support-lords-resistance-army. 475 “Congo Elephants, Rhinos Falling to Poachers' Guns.” Environment News Service. January 24, 2005, accessed January 27, 2014. http://ens-newswire.com/ens/jan2005/2005-01-24-03.asp 476 Pete Jones. “Gold and poaching bring murder and misery to Congolese wildlife reserve.” The Guardian. March 31, 2013. Accessed January 27, 2014. http://www.theguardian.com/world/2013/mar/31/gold-poaching-murder-congo-wildlife. 477 "Rebuilding courts and trust: An assessment of the needs of the justice system in the Democratic Republic of Congo: An assessment of the needs of the justice system in the Democratic Republic of Congo, August 2009, An International Legal Assistance Consortium and International Bar Association Human Rights Institute Report" Accessed February 6, 2014. (http://www.legalbrief.co.za/article.php?story=20090810144211999). 478 Dunia Zongwe, François Butedi and Phebe Mavungu Clément. “The Legal System and Research of the Democratic Republic of Congo (DRC): An Overview.”
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6. CONCLUSIONS
6.1 Effectiveness of legislation
It is noteworthy that according to the most recent published information from CITES, the DRC is classified in Category 1, as a country with legislation that is believed generally to meet the requirements for implementation of CITES.479 The Conservation Act, the Hunting Law and the CITES Order together provide a comprehensive body of legislation that covers all aspects of the illegal trade of wildlife in the DRC. However, it is unclear how these various laws work together, or whether the various institutions and authorities charged with their implementation and enforcement are working in coordination. The legislation is likely not being effectively enforced because the DRC has neither the financial resources nor reach and capabilities to implement this legislative framework. Abuses of the wildlife laws occur in remote areas that have little state infrastructure and are plagued by civil conflict and the scourge of violent paramilitary groups that terrorise the civilian population. Although precise numbers are unavailable, the number of guards/rangers in national parks and reserves appears to be small, and these guards/rangers are underfunded and under-armed relative to the poachers and the paramilitary groups who support them. Without funding from international conservation groups and NGOs, even these Congolese guards/rangers would not be able to operate and make a living.
Furthermore, regional and local knowledge about the DRC’s commitment to conservation remains scant. A recent study by the United Nations Environment Program (“UNEP”) regarding “bush meat” sold at markets confirmed that only 0.5% of the individuals selling this meat knew about CITES and its requirements. During various missions throughout the country, UNEP staff members frequently encountered locals transporting bush meat in the open and received numerous offers to purchase bush meat in villages.480
The monetary penalties imposed by the Conservation Law, the Hunting Law, and the CITES Order seem unduly small to serve as a real deterrent. Nor is it clear that fines required by these laws are actually collected. Given the rampant corruption in the DRC, which likely extends to those charged with enforcement of these laws, it is unclear how often violators are prosecuted.
The problems faced by the DRC in combatting the illegal trade of wildlife are not due to the paucity or inadequacy of its existing laws, but rather to a severe lack of available resources and the crippling force of the DRC’s other problems, such as poverty, civil hostilities, and corruption. It is worth noting, however, that several sources have referred to a new piece of legislation on conservation that is expected to be finalised and enacted in the near future, and which would update and replace the original Conservation Law of 1969.481
479 CITES website, accessed 26 January 2014, http://www.cites.org/eng/com/sc/62/E62-23.pdf. 480 Evaluation Environnementale Post-Conflit de la Republique Democratiqu du Congo, November, 2012 (http://www.unep.org/DRCongo/). 481 Evaluation Environnementale Post-Conflit de la Republique Democratique du Congo, November, 2012 (http://www.unep.org/DRCongo/).
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6.2 Recommendations
Given the on-going conflict and widespread corruption in the DRC, it may not be the best use of resources to pursue significant action in the DRC at this time. With that caveat, it is clear that the DRC requires significant effort and assistance in the following areas: (1) the drafting and enactment of more comprehensive legislation with higher penalties; (2) more resources devoted to law enforcement; (3) increased prosecution and judicial enforcement of wildlife- related violations and the imposition of penalties; and (4) more stringent reporting and tracking of information related to wildlife and wildlife crimes.
As this report discusses in more detail above, the DRC’s existing legislative framework does not present a sufficient deterrent to wildlife crimes. The penalties imposed by the DRC’s laws and regulations are not significant, and aliens who violate these laws may be deported to their country of citizenship rather than prosecuted in the DRC. To protect its vulnerable wildlife more effectively, the DRC must adopt legislation with higher penalties, and gaining assistance in the drafting of this important legislation would be beneficial in a country with such a struggling, decentralised Government.
The DRC experiences difficulties both with patrolling its reserves and preventing poaching, as well as with corruption among the officers charged with these duties. In fact, many news stories suggest that the military is actually involved in perpetrating crimes against wildlife in the DRC. The DRC requires greater (and more effective) patrolling to protect wildlife against poachers who often far exceed rangers and other law enforcement officers in terms of their numbers and the quality and volume of their weaponry. Training and funding for additional patrolling would likely be of great assistance in combatting poaching and in apprehending existing poachers in the DRC.
Corruption and lack of funding are also significant barriers to judicial enforcement of wildlife laws in the DRC. Reports indicate that members of the judiciary are paid only a small salary for their services, and that many individuals accept bribes for additional money. In addition, it is apparent that other branches of the Government have significant control over the judiciary, thus preventing any truly independent decision-making. Additional funding and effort to combat the corruption in the Government would likely be of significant help in ensuring that violations of wildlife laws are prosecuted and penalties imposed.
Finally, as this report has previously discussed, the DRC has not provided a report to CITES in nearly ten years. In addition, the DRC’s 2005 report to CITES suggests that there is little to no tracking of wildlife or illegal wildlife violations. To understand more fully the issues faced in relation to wildlife conservation in the DRC, the DRC needs to implement a more efficient system for tracking wildlife, as well as tracking violations of the legislation that was implemented to protect Congolese wildlife. Financial and technical assistance in creating and implementing such a system would be of great assistance in furthering this important goal.
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KENYA
Team Leader and Editor - Alexander Monk - DLA Piper
Team Members - Ashley Anderson, Anna Furness, Victoria Rhodes, Ella Russell - DLA Piper
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1. EXECUTIVE SUMMARY
Wildlife-related crimes have been widespread in Kenya, with 95% occurring outside the National Parks protected areas.482 Kenya has been criticised in open forums and particularly at the CITES Conference of the Parties in March 2013483 for its failure to tackle wildlife crimes effectively. Kenya, Tanzania and South Africa have been identified as the three countries of greatest concern for trafficking of ivory out of Africa and it has been reported that more ivory is moving through and out of Kenya, Tanzania and South Africa at the present time than any other countries in Africa.484
There is recognition at an international level that co-operation across the African nations, particularly those that share areas of National parkland such as the Amboseli-Kilimanjaro/ Magadi-Natron landscape would benefit wildlife conservation efforts.485 Whilst there has been some progress in this regard, with a joint census operating between Kenya and Tanzania,486 there can be little doubt that the effectiveness of efforts to preserve wildlife would be helped by more co-operation, particularly between adjoining African states.
A new piece of primary legislation, the Wildlife Conservation and Management Act, 2013487 ("New Act"), came into force in Kenya on 10 January 2014 following criticism of Kenya's previous law as "weak and antiquated".488 The New Act contains more severe punishments for wildlife offences than the previous legislation including creating four offences which are punishable by imprisonment, and which could potentially be classified as "serious crimes" within the meaning of the United Nations Office of Drugs and Crime ("UNODC")489 (meaning conduct constituting an offence punishable by a maximum deprivation of liberty of at least four years or a more serious penalty). However, it should be noted that there is an alternative punishment of a fine for each of these offences, which may mean that these are not in fact classified as serious crimes. The view that the legislation does not in fact create offences classifiable as "serious crimes" may be supported by the fact that the practice in Kenya has been to impose the fiscal penalty in preference to the custodial penalty, including in relation to the first reported prosecution under the New Act, which resulted in a fine.490 The
482 D. Kamweti, D. Osiro and D. A. Mwiturubani 'Nature and Extent of Environmental Crime in Kenya' (2009) accessed between 13 and 27 January 2014, available at: http://www.google.co.uk/url?sa=t&rct=j&q=&esrc=s&frm=1&source=web&cd=3&ved=0CEUQFjAC&url=http%3A%2F%2Fmercury.ethz .ch%2Fserviceengine%2FFiles%2FISN%2F111770%2Fipublicationdocument_singledocument%2Fecb23d15-68d1-400e-904a- 67d56b50aed6%2Fen%2FM166FULL.pdf&ei=D7vfUrmDLKOV7Qbp4ICoBA&usg=AFQjCNFKMTVT-nAJP3kqdvOqZuGlc9Qayg 483 Kibiwott Koross, "Kenya: CITES Convention ?Fails to Protect the African Elephant?" 20 March 2013, accessed between 13 and 27 January 2014, http://allafrica.com/stories/201303201434.html 484 C.Nellemann, R.K. (2013). "Elephants in the Dust", accessed on 27 January 2014 from http://www.unep.org/publications/contents/pub_details_search.asp?ID=6303 485 Tanzania Gateway, GTZ Wildlife Programme Tanzania, accessed between 13 and 27 January 2014, http://www.tanzaniagateway.org/docs/gtz_wildlife_programme_tanzania.pdf 486 Kenya Wildlife Service, "Kenyan and Tanzanian wildlife experts in joint aerial census in Amboseli", accessed between 27 January and 3 February 2014, http://www.kws.org/info/news/2013/24april2013tanzania.html 487 Legislation accessed in January 2014 available at: http://kenyalaw.org/kl/fileadmin/pdfdownloads/Acts/WildlifeConservationandManagement%20Act2013.pdf 488 WWF, "Statement of Elephant Killing in Kenya", accessed between 13 and 27 January 2014, https://worldwildlife.org/press- releases/statement-on-elephant-killing-in-kenya 489 Article 2, United Nations Convention Against Transnational Organised Crime and the Protocols Thereto. Accessed on 29 January 2014, http://www.unodc.org/documents/treaties/UNTOC/Publications/TOC%20Convention/TOCebook-e.pdf 490 BBC News "Togo arrests three over huge ivory haul" 29 January 2014 (accessed 29 January 2014, 13.49 GMT) http://www.bbc.co.uk/news/world-africa-25939731
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levels of fines which may be imposed under the New Act, whilst not as severe as a custodial sentence, are significant in the context of an average income of just under US$1,800 per annum in Kenya.
As well as the primary offences, the New Act also creates ancillary offences which are aimed at discouraging those who assist poachers and traffickers. The New Act creates rights for members of the public, including compensation for crop and property damage by wildlife, an obligation to offer public engagement, including public consultation in relation to the creation of national parks and reserves, and the right for members of the public to petition the court directly in relation to offenders. Whilst the effectiveness of the New Act is yet to be proven, it is a positive step following the criticism of the previous regime.
Kenya has been facing challenging issues in recent years including corruption and a significant lack of resources to provide an effective state prosecution service and judiciary. This has undoubtedly hampered efforts to effectively prosecute and sentence individuals for wildlife offences. Whilst in 2013 there have been examples of custodial sentences handed down to individuals convicted of wildlife offences, this does not appear to be a sentence which is widely or consistently imposed by the magistrates' courts in Kenya. In addition, these prosecutions were under the old legislation, with the New Act yet to be truly tested.
Although Kenya’s Government permits prosecution of crimes associated with or arising out of the illegal wildlife trade under ancillary legislation (such as dealing with the proceeds of illegal trade in wildlife under anti-money laundering laws), it seems the judiciary has been reluctant to prosecute under such ancillary legislation. Additionally, under the New Act, Kenya increased penalties for wildlife crimes so that they reflect penalties under ancillary legislation more closely, although not entirely. Accordingly, although prosecutors may consider bringing charges under ancillary legislation in relation to crimes associated with the illegal wildlife trade, it is unclear whether this has much impact on the illegal wildlife trade in Kenya in practice.
2. PRINCIPAL LEGISLATION
2.1 Legislation summary
2.1.1 The Wildlife (Conservation and Management) Act 1976491 ("the 1976 Act")
The 1976 Act was the principal domestic legislation in this area until the New Act came into force. It was implemented to consolidate wildlife legislation and was updated at various points.
Key elements of the 1976 Act included the establishment of the Kenya Wildlife Service ("KWS") and the provision of compensation for death or injury by an animal (provided no offence had been committed under the Act and the animal was not killed during 'normal wildlife utilisation activities'). The 1976 Act also contained specific additional restrictions in relation to the National Parks which aimed to ensure animals were not disturbed.
491 Legislation accessed in January 2014 at: http://faolex.fao.org/docs/pdf/ken7750.pdf
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Hunting, killing or trapping animals or dealing in, importing or exporting animal products without a licence was outlawed under the 1976 Act, and the domestic courts had the power to remove a licence from anyone who had contravened the 1976 Act.
Any conviction under the 1976 Act would be reported to the Director of the KWS but there is no clear evidence that this had a deterrent effect.
The 1976 Act implemented some of the CITES Convention, but not all of its requirements.492 In particular, it failed to designate at least one CITES Management Authority and one Scientific Authority. Kenya came under criticism at the CITES Conference of the Parties in March 2013 for its failure to implement legislation which complied with the convention, as well as in other open forums.493 Given the increase in poaching in Kenya in recent years, the Attorney General pushed for the New Act, which had been under discussion for some time, to be enacted.494
2.1.2 Wildlife Conservation and Management Act, 2013495 ("New Act")
The New Act gained assent on 24 December 2013 and came into force on 10 January 2014. The New Act repealed the existing legislation and is a much more comprehensive piece of legislation aimed to encourage local ownership of wildlife conservation and management, to encourage greater public participation, to make wildlife conservation benefit landowners and to sustain utilisation for future generations.496 One of the criticisms of the previous legislation was that the penalties did not act as a sufficient deterrent to poachers and other wildlife traffickers and the New Act is intended to address this. Under the New Act, the following offences are created which are particularly relevant to the trade in wildlife and several of which potentially conform to UNODC's definition of a "serious crime":
Offences in respect of endangered or threatened species or in relation to trophies in respect of endangered or threatened species for which the penalty is a fine of not less than KES20m (US$232,964.48497)498 and/or life imprisonment;499
492 CITES Website, http://www.cites.org/eng/com/sc/62/E62-23.pdf 493 Kibiwott Koross, "Kenya: CITES Convention ?Fails to Protect the African Elephant?" 20 March 2013, accessed between 13 and 27 January 2014, http://allafrica.com/stories/201303201434.html 494 Agfrey Mutambo "Pass wildlife bill before December, parliament urged", Daily Nation, Thursday 7 November 2013, accessed 31 January 2014 http://www.nation.co.ke/news/Pass-wildlife-bill-before-December/-/1056/2063498/-/10iup05/-/index.html 495 Legislation accessed in January 2014 available at: http://kenyalaw.org/kl/fileadmin/pdfdownloads/Acts/WildlifeConservationandManagement%20Act2013.pdf 496 Section 4 New Act 497 Applying a conversion rate of 0.0116482 USD to 1 KES on 28 January 2014 using http://www.xe.com/currencyconverter/convert/?Amount=20000000&From=KES&To=USD. This is the same for all conversions specified throughout this report. 498 It should be noted that Kenya is considered by WorldBank to be a "low income" nation, accessed 31 January 2014, http://data.worldbank.org/country/kenya. 499 Section 92 New Act
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Possession or dealing in a wildlife trophy without a permit for which the penalty is a fine of not less than KES1m (US$11,648.22) and/or imprisonment for not less than 5 years;500
Engaging in sport hunting or other recreational hunting. In relation to critically endangered mammals, the penalty for this is not less than KES20m (US$232,964.48) or life imprisonment. In relation to other endangered and vulnerable animals the penalty is KES5m (US$58,241.12) and/or 5 years' imprisonment;501
Hunting for bush meat trade or dealing in wildlife carries a penalty of KES200,000 (US$2,329.64) and/or not less than 1 year's imprisonment;502 and
Import and export of wildlife species. The penalties vary depending on the category of wildlife. For category A wildlife (for which the definition is not clear but the inference is that this refers to critically endangered mammals at least) the penalty is a fine of not less than KES10m (US$116,482.24) or not less than 5 years' imprisonment. For other wildlife, the penalty is a fine of not less than KES1m (US$11,648.22) and/or imprisonment of not less than 2 years.503
In addition to this, there are a number of ancillary offences created which are intended to help deter wildlife trafficking including:
Offences in connection with permits and licences. Carries a penalty of not less than KES200,000 (US$2,329.64) and/or not less than 1 year imprisonment;504
No aircraft to land in wildlife protected areas other than at a designated strip (other than aircraft used by KWS);505
Failure to comply with a lawful order from an authorised officer;506 and
Wildlife trophies, vehicles, equipment or other means of committing offences may be forfeited.507
500 Section 95 New Act 501 Section 96 New Act - it should be noted that other places in the legislation refer to sentences being "not less than" a certain time period but in this instance, just the time period is stated. 502 Section 98 New Act 503 Section 99 New Act 504 Section 91 New Act 505 Section 94 New Act 506 Section 101 New Act 507 Section 105 New Act
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Under the New Act compensation may be claimed in the event that death and personal injury is caused by wildlife.508 Also, for the first time, there is the ability to claim compensation for damage to crops and destruction of property.509 Whilst not directly impacting on wildlife trafficking, these provisions may help in brokering support locally for protection of wildlife. In addition to this, when new national parks, reserves or similar areas are being created, there is an emphasis on carrying out public consultations, which is helpful for ensuring that the local population is included in decisions which affect their surroundings.510 These communities are therefore more likely to be engaged and supportive.
The New Act has received positive feedback from international organisations511 and from local wildlife groups,512 although whilst the feedback appears to be that the New Act is a step forward, some have suggested that the level of public consultation (and actions taken in consequence of such consultations) during the drafting of the bill could have been greater.513 Stories in local newspapers have highlighted some of the measures aimed to aid public buy-in including the availability of compensation for injuries caused by endangered wildlife.514 In the fight to stop poaching and trafficking, local support is going to be key and it is to be hoped that the New Act has gone far enough to broker that support, but this is yet to be determined.
The most recent published information from CITES stated that Kenya's legislation was not sufficient to be considered as national implementation of CITES.515 However, this information dates back to July 2012 when the 1976 Act was still in force, and before the New Act was enacted. As noted above, the New Act does appear to cover the matters which CITES requires to be included in legislation,516 although this is yet to be confirmed by CITES and it may be that the availability of fines as punishment for wildlife crimes and the frequency of their use over the custodial penalty could impact on this.
508 Part V New Act 509 Sections 24 and 25 New Act 510 Part VI New Act 511 WWF "WWF applauds Kenyan parliament for passing motion to increase penalties on wildlife crimes", Accessed 29 January 2014, http://wwf.panda.org/?208820/WWF-Applauds-Kenyan-Parliament-for-Passing-Motion-to-Increase-Penalties-on-Wildlife-Crimes 512 Save the Elephants, "Kenya: Wildlife Bill Proposes Stiff Penalties for Poaching", Accessed 29 January 2014, http://allafrica.com/stories/201109051467.html 513 East African Conservation, Note on The Wildlife Conservation and Management Bill 2013, accessed on 29 January 2014, http://www.eawildlife.org/the-news/eawlsnews/355-the-wildlife-conservation-and-management-bill-2013-as-submitted-to-the-national- assembly-july-2013 514 Daily Nation, "Families of animal attack victims set to be paid Sh5m", accessed 31 January 2014, http://www.nation.co.ke/news/Wildlife-Attack-Victims-Bill-Parliament-Compensation/-/1056/2097606/-/b65mb0z/-/index.html 515 CITES website, accessed 26 January 2014, http://www.cites.org/eng/com/sc/62/E62-23.pdf 516 CITES website, accessed 26 January 2014, http://www.cites.org/eng/res/08/E-Res-08-04C16.pdf
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2.2 Species-specific legislation
Kenya does not have any species-specific legislation independent of CITES and the principal legislation discussed above.517
The New Act does categorise species specifically518 and some of the offences contained in the New Act have varying degrees of severity depending on the status of the species in respect of which the offences are committed.519
2.3 Additional information
Although Kenya does not have species-specific legislation, it has taken several species- specific initiatives, including the creation of species-specific task forces, implementation of non-legislative efforts to detect and deter illegal species-specific activity, and proposition of species-specific amendments to CITES.
2.3.1 Species-specific task forces: The KWS is a state corporation established by an Act of Parliament520 with the mandate to conserve and manage wildlife in Kenya, and to enforce related laws and regulations.”521 To that end, KWS has spearheaded several species-specific task forces. For example, in 1989, KWS established the Elephant Programme “to protect the elephants from the danger of extinction that was posed by the poachers.”522 KWS also has a Rhino Programme aimed at rhino conservation. Pursuant to this mission, KWS has adopted a conservation and management plan, the goal of which is to “enhance rapid population growth of the black rhino population in Kenya through increased attention to biological management, in addition to law enforcement.”523 Similarly, KWS launched the Kenya Integrated Sea Turtle Conservation project in 2008 with the aim of “integrating different approaches of sea turtle conservation and enhancing efforts by KWS and its partners.”524
2.3.2 Non-legislative efforts to detect and counter illegal species-specific wildlife activity: Kenya has utilised technology and advanced training to help detect and counter illegal wildlife activity related to certain species. For example, as of October 2013, it was reported that “Kenya is implanting microchips in every rhino nationwide . . . [which] will allow wildlife officials to track the animals and trace poached horns.”525 Kenya also has a Canine Detection Unit that is trained to detect rhino horn or elephant ivory.526 In addition, in December 2013, military
517 Note, however, that species found within Kenya are recognised by CITES. For example, in May 1989, the African elephant was added to Appendix 1 of CITES, which effectively banned the international trade in ivory and other elephant products. “Elephant Programme,” accessed January 23, 2014, http://www.kws.org/research/projects/ 518 Sixth Schedule, New Act 519 Section 96 New Act, Section 99 New Act 520 Act of Parliament Cap 376 521 “KWS,” accessed January 23, 2014, http://www.kws.org/about/index.html 522 “Elephant Programme,” accessed January 23, 2014, http://www.kws.org/research/projects/ 523 “Rhino Programme,” accessed January 23, 2014, http://www.kws.org/research/projects/rhino_programme.html 524 Said, Mohamed Omar Said, “Kenya Wildlife Service Launches Kenya Integrated Sea Turtle Conservation (KIST-CoN),” accessed January 23, 2014, at http://www.ioseaturtles.org/pom_detail.php?id=79 525 Faith Karimi, “Kenya implanting Microchips in every rhino to fight poaching,” CNN Oct. 21, 2013, accessed January 23, 2014, http://www.cnn.com/2013/10/21/world/africa/kenya-rhino-microchips/ 526 “Canine Detection Unit,” accessed January 23, 2014, http://www.awf.org/projects/canine-detection-unit
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personnel were engaged “to help train park rangers on how to counter elephant poachers.”527
2.3.3 Species-s sals at CITES C n n th a t s (“C ”) “At CoP12 in 2002, Mali, Kenya and Congo joined forces in order to speak with one voice to highlight the plight of their rapidly disappearing elephants.”528 Five years later, at CoP14, Kenya and Mali championed and submitted a proposal for a 20-year moratorium on ivory trade.529 “A compromise was reached with pro-trade Parties for a 9-year moratorium beginning in 2008.”530 At CoP16 in 2013, Kenya submitted another proposal regarding trade in elephant ivory.531 Specifically, Kenya sought to amend the wording of CITES Annotation 5 to the Appendices on the African elephant532 such that greater limits would be placed on future proposals to allow trade in elephant ivory. Ultimately, the Secretariat recommended that the proposal be rejected.533
Although Kenya does not have any species-specific legislation independent of CITES and its principal legislation, its focus on specific species through KWS task forces, non-legislative efforts to deter and counter illegal wildlife activity, and CITES proposals, displays a level of species-specific concern worth noting.
3. PENALTIES
The crimes which carry the most severe penalties under the New Act are set out at section 2.1.2 above. The New Act is intended to act as a greater deterrent to poachers and illegal traffickers and the severity of the penalties imposed reflect this. The most severe penalty for a wildlife crime under the New Act is life imprisonment and there are four offences which could be categorised as "serious crimes" under UNOCD's definition.534 The willingness of the Kenyan courts to impose such serious penalties has not yet been tested.
By contrast, under the 1976 Act, penalties were comparatively minor535 and there was considerable criticism of the 1976 Act for this reason. The maximum penalty for any contravention of the 1976 Act was KES40,000 (US$465.93) and/or 10 years' imprisonment, however, reports suggest that penalties were more normally a comparatively small fine.536
527 Ryan Grenoble, “British Paratroopers Will Help Train Kenyan Rangers To Fight Off Illegal Elephant Poachers,” The Huffington Post, November 12, 2013, accessed January 23, 2014, http://www.huffingtonpost.com/2013/11/12/british-army-kenya-elephant- poaching_n_4256426.html 528 Kenya Elephant Forum, Fact Sheet 01-2013, “The African Elephant Coalition,” accessed January 23, 2014, http://www.elephantvoices.org/index.php?option=com_docman&task=cat_view&gid=150&Itemid=189 529 Ibid. 530 Ibid. 531 Kenya Elephant Forum, Fact Sheet 03-2013, “CITES and the Ivory Trade,” accessed January 23, 2014, http://www.elephantvoices.org/index.php?option=com_docman&task=cat_view&gid=150&Itemid=189 532 Convention on International Trade in Endangered Species of Wild Fauna and Flora, “Consideration of Proposals for Amendment of Appendices I and II,” accessed February 5, 2014, http://www.cites.org/sites/default/files/eng/cop/16/prop/E-CoP16-Prop-12.pdf 533 Kenya Elephant Forum, Fact Sheet 04-2013, “Proposals on the African Elephant at CITES CoP16,” accessed January 23, 2014, http://www.elephantvoices.org/index.php?option=com_docman&task=cat_view&gid=150&Itemid=189 534 Sections 88(2)(a), 92, 95 and 96(1)(a) of the New Act. 535 Save the Elephants, "Kenya Penalties for Wildlife Crimes too Lenient", accessed in January 2014, http://www.savetheelephants.org/news-reader/items/kenya-penalties-for-wildlife-crimes-too-lenient.html 536 Ibid.
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There were calls from various quarters for penalties to be increased.537 The average annual wage for a Kenyan is reportedly KES148,080 (US$ 1,715.80)538 which would mean that a maximum fine under the 1976 Act would equate to almost a third of a Kenyan's annual wage. However, when compared against the black market value of raw ivory which was reported to be worth KES112,190 (US$1300) a pound as at March 2013, and the fact that many suspected offenders of wildlife crime are foreign, the penalties under the 1976 Act were largely insignificant.539 The fines under the New Act are of a much more significant level.
In comparison to other crimes prosecuted under the Penal Code540 such as those set out below, the 1976 Act's penalties seemed comparatively meagre although the New Act has significantly increased the penalties which may be imposed for the most severe wildlife crimes. Examples of other offences under the Penal Code are as follows:
Theft of livestock provides for a penalty of 14 years' imprisonment;541
Other categories of theft provide for 3 years' imprisonment;542
Arson provides for up to life imprisonment;543
Corruption and fraud provide for a fine not exceeding KES 1 million (US$11,648.22) and/or imprisonment not exceeding 10 years;544 and
Money laundering provides for a fine not exceeding KES 5 million (US$58,241.12) and/or imprisonment not exceeding 14 years.545
3.1 Penalties for specific offences
Under the New Act, members of the KWS, forest officers, fisheries officers, police officers, customs officers and administrative officers ("Authorised Officers") are granted fairly wide powers which are aimed to help enforce the provisions of the New Act.546 These include the ability to make arrests but also the ability to demand to see a permit or licence, to detain a suspect, powers of seizure, search and confiscation, and the ability to conduct investigations. Authorised Officers are specifically granted powers to enter land, premises, vehicles, aircrafts and trailers. Senior Authorised Officers are also permitted to construct temporary barriers to undertake searches. These wide powers and the offences relating to using aircraft in wildlife protected areas, together aim to help give the KWS and associated services the powers they need to enforce the provisions of the New Act with greater effectiveness than they had under
537 WWF, Statement on Elephant Killing in Kenya, 8 January 2013, accessed January 2014, https://worldwildlife.org/press- releases/statement-on-elephant-killing-in-kenya 538 Salary Explorer Website, accessed between 27 Janaury 2014 and 3 February 2014, http://www.salaryexplorer.com/salary- survey.php?&loctype=1&loc=111 539 Dan Levin, New York Times, "From Elephants Mouths, an Illicit Trail to China", accessed January 2014, http://www.nytimes.com/2013/03/02/world/asia/an-illicit-trail-of-african-ivory-to-china.html?pagewanted=all&_r=0 540 The Penal Code, accessed January 2014 at http://www.kenyalaw.org/Downloads/GreyBook/8.%20The%20Penal%20Code.pdf 541 Section 278 Penal Code 542 Section 275 Penal Code 543 Section 332 Penal Code 544 Section 48 of the Anti-Corruption and Economic Crimes Act 545 Proceeds of Crime and Anti-Money Laundering Act No. 9 of 2009 546 Part XIII New Act
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the previous legislation. In addition to the powers granted to Authorised Officers, any person who suspects an offence may petition the Environment and Land Court directly for redress (see section 5.1 below for information about this court).
3.2 Enforcement
Enforcement is considered at sections 5.2 and 5.3 below.
4. ANCILLARY LEGISLATION
4.1 Legislation summary
In addition to offences under the New Act, alleged wildlife criminals in Kenya may be prosecuted for various associated offences under the following legislation:
4.1.1 Proceeds of Crime and Anti-Money Laundering Act No. 9 of 2009
The relevant criminal offences under this Act include: money laundering; acquisition, possession or use of proceeds of a crime; and financial promotion of an offence.547
4.1.2 The Anti-Corruption & Economic Crimes Act 2003
The relevant criminal offences under this Act are corruption. This includes, among other things, fraud, bribery, and an offence involving dishonesty – and economic crime – including an offence involving the acquisition or damage of public property.548
4.1.3 The Prevention of Organised Crimes Act 2010
Under this Act, a person who acts in concert with a group of persons with the aim of committing one or more serious crimes, is guilty of a criminal offence. A serious crime is defined as “conduct constituting an offence against a provision of any law in Kenya punishable by a term of imprisonment of at least six months . . .”549 Notably, “Kenya’s prominent role in ivory trafficking is a major shift in African trade routes and the scale of these consignments suggest the handiwork of organised criminal syndicates.”550
4.1.4 The Kenyan Income Tax Act, Chapter 470 (2010)
“One direct impact of illicit wildlife trafficking on the social and economic development of a country is the immediate and irreversible depletion of valuable assets . . . 'The government does not receive any tax or revenue to support the
547 Proceeds of Crime and Anti-Money Laundering Act (Cap 59B) (2009), Part II, Sections 3, 4, 7, accessed January 23, 2014, http://www.bu.edu/bucflp/laws/proceeds-of-crime-and-anti-money-laundering-act-no-9/ 548 The Anti-Corruption & Economic Crimes Act (Cap 65) (2003), Part V, accessed January 23, 2014, http://www.kenyalaw.org/kenyalaw/klr_app/frames.php 549 The Prevention of Organised Crimes Act (Cap 59) (2010), Part I, Section 2, accessed January 23, 2014, www.parliament.go.ke 550 Paula Kahumbu, “Saving Elephants – 10 Ways in 100 Days,” the Star, May 7, 2013, accessed January 23, 2014, http://www.the- star.co.ke/news/article-119457/saving-elephants-10-ways-100-days
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economic activities and the country loses a lot of resources.'”551 To the extent that wildlife crime reduces taxable revenues or otherwise induces infringement of tax laws (e.g., tax fraud/tax evasion), this Act would also be applicable.
4.1.5 The Prevention of Terrorism Act552
To the extent that wildlife trafficking funds terrorist activities, this Act may be applicable. For example, according to an undercover investigation by the Elephant Action League, there is strong evidence that Al-Shabaab, the terrorist group responsible for the Kenyan Westgate shopping mall massacre, “has been actively buying and selling ivory to fund its militant operations.”553
4.1.6 The Firearms Act. (Cap 114)
The relevant criminal offences under this Act include the purchasing, acquisition or possession of any firearm or ammunition without a licence or permit, failure to comply with any condition subject to which a firearm is held, and unlawfully permitting another person to take possession of a licensed firearm or ammunition to advance the course of organised criminal activity.554
4.1.7 The Meat Control Act (Cap 356)
This Act was enacted to enable control to be exercised over meat and meat products intended for human consumption, and over slaughterhouses and places where such meat is processed; and to provide for import and export control over such meat and meat products. A large number of regulations have been implemented, and the possible offences relevant to wildlife include: a prohibition on the transportation of any meat unless that person holds a permit to transport meat; and the sale of uninspected meat.555
4.2 Penalties and enforcement
4.2.1 Money Laundering
The Proceeds of Crime and Anti-Money Laundering Act No. 9 of 2009 sets forth the following penalties in relation to money laundering, the acquisition, possession or use of proceeds of crime, and financial promotion of an offence:556
551 “Fighting Illicit Wildlife Trafficking, A Consultation with Governments,” Dalberg Global Development Advisors, WWF Report, at p. 17, accessed January 23, 2014, www.dalberg.com 552 Prevention of Terrorism Act (No. 30) (2012), accessed February 5, 2014, http://frc.go.ke/legislation/2013/03/prevention-of-terrorism- act-2012 553 “Is Elephant and Rhino Poaching Funding Terrorism?” accessed January 23, 2014, http://www.savetherhino.org/rhino_info/thorny_issues/is_elephant_and_rhino_poaching_funding_terrorism; see also Catrina Stewart, “Illegal Ivory Trade Funds al-Shabaab’s Terrorist Attacks,” October 6, 2013, accessed January 23, 2014, http://www.independent.co.uk/news/world/africa/illegal-ivory-trade-funds-alshabaabs-terrorist-attacks-8861315.html 554 The Firearms Act. (Cap 114) of the Laws of Kenya, section 4 & 4A, accessed 27 January 2014, http://www.kenyalaw.org/kenyalaw/klr_app/frames.php 555 The Meat Control Act (Cap 356) of the Laws of Kenya and subordinate legislation, accessed on 27 January 2014, http://www.kenyalaw.org/kenyalaw/klr_app/frames.php 556 “A person who, knowingly transports, transmits, transfers or receives or attempts to transport, transmit, transfer or receive a monetary instrument or anything of value to another person, with intent to commit an offense,” is guilty of “financial promotion of an offense” under
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A natural person is liable to imprisonment for a term not exceeding fourteen years, or a fine either not exceeding KES 5 million (US$58,241.12) or the amount of the value of the property involved in the offence, whichever is the higher, or to both the fine and imprisonment;557 and
A body corporate is liable to a fine either not exceeding KES 25 million (US$291,205.60), or the amount of the value of the property involved in the offence, whichever is the higher.558
4.2.2 Corruption and Fraud
Under Section 48 of the Anti-Corruption and Economic Crimes Act,559 “a person convicted of an offence [relating to corruption or fraud] shall be liable to a fine not exceeding KES 1 million (US$11,648.22), or to imprisonment for a term not exceeding ten years, or to both” as well as “an additional mandatory fine if, as a result of the conduct that constituted the offence, the person received a quantifiable benefit...”.560
4.2.3 Organised Crime
Under the Prevention of Organised Crimes Act 2010:
"A person who engages in any organised criminal activity…commits an offence and shall, upon conviction, be liable to a fine not exceeding KES 5 million (US$58,241.12) or to imprisonment for a term not exceeding 15 years, or both."561
"A person who attempts, aids, abets, counsels, procures, or conspires with another to commit an offence under this Act” will be liable to a fine not exceeding KES 1 million (US$11,648.22) or to imprisonment for a term not exceeding 14 years, or both.”562
If in the commission of the organised criminal activity, a person dies, the offender will be liable to imprisonment for life.563
A person who administers, consents to the administration of, or takes an oath related to involvement in the organised criminal group, will be liable to imprisonment for life.564 the Act. Proceeds of Crime and Anti-Money Laundering Act, Section 7, accessed February 5, 2014, http://www.bu.edu/bucflp/laws/proceeds-of-crime-and-anti-money-laundering-act-no-9/ 557 Proceeds of Crime and Anti-Money Laundering Act (Cap 59B) (2009), Section 16(1)(a), accessed January 23, 2014, http://www.bu.edu/bucflp/laws/proceeds-of-crime-and-anti-money-laundering-act-no-9/ 558 Ibid. Section 16(a)(2). 559 The Anti-Corruption & Economic Crimes Act (Cap 65) (2003), accessed January 23, 2014, htttp://www.kenyalaw.org/kenyalaw/klr_app/frames.php 560 The Anti-Corruption & Economic Crimes Act (Cap 65) (2003), Section 48 accessed January 23, 2014, http://www.kenyalaw.org/kenyalaw/klr_app/frames.php 561 The Prevention of Organised Crimes Act (Cap 59) (2010), Section 4(1), accessed January 23, 2014, www.parliament.go.ke. 562 The Prevention of Organised Crimes Act (Cap 59) (2010), Section 6, accessed January 23, 2014, www.parliament.go.ke. 563 Ibid. Section 4(2).
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Additionally, any cash acquired in connection with the organised crime may be seized.565
4.2.4 Tax Evasion
The Kenyan Income Tax Act (Cap 470) of 2010 provides for various offences and regulatory provisions which would apply to those involved in wildlife crimes. These include:
A person who "knowingly omits" income from a return "or makes any incorrect statement which affects his liability to tax," is liable to additional tax of an amount twice the tax concealed, plus a maximum KES 200,000 (US$2,329.64) fine and/or up to two years' imprisonment.566
Offences under the Act for which no other penalty is specified are subject to a maximum fine of KES 100,000 (US$1,164.82) and/or imprisonment not exceeding six months.567
4.2.5 Terrorism
Under the Prevention of Terrorism Act 2012:
“A person who, directly or indirectly, collects, attempts to collect, provides, attempts to provide or invites a person to provide or make available any property, funds or a service intending, knowing or having reasonable grounds to believe that such property, funds or service shall be used – (a) for the commission of, or facilitating the commission of a terrorist act; or (b) to benefit any person or terrorist group involved in the commission of a terrorist act, commits an offence and is liable, on conviction, to imprisonment not exceeding twenty years.”568
“A person who knowingly supports . . . the commission of a terrorist act . . . is liable. . .to imprisonment for a tern not exceeding twenty years.”569
4.2.6 Firearms
The Firearms Act (Cap 114) of 1954 provides for various penalties relating to the offences specified at 4.1.6, ranging from a custodial sentence of between seven and 15 years for offences involving firearms specifically listed in the Act and a term not exceeding 10 years for offences involving other firearms not specified in
564 Ibid. Section 5. 565 Ibid. Sections 17-18. 566 Kenyan Income Tax Act (CAPT 470) of 2010, Section 72(A), 108(1), accessed January 23, 2014, http://www.lexadin.nl/wlg/legis/nofr/oeur/lxweken.htm. Section 72(A); 108(1) 567 Ibid. Section 107. 568 Prevention of Terrorism Act (2012), Part III, Section 5, accessed January 23, 2014, http://frc.go.ke/legislation/2013/03/prevention-of- terrorism-act-2012 569 Ibid. Section 9(1).
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the Act. Furthermore, if a person is found in possession of any specified firearm(s) as listed in Section 4A of the Act (which includes AK 47s, G3s and MP5s) without a licence or permit or other lawful justification or otherwise unlawfully permits another person to take possession of or use such a firearm or ammunition to advance the course of organised criminal activity, they shall be liable to imprisonment for life.
4.2.7 Meat control
Under the Meat Control Act (Cap 356) and its subordinate legislation, depending on the offence, possible penalties are a fine not exceeding KES 10,000 (US$116.48) or imprisonment for a term not exceeding six or twelve months (depending on the offence committed), or both.570
4.3 Relationship with principal legislation
The Kenyan Government’s “decision to prosecute wildlife criminals under the Proceeds of Crime and Anti-Money Laundering Act (2010), the Prevention of Organised Crimes Act (2011), the Anti-Corruption and Economic Crimes Act (2003), and the Prevention of Terrorism Act (2012) is laudable.”571 Unfortunately, however, it has been noted that “conservationists express regret that while the Government undertook to prosecute poachers and dealers of wildlife trophies under the Proceeds of Crime and Anti-Money Laundering Act, the Prevention of Organised Crimes Act, the Anti-Corruption and Economic Crimes Act and the Prevention of Terrorism Act, the courts are yet to take action.”572
Due to the lack of available information, it is difficult to assess the likelihood of success in terms of prosecuting wildlife crimes under the above ancillary legislation. Indeed, we were unable to locate any specific cases where such ancillary legislation was used to prosecute illegal wildlife activity.573 In a recent study by WildlifeDirect, they have reported that between January 2008 and June 2013, 303 offenders were charged under the 1976 Act and only 24 offenders were charged with offences under ancillary legislation for wildlife-related offences (including the Firearms Act, the Meat Control Act, and the Penal Code).574 According to Paula Kahumbu, the director of WildlifeDirect, a conservation group, ‘“[c]hallenges in combating the illegal trade include corruption in the courts and the frequent collection of poor evidence by wildlife officials.”’575 The impact this has on the decision to prosecute wildlife crimes under the principal legislation versus ancillary legislation is uncertain. With the passing of the New Act, however, it is clear that Kenya has increased the penalties for wildlife offences under the principal wildlife legislation, with the result that the
570 Examples of penalties as set out in subordinate legislation include: The Meat Control (transport of Meat) Regulations 1976, Regulation 9; The Meat Control (local slaughterhouses)(licensing) Regulations 2011, Regulation 5; The Meat Control (Importation of Meat and Meat Products) Regulations 2001, Regulation 16, accessed 27 January 2014, http://www.kenyalaw.org/kenyalaw/klr_app/frames.php 571 Forestry & Wildlife News, A Publication of Forestry & Wildlife, Volume 7, January 2013, accessed January 23, 2014. See also Ronald Njoroge and Peter Mutai, “Kenya urged to declare wildlife poaching ‘national crisis,’” Coastweek February 1-7, 2013, accessed January 23, 2014, http://www.savetheelephants.org/news-reader/items/kenya-urged-to-declare-wildlife-poaching-national-crisis.html 572 “Judiciary Accused of Being Too Lenient to Poachers, Traffickers,” accessed January 23, 2014, http://www.standardmedia.co.ke/m/story.php?id=2000080968&pageNo=2 573 See Section 5.2.1 (discussing the lack of a public central database or electronic record that gives reliable access to case data). 574 Paula Kahuma, Levi Byamukama, Jackson Mbuthia & Ofir Drori for WildlifeDirect (2014), "Scoping study on the prosecution of wildlife related crimes in Kenyan courts January 2008 to June 2013". Copy report received directly from Paula Kahumbu of WildlifeDirect in January 2014. 575 David Malingha Doya, “Kenya to Enact Harsher Punishments for Elephant, Rhino Poachers,” Bloomberg September 17, 2013, accessed January 23, 2014, http://www.bloomberg.com/news/2013-09-17/kenya-to-enact-harsher-punishments-for-elephant-rhino-poachers.html
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New Act may serve as a sufficient deterrent as standalone legislation. As such, prosecutors may feel even less inclined to explore bringing charges under ancillary legislation now that the New Act has entered into force. This is not necessarily a good thing, as ideally all possible charges should be explored when prosecuting such crimes.
5. JUDICIAL PROCESS AND CAPACITY
5.1 Judicial Process
5.1.1 General Process for criminal prosecutions:
The Director of Public Prosecutions (DPP) is the office under Kenya's 2010 Constitution responsible for instituting and undertaking criminal proceedings against any person before any court (other than a court-martial) in Kenya with respect to any offence alleged to have been committed.576
5.1.2 Court structure:577
Kenya has the following court structure:
The Supreme Court which has:
(a) exclusive jurisdiction –
(i) in respect of presidential election petitions; and
(ii) in disputes arising from the process of the impeachment of the President; and
(b) appellate jurisdiction to hear appeals from the Court of Appeal or from any other court or tribunal as prescribed by an Act of Parliament.
The Court of Appeal – has jurisdiction in contempt proceedings; it is essentially an appellate court and the court that sets out policy, as its decisions are binding on lower courts.
The High Court – has various divisions i.e. in Nairobi there is the Criminal Division, Civil Division, Family Division and Commercial Division and the Constitution Court. The Chief Justice can constitute a constitutional court out of any three divisions to sit as a constitutional court. The Constitutional bench is important as it has to deal with the violations and contravention of the accused persons who can go to the constitutional court to seek redress.
Subordinate courts at the following different levels:
Chief Magistrate;
576 Kenya Law Reform Commission, accessed January 17 2014, http://www.klrc.go.ke/index.php/constitution-of-kenya/132-chapter-nine- the-executive/part-4-other-offices/325-157-director-of-public-prosecutions 577 Kenya Law Resource Center, Criminal Procedure, accessed January, 17 2014, http://kenyalawresourcecenter.blogspot.co.uk/search/label/criminal%20procedure
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Senior Principal Magistrate;
Principal Magistrate;
Senior Resident Magistrate;
Resident Magistrate;
District Magistrate.
All magistrates are professional lawyers.578
The District Magistrates' Court is the starting point of almost all criminal cases including wildlife offences under the 1976 Act and now the New Act.579 Magistrates' courts in Kenya deal with an array of legal issues including: criminal law, traffic law, land law, and civil law.580
There are no specialist magistrates' courts trained specifically to deal with wildlife crime in Kenya.
The post-independence Kenya criminal justice system does not provide for a trial by jury. Trial by jury in Kenya was abolished with the end of colonial rule. Only a magistrate, the judge of a High Court, or a panel of judges on the Court of Appeal can hand down decisions in criminal cases.581
5.1.3 General prosecution process for criminal actions:
5.1.3.1 The prosecutor, as a representative of the state, studies the case and decides how to present the case on the day of the trial. There is a preliminary hearing during which both the prosecution and defence present their cases. Witnesses may be introduced by both parties.582
5.1.3.2 The prosecutor at the District Magistrates' Court is usually a senior police officer who has been trained for the position, but is not a certified lawyer. The use of a police officer as a prosecutor is a remnant of the British colonial administration.583
5.1.3.3 At the second hearing, which is the main trial of the case, the prosecution presents all of the evidence to prove the defendant committed the offence. The defence attorney may ask the magistrate to dismiss the case entirely or alternatively, plead for mercy if the prosecution's evidence indicates that the client committed the crime
578 Ibid. 579 Dr Robert Winslow assisted by Myron Epps, Crime and Society - a comparative criminology tour of the world; Africa; Kenya (Undated), accessed on January 17 2014, http://www-rohan.sdsu.edu/faculty/rwinslow/africa/kenya.html 580 Hon. Dr. Willy Mutunga, State of the Judiciary 2011-2012 (2012), available here: http://www.judiciary.go.ke/portal/state-of-the- judiciary-report.html 581 Dr Robert Winslow assisted by Myron Epps, Crime and Society - a comparative criminology tour of the world; Africa; Kenya 582 Dr Robert Winslow assisted by Myron Epps, Crime and Society - a comparative criminology tour of the world; Africa; Kenya 583 Dr Robert Winslow assisted by Myron Epps, Crime and Society - a comparative criminology tour of the world; Africa; Kenya
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beyond reasonable doubt. If the defence claims insanity as a factor in the crime, psychiatrists can be consulted.584
5.1.4 Specific judicial process for wildlife offences:
The KWS and the Kenyan police arrest and detain those suspected of having perpetrated offences under the Act in accordance with the powers granted to them under the 1976 Act.
Under the 1976 Act, KWS wardens had the same powers as public prosecutors in Kenya (Section 56 of the 1976 Act).
Under the New Act, the Director of Public Prosecutions ("DPP") has the power to designate special prosecutors to prosecute wildlife offences and/or delegate his or her prosecutorial powers to 'authorised officers' of the KWS to prosecute offences under the New Act (Section 107 of the New Act). It is not yet clear whether such powers have been exercised by the DPP.
It appears from a letter to the KWS from the DPP dated 12 April 2013 that the DPP had, prior to the introduction of the New Act, established a joint task force with the KWS to address the escalation of crimes involving wildlife in recent months.585 Within this letter, the DPP acknowledges receipt of data on all cases of wildlife crime that the KWS had prosecuted (and was in the process of prosecuting) since 2009 and confirms that the DPP has 'taken over' the prosecution of wildlife offences. The DPP also requests details of the names and CVs of KWS officers who may be appointed as prosecutors for wildlife cases, and confirms that following appointment, 'this office will organise a crash training programme for them so as to equip them with the requisite prosecutorial skills to handle such type of cases'. It therefore appears that the DPP has now assumed control of the process for the prosecution of wildlife offences in Kenya.
Based on news reports from the KWS, in practice it appears that following an arrest:
The KWS wardens will collate and assess the available evidence;
The KWS wardens will determine what wildlife offences (if any) the suspect will be charged with;
The KWS wardens will then act as a public prosecutor against the accused in the local Magistrates' Court (local to where the alleged offence was committed) following the criminal judicial process as set out by the Penal Code (Chapter 63).586
WildlifeDirect, which is a Kenya- and US-registered charitable organisation established to provide support to conservationists in Africa, has reported that prosecutions of wildlife offences in Kenya are handled mostly by the police but
584 Dr Robert Winslow assisted by Myron Epps, Crime and Society - a comparative criminology tour of the world; Africa; Kenya 585 Office of the Director of Public Prosecutions, letter to Dr Kiprono of the KWS dated 12 April 2013, available here: http://www.odpp.go.ke/index.php/downloads/viewdownload/10-press-release/26-prosecutions-of-wildlife-cases 586 Penal Code (Chapter 63), accessed January 17, 2014, available here: http://www.lexadin.nl/wlg/legis/nofr/oeur/lxweken.htm
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that recently the KWS has begun handling prosecutions and the DPP is now involved in prosecuting cases involving elephants and rhinos in response to escalating threats to these two species.587
5.2 Prosecutions
There is no public central database or electronic record which gives reliable access to data regarding the prosecution of wildlife offences in Kenya. Whilst a case search function is included within the website of the National Council for Law Reporting in Kenya, (which is a semi-autonomous state corporation)588, the search function is limited and has only produced limited results of appellate decisions following keyword searches (see section 5.3 below for further information). As such, the publicly available information is limited to a review of annual legal reports prepared by the Kenyan judiciary, research undertaken by charities, including a recent comprehensive study undertaken by WildlifeDirect,589 and news reports.
According to WildlifeDirect, it is reported that around 2,000 people are arrested in Kenya each year for offences linked to poaching and trafficking, based on an analysis of records from around 15 courts in the country.590
The KWS website publishes news reports detailing arrests and prosecutions of suspects accused of wildlife offences under the 1976 Act. From a review of the 2013 news archive, there are 18 news reports concerning the arrest or charge of suspects but only four reports of fines or custodial prison sentences being imposed. The maximum financial penalty awarded was KES 30,000 ((US$349.44) and two custodial sentences were imposed for periods of 31 months and five years.591
WildlifeDirect also reports that in 2013:
three people were sent to jail for crimes concerning elephants and rhino in the Makadara Magistrates court;
in seven cases where offenders pleaded guilty the Magistrates discharged the offenders and released them; and
the probability of being given a custodial sentence if caught with ivory or rhino horn at Jomo Kenyatta International Airport is less than 1 in 12.592
587 Ibid. note 80 588 See the 'About Us' section of the Kenya Law website, accessed January 17 2014, available here: http://kenyalaw.org/kl/index.php?id=115 589 Paula Kahuma, Levi Byamukama, Jackson Mbuthia & Ofir Drori for WildlifeDirect (2014), "Scoping study on the prosecution of wildlife related crimes in Kenyan courts January 2008 to June 2013". 590 Sarah Morrison, Charity Appeal:'The way to stop poaching is to use people like me,' says man jailed for cutting off dead elephant's tusks , The Independent, December, 22 2013, available here: http://www.independent.co.uk/environment/nature/charity-appeal-the-way-to-stop- poaching-is-to-use-people-like-me-says-man-jailed-for-cutting-off-dead-elephants-tusks-9020178.html 591 KWS, Tortoise dealer fined by a Nairobi Court, lions injure Maasai Moran in Kajiado, March, 21 2013; Chinese smuggler fined Sh30,000 as KWS rangers net 435 pieces ivory, March, 26 2013; Chinese woman to serve a total of 31 months in jail for smuggling ivory, August, 22 2013; Kenyan court sentences British snake smuggler and local accomplice to five years imprisonment, September, 25 2013, accessed on January, 17 2014, available here: http://www.kws.org/info/news.html 592 Paula Kahumbu, Kenya: Magistrates Lenient on Wildlife Traffickers, The Star, November, 29 2013, accessed January, 17 2014, available here: http://allafrica.com/stories/201311290746.html
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KWS has reported that its limited forensic expertise has created a barrier to the successful prosecution of suspected wildlife crimes, particularly in cases requiring the identification of bush meat and the ability to connect exhibits (wildlife trophies and bushmeat) to specific poaching incidents.593
5.2.1 Issues identified by WildlifeDirect in a significant recent study:
A recent comprehensive survey by WildlifeDirect looked at court records in eighteen courts adjudicating on wildlife related crime. Their survey reported the following findings:
Only 4% of offenders convicted of wildlife crimes went to jail (8 out of 224 persons convicted of wildlife crimes);
Though there were frequent news report of KWS officers being arrested for involvement in wildlife crimes, their study did not identify any verdict which highlighted this problem. This is despite the fact that in June 2013, 32 officers were suspended from the KWS pending an investigation into alleged collusion with poachers to kill elephants and rhinos for trophies;594
Wildlife-related crime in Kenya is treated as a misdemeanour or petty crime and is 'mismanaged' within the Kenyan court systems. Of 743 cases registered in the courts during the period of the study, 70% of the court files were reported missing or misplaced in the courts;
No case files could be found for ivory or rhino horn trafficking in Mombasa despite frequent news reports of ivory seizures in the Port of Mombasa;
The maximum custodial sentence available for wildlife-related crimes has never been imposed. Only 3.6% of penalties were custodial whereas 73.7% of the penalties were fines. Of those offenders who were given the option of a fine or imprisonment, almost all of the offenders (99.4%) could afford to pay the fine;
Poor tracking of previous convictions and little exchange of information between courts makes it challenging to identify repeat offenders so their sentencing does not reflect the extent of repeated criminal activities;
During the period of the study, offenders were given lenient sentences and fines well below the maximum thresholds imposed by the 1976 Act.595
593 KWS, KWS commissions construction of wildlife forensic and genetics laboratory, August, 14 2012, accessed January 17 2014, available here: http://www.kws.org/info/news/2012/9_8_12_lab.html 594 K KorossKWS suspends 32 officers over elephant, rhino poaching, The Star, June, 8 2013, accessed January 17 2014, available here: http://www.the-star.co.ke/news/article-123595/kws-suspends-32-officers-over-elephant-rhino-poaching#sthash 595 Paula Kahuma, Levi Byamukama, Jackson Mbuthia & Ofir Drori for WildlifeDirect (2014), "Scoping study on the prosecution of wildlife related crimes in Kenyan courts January 2008 to June 2013".
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5.2.2 Challenges identified by the DPP and Kenyan judiciary to the effective prosecution of criminal cases generally:
In 2011-2012, the Kenyan judiciary reported that 174,878 criminal cases were issued in Magistrates courts and 158,161 cases were resolved.596 This means that just under 17,000 cases issued in the same period remained pending.
In the strategic plan published by the DPP for the period 2011 to 2015, the DPP recognised that during the previous strategic plan it had faced the following challenges:597
Bureaucratic and operational bottleneck
(a) Due to centralised operations at the State Law Office, procurement processes, manual systems and delay in approvals, some of the implementation efforts were halted, resulting in a general slow-down of implementation of the Plan.
Inadequate resources
(a) The Office of the DPP was constrained by insufficient human, financial and other resource requirements that were critical in the implementation of the plan.
Inadequate supervision of delegated prosecutorial function:
(a) It was also realised that although the DPP had delegated Prosecution Powers, it lacked the capacity to effectively supervise these functions to facilitate effective delivery of justice.
Lack of independence
(a) It noted that during the plan period, the DPP was a Department in the State Law Office and lacked operational autonomy to effectively execute its mandate. During the plan period also, the effectiveness of the Office of the DPP was also hampered by lack of security of tenure for the DPP. This made the Office open to political interference.
596 Hon. Dr. Willy Mutunga, State of the Judiciary 2011-2012 (2012). 597 Office of the Director of Public Prosectutions, Strategic Plan 2011 - 2015, March 2012, pages 15 & 16, accessed on January 17 2014, available here: http://www.odpp.go.ke/index.php/downloads/viewcategory/5-publications
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Lack of Central Facilitation Services
(a) In terms of physical location, the DPP was detached from the State Law Offices, hence it did not have adequate facilitation from the State Law Office, hampering the delivery of its services.
5.3 Appeals
Cases from subordinate courts may be subject to a first appeal from the High Court and a second appeal to the Court of Appeal.598
The first appeal may be raised on a matter of law and/or fact (Section 347 of the Criminal Procedure Code).599 In the case of a guilty plea, an appeal can only be pursued in relation to the extent or legality of the sentence (Section 348 of the Criminal Procedure Code).600
Appeals to the High Court in criminal matters are heard by two judges of the High Court, except where the Chief Justice directs that the appeal may be heard by one judge (Section 359 of the Criminal Procedure Code).601
Appeals to the Court of Appeal may only be raised on a matter of law (save for certain exceptions as set out in Section 379 of the Criminal Procedure Code) and will not allow appeals concerning matters of fact or the severity of sentence except where a sentence has been enhanced by the High Court and the subordinate court has no power to pass that sentence (Section 361 of the Criminal Procedure Code).602
In 2013, the Chief Justice of Kenya, Dr Mutunga, officially launched a new Court of Appeal in Kisumu as part of an initiative to reduce a significant backlog of cases and severe delays. He reported that Kisumu had the highest number of pending cases in the Court of Appeal outside Nairobi, which necessitated the launch, and noted that:603
"Last year the Court of Appeal had 6,701 pending cases…Cases in the Court of Appeal could take up to eight years to finalise because judge's vacancies remained unfilled for years and the few on call spent more time travelling around the country on circuits than hearing and deciding cases…
The Court of Appeal would only sit in Kisumu twice a year, and sometimes only once…If a case was not listed in one session, one had to wait for a minimum of eight months to go before court, and then wait a few more years on the queue to be heard.
598 Kenya Law Resource Center, Appeals and Reviews, accessed January, 17 2014, available here: http://kenyalawresourcecenter.blogspot.co.uk/2011/07/appeals-and-reviews.html 599 Criminal Procedure Code (Chapter 75) Revised 2009, available here: http://www.lexadin.nl/wlg/legis/nofr/oeur/lxweken.htm 600 Ibid. 601 Ibid. 602 Ibid. 603 Chief Justice Mutunga, Remarks by the Chief Justice at the Inauguration of the Court of Appeal in Kisumu, July, 1 2013, accessed Jnuary 17 2014, available here: http://www.judiciary.go.ke/portal/chief-justice-willy-mutunga-presides-over-the-inauguration-of-another- court-of-appeal-in-kisumu.html
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An analysis of the backlog in Kisumu reveals 386 criminal appeals that have been pending since 2001…Hundreds of people serve out their sentences in full, even when they might have been released had their cases been heard earlier.
The Judicial Service Commission has hired 22 new Court of Appeal judges in the past two years. Additionally, it has decentralised the court to Kisumu, Nyeri and Malindi…Currentl,y there are 564 pending cases in the Court of Appeal in Kisumu…".604
During a 'Judiciary Service Week' during 14 - 18 October 2013, the courts targeted the hearing of 1,500 criminal appeals and 3,500 cases of prisoners incarcerated for petty offences. This reportedly gave a "big boost to the clearance of Appeals in the High Court which the whole of last year cleared 3,944 Appeals leaving a total of 10,289 pending Criminal Appeals as at June 2013".605
Having searched the National Council for Law Reporting's online case law database, we have located only three appeal cases relating to wildlife offences under the 1976 Act in the High Court. The High Court in all three cases makes findings of significant procedural and/or substantive errors by the magistrates' courts in their original decisions, and illustrative extracts from each judgement are included below:
Samuel Macharia Mwangi & another v Republic [2009] eKLR606
“…The appellants were found slaughtering a Buffalo. They were however charged with illegal hunting, implying that there are some hunting that are authorised and or legal. The charge sheet is not specific as to whether the appellants were authorised or unauthorised hunters. The charge sheet is also silent as to whether the appellants were hunting illegally and without a licence thereby making them poachers. The appellants perhaps should have been charged under section 47 of the Wildlife Conservation and Management Act. However the application of this section is dependent on the minister making regulations to deal with possession or movement of the game meat. I have looked at the entire Act and I am satisfied that no such regulations have been gazetted by the minister.
Further it is noted that the penalty provided for the offences charged is a fine of KES 20,000/= or imprisonment for a term not exceeding three years. However the appellants herein were sentenced to ten years imprisonment each. The sentence imposed as aforesaid was clearly illegal and definitely calls for my intervention.[Emphasis added]
Arising from the foregoing, it is my conviction that these appeals have tremendous merit. Accordingly I allow each appeal, quash the conviction and set aside the sentences imposed on each appellant. The appellants and each one of them shall be set at liberty forthwith unless otherwise lawfully held.”
604 Odour Omondi, CJ: Kenya's Criminal Justice system is 'criminal', News24 Kenya, July, 3 2013, accessed January 17 2014, available here: http://m.news24.com/kenya/MyNews24/CJ-Kenyas-Criminal-Justice-system-is-criminal-20130703; 605 Republic of Kenya Judiciary Media Brief, Summary of the judiciary service week, November 15 2013, accessed January 17 2014, available here: http://www.judiciary.go.ke/portal/courts-finalise-1587-criminal-appeals-during-judiciary-service-week.html 606 [2009] eKLR, accessed January 17, 2014, available here: http://www.kenyalaw.org/caselaw/cases/view/54332/
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Koyet Lemusini & 4 Others v Republic [2011] eKLR607
“On 22 December 2010 the charges were read out to the accuseds and they pleaded guilty to Count No. 2 and 4. The facts were not read out to the accused as is required by law. Instead the prosecutor merely stated:
“May the particulars be as per the charge sheet on count 2 and 4. May the accuseds be treated as first offenders”
Firstly to declare facts to be ‘as per charge sheet’ does not fulfill the legal requirement that the facts be read out and explained to the accuseds. The record indicates the presence of a Masai interpreter at the time of plea. There is no indication that the facts were translated into Masai for the benefit of the accuseds. Secondly none of the accuseds indicated whether or not they accepted those facts as true. Thirdly the learned trial Magistrate did not record a conviction against any of the accuseds as is required by S. 207(2) of the Criminal Procedure Code…
the terms of S. 207(2) are mandatory that upon a plea of guilty the court shall render a conviction against the accused person. This was not done in this case. The trial Magistrate merely proceeded to impose sentence. A sentence imposed in the absence of a conviction is a nullity. Furthermore the court did not accord each accused the opportunity to mitigate as required by law. All the record indicates is:
“Mitigation – none”
This is improper. The Magistrate ought to have called upon each accused to make a statement in mitigation before imposing her sentence. There is no indication from the record that this procedure was followed. Finally I find that the pleas of the five accused in respect to Count No. 2 and 4 were not taken in accordance with law and/or procedure. This renders the sentences imposed in respect of those two counts null and void and I hereby quash the purported convictions of the 5 accused on Count Nos. 2 and 4…”[Emphasis added]
Joseph Kioko v Republic [2012] eKLR608
“Giving a summary of the facts, the prosecutor does not appear to have stated whether the appellant herein was in possession, or was a dealer, or knew and failed to make a report to the authorities on the whereabouts of the trophies in question. This leaves a doubt in my mind, as to whether the facts given by the prosecution disclosed any offence against the applicant. My view is therefore that the appeal has overwhelming chances of success. On that account, there is no point of detaining the applicant in custody. I will grant bail pending appeal.” [Emphasis added]
607 [2011] eKLR accessed January 17, 2014, available here: http://www.kenyalaw.org/caselaw/cases/view/74286/ 608 [2011] eKLR accessed January 17, 2014, available here: http://www.kenyalaw.org/caselaw/cases/view/81923/
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5.4 Judicial capacity
5.4.1 Issues concerning corruption and independence of the judiciary and DPP:
The Chief Magistrate at the Naivasha Law Courts, Stephen Githinji, reportedly informed a researcher for an article published in November 2013 that most suspects of wildlife offences do not even make it to court. They are not being arrested, he said, as a result of poor investigations or corruption. Many cases that do come before magistrates collapse because the prosecution has failed to follow protocol. He is also quoted to have said "When police realise that no one is following up on their cases, it is easy for them to be compromised and help the suspects. We need to know all cases are tracked".609
During the period 2011-2012 the judiciary recorded that the second largest number of complaints to the Office of the Judiciary Ombudsperson were because of missing files and the fourth largest number due to corruption. Of 9,776 recorded complaints during this period, 2,361 were due to alleged missing files or corruption.610
WildlifeDirect has also reported missing court files when searching court records in relation to specific cases of prosecutions of individuals for wildlife offences.611
The Constitution of Kenya provides for an independent judiciary; however, the President has extensive powers over appointments, including those of the Attorney General, the Chief Justice, and Appeal and High Court judges. The President can also dismiss judges and the Attorney General upon the recommendation of a special presidentially appointed tribunal. Although judges have life tenure (except for the very few foreign judges who are hired by contract), the President has extensive authority over transfers. In practice, the judiciary is reported to be subject to strong influence from the executive.612
5.4.2 Resources available to the judiciary:
Chief Justice Mutunga noted that during 2013, 116,754 cases were filed in all courts across the country and another 191,903 were resolved, leaving 657,760 pending.613 Earlier in 2013, he also raised a number of concerns regarding the high case load of criminal appeal
609 Sarah Morrison, Charity Appeal:'The way to stop poaching is to use people like me,' says man jailed for cutting off dead elephant's tusks , The Independent, December, 22 2013, available here: http://www.independent.co.uk/environment/nature/charity-appeal-the-way-to-stop- poaching-is-to-use-people-like-me-says-man-jailed-for-cutting-off-dead-elephants-tusks-9020178.html 610 Hon. Dr. Willy Mutunga, State of the Judiciary 2011-2012 (2012) p. 33. 611 Paula Kahumbu, Kenya: Magistrates Lenient on Wildlife Traffickers, The Star, November, 29 2013, accessed January, 17 2014, available here: http://allafrica.com/stories/201311290746.html 612 Dr Robert Winslow assisted by Myron Epps, Crime and Society - a comparative criminology tour of the world; Africa; Kenya 613 Hon. Dr Wily Mutunga, Reflections on the year gone by, Undated, accessed January 17 2013, available here: http://www.judiciary.go.ke/portal/reflections-on-the-year-gone-by-chief-justice-willy-mutunga.html
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cases and the significant delays in the court system caused by lack of resource in the judiciary (see paragraph 5.3 above). In a report published by the Kenyan judiciary for the period 2011-2012, 174,878 criminal cases were issued in magistrates' courts, 158,161 cases were resolved and 111,340 cases were left pending.614 In the same report, it was noted that there was a shortfall of 172 magistrates' courts across Kenya.615
Chief Justice Mutunga also noted a number of challenges facing the judiciary following a review of 2013, which included:
o Continued underfunding from the government, which is significantly below the internationally agreed benchmark of 2.5% of the national budget;
o Shocking corruption in the administrative cadres; and
o Rising budget deficit in the judiciary.616
The KWS has also previously reported delays in the prosecution of suspected offences caused by the lack of interpreters where the accused is unable to speak the language of the magistrates' court.617
5.4.3 Expertise and knowledge of the judiciary:
Support or training provided has been from charities, the KWS, the DPP and the judiciary on an ad hoc basis:
o The charity Space for Giants in partnership with the DPP in Kenya and the British High Commission are reported to have designed a handbook of all of the laws that could be used to combat wildlife crimes. In addition, with charity funding, they plan to train KWS wildlife wardens in all elements of the criminal trial process.618
o There are examples of active engagement with the issue of wildlife crimes by various stakeholders of the Kenyan judiciary. A judicial luncheon was convened by the African Wildlife Convention and the KWS in November 2012 to discuss strategies to deter crimes such as poaching. The event was attended by representatives from law firms, state law offices and the judiciary, and focussed on the successful
614 Hon. Dr. Willy Mutunga, State of the Judiciary 2011-2012 (2012) - p. 26. 615 Hon. Dr. Willy Mutunga, State of the Judiciary 2011-2012 (2012) - p. 12. 616 Hon. Dr. Willy Mutunga, State of the Judiciary 2011-2012 (2012) - p. 44. 617 KWS, Interpreters sought in prosecution of suspected Vietnamese ivory smugglers, January, 24 2013, accessed January 17 2014, available here: http://www.kws.org/info/news/2013/24janivorysmaggle2013.html; KWS, Chinese woman to serve a total of 31 months in jail for smuggling ivory, August, 22 2013, accessed January 17 2014, available here: http://www.kws.go.ke/info/news/2013/22august2013chinese.html 618 Sarah Morrison, Charity Appeal:'The way to stop poaching is to use people like me,' says man jailed for cutting off dead elephant's tusks , The Independent, December, 22 2013, available here: http://www.independent.co.uk/environment/nature/charity-appeal-the-way-to-stop- poaching-is-to-use-people-like-me-says-man-jailed-for-cutting-off-dead-elephants-tusks-9020178.html
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prosecution of illegal wildlife trafficking, with the goal of effecting more meaningful deterrents.619
From reviewing the limited appellate case law available from the Kenyan National Council for Law Reporting, (see paragraph 5.3 above), these cases demonstrated significant and repeated procedural and/or substantive errors by the magistrates' courts in hearing and deciding cases involving wildlife offences. This, coupled with the apparent lack of specific training given to magistrates in relation to wildlife offences, suggests that there is a need to provide specific training to magistrates in relation to wildlife offences.
5.4.4 Additional information
5.4.4.1 Forensic expertise in preparing cases for prosecution:
WildlifeDirect reported in their recent study that just over 15% of offenders who formed part of their study had their case withdrawn or dismissed as a result of inconclusive investigations, missing police files, incomplete case files, missing evidence, failure of the prosecution to provide a tangible case, or the accused absconded whilst released on cash bail/bond.620
In view of limitations caused by the lack of forensic expertise available to prosecute wildlife offences, the KWS has reported that a new forensic laboratory which will be the first of its kind in Africa is due to open in 2014 to assist in the preparation of cases for the prosecution of wildlife offences.621
KWS has confirmed that the Forensics and Genetics Laboratory will serve three major roles, namely:
o Boosting prosecution in the illegal trade of bush meat;
o Advancing the prosecution of poachers and smugglers; and
o Population genetics and melocular diagnostics.622
6. CONCLUSIONS
The 1976 Act went some way towards working to change attitudes to wildlife but did not go far enough to prevent crimes against wildlife. It was probably an important step nevertheless in helping Kenyans to recognise the importance of preserving wildlife, which was, and still is, seen by many as a nuisance and a threat to agriculture. The 1976 Act failed to have a
619 KWS, African law enforcement, judicial, and legal professionals jointly address wildlife-related crimes, November, 6 2012, accessed January 17 2014, available here: www.kws.org/info/news/2012/6_nov_law_enforcement_2012.html 620 Paula Kahuma, Levi Byamukama, Jackson Mbuthia & Ofir Drori for WildlifeDirect (2014), "Scoping study on the prosecution of wildlife related crimes in Kenyan courts January 2008 to June 2013". 621 KWS, KWS commissions construction of wildlife forensic and genetics laboratory, August, 14 2012, accessed January 17 2014, available here: http://www.kws.org/info/news/2012/9_8_12_lab.html 622 KWS, KWS commissions construction of wildlife forensic and genetics laboratory, August, 14 2012, accessed January 17 2014, available here: http://www.kws.org/info/news/2012/9_8_12_lab.html
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sufficient deterrent effect, however, as the penalties remained comparatively minor. A number of bodies had been critical of Kenya as a result. In particular, Kenya is considered by CITES to be a country which has not fully implemented the CITES requirements into domestic legislation (although this analysis was carried out before the New Act entered into force).623 The New Act is therefore crucial to Kenya's credibility as a nation trying to protect its wildlife. The legislation was submitted to the CITES Secretariat for review and it is possible that the New Act will be confirmed by CITES as fully implementing the Convention.
The New Act provides a message to poachers and illegal traffickers that wildlife crime is being taken seriously by the Kenyan Government. The most severe penalties for the most serious offences do exceed those considered as the "minimum" benchmark for serious crimes by UNODC (although there is also a fiscal alternative) and the ancillary offences within the New Act which impact on the ability of poachers and illegal traffickers to function effectively such as road blocks, restrictions on air traffic and wide-ranging powers of authorised officers, give a much broader protection than the previous legislation. In addition, the Kenyan Government has clearly attempted to address issues of support in the community through public consultation requirements in relation to the creation of, and changes to, national parks and reserves, and also by widening the compensation schemes available to include more economic considerations. The enfranchisement of the local populations to take action themselves also helps to reinforce this message.
Overall, the New Act provides a more comprehensive piece of legislation than the previous provisions and has tried to address issues inherent in the previous legislation. As with any piece of legislation however, the effectiveness of its enforcement and the level of public support will be key and is yet to be proven. Undoubtedly, cooperation with other African nations is beginning, as the joint task force used to create a census of wildlife in certain regions of Kenya and Tanzania demonstrates, but this will need to be widened if the New Act is to be truly effective.
With the ivory trade in Kenya having increased in recent years, this important piece of legislation could make a significant difference to the campaign to prevent illegal destruction of animals in Kenya - provided it is correctly enforced, corruption is curtailed and that it receives the right level of buy-in from local communities, enforcement officers and the judiciary.
6.1 Effectiveness of legislation
Enforcement of the provisions of the New Act is going to be key to its success. Investment in additional officers of the KWS should help with this, but maintaining focus on enforcement will be essential if the New Act is going to achieve its aim to deter wildlife criminals.
The sources we have searched suggest that penalties imposed under the 1976 Act were applied on an ad hoc and sporadic basis. A report from a Kenyan national convicted of a wildlife offence in 2013 also suggested that poachers are not aware of the various wildlife offences under the 1976 Act, nor the possible penalties which could follow.624 On this basis, it is not possible to say that the 1976 Act has acted as an effective deterrent to date.
623 CITES Website, accessed January 2014, http://www.cites.org/eng/com/sc/62/E62-23.pdf 624 Sarah Morrison, Charity Appeal:'The way to stop poaching is to use people like me,' says man jailed for cutting off dead elephant's tusks , The Independent, December, 22 2013, available here: http://www.independent.co.uk/environment/nature/charity-appeal-the-way-to-stop- poaching-is-to-use-people-like-me-says-man-jailed-for-cutting-off-dead-elephants-tusks-9020178.html
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Whilst the New Act has increased the seriousness of wildlife offences in Kenya, the impact of the New Act relies heavily on effective prosecutions of suspected wildlife offenders and appropriate sentences for convictions being delivered by magistrates' courts. We have made a number of recommendations below based on the issues identified in this report which should aid the effectiveness of the New Act in practice.
6.2 Recommendations
WildlifeDirect makes a number of detailed recommendations for reform as a result of its recent study.625 Based on the findings in our report, we support and echo these recommendations and our own recommendations overlap as a result of the common issues and themes identified. In view of the importance of the effective prosecution and sentencing of individuals accused of wildlife offences which we have identified as a key area for improvement in the Kenyan judiciary, our recommendations are that:
formal specialist training is provided to all magistrates regarding the New Act and ancillary legislation and the maximum penalties available;
detailed sentencing guidelines in respect of wildlife offences and ancillary legislation are published to assist magistrates in taking a consistent approach to sentencing across Kenya. Clear sentencing guidelines which are actively applied by the magistrates' courts should reduce scope for inconsistency between courts and corruption;
the DPP ensures that all prosecutors of wildlife offences are given appropriate advocacy and criminal legal procedure training to ensure that the state is able to conduct effective prosecutions that are not at risk of being quashed on appeal due to procedural defects in the handling of cases;
the Kenyan judiciary introduces mandatory procedures to ensure that all court files are stored securely and uploaded to a central electronic database within 24 hours of each hearing. This will ensure that the court record is not lost if the hard copy file is subsequently lost or goes missing;
the Kenyan judiciary publishes detailed data and statistics for all wildlife arrests and wildlife-related offences heard in magistrates' courts on an annual basis and shares this with all magistrates and the public. This data should be reviewed annually by an independent body appointed by the Kenyan judiciary. Any anomalies which do not accord with the proposed sentencing guidelines outlined above should be raised directly with the individual magistrate by the independent body to ensure that there is no evidence of corruption or further training required. Equally, any anomalies in the process of arrest and prosecution of wildlife offences should also be reviewed by the independent body to identify areas for further training or investigation where corruption is suspected; and
the KWS actively engages with local communities as part of a comprehensive nationwide programme to promote the benefit of wildlife conservation in conjunction with the legislative framework of the New Act, in an effort to increase awareness, deter the local Kenyan population from committing wildlife
625 Paula Kahuma, Levi Byamukama, Jackson Mbuthia & Ofir Drori for WildlifeDirect (2014), "Scoping study on the prosecution of wildlife related crimes in Kenyan courts January 2008 to June 2013".
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crimes, and encourage the reporting of suspected wildlife crime and state corruption.
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MALAYSIA
Team Leader and Editor - Samantha Kelly - DLA Piper
Team Members - Abhishek Dube, Allan Flick, Robert Laird, Claire Clayton-Stead, Billie Stevens - DLA Piper
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1. EXECUTIVE SUMMARY
Malaysia has enacted comprehensive legislation regarding the protection and conservation of wildlife, nationally through the International Trade in Endangered Species Act 2008 and regionally through the Wildlife Conservation Act 2010 (Peninsular Malaysia and the Federal Territory of Labuan), the Wildlife Conservation Enactment 1997 (Sabah) and the Wildlife Protection Ordinance 1998 (Sarawak). Malaysia does not have any stand-alone species- specific legislation, however the aforementioned statutes provide an extremely wide range of offences that can be used to tackle the illegal trade of wildlife in Malaysia. This includes a number of offences relating specifically to particular species or to categories of wildlife designated as "protected" or "totally protected".
In addition, there are a number of non-wildlife statutes containing provisions and offences that could be used to combat the illegal trade in wildlife, such as money laundering, corruption, the use of arms and road traffic offences.
In terms of practical application of the relevant legislation, the judicial burden of hearing wildlife matters predominantly falls to the local Magistrates and Sessions Courts. In recent times, Malaysia has invested in new laws and the development of judicial capacity to better adjudicate those laws. There nevertheless appears to be examples of decisions that do not comply with prescribed provisions, and a larger problem may lie with the capacity of public prosecutors to effectively prosecute cases.
In short, therefore, whilst the legislative tools are present to seriously challenge the illegal trade in wildlife in Malaysia, a much more thorough and robust application of those tools is needed if they are to be put to their best effect.
2. PRINCIPAL LEGISLATION
2.1 Legislation summary
Malaysia is a federal constitutional monarchy consisting of 13 states and three federal territories. Eleven states and two federal territories are situated on the Malay Peninsula (collectively, Peninsular Malaysia), two states, Sabah and Sarawak, are located on the island of Borneo and the remaining federal territory, the Federal Territory of Labuan, is located on an island. Malaysia's legislative system consists of federal laws (usually called Acts), which apply nationwide, and state laws (usually called Enactments or Ordinances), which apply only in the particular state(s) in which they are enacted. Federal law prevails over inconsistent state laws.626
The research carried out has identified four principal pieces of domestic federal and state legislation connected to the illegal trade in wildlife in Malaysia: the International Trade in Endangered Species Act 2008 (federal legislation); the Wildlife Conservation Act 2010 (federal legislation, but which does not apply to the states of Sabah and Sarawak); the Wildlife Conservation Enactment 1997 (state legislation applying to Sabah); and the Wildlife Protection Ordinance 1998 (state legislation applying to Sarawak).
626 Article 75 of the Federal Constitution, available at http://www.agc.gov.my/images/Personalisation/Buss/pdf/Federal%20Consti%20(BI%20text).pdf
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The key provisions of, offences under and penalties set out by this legislation are summarised below.
2.1.1 International Trade in Endangered Species Act [Act 686] 2008627
The International Trade in Endangered Species Act 2008 (primary legislation) came into force on 28 December 2009. The statute was enacted in order to implement in Malaysia the Convention on International Trade in Endangered Species of Fauna and Flora ("CITES") and, as federal legislation, it applies to the whole of Malaysia.
Broadly, the Act creates a licensing regime in respect of: importing, exporting and re-exporting scheduled species and the captive breeding of scheduled species for commercial trade purposes.628 It creates a number of criminal offences related to undertaking licensed activities without the required authorisation, and also bestows enforcement powers (such as powers of investigation, search and seizure) on designated enforcement officers.629 The specific offences and their penalties are summarised at Section 3.1 below.
The Act is intended to be read together with other laws relating to the import, export and conservation of animals (such as the other statutes described below), but in the event of any inconsistency the provisions of the Act prevail (s.2).
Regulations pertaining to the issuing of permits, certificates and registrations, and the fees for the same, were made under the Act in the form of the International Trade in Endangered Species (Permit, Certificate, Registration and Fees) Regulations 2009630 which also came into force on 28 December 2009.
Regulations providing for the establishment of a rescue centre to provide adequate care and protection to any living scheduled species listed in the Third Schedule of the Act were made under the Act in the form of the International Trade in Endangered Species (Rescue Centre) Regulations 2009631 which also came into force on 28 December 2009.
2.1.2 Wildlife Conservation Act 2010 [Act 716]632
The Wildlife Conversation Act 2010 (primary federal legislation) came into force on 28 December 2010. It applies to Peninsular Malaysia and the Federal Territory of Labuan, but does not apply to the states of Sabah or Sarawak, and replaced the Protection of Wildlife Act 1972.
Broadly, the Act provides for the regulation, protection, conservation and management of wildlife in Malaysia, creating a licensing and permit regime for the hunting and keeping of and trade in wildlife and for commercial operations,
627 Available at http://en.p4phm.org/downloads/Act_686_2008.pdf 628 Part IV of the Act 629 Parts II and V of the Act 630 Available at http://faolex.fao.org/docs/texts/mal99055.doc 631 Available at http://faolex.fao.org/docs/texts/mal99056.doc 632 Available at http://www.gunungganang.com.my/pdf/Malaysian-Legislation/National/Wildlife%20Conservation%20Act%202010.pdf
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such as the running of zoos, circuses, captive breeding programmes and research and study programmes.633 It also allows for the designation of wildlife reserves and sanctuaries, imposing controls on entering those areas as well as the activities that may be conducted within them.634 It creates a number of criminal offences related to the undertaking of prohibited activities and the undertaking of activities without the appropriate licence. It also bestows enforcement powers (such as powers of investigation, search and seizure) on designated enforcement officers.635 The specific offences and their penalties are summarised in section 3.2 below.
2.1.3 Wildlife Conservation Enactment 1997636
The Wildlife Conservation Enactment 1997 (primary state legislation) came into force in 1997. It applies to the state of Sabah only.
Broadly, the Enactment provides for the protection, conservation and management of wildlife in Sabah, creating a licensing and permit regime for the hunting of and trade in wildlife.637 It also allows for the designation of wildlife sanctuaries, conservation areas and wildlife hunting areas, imposing controls on entering those areas as well as the activities that may be conducted within them.638 It creates a number of criminal offences related to the undertaking of prohibited activities and the undertaking of activities without an appropriate licence. It also bestows enforcement powers (such as powers of investigation, search and seizure) on designated enforcement officers.639 The specific offences and their penalties are summarised in section 3.3 below.
2.1.4 Wildlife Protection Ordinance 1998640
The Wildlife Protection Ordinance 1998 (primary state legislation) came into force in 1998. It applies to the state of Sarawak only.
The Ordinance provides for the designation and management of wildlife sanctuaries, imposing controls on the activities that may be conducted within them.641 It also aims to improve wildlife protection, creating various administrative and enforcement functions for wildlife conservation and protection, such as a wildlife controller, wildlife wardens and wildlife rangers.642
633 Chapters 1 and 2 of the Act 634 Part V of the Act 635 Part VIII of the Act 636 Available at http://www.wildlife.sabah.gov.my/WILDLIFE%20CONSERVATION%20ENACTMENT%201997.pdf 637 Part IV of the Enactment 638 Part III of the Enactment 639 Part VIII of the Enactment 640 Available at http://www.sarawakforestry.com/pdf/laws/wildlife_protection_ordinance98_chap26.pdf 641 Part III of the Ordinance 642 Part II of the Ordinance
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The Ordinance creates a number of criminal offences principally in relation to the hunting of and trade in wildlife. The specific offences and their penalties are summarised in section 3.4 below.
2.2 Challenges to legislation
The legislation is, in general terms, comprehensive, furnishing enforcement officers with a wide range of offences to crack down on the illegal wildlife trade, as summarised in section 3 below. The range of offences enables enforcement officers to target all stages of the illegal trade in wildlife, i.e. not only those who hunt wildlife illegally, but also those who buy and sell it and deal in animal products and parts.
That, however, is not to say that there are not shortcomings in the legislation. For example, the hunting or keeping of a number of totally protected species under s.68 of the Wildlife Conservation Act 2010 carries a reduced (rather than increased, when compared with protected species) maximum prison term, from three to two years. In some cases, a minimum number of heads is required before the more significant penalties are applied. There are exceptions to, for example, offences under the Act involving the capture or killing of wildlife in order to protect crops or domestic animals (s.54). The Director General (and any authorised officer) is also exempt from offences under the Act that relate to a 'conservation activity' (which is defined so as to include any activity that 'relates to the protection, management and sustainable use of wildlife') (s.50). The difficulty with such exceptions is that they are subjective and susceptible to manipulation, for instance traders could deliberately bait crops to attract animals which they could then be considered justified in killing. Furthermore, the legislation maintains a system of special permits and licences issued at the discretion of the Minister of Natural Resources and Environment, without any sort of regulatory board to ensure there is no corruption and that appropriate levels of protection are implemented.
In addition, the legislation applicable to Sabah and Sarawak falls short of adequate legislative protection in the specific context of curbing illegal trade in wildlife for lack of specified offences relating to more at-risk species and more lenient penalties for offences relating to protected and totally protected species compared with the federal legislation.
The real challenge faced in relation to the illegal trade in wildlife in Malaysia however is the enforcement of the legislation and adequate prosecution of the offences under it. This is discussed further in section 5.2 below.
2.3 Species-specific legislation
There are no specific legislative instruments established under Malaysian domestic law to protect individual species, however there are a number of vulnerable, threatened and endangered species specifically protected under the International Trade in Endangered Species Act 2008, the Wildlife Conservation Act 2010, the Wildlife Conservation Enactment 1997 and the Wild Life Protection Ordinance 1998 (see sections 2.1.1 - 2.1.4 above).
2.3.1 International Trade in Endangered Species Act 2008643
Seven "Management Authorities" have been appointed by the Malaysian Government in an attempt to ensure compliance with CITES obligations: the
643 Available at http://en.p4phm.org/downloads/Act_686_2008.pdf
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Department of Wildlife and National Parks ("DWNP"), the Malaysian Nature Society, the Marine Research Foundation, Sabah Wildlife Department, Sarawak Forestry Corporation Sdn Bhd, the Sabah Parks Board of Trustees and the World Wide Fund For Nature - Malaysia.
2.3.2 Wildlife Conservation Act 2010644
The Act creates categories of "protected wildlife" (listed in the First Schedule to the Act) and "totally protected wildlife" (listed in the Second Schedule to the Act) (s.3).
Every offence under the Act is a seizeable offence (allowing arrests to be made without a warrant) for the purpose of the Criminal Procedure Code [Act 593]645 (s.89).
Species-specific offences and penalties are summarised in section 3.2 below.
2.3.3 Wildlife Conservation Enactment 1997646
Species-specific offences and penalties are summarised in section 3.3 below.
2.3.4 Wild Life Protection Ordinance 1998647
The Ordinance divides wildlife into totally protected animals, protected animals, wild animals, totally protected plants and protected plants.648
Species-specific offences and penalties are summarised in section 3.4 below.
2.3.5 Action plans
In addition, the Malaysian government, together with community organisations, has also implemented a number of species-specific action plans, such as:
National Ivory Action Plan and Malaysian National Elephant Conservation Action Plan. Malaysia developed the action plans in 2013 after being identified as a primary transit country by CITES, specifically relating to illegal trade of ivory.649
National Tiger Conservation Action Plan. Adopted by Malaysia in November 2009 and aimed at the recovery of the tiger population. The program implemented 650,000 ha of protected areas and
644 Available at http://www.gunungganang.com.my/pdf/Malaysian-Legislation/National/Wildlife%20Conservation%20Act%202010.pdf 645 Available at http://www.google.com.au/url?sa=t&rct=j&q=&esrc=s&frm=1&source=web&cd=1&ved=0CCYQFjAA&url=http%3A%2F%2Fwww.agc .gov.my%2FAkta%2FVol.%252012%2FAct%2520593.pdf&ei=0EznUs2TLoquiAeZn4GQCA&usg=AFQjCNE- 5nsDOII_27viT0joe__3D9tZSA&sig2=jKAeVBUfmZjeG-koFb2Inw 646 Available at http://www.wildlife.sabah.gov.my/WILDLIFE%20CONSERVATION%20ENACTMENT%201997.pdf 647 Available at http://www.sarawakforestry.com/pdf/laws/wildlife_protection_ordinance98_chap26.pdf 648 Ss. 29-30. 649 Azim, F. Ilias, R. and Yasak, M. N (2012) Status of Wildlife Conservation in Peninsular Malaysia, National Biodiversity Seminar (MyBioD 2012) Department of Wildlife and National Parks, Malaysia, accessed at http://www.nre.gov.my/Malay/Biodiversiti/Documents/Status%20of%20Wildlife%20Conservation_DWNP.pdf
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developed wildlife corridors, along with the introduction of mandatory imprisonment for poaching of tigers under the Wildlife Conservation Act 2010.650
2.4 Additional information
The Wildlife Conservation Act 2010 along with the action plans developed by the Malaysian Government shows a commitment to fulfilling international obligations and is consistent with the information on Malaysia contained in a report prepared by TRAFFIC, a wildlife trade monitoring network established in 1976.651 Specifically, the TRAFFIC report touches on the efforts of the following two organisations in Malaysia in curbing illegal trade in wildlife:
2.4.1 Conservation International is helping to stop illegal export of endangered species from Madagascar to Malaysia such as tortoises, geckos, chameleons and frogs.652
Enforcement
In Malaysia, hundreds of endangered tortoises protected under the International Trade in Endangered Species Act 2008, along with frogs and chameleons, have been reported to have been seized from illegal wildlife traders since 2010.653 In 2010, two women attempting to smuggle tortoises from Madagascar were the first to be convicted under the Act and imprisoned.654 However, although convicted wildlife trafficker Anson Wong was implicated by one of the women, he was not investigated or prosecuted.655
2.4.2 The Wildlife Conservation Society is working with Malaysia in anti-poaching campaigns to increase surveillance and enforcement responses for tigers and elephants.656
Enforcement
Malaysia has implemented the National Ivory Action Plan and is reported to have seized numerous large shipments of smuggled elephant tusks since mid-2011, including one worth $20 million in 2012.657
650 Rasid Samsudin Director General, Department of Wildlife and National Parks Ministry of Natural Resources and Environment Malaysia, accessed at http://www.globaltigerinitiative.org/download/St_Petersburg/AbdRasid_Samsudin_Malasia.pdf 651 See generally About TRAFFIC: The Wildlife Monitoring Network, available at http://www.traffic.org/overview/ 652 Background Wildlife Trade Report - prepared by Traffic (Draft 22 November 2013), p5 653 TRAFFIC: The Wildlife Monitoring Network, Hundreds of Malagasy Tortoises Seized in Malaysia, July 16, 2010, available at http://www.traffic.org/home/2010/7/16/hundreds-of-malagasy-tortoises-seized-in-malaysia.html 654 Malaysia gets tough new wildlife law, Traffic, August 6, 2010, available at http://www.traffic.org/home/2010/8/6/malaysia-gets-tough- new-wildlife-law.html 655 Putrajaya urged to set up inquiry into 'Lizard King' activities, The Malay Mail Online, November 29, 2013, available at http://www.themalaymailonline.com/malaysia/article/putrajaya-urged-to-set-up-inquiry-into-lizard-king-activities 656 Background Wildlife Trade Report - prepared by Traffic (Draft 22 November 2013), p7 657 (December 13, 2012) Malaysia seizes $20M illegal stash of elephant tusks, CBS/AP, accessed at http://www.cbsnews.com/news/malaysia-seizes-20m-illegal-stash-of-elephant-tusks/
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The Malaysian Government attests to having seized several tonnes of ivory consignments in recent years and stopped 306 attempts to smuggle wildlife out of the country.658
However, numerous occasions were reported in 2013 whereby illegal shipments of ivory were transported through Malaysia to China without detection, indicating that there remain issues with enforcement.659
3. PENALTIES
3.1 International Trade in Endangered Species Act 2008
The Act creates a number of criminal offences relating to the trade in "scheduled species" (defined as any animal or plant, including a recognisable part or derivative thereof, specified in the Third Schedule). These have been categorised into (i) offences related the actual trade in wildlife; (ii) offences related to the licensing provisions of the Act; and (iii) offences related to enforcement action under the Act.
Penalties differ according to whether the offender is an individual or a corporate. Individuals may receive either a fine or a term of imprisonment or both. Fines for corporates may be up to double the fines for individuals. The fines that can be imposed range from RM50,000 (US$15,003) to RM1,000,000 (US$300,075) for individuals and RM100,000 (US$30,007) to RM2,000,000 (US$600,150) million for corporates).
The most serious offences under the Act (in terms of the gravity of the penalty) are trade offences (importing, exporting or breeding scheduled species) committed without the appropriate permission required under the Act.
The key provisions of the principal specific offences under the Act and the penalties for those offences are:
3.1.1 Trade offences Importing, exporting or re-exporting a scheduled species without a permit, or possessing selling or advertising for sale any such species (ss.10-12). Failure to have a valid import, export or re-export permit, licence, certificate or written permission, for any scheduled species in transit with (s.13). Captively breeding any scheduled species for commercial trade purposes without registration with a Management Authority, or possessing, selling or advertising for sale any such species (s.14). For the above offences, if the offender is an individual, the penalty is a fine of up to RM100,000 (US$30,007) per animal (or recognisable part or derivative) up to a maximum fine of RM1,000,000 (US$300,075) and/or up to seven years' imprisonment. If the offender is a corporate, the penalty is a fine of up to RM200,000 (US$60,015) per
658 Intervention by Mr Loh Seck Tiong, Representative of Permanent Mission of Malaysia to thew United Nations at the High Level Discussion on Poaching and Illicit Wildlife Trafficking, 26 September 2013, New York. http://www.cites.org/eng/news/sg/2013/intervention_my.pdf 659 Lai, I. (October 10 2013) Two tonnes of illegal ivory slip past Malaysia, The Star, accessed at http://www.thestar.com.my/News/Nation/2013/10/10/Two-tonnes-of-illegal-ivory-slip-past-Malaysia.aspx/
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animal (or recognisable part or derivative) up to a maximum fine of RM2,000,000 (US$600,150). Altering, counterfeiting, destroying or removing any brand, label or mark required to the satisfaction of a Management Authority (s.15). Failure to keep records of stocks and transactions when registered with a Management Authority to captively breed any scheduled species for commercial trade purposes (s.18). For the above offences, if the offender is an individual, the penalty is a fine of up to RM100,000 (US$30,007) and/or up to seven years' imprisonment. If the offender is a corporate, the penalty is a fine of up to RM200,000 (US$60,015). Failure to brand, label or mark a scheduled species to the satisfaction of a Management Authority (s.15). If the offender is an individual, the penalty is a fine of up to RM50,000 (US$15,037) and/or up to three years' imprisonment. If the offender is a corporate, the penalty is a fine of up to RM100,000 (US$30,007). 3.1.2 Licensing offences Failure to comply with the conditions imposed by a Management Authority on a permit, certificate or registration document to import, export, re-export or captively breed any scheduled species for commercial trade purposes (s.16). If the offender is an individual, the penalty is a fine of up to RM200,000 (US$60,015) and/or up to ten years' imprisonment. If the offender is a corporate, the penalty is a fine of up to RM400,000 (US$120,030). Altering, forging or defacing any permit, certificate or registration document or knowingly using any such permit, certificate or registration document (s.44). If the offender is an individual, the penalty is a fine of up to RM100,000 (US$30,007) and/or up to seven years' imprisonment. If the offender is a corporate, the penalty is a fine of up to RM200,000 (US$60,015). Failure to surrender a permit, certificate or registration document to a Management Authority on cancellation of that permit, certificate or registration document by the Management Authority (s.17). If the offender is an individual, the penalty is a fine of up to RM50,000 (US$15,037) and/or up to three years' imprisonment. If the offender is a corporate, the penalty is a fine of up to RM100,000 (US$30,007). 3.1.3 Enforcement offences Failure to return any scheduled species to the place from which it was shipped to Malaysia when required to do so by a Management Authority (s.34). Making any untrue, inaccurate or misleading statement required under the Act (s.44). For the above offences, if the offender is an individual, the penalty is a fine of up to RM100,000 (US$30,007) and/or up to seven years' imprisonment. If the offender is a corporate, the penalty is a fine of up to RM200,000 (US$60,015). Assaulting, obstructing, impeding or interfering with any enforcement officer in the performance of his functions under the Act, causing the disappearance of, damaging or destroying any item seized under the Act, or destroying any such item in order to prevent the seizure thereof (s.40). Fine of up to RM100,000 (US$30,007) and/or up to seven years' imprisonment.
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Breaking, tampering with or damaging a seal placed on any scheduled species, conveyance, machinery, contrivance, equipment, book, record, document or other article, or removing the sealed item, or attempting to do so (s.23). Fine of up to RM100,000 (US$30,007) and/or up to three years' imprisonment. Failure to stop a conveyance and allow an enforcement officer to search it (s.28). Failure to surrender any temporarily returned seized conveyance, machinery, contrivance or equipment or contravention of any of the terms or conditions imposed on such return (s.30). Failure to comply with an enforcement officer's requests660 (s.39). For the above offences, the penalty is a fine of up to RM50,000 (US$15,037) and/or up to three years' imprisonment. 3.2 Wildlife Conservation Act 2010
The Act creates a number of criminal offences relating to the conservation and trade in wildlife. These have been categorised into (i) hunting offences; (ii) trade offences; (iii) licensing offences; and (iv) enforcement offences.
Penalties include both fines and terms of imprisonment (both of which may be imposed on the same individual). The fines that can be imposed range from RM5,000 (US$1,500) to RM300,000 (US$90,022).
The most serious offences under the Act (in terms of the gravity of the penalty) are hunting offences committed against wildlife designated as "totally protected" by the Act.
The key provisions of the principal specific offences under the Act and the penalties for those offences are:
3.2.1 Hunting offences Hunting or keeping female totally protected wildlife without a special permit (s.70). Fine of up to RM300,000 (US$90,022) and/or up to ten years' imprisonment. Hunting or keeping immature totally protected wildlife without a special permit (s.69). Fine of up to RM200,000 (US$60,015) and/or up to ten years' imprisonment. Using a snare for hunting wildlife (s.29). Fine of RM50,000 (US$15,003) - RM100,000 (US$30,007) and/or up to two years' imprisonment. Hunting or keeping immature or female protected wildlife without a licence (ss.61-62). Fine of up to RM100,000 (US$30,007) and/or up to five years' imprisonment. Possessing a snare (s.29). Hunting or keeping totally protected wildlife (except immature or female totally protected wildlife) or taking or keeping a part or derivative of totally protected wildlife without a special permit (s.68).
660 An enforcement officer has the power to request the production of and the right of inspection of records, accounts, documents and identification documents and the power to make enquiries to ascertain whether the Act has been complied with.
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For the above offences, the penalty is a fine of up to RM100,000 (US$30,007) and/or up to three years' imprisonment. Collecting birds' nests without a licence (s.64). Fine of RM20,000 (US$6,001) - RM50,000 (US$15,003) and/or up to two years' imprisonment. Hunting or keeping protected wildlife or taking or keeping a part or derivative of protected wildlife without a licence (s.60). Damaging or destroying the egg or nest of totally protected wildlife (s.75). Hunting wildlife, or taking, destroying or damaging the nest or egg of wildlife, in a wildlife reserve or wildlife sanctuary (s.76). Setting, using or placing poison, poisoned bait, birdlime or a net for the purpose of hunting wildlife (s.79). Hunting wildlife within 400 metres of a salt lick; possessing arms, a bow and arrow, blowpipe, catapult, spear or other article capable of being used in hunting wildlife within 400 metres of a salt lick; waiting, building a platform or shelter, setting or placing a trap, poison, poisoned bait, birdlime or a net for the purpose of hunting wildlife within 400 metres of a salt lick or within any access road to a salt lick (s.81). For the above offences, the penalty is a fine of up to RM50,000 (US$15,003) and/or up to two years' imprisonment. Hunting wildlife from a mode of transport (s.82). Fine of up to RM30,000 (US$9,002) and/or up to one year's imprisonment. Damaging or destroying the egg or nest of protected wildlife (s.74). Hunting wildlife other than in hours prescribed by a licence or special permit (s.77). Hunting protected wildlife during the closed season (s.78). Hunting wildlife with arms or traps other than as prescribed by a licence or special permit (s.80). For the above offences, the penalty is a fine of up to RM20,000 (US$6,002) and/or up to one year's imprisonment. Failure by a licensed hunter, permit or special permit holder to keep proper records of hunting661 (s.36). Fine of up to RM10,000 (US$3,001) and/or up to six months' imprisonment.
3.2.2 Trade offences Importing, exporting or re-exporting totally protected wildlife (or a part or derivative) without a special permit (s.71). Fine of RM30,000 (US$9,002) - RM100,000 (US$30,007) and up to three years' imprisonment.
661 The hunter must record on his licence, permit or special permit the number, sex and species of wildlife hunted; the date and locality of hunting; the methods or means of hunting; or methods and date of disposal, including the licence, permit or special permit number of any purchaser.
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Using totally protected wildlife for a zoo, circus, wildlife exhibition or captive commercial breeding programme without a special permit (s.72). Fine of up to RM100,000 (US$30,007) and/or up to three years' imprisonment. Operating a zoo, commercial captive breeding programme, circus or wildlife exhibition without a permit (s.66). Fine of up to RM70,000 (US$21,005) and/or up to three years' imprisonment. Importing, exporting or re-exporting protected wildlife (or a part or derivative) without a licence (s.65). Fine of RM20,000 (US$6,002) - RM50,000 (US$15,003) and up to one year's imprisonment. Carrying out the business of dealing or a taxidermy business without a licence (s.63) (note - 'business of dealing' is defined so as to apply primarily to protected wildlife rather than totally protected wildlife). Fine of up to RM50,000 (US$15,003) and/or up to two years' imprisonment. Keeping, selling, purchasing, importing or exporting any controlled species specified in the Fifth Schedule (s.117). Fine of up to RM30,000 (US$9,002) and/or up to one year's imprisonment. Sale by a licensed hunter of protected wildlife other than to a licensed dealer or taxidermist (s.40). Sale by a birds' nest collector of birds' nests collected by him other than to a licensed dealer or taxidermist (s.41). Purchase by a licensed dealer or taxidermist of protected wildlife (or any part or derivative) other than from a licensed hunter, dealer or taxidermist (s.42). Sale by a licensed dealer of any protected wildlife other than during the open season or first thirty days of the closed season (s.43). Selling any thing containing or claiming to contain a derivative of totally protected wildlife (s.87). Acquisition by a person, other than a licensed dealer or taxidermist, of any protected wildlife (or any part or derivative) other than from a licensed dealer or taxidermist (s.120). For the above offences, the penalty is a fine of up to RM20,000 (US$6,001) and/or up to one year's imprisonment. Receipt by a licensed taxidermist of any wildlife (or any part or derivative) without proof that it was lawfully acquired (s.39). Failure by a licensed dealer, taxidermist or birds’ nest collector to issue a receipt of sale (s.44). Failure by a licensed dealer to keep proper records662 of his trade in wildlife (s.37).
662 The dealer must keep records of the number and species of wildlife (live or dead), the number of parts or derivatives and the number of articles manufactured from any wildlife or part or derivative, which were purchased, acquired or sold; the name, address and licence number of the person from whom the wildlife, parts or derivatives or articles were purchased or acquired; the name, address and licence number, if any, of the person to whom the wildlife, parts or derivatives or articles were sold; the receipt number issued for any sale or purchase; and the date of any purchase, acquisition or sale.
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Failure by a licensed taxidermist to keep proper records663 of his trade in wildlife (s.38). Fine of up to RM10,000 (US$3,000) and/or up to six months' imprisonment.
3.2.3 Licensing offences Failure to properly tag or label wildlife kept, sold, imported, exported, re-exported or bred (s.45). Failure to obtain approval to keep wildlife at any premises other than specified in a licence (s.46). Possessing the licence, permit or special permit of another person (s.83). Keeping a licence, permit or special permit at an address other than as stated on that licence, permit or special permit (s.84). The penalty for the above offences is a fine of up to RM20,000 (US$6,001) and/or one year's imprisonment. Failure to carry a licence or special permit while hunting wildlife; failure to display a licence at a licensed place of business; failure to produce a licence, permit or special permit for inspection (s.17). Assignment by a licence-holder of any right, duty, liability or obligation under his or her licence, permit or special permit to any other person (s.21). Failure by a licence holder to return his or her licence, permit or special permit to the licensing officer within 14 days of expiry (s.22). The penalty for the above offences is a fine of up to RM10,000 (US$3,000) and/or up to six months' imprisonment.
3.2.4 Cruelty offences Beating, kicking, infuriating, terrifying, torturing, de-clawing or de-fanging wildlife; neglecting to supply sufficient food or water to wildlife housed, confined or bred; keeping, housing, confining or breeding wildlife so as to cause unnecessary pain or suffering; using wildlife for performing or assisting in the performance of work or labour which it is unfit to perform; using, provoking or infuriating wildlife for the purpose of baiting it or fighting it with other wildlife or animals, or managing any premises or place for this purpose; wilfully doing or omitting to do anything to cause unnecessary suffering, pain or discomfort to wildlife (s.86). Fine of RM5,000 (US$1,500) - RM50,000 (US$15,003) and/or up to one year's imprisonment.
3.2.5 Enforcement offences Failure to surrender to the court a temporarily returned seized mode of transport or contravention of any of the terms or conditions imposed on its return (s.104). Fine of up to MR100,000 (US$30,007) and/or up to three years' imprisonment.
663 The taxidermist must keep records of the date, time and person from whom the wildlife or part or derivative was received; the name, address and licence number of the owner of the wildlife or part or derivative; and the date and time the wildlife or part or derivative is returned to the owner.
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Failure to stop a conveyance and allow an enforcement officer to search it664 (s.101). Refusing an enforcement officer access to premises; assaulting, obstructing, hindering or delaying any enforcement officer in effecting entry; refusing any enforcement officer any information relating to an offence under the Act or any other information (s.114). Failure to comply with an enforcement officer's requests665 (s.115). Fine of up to RM30,000 (US$9,002) and/or up to one year's imprisonment;
3.2.6 General offences Contravention or failure to comply with any provision of the Act, any order or direction given under the Act or the conditions or requirements specified in a licence, permit or special permit, where no penalty is expressly provided (s.125). Fine of up to RM10,000 (US$3,000) and/or up to one year's imprisonment.
3.2.7 Species-specific penalties The Act has expanded protection to a greater number of species, such as the Asian elephant, previously considered as a game animal by Malaysian law and is now a totally protected species under the Second Schedule. Increased sanctions for offences involving particular protected and totally protected species are applied under s.68 of the Act. Protected species with increased sanctions for the hunting or keeping of, or taking or keeping of any part or derivative of, (exceeding 20 heads) include: (a) Common Shama (Copsychus malabaricus); (b) Oriental White Eye (Zosterops palpebrosa); and (c) Hill Myna (Gracula religiosa). The penalty is raised to include a mandatory minimum fine of RM20,000 (US$6,001) and an increase in the maximum term of imprisonment from two to three years compared with all other protected species listed in the First Schedule of the Act. Totally protected species with an increased sanction for the hunting or keeping of, or taking or keeping of any part or derivative of, (exceeding 20 heads) include: (a) Pangolin (Manis javanica); (b) Blood Python (Pythion brongersmai); (c) Harlequin Monitor (Varanus dumerilli); and (d) Clouded Monitor (Varanus bengalensis), applying a mandatory minimum fine of RM50,000 (US$15,003);
(e) Crested Argus (Rheinardia ocellata);
664 An enforcement officer has the power to stop, search and seize any mode of transport where he has reasonable cause to suspect that it is carrying any wildlife, part or derivative, snare, trap, bait, poisoned bait, arms, book, record, document or thing in respect of which an offence under the Act is being or has been committed. 665 An enforcement officer has the power to request the production of and the right of inspection of records, documents and identification documents and the power to make enquiries to ascertain whether the Act has been complied with.
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(f) Mountain Peacock Pheasant (Polyplectron inopinatum);
(g) Great Argus (Argusianus argus);
(h) Green Peafowl (Pavo muticus);
(i) Straw-headed Bulbul (Pycnonotus zeylanicus);
(j) Rhinoceros Hornbill (Buceros rhinoceros);
(k) Great Hornbill (Buceros bicornis);
(l) Plain-pouched Hornbill (Aceros subruficollis); and
(m) Helmeted Hornbill (Rhynoplax vigil),
applying a mandatory minimum fine of RM30,000 (US$9,002), however with a reduced maximum term of imprisonment from three to two years; and
(n) Serow (Capricornis sumatrensis);
(o) Gaur (Bos gaurus);
(p) Javan Rhinoceros (Rhinoceros sondaicus);
(q) Sumatran Rhinoceros (Dicerorhinus sumatrensis) [now only survives in Sumatra and subspecies in Sabah];
(r) Tiger (Panthera tigris);
(s) Leopard (Panthera pardus);
(t) Clouded Leopard (Neofelis nebulosa); and
(u) False Gharial (Tomistoma schlegelii),
applying a mandatory minimum fine of RM100,000 (US$30,007) and an increased maximum term of imprisonment from three to five years.
3.3 Wildlife Conservation Enactment 1997
The Enactment creates a number of criminal offences relating to the protection and conservation of wildlife. These have been categorised into (i) hunting offences; (ii) trade offences; and (iii) enforcement offences.
Penalties include both fines and terms of imprisonment (both of which may be imposed on the same individual). The fines that can be imposed range from RM5,000 (US$1,500) to RM50,000 (US$15,003).
The most serious offences under the Enactment (in terms of the gravity of the penalty) are hunting offences committed against wildlife that has been designated as protected or totally protected.
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The key provisions of the principal specific offences under the Enactment and the penalties for those offences are:
3.3.1 Hunting offences
Hunting any animal listed in Part 1 of Schedule 1 (s.25).
Six months' to five years' imprisonment.
Hunting any animal in a wildlife sanctuary except fishing with a licence (s.16).
Being in possession of any animal or animal product in a wildlife sanctuary; disturbing or causing to stampede any animal in a wildlife sanctuary (s.17).
Hunting any animal listed in Part 1 of Schedule 2 or 3 without a licence or hunting more than the quota of that species specified in the licence (s.25).
Hunting any young animal which is still suckling; hunting any female animal when it is clearly or seemingly pregnant, in a condition indicating that it is still suckling young, or accompanied by immature young; shooting at any animal from any motor vehicle or craft; approaching within 300 metres of any animal in a motor vehicle or craft for the purpose of hunting it; using any motor vehicle or craft to drive, cause to stampede or disturb any animal; using an aircraft or radio telephone for locating an animal for the purpose of hunting it within 48 hours of so locating it; approaching or building any platform or hide within 500 metres of a salt lick or mud wallow for the purpose of hunting; setting fire to any grass or vegetation for the purpose of hunting any animal; using dogs for hunting or driving animals except birds; hunting any animal between 6 pm and 6 am; employing or possessing for the purpose of hunting: drugs, poisons, poisoned weapons or bait, explosives or missiles containing detonators, traps, snares, gins, nets, deadfalls, fixed stakes, pits, set guns or any contrivance likely to endanger human life or cause bodily harm to any person, devices capable of producing an electric current sufficient to kill a fish or any other animal, lures, artificial calls, electronic devices or recordings, artificial light, firearms capable of firing more than one round at each pull of the trigger or other prescribed firearms (s.33).
Hunting any animal in a wildlife hunting area except fishing with a licence (s.71).
Being in possession of any animal or animal product in a wildlife hunting area (s.72).
Fine of RM50,000 (US$15,003) and/or five years' imprisonment.
Entering a wildlife sanctuary except areas designated as open to the public with a valid permit and except persons with a valid research permit for the purposes of scientific research (s.15).
Fine of RM20,000 (US$6,001) and/or two years' imprisonment.
Doing any act with such recklessness that the doer should have foreseen that the injury or death of an animal might occur as a result and as a result of which a protected animal is injured or killed (s.37).
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Fine of RM 20,000 (US$96001) and/or two years' imprisonment if the animal is listed in Part 1 of Schedule 1; fine of RM10,000 (US$3,000) and/or one year's imprisonment for other protected animals.
Hunting with any firearm within 300 metres of any dwelling, road or track in habitual use (s.34).
Fine of RM10,000 (US$3,000) and/or one year's imprisonment.
3.3.2 Trade offences
Possessing any animal (or animal product) of a species listed in Part 1 of Schedule 1 unless authorised in writing (s.41).
Importing or exporting any live protected animal (or animal product) except with a permit (s.53).
Collecting, possessing or selling turtle eggs (s.87).
Fine of RM50,000 (US$15,003) and/or five years' imprisonment.
Possessing any protected animal (or animal product) unless lawfully imported, obtained under the authority of a valid licence or permit or purchased in accordance with s.48(2) (s.41).
Selling or purchasing any live protected animal (or animal product) except where licensed to do so (s.48).
Engaging in taxidermy or manufacturing articles from a protected animal or selling or dealing in protected animals (or animal products) except with an animal dealer's permit (s.51).
Hunting or collecting any prohibited animal product (including the species listed in Part I of Schedule 1), any animal product for which a permit is required without the appropriate permit (including the species listed in Part I of Schedule 2 or Schedule 3) any animal product of a protected animal where such product is not listed in a permit, or more than the quota of an animal included in a permit (s.84)
Fine of RM30,000 (US$9,002) and/or three years' imprisonment.
Obtaining possession of a protected animal (or product thereof) and failing to hand it over to the nearest authorised officer (s.40).
Entering a wildlife hunting area without a valid permit (s.70).
Fine of RM20,000 (US$6,001) and/or two years' imprisonment.
3.3.3 Cruelty offences
Causing unnecessary or undue suffering to an animal kept under the authority of a permit issued under s.43 (s.46).
Fine of RM5,000 (US$1,500) and/or six months' imprisonment.
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3.3.4 Enforcement offences
Altering a licence, permit, certificate or other document issued under the Enactment.
Fine of RM50,000 (US$15,003) and/or five years' imprisonment.
Assaulting, resisting or wilfully obstructing an authorised officer acting in the exercise of his powers under the Enactment; refusing or neglecting to comply with any order, requisition or direction under the Enactment; failing to answer questions, give information or produce anything required to be produced under the Enactment; failing to allow a search or inspection under the Enactment (s.95).
Providing false information for the purpose of obtaining a licence, permit or certificate or for purported compliance with requirements to provide information under the Enactment (s.95).
Fine of RM30,000 (US$9,002) and/or three years' imprisonment.
Contravention of the Enactment where no offence is specifically provided (s.96).
Fine of RM20,000 (US$6,001) and/or two years' imprisonment.
False representation of oneself as a director or wildlife officer (s.94).
Fine of RM10,000 (US$3,000) and/or one year's imprisonment.
(iv) Species-specific penalties
Hunting of species listed in Part I of Schedule I (totally protected animals) is a criminal offence, attracting a mandatory minimum term of imprisonment of six months and a maximum term of five years (s.25).
Hunting of species listed in Part I of Schedule 2 (protected animals) or Schedule 3 (protected species of animals for which a hunting licence is required) without a licence attracts a maximum fine of MR50,000 ($15,003 US Dollars) and/or five years' imprisonment (ss. 25-26).
3.4 Wildlife Protection Ordinance 1998
The Ordinance creates a number of criminal offences relating to the protection and conservation of wildlife. These have been categorised into (i) hunting offences; (ii) trade offences; and (iii) licensing offences.
Penalties include mandatory fines and terms of imprisonment. The fines that can be imposed range from RM1,000 (US$300) to RM50,000 (US$15,003) (but only in very limited cases).
The most serious offences under the Act (in terms of the gravity of the penalty) are hunting offences committed against wildlife designated as "protected" or "totally protected" by the Ordinance.
The key provisions of the principal specific offences under the Ordinance and the penalties for those offences are:
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3.4.1 Hunting offences
Hunting, killing, capturing or possessing any wild animal (or any recognisable part or derivative) in a wildlife sanctuary (s.24).
Fine of RM25,000 (US$7,501) and up to two years' imprisonment if the animal is a totally protected animal; fine of RM10,000 (US$3,000) and up to one year's imprisonment if the animal is a protected animal; fine of the higher of RM1,000 (US$300) and five times the value of the animal and up to one year's imprisonment for other animals.
Hunting, killing, capturing, selling, offering for sale, importing, exporting or possessing a totally protected animal (or recognisable part or derivative or nest) (s.29).
Fine of RM25,000 (US$7,501) and up to two years' imprisonment.
Hunting, killing, capturing, selling, offering for sale, importing, exporting or possessing a protected animal (recognisable part or derivative or nest) (s.29).
Fine of RM10,000 (US$3,000) and up to one year's imprisonment.
Entering a wildlife sanctuary without the written permission of a warden; keeping or carrying a weapon, contrivance or material for taking, shooting or killing any animal; possessing or using a trap, snare, net (except fishing nets) or other contrivance for trapping or snaring animals (s.24).
Fine of RM5,000 (US$1,500) and up to one year's imprisonment.
Using mist nets to catch any mammal or bird (s.32).
Fine of RM2,000 (US$600) and up to six months' imprisonment.
Failure to notify a finding of a recognisable part or derivative of a protected or totally protected animal to the nearest wildlife officer (s.43).
Failure to deliver to or notify the nearest wildlife officer of the progeny of a protected or totally protected animal which the finder has reason to believe should still be under the care of its mother but that such care is not being afforded (s.43).
The penalty for the above offences is a fine of RM1,000 (US$300) and up to three months' imprisonment.
3.4.2 Trade offences
Possessing more than 5 kilograms of any species of wild mammal, bird, reptile or amphibian (s.37).
Fine of RM25,000 (US$7,501) and up to two years' imprisonment per individual animal or animal part for any totally protected animal; fine of RM10,000 (US$3,000) and up to one year's imprisonment per individual animal or animal part for any protected animal; fine of RM2,000 (US$600) and up to one year's imprisonment per individual animal or animal part for other animals.
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Breeding, rearing or keeping a wild mammal, bird, reptile or amphibian for the purpose of trade, sale or commercial usage without a licence (s.35).
Fine of RM10,000 (US$3,000) and up to one year's imprisonment.
Selling or offering for sale a wild mammal, bird, reptile, amphibian (or any recognisable part or derivative) other than those bred, reared or kept in accordance with a licence (s.33).
Collecting, selling, offering for sale, exporting or importing a nest of any swiftlets (or any recognisable part or derivative) (s.33).
The penalty for the above offences is a fine of RM5,000 (US$1,500).
Importing or exporting a wild animal in Part III of the First Schedule (s.31).
Fine of the higher of MR2,000 (US$600) or five times the value of the wild animal and up to one year's imprisonment.
Buying a wild animal (or any recognisable part or derivative) sold or offered for sale in contravention of ss.33-34.
Buying a nest of swiflets.
The penalty for the above offences is a fine of RM2,000 (US$600).
Selling mist nets for catching mammals or birds (s.32).
Fine of RM1,000 (US$300) and up to three months' imprisonment.
3.4.3 Licensing offences
Failure by a licence-holder to display his or her licence in a prominent place in his or her business premises to which the public has access or to produce the licence for inspection on request (s.36).
Failure by a licence-holder to disclose and provide satisfactory proof of where a wild animal or nest was obtained (s.36).
The penalty for the above offences is a fine of RM2,000 (US$600).
3.4.4 Cruelty offences
Beating, kicking, harming, terrifying or torturing a wild animal; neglecting to supply sufficient food or water to a wild animal housed, confined or bred; housing, confining or breeding a wild animal so as to cause unnecessary pain or suffering; using a wild animal for performing or assisting in the performance of work or labour beyond its reasonable capacity or which it is unfit to perform; inciting, provoking or infuriating a wild animal for purpose of baiting it or fighting it with any other animal or owning or managing any premises or place for any such purpose; wilfully doing anything to cause unnecessary suffering, pain or discomfort to a wild animal; wilfully omitting to do anything to prevent unnecessary suffering, pain or discomfort to a wild animal (s.44).
Fine of RM2,000 (US$600) and up to six months' imprisonment.
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3.4.5 Species-specific offences
Specific penalties are included under ss.24 and 29 of the Ordinance for the hunting, killing, capturing, or being in possession of, or of any recognisable part or derivative of, the following in a wildlife sanctuary and for the hunting, killing, capturing, selling, offering for sale, importing, exporting, or being in possession of, or of any recognisable part or derivative of, the following:
(a) Rhinoceros: Fine of RM50,000 (US$15,003) and up to five years' imprisonment; and
(b) Orang-utan or Proboscis Monkey: Fine of RM30,000 (US$9,002) and up to two years' imprisonment.
Specific penalties are also included under s.37 of the Ordinance for possessing more than 5 kilograms of:
(a) Rhinoceros: Fine of RM50,000 (US$15,003) and up to five years' imprisonment per individual animal or animal part; and
(b) Orang-utan or Proboscis Monkey: Fine of RM30,000 (US$9,002) and up to two years' imprisonment per individual animal or animal part.
4. ANCILLARY LEGISLATION
4.1 Anti-Money Laundering and Anti-Terrorism Financing Act 2001 [Act 613]666
4.1.1 Legislation summary
The Anti-Money Laundering and Anti-Terrorism Financing Act 2001 [Act 613] came into force on 15 January 2002, and makes provisions relating to the prevention of money laundering and financing of terrorism. This includes the creation of associated offences and provision for the forfeiture of terrorist property and property involved in, or derived from, money laundering and terrorism financing offences, and for matters incidental thereto and connected therewith.
The Act criminalises money laundering and contains provisions for the freezing and seizing of assets obtained through corruption.
Under the Act, "money laundering" means "the act of a person who— (a) engages, directly or indirectly, in a transaction that involves proceeds of any unlawful activity; (b) acquires, receives, possesses, disguises, transfers, converts, exchanges, carries, disposes, uses, removes from or brings into Malaysia proceeds of any unlawful activity; or (c) conceals, disguises or impedes the establishment of the true nature, origin, location, movement, disposition, title of, rights with respect to, or ownership of, proceeds of any unlawful activity, where— (aa) as may be inferred from objective factual circumstance, the person knows or has reason to believe, that the property is proceeds from any unlawful activity; or (bb) in respect of the conduct of a natural person, the person without reasonable excuse fails to take reasonable steps to ascertain whether or not the property is proceeds from any unlawful activity."
666 Available at http://www.bnm.gov.my/index.php?ch=en_legislation&pg=en_legislation_act&ac=879
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4.1.2 Penalties and enforcement
S.4 of the Act provides that "[a]ny person who—(a) engages in, or attempts to engage in; or (b) abets the commission of, money laundering, commits an offence and shall on conviction be liable to a fine not exceeding approximately MR 5,000,000 (1.5 million US Dollars) or to imprisonment for a term not exceeding five years or to both."
4.1.3 Relationship with principal legislation
In addition to investigating alleged corruption of individuals, the Malaysian Anti- Corruption Commission ("MACC") is authorised to enforce this Act, and may investigate officials who may be complicit in the alleged wrongdoing.
Under the Wildlife Conservation Act 2010, DWNP officers may conduct a search of a premises without a warrant as long as there is reasonable suspicion of illegal activities. As the case may be, officers of certain agencies (e.g. DWNP) may need to be called upon for investigation (through MACC). (See paragraph 4.5 below).
4.1.4 Additional information
See paragraphs 4.2.2 and 4.2.5below related to the MACC.
4.2 Malaysia Anti-Corruption Commission (MACC) Act 2009 [Act 694)]667
4.2.1 Legislation summary
The principal aims of the Act are (a) to promote the integrity and accountability of public and private section administration by constituting an independent and accountable anti-corruption body; and (b) to educate public authorities, public officials and members of the public about corruption and its detrimental effects on public and private sector administration and on the community.
The Anti-Corruption Act 1997 used to be the most important legal instrument in the government's fight against corruption. It established the former Anti- Corruption Agency ("ACA") and provided for offences and penalties for private and public sector corruption, including active and passive bribery, extortion, attempted corruption, and abuse of office, corruption through agents, corruption in public procurement, and electoral corruption.
4.2.2 The MACC was established by this legislation, which was enacted on 1 January 2009 and repealed the Anti-Corruption Act 1997 as well as the structure and mandate of the ACA, which was replaced by the MACC. The MACC is advised by a panel of seven independent advisors and must ultimately report to a Parliamentary Special Committee on Corruption (PSCC).
4.2.3 Penalties and enforcement
Part IV of the Act provides for various penalties for accepting "gratification,"668 giving or accepting gratification (by an agent), intending to deceive (by an agent)
667 Available at http://www.sprm.gov.my/images/webuser/files/static_content/act/SPRM_act_BI.pdf
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corruptly procuring withdrawal of tender, bribery of an officer of a public body669, bribery of a foreign public official, and using office or position for gratification. Any person who commits an offence under these sections of the Act shall on conviction be liable to: (a) imprisonment for a term not exceeding 20 years; and (b) a fine of not less than five times the sum or value of the gratification which is the subject-matter of the offence where such gratification is capable of being valued or is of a pecuniary nature, or MR10,000 (US$3,000), whichever is the higher.
4.2.4 Relationship with principal legislation
In addition to investigating alleged corruption of individuals, the MACC is authorised to enforce this Act, and may investigate officials who may be complicit in the alleged wrongdoing.
4.2.5 Additional information
The MACC is a government agency in Malaysia that investigates and prosecutes corruption in the public and private sectors. It is Malaysia's sole anti-corruption body and its jurisdiction is specific for the purpose of investigation and prevention of all forms of corruption and abuse of power in accordance with the Malaysian Anti-Corruption Commission (MACC) Act 2009.
With respect to illegal wildlife cases, it has been alleged (in certain instances) that DWNP and the Natural Resources and Environment Ministry have not properly clamped down on continued illegal wildlife activities. The MACC has been urged and called upon to investigate activities of DWNP officers.
In the past, the MACC has assisted with investigations into the issue of wildlife permits.670
4.2.6 The role of the MACC Legal Prosecution Team is also to be noted as an integral element in the success to the conviction several high profile cases involving politicians, academicians and those in the upper echelons of the Public Sector. Throughout 2012, a total of 313 individuals were convicted for corruption-related offenses, of which 33.5 % were public officers, 53 % were civilians, 13% from the privates sector and 0.5% were politicians. The total fines as ordered by the
668 Under the Malaysia Anti-Corruption Commission Act 2009, "gratification" means (a) money, donation, gift, loan, fee, reward, valuable security, property or interest in property being property of any description whether movable or immovable, financial benefit, or any other similar advantage; (b) any office, dignity, employment, contract of employment or services, and agreement to give employment or render services in any capacity; (c) any payment, release, discharge or liquidation of any loan, obligation or other liability, whether in whole or in part; (d) any valuable consideration of any kind, any discount, commission, rebate, bonus, deduction or percentage; (e) any forbearance to demand any money or money’s worth or valuable thing; (f) any other service or favour of any description, including: protection from any penalty or disability incurred or apprehended or from any action or proceedings of a disciplinary, civil or criminal nature, whether or not already instituted, and including the exercise or the forbearance from the exercise of any right or any official power or duty; and (g) any offer, undertaking or promise, whether conditional or unconditional, of any gratification within the meaning of any of the preceding paragraphs (a) to (f). 669 Under the Malaysia Anti-Corruption Commission Act 2009, "officer of a public body" means any person who is a member, an officer, an employee or a servant of a public body, and includes a member of the administration, a member of Parliament, a member of a State Legislative Assembly, a judge of the High Court, Court of Appeal or Federal Court, and any person receiving any remuneration from public funds, and, where the public body is a corporation sole, includes the person who is incorporated as such. 670 (See http://www.thestar.com.my/story.aspx/?file=%2f2010%2f9%2f25%2fnation%2f7103939&sec=nati, noting in which anti- corruption officers carted away files, documents and laptops related to wildlife permits and licences to help in their investigations).
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Courts arising from convictions of corruption offenders amounted to RM 14,570,799 (approximately 4.38 million US Dollars) in the year.671
4.3 Arms Act 1960 (amended 1 January 2006)672
4.3.1 Legislation summary
The Arms Act 1960 provides the requirements for obtaining a licence for everything relating to guns (e.g., from manufacturing, import, export, repairs, to actually having it in your hands).
S.3 provides that "no person shall have in his possession, custody or control any arms or ammunition unless he is the holder of an arms licence in that behalf granted to him under [s.4 of the Act regarding grant and renewal of arms licenses.]"
S.39 sets out situations in which a person may discharge an arm. These situations include: a place permitted in writing to be used as a shooting range by the Chief Police Officer of the State; for the protection of life or property; pursuant to authorisation under any written law relating to the protection of wild life to shoot, kill or hunt wild animals or birds and acting under such authorisation; or as a member of the armed forces, or a police officer or other person engaged in the performance of police duties acting within the scope of his or her duties.
4.3.2 Penalties and enforcement
S.32 provides that "[a]ny person who has in his possession, custody or control or carries any arm or ammunition in circumstances which raise a reasonable presumption that he has used or intends or is about to use the arm or ammunition for any unlawful purpose or that the arm or ammunition is likely to be used for any unlawful purpose shall be guilty of an offence and shall, on conviction, be liable to imprisonment for a term not exceeding seven years, or to a fine not exceeding approximately RM 10,000 (Three Thousand US Dollars), or to both, and shall also be liable to whipping."
S.43 provides that "Any person who contravenes or fails to comply with any provision of this Act or any regulations made thereunder, and for which no special penalty is provided, shall, on conviction, be liable to imprisonment for a term not exceeding one year, or to a fine not exceeding approximately RM 2,000 (Six Hundred US Dollars), or to both."
4.3.3 Relationship with principal legislation
No Relationship with principal legislation (Wildlife Conservation Act 2010).
671 See MACC Annual Report 2012, available at http://www.sprm.gov.my/files/MACC%20ANNUAL%20REPORT%202012.pdf 672 Available at http://www.agc.gov.my/Akta/Vol.%205/Act%20206.pdf
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4.3.4 Additional information
In illegal wildlife cases, often the alleged offender could be charged under the Arms Act 1960 for carrying an unlicensed firearm.673
4.4 National Parks Act 1980674
4.4.1 Legislation summary
The National Parks Act 1980 is a Malaysian federal law that governs the creation and the maintenance of national parks in Malaysia. It was created in 1980 during the controversy surrounding the protection of Endau Rompin forest complex. The Act provides for the states to establish national parks to be administered by the DWNP under the federal government.
S.11 provides that "The Minister may, after consultation with the State Authority, make regulations not inconsistent with this Act as to any or all of the following matters, namely . . . (b) the prohibition of the killing, maiming, trapping, capturing or impounding of any wild life within a National Park and the disposal of such wild life killed, maimed, trapped, captured or impounded."
4.4.2 Penalties and enforcement
The Minister may, after consultation with the State Authority, make penalties in respect of the contravention of any regulation made under this s.11 of the Act.
4.4.3 Relationship with principal legislation
Overlapping substance (but without any cross-references) to principal legislation (Wildlife Conservation Act 2010).
4.4.4 Additional information
No additional information.
4.5 Road Transport Act 1987 (amended 1 January 2006)675
4.5.1 Legislation summary
This Act aims to regulate motor vehicles and traffic on roads and other matters with respect to roads and vehicles thereon; to make provision for the protection of third parties against risks arising out of the use of motor vehicles; to make provision for the co-ordination and control of means of and facilities for transport; to make provision for the co-ordination and control of means of and facilities for construction and adaptation of motor vehicles; and to make provision for connected purposes.
673 Stronger prosecution needed to deter wildlife crime, The Online Star, March 12, 2013, available at http://www.thestar.com.my/Lifestyle/Features/2013/03/12/Stronger-prosecution-needed-to-deter-wildlife-crime/ (last visited January 18, 2014). 674 Available at http://www.agc.gov.my/Akta/Vol.%205/Act%20226.pdf 675 Available at http://www.mbi.gov.my/c/document_library/get_file?uuid=fc59ed96-b3f2-4098-9477-d4ec5cc7912b&groupId=10124
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4.5.2 Penalties and enforcement
S.119(2) provides that "Any person who is guilty of an offence under this Act shall, where no special penalty is provided, be liable in the case of a first conviction, to a fine not exceeding two thousand ringgit or to imprisonment for a term not exceeding six months and, in the case of a second or subsequent conviction, to a fine not exceeding approximately RM 4,000 (One Thousand Two Hundred US Dollars) or to imprisonment for a term not exceeding twelve months or to both."
4.5.3 Relationship with principal legislation
No relationship with principal legislation (Wildlife Conservation Act 2010).
4.5.4 Additional information
In illegal wildlife cases, an alleged offender could be charged under the Road Transport Act for whether hidden compartments in a poacher’s vehicle contravene motor vehicle regulations.676
5. JUDICIAL PROCESS AND CAPACITY
5.1 Judicial process
Politically, Malaysia is a federation of states and practises parliamentary democracy. The judiciary is constitutionally and institutionally separate from the legislature and the executive.677
In general terms, Malaysia has adopted the common law and adversarial system of justice it inherited from its British colonial past.678
The hierarchy of Malaysia's system of courts (from highest to lowest) is:
the Federal Court;
the Court of Appeal;
the High Courts of Malaya (Peninsular Malaysia) and Borneo (the states of Sabah and Sarawak);
the Sessions Courts; and
the Magistrates Courts.
676 Stronger prosecution needed to deter wildlife crime, The Online Star, March 12, 2013, available at http://www.thestar.com.my/Lifestyle/Features/2013/03/12/Stronger-prosecution-needed-to-deter-wildlife-crime/ (last visited January 18, 2014). 677 See Part IX of the Malaysian Constitution. See also, Hon. Tuan Dato' Sri Ahmad Fairuz bin Dato' Sheikh Abdul Halim , Chief Justice of Malaysia, Judicial Independence, Accountability, Integrity and Competence - Some Aspects of the Malaysian Position, (24 January 2014) http://jrn21.judiciary.gov.ph/forum_icsjr/ICSJR_Malaysia%20(D.%20Halim).pdf 678 Nordin, Shaikh Mohamed., Keng, Lim Pui., An Overview of Malaysian Legal System and Research, (24 January 2014): http://www.nyulawglobal.org/globalex/Malaysia.htm#_1._Where_the
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The jurisdiction and procedure of each of the courts is set out in the Malaysian Constitution, the Subordinate Courts Act 1948, the Courts of Judicature Act 1964 and the Criminal Procedure Code 1935. Under the terms of these Acts679:
offences are tried by a court within the local limits of the jurisdiction where the offence was committed;680
where the prosecution seeks a fine greater than MR10,000 (US3,017.50) or a prison term exceeding five years the matter will be prosecuted in the Sessions Courts;681 and
all other matters will be prosecuted in the Magistrates Courts.682
Under the Wildlife Conservation Act 2010 there is to be no prosecution for or in relation to an offence under that Act except with the written consent of the Public Prosecutor.683
Although the wildlife matters are tried in the relevant Magistrates or Sessions Court the matter is heard in an "Environmental Court"684 (otherwise known as the "Green Court"685). The Environmental Court is a sitting of the Magistrates or Sessions Court that is presided over by a judge who has had specialist training in relation to adjudication of environmental matters.
5.2 Prosecutions
From its date of establishment on 10 September 2012 through to 11 January 2014, the Environmental Court has disposed of a total of 373 out of 474 pending environmental cases.686 It is not clear from this figure how many relate to illegal poaching and trade of wildlife.
679 Jurisdiction is generally determined by the prescribed penalty. The wildlife crimes set out in the Wildlife Conservation Act 2010, the Wildlife Protection Ordinance 2003 and the Wildlife Conservation Enactment 1997 generally involve fines between MR10,000 and MR500,000 and prison terms between one to ten years. There are no prescribed death penalties. 680 Section 121, Criminal Procedure Code. 681 The Sessions Court has jurisdiction to try all offences other than offences punishable by death (section 63 of the Subordinate Courts Act 1948) and may pass any sentence allowed by law other than the sentence of death (section 64 of the Subordinate Courts Act 1948). 682 The Magistrates Courts has jurisdiction to try all offences of which the maximum term of imprisonment does not exceed 10 years or is punishable with a fine only (section 85 of the Subordinate Courts Act 1948). However, the Magistrates Court may only pass sentences that do not exceed 5 years imprisonment and may not determine a fine exceeding RN10,000 (section 87 of the Subordinate Courts Act 1948). 683 Section 127, Wildlife Conservation Act 2010. The Public Prosecutor is the Attorney General of Malaysia: see section 3, Interpretation Acts 1948 and 1967. Under section 52 of Sarawak's Wildlife Protection Ordinance 2003 prosecutions are conducted by the Public Prosecutor. Under section 117(2) of Sabah's Wildlife Conservation Enactment 1997, the State Attorney-General, any legally qualified member of the State Legal Service and any legal officer of the Wildlife Department, or any Wildlife Officer may conduct any prosecution in respect of an offence under the Enactment. 684 The Malaysian Judiciary Annual Report 2012 (24 January 2014), pp.126: http://www.kehakiman.gov.my/en/node/515 685 Since 3 September 2012 Malaysia has instituted a "Green Court" system whereby there is dedicated time in Sessions Courts and Magistrates Courts to have environmental matters heard by judges trained to deal with environmental matters. Asian Judges Network on Environment, Malaysia Establishes Green Court Since September 3, (24 January 2014), http://ajne2.itkeep.com/malaysia-established- green-court-since-september-3/ 686 Speech by Tun Arifin bin Zakaria, Chief Justice of Malaysia, at the Opening of the Legal Year 2013 (Dewan Sri Siantan, Perbadanan Putrajaya, 11 Jan 2014) (accessed 24 January 2014): http://www.malaysianbar.org.my/speeches/speech_by_tun_arifin_bin_zakaria_chief_justice_of_malaysia_at_the_opening_of_the_legal_ye ar_2014_dewan_sri_siantan_perbadanan_putrajaya_11_jan_2014.html.
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No publicly available statistics regarding attempted prosecutions versus successful prosecutions under the Wildlife Conservation Act 2010, the Wildlife Protection Ordinance 2003 or the Wildlife Conservation Enactment 1997 have been located.
However, below are summaries of some media and other reporting of illegal wildlife trafficking prosecutions.
Anson Wong case:687
In 2012 Anson Wong was charged under the International Trade in Endangered Species Act 2008 with exporting 95 boa constrictors without a permit after being caught with a suitcase full of baby boa constrictors, 2 venomous rhinoceros vipers and a South American turtle at the Kuala Lumpur International Airport in 2010.
Anson Wong was sentenced to six months' imprisonment and fined RM190,000 (US$57,332.50). Whilst the level of fine and imposition of a custodial sentence demonstrates the severity of the offence, the court could have imposed a maximum fine of RM1,000,000 (US$300,075) and up to seven years' imprisonment.
The prosecution appealed and the Shah Alam High Court subsequently raised the jail sentence to five years but withdrew the fine. The High Court stated the Sessions Court had not taken into account the large number of snakes and the risks to both the flight and the airport.
The defence appealed and the Court of Appeal ruled that the High Court had erroneously taken certain facts into consideration. It stated the presence of the two vipers had not been stated in the initial charge and therefore, was out of the ambit of the charge which warranted the Court of Appeal intervention. The Court also emphasised that Anson Wong was not charged with 'trafficking' in wildlife, and, despite being aware of his extensive history in animal trafficking,688 commented that "There was no evidence to suggest that he would not have been granted the permit to export the animals by the authorities".
Anson Wong was released from prison having served 17 months and 15 days.
The case was criticised:
o for failure to level all the charges possible under the International Trade in Endangered Species Act 2008; and
o the appointment of junior or untrained prosecutors.
There are additional on-going concerns that relate to the case, including allegations of corruption within the Department of Wildlife and National Parks. Before his arrest in 2010, Anson Wong was a 'good friend' of Misliah Basir, who later became deputy director general
687 Wong Keng Liang v Public Prosecutor [2013] 4 MLJ 263 688 Before his arrest in 2010, Anson Wong had been convicted of smuggling endangered species in the US and sentenced to 71 months in prison
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of the Department of Wildlife and National Parks.689 More recently, although the Natural Resources and Environment Ministry stated in late 2013 that all wildlife permits for Anson Wong and his wife had been cancelled, animal activists now allege that Wong has simply created a new company and obtained new permits.690
Mohd Nor Shahrizam Nasir case:
In 2013, Mohd Nor Shahrizam Nasir was charged under the Wildlife Conservation Act 2010 with three counts of illegal possession.
Mohd Nor Shahrizam Nasir was in possession of nine African elephant tusks, eight tiger skins and 22 whole tiger skulls and bones.
Mohd Nor Shahrizam Nasir was sentenced to 24 months' imprisonment for the tiger skins, 24 months for the skulls and bones and twelve months for the ivory. However, the judge ruled that the three sentences be served concurrently meaning that the total prison sentence would be 24 months. This was despite s.68(2)(c) of the Act 2010 providing for a mandatory fine of at least RM100,000 (US$30,007) and imprisonment for up to 5 years.
The sentence was criticised for:
o being too lenient by allowing concurrent serving of the prison sentence;
o failure of the judge to issue a fine despite the Wildlife Conservation Act 2010 providing for a mandatory fine between RM100,000 (US$30,007) and RM500,000 (US$150,037); and
o failure of the prosecution to explore possible charges under the Arms Act 1960 for carrying an unlicensed firearm and whether hidden compartments in the poacher's vehicle contravened regulations under the Road Transport Act 1987.
In 2012, six pangolin traffickers were reportedly sentenced under the Wildlife Conservation Act 2010 to one year in prison and fined three hundred and thirty thousand Malaysian Ringgit in total after being found with 150 pangolins, the majority of which were females and over half of which were immature.691
In December 2013 the arrest of three men for being in illegal possession of 160 kilogrammes of deer meat has been reported.692 There has been no reporting of the prosecution in this matter. It was noted that ten cases were pending prosecution.
689 The Serpent King, Foreign Policy, December 28, 2010, available at http://www.foreignpolicy.com/articles/2010/12/28/the_serpent_king 690 Putrajaya misleading public over Anson Wong, say opposition lawmakers, The Malay Insider, December 4, 2013, available at http://www.themalaysianinsider.com/malaysia/article/putrajaya-misleading-public-over-anson-wong-say-opposition-lawmakers 691 Povera, A. (26 June 2013) Two brothers, 4 others fined and jailed for possessing 150 pangolins, New Straits Times, accessed at http://www.nst.com.my/nation/extras/two-brothers-4-others-fined-and-jailed-for-possessing-150-pangolins-1.308033 692 Abdullah M.T., Illegal wildlife hunting in Malaysia, (24 January 2014) .http://www.academia.edu/5392244/Illegal_wildlife_hunting_in_Malaysia_December_2013
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In the absence of publicly available statistics it is difficult to determine whether prosecution is proving to be a successful deterrent. Nevertheless, anecdotally, more people are hiring lawyers to defend them as opposed to pleading guilty because the new penalties are viewed as more onerous.693 Whilst this suggests penalties are acting as a deterrent it places a greater burden on enforcement agencies to ensure that they prepare and prosecute matters effectively.
5.3 Appeals
There is no prescribed process of appeal specific to wildlife crimes. The usual appeal process applies.
Appeals may be made to the relevant High Court within ten days of the judgment of a Magistrates Court or a Sessions Court on the grounds of error of law or on the grounds that the sentence was too severe or inadequate.694
Appeals from decisions of the High Courts may be made to the Court of Appeal within 14 days of the High Court's decision. However, appeals may only be made on a question of law.695
The Federal Court is able to hear criminal appeals from decisions of the Court of Appeal only where the Court of Appeal heard a matter that originated in the High Court.696
5.4 Judicial capacity
It has been reported697 that:
Judges have attended training sessions on environmental cases during the 2012 National Green Courts Seminar;
there has been an outreach programme targeted at Superior Court judges where they visit villages and the countryside to gain an appreciation of the value of the environment; and
since 3 September 2012, Malaysia has instituted a "Green Court" system whereby there is dedicated time in Sessions Courts and Magistrates Courts to have environmental matters heard by judges trained to deal with them.
Note: Most of the reported criticism appears to focus on wildlife agencies and the prosecutors' handling of cases rather than judicial capacity.
693 The Star Online, Stronger prosecution needed to deter wildlife crime (24 January 2014) http://www.thestar.com.my/Lifestyle/Features/2013/03/12/Stronger-prosecution-needed-to-deter-wildlife-crime/ 694 S.307, Criminal Procedure Code 1935. 695 S.50(2), Courts of Judicature Act 1964. 696 S.87, Courts of Judicature Act 1964. 697 Makhtar, Ili Liyana., New Strait Times, "Green courts" to handle environmental cases (24 January 2014) http://www.nst.com.my/nation/general/green-courts-to-handle-environmental-cases-1.169500
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5.5 Additional information
The Malaysian Judiciary Annual Report 2012698 notes that although various environment- related legislation has been introduced, the problem lies in the enforcement of these laws as:
Enforcement agencies do not have enough facilities/resources and officers who are adequately trained;
Many cases are not brought before the courts;
Courts fail to hand down sentences that act as a sufficient deterrent;
Environmental/conservation education and awareness among the public is very low.
6. CONCLUSIONS
6.1 Effectiveness of legislation
The most recently enacted legislation (the International Trade in Endangered Species Act 2008 and the Wildlife Conservation Act 2010 in particular) shows a great improvement for the protection of wildlife in Malaysia, and the legislation appears to provide all of the mechanisms and tools required for the judiciary to adjudicate matters.
However, inherent issues remain within the legislation, namely the inconsistencies in terms of offences and severity of penalties between Peninsular Malaysia and the states of Sabah and Sarawak, and also through the continued use of a system of permits and licences. In relation to this latter point, the legislation does not provide for any sort of regulatory authority to ensure that the Minister of Natural Resources and Environment applies appropriate levels of protection.
In terms of enforcement of the legislation, there has been an increase in the number of offenders caught and charged since the most recent legislation was enacted, however it is clear that substantial improvements are still needed if the legislation is to be fully effective and live up to its potential. For example, offenders are not being required to serve mandatory sentences or pay mandatory minimum fines and available tools under ancillary legislation are not being utilised to their full potential.
6.2 Recommendations
Greater emphasis should be placed on building the capacity of the prosecution to prepare and prosecute wildlife matters, in order to ensure that the full range of legislative tools (both wildlife-specific and ancillary) are employed against the illegal trade in wildlife.
In addition, Malaysia should continue and expand its existing programme of building judicial capacity and expertise in relation to wildlife matters.
Finally, the judiciary should provide well-reasoned judgments in order to develop a body of case law which will allow for the more effective prosecution of future cases and to identify gaps in the legislation.
698 The Malaysian Judiciary Annual Report 2012 (24 January 2014), http://www.kehakiman.gov.my/en/node/515
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THE PHILIPPINES
Team Leader and Editor - Anita Brunst - DLA Piper
Team Members - Anita Brunst, Emma Johnston, Söla Paterson-Marke, Sydney White - DLA Piper
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1. EXECUTIVE SUMMARY
It has been reported that illegal wildlife trade is the fourth-largest illegal global trade after narcotics, product / currency counterfeiting and human trafficking and that the trade in illegal wildlife accounts for $19 billion per year699. The World Wildlife Fund (WWF) has noted that governments and law enforcement agencies tend to focus on the top three illegal global trades with the result that illegal trade in wildlife has for some time flown under the radar, there being few arrests, prosecutions and convictions700.
For a number of years, primary legislation designed to protect wildlife has existed in the Philippines. The main piece of legislation is the Wildlife Resources Conservation and Protection Act dated 30 July 2001701 (the "2001 Act"). The 2001 Act was designed to implement the objectives of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). The CITES National Legislation Project envisages four minimum legislative requirements: designation of national CITES authorities702; prohibition of trade in violation of the CITES 703; penalisation of illegal trade704; and authorisation to confiscate specimens illegally traded or possessed705; and the 2001 Act does contain provisions which aim to meet these legislative requirements. Indeed, the 2001 Act creates a number of offences which meet the definition of a "serious crime" under the United Nations Office on Drugs and Crime (UNODC)'s706 definition (being conduct, constituting an offence punishable by a maximum deprivation of liberty of at least four years of imprisonment or a more serious penalty707).
Despite the provisions of the 2001 Act, the Philippines currently only has 'Category 2' status of legislative progress (that is, the legislation is believed generally not to meet all of the requirements for the implementation of CITES708).It is understood that this is due to the Philippines not currently having any legislation which deals with "introduction from the sea"709.
Furthermore, for a number of years there has been criticism regarding enforcement of the 2001 Act, in particular with regard to the low conviction rate and lenient penalties for committing offences under the 2001 Act. There is also evidence of malpractice and the
699 Article by Jerry Bonkowski 26 April 2013, available at http://apdforum.com/en_GB/article/rmiap/articles/online/features/2013/04/26/china-illegal-fishing
700 Ibid 701 Republic Act No. 9147, dated 30 July 2001, available at http://www.wipo.int/wipolex/en/text.jsp?file_id=224805
702 Ibid section 19 703 Ibid section 27 704 Ibid section 28 705 Ibid section 28 706 CTOC 20 September 2012. Accessed 25 January 2014 08.00am GMT, available at http://www.unodc.org/documents/treaties/organized_crime/COP6/CTOC_COP_2012_CRP/CTOC_COP_2012_CRP4.pdf
707 Article 2, para (b) of the United Nations Convention against Transnational Crime 708 CITES 18 April 2012, Notification to the Parties No. 2012/036: National laws for implementation of the Convention. available at http://www.cites.org/eng/notif/2012/E036.pdf, accessed 14 April 2014 at 16:26 709 See further paragraph 2.2 below.
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Philippines has previously been heavily criticised following a leakage of ivory from government-held stockpiles710. In addition, the Philippines has been criticised for its domestic ivory trade and for acting as a transit point for ivory originating from Africa or elsewhere in Asia and en route to markets in China711.
In the most recent Elephant Trade Information System (ETIS) analysis presented to CITES Parties in March 2013, the Philippines was among the nine countries and territories identified as being most heavily implicated in major illegal ivory trade flows. These nine are now required to submit action plans to improve their implementation of CITES ivory trade requirements. This obligation was directed at China and Thailand as end-use markets, Malaysia, Philippines, Hong Kong and Vietnam as transit countries/territories, and Kenya, Tanzania and Uganda as ivory source, transit or exit points in Africa712.
Wildlife smugglers are often part of organised criminal syndicates, taking advantage of Asia’s strong transport infrastructure to traffic wildlife within and out of the Philippines. As a result, wildlife crime frequently involves a range of other connected offences including money laundering, bribery and corruption. The situation under the primary wildlife legislation with regard to the low conviction rates and lenient penalties is therefore compounded by the fact that ancillary legislation relating to corruption offences is disparate, confused and rarely enforced.
By way of summary, although the Philippines does currently have legislation to penalise illegal trade in wildlife, the legislation is rarely applied effectively so as to act as a deterrent. The situation is exacerbated by allegations of malpractice by wildlife officials and due to the difficulties in enforcing ancillary corruption legislation.
2. PRINCIPAL LEGISLATION
2.1 Legislation summary
Wildlife Resources Conservation and Protection Act 2001
The principal legislation of general effect which deals with the illegal trade in wildlife is the 2001 Act. The 2001 Act is primary legislation. The implementing rules and regulations of the 2001 Act are contained secondary legislation, in particular the Joint Administrative Order No. 1, Series of 2004 of the Department of Environment and Natural Resources (DENR), the Department of Agriculture (DA) and the Palawan Council for Sustainable Development (PCSD). Indeed the secondary legislation develops further the details of certain provisions contained within the 2001 Act, such as permits and fees for import / exports of wildlife, etc713.
710 See Article on TRAFFIC website titled "Philippines to Destroy Seized Ivory Stockpiles", June 20, 2013 at 13:08; available at http://www.traffic.org/home/2013/6/20/philippines-to-destroy-seized-ivory-stockpiles.html
711 Ibid
712 Ibid 713 Department of Environment and natural Resources Administrative Order No 2004; available at http://www.google.co.uk/url?sa=t&rct=j&q=&esrc=s&frm=1&source=web&cd=3&ved=0CDUQFjAC&url=http%3A%2F%2F www.pawb.gov.ph%2Findex.php%3Foption%3Dcom_docman%26task%3Ddoc_download%26gid%3D253%26Itemid%3D296 &ei=z8DnUqy8IsWN7AaR-4HQDQ&usg=AFQjCNHziqOmZ-x84z4417eoBobQIy6ubw
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The 2001 Act applies to all wildlife species found in all areas of the country, including protected areas under the National Integrated Protected Areas System (NIPAS) Act 1992,714 and critical habitats. It also applies to exotic species which are subject to trade, are cultured, maintained and/or bred in captivity or propagated in the country.715
The purpose of the 2001 Act is to "pursue the commitments on international conventions like the CITES"716. In other words this 2001 Act is the domestic implementation of CITES. The level of success in achieving this purpose is considered further below at paragraphs 2.2 and 3.2.
The objectives of the 2001 Act are to: conserve and protect wildlife species and their habitats; regulate the collection and trade of wildlife; pursue, with due regard to the national interest, the Philippine commitment to international conventions, protection of wildlife and their habitats; and initiate or support scientific studies on the conservation of biological diversity"717.
One of the requirements of the CITES National Legislation Project is that at least one CITES Management Authority and one Scientific Authority must be designated, and the 2001 Act provides for this718. The main Management Authorities for terrestrial and aquatic resources are the Protected Areas and Wildlife Bureau (PAWB) of the DENR and the Bureau of Fisheries and Aquatic Resources (BFAR) of the DA. Designated Scientific Authorities are to provide advice to the Management Authorities.
The 2001 Act creates a number of criminal offences punishable by imprisonment and/or fines (see further paragraph 3.1 below). The 2001 Act provides that generally "it shall be unlawful for any person to wilfully and knowingly exploit wildlife resources and their habitats"719 and goes on to specify a number of illegal acts, which include the following:
killing and destroying wildlife species except in certain permitted circumstances720;
dumping, burning, logging, quarrying etc in critical habitats;
trading of wildlife; collecting, hunting or possessing wildlife, their by- products and derivatives;
gathering or destroying of active nests, nest trees, host plants and the like; maltreating / inflicting injuries on wildlife; and
714 Republic Act No. 7586, dated 22 July 1991; available at http://www.psdn.org.ph/nipas.htm 715 See Section 3 of the 2001 Act 716 The Convention on International Trade in Endangered Species of Wild Fauna and Flora. Forty-sixth meeting of the Standing Committee Geneva (Switzerland), 12 - 15 March 2002. Reports of Regional Representatives, Annex 1; available at http://www.cites.org/eng/com/sc/46/46-20-2.pdf
717 See Section 2 of the 2001 Act 718 Section 19 of the 2001 Act 719 Section 27, Chapter IV of the 2001 Act 720 Including when it is done as part of the religious rituals of established tribal groups or indigenous cultural communities and for the benefit of the animal (e.g. to end misery)
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transporting of wildlife721.
It is important to note that the illegal acts are only illegal "unless otherwise allowed" in accordance with the 2001 Act.
721 Section 27, Chapter IV of the 2001 Act. This provides as follows: "Unless otherwise allowed in accordance with this Act, it shall be unlawful for any person to wilfully and knowingly exploit wildlife resources and their habitats, or undertake the following acts;
(a) killing and destroying wildlife species, except in the following instances;
(i) when it is done as part of the religious rituals of established tribal groups or indigenous cultural communities;
(ii) when the wildlife is afflicted with an incurable communicable disease;
(iii) when it is deemed necessary to put an end to the misery suffered by the wildlife;
(iv) when it is done to prevent an imminent danger to the life or limb of a human being; and
(v) when the wildlife is killed or destroyed after it has been used in authorized research or experiments.
(b) inflicting injury which cripples and/or impairs the reproductive system of wildlife species;
(c) effecting any of the following acts in critical habitat(s)
(i) dumping of waste products detrimental to wildlife;
(ii) squatting or otherwise occupying any portion of the critical habitat;
(iii) mineral exploration and/or extraction;
(iv) burning;
(v) logging; and
(vi) quarrying
(d) introduction, reintroduction or restocking of wildlife resources;
(e) trading of wildlife;
(f) collecting, hunting or possessing wildlife, their by-products and derivatives;
(g) gathering or destroying of active nests, nest trees, host plants and the like;
(h) maltreating and/or inflicting other injuries not covered by the preceding paragraph; and
(i) transporting of wildlife. "
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In addition to detailing offences, the 2001 Act details the types of activities which are permitted and any conditions which apply to such activities722. By way of example, following activities are permitted:
collection of wildlife is permitted subject to a number of conditions, including that the collection techniques used are appropriate and acceptable with least or no detrimental effects. Collection by indigenous people is permitted provided that it is for traditional use and not primarily for trade. It is also provided that collection and utilization does not apply to threatened species
possession of wildlife is permitted provided that the person / entity can prove that they have the financial and technical capability to maintain the wildlife and provided that the source was not obtained in violation of the 2001 Act
local transport of wildlife, by-products and derivatives is permitted unless the same is prejudicial to the wildlife or public health
exportation and importation of wildlife is permitted provided that such activities comply with the provisions of the 2001 Act and the rules and regulations relating thereto
scientific research on wildlife is permitted provided that a number of conditions are complied with and such activities are not for commercial purposes
breeding for commercial purposes is permitted provided that certain conditions are complied with.
The 2001 Act contains specific provisions which are intended to protect threatened species723; such provisions include the following:
for lists to be published classifying critically endangered, endangered and vulnerable wildlife species and for such lists to be regularly updated;
registration of threatened and exotic species, this allows threatened wildlife without a certificate of registration to be confiscated by the authorities;
the collection of threatened wildlife, by-products and derivatives is only permitted for scientific or breeding and propagation purposes in accordance with the provisions of the 2001 Act and only if these activities are performed by accredited individuals;
conservation breeding or propagation of threatened species is to be encouraged; and
commercial breeding may be allowed in certain circumstances.
722 Chapter III, Article One of the 2001 Act 723 See Article Two and Article Three of the 2001 Act
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Since its enactment, the 2001 Act has had no amendments or revisions. However, we understand that the Philippines does have plans (in consultation with key agencies and stakeholders) to commence a review of the provisions with a view to possible amendments724.
2.2 Challenges to legislation
Although it is believed that the aim of the 2001 Act is to implement the CITES obligations into the national legislation of the Philippines, unfortunately there is wide-spread commentary that the 2001 Act has not been entirely successful in achieving this. The most recent legislative analysis conducted under the National Legislation Project found that the Philippines legislation fell within Category 2; legislation that is believed generally not to meet all the requirements for the implementation of CITES725. We understand that the reason for this is that the Philippines does not yet have legislation which deals with "introduction from the sea". It is noted that although the Philippines does currently have a Management Authority for fisheries and aquatic resources (the Philippine DA's BFAR), this is not considered sufficient and in order for the Philippines to be considered for a move to Category 1 (legislation that is believed generally to meet the requirements for implementation of CITES), national legislation in accordance with CITES addressing concerns on introduction from the sea would need to be promulgated726.
2.3 Species-specific legislation
Although there is no species-specific legislation under Philippine domestic law which applies to individual species, the Philippines has a variety of legislation which is either designed to protect certain categories of species or which aims to create or protect certain habitats which are critical to the survival of threatened species. The most important examples of such legislation are as follows:
2.3.1 The Philippine Fisheries Code of 1998727
The Philippine Fisheries Code of 1998 ("Fisheries Code") provides for the protection of threatened and rare marine wildlife species. Section 11 of the Fisheries Code provides that such protection may take the form of so-called 'closed periods' as may be required, as well as banning the fishing and taking of rare endangered species including their eggs. The Fisheries Code also allocates certain species to particular government departments. By way of example, the dugong turtles are under the jurisdiction of the DENR, while all other declared aquatic habitats and resources are under the jurisdiction of the BFAR, of the DA. Section 97 of the Fisheries Code also makes specific reference to the CITES legislation, stating that it shall be unlawful to fish or take rare, threatened and/or endangered species including their eggs or offspring.
724 Letter from the Philippines Management Authority (the Philippines Department of Environment and Natural Resources, Biodiversity Management Bureau) dated 06 March 2014. 725 Available at http://www.cites.org/eng/com/sc/62/E62-23.pdf 726 Letter from the Philippines Management Authority (the Philippines Department of Environment and Natural Resources, Biodiversity Management Bureau) dated 06 March 2014. 727 Republic Act No. 8550; available at http://www.bfar.da.gov.ph/pages/legislation/fisheriescodera8550.html
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2.3.2 National Integrated Protection Areas System Act 2002728
NIPASwas intended to establish areas and protect the ecosystems of areas of, among other things, endangered animals. Under NIPAS a framework was created that restricted acts such as hunting, destroying and disturbing the animals or their habitat if it is located within a protected area.
It is noted that some commentaries have questioned the effectiveness of this legislation. In particular it has been stated that the authorities have struggled to apply the laws due to the large costs associated with the management and patrol of the protected areas.
2.3.3 Strategic Environmental Plan for Palawan Act729
The Strategic Environmental Plan for Palawan Act ("SEP"), serves to adopt a strategic environment plan for Palawan, an area which is home to the Palawan Peacock-pheasant, Philippine Mouse-Deer, Philippine pangolin and Palawan Bearded Pig. In addition, the Palawan region also hosts a significant yet declining population of dugong. The SEP aims to protect the environment and natural resources of the province of Palawan, in particular it states that the SEP shall "support and promote the sustainable development goals for the provinces through proper conservation, utilization and development of natural resources to provide optimum yields on a continuing basis"730. Due to the aims of the SEP, it does not contain a list of illegal acts per se, instead it seeks to create a plan to encourage environmental protection within the province, by creating protected critical habitats and developing plans to ensure forest conservation (e.g. through logging bans), biological diversity, protection of rare and endangered species etc. Therefore, in the province of Palawan, illegal acts committed against wildlife may be committed in breach of the SEP as well as in breach of the 2001 Act.
2.3.4 Tubbataha Reefs National Park Act of 2009731
The Tubbataha Reefs National Park Act of 2009, also provides legislation in respect of the Palawan area and is specifically intended to incorporate all applicable conservation laws and international conventions to which the Philippines is a signatory.
2.3.5 The Mt. Kanla-on Natural Park Act of 2001732
The Mt. Kanla-on Natural Park Act of 2001 ("MKNP Act") establishes the Mt. Kanla-on in the Island of Negros as a natural park and provides protection for the animals within this specified area. The MKNP Act aims to protect the Mt. Kanla- on area in light of its biological resources and its aesthetic, socio-cultural, economic and ecological importance to the Island of Negros.
728 Republic Act No 7586 dated 1 June 1992; available at http://www.gov.ph/1992/06/01/republic-act-no-7586/ 729 Republic Act No 7611, dated 19 June 1992; available at http://www.pcsd.ph/sep_law/ra7611.htm 730 Republic Act No 7611, dated 19 June 1992; available at http://www.pcsd.ph/sep_law/ra7611.htm 731 Republic Act No. 10067; available at http://www.lawphil.net/statutes/repacts/ra2010/ra_10067_2010.html 732 Republic Act No. 9154; available at http://www.lawphil.net/statutes/repacts/ra2001/ra_9154_2001.html
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2.3.6 The National Caves and Cave Resources Management and Protection Act 2002733
The National Caves and Cave Resources Management and Protection Act 2002, creates prohibited acts specifically related to cave life. Persons are prohibited from altering the free movement of any animal life into or out of any cave as well as from gathering, collecting, possessing, consuming, selling, bartering or exchanging or offering for sale without authority any cave resources (cave resources being defined to include any animal life which occurs naturally in caves).
3. PENALTIES
3.1 Penalties for specific offences
3.1.1 Penalties under the 2001 Act
One of the requirements of the CITES National Legislation Project is to penalise illegal trade in wildlife. The 2001 Act provides for a range of penalties which vary depending on the act committed and the category of wildlife against which the illegal act is committed. A number of the offences conform to the UNODC definition of a "serious crime" (as defined in paragraph 1 above).
The maximum penalty under the 2001 Act is twelve years' imprisonment and/or a fine of up to one million Pesos ($22,000)734, such a penalty is only available for the killing or destroying of a species listed as critical, however discretion is provided for a lesser penalty to be imposed and the minimum penalty if convicted for the killing or destroying of a species listed as critical is imprisonment of six years and one day and/or a fine of one hundred thousand Pesos ($2,000). The penalty under the 2001 Act for the same offence is then reduced where the act is committed against a species listed as endangered, vulnerable, threatened and any other wildlife species735.
For illegally trading wildlife, the maximum penalty is imprisonment of up to four years and/or a fine, where trading relates to a species listed as critical. Again, discretion is provided for a lesser penalty to be imposed and a minimum penalty is provided for and again, the penalties are reduced depending on whether the
733 Republic Act No. 9072; available at http://www.pcsd.ph/Related%20Laws/republic_acts/ra9072.htm 734 In this report values stated in US Dollars are with a conversion rate of 1 Philippine Peso equals US$ 0.02. 735 Section 28 of the 2001 Act provides as follows: "(b) imprisonment of four (4) and one (1) day to six (6) years and/or a fine of Fifty thousand Pesos (P50,000.00) to Five hundred thousand Pesos (P500,000.00) if inflicted or undertaken against endangered species; (c) imprisonment of two (2) years and one (1) day to four (4) years and/or a fine of Thirty thousand Pesos (P30,000.00) to Three hundred thousand Pesos (P300,000.00), if inflicted or undertaken against vulnerable species; (d) imprisonment of one (1) year and one (1) day to two (2) years and/or a fine of Twenty thousand Pesos (P20,000.00) to Two hundred thousand Pesos (P200,000.00) if inflicted or undertaken against other threatened species; and (e) imprisonment of six (6) months and one (1) day to one (1) year and/or a fine of Ten thousand Pesos (P10,000.00) to One hundred thousand Pesos (P100,000.00), if inflicted or undertaken against other wildlife species. "
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species is listed as endangered; vulnerable, threatened or the illegal act is committed against any other wildlife species736.
The maximum penalties for collecting, hunting or possessing wildlife, their by- products and derivatives or gathering, destroying of active nest, nest trees, host plants and the like are imprisonment of up to four years and/ or a fine, where the species in question is listed as critical. Again, discretion is provided for a lesser penalty to be imposed and a minimum penalty is provided for and once again, the penalties are reduced depending on whether the species is listed as endangered; vulnerable, threated or the illegal act is committed against any other wildlife species737.
For illegally transporting wildlife, the maximum penalty is imprisonment of up to one year and/or a fine (the same principles apply in relation to when the maximum penalty may be imposed and discretion to impose a lesser penalty)738.
736 Section 28 of the 2001 Act provides as follows: "(a) imprisonment of two (2) years and one (1) day to four (4) years and/or a fine of Five thousand Pesos (P5,000.00) to Three hundred thousand Pesos (P300,000.00), if inflicted or undertaken against species listed as critical; (b) imprisonment of one (1) year and one (1) day to two (2) years and/or a fine of Two thousand Pesos (P2,000.00) to Two hundred thousand Pesos (P200,000.00), if inflicted or undertaken against endangered species; (c) imprisonment of six (6) months and one (1) day to one (1) year and/or a fine of One thousand Pesos (P1,000.00) to One hundred thousand Pesos (P100,000.00), if inflicted or undertaken against vulnerable species; (d) imprisonment of one (1) month and one (1) day to six (6) months and/or a fine of Five hundred Pesos (P500.00) to Fifty thousand Pesos (P50,000.00), if inflicted or undertaken against species listed as threatened species; and (e) imprisonment of ten (10) days to one (1) month and/or a fine of Two hundred Pesos (P200.00) to Twenty thousand Pesos (P20,000.00), if inflicted or undertaken against other wildlife species."
737 Section 28 of the 2001 Act provides as follows: "(a) imprisonment of two (2) years and one (1) day to four (4) years and a fine of Thirty thousand Pesos (P30,000.00) to Three hundred thousand Pesos (P300,000.00), if inflicted or undertaken against species listed as critical; (b) imprisonment of one (1) year and one (1) day to two (2) years and a fine of Twenty thousand Pesos (P20,000.00) to Two hundred thousand Pesos (P200,000.00), if inflicted or undertaken against endangered species; (c) imprisonment of six (6) months and one (1) day to one (1) year and a fine of Ten thousand Pesos (P10,000.00) to One hundred thousand Pesos (P100,000.00), if inflicted or undertaken against vulnerable species; (d) imprisonment of one (1) month and one (1) day to six (6) months and a fine of Five thousand Pesos (P5,000.00) to Fifty thousand Pesos (P50,000.00), if inflicted or undertaken against species as other threatened species; and (e) imprisonment of ten (10) days to one (1) month and a fine of One thousand Pesos (P1,000.00) to Five thousand Pesos (P5,000.00), if inflicted or undertaken against other wildlife species: Provided, That in case of paragraph (f), where the acts were perpetuated through the means of inappropriate techniques and devices, the maximum penalty herein provided shall be imposed."
738 Section 28 of the 2001 Act provides as follows: "(a) imprisonment of six (6) months and one (1) day to one (1) year and a fine of Fifty thousand Pesos (P50,000.00) to One hundred thousand Pesos (P100,000.00) if inflicted or undertaken against species listed as critical species; (b) imprisonment of three (3) months and one (1) day to six (6) months and a fine of Twenty thousand Pesos (P20,000.00) to Fifty thousand Pesos (P50,000.00), if inflicted or undertaken against endangered species; (c) imprisonment of one (1) month and one (1) day to three (3) months and a fine of Five thousand Pesos (P5,000.00) to Twenty thousand Pesos (P20,000.00), if inflicted or undertaken against vulnerable species; (d) imprisonment of ten (10) days to one (1) month and a fine of One thousand Pesos (P1,000.00) to Five thousand Pesos (P5,000.00), if inflicted or undertaken against species listed as other threatened species;(e) imprisonment of five (5) days to ten (10) days and a fine of Two hundred Pesos (P200.00) to One thousand Pesos (P1,000.00), if inflicted or undertaken against other wildlife species."
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There are also penalties for causing injury to or maltreating wildlife, harming critical habitats and introducing wildlife resources which range from a one month imprisonment and a fine to eight years' imprisonment and/or a fine.
The 2001 Act provides that the levels of fines shall be increased by at least 10% every three years to compensate for inflation and "maintain the deterrent function of such fines"739. Further, if the offender is an alien he or she is immediately deported after he or she has served his punishment and paid his fines.
The 2001 Act provides that all wildlife, derivatives, by-products and paraphernalia used in connection with the illegal act are immediately forfeited in favour of the government. With regard to the wildlife recovered, this is to be taken to the nearest wildlife rescue centre. (As mentioned in paragraph 1 above, this is one of the four requirements of the CITES National Legislation Project).
When comparing the maximum penalties for crimes committed under the 2001 Act with the maximum penalties for other criminal acts, the maximum penalties under the 2001 Act, even for the most severe wildlife crimes, are generally lower. This is demonstrated by a couple of examples:
Theft - the penalty depends on the value of the thing stolen, but the maximum penalty is 20 years' imprisonment; and
Money laundering - the maximum penalty is 14 years' imprisonment and a fine of not less than three million Pesos (US$ 66,000).
3.1.2 Penalties for breaches of the NIPAS Act
Penalties for violations of the NIPAS Act are set out in section 21740. The penalties include a fine and/or imprisonment. Fines range from not less than five thousand Pesos and not more than five hundred thousand Pesos ($110 - $11,000). Imprisonment is for not less than one (1) year but not more than six (6) years. In addition to the fine and/or imprisonment, if the area requires rehabilitation or restoration as determined by the court, the offender shall be required to restore or compensate for the restoration to the damages. The court may also order the forfeiture, in favour of the government, of all minerals, timber or any species collected or removed including all equipment, devices and firearms used in connection with the violation. If the offender is an association or corporation, the president or manager shall be directly responsible for the act of his or her employees and labourers.
3.1.3 Penalties for breach of the Tubbataha Reefs National Park Act of 2009
The legislation grants the Tubbataha Protected Area Management Board ("TPAMB") the authority to impose civil fines for a wide range of offences related to the reef. Such offences include: unauthorised entry; damage to the reef; anchoring; dumping of waste and litter; introduction of foreign species and others. The TPAMB also has powers to impose fines of up to one million Pesos ($22,000). Whilst such fines may seem significant in a country which has some
739 Ibid 740 Republic Act No 7586 dated 1 June 1992; available at http://www.gov.ph/1992/06/01/republic-act-no-7586/
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of the lowest average salaries in the world, it is expected that significantly greater sums would be required to reverse damage done to endangered species that live in the Palawan region. It is important that fines are of a sufficiently high level so as to act as a serious deterrent to those who threaten endangered species in Tubbataha National Park as opposed to making such wrongdoing an economic choice.
3.1.4 Penalties for breach of the MKNP Act
The MKNP Act creates offences for anyone who hunts, collects, destroys, traps, disturbs or possesses any animal within the area or possesses any animal or product derived therefrom outside the area or any zone of it where the species is not endemic (in each case without a prior permit). The penalties for the above offences include fines of between five thousand Pesos and five hundred thousand Pesos ($110 - $11,000) and imprisonment of not less than six years and one day but not more than twelve years.
3.1.5 Penalties for breach of the National Caves and Cave Resources Management and Protection Act 2002
The penalties include imprisonment from two to six years or fines between twenty thousand Pesos and five hundred thousand Pesos ($4,400 - $11,000) and five hundred thousand Pesos or both. This legislation also catches persons providing the funding for individuals to commit the prohibited acts (punishable by imprisonment from six years and one day to eight years or by a fine ranging from five hundred thousand Pesos to one million Pesos or both). If the offender is a government employee, he or she will also be removed from office.
3.2 Enforcement
There is some evidence that legislation protecting wildlife is being / has been enforced in the Philippines. Some recent examples of the Philippine government taking a decisive stand include:
the destruction of five tonnes of elephant tusks in June 2013741. The tusks had been seized from enforcement actions taken against illegal shipments since 2009. It has been reported that the destruction was aimed at sending a signal that the Philippines is taking strong action against the illegal ivory trade.
the recently formed Philippine Operations Group on Ivory and Illegal Wildlife Trade (POGI) filed criminal charges against the owners of confiscated animals and their suspected cohorts following a raid on a home in Tondo, Manila. Disappointingly most of the confiscated animals were already dead and more disappointingly it was reported that most of the dead animals were intentionally killed to avoid detection by the authorities742.
741 Story by Gilbert P. Felongco published on 21 June 2013 at 13:47 in gulfnews.com; available at http://gulfnews.com/news/world/philippines/philippines-in-big-push-against-wildlife-trade-1.1200059 742 See report dated 5 July 2013; available at http://www.china.org.cn/environment/2013-07/05/content_29342093.htm
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in November 2013, DENR gave recognition to 62 individuals who had fought against illegal wildlife activities in the Philippines. Such recognition was via the "POGI Awards"743.
Although this is pleasing news, caution must be exercised as there is a body of reports which criticises the level of success with regard to enforcement of wildlife protection laws in the Philippines.
In 2007 TRAFFIC (the wildlife trade monitoring network) reported a leakage of ivory from government held stockpiles744 and described the overall situation in the Philippines as "most worrying". The leakage was highlighted through the results of an analysis of global ivory seizure records contained in the ETIS745. The ETIS has previously highlighted the Philippines both for its domestic trade in ivory and as a transit point for ivory originating from Africa or elsewhere in Asia and en route to markets in China746.
In a recent ETIS analysis, presented to CITES Parties in March 2013, the Philippines was among the nine countries and territories identified as being most heavily implicated in major illegal ivory trade flows. These nine are now required to submit action plans to improve their implementation of CITES ivory trade requirements. Dr. Colman O'Criodain, Wildlife Trade Policy Analyst for WWF has commented that “Everyone should be clear that the pulverisation of seized ivory in no way removes the Philippines’ obligation under CITES to submit ivory action plans, which in the interests of transparency should have their non- sensitive details made public,” 747. Dr Colman O'Criodain also raised concerns about the auditing of seized ivory.748 Following the announcement regarding the destruction of the ivory in June 2013, TRAFFIC is reported to have contacted the PAWB in the Philippines and was informed an ivory audit would be taking place, with other agencies including the National Bureau of Investigation (NBI) present749.
We enquired with the Philippines Management Authority as to the nature of any additional regulatory measures which had been taken to try and prevent future leakages from government held stockpiles and we were advised as follows:
743 See full report by Ellalyn De Vera in Manilla Bulletin 26 November 2013; available at http://www.mb.com.ph/denr-honors-62- wildlife-protectors/ 744 Reported by TRAFFIC wildlife trade news Thursday 20 June 2013 at 13:08, available at; http://www.traffic.org/home/2013/6/20/philippines-to-destroy-seized-ivory-stockpiles.html 745 The ETIS analysis noted that "the largest ivory seizure ever made in the Philippines subsequently disappeared from the custody of Manila Customs under corrupt circumstances". - Reported Ibid 746 The analysis identified the Philippines as one of the “major transit points in the illicit trade,” and also noted “a new carving industry producing religious sculptures and artifacts has recently been identified in the Philippines that may be linked to an export trade to Italy, the Holy See and perhaps other destinations.”
747 Reported by TRAFFIC wildlife trade news Thursday 20 June 2013 at 13:08; available at http://www.traffic.org/home/2013/6/20/philippines-to-destroy-seized-ivory-stockpiles.html 748 "While destroying ivory puts it out of temptation’s way, an essential element of such an act is that the stockpiles are fully and transparently audited so that it is clear what ivory is being taken out the system and where it originated—only then can outside observers have real confidence in the integrity of the ivory removal,” said Dr Colman O Criodain, WWF’s wildlife trade analyst. See further Ibid. 749 Reported by TRAFFIC wildlife trade news Thursday 20 June 2013 at 13:08; available at http://www.traffic.org/home/2013/6/20/philippines-to-destroy-seized-ivory-stockpiles.html
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In 2010, the Supreme Court of the Philippines promulgated the Rules of Procedure for Environmental Cases. These Rules introduced special remedies applicable to violations of environmental laws, including the [2001 Act] and streamline certain procedures relating to the preparation, filing, prosecution and adjudication of environmental cases in the country;
In the same year (2010), the DENR adopted the Wildlife Law Enforcement Manual of Operations for national implementation. The Manual includes protocols on documentation and the chain of custody of confiscated wildlife, including parts (e.g. ivory).
The DENR instituted the Philippine Operations Group on Ivory (POGI) and Illegal Wildlife Trade on 21 June 2013. The Group is primarily tasked to investigate reports of ivory smuggling, as well as other cross- border illegal collection and trade of wildlife resources in the Philippines . . . Additionally, on the same date (21 June 2013), the Philippines . . pursued the physical destruction of the 4,212.73 kgs of government stockpiles of confiscated elephant tusk / ivory;
Future plans include, among others, the drafting and issuance of policy guidelines on the registration of ivory and ivory products as well as the possible repatriation of confiscated elephant tusks that originated from Kenya"750
It is therefore noted that the Philippines has been taking some steps to tackle the illegal ivory trade, however as recently as March 2013 concern remained as to how effective previous steps had been.
Criticism has not just been confined to the trade of illegal ivory; in recent years there has also been criticism at perceived lenient sentences which have been awarded for trade in or killing of other protected species. One such example was criticism by eagle conservationists against the order of a Bukidnon judge who fined a Lumad farmer 100,000 Pesos for killing and cooking a Philippine eagle in 2008. As the eagle was a critically endangered species, the maximum penalty which could have been awarded was between six and twelve years' imprisonment and/or a fine of 100,000 Pesos to 1 million Pesos751. In her decision, the trial judge reportedly ordered the farmer "to pay the fine in the amount of 100,000 Pesos with subsidiary imprisonment in case of insolvency in consonance with Article 39 of the Revised Penal Code" but it is alleged that the order did not indicate when the amount should be paid752. Press reports indicated that the DENR, which filed the original complaint, was considering filing a motion for reconsideration before the court "to provide more time to explain until the judge can appreciate more the case"753. However, at the same time, it was reported that the defendant was also planning on appealing the decision of the trial judge to the
750 Letter from the Philippines Management Authority (the Philippines Department of Environment and Natural Resources, Biodiversity Management Bureau) dated 06 March 2014. 751 US$2,000 - US$22,000 752 Article by Joselle R. Badilla, Inquirer Mindanao. Reported in the Philippine Daily Inquirer 9:10 pm Saturday 26 May 2012; available at http://newsinfo.inquirer.net/201147/group-protests-light-penalty-for-eagle-killer 753 Story by Walter L. Balane on 24 May 2012 at 4:37 am, reported in MindaNews; available at http://www.mindanews.com/top- stories/2012/05/24/man-fined-p100000-for-killing-philippine-eagle-in-bukidnon/
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Court of Appeals754. It is unclear whether the appeal or the motion to reconsider were in fact submitted and their outcome. However, commenting on the original sentence, Dennis Salvador (executive director of the Philippine Eagle Foundation ("PEF")) said "The PEF believes that the court underappreciated the extent and gravity of the offense. It should have been a test case of the Wildlife Act,” 755. It is understood that at the time that it was reported, this criminal case was the first of its kind brought against a person for killing, cooking and eating a Philippine eagle.
It is worth noting that some of the difficulties in enforcing wildlife laws in the Philippines may partly be attributable to the spiritual and cultural beliefs of indigenous communities. In the aforementioned case of the Philippine eagle, tribal leaders are alleged to have commented that the authorities needed to have regard to the requirement to obtain free and prior informed consent from the relevant indigenous communities before releasing eagles back into the wild and that proper information, education and communication campaigns were not enough, rather the indigenous populations needed to be included in the planning of such releases756. Whilst this by no means justifies the killing of endangered wildlife, the press articles do highlight some of the challenges faced in parts of the Philippines in enforcing wildlife protection laws.
Another challenge to be faced when enforcing wildlife legislation within the Philippines is dealing with poachers, often operating in the waters surrounding the Philippines. In recent years there are a number of examples of Vietnamese and Chinese fishermen that have been caught poaching endangered or protected species. In some instances, even though the authorities were successful in rescuing the wildlife from the poachers, the poachers themselves escaped. In other cases, although the alleged poachers were arrested, the wildlife was already dead. It is reported that foreigners poaching endangered species has become a sensitive issue in the Philippines and environmentalists are calling for stronger action against the perpetrators, however it is believed that "following pressure from their governments, foreigners often have the charges dropped or lessened, allowing them to be deported quickly back home"757. One reported example of such alleged pressure occurred between the Philippines and China in 2012. Following the apprehension of a number of Chinese fishing boats by the Philippine Navy, a large quantity of marine life was found. This allegedly led to a stand-off between the two nations which is said to have caused China to impose stricter regulations on imports of Philippine products and the suspension of tours from China to the Philippines (Chinese tourists are said to make up approximately 10% of tourists to the Philippines)758. It would be naïve to ignore that pressure from foreign governments is a factor when foreign nationals are charged with offences against wildlife, and it is noted that inter-agency and intergovernmental initiatives (such as the ASEAN (Association of Southeast Asian Nations) Wildlife Enforcement Network) play an important role alongside
754 Ibid 755 Ibid 756 Ibid
757 Available at; http://globalnation.inquirer.net/88389/13-vietnamese-arrested-in-philippines-over-sea-turtles#ixzz2r3EQaWv3 758 Article by Jerry Bonkowski 26 April 2013; available at http://apdforum.com/en_GB/article/rmiap/articles/online/features/2013/04/26/china-illegal-fishing
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national and international legislation in combatting such offences and successfully prosecuting perpetrators.
3.3 Additional information
Whilst it is important to ensure an adequate legislative framework to combat illegal trade in wildlife, it is equally important for the relevant authorities, including the police, customs, navy, etc to be trained both to identify wildlife species and in relation to enforcement of specific wildlife protection laws. With regard to the latter, it is understood that training has previously taken place and in 2007 judges and prosecutors were reportedly given training on the handling of wildlife crimes cases via a number of workshops. Speakers at the workshops included representatives from the United States Department of Justice, the US Agency for International Development, the Asian Environmental Compliance and Enforcement Network and the US Embassy759. Various manuals and guidance, such as the Wildlife Law Enforcement Manual of Operations have also been previously released which the DENR expected to be instrumental in "lodging airtight cases in court and securing convictions against wildlife crimes", however as can be seen from recent press reports, there are still considerable challenges in securing convictions, the adequacy of sentencing and also political pressure to reduce the seriousness of charges against foreign nationals.
4. ANCILLARY LEGISLATION
4.1 Legislation summary
There are a number of ancillary pieces of legislation in the Philippines, which work in conjunction with the principal legislation to deter individuals from participating in wildlife crime.
Wildlife smugglers are often part of organised criminal syndicates, taking advantage of Asia’s strong transport infrastructure to traffic wildlife within and out of the Philippines. As a result, wildlife crime frequently involves a range of other connected offences including money laundering, bribery and corruption.
In addition to domestic ancillary legislation, the Philippines is also a member of a number of international instruments which seek to combat transnational crimes which are inherently connected with wildlife crime.
4.1.1 Money Laundering
Anti-Money Laundering Act of 2001
The Philippines Government enacted the Anti-Money Laundering Act of 2001760 (the "Act") which established the country's Anti-Money Laundering Council ("AMLC").761 The government's stated purpose for creating the money laundering legislation is to "ensure that the Philippines shall not be used as a
759 Article by Sandy Araneta 3 May 2007; available at http://www.ecologyasia.com/news-archives/2007/may-07/abs- cbn_070503_1.htm
760 Republic Act 9160 - signed into law on 29 September 2001 and took effect on 17 October 2001 and was amended by Republic Act 9194 and Republic Act no 10365. 761 Available at www.amlc.gov.ph/amla.html (all online websites have been accessed in January 2014)
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money laundering site for the proceeds of any unlawful activity".762 The AMLC was established to facilitate international co-operation in transnational investigations concerning money laundering crimes.763
The legislation creates an offence of money laundering whereby the proceeds of an unlawful activity are subject to a transaction in an attempt to make the proceeds of the crime look like a legitimate source of income.764 Thus, there are two aspects to the offence:
the committing of the predicate crime; and
the money laundering offence.
The Act identifies 19 predicate crimes including smuggling, terrorism and "felonies and offences of a similar nature punishable under the penal laws of other countries".765 It is noteworthy that the Act does not expressly identify wildlife crime as a predicate crime, but the offences are drafted in such a wide manner as to catch almost any money laundering activity, regardless of the underlying crime. The Act expressly states that a person found guilty of a money laundering offence can also be prosecuted for committing the predicate crime.766
The Act criminalises any activity which involves "knowingly transacting or attempting to transact any monetary instrument/property which represents, involves or relates to the proceeds of an unlawful activity".767 As well as providing for international co-operation, the Act imposes domestic legal requirements concerning customer identification, record keeping and reporting of covered and suspicious transactions.768 Both official and private persons are caught by the legislation, as well as corporate bodies.769
The Act is predominantly criminal law focussed but does allow for the application of civil law forfeiture rules to apply under section 12.
The Act places a duty on "covered institutions" to report any "suspicious transactions" which will include a situation where the transaction appears void of economic justification or involves an amount of money which is not in line with the business or financial capacity of the client.770
Section 7 establishes the AMLC which is composed of three members; a chairman, the Commissioner of the Insurance Commission and the Chairman of the Securities and Exchange Commission. The AMLC has a number of powers including:
762 Section 2 of Republic Act 9160. 763 Ibid. 764 Section 4 765 Section 3 (i) (14) 766 Section 6 767 Section 4(a) 768 Section 9 and 11 769 Section 7(4)(d) 770 Section 3(b)(1)-(3)
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the right to apply to the Court of Appeals for the freezing of any monetary instrument or property alleged to be money laundered proceeds;771
the right to request transaction reports from certain financial institutions;772
to investigate suspicious transactions and violations of the Act;773
to cause the filing of complaints with the Department of Justice or the Ombudsman for the prosecution of money laundering offences;774 and
to institute civil forfeiture proceedings and all other remedial proceedings through the office of the Solicitor General.775
The Act not only criminalises the act of money laundering itself, but also failure to carry out relevant checks and failure to disclose and file any suspicious transaction to the AMLC. The latter is treated far less seriously but can still result in a maximum of 4 years' imprisonment and/or a fine.
The maximum penalty for the crime of money laundering is 14 years' imprisonment and a fine of not less than three million Pesos ($66,000). The implementation Review Group Report on the Philippines implementation of the United Nations Convention Against Corruption notes that the Act lacks a unified definition of public officials and the definition also fails to include foreign public officials.776
The US State Department Report on Terrorism,777 published in June 2012, observed that the monitoring of money laundering in the Philippines was weak. The government was said to be faced with limited human and financial resources to sustain the fight against money laundering.
It is noteworthy that amendments to the Act, which came into force on July 2013,778 have addressed a number of deficiencies identified by the US State Department Report on Terrorism. For example, Republic Act 1035 expanded the definition of the money laundering offence, and the lists of institutions or "covered institutions" responsible for carrying out money laundering checks. Casinos are still not considered "covered institutions" however. It remains to be seen whether the amendments to the Act improve the arrest / conviction rates.
Unfortunately, the rate of prosecution and enforcement of money laundering criminals still falls short of international standards, thereby failing to combat the majority of wildlife crime in the region.
771 Section 7(6) 772 Section 7(1) 773 Section 7(5) 774 Section 7(4) 775 Section 7(3) 776 Implementation Review Group Report on the Philippines Implementation of the UNCAC - CAC/COSP/IRG/2013/CRP.17 para 2.3. 777 Available at http://www.state.gov/documents/organization/210204.pdf p 53 778 Republic Act no 10365
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4.1.2 Corruption
Wildlife crime can involve corruption offences ranging from officials turning a blind eye to illegal wildlife activities, to the most senior corrupt government officials being involved in policy decisions concerning wildlife trade.779
4.1.2.1 1987 Constitution of the Republic of the Philippines
Article II, section 27 of the 1987 Constitution of the Republic of the Philippines provides that: “The State shall maintain honesty and integrity in the public service and take positive and effective measures against graft and corruption”. Section 28 states: “Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest”.
Article XI of the 1987 Constitution, entitled “Accountability of Public Officers”, states that the fundamental principle of public office is public trust. Senior public officials including the President, the Vice-President, the members of the Supreme Court, the members of the Constitutional Commissions, and the Ombudsman may be removed from office on impeachment for, and conviction of bribery, graft and corruption, or betrayal of public trust. 780
Article XI, Section 5 of the 1987 Constitution established the independent Office of the Ombudsman which has varying powers to investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient. The body can "direct" any public official to do a number of things including "perform and expedite any act or duty required by law, or to stop, prevent, and correct any abuse or impropriety in the performance of duties." However, it is unclear what the term "direct" actually means.781
The 1987 Constitution also established other special independent bodies to support the anti-corruption legislation, including: the Civil Service Commission as the central personnel agency; the Commission on Audit as the supreme body responsible for auditing the government’s expenditures and performance; and the Sandiganbayan, a special court that hears cases of graft and corruption.782
To ensure that these organisations and their commissioners can fulfil their duties without fear of reprisal from other agencies of the
779 Wildlife and Forest Crime Analytic Toolkit - www.cites.org/eng/resources/pub/Wildlife_Crime_Analytic_Toolkit.pdf p54 780 Section 2, available at; http://www.lawphil.net/consti/cons1987.html 781 Article XI, Section 13 782 Graft and Corruption: The Philippine Experience - Nelson Nogot Moratallo; available at http://www.unafei.or.jp/english/pdf/RS_No56/No56_44PA_Moratalla.pdf p506
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government, the 1987 Constitution grants them fiscal autonomy.783 Their actions are appealable only to the Supreme Court.
4.1.2.2 Anti-Graft and Corrupt Practices Act 1960
Legislation seeking to prevent various kinds of corrupt practices is also embodied in the rather dated Anti-Graft and Corrupt Practices Act 1960.784 It focusses on corrupt practices by any public officer, and states the maximum penalty for committing such an offence is imprisonment of 10 years.785 Other penalties include disqualification from public office, and confiscation or forfeiture of unexplained wealth.786 It also states that all government officials must declare their assets and liabilities.787 It is noteworthy that the bribery of foreign public officials and officials of public international organisations is not criminalised in the Philippines. Bribery in the private sector is also not criminalised, except for private individuals who conspire with public officers.788
It is clear that the Philippines has a large number of rules and regulations seeking to prevent corruption, however, the legislation seems confused and duplicated in a variety of sources.
4.1.2.3 Anti-Corruption Commitment
Consistent with the President Aquino's campaign slogan "if there is no corruption, there is no poverty"789 the Philippine Development Plan for 2011-2016, which was approved in 2011790 focusses on good governance and anti-corruption as an essential part of fighting poverty and achieving inclusive growth.791 An anti-corruption commitment was unveiled in 2012 with the approval of the Good Governance and Anti-Corruption plan for 2012-2016, which seeks to promote transparency, accountability and participation in government operations.792
The 2013 Corruption Perceptions Index published by global watchdog Transparency International, shows that corruption in the country has improved slightly from the previous year but still remains a serious problem.793 According to Global Integrity, political
783 Article VIII Section 2 of the 1987 Constitution 784 Republic Act 3019 (1960). 785 Section 9 786 Ibid 787 Section 7 788 Implementation Review Group Report on the Philippines Implementation of the UNCAC - CAC/COSP/IRG/2013/CRP.17; available at http://www.unodc.org/documents/treaties/UNCAC/WorkingGroups/ImplementationReviewGroup/26- 27November2013/V1387978e.pdf p3 789 2012 Budget message of President Acquino; available at www.gov.ph/2011/07/26/preseident-acquino-2012budget-message/ 790 Available at http://devplan.neda.gov.ph/ 791 Transparency International - Corruption and Anti-Corruption in the Philippines; available at http://www.transparency.org/files/content/corruptionqas/Corruption-AntiCorruption-Philippines.pdf 792 Available at http://governancecluster.files.wordpress.com/2013/05/good-governance-cluster-plan-2012-2016.pdf 793 The Philippines ranked 94 out of 177 countries analysed for corruption; available at http://cpi.transparency.org/cpi2013/results/
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financing remains an area of weakness, especially with regard to the disclosure of political finance records as well as enforcing conflicts of interest safeguards.794
4.1.2.4 Philippines Revised Penal Code 1930
Articles 210-212 of the Philippines Revised Penal Code 1930 also sets out a number of laws prohibiting bribery of public officials.795 "Direct"796 and "indirect"797 bribery is criminalised. Direct bribery applies to any public official who agrees to act or to refrain from acting in a certain way in connection with performance of his official duties in return for any form of gift, money or present.798 "Indirect bribery" and "qualified bribery" are also criminalised.799 It is noteworthy that there are no express laws against bribery of private individuals acting for a company.
4.1.2.5 The Act Defining and Penalising the Crime of Plunder 1991
The Act Defining and Penalising the Crime of Plunder800 prohibits any public officer who, by himself or in connivance with members of his family, relatives or business associates, amasses accumulates or acquires "ill-gotten wealth" through criminal acts amounting to at least 50 million Pesos ($10,000,000). The act states that the maximum punishment for being found guilty of plunder is now life imprisonment. A previous version of the legislation stated that the death penalty could be sentenced in the most severe cases. This is no longer the case since the enactment of the Act Prohibiting The Imposition Of Death Penalty In The Philippines801 was enacted in 2006 and has outlawed capital punishment.802 However, President Aquino has recently discussed the possibility of legalising capital punishment again.803
4.1.2.6 United Nations Convention against Corruption ("UNCAC")
The Philippines ratified the UNCAC in 2006 which states:
Each State Party shall, in accordance with the fundamental principles of its legal system, develop and implement or maintain effective, coordinated anti-corruption policies that promote the
794 Global Integrity Report: The Philippines; available at https://www.globalintegrity.org/global/the-global-integrity-report-2010/philippines/2010/ 795 Republic Act 3185 (1930). 796 Article 210 797 Article 211 798 Article 210 799 Articles 211 and 211A respectively. Qualified bribery involves a public officer who refrains from arresting or prosecuting an offender in return for some form of gift. 800 Republic Act 7080 (1991); available at http://www.oecd.org/site/adboecdanti-corruptioninitiative/46816908.pdf 801 Republic Act No. 9346 (2006). 802 Section 2 (b) RA No. 9346. 803 "Palace against restoring the death penalty"; available at http://ph.news.yahoo.com/palace-against-restoring-death-penalty- 164051242.html (July 2013) and "Death penalty revival needs extensive consultation"; available at http://newsinfo.inquirer.net/568347/palace-death-penalty-revival-needs-extensive-consultation
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participation of society and reflect the principles of the rule of law, proper management of public affairs and public property, integrity, transparency and accountability.804
However, the country falls short of meeting the standards imposed by the Convention.805 For example, a review of the implementation of the UNCAC in the Philippines notes that Article 15B of the UNCAC requires that:
Each State Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences, when committed intentionally:
(b) The solicitation or acceptance by a public official, directly or indirectly, of an undue advantage, for the official himself or herself or another person or entity, in order that the official act or refrain from acting in the exercise of his or her official duties.
The following statistics were produced by the Office of the Special Prosecutor in the Philippines, which reflect the extent of implementation of Article 15B of the UNCAC:806
Year Number of Pending Convictions Acquittals Prosecutions Cases (Information (Cumulative Filed) Data)
2009 5 33 3 1
2010 6 27 2 3
2011 9 22 4 0
Clearly, the numbers of convictions between 2009 and 2011 have been very low, with more people being acquitted than convicted in 2010. The statistics also show an alarming number of cases pending, in comparison to the number of prosecutions.
The United Nations identified a number of challenges in fully implementing Article 15B:
inter-agency co-ordination;
inadequacy of existing normative measures (1987 Constitution, laws, regulations, etc.);
804 Article 5.1 805 Implementation Review Group - Review of implementation of the United Nations Convention against Corruption; available at http://www.unodc.org/documents/treaties/UNCAC/WorkingGroups/ImplementationReviewGroup/26-27November2013/V1387978e.pdf 806 United Nations Office on Drugs and Crime, Country Review Report on the Philippines; available at http://www.ombudsman.gov.ph/docs/uncac/Philippines%20Country%20Report.pdf at page 34 paragraph 113.
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specificities in its legal system;
limited resources for implementation (e.g. human/ financial/ other); and
other issues including the Filipino culture of gift-giving.807
Article 15 and many others in the UNCAC were described in the report as "partially implemented" and therefore it is clear that the Philippines falls short of the United Nations standards of implementation.
4.1.3 Organised Crime
The illegal wildlife trade attracts the attention of organised criminal syndicates, which has resulted in the development of one of the largest black markets in the world.
4.1.3.1 United Nations Convention Against Transnational Organised Crime ("UNTOC")
The Philippines ratified UNTOC on 28 May 2002.808 UNTOC seeks to "promote cooperation to prevent and combat transnational organised crime more effectively."809 In particular, this includes the combatting of illegal trade in wildlife. Across Southeast Asia, illegal wildlife is often openly sold in otherwise legal market contexts and prominent markets exist in the Philippines and neighbouring countries.810
UNTOC contains detailed provisions to support international cooperation in areas including extradition and mutual legal assistance. It provides for innovative forms of cooperation that can be applied in the field of wildlife crime. Examples include joint investigations and cooperation for the use of special investigative techniques, such as controlled delivery, electronic and other forms of surveillance and undercover operations. UNTOC further requires states to adopt appropriate measures aimed at promoting law enforcement cooperation.
Executive Director Yury Fedotov, of UNODC, stated at the St Petersburg Tiger Summit in November 2010, that tackling wildlife crime requires a co-ordinated response. At the national level, law enforcement requires strengthening. Internationally, there is a need to encourage and develop a culture of cooperation and criminal
807 United Nations Office on Drugs and Crime, Country Review Report on the Philippines; available at http://www.ombudsman.gov.ph/docs/uncac/Philippines%20Country%20Report.pdf at page 35 paragraph 120. 808 Available at https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-12&chapter=18&lang=en 809 Article 1 United Nations Convention Against Transnational Organised Crime 810 Transnational Organised Crime Assessment; available at http://www.unodc.org/documents/data-and analysis/Studies/TOCTA_EAP_web.pdf p8
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intelligence sharing to stop transnational trafficking in endangered species.811
4.1.3.2 ASEAN Declaration on Transnational Organised Crime and implementing instruments
The Philippines government has enacted numerous pieces of legislation in attempt to fight international organised crime both internationally and domestically. The country is a party to the ASEAN Declaration on Transnational Organised Crime and implementing instruments. ASEAN's initial efforts in combatting transnational crime were focussed on drug abuse and drug trafficking, but with technological advancement and greater mobility of people and resources across national borders, the region now deals with many new forms of organised crimes, including wildlife crime.
A group of Tanzanian businessmen were charged with smuggling 11 tonnes of ivory into the Philippines and Viet Nam between October 2008 and March 2009.812 The tusks were impounded by authorities in the Philippines through co-operation with Interpol.
4.1.3.3 Executive Order No. 62
Executive Order No.62813 created the Philippine Center on Transnational Crime ("PCTC") which implements a programme of action of all law enforcement intelligence and other agencies for the prevention and control of transnational crime.
The order established a shared central database among the numerous government agencies for information on criminals, methodologies, arrests and convictions for a variety of transnational crimes . Interestingly, the order does not specifically mention wildlife crime but it appears to fall within the "other crimes that have an impact on the stability and security of the country" catch-all provision.814
As well as establishing a shared database, the order established a centre for strategic research on the structure and dynamics of transnational organised crime.815
4.1.3.4 Executive Order No. 265
Executive Order No. 265816 creates a "Special Envoy on Transnational Crime" and designation of special prosecutors in all provincial and city prosecution offices to handle trafficking cases. It
811 Tackle organized crime to save the tiger, says UNODC Executive Director ; available at http://www.unodc.org/unodc/en/frontpage/2010/November/tackle-organized-crime-to-save-the-tiger-says-unodc-executive- director.html 812 The Globalization of Crime: A Transnational Organized Crime Threat Assessment; available at http://www.unodc.org/documents/data-and-analysis/tocta/TOCTA_Report_2010_low_res.pdf p 153 813 Issued on 15 January 1999 814 Section 3(1)g 815 Section 3(4) 816 Issued in January 2004
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also establishes "The Comprehensive Program on Combating Transnational Crime" which includes:
strengthening information and intelligence gathering;
strategic research;
intensifying law enforcement;
capacity building and empowerment for major stakeholders; and
reinforcing regional and international cooperation.817
It is clear that there are numerous state bodies working towards combatting international organised crime in the Philippines, however, there is very little information on the effectiveness of these institutions. The uncovering of the ivory smugglers mentioned in paragraph 4.1.3.2 above shows that the measures appear to have some degree of success. However, such news reports are few and far between and without official national reports on the success of the legislation, it is difficult to determine its effectiveness.
4.2 Penalties and enforcement
There are a number of statutory bodies responsible for the enforcement of the Filipino ancillary legislation detailed above. Traditionally, enforcement of money laundering and corruption offences has been weak which has inevitably resulted in a surge of wildlife criminal activity.
There is a dearth of up to date information available concerning enforcement statistics for the ancillary legislation identified above. The most reliable sources can be found in the United Nations country review reports.
The ancillary legislation is scattered throughout a number of different instruments and enforcement bodies are numerous and somewhat uncoordinated. It is the general lack of resources for enforcement which hinders the effectiveness of wildlife protection in the Philippines. The number of prosecutions under corruption legislation in the Philippines is low and the judicial system is backlogged with dated cases.
4.2.1 ASEAN Wildlife Enforcement Network ("ASEAN-WEN")
ASEAN-WEN is the largest wildlife law enforcement network which commenced operation in 2005. It acts as a regional inter-agency and inter-governmental initiative to counter the illegal cross-border trade in endangered species. It provides the member countries with shared information resources to tackle cross- border wildlife crime and drives the exchange of regional best practices in fighting such crimes.818
817 Section 2 818 Available at http://www.asean-wen.org/
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ASEAN-WEN regularly holds law enforcement training courses and workshops to increase public awareness about protected species and the dangers that wildlife trafficking poses to the environment, human health and security. Information campaigns are also helping to build further international political will to tackle wildlife crime.
The Philippines government has had a degree of success in the implementation of the 2005-2010 ASEAN Regional Action Plan on Trade in Wild Fauna and Flora. The establishment of the POGI and the subsequent crushing of five tonnes of smuggled elephant tusks using a road roller, made the Philippines the first country in Asia to conduct physical destruction of massive ivory stockpiles in support of global efforts to stamp out illegal wildlife trade.819
4.3 Relationship with principal legislation
There is scarce information on the relationship between ancillary legislation and principal legislation and much of that which is available makes very little specific reference to wildlife crime. Due to the lack of available information, it is difficult to assess the likelihood of success in terms of prosecuting wildlife crimes under the above ancillary legislation.
5. JUDICIAL PROCESS AND CAPACITY
5.1 Judicial process
In 2010, the Supreme Court of Philippines adopted special procedures for environmental cases in form of the Rules of Procedure for Environmental Cases ("Environmental Rules of Procedure").820 The Environmental Rules of Procedure were adopted in order to improve enforcement of environmental and related laws and regulations and to enable courts to exact compliance with orders and to monitor implementation of judgments in environmental cases.821 The Rules of Procedure govern both civil and criminal actions before the 13 Regional Trial Courts, the Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Trial Courts and Municipal Circuit Trial Courts involving enforcement or violations of environmental laws including but not limited to the Wildlife Conservation and Protection Act822, the SEP,823 the rights and duties under the 1987 Constitution, existing rules, and international agreements.824 Although not addressed explicitly in the Environmental Rules of Procedure, the 13 Regional Trial Courts generally hear more serious criminal cases and appeals while the Metropolitan and Municipal courts have original jurisdiction including over minor criminal cases.
Previously in 2008, the Supreme Court issued an Administrative Order establishing 117 “green courts” in order to address the problem of judges' unfamiliarity with environmental laws and the growing backlog of cases ("Administrative Order on Special Courts").825 The Administrative Order on Special Courts designated first and second level courts and the
819 Available at http://denr.gov.ph/news-and-features/latest-news/1414-fact-sheet-battle-against-illegal-ivory-trade-the-philippines-physical- destruction-of-smuggled-ivory.html 820 Environmental Rules of Procedure, A.M. No. 09-6-8-SC, April 29, 2010. 821 Ibid. at Sec. 3(d). 822 R.A. No. 9147. 823 R.A. No. 7611. 824 Rules of Procedure Sec. 2, 3(b). 825 SC Adm Order 23-08, Designation of special courts to hear, try and decide environmental cases, Jan. 28 2008, also discussed in Risa Halaguena, “Developments in Philippine Access to Environmental Justice,” 3 Effectius Newsletter, Issue 11, 2011).
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presiding judges of those courts.826 If a judge appointed to preside over a Special Court retires, is promoted or dismissed, the successor judge shall reside over the Special Court.827 The Administrative Order on Special Courts provides for the assignment of cases by raffle if there is more than one Special Court with jurisdiction.828 Although not addressed in the text of the Administrative Order on Special Courts, it is understood that designated judges are required to attend special training for environmental cases.829
In that the Wildlife Conservation and Protection Act authorises only criminal prosecutions, the following analysis of the Environmental Rules of Procedure are limited to the criminal judicial process. Under the Environmental Rules of Procedure 1) any offended party, 2) a peace officer or 3) any public officer charged with the enforcement of environmental law are authorised to file information with the court charging a person with a violation of criminal law.830 If a private offended party files the information, it must be with the consent and supervision of the public prosecutor.831
As discussed in the Annotation to the Rules of Procedure for Environmental Cases, in order to encourage greater public participation in environmental crime cases even in the absence of a private offended party, the Rules of Procedure for Environmental Cases go beyond the Rules of Criminal Procedure to authorise the intervention of a private prosecutor, subject to the control of the public prosecutor, in order to advance the public interest.832 The Annotation to the Rules of Procedure for Environmental Cases compares this authority to public interest environmental litigation where concerned organisations or NGOs pursue to the case.833 The authorization of a private prosecutor may help alleviate constraints on public prosecution due to limited resources and therefore theoretically increase enforcement overall. However, we were unable to find verifiable evidence of successful criminal prosecutions by private prosecutors.
5.2 Prosecutions
Of the reported cases of arrests made in wildlife related prosecutions, there is a scarcity of successful convictions, which seems to be indicative of a weakness in the judicial process with respect to these cases.
In February 2013, the Director of the DENR's PAWB submitted a report to the CITES Standing Committee on the implementation of the CITES controls on the ivory trade ("February 2013 Report"). The February 2013 Report discussed four criminal prosecutions in conjunction with the confiscation of illegal ivory. Of these four, three of the suspected violators remain at large and the complaint against the fourth suspected violator was dismissed. One of the violators who remains at large is the former park superintendent of the Ninoy Aquino Parks and Wildlife Nature Center in Quezon City, and is accused of stealing 793 kilos of ivory tusks that were scheduled to be destroyed by the DENR.
826 Ibid. 827 Ibid. Guideline 4. 828 Ibid. Guidelines 3 and 5. 829 Halaguena,, “Developments in Philippines Access to Environmental Justice.” 830 Environmental Rules of Procedure, Part IV, Rule 9, Prosecution of Offenses. 831 Ibid. Sec. 1, 2. 832 Ibid. Sec. 3. 833 Annotation to the Rules of Procedure for Environmental Cases, Sec. 3
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In another widely reported incident in July 2013, an interagency group of wildlife officers including from the DENR arrested a wildlife trafficker and his accomplices in Tondo, Manila after being tipped off by an eye witness.834 The traffickers killed most of the animals prior to the arrival of the authorities835, making these crimes particularly egregious. We have been unable to confirm whether these traffickers have been prosecuted to date. The lack of any convictions in conjunction with this case and the pending cases discussed in the February 2013 Report seem to be indicative of a judicial system that is still struggling with prosecutions under the laws protecting wildlife and compliance with CITES.
5.3 Appeals
Neither the Wildlife Conservation and Protection Act nor the Rules of Procedure for Environmental Cases address the appeals process for prosecutions under the statute or for ancillary crimes.
5.4 Judicial capacity
In 2010, the Supreme Court addressed judicial capacity building through the adoption of the Administrative Order designating special courts to hear environmental cases and through the adoption of Rules of Procedure for Environmental Cases. These changes expanded the opportunities for prosecution by not only public prosecutors but authorised actions by offended parties and special prosecutors in an attempt to engage citizens in enforcement and alleviate resource limitations. However, based upon available information, it is unclear whether these changes to the judicial process will yield meaningful improvements without strengthening of other areas.
6. CONCLUSIONS
6.1 Effectiveness of legislation
The 2001 Act does attempt to implement the goals put forward by CITES, indeed this intention is recognised in the 2001 Act itself and was previously acknowledged at a CITES meeting shortly after the national legislation was enacted. However, the Philippines currently only has Category 2 status of legislative progress for the implementation of CITES due to the Philippines not currently having any legislation which deals with "introduction from the sea"836.
The 2001 Act also envisages maximum penalties for some of the most serious wildlife crimes which go beyond the UNODC definition of what constitutes a serious crime, however these penalties still tend to be lower than the maximum penalties which are available for other serious crimes.
There is scarce evidence of successful prosecutions under the 2001 Act and the examples found indicate that the sentences imposed to-date have tended to be lenient, with judges imposing fines in the minimum amount provided for by the 2001 Act rather than a custodial sentence.
834 Philippine wildlife trafficker kills animals before being caught by authorities, Sonia Lavina, Tampa Environmental News Examiner, July 8, 2013. 835 Ibid. 836 See further paragraph 2.2 below.
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As discussed in this report, there are a number of challenges to effective enforcement of the legislation which include: reported examples of alleged political pressure from some foreign governments where violations of the 2001 Act have been committed by foreign nationals; spiritual and cultural beliefs of indigenous communities and other nearby nations (e.g. the perceived health benefits of Pangolin scales in Chinese medicine creating a market for such products); as well as corruption leading to the disappearance of wildlife / wildlife derivatives. The Philippines therefore may be seen by traffickers as an easy target and perhaps this has led to it being regarded as a key transit country for trade in ivory.
There is evidence of attempts to train the judiciary in the handling of wildlife cases and also the establishment of the "green courts" to specialise in hearing such cases. Further, we have found evidence of ancillary guidance designed to improve the success rate of prosecuting wildlife crimes. Nonetheless, the number of reported convictions does not indicate that any of these methods have been working to improve the conviction rate to-date.
A further complicating factor is weak enforcement of ancillary legislation such as money laundering and corruption offences. The ancillary legislation is scattered throughout different instruments and enforcement bodies making the approach to enforcement uncoordinated and ineffective. Again, the number of prosecutions under corruption legislation is low and the judicial system is backlogged with dated cases.
To adequately enforce wildlife legislation in the Philippines a two pronged approach is required; first the issues surrounding enforcement of the main primary wildlife legislation need to be addressed; secondly ancillary legislation dealing with bribery and corruption needs to be simplified and overhauled to address corrupt practices relating to wildlife crimes.
6.2 Recommendations
We have found commentary summarising suggestions on how to tackle illegal wildlife crime in the Philippines837. We have summarised some of the most salient suggestions below, amplified these where we think appropriate and over-laid our own thoughts. Our recommendations are as follows:
Enforcement of wildlife legislation
6.2.1 There needs to be clearer sentencing guidelines for judges prosecuting wildlife cases and better, more transparent information relating to arrests, prosecutions and sentencing. Further training of the judiciary and prosecutors may also be required to ensure effective enforcement of wildlife legislation and that appropriate sentences are handed down.
6.2.2 The maximum penalties for even the most serious wildlife crimes committed under the 2001 Act are lower than the maximum penalties for other offences (such as money laundering and theft). Given that wildlife crimes generally form part of wider criminal activity, it is recommended that the maximum penalties under the 2001 Act are increased.
6.2.3 The Philippines needs to introduce national legislation which deals with "introduction from the sea" in order to be fully compliant with CITES.
837 Available at; http://kampragsblog.blogspot.co.uk/
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6.2.4 It is important for local authorities especially the police to be trained to identify wildlife species, their taxonomy and the animal welfare law issues involved, so that they may identify potential illegal activities.
6.2.5 It should also be considered whether training can be made available for veterinary students, other professionals and hobby groups to ensure the operation of an effective information education campaign.
6.2.6 Local communities need to be involved in order to make the enforcement of wildlife legislation effective. It needs to be acknowledged that spiritual and religious beliefs may currently hinder the enforcement of wildlife legislation in some areas of the Philippines, which means that consultation as well as enforcement is important in these areas.
6.2.7 It should be considered whether additional powers could be provided to the relevant enforcement authorities and their enforcement officers, which would facilitate identification and successful prosecutions of crimes against wildlife.
6.2.8 It is also noted that seized wildlife needs to be given to a legitimate rescue centre with adequate facilities not only for care, but for auditing and record-keeping of endangered species and for interested legitimate experts such as biologists and veterinarians. Confiscated specimens need to be kept at secure locations and audited and disposed of in a transparent way, complying with CITES.
6.2.9 On the national policy maker level, Philippine Association of Wildlife Veterinarians, Inc. (PAWVI) representation must be more visible. PAWVI must identify and develop allies from among influential but responsible people. Public icons should be requested to support PAWVI projects to help drive home the message and change attitudes.
6.2.10 The importance of developing international networks such as the ASEAN Declaration on Transnational Organised Crime should not be under-estimated. Wildlife crime, by its very nature, transgresses borders and the Philippines will need to work with its neighbours to adequately enforce its national legislation. International pressure and support could help improve the effectiveness of enforcement actions (at the very least it may help in cases of reported alleged pressure from other nations).
Enforcement of ancillary legislation
6.2.11 We would recommend an overhaul of ancillary legislation relating to bribery and corruption to simplify and consolidate such legislation in an attempt to facilitate arrests and prosecutions.
6.2.12 Training to be provided to the judiciary and prosecutors on the relationship between wildlife crime and bribery and corruption offences with encouragement for prosecutions to be brought under the ancillary legislation for facilitating and/or turning a blind eye to wildlife crimes.
6.2.13 This report notes an apparent lack of resources to deal with bribery and corruption offences together with a lack of transparency concerning both the number of charges brought and conviction rates. Both these issues need to be addressed, if corruption per se (as well as that in connection with wildlife crime) is to be reduced.
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THAILAND
Team Leader and Editor - Supreedee Nimitkul - DLA Piper
Team Members - Gillian Buchanan, Tassanu Chutikanon, Kasia Lebiecki, Andrew Schatz, - DLA Piper
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1. EXECUTIVE SUMMARY
Despite the fact that Thailand features prominently as a hub for illegal wildlife trade, the Thai Government does not appear to consider this issue a priority.838
The legal provisions surrounding crimes relating to the illegal wildlife trade in Thailand indicate that such crimes are regarded as serious crimes within the meaning of UNODC. However, in practice, an ineffective judicial process, together with a lack of enforcement of the relevant legislation, mean that such crimes may often go unpunished. In addition, the penalties for crimes relating to the illegal wildlife trade under Thai law are inadequate when compared to sentences which may be imposed on criminals under domestic law in connection with other serious crimes. Furthermore, the amount of the maximum fines which may be imposed for crimes relating to the illegal wildlife trade are alarmingly low when compared to the actual value of the illegal wildlife trade on the black market. Finally, the principal legislation governing illegal wildlife trade in Thailand is silent with regard to other wildlife offences, for example, encroachment into a forest or a national park without the intention of hunting wild animals but business purposes, which has the potential to impact indirectly on numbers of wild animals839.
One of the most worrying issues that is pertinent to the illegal wildlife trade in Thailand is the illegal trade in elephants. The trading of wild elephants, including their carcasses, is illegal in Thailand. However, the trading of domestic elephants is still legal - provided that relevant trading licences have been obtained. This legislative distinction between domestic and non- domestic elephants makes it very easy to illegally trade the ivory of wild elephants in the Thai market since it is impossible for authorities to determine whether the ivory has been derived from a wild elephant or from a domestic elephant. It is needless to say that this loophole is exploited by wildlife traders and provides a key example of the short-sightedness of Thai illegal wildlife trade legislation.
There is no specific judicial prosecution process applicable to wildlife crimes, meaning that the judicial process in this area is governed by the Thai Criminal Code and Criminal Procedure Code. The penalties under the principal legislation relating to the illegal wildlife trade are less extensive when compared to penalties imposed for other crimes prescribed by the Criminal Code e.g. the legislation provides no minimum imprisonment guidelines, with the maximum imprisonment being less than that for other crimes.
Moreover, it is clear that the judicial procedure is relatively slow and that there is a high possibility that the Thai courts will hand down a reduced or suspended sentence, so that in many cases an offender may avoid facing the actual jail term. This can be seen in the instance of a Supreme Court case where the offender was sentenced to only 12 months' imprisonment for possessing and trading in a significant number of protected animals and their carcasses.
838 Available at
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2. PRINCIPAL LEGISLATION
2.1 Legislation summary
2.1.1 Wild Animal Preservation and Protection Act, B.E. 2535 (1992)
The principal legislation concerning the illegal wildlife trade in Thailand is known as the Wild Animal Preservation and Protection Act, B.E. 2535 (1992) ("WAPPA"). WAPPA came into force on 29 February 1992, replacing the Wild Animal Preservation and Protection Act B.E. 2503 (1960) and the Announcement of the Revolutionary Party No. 228 B.E. 2515 (1972).
Historically, the elephant was the only species protected by law, pursuant to the Elephant Act, B.E. 2443 (1900). In 1960 however, the first Wild Animal Preservation and Protection Act was announced by the Government in an attempt to protect various species in response to a drop in their numbers due to the encroachment of people into forests with advanced weapons.840
Currently, the Government is considering imposing a harsher penalty in order to eliminate the illegal wildlife trade in Thailand altogether. However, no concrete decision in this regard has been made, with a timeline for the proposed changes, which are considered to be a long term goal, still outstanding841.
WAPPA was drafted after Thailand entered into the Convention on International Trade in Endangered Species of Wild Fauna and Flora ("CITES" or "Convention"), which was ratified on 21 January 1983 and subsequently came into force on 21 April 1983. WAPPA was enacted by Thailand in order to fulfil its obligations under the Convention.842 According to the Standing Committee of CITES, Thailand’s legislation is considered to generally meet the requirements for implementation of CITES.843
Section 3 of WAPPA defines "wild animal" as including all kinds of animals which naturally exist, whether terrestrial or aquatic, fowls, insects or arthropods, or things which originated from, or are found by nature and are able to sustain life in the forest or water. Originally, 15 species were categorised as preserved wild animals under WAPPA. Subsequently, more than 100 species have been listed as protected wild animals under secondary legislation.844 Notably, however, this definition excludes beasts of burden, which have been registered in accordance with the Beasts of Burden Code (Animal Epidemics Act, B.E. 2499) and which have been born from such registered beasts of burden. As discussed below at Section 2.3 (Species-specific legislation), this definition excludes domesticated elephants, and other domesticated animals, thereby creating a significant loophole in WAPPA.
840 Available at
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WAPPA regulates – and in many cases prohibits – the trade, hunting, propagation, and possession of wild animals and their carcasses. In so doing, it penalises various offences, with the main objective being to protect endangered wild animals from extinction due to hunting, personal possession, trading or importation and exportation. Among other things, WAPPA creates the following prohibitions:
Trade in wild animals, their carcasses & carcass products - WAPPA provides that "No person shall trade in a preserved and protected Wild Animal and their carcasses or carcass products unless it is a protected Wild Animal prescribed in section 17 as a propagated Wild Animal by regulation, acquired such Wild Animal from propagation or their carcasses or carcass products, and permission must be obtained from the Director-General".845 WAPPA § 20.
Importation or exportation of wild animals, their carcasses & carcass products - Likewise, no person may import, export, or transport a wild animal, its carcass, or carcass product through the country without permission from the Director-General. WAPPA §§ 23-26.
Possession of wild animals & their carcasses - Prohibits a person from keeping in their possession a preserved and protected wild animal and their carcasses, unless it is a type of propagated wild animal approved by regulation and approved by the Director-General of the Royal Forest Department or the Department of Fisheries ("Director General"). WAPPA § 19. Likewise, a person may not collect, endanger or possess nests of wild animals. WAPPA § 21.
Hunting of wild animals - Prohibits hunting or attempting to hunt a protected and preserved wild animal. WAPPA § 16.846
Hunting or disturbing wild animals or their habitat/nest within a government defined wild animal sanctuary or non-hunting wild animal area. WAPPA §§ 33-42.
As discussed more fully below in Section 3 (Penalties), violations of WAPPA are subject to a range of penalties, from imprisonment (up to 7 years) and/or fines of up to 100,000 Baht (USD 3,030).847 Specifically, persons engaging in the illegal trade of a preserved and protected wild animal or its carcass under WAPPA are subject to a punishment of (i) imprisonment not exceeding 4 years, or (ii) a fine not exceeding 40,000 Baht (USD 1,212), (iii) or both. WAPPA § 47.
845 Section 17 of the WAPPA empowers the Minister of Agriculture and Cooperatives, with an approval of the National Wild Animal Preservation and Protection Committee, to create a list of protected wild animals which can be propagated. 846 Section 16 creates exemptions for purposes of surveying, education and scientific research, protection of the animal, propagation, or for a public zoo. 847 The exchange rate used throughout this report is based on an announcement of the Bank of Thailand on 28 January 2014, USD 1: THB 33.
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The United Nations Office on Drugs and Crime (UNODC) defines serious crime as "conduct constituting an offence punishable by a maximum deprivation of liberty of at least 4 years or a more serious penalty.848 As such, it may arguably be concluded that the illegal wildlife trade in Thailand falls within the scope of serious crime as defined by the UNODC, since the maximum term of imprisonment for persons found guilty of engaging in the illegal trade in wildlife is 4 years pursuant to WAPPA. However, in practice, no-one appears to have been imprisoned for as long as 4 years.
The imprisonment period is generally subject to the judgement of the relevant Thai court and under the Penal Code, in situations where the suspect voluntarily admits his guilt and/or cooperates during the legal proceedings, the sentence may be reduced by between a half and one-third.849 Additionally, the offender may not always serve his/her full sentence, since he or she might traditionally be granted an amnesty on the King or Queen's birthday.
2.2 Challenges to legislation
One of the main challenges to WAPPA is the ineffectiveness of law enforcement under the legislation. Even when enforced, current legislation provides ineffective protection, as the penalties for crimes associated with the illegal wildlife trade are very low. This issue has been raised from time to time by many organisations and conservation bodies. It has been consistently reported that the value of the illegal wildlife trade on the black market runs to multi-million Baht each year, while the maximum fine is as low as 20,000 Baht (USD 606), which equates to the black market price for one pound of ivory.850 The Thai Government recently announced at CITES COP-16 in Bangkok that the Government would amend WAPPA to impose higher fines and harsher jail terms. However, the Government remained silent about the timeline as the amendment was considered a " long-term goal"851. So far, there has been no development of such an amendment.
WAPPA also fails to deal with chemical usage by manufacturing businesses. Such chemicals, released by the factories, have been absorbed into the food chain of wild animals and also reduce habitat quality.852
WAPPA also fails to deal with human encroachment into forest areas. Such encroachment usually occurs to create agricultural space, or to facilitate tourism, but leads to increased hunting indirectly by facilitating access.853
2.3 Species-specific legislation
2.3.1 Animal Epidemics Act
Another relevant statute concerning trade in animals is the Animal Epidemics Act B.E. 2499 (1956) ("AEA"). Under the AEA, a person may not trade certain non-
848 The notion of serious crime in the United Nation Convention against Transnational Organized Crime, Conference of the Parties to the United Nations Convention against Transnational Organized Crime, Sixth session, 15-19 October 2012. 849 Section 78 of Criminal Code. 850 Available at
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wildlife animals (i.e. elephants, horses, cattle, buffaloes, donkeys, mules, goats, sheep, pigs, dogs, cats, rabbits and gibbons),854 including the semen for breeding purposes and embryos of these animals, without a licence granted by the registrar appointed by the Ministry of Agriculture. Persons trading without a licence are liable to imprisonment not exceeding one year, or a fine not exceeding 20,000 Baht (USD 606), or both.855
An significant loophole in WAPPA is that species protected by the AEA are not protected by WAPPA, because these species are excluded from the definition of "wild animal" under WAPPA.856 Critically, in the case of elephants, only wild elephants falls within the scope of WAPPA. In other words, trading of ivory from wild elephants is prohibited under WAPPA, while trading of ivory from domesticated elephant is legal, provided that the trader has been granted a licence from the registrar.
As a result, in practice, it is impossible to determine whether the ivory has been derived from a wild elephant or a domesticated elephant. Therefore, it is fairly easy to illegally trade ivory by smuggling imported ivory into Thailand and trading alongside domesticated elephant ivory.
2.4 Additional information
WAPPA is not applicable and cannot be enforced to protect wild animals that had been privately owned before and registered within 120 days after WAPPA came into effect. In addition, an exception is made in situations where such owners sell the wild animals to any authorized zoo operator or for wild animal propagation.857
3. PENALTIES
3.1 Penalties for specific offences
3.1.1 WAPPA
WAPPA imposes a range of penalties for various offences endangering wildlife in Thailand. While many of the penalties under WAPPA or AEA include stringent maximum possible fines or prison sentences, no minimum sentence is specified. Thus, punishment for wildlife crimes is highly dependent on prosecutorial discretion and whether a judge views the crime seriously. Further, the Director-General or his designee is empowered to settle cases for violations of WAPPA after the offender pays a fine.858
854 Section 4 of AEA. 855 Section 42 of the AEA. 856 Section 3 of the WAPPA. 857 The WAPPA as amendment No. 2 B.E. 2546 (2003). 858 WAPPA § 60.
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The most notable and applicable crimes concerning the endangering wildlife are as follows:
Prohibition Penalty
Trade of a protected Wild Animal or its (i) Imprisonment not exceeding 4 years, or carcass, or carcass products (unless it is a (ii) a fine not exceeding 40,000 Baht (USD propagated Wild Animal acquired with the 1212), or (iii) both.859 WAPPA § 47. Director-General’s permission). WAPPA § 20
Possession of a protected Wild Animal or (i) Imprisonment not exceeding 4 years, or its carcass, or carcass products (unless it is a (ii) a fine not exceeding 40,000 Baht (USD propagated Wild Animal acquired with the 1212), or (iii) both.860 WAPPA § 47. Director-General’s permission). WAPPA § 19
Importation or Exportation of a protected (i) Imprisonment not exceeding 4 years, or Wild Animal or its carcass, or carcass (ii) a fine not exceeding 40,000 Baht (USD products (unless with permission of the 1212), or (iii) both.861 WAPPA § 47. Director-General). WAPPA § 23
Hunting or attempting to hunt a protected (i) Imprisonment not exceeding 4 years, or Wild Animal (unless for the purpose of (ii) a fine not exceeding 40,000 Baht (USD surveying, education and scientific research, 1212), or (iii) both. WAPPA § 47. protection of the animal, propagation, or for a public zoo). WAPPA § 16.862
Hunting Wild Animals within a Wild (i) Imprisonment not exceeding 5 years, or Animal Sanctuary. WAPPA § 36. (ii) a fine not exceeding 50,000 Baht (USD 1515), or (iii) both. WAPPA § 53.
Hunting Wild Animals within a Non- (i) Imprisonment not exceeding 7 years, or Hunting Wild Animal Area. WAPPA § 42. (ii) a fine not exceeding 100,000 Baht (USD 3,030), or (iii) both. WAPPA § 54(1).
859 A person trading a protected Wild Animal or its carcass, or carcass products acquired from propagation, but who lacks permission from the Director-General is liable to a lesser penalty of (i) imprisonment not exceeding 1 year, or (ii) a fine not exceeding 20,000 Baht (USD 606), or (iii) both. WAPPA § 50. 860 A person possessing a protected Wild Animal or its carcass, or carcass products acquired from propagation, but who lacks permission from the Director-General is liable to a lesser penalty of (i) imprisonment not exceeding 1 year, or (ii) a fine not exceeding 10,000 Baht (USD 303), or (iii) both. WAPPA § 49. 861 A person who imports or exports a protected Wild Animal, its carcass, or carcass products acquired from propagation without permission of the Director-General is liable to a lesser penalty of (i) imprisonment not exceeding 3 years, or (ii) a fine not exceeding 30,000 Baht (USD 906), or (iii) both. WAPPA § 48. Similarly, a person who fails to obtain permission to trade in a protected Wild Animal, its carcass, or carcass product, is subject to a fine not exceeding 5,000 Baht (USD 151). WAPPA § 52. 862 WAPPA also penalises anyone who shoots a Wild Animal between sunset and sunrise with a maximum penalty of (i) imprisonment not exceeding 1 year, or (ii) a fine not exceeding 10,000 Baht (USD 303), or (iii) both. WAPPA §§ 22, 51.
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"Disturbing"863 a nest or habitat within a (i) Imprisonment not exceeding 7 years, or Wild Animal Sanctuary or Non-Hunting (ii) a fine not exceeding 100,000 Baht Wild Animal Area.864 WAPPA § 38. (USD 3,030), or (iii) both. WAPPA § 54(1).865
Concealing, disposing of, taking away, (i) Imprisonment not exceeding 1 year, or purchasing, holding in pledge, or receiving (ii) a fine not exceeding 10,000 Baht (USD a Wild Animal or its carcass acquired 303), or (iii) both. WAPPA § 55. through the commission of an offence under the Act. WAPPA § 55.
If a person granted a permit under WAPPA commits an offence under the Act or violates or fails to comply with the ministerial regulations announced as a secondary legislation under WAPPA, or conditions of the permit, or fails to comply with an order of the competent officer, the Director-General may suspend such a permit for up to 90 days. The Minister of Natural Resources and Environment may cancel the permit with the approval of the committee appointed in accordance with WAPPA. In such cases, the permit-holder must dispose of the Wild Animal or its carcass, and if this is not done, the animal becomes the property of the State.866
WAPPA also provides for the confiscation by the Government of Thailand of all Wild Animals and their carcasses, nests, or products acquired or possessed in violation of the Act.867 Thereafter, these items become property of the state. Similarly, WAPPA provides that all weapons, tools, instruments, beasts of burden, vehicles or other heavy equipment acquired or used in violating the Act shall be confiscated.868
3.1.2 AEA
The AEA imposes relatively minor penalties for violations of the Act that could be related to the illegal trade of wildlife, particularly in relation to elephants and ivory. These penalties are as follows:
863 WAPPA prohibits a person from conducting the following activities within a government-defined “Wild Animal Sanctuary” or “Non- Hunting Wild Animal Area”: possession or occupation of the land, or the building up, or by any other means whatsoever construction, or cutting, felling, clearance, burning or destruction of trees or any other flora, digging for minerals, excavation of ground or rock, use as pasture land for animals, changing the waterway or causing the water in the river, stream, marsh or swamp to overflow, dry up or become poisonous, or endanger the Wild Animal (unless they receive written permission from the Director-General). WAPPA §§ 38, 42. 864 Any person who moves, fades out, damages, or renders useless the boundary posts, signs, and other marks created by officers pursuant to this Act is also liable to (i) imprisonment not exceeding 4 years, or (ii) a fine not exceeding 40,000 Baht (USD 1,212), (iii) or both. WAPPA, § 56. 865 Where someone is successfully prosecuted under this provision, a court may order the eviction of the offender’s co-workers, employees, or dependents from the Wild Animal Sanctuary. WAPPA § 54(2). 866 WAPPA § 43. 867 WAPPA § 58. 868 WAPPA § 57.
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Prohibition Penalty
Trade in elephants or carcasses without a (i) Imprisonment not exceeding 1 year, or licence issued by the Registrar. AEA § 21. (ii) a fine not exceeding Baht 20,000 (USD 606), or (iii) both. AEA § 42.
Importation, exportation, or transit (i) Imprisonment not exceeding 2 years, or through Thailand of animals or carcasses (ii) a fine not exceeding Baht 40,000 (USD without a licence or in violation of the terms 1212), or (iii) both. AEA § 47. of a licence granted by the Director General. AEA § 31.
Using a false mark or changing the (i) Imprisonment not exceeding 2 months, marking of an animal to give the impression or (ii) a fine not exceeding Baht 10,000 of a competent official’s mark, or (USD 303), or (iii) both. AEA § 47. destroying or changing the marking on an animal, container, or wrapper of a carcass. AEA § 50
Licences issued under the AEA remain valid until the end of the calendar year they are issued. In the event that a licensee violates the AEA or the licence conditions, veterinarians may seize the licence for submission to the registrar, who may order the suspension or revocation of the licence. A person whose licence has been seized, suspended or revoked may appeal to the Minister of Agriculture (or his designee) within 30 days for a final decision on the matter.869
3.1.3 Comparison to other domestic crimes
When contrasted with other domestic criminal offences, wildlife crime in Thailand is treated as a serious offence, at least with respect to the maximum available penalties. Other crimes (particularly ones causing harm to persons), however, often contain a minimum penalty, or require both a prison sentence and a monetary fine, indicating that they are viewed as more serious offences. Given the lesser prosecutorial and judicial discretion afforded to these crimes, offenders will likely be punished more severely. Penalties for many of Thailand’s criminal offences are set forth in the Criminal Code, B.E. 2499 (1956), as amended by Criminal Code (No. 17), B.E. 2547 (2003).870
The Criminal Code punishes crimes causing harm to people quite severely, ranging from a minimum sentence of 1 year imprisonment to punishment by death. For example, Thai law punishes the following crimes accordingly: (1) Murder (death or imprisonment for 15 – 20 years);871 (2) Rape (imprisonment of 4-20 years in jail and a fine of 8,000 to 40,000 Baht (USD 242-1212));872 Causing bodily or mental injury to someone (imprisonment not exceeding 2 years and a fine up to 4,000 Baht (USD
869 AEA Section 24. 870 Unofficial English Translation available at
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121));873 Causing grievous bodily harm to someone (imprisonment of 6 months to 10 years);874 Sexual trafficking or procurement (imprisonment of 1-10 years and a fine of 2,000-20,000 Baht (USD 61-606));875 Robbery, i.e. theft by an act of violence (imprisonment of 5-10 years and a fine of 10,000-20,000 Baht (USD 303-606)).876 Many of the penalties are increased further where there are aggravating factors, such as using a deadly weapon or causing bodily harm to someone.
Crimes not causing bodily harm or death to a person are treated more akin to wildlife crimes. For example, the Criminal Code penalises them as follows: Defamation (imprisonment up to 1 year or a fine of up to 20,000 Baht (USD 606), or both);877 Theft (imprisonment up to 3 years and a fine up to 6,000 Baht (USD 182));878 Extortion (imprisonment up to 5 years and a fine up to 10,000 Baht (USD 303));879 Fraud (imprisonment not exceeding 3 years, or a fine up to 6,000 Baht (USD 182), or both);880 Cruelty to animals – defined as "whoever cruelly ill-treats or kills an animal with unnecessary sufferings" – is subject to a much smaller punishment of imprisonment not exceeding 1 month, a fine up to 1,000 Baht (USD 30), or both.881
3.2 Enforcement
While many of the penalties under the WAPPA or AEA offer stringent maximum possible fines or sentences, there are no minimum sentences. Thus, punishment for wildlife crimes is highly dependent on prosecutorial discretion and whether a judge views the crime seriously. Further, the Director-General or his designee is empowered to settle cases for violations under the Act after the offender pays a fine.882As a means of targeting corruption, WAPPA contains an interesting provision placing the burden on government officials to prove their innocence in cases where a juristic person is the offender. Specifically, where a juristic person is the offender and liable for a penalty under the Act, a managing director, general director or a representative is also considered jointly liable for the penalty handed down to that offender, unless he or she is able to substantiate that he or she did not connive or consent to such an offence.883
873 Criminal Code § 295. 874 Criminal Code § 297. 875 Criminal Code § 282. The law penalizes anyone who “for sexual gratification, procures, lures, or traffics a man or woman for an indecent sexual purpose, even with their consent.” See Penal Code Amendment Act (No. 14), B.E. 2540 (1997). Unofficial English translation available at
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4. ANCILLARY LEGISLATION
4.1 Legislation summary
4.1.1 The Fisheries Act B.E. 2490 (1947)
This Act has provided some protection to aquatic animals. Under the Act, no person shall have in his possession aquatic animals or aquatic animal products or those in excessive amount or quantity or of smaller size than specified in a Royal Decree without permission granted by the competent authority884 For the purpose of the Fisheries Act, aquatic animals means any animals having their life cycles in water including fish, shrimps, crabs, horseshoe crabs, mollusks, tortoises, turtles, snapping turtles, crocodiles including their eggs, mammals, sea- cucumbers, sponges, coral, coralline and marine algae as well as their carcasses.885 Therefore, the illegal trade of aquatic animals is also regulated by this Act as well as WAPPA.
4.1.2 Customs Act B.E. 2469 (1926)
Other than WAPPA, this Act is probably the most relevant legislation to the prevention of the illegal wildlife trade, due to the fact that Thailand is one of the most prominent hubs for the illegal wildlife trade. Under the Customs Act, an official is empowered to stop and search any vehicle, vessels, ship, cart or other mode of transport if there are reasonable grounds to suspect that such vehicles, carts or other modes of transport have been used or are being used in connection with smuggling goods.886 As a result, a number of instances of illegal wildlife trading have been uncovered by customs officials.
4.1.3 Export and Import of Goods Act B.E. 2522 (1979)
Under this Act, the customs laws and the powers of the custom officials thereunder specifically concerning examination of goods and prevention of smuggling, search, seizure and forfeiture, arrest of offenders, false declarations and legal proceedings shall also apply to exports and imports under this Act.
4.2 Penalties and enforcement
4.2.1 The Fisheries Act B.E. 2490 (1947)
In connection with section 4.1.1 above, any person found to be in violation of Section 53 of the Fisheries Act shall be subject to a fine not exceeding 20,000 Baht (USD 606) or imprisonment not exceeding 1 year, or both. In the case of the illegal possession of aquatic animals which may cause danger to the body or property of a person or the public shall be punished with a fine not exceeding 120,000 Baht (USD 3,636) or imprisonment not exceeding 6 years or both.887
884 Section 53 of the Fisheries Act B.E. 2490 (1947). 885 Section 4 of the Fisheries Act B.E. 2490 (1947). 886 Section 19 and Section 37 of the Customs Act B.E. 2469 (1926). 887 Section 67 of the Fisheries Act B.E. 2490 (1947).
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4.2.2 Customs Act B.E. 2469 (1926)
However, under the Customs Act, there is no prison sentence associated with the smuggling offence. In general, a person smuggling goods is liable to a fine not exceeding 500,000 Baht (USD 15,152).888
4.3 Relationship with principal legislation
Since the offences under such legislation are considered to be criminal offences, the legal proceedings would proceed in accordance with the Penal Code. As such, where one action is linked to more than one offence, normally the harshest penalty would apply. For instance, a person smuggling wildlife animals into Thailand will be prosecuted under both WAPPA and the Customs Act. Depending on the penalty prescribed in the relevant legislation, the Court would pass sentence in accordance with the legislation that provided for the harsher punishment.
However, it is unlikely that an offender under the Customs Act would be prosecuted in the Thai courts, considering that any competent official, acting under the authority of the Director-General, or the Director-General himself, may settle the case or waive the prosecution under the Customs Act, provided that the offender agrees to pay a fine.889
4.4 Additional information
Under the Customs Act, in some cases, the importer of record may be liable to a significant fine of up to four times the value of goods, including duties payable, illegally imported into the territory890.
There is an incentive for any person passing information to the custom officials that results in the uncovering of a smuggling offence. Such a person is entitled to a reward at a certain percentage of the amount of fine.891
5. JUDICIAL PROCESS AND CAPACITY
5.1 Judicial process
The judicial process which governs illegal wildlife trade is set out by the Criminal Procedure Code. Most, if not all, ancillary legislation will also be governed by this procedure, which is outlined in more detail below. There is no specific and/or separate judicial process in Thailand for the prosecution of crimes associated with the illegal wildlife trade.
5.1.1 Courts - the Courts of Justice which preside over criminal hearings are classified into three levels consisting of: the Court of First Instance, the Court of Appeal and the Supreme Court. Courts of First Instance have authority to adjudicate all criminal cases.892
888 Section 29 of the Customs Act B.E. 2469 (1926). 889 Section 102 of the Customs Act B.E. 2490 (1947). 890 Section 27 of the Customs Act B.E. 2469 (1926). 891 Section 102 ter of the Customs Act B.E. 2490 (1947). 892 Available at
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5.1.2 Court jurisdiction - Criminal cases are generally considered in accordance with territory, meaning that offenders are usually tried in the territory where the original offence was committed. However, the Criminal Procedure Code allows for other rules to determine where a criminal case may be filed, which include factors such as where the accused resides, where the accused was arrested and where the inquiry is conducted.893
Only judges preside over criminal cases in Thailand. The jury system does not apply in the Thai jurisdiction.894 Generally, two judges preside over proceedings held in the criminal or provincial courts, although a single judge may preside over preliminary procedures.895
5.1.3 Judicial process with regard to wildlife trade crimes - Several organisations share the responsibility of administering crimes in Thailand, including those involving wildlife trade. Such organisations include the Royal Thai Police, the Office of the Attorney General, the Courts of Justice, the Ministry of Justice and the Ministry of the Interior.896
After an arrest, law enforcement organisations e.g. the Royal Thai Police present information about the case and about the accused to the prosecutor. Section 45 of Wildlife Preservation and Protection Act states that:
"In arresting and suppressing any person committing an offence under this Act, the competent officer shall be regarded as the administrator or the police officer in accordance with the Criminal Procedure Code"
Investigation is conducted by the inquiry officials who are normally the police, albeit other administrators have powers to conduct such investigations under WPPA e.g. local sheriffs. Thai prosecutors are not granted the power to initiate investigation nor institute the case themselves. Prosecutors begin their function after receiving investigation files from the inquiry officials. The only channel for the prosecutor to become involved with the investigation is to instruct the inquiry officials to conduct an additional investigation if the prosecutor deems that the facts or evidence as they appear in the file are not sufficiently clear. Once the investigation is completed, a report is filed with the prosecutor, who prepares an indictment and the accused is invited to enter a plea of guilty or not guilty. The prosecutor has the power to exercise his or her discretion during this stage of the inquiry as to whether there is sufficient evidence for a trial to take place.897 The evidence required for the prosecution of illegal trade of wildlife is similar to that of the general criminal procedure, whereby the prosecutor must consider whether the case has sufficient evidence for trial.
5.2 Prosecutions
There are no official sentencing guidelines in the Thai courts with regard to illegal wildlife trade crimes. Trials are normally held in open court, and the accused is presumed to be
893 Ibid. 894 Available at
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innocent until proven guilty beyond reasonable doubt before he/she can be convicted. During the trial, the accused's representative or counsel has the opportunity to cross-examine the prosecutor's witnesses and re-examine the defence's witnesses. After that, the judge decides the sentence. A sentencing hearing may be held at which evidence of aggravating or mitigating circumstances relating to the offender can be taken into account e.g. the offender’s background, the offender’s past criminal behaviour etc.898
If the court passes judgment that the offender is guilty, he/she may be put on probation. The basic requirements of probation provided in the Criminal Code are as follows:
"Whenever any person commits an offence punishable with imprisonment and in such case the Court shall punish with imprisonment not exceeding three years, if it does not appear that such person has received the punishment of imprisonment previously, or it is the punishment for an offence committed by negligence or a petty offence, the Court may, when taking into consideration the age, past criminal record, behaviour, intelligence, education and training, health, condition of the mind, habit, occupation and environment of such person or the nature of the offence, or other extenuating circumstances and, pass judgment, if it thinks fit, that such person is guilty, but the determination of the punishment is to be suspended, or the punishment is determined, but the punishment is to be suspended, and then release such person with or without conditions for controlling his behaviour, so as to give such person an opportunity to reform himself within a period of time to be determined by the Court, but it shall not exceed five years as from the day on which the Court passes judgment." (the Criminal Code section 56).
The power to impose fines on offenders, imprison offenders or permanently confiscate illegally traded goods is bestowed solely to the courts. The police only have powers to temporarily confiscate goods and must bring the case to the court in order to prosecute the offender and to have any such goods permanently seized. However, questions are often raised as to how this system works in practice. There is a strong likelihood that some police officers and rangers accept bribes from offenders meaning that some (if not many) crimes may go unprosecuted.
5.3 Appeals
Under Section 193 of the Criminal Procedure Code, an appeal against a judgment or order of the Court of First Instance can only be lodged on account of questions of fact or questions of law. Such an appeal shall be lodged with the Court of Appeal, except where such appeal is prohibited by the Criminal Procedure Code or other relevant laws.899 In the case of the legislation which governs the illegal trade of wildlife, appeals are dealt with in accordance with the Criminal Procedure Code.
Section 193 bis also states as following:
"The judgment or order of a court of first instance in the case whose maximum punishment is imprisonment for a term not exceeding three years or a fine of not more than sixty thousands baht or both, an appeal may not be made against it on account of the questions of fact, unless any of the followings are satisfied:
898 Ibid. 899 Section 193 Criminal Procedure Code: 'an appeal on questions of fact and questions of law shall lie with the Court of Appeal against any judgement or order of a Court of First Instance, except where such appeal is prohibited by this Code or by other laws.
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(1) The defendant has been sentenced to a term of imprisonment or confinement in lieu of imprisonment;
(2) The defendant has been sentenced to a term of imprisonment but the sentence is suspended;
(3) The defendant has been found guilty by the court but the infliction of his punishment is suspended; or
(4) The defendant has been sentenced to a fine in excess of one thousand baht."
Thus, the questions of fact in cases where the criminal offence relates to hunting, attempting to hunt, possession, trade or import or export of preserved and protected wild animals and has been heard in a court of first instance cannot be appealed unless the above-mentioned conditions are satisfied. This is because the Penal Provisions contained in the Wildlife Reservation and Protection Act900 state that such criminal offences are punishable by maximum imprisonment of four years.
On the other hand, if an appeal is merely based on a question of law, the Court of Appeal shall adhere to the questions of fact concluded by the Court of First Instance under the evidence in the case file in deciding such question of law. All points of law appealed by the accused shall expressly be indicated in his appeal, although such points must have been previously raised in the hearing of the Court of First Instance. However, any points of law involving public order or relating to non-compliance with the provisions of the Criminal Procedure Code governing the appeal may be raised by the accused or court without them having been previously heard in the Court of First Instance.901 Furthermore, the accused shall appeal to the Court of First Instance as stated in Section 198 of Criminal Procedure Code in the following way:
"An appeal shall be filed to the court of first instance within one month as from the day whereon it has or is deemed to have pronounced its judgment or order before the appellant.
The court of first instance shall bear the duty to consider as to whether the appeal should be forwarded to the court of appeal according to the provisions of this Code. If it finds that the appeal should be excluded, it shall note down in its order the explicit grounds thereof."
5.4 Judicial capacity
5.4.1 Difficulties in prosecution - Illegal wildlife trade crimes are increasingly difficult to prosecute due to the existence of lucrative and complex criminal syndicates.902 Thailand's prosecutors have experienced difficulties in providing the courts with sufficient evidence against accused persons during investigations due to the lack of resources and funding in areas such as wildlife forensics. Wildlife forensics training is a valuable tool for those tasked with combatting
900 Chapter VIII of the WPPA. 901 Section 195 Criminal Procedure Code: All points of law relied upon by the party lodging the appeal shall be clearly stated in the petition of appeal and they must have been raised in the Court of First Instance. Points of law involving public order or relating to non-compliance with the provisions of this Code governing appeal may relied upon by the appellant or taken up by the Court, even though they have not been raised in the Court of First Instance.
902 Available at
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illegal wildlife trade as the results of tests can prove extremely valuable when prosecuting.903
Furthermore, the overwhelming number of criminal reports has resulted in delays in investigations and prosecution904 by which time criminal syndicates have had the chance to disassociate themselves with the accused who was initially arrested at the scene of the crime.
5.4.2 Capacity building - Notwithstanding the existence of legislation in force in relation to the illegal trade of wildlife in Thailand, there still exists an inherent difficulty with regard to the enforcement of such legislation. The main cause of enforcement difficulties is often due to lack of awareness. In particular, people in rural areas hunt wildlife for food and some are captured as pets. Therefore, one of the best possible ways to solve problems concerning the capturing of illegal wildlife is through raising public awareness on wildlife crime in local communities and increased cooperation between the relevant stakeholders and authorities.905
Moreover, the lack of resources and funding in policing such crimes means that those on the front line of defence in tackling illegal wildlife trade i.e. police and park rangers have an arduous task in implementing protective measures against poachers. Rangers are often poorly equipped and under trained and face growing threats from heavily armed poachers. In Thailand more than 40 rangers have been killed, 49 have been injured and 23 left in a critical condition over the last four years.906
5.5 Additional information
5.5.1 Supreme Court Decision No. 1054/2535 - The defendant was found guilty for possession of serows' legs (15 legs), which are endangered animals under the Wildlife Preservation and Protection Act. Further, the Defendant was found guilty of possession and trading of protected wildlife and their carcasses namely pangolins (1 for trade and possession of 37), pangolins' skin (330 pieces), pythons (42 pythons), pythons' skins (149 pieces) and tortoise shells (11 shells). As the Defendant pleaded guilty, the sentence was reduced by half to 12 months' imprisonment.
It should be noted that the Court separately considered the offence related to endangered wildlife (i.e. serows) and protected wildlife (i.e. pangolin, pythons, tortoise shells). Further, the Court held that the focus for sentencing was on the number of offences committed by the defendant and not the number of acts taken or types of animal.
903 Ibid. 904 Available at
905 Available at
906 Available at
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6. CONCLUSIONS
6.1 Effectiveness of legislation
As regards legislation currently in force in this area, the illegal wildlife trade is regarded as a serious crime under the UNODC and given the number of prosecutions, some might conclude that Thai legislation is sufficiently effective in order to combat wildlife crime.
Nonetheless, areas of concern do exist, as outlined below.
6.1.1 Ineffectiveness of the principal legislation
It is evident that penalties imposed under WAPPA are considered too low, particularly given that no minimum term of imprisonment is provided for and the fines are merely equal to the value of one pound of ivory sold on the black market.
Furthermore, the definition of 'wild animal' in conjunction with other legislation has created a significant loophole with regard to the ivory trade in Thailand. The fact that domestic elephants are excluded from the definition of 'wild animal' under WAPPA allows for the legal trading of ivory of domestic elephants. This loophole has created a large number of illegal imports of wild elephant to be registered under the AEA. As a result, the law relating to the illegal trade of wild elephants can be easily bypassed by criminals which clearly exposes the shortcomings of the legislation.
6.1.2 Ineffectiveness of judicial process
Since there is no specific law governing the judicial process of illegal wildlife trade in Thailand, the judicial process falls under the Criminal Code and Criminal Procedure Code.
As already mentioned in this report, there is no minimum imprisonment term for illegal wildlife trade crimes and the maximum imprisonment term has been set to four years according to WAPPA. Therefore, it is at the Thai courts' discretion to decide the sentence as long as the term does not exceed 4 years. However, under the Criminal Code, whatever the prison sentence is, it may be reduced to half in situations where the offender voluntary admits the crime or cooperates with the investigation. Furthermore, if the prison sentence does not exceed three years and it appears that the offender has not been imprisoned before or has been imprisoned before but only for negligence or a petty crime, the Thai court may suspend the punishment, taking into account the offender's mitigating circumstances.
6.2 Recommendations
6.2.1 Amendment of the principal legislation
The provisions of WAPPA should be amended in order to assist with the effective elimination of the international and domestic illegal wildlife trade in Thailand. It is recommended that heavier penalties are imposed under WAPPA i.e. longer prison sentences and higher fines which reflect the graveness of wildlife crime. Such amendments to WAPPA will demonstrate that the Thai Government and the courts take wildlife crime seriously and will come down heavily on offenders. A
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good example of the degree of punishments which should be imposed with regard to wildlife crimes is that of the South African government. where an offender was sentenced to 40 years' imprisonment for illegally exporting rhino horns.907
In addition, the amendment should close the loopholes in existing laws, such as the legal trade of domestic ivory. We would recommend that all kinds of ivory trade or trade in any other similar products be prohibited regardless of whether they are obtained from wild or domestic animals.
Moreover, there should be a system of prosecution separate to the Criminal Code i.e. reductions of imprisonment or suspension of the punishment under the Criminal Code should not be applicable to offenders committing wildlife crimes.
The Thai Government should prioritise such actions and seriously consider them as extremely urgent matters which should be put in place without delay instead of treating such actions as long-term goals.
6.2.2 Public education and involvement
On the other hand, some might argue that the enforcement of laws does not effectively solve the problems. More importantly, education through schools to enhance the awareness of the necessity of wildlife preservation is a key factor for the long-term protection of wildlife, especially as regards people living in remote areas where there is reduced access to educational resources, resulting in a lack of awareness of these issues. In these remote areas, people hunt wild animals for food or capture them as pets with lack of knowledge that such animals are preserved or protected.
It has also been suggested that the Thai Society for the Conservation of Wild Animals908, an organisation which promotes jobs and uses media to promote wildlife preservation, should also play an important role in creating an elevated understanding and awareness about the importance of wildlife preservation.
6.2.3 Cooperation among government agencies
The Customs Department909 should play an important role with respect to the illegal wildlife trade as it has been often reported that Thailand is a prominent hub for the import and export of live animals and products. There are a large number of cases where crimes associated with the illegal wildlife trade have been uncovered by customs officials. However, some customs officials may not be as knowledgeable about the illegal wildlife trade as the relevant authorities - particularly as regards recognising the distinction between ivory form domestic or non-domestic elephants.
The relevant authorities e.g. Department of National Parks, Wildlife and Plant Conservation or Royal Forest Department should cooperate with the Customs Department to assist with the inspection of imported and exported animals and animal products.
907 Available at
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6.2.4 Lack of funding and resources
It is clear that in order to implement the above recommendations, the Thai Government would be required, with the help of other external organisations, to increase its funding in this area. Organisations on the front line of wildlife crime such are park rangers, local police and customs officials often do not have sufficient resources in order to effectively police wildlife crimes and apprehend criminals. Furthermore, the difficulties in prosecuting such crimes due in part to lack of sufficient evidence demonstrate that more funding is required to equip Thai organisations with wildlife forensic resources in order to successfully prosecute more cases.
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TANZANIA
Team Leader and Editor - Alexander Monk - DLA Piper
Team Members - Yasmin Bailey, Vanda Craig, Jennifer Kappel, Scott Lange, Kirsty Law, Bethan Lloyd, Claudia Wilton - DLA Piper
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1. EXECUTIVE SUMMARY
Tanzania has 16 national parks that cover approximately 40% of the country's land mass,910 giving it the "largest protected estate area in Africa, both absolutely and relatively".911 Despite this, there are serious flaws in Tanzania's wildlife protection and management system.
In recent years, Tanzania has taken a large step towards implementing a comprehensive law governing wildlife trade and trafficking. However, due to economic pressures and difficulty in implementing that law, Tanzania has not yet been able to fully and functionally implement CITES to combat such illegal trade. Although the illegal trade of wildlife is treated as a 'serious crime' under primary legislation (in accordance with the definition set out by the United Nations office on Drugs and Crime ("UNODC")),which is the lead United Nations entity for delivering legal and technical assistance in the struggle against illicit drugs, international crime and terrorism, both the primary legislation and ancillary legislation allow flexibility for convictions to be treated as less serious with less severe penalties, such as fines being available, or in the case of the latter, the option to compound offences.
The main focus at present for reform in Tanzania is to combat corruption. Although this will have an indirect impact on wildlife trade (for example, reducing the trade in illegally poached ivory), it does not confront the problem directly. Further, a general comment on Tanzanian legislation, including that concerning the illegal wildlife trade, is that serious sanctions (e.g. a prison sentence) are drafted into the statutes, but all too frequently a more lenient sentence (for example a fine) is included as an alternative. This somewhat dilutes the impact and the deterrent effect of the legislation. Equally, there is little cohesion between Tanzania and the countries it shares a border with. If, for example, an elephant were to cross from the Tanzanian side of the Maasai Mara National Reserve to the Kenyan side, what is to prevent that elephant being killed by someone with a legitimate Kenyan hunting licence?
Accordingly, it appears that Tanzania remains vulnerable to illegal wildlife trade and trafficking.
2. PRINCIPAL LEGISLATION
2.1 Legislation summary
The United Republic of Tanzania is divided into 30 administrative regions: 25 on the mainland in the former Tanganyika and 5 on the semi-autonomous islands of Zanzibar.
While various laws govern wildlife conservation,912 only a few are relevant to the issues of wildlife trade and trafficking. The Wildlife Conservation Act 2009 and the National Parks Act 2002 are the controlling laws in mainland Tanzania. In Zanzibar, the governing law appears to be the Forest Resources Management and Conservation Act 1996.
910 Peter G. Veit & Catherine Benson, When Parks and People Collide, Human Rights Dialogue: “Environmental Rights”, (CARNEGIE COUNCIL FOR ETHICS IN INTERNATIONAL AFFAIRS Apr. 23, 2004), available at
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The task of enforcing wildlife legislation is equally fragmented. While the WCA authorises the establishment of an autonomous body, the Wildlife Authority, to enforce the provisions in mainland Tanzania, the Authority’s reach will not extend to the Ngorongoro Conservation Area and the national parks. The task of protecting wildlife resources in the national parks is vested in the Board of Trustees of the Tanzania National Parks, while the Ngorongoro Conservation Area Authority is tasked with the same role in the Ngorongoro Conservation Area. In addition to the planned Wildlife Authority, which when established will be the main enforcement agency, various other government bodies including the police also enjoy some enforcement authority. In Zanzibar, the Forest Authority is the primary enforcer of the FRMCA.
The key provisions of, offences under and penalties imposed under the primary legislation identified above are summarised below.
2.1.1 The Wildlife Conservation Act 2009913
The Wildlife Conservation Act 2009 (the "WCA") is the primary statute controlling hunting, poaching, and trade in wildlife in Tanzanian law. It was enacted on 3 February 2009, came into effect in July of 2010, and replaced the previous primary wildlife legislation in Tanzania, the Wildlife Conservation Act of 1974. The WCA is applicable throughout mainland Tanzania but not in the semi-autonomous region of Zanzibar.914 The WCA implements many of Tanzania's responsibilities under CITES but not all.915
As outlined below, criminal penalties for illegal trade in wildlife as severe as "a minimum of five years imprisonment" are available under the WCA. Accordingly, the WCA meets the standard for "serious crime" set by the UNODC toolkit- "conduct constituting an offence punishable by a maximum deprivation of liberty of at least four years or a more serious penalty."916 However, note that while the maximum penalty under the WCA is severe enough to qualify as "serious," the WCA also permits convicted persons to be given only a fine and no imprisonment at all.
The WCA's primary prohibition on illegal wildlife trade is located in Section 95, "International Trade in Wildlife Species and Specimens." The section forbids "any trade in violation of CITES provisions" and criminalises "export from or import into or transport through or re-export from Tanzania" of any wildlife species, specimens, or products except under a permit issued in accordance with CITES provisions.917 "Wildlife specimens" are defined broadly as "any animal or plant" that is either indigenous and wild or exotic but having become established in the wild, as well as "any readily recognizable derivative of" animals and plants categorised under Appendices I, II, and III to CITES.918
913 Available at
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The WCA also includes a secondary prohibition against "dealing in trophies"919. The section bars dealing in trophies without a properly issued trophy dealer's licence, and bars export or re-export of a trophy without a trophy export certificate or (in the case of CITES listed species) a CITES permit. As "trophy" is defined as "any animal alive or dead," as well as various portions of an animal such as horns, bones, claws, etc., this section appears to overlap extensively with § 95.920 This may offer an alternative means to prosecute certain instances of violations of one or both sections.
2.1.2 The National Parks Act 2002921
The National Parks Act 2002 (the "NPA") governs hunting and poaching of animals within Tanzania’s national parks. Under the NPA, no person is permitted to carry out the following acts within a national park without having first obtained a licence or permit for such purpose: 1) hunt, capture or kill any animal; 2) disturb any egg or nest; 3) be in possession or control of any animal, egg or nest; or 4) remove any animal, egg or nest.922
Further, no person is permitted to 1) dig, lay or construct any pitfall, net or trap, snare or other devices capable of killing, capturing or wounding any animal; 2) carry or have in his possession or under his control any weapon in respect of which he fails to satisfy the Trustees or any authorised officer that it was intended to be used for a purpose other than the hunting, killing, wounding or capturing of an animal; or 3) after killing or wounding an animal in a national park, failing to report the death or injury of such animal to the nearest officer of the Trustees as soon as possible923.
The provisions of Sections 75, 81, 82, 85, 87 and 88 of the Wildlife Conservation Act apply in relation to the investigation, prosecution, trial and punishment of offences under the NPA. Under the NPA, officers and any other persons authorised by the Trustees in writing are granted the power to prosecute all contraventions of the NPA in subordinate courts924.
Also, the NPA provides for “compounding” of offences. Under this regime, an officer of the Trustees may accept a fine directly upon a written admission of guilt. The guilty party may then use the receipt of the compounded fine as a defence to prosecution under the law.925
2.1.3 The Forest Resources Management and Conservation Act 1996926
The Forest Resources Management and Conservation Act 1996 (the "FRMCA") promotes the protection, conservation and development of 'forest resources' in the
919 WCA § 80. 920 Ibid. 921 Available at
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Zanzibar region. Forest resources include all wild animals, wild plants and other resources associated with the forest ecosystem. The FRMCA applies to Forest Reserves and Nature Forest Reserves in Zanzibar. Notably, the Minister may declare any land in Zanzibar a Forest Reserve927 and any part or whole of a Forest Reserve may be declared a Nature Forest Reserve at the time of creation of a Forest Reserve or at a later date928.
The Act sets out specific lists of animals and plants which are to be protected in various appendices and each appendix affords varying degrees of protection. Appendix 1 to the Act sets out lists of animals which are to be totally protected year-round and accorded with the highest conservation action. Appendix 4 lists animals which are not protected at all and may be captured or killed.
The FRMCA sets out various prohibited activities within the Forest Reserve areas, which include 'hunting and fishing', as well as certain specific types of hunting methods, including setting traps, snares or nets929. It also prohibits the use or possession of a gun, poison or explosive substance930.
Some of the prohibited activities set out in the FRMCA931 may be licensed under the Act932. Licences for activities including hunting and fishing may be obtained from a licensing officer, although the licence would only apply to a Forest Reserve area and not a Nature Forest Reserve Area.
As noted, the FRMCA sets out lists of wild animals and wild plants which are protected. The Minister has the power to issue the lists of wild animals and wild plants to be protected under the FRMCA933. Under Section 74, no animals under such lists shall be “killed, injured, destroyed, captured, collected or otherwise taken, nor may the nest or eggs of any listed animal be taken, injured or destroyed”.
Throughout the Act, the Minister is given wide-reaching powers to regulate activities within the Forest Reserve areas and therefore has much discretion regarding the effectiveness of the legislative framework. Much of the FRMCA sets out a discretionary framework whereby the Forest Authority, the Minister and enforcement officers may regulate how the legislation works in practice. Clearer provisions with less discretion would make the provisions of this Act more effective and less susceptible to inconsistent application and corruption.
The FRMCA is to be implemented by the Forest Authority, under the direction of the Forest Administrator, who is to be appointed by the President934. In particular, the Forest Authority is to 'take appropriate measures to protect and regulate the
927 FRMCA §15 FRMCA. 928 FRMCA §16. 929 FRMCA §32. 930 FRMCA §32. 931 FRMCA §32. 932 FRMCA Part VII. 933 FRMCA §73. 934 FRMCA § 4 and 5.
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hunting or taking of wild animals and plants' and to 'take such other steps as are necessary to fulfil the purposes of this Act'935.
Forest officers (also referred to as enforcement officers) may also be appointed by the Forest Administrator with certain powers of enforcement under the Act, which are listed under Part XI. These include powers to stop and search without warrant, the power to seize articles which appear to have been obtained through committing an offence and the power to arrest anyone suspected of committing an offence. Part XI also states that any enforcement officer may prosecute an offender before a magistrate or may deliver an offender to the police for prosecution.
2.2 Challenges to legislation
The primary challenge to the WCA may be obtaining full implementation. In accordance with Tanzania’s responsibilities under CITES, the WCA calls for creation of a “Wildlife Authority,” an autonomous body charged with adequately addressing “the protection, management and administration of wildlife resources” in Tanzania. However, creation of the Authority has been delayed for years, and appears to be as of yet out of reach.936
An additional challenge is the demand for hunting of wildlife species as a means of obtaining profit and economic growth. Much of the commentary surrounding implementation of the WCA surrounds the question of the impact it will have on Tanzania’s economy.937 It has also been alleged that the Tanzanian government has evicted indigenous groups of people in order to allow implementation of the WCA and conversion of the Loliondo Game Control Area into a game reserve, in order to benefit private interests devoted to conservation tourism and wildlife hunting.938 Tanzania will need to determine how to implement the WCA without undermining its purpose while still avoiding unduly negative human rights and economic consequences in order to maintain support for the law.
2.3 Species-specific legislation
It appears that Tanzania does not have any species-specific legislation governing the illegal trade of wildlife, although as noted the legislation in place often makes distinctions between the degrees of protection afforded to different species.
Despite there not being any species-specific legislation in place, there do appear to be various executive actions (via the Minister for Natural Resources and Tourism) that have a species- specific impact. For instance, Tanzania signed up to the Tanzania Elephant Management Plan 2010 - 2015 on 15 January 2011.939 One of the strategic objectives of this plan is to improve law enforcement in relation to conservation of the elephant population in Tanzania, which includes strengthening regional and international cooperation and improving border controls, which would ultimately help cull the illegal trade of ivory and elephant trophies. One of the
935 FRMCA § 5 (i) and (k)). 936 < http://allafrica.com/stories/201207260320.html (creation in final stages as of 2012); http://www.tanzaniainvest.com/tourism/news/719- tanzania-wildlife-authority-bill-set-in-progress> (bill to create authority set for November 2013);
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problems of implementing the plan highlighted in the document was funding, which the document noted could not be completely funded by the Tanzanian Government. There was a suggestion of selling their ivory compound in order to fund such conservation, a suggestion which CITES has rejected.
3. PENALTIES
3.1 The Wildlife Conservation Act940
The penalty for illegal trade in wildlife species or specimens under the WCA is a fine of not less than three times the value of the specimen traded, a minimum of five years' imprisonment, or both941. While a penalty of a minimum of five years in prison is fairly severe, by its terms the WCA permits a person convicted of violating this section to receive the fine instead, with no prison sentence at all. This loophole appears likely to lend itself to efforts to water down or reduce the effectiveness of the criminal provisions of the WCA as a deterrent.
The penalty for illegal dealing of trophies under the WCA is a fine of not less than two times the value of the specimen traded, a prison sentence of between two and five years, or both942. Again, the effectiveness of this potential sentence is mitigated by the possibility that a person convicted under the section could receive only the fine and no prison time.
3.2 The National Parks Act943
The penalties for hunting, killing, or capturing an animal under the NPA are broken down by categories of animal according to the three parts of Schedule I of the Wildlife Conservation Act of 1974.944 The penalty for Part I animals is imprisonment for a term of between three and seven years, with a potential fine of no more than 500,000 Tanzanian Shillings ("TSH") (US$308).945 The penalty for Part II animals is imprisonment for a term of between two and five years, with a potential fine of no more than 500,000 TSH(US$308). The penalty for Part III animals is imprisonment for a term of between three and seven years, with a potential fine of no more than 200,000 TSH(US$123).
Constructing or carrying a weapon for the purposes of illegal hunting is punishable by imprisonment for a term of no more than two years, a fine of no more than 100,000 TSH (US$61), or both. Other violations of the NPA not covered above are punishable by imprisonment for a term of no more than one year, a fine of no more than 500,000 TSH (US$308), or both.
3.3 The Forest Resources and Management Act946
Part XII of the FRMCA sets out the penalties for the offences under the Act.
940
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Under Section 88, the penalty for carrying out a prohibited activity (which includes hunting or fishing) is a minimum of 6 months' imprisonment, or a fine, or both. Although Section 88 sets out offences and liability for the same, Schedule 2 does not actually set out the applicable fine for this despite noting so in the section.
Section 91 (a) states that any person under the Act who without authority kills, destroys, captures, collects or otherwise takes any wild animal or plant listed under the list of protected species referred to under the Act, or takes, injures or destroys the nest or egg of any such wild animal shall be guilty of an offence, and shall be liable on conviction to imprisonment for a term not less than six months, or a fine of not less than 300,000 TSH (US$185), or both. When you compare this fine to the average male income (324,815 in the private sector, or 701,671), it is clear that this isn't really a high enough sum to act as a major deterrent.
Section 91 (d) goes on to note that any person who without authority under the Act exposes or offers for sale or purchase or has in their possession or control any wild animal listed under the list of protected species referred to under the Act or any nest, egg, skin or part, is also guilty of an offence, again with a penalty of a minimum of 6 months' imprisonment, or a fine of not less than 300,000 TSH (US$185), or both. Section 91 (e) states that a person is guilty of an offence if without authority under this Act they export or attempt to export the skin or any part of a wild animal killed, injured, destroyed, captured, collected or otherwise taken in contravention to the Act. Again the penalty for this is a minimum of 6 months' imprisonment, or a fine of not less than 300,000 TSH (US$185) or both. The provisions here touch upon culling the illegal trade of wildlife both on a domestic level and an international level.
3.4 Notably, although the Act provides various lists of animals which are to be protected, providing differing degrees of protection depending on how endangered a species is, the penalties themselves do not make any distinction and a standard minimum sentence of 6 months' imprisonment is applicable for all offences or a fine, which again is generally of the same value, or both. The penalties also do not make much distinction between the types of offences carried out, again with similar penalties being applied throughout. Of course the Act does provide scope for discretion and only sets out the minimum penalties to be applied, but the starting point makes no distinctions. Moreover, the minimum term of imprisonment for offences under the Act does not meet the definition of being a 'serious crime' under the United Nations Convention against Transnational Organized Crime947 which states that “serious crime’ shall mean a conduct, constituting an offence punishable by a maximum deprivation of liberty of at least four years of imprisonment or a more serious penalty"948 .
The Act sets out more serious penalties for reoffenders who reoffend within two years such offenders are liable for double the fine or double the term of imprisonment or both949.
Moreover, if a person guilty of an offence admits in writing to having committed the offence to the Forest Authority then the offence may be compounded950. The fact that an offence may be compounded again suggests that offences under this Act may not fall under the definition of a 'serious crime'.
947
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3.5 Enforcement
Anecdotal evidence suggests that Tanzania is making efforts to prosecute crime under the WCA. For example, in October 2013 the Tanzanian Government launched 'Operation Terminate' which aimed to crack down on poaching. Tanzania’s People’s Defence Force, local police and special anti-poaching militia, as well as wildlife rangers were called to enforce a ban on elephant and rhinoceros poaching. However, the operation had to be abandoned after claims of arbitrary murder, rape, torture and extortion of innocent people. The operation advocated a 'shoot to kill policy' where poachers were to be shot if caught in the act of poaching. However, despite the controversial nature of 'Operation Terminate', officials have said that poaching has increased since its abandonment.951
In January 2014 two people were held by police in Tanzania after the seizure of illegal ivory at Dar es Salaam. 81 tusks were confiscated in total, although no further details have been provided by the authorities, to avoid disrupting their investigations.952
In 2011 a Chinese National was arrested in Dar es Salaam in connection with on-going investigation into the trade of elephant tusks seized in Vietnam but originating from Zanzibar in August 2009. The investigations were coordinated by the Lusaka Agreement Task Force. The arrested suspect was believed to be one of the key figures in a smuggling ring illegally exporting elephant tusks to the Far East from the Region. The suspect was charged at Kisutu Residents Magistrates Court in Dar es Salaam for committing an economic crime.953
In January 2013, three Chinese nationals were arrested in Dar es Salaam in connection with an ivory smuggling ring responsible for smuggling over 12 tons of ivory, worth £62 million (US$ 102,365,194) into China.954
3.6 Penalties in context
To provide some context to the fines imposed for offences relating to the trafficking of wildlife, we have undertaken research into the average salaries for people working in Tanzania. The most recent statistics on monthly average wage are for 2012:955
Private sector
Male average monthly salary: 324,815 TSH (approx. US$ 201) Female average monthly salary: 314,149 TSH (approx. US$ 194) Public sector
Male average monthly salary: 701,671 TSH (approx. US$ 433.53) Female average monthly salary: 593,666 TSH (approx. US$ 366.80) Average monthly pay for agricultural/forestry/fishing type employment: 306, 411 TSH (approx. US$ 189.32)
951 < http://www.theguardian.com/world/2013/dec/31/elephant-deaths-rise-tanzania-shoot-to-kill-poachers>, accessed on 7 February 2014. 952 < http://www.bbc.co.uk/news/world-africa-25590669>, accessed on 7 February 2014. 953 < http://lusakaagreement.org/?p=359>, accessed on 7 February 2014. 954
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3.7 Financial value of animals/animal products
Although no certain figures can be provided, it seems that the black market value of rhino horn may be as much as US$ 100,000 per kg956 in countries such as Vietnam (the average horn weighs between 1-3kg, depending on the species). A recent customs investigation into an ivory smuggling ring in China placed the value of elephant tusks at around £19,400 (US$ 32,1008) per unit957, while www.animal-rights-action.com suggests that a whole tusk is worth £40,000 (US$ 63,000).958
The high value of these items on the black market calls into question the effectiveness of the comparatively low value fines incurred by poaching or illegally hunting animals.
3.8 Statistics
3.8.1 Licences
The chart below shows the number of Trophy Dealer Licences issued from 2001 to 2010 in Tanzania:959
956
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3.8.2 Tourist hunters
The chart below shows the number of tourist hunters who visited Tanzanian game parks from 2000 - 2010:960
The below figure demonstrates the high revenue that tourist hunting in Tanzania generates on a yearly basis:961
3.9 Additional
information
There have been calls from a Government Minister to implement a 'shoot to kill' policy for poachers caught by game keepers. Over the last ten years, over 1,000 game keepers have been killed in Tanzania, while protecting animals. Additionally, it is predicted that around half of Tanzania's elephants have been killed in the last three years alone.962 Clearly, animal protection and the prevention of poaching is a live issue in Tanzania, and one that at present the legislation (or rather its enforcement and deterrent effect) does not seem to be keeping pace with.
960
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4. ANCILLARY LEGISLATION
4.1 Legislation summary
4.1.1 The Arms and Ammunition Act 2007963
The Arms and Ammunition Act of 2007 (the “Act”) currently regulates firearms (that are not “armaments” or arms of war) in Tanzania and Zanzibar. Recent reports, however, indicate that the government will soon introduce new legislation to strictly regulate and control the importation, sales and ownership of guns.964
Under the current Act, a licence must be issued before a person can use, carry, or have in his possession or control any firearm or ammunition.965 In addition, certain restrictions are imposed on the import and export of arms and ammunition.966
4.1.2 The Economic and Organized Crime Control Act 1984967
The Economic and Organized Crime Control Act of 1984 (the “Act”) creates a special court (the “Economic Crimes Court”) and procedures to prosecute “economic offences.”968 Many crimes are included in the definition of an economic offence, including committing an offence under the Prevention of Corruption Act, “hoarding” commodities or liquid assets, possessing or conveying stolen goods, or leading organised crime.969 The following offences, however, appear to be most relevant:
Unlawfully capturing, hunting or trapping animals in a game reserve or game-controlled area;
Unlawfully dealing in “trophies” or in Government “trophies;”
Being found in unlawful possession of weapons in certain circumstances (that is, contrary to Sections 10, 11, 14, 35 part VI, 67 and 71 of the Wildlife Conservation Act of 1973, or contrary to Section 16 of the National Parks Ordinance).
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4.1.3 Anti-Money Laundering Act 2006970
The Anti-Money Laundering Act (the “AMLA”), which came into force in 2007, prohibits legal and natural persons from engaging in transactions which involve the proceeds of “predicate offences”, or from assisting others to do so. The list of predicate offences includes an assortment of criminal activities, the most relevant here being illicit trafficking in stolen or other goods, poaching and corrupt practice.
The AMLA also imposes certain “know your customer” (“KYC”) and associated obligations on “reporting persons” (including banks, accountants, customs officials, and legal professionals) to (i) identify their customers before entering into a business relationship or carrying out any transaction, (ii) establish and maintain customer records in all transactions, and (iii) report suspicious transactions to the Financial Intelligence Unit (the “FIU”).
The FIU was established under the ALMA and is responsible for receiving suspicious transaction reports from reporting persons, in relation to suspected money laundering and terrorist financing activities, analysing and disseminating intelligence to appropriate law enforcement agencies for investigation and further action.
In 2012, Tanzanian Parliament passed new AML legislation, amending the ALMA to expand the list of predicate offences and KYC requirements.
4.1.4 The Prevention and Combatting of Corruption Act 2007971
This Act (the "PCCA") applies to mainland Tanzania only. One of its main measures is to establish the Prevention & Combatting of Corruption Bureau ("PCCB"). The PCCB's three objectives are: to educate society, to prevent corruption, and to act as a deterrent. In addition to preventative provisions, the PCCA sets out the procedures for the recovery of the proceeds of corruption. This could be advantageous with regard to the trafficking of e.g. ivory, as it allows the goods to come within judicial control, rather than on the black market.
4.1.5 The Criminal Procedure Act 1985972
The CPA does not contain any provisions directly relating to the trafficking or trade of wildlife, but does link to the PCCA in setting out penalties for breaching that legislation. The CPA is a comprehensive statute detailing the administrative and evidential procedures for arresting and detaining suspects all the way through to trial, and the rule against double jeopardy (similar in parts to the provisions of 'PACE' in the UK). It is a useful source for understanding judicial process in Tanzania, and how people accused of crimes are to be treated by the police and authorities. This may be of note for anyone accused of a criminal offence concerning animal trafficking or illegal poaching/hunting.
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4.2 Penalties and enforcement
4.2.1 The Arms and Ammunitions Act973
Under the Arms and Ammunition Act of 2007 (the “AAA”), any person contravening any provision of the AAA, or any regulation, notice or order made under it, or the conditions of a licence or permit, commits an offence under the AAA.974 Any person committing an offence under the AAA, may also be imprisoned or penalised with any other measure provided under the Economic and Organized Crimes Control Act.975
The penalties under the current Act are as follows:976
Six (6) years’ imprisonment for using a firearm or imitation firearm with the intent to resist or prevent apprehension of himself or another person;
If an offence is committed with respect of the lawful apprehension or detention committed by him, he or she will be penalised for that offence in addition to the six (6) years’ imprisonment described above;
Certain offences (such as certain theft – which includes animals “capable of being stolen”977, property injury and offences against morality) set forth in a schedule to the Act carry a punishment of up to three (3) years in addition to any penalty described in the two sections above; and
If during the trial of any person for an offence under the first 2 bullets above, the person is found to have committed an offence under the third bullet, then the court may still find the person guilty under the third bullet and he will be subject to liability under those provisions.
4.2.2 The Economic and Organized Crime Control Act978
Under the Economic and Organized Crime Control Act (the “EOCCA”), except where a different penalty is expressly required by the Act or in the statement of the offence, the Court may impose those provisions listed in Section 59 of the Act,979 which include the following:
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Subject to the point below, any person convicted of an economic offence must be imprisoned for a term not exceeding fifteen (15) years, or to both that imprisonment as well as any other penal measure provided for in the Act.
When considering the sentence to be imposed, the Court must “comply with the principle” that (a) a proven offence in the nature of organised crime, endangering the national economy or public property, deserves the maximum penalty absent mitigating circumstances; (b) any other economic offence may be sentenced with a sentence that is a suitable deterrent; and (c) children and young persons must be sentenced in accordance with the Children and Young Persons' Ordinance.
The Court may order compensation, divestment of any direct or indirect interest in any enterprise, impose reasonable restrictions on future activities or investments, order the dissolution or reorganisation of any enterprise, or make any other order with respect to the convicted person or his or her property to provide for adequate restitution of any public property or interest that is injured or damaged, and for the better control, aversion, reduction or eradication of economic or organised crime.980
The Court may also enter restraining orders, prohibitions or injunctions, or take other actions as it may deem just, pending the determination of any proceeding.981
4.2.3 The Anti-Money Laundering Act982
Under the AMLA, money laundering is a criminal offence and the following penalties apply on conviction:
For individuals; a fine not exceeding five hundred million TSH (approximately $308, 450) and not less than one hundred million TSH (approximately $61, 690) or a term of imprisonment not exceeding ten years and not less than five years;
For corporations, a fine not exceeding one billion TSH and not less than five hundred million TSH or being ordered to pay the amount equivalent to three times the market value of the property, whichever amount is greater.
Where the offence of money laundering is committed by a corporation, every person who was at the time of the commission of the offence a manager, director, partner or controller or concerned in the management of its affairs, may be convicted of that offence and shall be liable to the penalty applicable to
980 Ibid. at §60(1). 981 Ibid. §60(4). 982
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individuals (even if the corporation itself is not convicted of the offence).
The fines under the AMLA are clear deterrents: facing a fine that is more than 1,500 times the average monthly salary (in the private sector) demonstrates how serious the authorities treat offences under this legislation. This contrasts quite starkly with the fines available for the more wildlife-specific offences detailed in this report, and is an indication of how seriously each are treated at a high level in Tanzania.
Failure to comply with the anti-money laundering supervision provisions imposed on “reporting persons” carries the following penalties (where no other penalty is imposed):
For individuals, a fine not exceeding five million TSH ($,3084) or imprisonment for a period of twelve months; and
For corporations, a fine not exceeding ten million TSH ($6,169) .
Failure to report suspicious transactions and tipping-off on the part of reporting persons carry separate, higher penalties.
4.2.4 The Prevention and Combatting of Corruption Act983
The PCCB has the right to compel individuals to forfeit the proceeds of corruption, in whatever form (property or cash). Any person who corrupts himself shall, if convicted, be liable to a fine of not less than 500,000 TSH (but not more than 1,000,000 TSH) which is approximately US$ 309 - $618, or to a term of imprisonment for 3 - 5 years, or to both.
If the corruption involves a public official, then the fine is increased to a minimum of 1,000,000 TSH, up to a maximum of 3,000,000 TSH which is approximately US$ 618 - $1,852 , 3 - 5 years in prison, or to both. As with other legislation, the existence of a fine somewhat dilutes the deterrent effect a prison sentence alone would have.
4.3 Relationship with principal legislation
The ancillary legislation referred to in this report offers indirect assistance to the aims of the Wildlife Conservation Act. Limiting regulating firearms will likely have an impact on the availability of weapons for those intending to poach illegally, and stricter anti-bribery and money laundering rules should (in principle) make it harder for those who illegally traffic or trade animals and/or illegal animal products. The PCCA aims to educate society for the long- term prevention and reduction of corruption, which can only have a positive impact in the long-term on illegal trafficking.
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4.4 Additional information
4.4.1 The Arms and Ammunitions Act984
Tanzania also has joined forces with certain regional and international organisations to combat the illicit trade of firearms, ammunition and other related materials.985 Most recently, these efforts include:
Signing of the United Nations Arms Trade Treaty in 2013;
Adoption of an African Common Position to take to the Conference to Review the UN Programme of Action to Prevent, Combat and Eradicate the Illicit Trade in Small Arms and Light Weapons in All Its Aspects (UNPoA), held in June 2006; and
Signing of the Nairobi Protocol for the Prevention, Control and Reduction of Small Arms and Light Weapons in the Great Lakes Region, the Horn of Africa and Bordering States in 2004.
4.4.2 The Anti-Money Laundering Act986
In October 2011, mainland Tanzanian and Zanzibari authorities came to an agreement to share the FIU. However, training and attention has focussed on mainland authorities and authorities in Zanzibar reportedly lag behind their mainland counterparts. Given the relatively recent introduction of AML legislation, additional training for the judiciary and law enforcement agencies remains critical.
The Financial Action Task Force (FATF) included Tanzania in its 2012 and 2013 Public Statements for its failure to adequately implement its action plan to address noted anti-money laundering/counter-terrorist financing (AML/CFT) deficiencies. The FATF noted that despite Tanzania’s high-level political commitment to work with the FAFT and the Eastern and Southern Africa Anti- Money Laundering Group, to address strategic deficiencies, it had not yet made sufficient progress in implementing its action plan within the agreed timelines.987
5. JUDICIAL PROCESS AND CAPACITY
5.1 Judicial process
5.1.1 Standard court process in Tanzania and Zanzibar
The former Republic of Tanganyika formed a union with Zanzibar in 1964 to create the “United Republic of Tanganyika and Zanzibar,” and in 1967, the union became the “United Republic of Tanzania.” The former Tanganyika is more
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commonly referred to as “Mainland Tanzania,” with Zanzibar (an autonomous state made up of the islands of Unguja and Pemba) referred to as “Tanzania Zanzibar” or simply “Zanzibar.” In general, “Union” matters in the United Republic as set forth in the Constitution of the United Republic of Tanzania of 1977 (and non-Union matters on Mainland Tanzania) are governed by the Government of the United Republic of Tanzania. The Revolutionary Government of Zanzibar has authority in Zanzibar over non-Union matters, governed by its own Constitution, adopted in 1984.988
The legal system in Tanzania is largely based on Common Law, influenced by the English legal system due to previous British rule during its colonial period; it also considers Islamic or customary laws, particularly in personal or family matters.989
In mainland Tanzania, the judicial system consists of Primary Courts (which hear criminal and civil cases), Resident Magistrate Courts and District Courts hold concurrent jurisdiction and receive appeals from the Primary Courts. The High Court of Tanzania has unlimited original jurisdiction to hear all types of cases; it has three specialised divisions (Commercial, Labour and Land). The Court of Appeal of Tanzania is the highest court in the hierarchy and hears appeals from the High Court of Tanzania and the High Court of Zanzibar. To illustrate, the legal structure in mainland Tanzania is as follows:
Court of Appeal of Tanzania ↑ High Court of Tanzania ↑ Resident Magistrate Courts – District Courts ↑ Primary Courts
The judiciary structure in Zanzibar is very similar to that of mainland Tanzania, except that Zanzibar retains Islamic courts “Kahdi’s Court and “Kahdi’s Appeal Courts”, which adjudicate Muslim family cases such as divorces, child custody and inheritance. The High Court of Zanzibar decisions are final for appeals from the Kahdi’s Appeal Courts. Decisions from the High Court of Zanzibar are appealed to the Court of Appeal for Tanzania. The judiciary structure of Zanzibar may be illustrated as follows:
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Court of Appeal of Tanzania ↑ Mag st at C t ↔ Ka h ’s al C t ↑ ↑ Primary Courts Ka h ’s C t
5.1.2 Wildlife Conservation Act990
The WCA authorises the establishment of an autonomous body, the “Wildlife Authority” to enforce the provisions of the WCA. Although a specific court is not authorised under the WCA, penalties for certain crimes are listed. Authorised officers under the WCA have search, seizure and arrest powers.
5.1.3 National Parks Act991
Enforcement under the NPA is the function of the Trustees of the Tanzania National Parks.992 The Trustees have many functions including controlling, managing and maintaining national parks.993 The Trustees also have enforcement powers such as search seizure and arrest powers, as well as prosecutorial powers and the power to delegate the authority to prosecute to subordinate courts for any and all violations of the NPA and its “subsidiary legislation.”994
5.1.4 Forest Resources Management and Conservation Act995
The FRMCA provides for certain penalties for hunting and fishing in a forest reserve or other restricted area within Zanzibar without a licence, including fines and imprisonment.996 Further penalties may also be imposed on any person convicted under any of the law’s provisions, including the revocation of the licence, and an award of ten times the amount of royalties and other fees that would have been paid had the act been authorised.997
The court must issue an order to compel the person to reimburse the Forest Authority for any costs incurred in connection with the offence.998 If the person is convicted of the same crime within two (2) years from the commission of the previous offence, the fines and/or prison term automatically will double.999
An enforcement officer under the FRMCA has inspection, seizure and arrest powers.1000 Warrantless searches are permissible if the officer reasonably suspects
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that a vehicle or car is being used in connection with an act that violates the FRMCA.1001 The enforcement officer can seize anything which appears to be used in committing an offence under the law.1002 Also, he may arrest anyone whom he reasonably suspects has committed an offence.1003 Also, enforcement officers have prosecutorial powers and may, at their discretion, prosecute anyone suspected of committing an offence under the FRMCA before a magistrate.1004
5.1.5 The Arms and Ammunitions Act1005
A person committing an offence under the Arms and Ammunitions Act is subject to imprisonment, and any other penal measure provided for under the Economic and Organized Crimes Control Act1006 (which, as described below, could also include civil penalties).
5.1.6 The Economic and Organized Crime Control Act1007
Under EOCCA, the High Court is vested with the jurisdiction to hear and determine cases involving economic offences under the Act, and when hearing charges against any person for the purposes of the EOCCA, the High Court is known as the “Economics Crimes Court” (the “ECC”).1008 The ECC consists of a Judge of the High Court, along with two lay members.1009 The ECC has the power to inquire into economic offences alleged to have been committed, and to make such decisions and orders “for the purposes of the EOCCA as it may in each case find fit and just.”1010
A case is heard in the ECC either through (1) reference by any court subordinate to the High Court of any case, involving an economic offence(s) previously instituted through that court; or (2) institution of proceedings before the ECC by the Director of Public Prosecutions or by his representative appointed according to the Criminal Procedure Code.1011
Every six (6) months, a report must be prepared and sent to the Minister: (1) specifying the total number of economic offences brought before the ECC for trial; (2) the number of each type of economic offences inquired into; (3) the number of persons tried for each type of economic offence; (4) any recommendations for the control or eradication of any economic or other crime(s).1012 After a trial, the ECC may submit a special report to the Minister
1001 Ibid. at 62. 1002 Ibid. at 62. 1003 Ibid. at 62. 1004 Ibid. at 62. 1005
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detailing any “non-criminal or professional misconduct, abuse or misuse of office involving economic organised criminal activity by any public official” as a basis for recommending his removal or disciplinary action, or regarding the “state and conditions” or economic and organised criminal activity within the ECC’s jurisdiction.1013
The Act requires the investigation of economic offences triable by the Court be conducted in accordance with the Criminal Procedure Code, subject to certain provisions of the EOCCA;1014 however, compensation awards orders must comply with the Civil Procedure Code.1015
5.1.7 The Anti-Money Laundering Act1016
Although not specifically stated within the ALMA it appears that cases may be heard in either a primary court or a secondary court. For those crimes listed as “serious offences,” the law states that “if a person is convicted of a serious offence before any court other than a Primary Court that court shall be the appropriate court in relation to the conviction.”1017
5.1.8 The Prevention and Combating of Corruption Act1018
Under the PCCA, the Prevention and Combating of Corruption Bureau was created. Part of its function is to “investigate and, subject to the Director of Public Prosecutions, prosecute offences under this Act and other offences involving corruption” as well as to investigate any alleged or suspected: (1) offence of the PCCA; (2) conspiracy to commit an offence under the PCCA; or (3) conduct of a public official which is connected to corruption.1019 Unless the Director of Public Prosecutions directs otherwise, an offence under the PCCA may be tried in the District Court, Court, Court of Resident Magistrate, or, as the case may be, the High Court.1020
5.1.9 The Criminal Procedure Act
The CPA sets forth the procedure to be followed for the investigation of crimes and the conduct of criminal trials. Criminal proceedings begin by either making a complaint, or bringing before the magistrate a person who has been arrested with or without a warrant.1021 If warranted, the magistrate will sign a formal charge, and issue either a summons or warrant, as necessary.1022 Any offence under the Penal Code may be tried either by the High Court, or, for the specific list of
1013 Ibid. at §17(2). 1014 Ibid. at §20(1). 1015 Ibid. at §60(2). 1016 227 offences noted in Part A to the First Schedule in the CPA, by a subordinate court.1023 Any offence under any law other than the Penal Code must be tried by a specific court mentioned in the law, if any – if no court is mentioned, it may be tried by the High Court or, if the offence is shown on Part B of the First Schedule to the CPA, it may be tried by a subordinate court (if the crime is punishable by death or imprisonment for more than 15 years, it must be heard by the High Court, subordinate courts may hear crimes that are punishable by death or imprisonment of up to fifteen (15) years, or are subject to a fine only).1024 The High Courts may pass any sentence authorised by law; subordinate courts who sentence corporate punishment must have their sentences confirmed by the High Court.1025 The CPA sets forth procedures for trial at both the High Court and the subordinate court, including the use of witnesses. The accused is arraigned, “assessors” are chosen, and the advocate for the prosecution opens the case.1026 The defence may then open its case, provide witnesses and after cross- examination or re-examination, sum up his case.1027 The decision of every criminal trial is delivered in open court immediately or soon after termination of trial.1028 5.2 Prosecutions There were reportedly 14 prosecutions under the Anti-Money Laundering Act in 2012 (involving approx. 65 individuals).1029 Information on the PCCB's website details a handful of prosecutions over the last 6 years.1030 A Government website gives the figures for the number of poachers arrested in 2009/2010 (the most recent) as around 1,700 for the whole country. There is no information concerning how many of these were charged, or what sentences they received.1031 5.3 The Anti-Poaching (Wildlife) Division of the Tanzanian Government published statistics in 2010 illustrating the number of 'Game Cases' they have processed.1032 Although the chart is not clear in its terminology (we presume 'total number of cases' refers to all allegations or charges, and 'finalised cases' refers to convictions), in 2010, perpetrators in 286 Game Cases received a combined prison sentence of 392 months. On the presumption that each case refers to one individual, that is an average prison sentence of 1.37 months per offender. The combined fines were 49,176,000 TSH equating to US$30,365 (on the same presumption) 1023 Ibid. at §164. 1024 Ibid. at §165 and Schedule 1, Part B. 1025 Ibid. at §§166-167. 1026 Ibid. at Part VIII (f). 1027 Ibid. at Part VIII (g). 1028 Ibid. at §311(1). 1029 228 171,944 TSH equating to US$106 each: much higher than the level of fines suggested in the NPA or FRMCA. However, if these fines were under the WCA (with the power to fine twice the value of trophies), the sum of 171,944 (US$ 106) seems low compared with the retail value of, for example, ivory (a conservative estimate of US$ 32,008). 5.4 Appeals 5.4.1 Appeals Generally The CPD also sets out the procedure to be followed in respect of appeals to the High Court.1033 Any person aggrieved by a finding, sentence or order made or passed by a subordinate court may appeal to the High Court on matters of fact and / or law, except where the accused person has pleaded guilty, in which case only the extent or legality of the sentence may be appealed. Subject to the discretion of the High Court, no appeal shall be entertained unless the appellant:1034 has given notice of his intention to appeal within ten (10) days from the date of the finding, or in the case of corporal punishing within three (3) days of such sentence; and has lodged his petition of appeal within forty-five (45) days from the date of the finding. The High Court may summarily reject an appeal by an aggrieved party where it is satisfied that the appeal has been lodged without any sufficient ground of complaint.1035 Where the High Court does hear an appeal from a subordinate court, it is within its powers to reverse the finding and sentence and acquit the accused, order the accused to be re-tried by a court of competent jurisdiction, alter the finding, reduce or increase the sentence, alter the sentence nature, or, in an appeal from any other order, make any amendment or any incidental order that may be just and proper.1036 Appeals from subordinate courts shall be heard by one judge of the High Court except where the Chief Justice directs that an appeal be heard by two or more judges in any particular case. 1033 The Criminal Procedure Act of 1985 at Part X. 1034 Ibid. at §361. 1035 Ibid. at §364. 1036 Ibid. at §366. 229 5.4.2 Appeals by the Director of Public Prosecutions The Director of Public Prosecutions (the “DPP”) may appeal, on a matter of fact or law, against finding of a subordinate court to the High Court provided that he or she:1037 has given notice of his or her intention to appeal within thirty (30) days from the finding; and has lodged his or her petition of appeal within forty-five (45) days from the finding. On hearing an appeal by the DPP, the High Court may reverse a finding of acquittal and proceed to sentencing directly or remit the case to the subordinate court for passing sentence, order the respondent to be tried by a competent court, increase or reduce any sentence imposed by the subordinate court or alter the nature of such sentence, or reverse or amend any order made by the subordinate court or make any incidental order that may appear just and proper.1038 5.5 Judicial capacity To date, any focus on improving the calibre, impartiality and effectiveness of judges in Tanzania has been centred primarily on anti-corruption and bribery practices. In 2008, the Millennium Challenge Account (MCA)'s Threshold Program1039 identified a critical lack of knowledge among judges and magistrates on judicial ethics, financial crimes and corruption as factors undermining the credibility of the Tanzanian justice system. The program does not deal directly with any of the wildlife or conservation legislation, although as explored above, stricter sanctions for financial crime, corruption and bribery will impact on the welfare of animals poached and sold commercially (for example elephants for ivory). 6. CONCLUSIONS It is the opinion of certain organisations within Tanzania that “rampant corruption” facilitates wildlife crimes in the country – in particular, collusion between government officials, game wardens and criminals to transport illegal wildlife products.1040 In 2012 the Minister of Natural Resources and Tourism and top Wildlife Department officials were fired for taking bribes in exchange for assigning hunting blocks and allowing over a hundred live animals to be shipped abroad.1041 1037 Ibid. at §378 and 379. 1038 Ibid. at §382. 1039 < www.tzdpg.or.tz/index>, accessed on 7 February 2014. 1040 Kitabu, Gerald, Wildlife Crimes Increasing at Alarming Rate (August 27, 2013), 230 Poaching is another grave problem, particularly given market demand from Asia (particularly China and Thailand). This is evidenced by the fact that Tanzania and Kenya are the two most prominent countries connecting African ivory with Asian demand.1042 It has been recognised that the ability of the Tanzanian authorities to meet the challenge of highly-organised crime syndicates involved in illegal ivory trade is seriously compromised.1043 Other factors including flaws in the criminal justice system, lack of institutional capacity and coordination between agencies, social and political factors (lack of urgency), and failure to engage key stakeholders such as the Ministry of Tourism all contribute to Tanzania's vulnerability to illegal wildlife trade.1044 It is clear that with the enactment of the WCA and on-going efforts to organise the Wildlife Authority and conduct enforcement and prosecution under the law, Tanzania is taking some steps toward effectively combating wildlife trade and trafficking. Nevertheless, various flaws and loopholes in the legislation, combined with the struggle to fully implement the WCA (and, in turn, CITES), show that Tanzania’s work is far from complete. 1042 231 UGANDA Team Leader and Editor - Glen Allen - DLA Piper Team Members - Keelan Diana, Patrick Keppenne, Anthony Lehman, Andrew Schatz, Jennifer Squillario - DLA Piper 232 1. EXECUTIVE SUMMARY Uganda’s wide altitudinal, geographic and climatic variations provide the country with suitable habitats for a large number of wildlife species. Included among them are the mountain gorilla (globally endangered, with over half of the world’s mountain gorillas in Uganda),1045 chimpanzees (globally endangered), lions (globally vulnerable, whose population in Uganda has declined 30 percent in the last decade),1046 and African elephant (globally vulnerable, and recovering from a marked decline in population in Uganda in the 1960’s and 1970’s).1047 Uganda’s commitment to protecting its wildlife is shown, among other ways, by its creation of wildlife parks and reserves, which include 10 National Parks, 12 Wildlife Reserves, and numerous wildlife sanctuaries and other protected areas.1048 Uganda’s large and growing population (it had the second highest fertility rate in the world in 2012)1049 and widespread poverty (67% of Ugandans are characterised as poor or vulnerable to poverty),1050 however, add to the pressures leading to illegal wildlife trading. To combat illegal wildlife trade while also allowing legal wildlife trade, Uganda passed the Uganda Wildlife Act of 1996. The Wildlife Act, together with ancillary laws such as the Anti- Corruption Act of 2009, the Anti-Money Laundering Act of 2013, and Customs Enforcement Regulations, provide the framework within which Uganda seeks to prevent illegal wildlife trade. There are no species-specific laws,1051 although, as noted in this report, Uganda’s efforts to combat illegal ivory trade merit separate discussion. The Wildlife Act: (1) Restates and applies the fundamental principle set forth by Article XIII of Uganda’s 1995 Constitution, that the State owns and shall protect important natural resources, including fauna and flora, on behalf of the people of Uganda; (2) establishes the Uganda Wildlife Authority to enforce and administer the Act; (3) undertakes to establish a regime in which legal use of wildlife can be pursued in a sustainable manner by creating six categories of lawful wildlife use; (4) provides general measures applicable to the management of wildlife and the creation and operation of wildlife conservation areas; (5) sets forth a procedure for declaring species of wildlife to be protected species; (6) incorporates provisions 1045 Uganda Wildlife Authority, Wildlife Directory, 233 for the regulation of international trade in species and specimens; and (7) provides penalties for violations of the Act. According to the CITES Standing Committee, Uganda’s Wildlife Act does not fully satisfy the requirements for implementation of CITES (i.e., Category 3). It appears the Act fails to meet at least one of the following minimum requirements: (1) prohibit trade in specimens in violation of the Convention; (2) penalise such trade; or (3) confiscate specimens that are illegally traded or possessed. Amendments to the Wildlife Act that could lead to full implementation of CITES have been proposed and submitted to the Uganda Cabinet for approval.1052 There is, however, no draft legislation to date. Penalties for violations of the Wildlife Act in many instances are quite severe. For example, a person convicted of taking (i.e., drugging, capturing, trapping, or killing), hunting, molesting, or possessing any protected species faces a fine of UGX 1,000,000 (US$ 405)1053 (a significant amount in a country where the GDP per capita is about US$ 5501054) and / or up to five years' imprisonment. Likewise, any person, who without a valid permit, imports, exports, or re-exports a wildlife specimen (or attempts to do so) is subject to a minimum fine of UGX 10,000,000 (US$ 4,050) or a minimum imprisonment of 7 years. The enforcement of the Wildlife Act, however, has historically been lax. For example, when poachers killed an endangered mountain gorilla in Bwindi Impenetrable National Park in 2011, the three suspects were given nothing more than light fines (US$ 19). The Wildlife Authority has announced measures it proposes to take to make enforcement of the Act more effective, but much remains to be done. Corruption is also a substantial obstacle to effective enforcement of the Wildlife Act. Although Uganda has passed major laws over the past decade to curb corruption (e.g., the Anti-Corruption Act of 2009), which provide for substantial penalties, Uganda topped the five countries in the East African Community in a 2012 Transparency International assessment that examined the frequency with which citizens reported being asked to pay bribes. The reality appears to be that Uganda’s wildlife faces threats from officials who disregard with impunity laws such as the Wildlife Act, from officials at the highest levels who are rarely if ever convicted of corruption-related offences, and from disregard of the laws by terrorist organisations such as the Lord’s Resistance Army. Uganda is increasingly being used as a key transit county for the illegal trade in ivory and other wildlife products, particularly from poachers who kill elephants in bordering states such as South Sudan and the Democratic Republic of the Congo. There is no legal ivory trade in Uganda. In January 2013, Uganda submitted its report to CITES summarising its measures to combat illegal ivory trade. It is unclear whether these measures have yet been adopted. As summarised above, Uganda faces major challenges in implementing effective measures to deter illegal wildlife trading. On the positive side it has, in the Wildlife Act, a potentially comprehensive framework for addressing illegal wildlife trade, which: has reserved nearly 10% of Uganda’s surface area for wildlife conservation; 1052 Section 2.1.2.1. 1053 Ugandan Shilling to US Dollar Exchange rate calculated using XE Currency Converter (US$ 1 = UGX 2469; UGX 1 = US$ 0.000405), accessed on February 1, 2013, 234 appears to be making some headway in implementing CITES requirements; allows but regulates legal wildlife trade and recognises the necessity of addressing the economic issues that contribute to illegal trading; and points to significant conservation successes, such as the recently confirmed increase in the number of mountain gorillas at Bwindi Impenetrable National Park and Mgahinga Gorilla National Park.1055 Uganda should be encouraged to build on these positive aspects. 2. PRINCIPAL LEGISLATION 2.1 The Wildlife Act and proposed amendments. As explained below, the Uganda Wildlife Act of 1996 (the "Wildlife Act")1056 is Uganda’s principal framework for combatting illegal wildlife trade. Important amendments to the Wildlife Act are under consideration. There are no species-specific laws. 2.1.1 The Game (Preservation and Control) Act of 1959 Trade and hunting of wildlife were originally regulated under The Game (Preservation and Control) Act (1959) (the “Game Act”).1057 The Game Act as amended, created game reserves, regulated the hunting of certain animals, and restricted the sale, purchase, import and export of others and their trophies. It created schedules, listing specific species of animals, which could only be hunted with a special permit or a basic hunting licence.1058 The Game Act was later repealed, except for its schedules, by the Uganda Wildlife Act of 1996.1059 1055 The Guardian, “Mountain gorilla numbers rise by 10%” (November 13, 2012), First Schedule – Animals not to be hunted or captured throughout Uganda except under special permit. Second Schedule – Animals which may be hunted under basic and supplementary licences, and fees for supplementary licences. Third Schedule – Birds which may be hunted by the holder of a bird licence. Fourth Schedule – Game reserves. 235 2.1.2 Uganda Wildlife Act of 1996 The Wildlife Act is today the current principal framework for regulating the illegal trade of wildlife in Uganda. The Wildlife Act came into effect on August 1, 1996, and is the primary legislation governing wildlife trade and protection. It aims to provide for sustainable management of wildlife, to consolidate laws relating to wildlife management, and to establish a coordinating, monitoring and supervisory body for such purposes. The Wildlife Act prohibits the unauthorised hunting, capture, and killing of a protected species1060 and the trading, exporting, importing, and re-exporting of wildlife “specimens.”1061 Wildlife “specimens” are defined to include any wild animal, alive or dead, whether or not native to Uganda, and any readily recognisable part or derivative of such animal.1062 The Act establishes the Uganda Wildlife Authority (the “Authority” or “UWA”) to achieve, among other things, the sustainable management of wildlife conservation areas; develop, recommend, implement, and manage wildlife management policies; recommend the creation of wildlife conservation areas; establish policies and procedures for the sustainable use of wildlife by local communities; and control internal and external trade in wildlife specimens.1063 The UWA is led by an Executive Director, who is supervised by a Board of Trustees. The UWA is a semi-autonomous government agency body within the Ministry of Tourism, Wildlife and Heritage (“MTWH”).1064 The Minister is empowered to declare any species of wild animal or plant as a protected species under the Act. The Wildlife Act divides protected species into two categories: (1) Fully Protected species – which may not be subject to wildlife use rights; and (2) Partially Protected species – which may only be utilised subject to a grant of a wildlife use right.1065 Fully Protected species are listed under the First Schedule to the Game Act1066 and include, but are not limited to Fifth Schedule – Fees for licences. Sixth Schedule – African animals not occurring in Uganda, or of which only local species and subspecies are protected, which animals and the trophies thereof are protected by international convention. 1059 Ibid. 1060 Wildlife Act § 27 and Part XII. 1061 Wildlife Act § 66 and Part XII. 1062 Wildlife Act § 1(ee). 1063 Wildlife Act, § 5. 1064 See Wildlife Act, §§ 7-9; See also UWA, Uganda Wildlife Authority – About, available at 236 cheetah, chimpanzee, elephant, giraffe, gorilla, leopard, pangolin, black and white rhinoceros, and immature lion or female lion accompanied by her young. Partially Protected species are listed under the Second Schedule to the Game Act (governing animals which may be hunted under basic and supplementary licences, and fees for supplementary licences), and include, among others: buffalo, impala (except in Karamoja district), male kudu (except in the Acholi district), adult male lion, warthog, and zebra. In addition, the Wildlife Act lists as a protected species, those which migrate to or through Uganda, which are protected under any international convention or treaty to which Uganda is a party.1067 A full list of protected species, as provided under the Game Act Schedules. The Wildlife Act permits certain wildlife use rights, which may be acquired from the UWA for a fee. These are as follows: hunting; farming; ranching; trading in wildlife and wildlife use products; using wildlife for educational or scientific purposes including medical experiments and developments; and general extraction.1068 No person may engage in such activities without first acquiring a grant of a wildlife use right. A person holding a wildlife use right, permit, or professional hunting/trapper licence may be exempted from certain offences under the Act. The Act nonetheless regulates hunting activities, prohibiting hunting or taking a protected animal using poison, traps, nets, snares or other devices capable of killing, capturing or wounding a protected species.1069 As discussed under Penalties (Section 3.1.), if convicted under the Act for any offence, a right-holder, licensee or permit-holder convicted under the Act may lose such right. Unless lawfully granted to any person, wild animals are deemed the property of the Government.1070 The Act also establishes a procedure for creating Wildlife Conservation Areas, which are further divided into “Wildlife Protected Areas” (national parks or wildlife reserves) or “Wildlife Management Areas” (wildlife sanctuaries or community wildlife areas).1071 While generally providing for conservation and management of the areas, the Act permits some activities within these areas, such as hunting or extraction of resources as governed by permits issued by the executive director, to be managed at sustainable levels.1072 Generally, however, the Wildlife Act prohibits activities harmful to wildlife within Wildlife 1067 Id. 1068 Wildlife Act, § 29. 1069 Wildlife Act, § 49. 1070 Wildlife Act, § 3(1). 1071 Wildlife Act, § 18. 1072 Ibid. National Parks permit the following activities: biodiversity conservation, recreation, scenic viewing, scientific research, but also allow for “any other economic activity,” which could be construed to allow for activities that might harm wildlife, such as hunting. See also Wildlife Act, § 23 (permitting the executive director to issue a permit to any person to conduct an otherwise prohibited activity in a Wildlife Protected Area). Wildlife Reserves allow for biodiversity conservation, recreation, scenic viewing, scientific research, and regulated extractive utilisation of natural resources. A Wildlife Sanctuary is the most protective of wildlife species, being “an area which has been identified as being essential for the protection of a species of wild animal or wild plant in which activities which are not going to be destructive to the protected species or its habitat may be permitted.” A Community Wildlife Area is less protective, and is “an area in which individuals who have property rights in land may carry out activities for the sustainable management and utilisation of wildlife if the activities do not adversely affect wildlife and in which area the State may prescribe land uses.” 237 Conservation Areas, setting forth several offences in such areas, which are punishable by both imposing a fine or imprisonment.1073 The Wildlife Act penalises both domestic and international trade in wildlife as a serious crime within the meaning of the United Nations Office on Drugs and Crime (UNODC), but treats international trade more severely. The UNODC defines serious crime as “conduct constituting an offence punishable by a maximum deprivation of liberty of at least 4 years or a more serious penalty.”1074 Any person who imports, exports, or re-exports a wildlife specimen (or attempts to do so) without a valid permit or fails to do so through a customs post or port, is subject to a minimum fine of UGX 10,000,000 (US$ 4,050) or a minimum imprisonment of 7 years.1075 In comparison, the average annual income in Uganda in 2013 was approximately $550.1076 By contrast, domestic trade in a protected species (i.e. possessing, selling, buying, transferring or accepting in transfer the specimen of a protected species) is punishable by a fine of not less than UGX 1,000,000 (US$ 405), or imprisonment for no more than 5 years, or both.1077 For both offences, the fine may not be less than the value of the specimen involved. According to the Standing Committee of CITES, Uganda’s legislation is not considered to generally meet the requirements for implementation of CITES (i.e. Category 3).1078 While the Standing Committee does not specifically state why the Wildlife Act fails to meet the requirements of CITES, Uganda’s legislation does not meet at least one of the following four minimum requirements: (1) designate at least one CITES Management Authority and one Scientific Authority; (2) prohibit trade in specimens in violation of the Convention; (3) penalise such trade; or (4) confiscate specimens illegally traded or possessed.1079 2.1.2.1 Proposed amendments Uganda is currently considering amendments to the Wildlife Act, which if approved should lead to full implementation of CITES according to Uganda Wildlife Commissioner James Lutalo.1080 However, because there is no draft 1073 Unless otherwise permitted under the Act, it illegal for any person in a wildlife conservation area to (among other things): hunt, take, kill, injure or disturb any wild plant or animal or any domestic animal; or prepare land for cultivation, prospect for minerals or mines or attempt any of these operations. Wildlife Act § 21. It is also illegal to enter a wildlife protected area without authority. Wildlife Act, § 22. 1074 See, Conference of the Parties to the United Nations Convention against Transnational Organized Crime, Sixth session, 15-19 October 2012 1075 Wildlife Act § 76. 1076 The World Bank, GDP Per Capita (current US$), 238 legislation to date, it is unknown whether the proposed amendments will satisfactorily implement the requirements of CITES. As explained by email dated January 21, 2014, Commissioner Lutalo stated that “Uganda has consulted and agreed on the Principles for the Uganda Wildlife Act Cap 200 amendment Bill which have been submitted to Cabinet for approval before the First Parliamentary Counsel can draft the Bill for stakeholder consultation.”1081 The proposed amendments will seek to incorporate the following principles: a. Realign the Uganda Wildlife Act Cap 200 with the 1995 Constitution as amended, the Oil and Gas Policy and laws, the Land Use policy and law, the National Environment Act, and all other laws of Uganda and developments which came after enactment of the Uganda Wildlife Act. b. Provide for compassionate contribution to victims of wild animal caused death and injuries occasioned outside Protected Areas. c. Provide for effective management of problem animals and vermin by Local Government, the Uganda Wildlife Authority and Communities. d. Clearly define and streamline roles and responsibilities of the Ministry responsible for wildlife, statutory bodies, other relevant Government Ministries and the Local Government. e. Provide for clarification of extent of liability of the Uganda Wildlife Authority in regard to wildlife-induced damage and Conservation Area land ownership. f. Review all offences and penalties relating to crimes against wildlife to make them effectively deterrent. g. Enhance effective Community and Local Governments' participation in the management of wildlife through rationalisation of use of revenue sharing funds and other resource access programs and establishment of Protected Area Community wildlife committees. h. Provide for sustainable utilisation of wildlife as a form of land use and livelihood enhancement with a focus on wildlife outside protected areas. i. Provide for the creation of Wildlife Conservancies where private land owners wish to be supported to enhance the conservation and management of wildlife on private land. j. Provide for special protection of wildlife species important for national development. k. Provide for effective control of national and international trade in wildlife to curb rising cases of poaching and associated illicit wildlife trade. 1081 Ibid. 239 l. Establish wildlife community committees comprised of Local Governments, Uganda Wildlife Authority and civil society to improve and harmonise working relations between Protected Area managers and local communities at a local level. m. Provide for an effective mechanism for management of wildlife outside Protected Areas. n. Provide for an effective mechanism for operationalisation of the wildlife fund established under the Wildlife Act.1082 According to Ugandan authorities, the revised Act is projected to provide for “bigger and more stringent penalties for wildlife offenders, which was not very deterrent and a major setback in the current law.”1083 2.2 Challenges to Legislation. 2.2.1 Lax enforcement of existing laws and a complacent judiciary Even though the Wildlife Act appears comprehensive and the punishments severe enough to (rationally) deter violators, the effectiveness of the Wildlife Act is largely dependent on the enforcement of the laws, which has been historically lax. Moreover, the judiciary has been reluctant to hand down stiffer sentences for wildlife crimes. As discussed more fully in Section 3.2 (Enforcement), the UWA attributes these challenges to law enforcement authorities (police, prosecutors, magistrates and wildlife wardens) not fully appreciating the severity of wildlife crimes. 2.2.2 Corruption Corruption is also a significant impediment to progress in curbing the illegal trade of wildlife. In 2013, Uganda was listed as the 38th most corrupt country in the world (out of 177 countries) ranked by Transparency International.1084 In particular, the Police and Judiciary were perceived as the two most corrupt institutions in Uganda followed by public officials and civil servants.1085 While the UWA generally appears extremely dedicated to its mission of protecting the country’s wildlife, it is not immune to elements of corruption or malfeasance. For example, in 2011, a UWA staff worker was fired and charged with the loss of ten pieces of ivory from the UWA store room between 2010 and 1082 Ibid. 1083 CITES, SC63, Doc. 18, Annex 4, REPORT FROM UGANDA - Report on measures being taken by Uganda to combat illegal ivory trade, available at 240 2011.1086 The case against the former employee and his accomplices appears to be on-going. Given the risk that employees might steal ivory from government stockpiles, Uganda should strongly consider destroying all existing stockpiles. While the UWA is the most steadfast defender of wildlife in the country, it unfortunately has to compete with other branches of the government seeking to profit from the illegal wildlife trade. It is believed that in April 2012, Ugandan military officers were responsible for the killing of 22 elephants within the Democratic Republic of the Congo’s (DRC) Garamba National Park.1087 The elephants were found clumped together, many killed by a single bullet to the top of the head. After spotting a Ugandan military helicopter flying very low over the park, on an unauthorised flight, park officials, scientists, and Congolese authorities believe the Ugandan military killed the elephants, taking away more than a million dollars' worth of ivory. 2.2.3 Rebel groups and organised crime funded through illegal wildlife trade The most prominent rebel warlord in Uganda, Joseph Kony, is the fugitive leader of the Lord’s Resistance Army (LRA) and has contributed to instability and violence throughout Uganda and central Africa by enlisting children into his army and killing many innocent civilians. It now appears that the LRA has turned to elephant poaching “as a means to sustain itself,” using funds acquired from illegally traded ivory to purchase food, arms, and ammunition.1088 While Kony is no longer believed to reside in Uganda, his presence in the region and reliance on ivory for funds, further complicates efforts to curb the ivory trade. 2.3 Species-specific legislation While the Wildlife Act serves as the primary vehicle for regulating trade in wildlife, Uganda has undertaken commitments at both the domestic and international level to curb the illegal trade in ivory from elephants. It remains likely that any reforms will be included in the proposed amendments Wildlife Act, but there are no set plans. Uganda’s efforts to control and prevent the trade of ivory remain critically important, although not necessarily for the number of elephants within the country. Instead, Uganda is being used as a key transit hub for illegally harvested ivory from surrounding nations. 2.3.1 Elephants in Uganda Today, Uganda is no longer home to a significant number of elephants. In the 1960s, approximately 30,000 elephants lived in Uganda, however that number 1086 UWA, UWA Committed To Fighting Illegal Trade In Ivory, available at 241 precipitously declined to 2,000 by 1983. By 2010, the number increased to 4,393.1089 In contrast to many of its neighbouring countries, Uganda can be deemed a recent success story rejuvenating its elephant population, while others steadily decline. In fact, according to the UWA, “reported poaching cases in 2013 dropped to just 11, down from 25 in 2012, largely as a result of substantially improved intelligence gathering and surveillance methods introduced to the UWA ranger force.”1090 Only Rwanda reported fewer elephant deaths from poaching in 2013.1091 2.3.2 Uganda as a transit point for the illegal ivory trade Uganda is increasingly being used as a key transit country for the illegal trade in ivory and other wildlife products, particularly from poachers who kill elephants in bordering states such as South Sudan and the Democratic Republic of the Congo.1092 This information is no secret to UWA officials and is openly broadcasted by the Authority with the news media to spread the word. On many occasions, traffickers caught with ivory confiscated in Mombasa, Kenya have said that the ivory comes from Uganda.1093 As recently as December 2013, UWA and Aviation Police seized a shipment at Entebbe International Airport destined for Malaysia through Lagos, containing 440 pieces of raw ivory (elephant tusks) and 372 pieces of crafted ivory (bungles and chop sticks).1094 Inspectors also found 15 rhino horns, which provides a strong indication that some of the ivory shipment comes from outside Uganda, which only has 14 rhinos left in the whole country.1095 Likewise, given Uganda’s relatively few total elephants and minimal annual elephant deaths recorded, the sheer quantity of ivory trafficked very likely comes from other countries.1096 As a country at the centre of the wildlife trade, Uganda must improve its border security to halt flow of ivory from neighbouring countries into Uganda for subsequent transit to high-demand markets. Fortunately some efforts are underway. 1089 See National Environment Management Authority (NEMA), State of Environment Report For Uganda 2010, at p. 104, available at 242 2.3.3 National action plan to address illegal trade in ivory In January 2013, Uganda submitted its report to CITES summarising its measures to combat illegal trade in ivory.1097 The report notes that Uganda does not allow a domestic ivory trade; all forms of ivory trading in Uganda, accordingly, are in contravention of the Uganda Wildlife Act and are illegal. The report describes Uganda’s efforts to control this illegal trade: (1) Interagency awareness workshops involving the judiciary, the police, the national army, intelligence organs, customs officials and wildlife officials; (2) acquisition of ivory detection tool kits; (3) establishment of an 80-man intelligence unit within the Uganda Wildlife Authority; (4) revision of the Wildlife Act with a view to domesticating and mainstreaming CITES into the national legislation; (5) intensifying collaboration between the Wildlife Authority and other security and law enforcement agencies; (6) intensifying covert and clandestine operations based on intelligence information; and (7) trans-boundary collaboration with wildlife agencies from other countries, particularly Kenya, Rwanda, and the DRC. At COP16 of CITES in March 2013, Uganda was one of eight countries—China and Thailand as end-user markets, Malaysia, Philippines and Vietnam as transit countries, and Kenya, Tanzania and Uganda as source and exit points in Africa— that agreed to develop action plans to address the illegal flow of ivory along the trade chain.1098 Uganda submitted its National Ivory Action Plan, including time frames and milestones, by the deadline of May 15, 2013. The CITES Standing committee requested Uganda (and others) to take urgent measures to put its plans into practice before July 2014, when the CITES Standing Committee will review its implementation. Each country’s plan specifies activities in the areas of legislation and regulations, national and international enforcement, outreach and public awareness.1099 Uganda’s National Ivory Action Plan1100 provides an outline of short-term measures (6-9 months) and long-term measures (by SC65 in June 2014) to be adopted to meet Uganda’s obligations under CITES. These measures essentially consist of those in Uganda’s report to CITES summarised above. Notably, Uganda hopes to have the amended Wildlife Act in place by June 2014. It is unclear whether all these measures have been adopted, but they appear to represent a good effort to combat trade in ivory. 1097 CITES, SC63, Doc. 18, Annex 4, REPORT FROM UGANDA - Report on measures being taken by Uganda to combat illegal ivory trade, available at 243 3. PENALTIES 3.1 Penalties for specific offences 3.1.1 Wildlife Act Chapter XII in the Uganda Wildlife Act regulates penalties for violations of the Act. Although the UWA has suggested that current penalties are not very deterrent, the penalties for all these offences are quite severe, often imposing minimum sentences of imprisonment. Specifically, the illegal international trade of wildlife has the highest sentence of all offences within the Wildlife Act. The most notable and relevant crimes and penalties for endangering wildlife are as follows: Prohibition Penalty General Penalty for Offences where no other First Offence: Fine of between penalty is specifically listed under the Act. UGX 30,000 (US$ 12.15) and Wildlife Act § 74. UGX 3,000,000 (US$ 1,215) and / or imprisonment of no less than 3 months. Wildlife Act § 74(a). Second Offence: Fine of between UGX 300,000 (US$ 121.50) and UGX 6,000,000 (US$ 2,430) and / or imprisonment of no less than 6 months. Wildlife Act § 74(b). Offences Related to Protected Species: A fine of at least UGX 1,000,000 (US$ 405) and/or up to 5 years' (a) taking (to drug, catch, capture, trap, or kill), imprisonment hunting, molesting or reducing into possession any protected species; In any case, the fine shall not be less than the value of the specimen (b) possession of, selling, buying, transferring or involved in the commission of the accepting in transfer specimen of protected offence Wildlife Act § 75. species; (c) contravention of the provisions of this Act which provide for the conduct of a licensee under a professional hunter’s licence or a professional trapper’s licence; or (d) violating any regulation governing acts or omissions within a Wildlife Conservation Area.1101 Wildlife Act § 75. 1101 While the Act does not specifically outline offences within a Wildlife Conservation Area, it empowers the Minister to create regulations that “may include”: (a) regulations on the use of weapons, traps, firearms, explosives or any other like device; (b) the conditions under which any person, vehicle, boat or aircraft may enter, travel through, reside or be in a wildlife conservation area; (c) regulations on lighting picnic fires, on the use of lamps or fires or a general prohibition on the use of fire in a wildlife conservation area; (d) control of the disposal of litter or waste; (e) the keeping of domestic animals in a wildlife conservation area; 244 Offences Relating to Import, Export or Re- A fine of not less than UGX export of Specimen of Protected Species: It is 10,000,000 (US$ 4,050) or an offence to either: imprisonment of not less than 7 years. (1) Import, export or re-export or attempt to import or re-export any specimen— (a) except through a customs post or port; The fine shall never be less than (b) without producing to a customs officer a the value of the specimen involved valid permit to import, export or re-export in the commission of the offence the specimen; Wildlife Act § 76. or (2) Violate regulations established by the Minister (in consultation with the Minister responsible for trade) imposing additional restrictions on imports, exports, re-exports, or transit of specimen, including the requirements under any convention or treaty.1102 Wildlife Act §§ 66, 67. In addition to the penalties mentioned above, the Act also creates a series of punishments governing confiscation of devices used in contravention of the Act, specimens acquired, forfeiture of profits from illegal trade, and surrender of licences, permits or certificates. If a person is convicted of an offence creating a fence, enclosure, excavation, or other device in the ground, the court must order the device to be destroyed.1103 Following conviction, a court is generally required to order the forfeiture of any specimen, domestic animal, weapon, trap, net, poison, material, motor vehicle, aircraft, boat, or article used in committing an offence.1104 The Act permits the executive director, upon taking possession of a dead specimen, to destroy, donate, or sell the specimen.1105 Where sold, the money is to go to a fund created to pay for the operations of the UWA.1106 Similarly, if a right-holder, licensee or permit/certificate-holder issued under the Act is convicted of an offence involving such licence, wildlife use right, permit or certificate, the court shall require the person to surrender it immediately to the executive director for disposition.1107 (f) control of the introduction of alien species of animals or plants; (g) control of the use of wildlife resources; (h) prohibition or control of commercial enterprises within a wildlife conservation area. Wildlife Act § 26. 1102 Despite our best efforts, we were unable to locate any regulations promulgated under this section. 1103 Wildlife Act § 77. 1104 Wildlife Act § 78. 1105 Wildlife Act § 83(2). 1106 Wildlife Act § 84. 1107 Wildlife Act § 82. 245 Uganda also has a unique forfeiture of profits provision, but it is unclear if courts actually use it in cases of wildlife crime. When a person is convicted of any offence involving the illegal trading in wildlife or wildlife specimens, including the killing of wild animals, and the court believes the person habitually engages in illegal wildlife trading, the court may require an audit of the person’s assets. After determining the proportion of those assets obtained through illegal wildlife trading, the court may subsequently (i) order the forfeiture of an equivalent amount in money, or (ii) require the sale of non-monetary assets, and any proceeds forfeited to the UWA.1108 3.1.2 Comparison to other domestic crimes When contrasted with other domestic criminal offences, wildlife crime in Uganda is treated as a serious offence, although not as harshly as many other punishments. As explained below, Uganda has quite severe penalties for a wide range of criminal offences, ranging from a year's imprisonment to punishment by death (which is available in many cases). Penalties for many of Uganda’s criminal offences are set forth in the Penal Code Act.1109 The Penal Code Act punishes crimes causing harm to people very severely. Quite a lot of offences, although some of them are considered major crimes in other countries, are punished with lifelong imprisonment or the death penalty, sometimes accompanied with a corporal punishment. These crimes range from murder and (attempted) robbery to (attempted) rape.1110 It is striking that for these offences, the Penal Code does not seem to leave any discretionary power to the court to decide on the severity of the punishment.1111 Crimes not causing bodily harm or death to a person are treated more leniently, although there are exceptions. Unlawfully taking an oath is liable for either the death sentence or imprisonment for life.1112 However, conspiracy to defraud is liable to imprisonment for three years.1113 The general punishment for theft does not exceed ten years1114 and disobedience of statutory duty may result in imprisonment for two years.1115 Subjectively speaking, the punishment for illegal trade of wildlife - imprisonment of minimally seven years - seems proportionate to the punishment for other crimes. It is not punished as severely as rape or murder, but it is also not treated as leniently as theft or conspiracy to commit fraud. Furthermore, the punishment for injuring animals is, dependent on the animal species, up to seven years' imprisonment.1116 1108 Wildlife Act § 81. 1109 Penal Code Act, available at 246 3.2 Enforcement 3.2.1 Lax enforcement and minimal penalties Prosecution of wildlife crimes has failed to effectively deter poachers and traffickers in large part because punishments levied and penalties available have not been severe enough.1117 Even if maximum penalties are a sufficient deterrent, they are rarely imposed. Further, there appears to be too much judicial discretion available, particularly for crimes without a minimum penalty. For example, when poachers killed an endangered mountain gorilla in the Bwindi Impenetrable National Park in 2011, the three suspects were given light fines (US$19), because the judge found there was a “lack of evidence.”1118 The UWA blamed these light fines on judicial officials not appreciating the severity of wildlife crimes. The three suspects, who were alleged to be notorious poachers, were allegedly laying traps in the protected forest, targeting antelopes, duikers and other edible animals, but caught the male gorilla instead and subsequently killed it with a spear.1119 The magistrate said the prosecution failed to produce enough evidence that the three killed the gorilla, noting that no DNA test was carried out linking the blood on one poacher’s spear to the gorilla (although she never invited any testimony regarding the gorilla’s post-mortem), and that none of the suspects were found at the scene of the crime.1120 She ultimately convicted one poacher of two counts of entering a protected area without authority and possession of illegal devices capable of killing wildlife species. He was given a fine of UGX 50,000 (US$19) on each count. The other two poachers were each convicted of one count of trying to escape arrest after running away on seeing police and given a fine of UGX 50,000 (US$19). Similarly, even successful efforts to prosecute wildlife crimes – where the judiciary explicitly appreciates the severity of the issue – seem to result in minimal fines. For example, 76 poachers were sentenced to a fine of UGX 100,000 (US$ 40) each or serving a four month prison sentence after pleading guilty to charges of illegal hunting and being in possession of wildlife species. The prosecution, led by the UWA, sought a “stiff sentence that would deter other[s],” and produced more evidence, including animal carcasses, dogs, spears, nets, pangas and other hunting gear. The magistrate ultimately agreed with the prosecution, fearing undeterred illegal hunting would lead to extinction of wildlife causing lost revenue to government from tourism and depriving future generations of their natural heritage.1121 Despite supposedly severe penalties provided under the Wildlife Act, actual enforcement suggests that serious punishments are lacking. 1117 CITES, SC63, Doc. 18, Annex 4, REPORT FROM UGANDA - Report on measures being taken by Uganda to combat illegal ivory trade, ¶ 4. 1118 UWA, UWA protests against the light sentence given to the Bwindi gorilla murderers, 247 3.2.2 Recognised need for greater enforcement Recognising that more needs to be done, Uganda has taken recent steps to better curb poaching and illegal wildlife trade. In 2013, the UWA established an Intelligence Unit with 80 trained officers placed in “strategic areas across the country to help prevent wildlife crimes as opposed to fire-fighting.”1122 Likewise, in December of 2013, Uganda participated in an “African Elephant Summit” held in Gaborone, Botswana where Uganda signed a declaration and committed to “implement 14 urgent measures to curb elephant poaching and illegal ivory trade in 2014.”1123 3.2.3 Law enforcement education leads to more stringent penalties for wildlife crimes Ugandan authorities have also taken measures to train and educate wildlife crime law enforcement personnel, which has in turn led to more stringent penalties handed out to wildlife criminals. Recognising the importance of raising awareness about the severity of wildlife crime among policy-makers, magistrates, and the police, Ugandan authorities adopted a new initiative to educate personnel with the goal of increasing wildlife-crime prosecutions. As noted in a report by Panthera: “In Uganda, for example, a joint initiative was recently undertaken by the Uganda Wildlife Authority and the Bushmeat-free Eastern Africa Network to train wildlife crime law enforcement partners, including police, prosecutors, magistrates and wildlife wardens on wildlife laws, the value of wildlife to the economy, and on challenges associated with prosecutions for wildlife crimes. That training resulted in a shift from minor penalties for first-time illegal hunters such as small fines (~US$10-20) or community service to custodial sentences of 6-12 months.”1124 4. ANCILLARY LEGISLATION 4.1 Overview Uganda has undertaken several major legislative initiatives over the past decade or so in an effort to curb state-level corruption. As a nation that scores in the highest tier on biodiversity, wildlife, and forest indices, Uganda is also “ranked as a corrupt and poorly governed state.”1125 In 2012, Uganda “topped the five countries in the East African Community . . . as the most corrupt” in a Transparency International assessment “that examine[d] frequency with which citizens reported being asked to pay bribes.”1126 Recently, $12.7 million in donor funds earmarked for rebuilding war-torn northern Uganda and Karamoja, Uganda’s poorest region, 1122 UWA, UWA Committed To Fighting Illegal Trade In Ivory 1123 Ibid. 1124 Panthera, Illegal Hunting & The Bushmeat Trade In Savanna Africa: Drivers, Impacts & Solutions To Address The Problem (2012), available at 248 was embezzled from Uganda’s Office of the Prime Minister.1127 Despite investigations into this incident and similar ones, “none of the high-ranking government officials who managed the implicated offices have faced criminal sanction.”1128 Rather, these officials have “remained in office, untouched,” while lower-level officials have faced prosecution.1129 Even when the high-ranking officials have been forced to resign from office, “such resignations have been temporary,” as the culpable individuals were eventually reappointed to key positions in government, “in what one diplomatic representative calls a ‘game of musical chairs.’”1130 In fact, since 1986, “only one minister has ever been convicted of a corruption- related offence”—and his verdict was overturned on appeal “after [President Yoweri Museveni] publicly offered to pay the defendant’s legal costs.”1131 Uganda’s vulnerable wildlife faces threats on multiple fronts, including from officials who disregard and violate with impunity the laws enacted to protect wildlife and from armed terrorist organisations like the Lord’s Resistance Army,1132 against whom these laws are rarely enforced. This section describes and considers legislation implemented to curb corruption in Uganda, including the Anti-Corruption Act of 2009, the Anti-Money Laundering Act of 2013, the Anti-Terrorism Act of 2002, and customs regulations enacted through the East African Community Customs Management Act of 2004 aimed at curbing the illegal trade of wildlife. 4.2 Legislation summary 4.2.1 Anti-Corruption Act of 20091133 The Anti-Corruption Act of 2009 (the “Act”), which was enacted on 15 August 2009, is intended “to provide for the effectual prevention of corruption in both the public and the private sector, to repeal and replace the Prevention of Corruption Act, to consequentially amend the Penal Code Act, the Leadership Code Act and to provide for other related matters.1134 The Act defines corruption as “the solicitation or acceptance, directly or indirectly, by a public official, of any goods of monetary value, or benefits . . . in exchange for any act or omission in the performance of his or her public functions”; “the offering or granting, directly or indirectly, to a public official, of any goods of monetary value, or other benefit . . . in exchange for any act or omission in the performance of his or her public functions”; “the diversion or use by a public official, for purposes unrelated to those for which they were intended, for his or her own benefit or that of a third party,” of any property of the state; the offering or soliciting of an “undue advantage” either from or by a public official; any participation as an accomplice 1127 Human Rights Watch and Allard K. Lowenstein International Human Rights Clinic, Report: “Letting the Big Fish Swim”: Failures to Prosecute High-Level Corruption in Uganda, 1, October 2013. 1128 “Letting the Big Fish Swim,” 1-2. 1129 “Letting the Big Fish Swim,” 2. 1130 “Letting the Big Fish Swim,” 2. 1131 “Letting the Big Fish Swim,” 3. 1132 Office of the Spokesperson, U.S. Department of State, Fact Sheet: The Lord’s Resistance Army, 249 or co-conspirator in these activities; “any act or omission in the discharge of his or her duties by a public official for the purpose of illicitly obtaining benefits for himself or herself or for a third party”; or, simply, “neglect of duty.”1135 Under the Act, “[c]orruptly procuring tenders”1136 or offering them to a public official is an offence, as is bribing a public official, diverting public resources, paying compensation to an aggrieved party, influence peddling, and failing to disclose a conflict of interest or obtaining material benefits from a conflict of interest as a public official.1137 Section II, part 20 of the Act defines the offence of “causing financial loss,” which is the most frequently prosecuted offence under the Act.1138 “Causing financial loss” applies to employees of the government, banks, insurance companies, or credit institutions who, in the performance of their duties, knowingly commit an act or omission that “causes financial loss” to the organisation.1139 4.2.2 Anti-Money Laundering Act of 2013 Because “Uganda’s geographic position in East Africa and its turbulent past has made it susceptible to being used as a transit point for illegitimate funds and resources,” the Ugandan Parliament enacted the Anti-Money Laundering Act of 2013 (the “Act”).1140 The Act is “restricted to financial institutions and not other areas like casinos, etc.”1141 The Act covers illegally obtained property and assets of many kinds, “including currency, monetary instruments, vehicles, aircraft, ships, art, gems, precious metals, land and legal documents or instruments evidencing title in such property or assets,” and as such would apply to illegal wildlife by-products as well.1142 4.2.3 Anti-Terrorism Act of 20021143 As a result of Uganda's geographic position, it is also susceptible to being used as a transit point for funds and resources used to destabilise other central African countries and to perpetuate war in these areas.1144 Arms trafficking involving 1135 Anti-Corruption Act of 2009, II, 2(a)-(i). 1136 Anti-Corruption Act of 2009, II , 4 1137 Anti-Corruption Act of 2009, II, 5-9(1)-(3) 1138 See infra § 1.2. 1139 Anti-Corruption Act of 2009, II, 20(1)-(2). 1140 Noah Edwin Mwesigwa and Brigitte Kusiima, Uganda Law Society, Uganda Chamber of Commerce, A general review of the Anti- Money Laundering Bill 2009, 250 Somalia, Sudan and eastern Democratic Republic of Congo is prevalent.1145 Human trafficking (including children) and smuggling (including protected species) are significant components of cross-border criminal activity in central Africa, and Uganda is often used as a staging ground for these activities.1146 The Anti-Terrorism Act of 2002 (the “Act”), which came into force on 7 June 2002, applies to all financial institutions and their intermediaries in Uganda.1147 The Act criminalises terrorism and its financing in Uganda.1148 The Act requires financial institutions and law enforcement authorities to monitor compliance, and financial institutions are compelled to adhere to anti-money laundering guidelines aimed at combatting money laundering and terrorism as a predicate offence.1149 Financing terrorism is a crime under the Act.1150 To avoid being party or privy to this offence, donors must ensure that funds and resources intended for religious or cultural purposes are not used to finance terrorism or diverted to other purposes.1151 4.2.4 Customs Enforcement Regulations—East African Community Customs Management Act of 20041152 The East African Community Customs Management Act of 2004 (the “Act”) regulates the importation and exportation of goods to and from Uganda, an East African Community Member State.1153 The Act governs prohibited and restricted goods, among other things; “restricted goods” are goods that are prohibited, save for any conditions regulating their importation or exportation.1154 Export products that are restricted—but not outright prohibited—include: elephant ivory, hippopotamus teeth, and rhinoceros horns either uncut or “simply prepared but not cut to shape”; “ivory powder and waste”; tortoise shell, whalebone and whalebone hair, “horns, antlers, hoovers [sic], nails, claws and beaks unworked or simply prepared but not cut to shape, powder and waste of these products”; “worked ivory and articles of ivory”; “bone, tortoise shell, horn, antlers, coral, mother-of-pearl, and other animal carves”; and “endangered species of world fauna and flora and their products in accordance with CITES March 1973 and amendments thereof.”1155 1145 Uganda: Report on Observance of Standards and Codes—FATF Recommendations for Anti-Money Laundering and Combating the Financing of Terrorism, 1. 1146 Uganda: Report on Observance of Standards and Codes—FATF Recommendations for Anti-Money Laundering and Combating the Financing of Terrorism, 1. 1147 Mwesigwa and Kusiima, 1. 1148 Mwesigwa and Kusiima, 1. 1149 Mwesigwa and Kusiima, 1. 1150 Anti-Terrorism Act of 2002, Part V, Sections 12–16. 1151 Ibid. 1152 Customs Management Act (2004), 251 4.3 Penalties and enforcement The Anti-Corruption Act of 2009 grants both the Inspectorate of Government and the Directorate of Public Prosecutions the power to prosecute offences under the Act; as a result, prosecutors from both offices can prosecute cases before the Anti-Corruption Court.1156 By law the Inspector General of Government can prosecute only government officials, while the Directorate of Public Prosecutions can prosecute both government officials and private citizens.1157 One of the most commonly prosecuted offences under the Anti-Corruption Act, along with “causing financial loss,” is “abuse of office.”1158 Abuse of office can result in “conviction to a term of imprisonment not exceeding seven years or a fine not exceeding one hundred and sixty eight currency points or both.”1159 Causing financial loss can result in “conviction to a term of imprisonment not exceeding fourteen years or a fine not exceeding three hundred and thirty six currency points or both.”1160 Similarly, embezzlement can result in “a term of imprisonment not exceeding fourteen years or a fine not exceeding three hundred and thirty six currency points or both,”1161 and the offences of corrupt transactions with agents, corruptly procuring tenders, bribery of a public official, diversion of public resources, payment of compensation to an aggrieved party, influence peddling, sectarianism, and nepotism can result in “a term of imprisonment not exceeding ten years or a fine not exceeding two hundred and forty currency points or both.”1162 Other penalties under the Anti-Corruption Act—dispensed at the discretion of the authority handing out the penalty—include: paying a fine in the amount of a bribe received, enduring restrictions on bank accounts, and paying additional compensation to victims.1163 Under the Anti-Terrorism Act of 2002, “[a]ny person who aids or abets or finances or harbours, or in any other way renders support to any person, knowing or having reason to believe that the support will be applied or used for or in connection with the preparation or commission or instigation of acts of terrorism, commits an offence and shall, on conviction, be sentenced to death.”1164 Section 16 of this Act provides for the forfeiture; upon obtaining a court order, of terrorist assets, and Sections 9, 10, and 11 provide that the sentence prescribed for the supplying of weaponry or explosives to terrorists or terrorist organisations is death on conviction.1165 1156 Anti-Corruption Act of 2009, III, 33(1)-(4). 1157 Anti-Corruption Act of 2009, IV. 1158 “Letting the Big Fish Swim,”36. 1159 Anti-Corruption Act of 2009, II, 11(1). 1160 Anti-Corruption Act of 2009, II, 20(1). 1161 Anti-Corruption Act of 2009, II, 19(d)(iii). 1162 Anti-Corruption Act of 2009, III, 26(1)-(2). 1163 Anti-Corruption Act of 2009, III, 27; III, 34(1); III, 35(1)-(4). 1164 Anti-Terrorism Act of 2002, Section 10. 1165 Anti-Terrorism Act of 2002, Section 9-11. 252 4.4 Relationship with principal legislation The Anti-Corruption Act served to amend Uganda’s Penal Code by repealing Sections 85, 86, 87, 88, 89, 90, 91, 92, 93, 268, 269, 322, 325 and 326.1166 Under the Anti-Corruption Act, however, the “lack of definitional precision grants discretion to prosecutors to interpret corruption crimes and opens the door to allow political motives to drive cases,” and so it is applied unevenly and does not function as the deterrent it was intended to be.1167 4.5 Additional information Although the penalties set out by Uganda’s broad anti-corruption legislation can be severe, they do not seem to function as a substantial deterrent, as corruption remains a critical problem in Uganda. 5. JUDICIAL PROCESS AND CAPACITY The general judicial process for minor, petty crimes is usually followed for wildlife crimes. While discussions are underway to increase penalties and fines for wildlife crimes, the current system in Uganda has little deterrent effect in stopping smugglers from using the airports and ports in Uganda as an exit point for illegally obtained ivory or other poached wildlife. 5.1 Judicial process Generally, Uganda’s legal system is a common-law system similar to the one followed in the United Kingdom.1168 Within this system, there is no special court or tribunal for the prosecution of wildlife crimes. The Wildlife Act nonetheless establishes a wildlife appeals tribunal for persons impacted by UWA decisions denying, granting, limiting, suspending or revoking a wildlife use right.1169 A decision of the wildlife appeals tribunal may be appealed to the High Court of Uganda.1170 Uganda’s judicial process for the prosecution of wildlife crimes starts where most cases begin – in the local magistrates' courts. The Magistrates' Court is responsible for trying all cases except those criminal cases for which the death penalty may be imposed.1171 There are three levels of local magistrates' courts known as Chief Magistrates, Magistrates Grade I, and Magistrates Grade II. Grade II Magistrates are required to have a diploma in law, and Grade I Magistrates must be qualified lawyers holding both a law degree and a diploma in legal practice. It is the stated intent of the Ugandan Government to phase out Grade II Magistrates so as to “professionalize the bench.”1172 1166 Anti-Corruption Act of 2009, VIII, 69. 1167 “Letting the Big Fish Swim,” 4. 1168 General Information: The Ugandan Legal System, available at 253 Under the Uganda Magistrates Court Act of 1971, Grade II Magistrates did not have the authority to try certain offences arising out of the Game (Preservation and Control) Act, the predecessor act to the Uganda Wildlife Act. In 1996, the Uganda Wildlife Act repealed the Game Act, and appears to have changed this limitation to allow cases to be tried in any magistrates' court.1173 Likewise, the 2007 amendment of the Magistrates Court Act seems to have eliminated the restrictions as well.1174 5.2 Prosecutions While reference has been made in news stories1175 to persons being charged with crimes under the Uganda Wildlife Act and in press releases1176 to enforcement measures undertaken by the Uganda Wildlife Authority, there are no reported cases referencing any prosecutorial action against anyone for poaching, smuggling, or other illegal activities under the Uganda Wildlife Act. In light of this fact alone, one can conclude that the possibility of prosecution does not seem to act as a deterrent because it is difficult to conclude that any prosecutions can occur. 5.3 Appeals Should an appeal result from a Magistrate Court decision, the first court to which a person appeals is the High Court of Uganda.1177 The High Court of Uganda is established by Article 138 of the Ugandan Constitution. If that court renders a decision that is not accepted by one of the appellants, the next step in the appellate process is to petition the Uganda Court of Appeal.1178 The court serving as the court of last appeal is the Uganda Supreme Court.1179 5.4 Judicial capacity From all indications, Uganda has undertaken efforts to increase its judicial capacity. For example, the Ugandan Parliament has expanded the number of justices on the Uganda Supreme Court to ten justices (not including the Chief Justice) even though the minimum number required is seven justices (again, not including the Chief Justice).1180 This expansion was necessitated by increasing caseloads and, more to the point, increasing case backlogs within the judicial system.1181 Despite legal requirements to move cases along quickly, caseloads have risen sharply and are increasing. Thus, it may not be possible to meet the goal of eliminating the lower level magistrates' courts for the time being. 1173 It does not appear that the Uganda Wildlife Act attempts to define which court or courts have jurisdiction over offences under the Act. 1174 Magistrates' Courts (Amendment) Act (2007), Act 7, http://www.ulii.org/content/magistrates-courts-amendment-act-2007. 1175 For example, 254 6. CONCLUSIONS AND RECOMMENDATIONS The authors of this report believe that the Uganda Wildlife Act provides a framework for addressing illegal wildlife trade that (1) is potentially fairly comprehensive, generally allowing for the implementation of CITES standards and objectives; (2) on the face of the statute provides for penalties that, if enforced, could substantially deter illegal wildlife trading; and (3) allows room for economic development of wildlife resources, including ecotourism, which could lessen the economic pressures supporting the illegal trade. As to all three of these aspects, however, there is ample room for Uganda to make further progress. With respect to the scope of the Wildlife Act, an important present deficiency is its lack of full compliance with CITES requirements. Although CITES sources have not made clear precisely in what respect Uganda’s legislation is out of compliance, it appears to lack one or more of (1) prohibitions in trade in specimens in violation of the CITES Convention, (2) penalties for such trade, or (3) provisions for confiscation of specimens illegally traded or possessed. Although Uganda is currently considering amendments to the Wildlife Act that, if approved, would lead to full implementation of CITES, there is no draft legislation to date. United for Wildlife, if it has the resources, could usefully bring them to bear to monitor and encourage Uganda to carry through with these amendments and reach full compliance with CITES. With respect to penalties provided under Ugandan law for crimes associated with the illegal wildlife trade, penalties provided by the Wildlife Act are in most instances severe. However, in other instances, the range of penalties for an offence can be quite wide given the lack of a minimum jail sentence. Moreover, as with “Offences Related to Protected Species” under Wildlife Act § 75, a range of crimes are lumped into one penalty range. Thus, judges and prosecutors may have too much discretion to impose penalties commensurate with their personal beliefs on the importance of wildlife crimes. Consistent with these fears, news reports and other information indicate that enforcement has been uneven, if not generally problematical. Accordingly, we recommend increasing the minimum penalties available for most crimes and perhaps differentiating between more serious crimes like hunting, killing, or trading a protected species and lesser crimes such as molesting a protected species. Uganda has enjoyed recent success protecting wildlife within the country, especially elephants. Nonetheless, Uganda is used as a transit hub for the illegal trade of wildlife from surrounding countries destined for African ports and Southeast Asian markets. Stricter penalties, perhaps such as those recently enacted in Kenya imposing up to life imprisonment, could more effectively deter wildlife crime. Uganda may also want to consider including stricter penalties for repeat offenders. We note that there is evidence Ugandan authorities have begun taking measures to train and educate wildlife crime law enforcement personnel with a view to ensuring more prosecutions. These measures have been highly successful at increasing the punishments imposed against wildlife criminals. Ugandan authorities need to be encouraged and supported to continue with these measures. 255 With respect to economic issues relating to wildlife trade, we note with respect the publications co-authored by Dr. Yakobo Moyino, such as Opportunities and Strategies of Wildlife Trade Sector in Uganda1182 and Uganda Ecotourism Assessment,1183 which present concrete proposals for enhancing ecotourism and lawful and sustainable wildlife trade in Uganda. These or similar measures could potentially be a “win/win,” both creating economic incentives to encourage the survival and not destruction of wildlife and reducing some of the economic pressure supporting illegal wildlife trade. Dr. Moyino is now deceased and the authors of this report were not able to determine the present status of his proposals. Conservation organisations, however, if they have the resources, may consider trying to advance economic measures such as Dr. Moyino advocated. Corruption remains a significant concern, and according to non-governmental studies, is viewed to pervade many areas of civil society, including the judiciary, police, and many levels of government. Although the UWA is generally the last line of defence against wildlife crimes in Uganda, there have been instances where UWA staff have been found to sell confiscated ivory. While it may be difficult to root out corruption, we recommend that Uganda crush all ivory stockpiles (not being used as evidence for prosecution) to prevent further opportunities for corruption. We also note that other members of the government, such as the military, are involved in illegal wildlife hunting and trafficking. Harsher measures and enforcement needs to be carried out uniformly across the government. Uganda has a good foundation in place to combat the illegal trade of wildlife. Efforts aimed at combatting this trade must focus on strengthening institutions, educating wildlife crime law enforcement personnel, and reforming the Uganda Wildlife Act to fully meet CITES and provide for stricter penalties. We emphasise again that now is a prime opportunity to achieve many of these goals while the Ugandan Government considers large-scale changes to the Wildlife Act. 1182 Dr. Yakobo Moyini and Moser Masiga, Opportunities and Strategies of Wildlife Trade Sector in Uganda (2006), available at 1183 Dr. Yakobo Moyini, Uganda Eco Tourism Assessment (2006), available at 256 VIETNAM Team Leader and Editor - Brian Gordon - DLA Piper Team Members - Georgia Brooks, Roya Dehbonei, Rita Flakoll, Kim van der Togt - DLA Piper 257 1. EXECUTIVE SUMMARY Vietnam's numerous domestic laws aimed at protecting wildlife provide a legal and moral basis for wildlife protection but in practise they are not an effective deterrent to engaging in the illegal wildlife trade.1184 Effective prosecutions are hindered by various factors including corruption, limited cooperation with other countries, insufficient resources and equipment, and a shortage of trained lawyers, judges and enforcement personnel. Although there is some evidence to suggest an increased recognition of the importance of protection for endangered species on the part of the Vietnamese law enforcement agencies, the penalties imposed on those found guilty are not severe enough to outweigh the financial attraction of engaging in this lucrative, illegal trade. Furthermore, legal loopholes and ambiguities in the law may also deter law enforcers from pursuing offenders, allowing those guilty of such crimes to escape meaningful sanction. 2. PRINCIPAL LEGISLATION 2.1 Legislation summary 2.1.1 Decree on Management of export, import, re-export, introduction from the sea, transit, breeding, rearing and artificial propagation of endangered species of precious and rare wild fauna and flora (Decree 82/2006/ND-CP)1185 As of 15 June 2012, Vietnam has been identified as one of the countries that has enacted domestic legislation that is believed to generally meet the requirements for implementation of CITES.1186 CITES has been implemented in Vietnam by Decree 82/2006/ND-CP.1187 This Decree was enacted in 2006, and is secondary legislation (meaning that it has been made by an executive authority under powers given to them by primary legislation in order to implement and administer the requirements of that primary legislation). The Decree sets out several provisions in relation to the import and export of wildlife.1188 It applies to all species mentioned in Appendices I, II and III to CITES and to the specimens of endangered species of precious and rare wild fauna and flora in the Vietnamese territory.1189 Organisations, households and individuals that commit acts in violation of this Decree's provisions on import, export, re-export, transit and introduction from the sea shall - depending on the nature and seriousness of their violations - be administratively sanctioned. Individuals may also be investigated for criminal liability under current provisions of law.1190 The Decree itself does not contain any mandatory or recommended sentences or any criteria with which it could be determined whether administrative or criminal sanctions should apply. 1184 www.traffic.org/general-pdfs/Dismantling-Wildlife-Crime.pdf (14th November 2012) (accessed 6 February 2014). 1185 http://www.moj.gov.vn/vbpq/en/Lists/Vn%20bn%20php%20lut/View_Detail.aspx?ItemID=5158 (accessed 6 February 2014). 1186 Convention on International Trade in Endangered Species of Fauna and Flora (“CITES”), SC 62, Doc. 23. 1187 http://vbpl.vn/tw/Pages/vbpqen-toanvan.aspx?ItemID=5170&Keyword=on Management of export, import, re-export, introduction from the sea, transit, breeding (accessed 6 February 2014). 1188 Ibid. 1189 See Article 1 of Decree 82/2006/ND-CP - http://vbpl.vn/tw/Pages/vbpqen-toanvan.aspx?ItemID=5170&Keyword=on Management of export, import, re-export, introduction from the sea, transit, breeding (accessed 6 February 2014). 1190 Article 25(3) Decree 82/2006/ND-CP - as above. 258 2.1.2 Decree on Management of endangered, precious and rare forest plants and animals (Decree 32/2006/ND-CP)1191 This Decree was enacted in 2006 and is secondary legislation. It applies to the management and the list of endangered, precious and rare forest plants and animals from Vietnam's forests. The Decree makes a distinction between two groups of plants and animals. Group I consists of plants and animals that are strictly banned from exploitation and use for commercial purposes, including forest animals of scientific or environmental value or high economic value, with very small populations in nature, or in high danger of extinction. Group II consists of forest plants and animals that are restricted from exploitation or use for commercial purposes, including forest animals of scientific or environmental value or high economic value, with small populations in nature, or in danger of extinction.1192 Some provisions of the Decree apply to both groups, while other provisions make distinctions between them. Organisations and individuals that commit acts in violation of this Decree's provisions on management of endangered, precious and rare forest plants and animals shall, depending on the nature and seriousness of their violations, be liable to administrative sanctions.1193 Individuals in violation of the Decree may be investigated for criminal liability according to current provisions of law. The Decree itself does not contain any sentences or any criteria by which it could be determined whether administrative or criminal sanctions should apply. 2.1.3 Penal Code (No. 15/1999/QH10)1194 The Penal Code of Vietnam (no. 15/1999/QH10) was enacted in 1999. In 2009, changes to the Penal Code were made by the Law Amending and Supplementing a Number of Articles of the Penal Code (No. 37/2009/QH12).1195 The Penal Code is primary legislation. Article 190 of the Penal Code relates to the illegal trade of wildlife, and makes it illegal to hunt, kill, transport, raise, cage or traffic in animals on the list of endangered, precious and rare species prioritised for protection.1196 It is also illegal to transport or traffic in body organs or products of these animal species. The sentences for these types of criminal offences are either a fine between VND 50,000,000 (approx. USD 2,371) and VND 500,000,000 (VND) (approx. USD 23,714),1197 non-custodial reform of up to three years or a prison term of between six months and three years. 1191 http://vbpl.vn/TW/Pages/vbpqen-toanvan.aspx?ItemID=5799 (accessed 6 February 2014). 1192 See Article 2(2) of Decree 32/2006/ND-CP for a definition of Group I and Group II - http://vbpl.vn/TW/Pages/vbpqen- toanvan.aspx?ItemID=5799 (accessed 6 February 2014). 1193 See Article 10 of Decree 32/2006/ND-CP - http://vbpl.vn/TW/Pages/vbpqen-toanvan.aspx?ItemID=5799 (accessed 6 February 2014). 1194 http://moj.gov.vn/vbpq/en/Lists/Vn%20bn%20php%20lut/View_Detail.aspx?ItemID=610 (accessed 6 February 2014). 1195 http://vbqppl.moj.gov.vn/vbpq/en/Lists/Vn%20bn%20php%20lut/View_Detail.aspx?ItemID=10467 (accessed 6 February 2014). 1196 See Article 190(1) of the Penal Code - http://moj.gov.vn/vbpq/en/Lists/Vn%20bn%20php%20lut/View_Detail.aspx?ItemID=610 (accessed 6 February 2014). 1197 Throughout this country report, the following conversation rate has been used: 1 VND = 0.0000474 USD as obtained from www.xe.com (accessed 6 February 2014). 259 The above prison sentences may be increased by a further two to seven years if certain aggravating factors are present,1198 such as where the offence is committed: • in an organised manner; • through abusing positions and powers; • using banned hunting tools or devices; • hunting in no-hunting zones or seasons; or • causing very serious or particularly serious consequences. Further penalties may also be imposed,1199 including a fine of between VND 10,000,000 (approx. USD 474) and VND 100,000,000 (approx. USD 4,743), and prohibitions from holding certain posts, practicing certain professions, and from performing certain jobs for a period of between one to five years. Article 190 was supplemented in 2009. Before 2009, the maximum fine that could be imposed ranged from VND 5,000,000 (approx. USD 237) to VND 50,000,000 (approx. USD 2,371). 2.1.4 Decree on Penalties Imposed on Administrative Penalties in Respect of Environmental Protection (Decree 179/2013/ND-CP)1200 This Decree was enacted in 2013 and is secondary legislation. It regulates, amongst other things, which administrative penalties can be imposed on whom and under what circumstances. Article 4 of this Decree sets forth the applicable administrative penalties for violation of regulations in the Decree. Individuals and organisations that violate regulations on environmental protection shall be given one of the following penalties: a strong warning, or a maximum fine of VND 1 billion (approx. USD 47,528) if the offender is an individual or a maximum fine of 2 billion VND (approx. USD 95,056) if the offender is an organisation. Additional penalties consist of having exhibits and vehicles confiscated or withdrawing the farming certificate of endangered, rare, precious and priority wildlife species. Article 42 stipulates maximum fines for persons that illegally keep body parts and products of wildlife species that are listed as endangered and rare. The maximum fine depends on the worth of the specific exhibits. If the exhibits are worth less than VND 500,000 (approx. USD 23), the person will only receive a strong warning. If the exhibits are worth between VND 500,000 (approx. USD 23) and VND 1,500,000 (approx. USD 71), the maximum financial fine for an individual will be between VND 2,000,000 (approx. USD 95) and VND 5,000,000 (approx. USD 237). The maximum fine for this type of offence for an individual is 1198 See Article 190(2) of the Penal Code - http://moj.gov.vn/vbpq/en/Lists/Vn%20bn%20php%20lut/View_Detail.aspx?ItemID=610 (accessed 6 February 2014). 1199 Under Article 190(3) of the Penal Code - http://moj.gov.vn/vbpq/en/Lists/Vn%20bn%20php%20lut/View_Detail.aspx?ItemID=610 (accessed 6 February 2014). 1200 In relation to this Decree, we have only been able to find an unofficial and partial translation that was drafted by Education for Nature - Vietnam (ENV): http://envietnam.org/images/News_Resources/Law_library/decree_179.pdf (accessed 6 February 2014). 260 between VND 450 million (approx. USD 21,387) and VND 500 million (approx. USD 23,764). This can only be imposed if the exhibits are worth more than VND 170,000,000 (approx. USD 8,079) All these maximum fines can be doubled if the offence has been committed by an organisation. As an additional penalty, the exhibits can also be confiscated. Article 43 of this Decree provides similar fine ranges for persons that illegally exploit wildlife species that are not listed as endangered, rare, precious and priority species. The illegal exploitation of wildlife includes acts such as hunting, catching and keeping wildlife species, including wild animals (Article 3). If the exhibits are worth less than VND 500,000 (approx. USD 23), the person that has illegally exploited wildlife will only receive a strong warning. The maximum penalty becomes higher if the exhibits are worth more. The maximum penalty for individuals is between VND 400 million (approx. USD 19,011) and VND 500 million (approx. USD 23,764) if the exhibits are worth more than VND 200 million (approx. USD 9,505). The exhibits can also be confiscated. 2.1.5 Law on Forest Protection and Development (No. 29/2004/QH11)1201 This Law came into effect in 2005. It is primary legislation and provides for the management, protection, development and use of forests and for forest owners' rights and responsibilities. This Law sets out a list of prohibited acts,1202 including illegally hunting, shooting, catching and trapping forest animals, and illegally transporting, processing, advertising, trading in, exporting and importing forest plants and animals. Whilst it does not explicitly set out a sentence, it states that persons who carry out prohibited acts such as illegally hunting forest animals or trading in forest products shall be subject to administrative proceedings or investigated for criminal liability according to current legal provisions, depending on the nature and seriousness of the violations.1203 It also provides that persons who violate this Law, and as a consequence cause damage to the State, organisations, households or individuals may have to pay compensation for such damage, in accordance with current legal provisions.1204 2.1.6 Biodiversity Law (No 20/2008/QH12)1205 This Law came into effect on 1 July 2009. It is primary legislation. Article 7 of this Law prohibits various acts including hunting, fishing and exploiting wild species in protected conservation zones,1206 and in relation to the list of endangered precious and rare species prioritised for protection it prohibits hunting, fishing, exploiting bodily parts, illegal killing, consuming, transporting, 1201 http://www.moj.gov.vn/vbpq/en/Lists/Vn%20bn%20php%20lut/View_Detail.aspx?ItemID=7317 (accessed 6 February 2014). 1202 See Article 12, http://www.moj.gov.vn/vbpq/en/Lists/Vn%20bn%20php%20lut/View_Detail.aspx?ItemID=7317 (accessed 6 February 2014). 1203 See Article 85(1), http://www.moj.gov.vn/vbpq/en/Lists/Vn%20bn%20php%20lut/View_Detail.aspx?ItemID=7317 (accessed 6 February 2014). 1204 See Article 86, http://www.moj.gov.vn/vbpq/en/Lists/Vn%20bn%20php%20lut/View_Detail.aspx?ItemID=7317 (accessed 6 February 2014). 1205 http://www.moj.gov.vn/vbpq/en/Lists/Vn%20bn%20php%20lut/View_Detail.aspx?ItemID=10503 (accessed 6 February 2014). 1206 Except for scientific research purposes, see Art 7(1), as above. 261 purchasing and selling.1207 Whilst the Law does not provide for the possibility of criminal or administrative sanctions, it does stipulate that organisations or individuals that cause damage to biodiversity (e.g. to species on the list of endangered precious and rare species) shall pay damages in accordance with law.1208 2.1.7 Inter-agency Circular outlining guidelines for the application of certain articles in the Criminal Code to violations of forest protection and management laws (No 19/2007)1209 This Circular provides guidance in relation to, amongst others, the application of Article 190 of the Vietnam Penal Code.1210 The Circular is secondary legislation and was enacted in 2007. It has been adopted by several government agencies, including the Ministry of Agriculture and Rural Development, the Ministry of Justice and the Supreme Court. The Circular first specifies the scope of the criminal offences mentioned in Article 190(1) of the Penal Code. This Article refers to endangered, precious and/or rare wildlife. The Circular indicates that this refers to wildlife that is listed in Group 1B of Decree 32/2006/ND-CP.1211 The Circular also provides guidance in relation to the word "illegal" in Article 190 of the Penal Code. It states that to hunt, kill, transport or trade precious and/or rare wildlife, or the products of such species, without a permit from an authorised state agency, or with a permit but in a manner that exceeds the boundaries of the permit, is to do so illegally.1212 As discussed above,1213 the Penal Code sets out certain aggravating factors which can result in a sentence for breach of wildlife protection regulations to be more severe, such as where the offence causes serious or very serious consequences. The Circular provides guidance in relation to what constitutes ''serious'', ''very serious'' and ''extremely serious'' by reference to the number/volume of endangered, precious or rare species affected by the offence, or the value of the products that constitute the offence. It does this by reference to an Appendix which sets out the number of ''individuals'' of a particular species affected by the offence which determines whether the offence has caused ''serious'', ''very serious'' or ''extremely serious'' consequences. For example: illegally trading one to two flying lemurs constitutes ''serious consequences'' whereas illegally trading more than five constitutes ''extremely serious consequences''. The guidance also takes into account the endangered status of the species when determining the categorisation of seriousness, and thus the severity of punishment, for example: illegally trading four or more individual leopard cats is considered as having the 1207 See Art 7(4), as above. 1208 See Art 75, as above. 1209 We have only been able to find and review an official translation by ENV: http://envietnam.org/library/Law%20articles/Circular_19_Joint_Circular_on_application_of_criminal_code_to_forest_Protection_and_Man agement_July_6_2007.pdf (accessed 6 February 2014). 1210 As discussed above at paragraph 2.1.3. 1211 This Decree was discussed above at paragraph 2.1.2. 1212 See 4.1 of the Circular - http://envietnam.org/library/Law%20articles/Circular_19_Joint_Circular_on_application_of_criminal_code_to_forest_Protection_and_Man agement_July_6_2007.pdf (accessed 6 February 2014). 1213 See paragraph 2.1.3 above, where Article 190(2) of the Penal Code is further discussed. 262 same ''extremely serious consequences'' as illegally trading just one individual Indochinese tiger. In summary, the guidance suggests that factors such as (1) the value of the products derived from rare and precious wildlife species, (2) the number of species affected, and (3) the endangered status of that species are all principal factors when sentencing an offender under Article 190 of the Penal Code. 2.2 Challenges to principal legislation Various conservation bodies have expressed criticism in relation to the legal framework regarding the illegal trade of wildlife in Vietnam, and much of this commentary focuses on either enforcement issues or on challenges to species-specific legislation. These topics will be discussed in paragraph 2.4 (challenges to species specific legislation) and paragraph 3.3 (enforcement). According to commentator Kristin Sumrall,1214 an important challenge is that a classic socialist policy exists in Vietnam that exempts certain people from being harshly prosecuted. For example, poor people, women that are divorced or widowed, and members of ethnic minority groups frequently benefit from not getting a fine or a prison sentence. When they are caught, they are asked not to do it again. This practice is directly at odds with the legal framework that is aimed at protecting threatened and endangered species. In relation to the endangered species that are listed in Decree 32/2006/ND-CP, most enforcement personnel are not trained or equipped to identify these species.1215 This contributes to the ineffectiveness of this legislation. 2.3 Species-specific legislation 2.3.1 Chapter 2 of Decree 160/2013/ND-CP1216 This sets out criteria for the identification and management of endangered, rare and precious species prioritised for protection. It takes effect from 1 January 2014. The species must satisfy the following criteria to be put on the list: the quantity of individuals is few or in danger of extinction; and being an endemic species, or being of special value to science, medicine, economy, ecology, environmental landscape or cultural history. 1214Kristin A. Sumrall, "Confronting Illegal Wildlife Trade in Vietnam: The Experience of Education for Nature-Vietnam". April 2009, 9-10, 263 2.3.2 Article 2 of Decision 95 QD/2008/BNN-KL1217 This prohibits: hunting, trapping, catching, buying, selling, killing, transporting, advertising, export, import, temporary import, re-export of bears, bear products and derivative from bears; and keeping bears in captivity unless they are registered, have a microchip, are legal in origin, and are kept with facilities that meet the requirements of the regulation. 2.4 Challenges to species-specific legislation 2.4.1 Rhinos TRAFFIC has provided much detailed criticism on the legislation that applies to the illegal trade of rhino horn:1218 There is a need to review penalties for illegal rhino horn trade. Current penalties for rhino horn smuggling, possession or trade need to be evaluated and updated in order to make sure they can act as an effective deterrent. This is very relevant considering the escalating prices for rhino horn on the Vietnamese market. Developing and implementing bilateral treaties in order to promote collaborative law enforcement action is important. A strict regulatory mechanism in order to track legal rhino horn trophies is needed. Pseudo-sport hunting in South Africa by Vietnamese hunters has resulted in many rhino horns being imported in Vietnam legally. Legal rhino horn trophies in the private sector are necessary according to TRAFFIC. However, possession should only be allowed if special permits are acquired. 2.4.2 Bears The organisation Animals Asia has expressed concern in relation to bears that are farmed for bear bile. Although bear hunting and trading in bear parts and bile products is illegal in Vietnam, there is a loophole in the legislation: it is permitted to keep bears as pets and to display them to tourists. According to Animals Asia, many farmers are known to exploit that loophole and bear farming is a thriving industry.1219 1217 We have only been able to find and review an official translation by ENV, (accessed 6 February 2014): http://envietnam.org/library/Law%20articles/Regulation_No_%2095_replacing_No_%2047_on_captive_bear_management.pdf 1218 TRAFFIC, "The South Africa - Vietnam Rhino Horn Trade Nexus: A deadly combination of institutional lapses, corrupt wildlife industry professionals and Asian crime syndicates", 2012, 115. www.traffic.org/species-reports/traffic_species_mammals66.pdf 147. 1219 https://www.animalsasia.org//intl/our-work/end-bear-bile-farming/what-is-bear-bile-farming/overview.html (accessed 6 February 2014). 264 3. PENALTIES 3.1 Penalties in principal legislation and species-specific legislation 3.1.1 Article 190 of the Penal Code (No: 15/1999/QH10)1220 prescribes, for those who illegally hunt, kill, transport, raise, cage or traffic in animals on the list of endangered, precious and rare species prioritised for protection or illegally transport or traffic in body organs or products of these animal, a penalty between VND 50,000,000 (approx. USD 2,371) and VND 500,000,000 (approx. USD 23,714), non-custodial reform for up to three years or a prison term of between six months and seven years.1221 3.1.2 Decree 179/2013/ND-CP Governmental Decree on Penalties Imposed on Administrative Penalties in Respect of Environmental Protection1222 sets out the administrative penalties for violations relating to environmental protection. The Decree encompasses violations relating to biodiversity, including conservation and sustainable development of wildlife species and genetic natural resources. The penalties for persons who illegally keep body parts and products of wildlife species that are listed as endangered, rare, precious and priority are liable to a range of penalties including strong warnings and fines of up to VND 1,000,000,000 (USD 47,497.20) depending on: the value of the exhibit; and the authority of the person issuing the fine. The maximum fine of VND 1,000,000,000 (USD 47,497.20) can become twice as much if the offender is an organisation instead of an individual. 3.1.3 Inter-agency circular No 19/20071223 outlines guidelines for the application of certain Articles in the Criminal Code to violations of forest protection and management laws and provides further guidance on expressions used in circulars specifying certain environmental crimes, including that punishments that apply for violations relating to animals listed in Group IB are also applicable for animals that belong in Appendix I of CITES. 3.1.4 Decision 95 QD/2008/BNN-KL1224 does not set out particular penalties for offences with respect to bears. Article 15(1) merely states that, depending on the seriousness of the violation, offenders will be dealt with "in accordance with the current regulation of the law". Article 15(2) implies that in some circumstances bears will be confiscated. 1220 http://moj.gov.vn/vbpq/en/Lists/Vn%20bn%20php%20lut/View_Detail.aspx?ItemID=610 (accessed 6 February 2014). 1221 Article 21 of the Law Amending and Supplementing A Number of Articles of the Penal Code (No. 37/2009/QH12), which amends Article 190 of the Penal Code. 1222 This Decree is not available on any official website, however we have obtained a partial copy dated 14 November 2013 http://envietnam.org/images/News_Resources/Law_library/decree_179.pdf (accessed 6 February 2014). 1223 We have only been able to find and review an official translation by ENV: http://envietnam.org/library/Law%20articles/Circular_19_Joint_Circular_on_application_of_criminal_code_to_forest_Protection_and_Man agement_July_6_2007.pdf 1224http://envietnam.org/index.php/topic/news/497-decree-179-2013-nd-cp-on-the-regulations-for-penalties-for-violations-against- environmental-protection (Accessed 6 February 2014). 265 3.1.5 It has been reported that Decree 103/2013/ND_CP is applicable to fisheries,1225 although we are unable to locate this Decree on any official website. It is reported that in the handling of administrative violations in fisheries activities, violators may face: a fine between VND 3-5 million (approx. USD 142 - 237) for storing or transporting electric shock tools on fishing vessels or other floating facilities; and a fine between VND 80 million and 100 million (approx. USD 3,794 - 4,742) for acts exploiting, trading, collecting, rearing, preserving, or the preliminary processing or processing of a quantity of 30 kilograms or more of critically endangered marine species. 3.2 Seriousness of the penalties 3.2.1 Prison sentences A prison sentence can only be imposed for violation of Article 190 of the Vietnam Penal Code. The maximum prison sentence is seven years if the crime has been committed under certain conditions, such as using banned hunting tools or performing the illegal trade in an organised manner. If none of these conditions (specified in paragraph 2 of Article 190) apply, the maximum prison sentence is three years, while the minimum term is six months. Article 190 is part of chapter XVII of the Vietnam Penal Code and contains "Environment-related crimes". Many of the crimes mentioned in this chapter are structured in the same way: they provide a minimum prison sentence for crime, which can be higher where there are aggravating factors, such as the situation in which the crime has caused very serious consequences. Looking at the maximum prison sentences of these other Articles that apply to environmental crime, it shows that the maximum prison sentence of Article 190 (which is seven years) is somewhat lower than some of the other crimes mentioned in this chapter. For example, the following crimes can lead to the following maximum prison sentences: Breaching regulations on management of hazardous wastes (Article 182a): ten years' imprisonment. Breaching regulations on prevention of environmental incidents (Article 182b): ten years' imprisonment. Causing land pollution (Article 184): ten years' imprisonment. Taking wastes into Vietnamese territory (Article 185): ten years' imprisonment. Destroying forests (Article 189): fifteen years' imprisonment. 1225 http://english.vietnamnet.vn/fms/government/88620/fresh-policies-come-into-force-in-november.html 266 However, some of the other crimes from this chapter actually lead to lower maximum prison sentences. For example, destroying aquatic resources (Article 188) can only lead to a maximum prison sentence of five years, which is the same for breaching the special-protection regime for nature preservation areas (Article 191). The maximum prison sentence of seven years that is mentioned in Article 190 therefore seems to be somewhat in the middle. Compared to other serious crimes, the maximum sentence of seven years of imprisonment is low. For some crimes, the Vietnam Penal Code actually also contains the possibility of capital punishment (e.g. for illegally producing narcotics, Article 193). The ancillary legislation that is described in this report in chapter 4 also provides for much higher maximum prison sentences. For example, under certain circumstances, the act of offering bribes can lead to twenty years' imprisonment or capital punishment. 3.2.2 Fines The maximum fine that is provided for in the Vietnam Penal Code in relation to the illegal trade in wildlife is VND 500,000,000 (approx. USD 23,715). Before 2009, this maximum fine was only VND 50,000,000 (approx. USD 2,371). This maximum fine is in line with many other maximum fines that can be imposed for environment-related crimes in Vietnam. Most of the crimes mentioned in chapter XVII of the Vietnam Penal Code have a similar or even lower maximum financial penalty, including Article 182a that relates to breaching regulations on the management of hazardous waste. One of the crimes that does stipulate a higher maximum penalty is taking waste into Vietnamese territory (Article 185). The maximum fine for this crime is VND 1,000,000,000 (approx. USD 47,430). Decree 179/2013/ND-CP however provides for administrative sanctions for the illegal trade in wildlife that are just as high (and even twice as high if the offender is an organisation). Comparing these maximum fines to other serious crimes (including the ancillary legislation that is discussed in this report in chapter 4) is not straightforward. For example, fines in relation to corruption can be imposed as an additional penalty (Article 30 of the Penal Code) and can be as high as one to five time the value of the bribe (Article 279). In relation to money laundering, a fine treble the amount of money or value of the property can also be imposed as an additional sentence (Article 251). For some other serious (violent) crimes, fines cannot be imposed at all because the Penal Code only provides for capital punishment or (life) imprisonment (e.g. Article 111 that applies to rape). 3.3 Enforcement Many different agencies and branches of Vietnam's government are part of the law enforcement structure for wildlife trade. The authority that is responsible for CITES management - including the issuing of all CITES import and export licences - is the CITES Management Authority under the Vietnam Administration of Forestry in the Ministry of Agriculture and Rural Development (MARD). The Forest Protection Department (FPD), which is part of the Vietnam Administration of Forestry, is responsible for the enforcement of the forestry legislation. Other agencies and departments that are part of the law enforcement structure are the General Department of Police, the Environmental Police, the Customs Service, the Transport Police, the General Department of Customs and the Department of Market Control. This latter agency - which is part of the Ministry of Industry and Trade - has 267 responsibilities in relation to controlling trade violations and inspecting domestic markets. Many different agencies are therefore authorised to control the trade in wild plants and animals. However, there are a lot of enforcement personnel that are not trained to deal with the often complex aspects of law enforcement of wildlife trade, such as identifying endangered species that are part of Decree 32/2006/ND-CP.1226 TRAFFIC, a global conservation and wildlife trade monitoring network,1227 has published an extensive report on the rhino (horn) trade and the lack of law enforcement in relation to this trade. Rhino horn is used by a large part of the population in Vietnam. It is believed to have special powers, such as curing cancer.1228 According to TRAFFIC researchers, the rhino horn trade is a sensitive issue in Vietnam. Informants claimed in 2009 that senior political figures are directly involved in the domestic commerce of rhino horn.1229 Another important issue that further complicates the enforcement of this type of trade is the level of corruption in Vietnam.1230 This corruption factor has been identified by other bodies as well, including Vietnamese NGO Education for Nature - Vietnam ("ENV"). ENV publishes many reports in which it comments on failure of enforcement of wildlife trade. According to ENV, law enforcement officers need to assume that (especially) restaurants and businesses that have ties with the community are connected to local authorities that will protect them. If law enforcement officers do not directly go to the suspected perpetrator, there is a chance that the animals, that were illegally obtained, have already been moved to another location.1231 If the illegally traded animals have been discovered, the Circular 90/2009/TT-BNN on Guidance on Settlement of Confiscated Wildlife1232 determines which actions should be taken in relation to the confiscated wildlife. For example, if animals that are part of Group I of Decree 32/2006/ND-CP have been confiscated, one of the following actions should be taken: release to the wild, transfer to a rescue centre if they are sick or injured, transfer to a scientific research centre, sell to a zoo or (ultimately) destruct if they carry diseases or if one of the aforementioned measures cannot be used. ENV emphasises the importance of destroying any dead wildlife or wildlife products that have been seized,1233 because the alternative of selling these illegally obtained exhibits, and therefore letting them enter the market, further stimulates the illegal trade and consumer demand. 1226 TRAFFIC, "The South Africa - Vietnam Rhino Horn Trade Nexus: A deadly combination of institutional lapses, corrupt wildlife industry professionals and Asian crime syndicates", 2012, 115. 1227 http://www.traffic.org/ 1228 TRAFFIC, "The South Africa - Vietnam Rhino Horn Trade Nexus: A deadly combination of institutional lapses, corrupt wildlife industry professionals and Asian crime syndicates", 2012, 118. 1229 TRAFFIC, "The South Africa - Vietnam Rhino Horn Trade Nexus: A deadly combination of institutional lapses, corrupt wildlife industry professionals and Asian crime syndicates", 2012, 127. 1230 TRAFFIC, "The South Africa - Vietnam Rhino Horn Trade Nexus: A deadly combination of institutional lapses, corrupt wildlife industry professionals and Asian crime syndicates", 2012, 140. 1231 Education for Nature - Vietnam, Wildlife Crime Vietnam, August 2013. http://envietnam.org/library/Wildlife%20Trade%20Bulletin/ENV_WCB_August%20_2013.pdf 1232 An unofficial translation of this Circular is published on the website of ENV: http://envietnam.org/images/News_Resources/Law_library/circular_90.pdf (accessed 6 February 2014) 1233 Education for Nature - Vietnam, Wildelife Crime Vietnam, August 2013. http://envietnam.org/library/Wildlife%20Trade%20Bulletin/ENV_WCB_August%20_2013.pdf (accessed 6 February 2014). 268 ENV documents many cases of illegal wildlife trade in a database and provides summaries on these cases. In order to give an idea of the punishments that are imposed on offenders, please find a short summary of some cases in the table below:1234 3.4 Date 3.5 Crime 3.6 Fine 3.7 9 June 2013 3.8 Confiscation of 3.9 VND 23,000,000 498 green turtle (approx. USD eggs 1,090) 3.10 16 April 2013 3.11 Supplying local 3.12 VND 23,000,000 restaurants with (approx. USD turtles, civets, 1,090) cobras and bamboo rats 3.13 30 March 2013 3.14 Transporting 3.15 VND 20,000,000 cobras, monitor (approx. USD lizards, rat snakes 949) and Asiatic softshell turtles 3.16 24 May 2013 3.17 Transporting 178 3.18 VND kilograms of 450,000,000 pangolins (approx. USD 21,350) 3.19 18 January 3.20 Keeping a (live) 3.21 VND 20,000,000 2013 golden cat at (approx. USD home 2,000) ENV has also documented five recent cases in which rhino horn was seized in the second half of 2012 at airports in Vietnam,1235 This is an improvement of the law enforcement in relation to the illegal trade in rhino horn. TRAFFIC indicated in 2012 that until June 2012, there were no reports of rhino horn having been seized in Vietnam since 2008.1236 4. ANCILLARY LEGISLATION In addition to the principal legislation which deals directly with wildlife protection and the illegal wildlife trade, there are other areas of law which have the potential to impact on this sector, such as legislation aiming to combat corruption and money laundering. Various studies look to how wildlife crime appears to be particularly problematic in countries where 1234 Education for Nature - Vietnam, Wildelife Crime Vietnam, March & August 2013. http://envietnam.org/library/Wildlife%20Trade%20Bulletin/ENV_WCB_August%20_2013.pdf & http://envietnam.org/images/News_Resources/Wildlife_Crime_Bulletin/mar_2013.pdf (accessed 6 February 2014). 1235 Education for Nature - Vietnam, Wildelife Crime Vietnam, August 2013. http://envietnam.org/library/Wildlife%20Trade%20Bulletin/ENV_WCB_August%20_2013.pdf (Accessed 6 February 2014). 1236 TRAFFIC, "The South Africa - Vietnam Rhino Horn Trade Nexus: A deadly combination of institutional lapses, corrupt wildlife industry professionals and Asian crime syndicates", 2012, 17. 269 corruption is widespread, government enforcement is weak and economic opportunities are scarce.1237 4.1 Legislation summary 4.1.1 Law No. 55/2005/QH11 - The Law on Preventing and Combating Corruption 2005 (effective as of 1 June 2006, revised in 2007)1238 - this law criminalises several types of corruption (including embezzling, forgery, attempted corruption, passive and active bribery, extortion, bribing of foreign officials, abuse of office, and money laundering),1239 sets out asset disclosure requirements for governmental officials1240 (helping to identify illegitimate sources of income) and establishes basic whistle-blower protection.1241 Whilst the focus is on corruption in the public sector rather than the private sector,1242 the law establishes clear transparency requirements, reporting obligations, and a code of conduct for public servants.1243 4.1.2 National Strategy for Preventing and Combating Corruption towards 2020 (approved 2009)1244 - this strategy details an action plan with three phases of implementation aimed at increasing openness and transparency, improving investigation and prosecution of corruption cases, raising society’s awareness of its role in the fight against corruption, and acknowledging the need to deal more strictly with corruption and develop anti-money laundering laws. 4.1.3 Decree No. 74/2005/ND-CP for the Prevention and Combating of Money Laundering (effective from 1 August 2005)1245 - this law applies to individuals, agencies and organisations in Vietnam, and those foreign organisations and persons residing or operating in, or trading, transacting or supplying services to, customers related to property in Vietnam. It establishes a general responsibility to prevent money laundering,1246 prohibits the participation or facilitation of money laundering,1247 requires particular organisations to have certain internal processes and training in place to prevent and combat money laundering,1248 and has detailed provisions regarding "suspicious transactions"1249 and reporting 1237 ’’Wildlife crime and corruption’’, U4 - Anti-Corruption Resource Centre, 15 February 2013 http://www.u4.no/publications/PublicationSphinxSearchForm?PublicationSearch=wildlife+crime&Category=&ThemeID=&Year=&Countr y=&SearchLocale=en_US&locale=en_US (Accessed 6 February 2014). 1238 http://caicachhanhchinh.gov.vn/Plus.aspx/en/News/71/0/10202/0/755/ (Accessed 6 February 2014). 1239 As above, Law No. 55/2005/QH11, Art. 3. 1240 As above, Law No. 55/2005/QH11 ,Ch. 2, S.4. 1241 As above, Law No. 55/2005/QH11, Art. 10. 1242 As above, Law No. 55/2005/QH11, Art. 1, where it defines corruption as acts committed by persons with positions and/or powers abusing such positions and/or powers, and lists such persons. 1243 As above, Law No. 55/2005/QH11 , Ch. 2, S.3. 1244 Only a draft copy of this legislation could be obtained: http://www.ngocentre.org.vn/webfm_send/20 (Accessed 6 February 2014). 1245An official copy of this Decree could not be found, however we refer to this translation: http://www.vertic.org/media/National%20Legislation/Vietnam/VN_Decree_on_Money_Laundering.pdf (Accessed 6 February 2014). 1246 As above, Decree No. 74/2005/ND-CP, Art. 5(1). 1247 As above, Decree No. 74/2005/ND-CP, Art. 5(2). 1248 As above, Decree No. 74/2005/ND-CP, Art. 7. 1249 As above, Decree No. 74/2005/ND-CP, Art. 10. 270 obligations.1250 The law also has provisions regarding international cooperation on preventing and combating money laundering.1251 4.1.4 Law No. 03/2011/QH13 - The Law on Denunciation, (November 2011, effective from 1 July 2012)1252 - this law provides for denunciation in relation to acts of violation by agencies, organisations and individuals. An effective whistle- blowing system is vital as it encourages disclosure of misconduct and accountability, and this law goes further in its protection of whistleblowers than the 2005 corruption law as it provides protection to whistle-blowers and their relatives,1253 and entrenches the right to have personal information kept confidential.1254 4.2 Penalties and enforcement Penalties 4.2.1 Article 251 of the Penal Code1255 criminalises money laundering and states that those found guilty can face between one to five years' imprisonment, however those who commit such crime in a) an organised manner, b) in abuse of an official position or power, or c) more than once face between three to ten years' imprisonment. In addition to this, if money laundering is committed in ‘’serious circumstances’’ the offender can face up to fifteen years' imprisonment. Further to imprisonment, the offender may also be subject to a fine treble the amount of the money/value of property legalised, a ban from holding certain posts, and the revocation of operating licences or practising certificates. 4.2.2 Penalties for breaching the Law on Preventing and Combating Corruption1256 can apply to those persons who commit corrupt acts, those who fail to report, those who intimidate or take revenge on denouncers, and heads of organisations that let corrupt acts occur, and conviction can lead to significant imprisonment sentences and fines. Enforcement Generally the anti-corruption and anti-money laundering legal framework in Vietnam is considered to be strong, however there is little publicly accessible information that illustrates the outcomes of Vietnam’s legislative developments.1257 According to the 2013 Corruption Perceptions Index Vietnam scored ‘’31’’ on a ‘’0’’ (highly corrupt) to ‘’100’’ (highly clean) scale, and ranked 116 out of 177 countries in relation to levels of perceived corruption.1258 In addition to this, Vietnam’s performance in the World Bank’s Worldwide Governance 1250 As above, Decree No. 74/2005/ND-CP, Art 12 and 13. 1251 As above, Decree No. 74/2005/ND-CP, Arts. 20 and 21. 1252 An official copy of Law No. 03/2011/QH13 could not be found, however we refer to this translation: http://vietlawonline.com/vbpl/45118/complaints--denunciation/law-on-denunciation.vlo (Accessed 6 February 2014). 1253 http://www.bakermckenzie.com/files/Publication/cd06351e-f568-4ad5-af50- 687776a578c0/Presentation/PublicationAttachment/80ee885d-452a-4e05-b860-6b3c9ba667e9/nl_indochina_lawquarterly_mar12.pdf (Accessed 6 February 2014). 1254 ‘’Overview of corruption and anti-corruption in Vietnam’’, U4 - Anti-Corruption Resource Centre, 27 January 2012 http://www.u4.no/publications/overview-of-corruption-and-anti-corruption-in-vietnam/ (Accessed 6 February 2014). 1255 http://moj.gov.vn/vbpq/en/Lists/Vn%20bn%20php%20lut/View_Detail.aspx?ItemID=610 (Accessed 6 February 2014). 1256 http://caicachhanhchinh.gov.vn/Plus.aspx/en/News/71/0/10202/0/755/ (Accessed 6 February 2014). 1257 https://www.globalintegrity.org/global/report-2011/vietnam/ (Accessed 6 February 2014). 1258 http://cpi.transparency.org/cpi2013/ (Accessed 6 February 2014). 271 Indicators (2012) in key areas - such as control of corruption, rule of law, government effectiveness and regulatory quality - shows poor improvement, or in some cases a decline in performance, from 1996 to 2012.1259 Data on illicit trade practices in Vietnam is generally scarce; however, research on the business sector suggests that despite the criminalisation of corrupt behaviour, patronage, nepotism and facilitation of payments remain a key part of day- to-day business and dealings with government officials.1260 It is logical to assume that such practices are also present in illicit business trades, which could explain why, despite some major legislative advancements, challenges with implementation and enforcement restrict the impact of such progress. 4.3 Relationship with principal legislation A recurring theme in the commentary concerning the illegal wildlife trade is the potential for high profit margins with low-risk involvement, particularly when compared to other trans- national illegal trades such as human trafficking and drug trafficking.1261 Fines are deemed to be insignificant compared to the lucrative turnover for illegal wildlife goods traded on the black market.1262 The significant volumes of illegal wildlife goods that have been seized both in Vietnam and in other jurisdictions is testimony to the sophisticated criminalisation of this illegal trade.1263 It is easy to see how corruption facilitates illegal trades: often traffickers of illegal goods use the same routes as legal importers/exporters but exploit weaknesses in law enforcement agencies. In reference to the illegal wildlife trade in particular, it is clear that corruption can facilitate poaching (forged documentation, or documentation obtained by corrupt means such as bribes or extortion), trafficking/smuggling (bribing customs officials or wildlife patrol officials, the misuse of diplomatic immunities in contravention of wildlife regulations), wildlife laundering, (the use of captive breeding operations as a front to launder illegal wildlife), the prevention of effective wildlife protection laws being passed (bribing policy- makers) and can lessen the penalties if caught (illegal payments to prevent investigation or prosecution, for example).1264 The fact that this particular trade provides a key source of profit for criminals also highlights how a lack of robust money laundering legislation would enable criminals to process the proceeds of crime.1265 In conclusion, whilst Vietnam has a strong legal framework against corruption and money laundering it seems more needs to be done in terms of strengthening law enforcement and implementation. Some identifiable areas of improvement that may help to combat the illegal wildlife trade include enhancing the emphasis on ethics in key public roles (such as customs, police, wildlife patrol), encouraging training across government agencies (both in terms of corrupt practices, and specialist trades such as illegal wildlife goods), and raising awareness of the mechanisms that individuals can rely on to address corruption. 1259 Worldwide Governance Indicators, Country Data Report for Vietnam, 1996-2012, http://info.worldbank.org/governance/wgi/index.aspx#countryReports (Accessed 6 February 2014). 1260 ‘’Overview of corruption and anti-corruption in Vietnam’’, U4 - Anti-Corruption Resource Centre, 27 January 2012 http://www.u4.no/publications/overview-of-corruption-and-anti-corruption-in-vietnam/ (Accessed 6 February 2014). 1261 According to one report, the US State Department places wildlife trafficking as the third most valuable illicit trade in the world, after drugs and weapons - estimated at $10bn annually - http://www.smithsonianmag.com/people-places/wildlife-trafficking-149079896/ (Accessed 6 February 2014). 1262 http://www.iar-gwu.org/node/500 (Accessed 6 February 2014). 1263 http://www.unodc.org/documents/toc/Reports/TOCTA-EA-Pacific/TOCTA_EAP_c07.pdf page 7 (Accessed 6 February 2014). 1264 http://www.unodc.org/documents/toc/Reports/TOCTA-EA-Pacific/TOCTA_EAP_c07.pdf page 6, and ’’Wildlife crime and corruption’’, U4 - Anti-Corruption Resource Centre, 15 February 2013 (Accessed 6 February 2014). 1265 ’’Wildlife crime and corruption’’, U4 - Anti-Corruption Resource Centre, 15 February 2013 - http://www.u4.no/publications/PublicationSphinxSearchForm?PublicationSearch=wildlife+crime&Category=&ThemeID=&Year=&Countr y=&SearchLocale=en_US&locale=en_US (Accessed 6 February 2014). 272 5. JUDICIAL PROCESS AND CAPACITY 5.1 Judicial process The judicial bodies of Vietnam are:1266 The Supreme People’s Court; The Provincial Courts; The District and Town Courts; Military tribunals (including Central Military Court; Regional Military Courts and the equivalents; and Area Military Courts); and other courts established by law.1267 Each district under direct provincial authority has a District People's Court, which serves as the court of first instance for most domestic, civil, and criminal cases. Each province under direct central control has a Provincial People's Court, which serves as the appellate forum for district court cases, as well as courts of first instance for other cases.1268 The Supreme People’s Court is headed by a Council of Supreme Court Judges and supervises the performance of the Provincial Courts and District Courts, which, in turn, supervise the corresponding People's Councils and Military Tribunals.1269 The members of the Supreme People’s Court, which is the highest adjudicatory body in Vietnam,1270 are appointed for five- year terms by the National Assembly on the recommendation of the president.1271 Article 127 of the Constitution of the Social Republic of Vietnam also provides for "appropriate popular organisations" to be set up at the grassroots level to deal with minor offences and disputes. The US State Department Report on Human Rights Practices for Vietnam for 2012 summarises Vietnam's criminal trial procedures as follows: The constitution provides that citizens are innocent until proven guilty, although many lawyers complained that judges generally presumed guilt. Trials generally were open to the public, but in sensitive cases judges closed trials or strictly limited attendance. Juries are not used. The public prosecutor brings charges against an accused person and serves as prosecutor during trials. Defendants have the right to be informed promptly and in detail of the charges levied against them, with free interpretation as necessary, but this was not always 1266 Article 127 of the Constitution of the Socialist Republic of Vietnam 1992, amended and supplemented by Resolution No.51/2001/QH10 dated 25 December 2001 of the National Assembly legislature, 10th term, 10th session, pursuant to Article 2 of the Law on the Organisation of the People's Court 2002 and the Ordinance on the Organisation of Military Courts 2002. 1267 Article 127 provides that in special circumstances the National Assembly may establish special tribunals. As at 5 August 2013 there are no additional courts or tribunals prescribed by law in existence - see http://my.opera.com/vietnamlawyer/blog/2013/08/05/the-system-of- peoples-courts-in-vietnam (Accessed 6 February 2014). 1268 http://www.state.gov/j/drl/rls/hrrpt/2008/eap/119063.htm (Accessed 6 February 2014). 1269 http://www.duanemorris.com/articles/static/odell_inpr_aut08.pdf (Accessed 6 February 2014). 1270 Article 18 of the Law on the Organisation of People’s Courts. 1271 http://www.nationsencyclopedia.com/Asia-and-Oceania/Vietnam-JUDICIAL-SYSTEM.html (Accessed 6 February 2014). 273 implemented. Defendants have the right to be present and have a lawyer at trial, although not necessarily the lawyer of their choice, and this right was generally upheld. Defendants unable to afford a lawyer generally were provided one only in cases involving a juvenile offender or with possible sentences of life imprisonment or capital punishment. Defence lawyers commonly had little time before trials to examine evidence against their clients. The defendant or defence lawyer has the right to cross-examine witnesses, but there were cases in which neither defendants nor their lawyers had access to government evidence in advance of the trial, cross-examined witnesses, or challenged statements. Defendants have the right not to be compelled to confess guilt and the legal option to refrain from testifying.[…] Convicted persons have the right to appeal. District and provincial courts did not publish their proceedings, but the Supreme People’s Court continued to publish the proceedings of all cases it reviewed.1272 First-instance trial panels for crimes not punishable by death are composed of one judge and two jurors. For serious and complicated cases, the trial panel may be composed of two judges and three jurors.1273 Article 105 of the Vietnamese Criminal Procedure Code stipulates that, in cases where the criminal case institution bringing the prosecution withdraws their request before the opening of court sessions of first-instance trial, the cases must be ceased. However, where grounds exist which would allow the determination that the institution in question has withdrawn its request against due to force or coercion, the investigating bodies, procuracies or courts may continue conducting the procedure for the cases.1274 If, in their final words, defendants present new circumstances of important significance to the case, the trial panel must re-open the inquiry.1275 Research has not indicated that there is a specialist court process for wildlife crimes and whilst it is unclear whether wildlife crimes are heard at a local or national level, it would appear that they are addressed at the level most suited to the severity and value of the crime. 5.2 Prosecutions Ineffective enforcement of Vietnam's wildlife protection laws means that there has been a relatively low number of prosecutions in relation to illegal trade in wildlife. Further, punishments following conviction are inadequate to deter continued criminal activity.1276 These factors contribute to continued prevalence of illegal wildlife trade in Vietnam despite the country's significant legal framework for the protection of wildlife. The Chair's Summary of the 2013 APEC Pathfinder Dialogue with ASEAN & PIF Partners on Combating Corruption and Illicit Trade across the Asia-Pacific Region identifies environmental crime, including illegal wildlife trade, as a "low risk and high reward criminal enterprise".1277 This summary highlights that law enforcement in the region is often poorly resourced and inadequately trained, and that the penalties imposed often do not constitute sufficient and effective deterrence. A key factor in the limited number of prosecutions in relation to environmental crime is that authorities often view the matter as a conservation issue, with a tendency for law enforcement pressure to be applied to conventional crimes. The summary suggests that tackling environmental crime requires a mechanism to be put in place 1272 http://www.state.gov/documents/organization/204463.pdf (Accessed 6 February 2014). 1273 Article 185 of the Vietnamese Criminal Procedure Code. 1274 Article 105 of the Vietnamese Criminal Procedure Code. 1275 Article 220 of the Vietnamese Criminal Procedure Code. 1276 http://envietnam.org/images/News_Resources/Publication/tiger_trade_investigation_findings_2010.pdf(Accessed 6 February 2014). 1277 http://www.apec.org/~/media/Files/Groups/ACT/20131027_PathfinderDialogue_ChairsSummary_FINAL.pdf(Accessed 6 February 2014). 274 for the careful monitoring of collusion and corruption in the supply chain, and for strong international cooperation to stem the illicit trade of wildlife across borders. Further, the report highlights that authorities across the Asia-Pacific Region are hindered in making prosecutions due to a lack of "innovative technologies to monitor the trade, such as container X-ray machines and DNA technology to gather evidence"1278 and insufficient protection of law enforcement officers. Vietnam established specialised environmental enforcement, the Environmental Police, in 2006. However, the ASEAN Wildlife Enforcement Network reported that, despite over 2,035,722 live animals and 8,104 dead animals, animal parts and derivatives being recovered across South East Asia in 2011, there were just 231 related arrests, only 18 of which resulted in sentences and/or fines.1279 A report by Vietnamese NGO Education for Nature - Vietnam ("ENV"), which focuses on the conservation of nature and the environment, claims that the efforts of Vietnamese law enforcement agencies in preventing illegal trade in tigers has been restricted to low-level criminals, such as drivers and middlemen, rather than the higher level orchestrators of the criminal networks involved.1280 Further, ENV's investigation into the illegal trade in tigers in Vietnam found such enforcement is not supported by effective prosecutions and sentencing - of 27 arrests following seizures of tigers and tiger skins, only four individuals were imprisoned (with sentences of between 16 and 24 months), while twelve individuals received suspended sentences and nine received a probation sentence. In several cases involving the discovery of tigers in homes and private establishments the subjects received either fines or no punishment, with most owners being allowed to keep the tigers despite a lack of legally required documentation as to their origin. A report by Annamiticus points to corruption and lenient penalties as major factors limiting the number of prosecutions brought in Vietnam. The report highlights that the Vietnamese government recently arrested twenty members of a major wildlife smuggling group, the "Steel-face" Dung's syndicate, but claims that, in general, organised criminal gangs that coordinate smuggling in Mong Cai have proliferated as a result of weak governance and corruption at some of the border authorities and law enforcement agencies.1281 The report claims that the fines paid by those involved in the illegal trade of wildlife are often low in comparison to the amount of money to be made by such trade, and that smugglers will usually bribe officials with significant sums of money when shipping illegal wildlife across the Vietnam-China border. This report also emphasised the role played by ancillary crimes: "Criminal brokers who facilitate human and drug trafficking across the border also play critical roles in the illegal wildlife trade: They act as middlemen between Chinese buyers and Vietnamese traders and maintain close, corrupt relationships with law enforcement agencies to evade arrest, prosecution, and punishment."1282 A recent WWF Wildlife Crime Scorecard key findings & recommendations document criticises the lack of seizures of rhino horn in Vietnam: 1278 http://www.apec.org/~/media/Files/Groups/ACT/20131027_PathfinderDialogue_ChairsSummary_FINAL.pdf(Accessed 6 February 2014). 1279http://www.asean-wen.org/index.php/reports-publications/file/53-asean-wen-action-update-summary-2012 (Accessed 6 February 2014). 1280 http://envietnam.org/images/News_Resources/Publication/tiger_trade_investigation_findings_2010.pdf (Accessed 6 February 2014). 1281 http://www.policyinnovations.org/ideas/briefings/data/000260 (Accessed 6 February 2014). 1282 http://annamiticus.com/2013/10/22/wildlife-traffickers-aided-by-corruption-along-vietnam-china-border/ (Accessed 6 February 2014). 275 "Many Vietnamese have been arrested or implicated in South Africa for acquiring rhino horns illegally (including diplomats), but there has been little evident enforcement follow-up on information provided by the South African authorities. Penalties in Vietnam are inadequate to serve as a deterrent for illegal trade or possession, and legal measures are insufficient to curtail illegal trade on the Internet. Despite numerous seizures elsewhere implicating Vietnam, there has been no recorded seizure of rhino horn in the country since 2008."1283 Given that, at present, prosecution does not appear to be a significant deterrent to wildlife crime, it has been suggested that other approaches should be considered alongside measures to support the increase in effective prosecutions over time. A study by TRAFFIC,1284 into the economic and social drivers of the wildlife trade in Cambodia, Indonesia, Lao PDR and Vietnam suggests that relatively little attention has been paid to measures such as tenure arrangements, customary norms, traditional practices, and voluntary agreements, despite these mechanisms being highly effective where they have been applied.1285 The study went on to suggest that in order for the current laws and regulations to prove effective they must be enforced and implemented. Other suggestions included: "ensuring that policies and controls are targeted at those points in the trade chain likely to have the greatest impact; strengthening the judicial sector’s understanding of the significance of illegal and unsustainable wildlife trade, and focusing on the building of multi-agency law enforcement capacity." Another factor impacting on the number of wildlife crime prosecutions brought in Vietnam is the ambiguity of Vietnamese wildlife laws and certain exemptions found in these laws that prevent meaningful prosecution of offenders. One example of this ambiguity in the law is found in Decree 159 which allows individuals to trade domestically in the skin and flesh of a given breed of crocodile after having obtained proper licences from the government.1286 Under another law, Decree 32, this same species is not permitted to be "exploited" except for certain limited and unspecified scientific and international co-operative purposes. This ambiguity in the law may deter law enforcers from pursuing offenders. 1287 Additionally, the classic socialist policy that runs through Vietnamese law means that people from certain "under-privileged" groups such as the poor, the widowed and those of ethnic minority backgrounds benefit from exemptions, in certain circumstances, if they cannot afford a fine or a prison sentence. This may result in those who rely on wildlife trafficking for their livelihood escaping punishment. 1288 5.3 Appeals Article 20 of the Vietnamese Criminal Procedure Code implements a two-level trial regime.1289 Defendants, victims and their lawful representatives have the right to appeal first- instance judgments or decisions. Persons with interests and obligations related to the cases and their lawful representatives also have the right to appeal against a part of the court judgment which is related to their interests and obligations. The procuracies of the same level 1283 http://www.wwf.se/source.php/1486861/Key%20Findings%20and%20Recommendations.pdf (Accessed 6 February 2014). 1284 http://www.traffic.org/ 1285http://siteresources.worldbank.org/INTEASTASIAPACIFIC/Resources/226262-1223319129600/wildlife_execsummary.pdf (Accessed 6 February 2014). 1286 Citing http://deepblue.lib.umich.edu/bitstream/handle/2027.42/62102/UNS?sequence=1 (Accessed 6 February 2014). 1287 http://deepblue.lib.umich.edu/bitstream/handle/2027.42/62102/UNS-TRA-copy.pdf?sequence=1 (page 7) (Accessed 6 February 2014). 1288 http://deepblue.lib.umich.edu/bitstream/handle/2027.42/62102/UNS-TRA-copy.pdf?sequence=1 (page 10) (Accessed 6 February 2014). 1289 http://www.oecd.org/site/adboecdanti-corruptioninitiative/46817432.pdf (Accessed 6 February 2014). 276 as the court in which the decision was made and the immediate superior procuracies too have the right to protest against first-instance judgments or decisions.1290 Appellants either present their appeals directly to the courts which have conducted first- instance trials or send written appeals to the courts which have conducted first-instance trial or to the courts of appeal. The procuracies of the same level or immediate higher procuracies lodge written protests, clearly stating the reasons for appeal.1291 The time limit for lodging appeals is fifteen days after the date of pronouncement of judgments. For defendants or parties absent at the court sessions, the time limit for lodging appeals is counted from the date the copies of the judgments are handed to them or are posted up.1292 The time limit for the procuracies of the same level to protest against decisions of the courts of first instance is seven days and for immediate higher procuracies fifteen days, counting from the date of issuance of such decisions.1293 Late appeals may be accepted if plausible reasons can be given. 1294 An appellate-trial panel is composed of three judges, with the possible addition of two jurors where necessary. 1295 Before or during the trial the procuracies may supplement new evidence; the appellants or persons with interests and obligations related to the appeals or protests, defence counsels and defence counsels of the interests of the involved parties also have the right to supplement documents and/or objects.1296 The courts of appeal has the right to decide: 5.3.1 To reject the appeal or protest and keep the first-instance judgment unchanged; 5.3.2 To amend the first-instance judgment; 5.3.3 To cancel the first-instance judgment and transfer the case file for re-investigation or re-trial; 5.3.4 To cancel the first-instance judgment and cease the case.1297 The Supreme People's Court is Vietnam's court of last appeal as well as an appellate court for cases on appeal where a first instance judgment or decision of an immediately lower level Court has not yet become legally effective and is appealed or protested under provisions of procedural law.1298 The Criminal Court of the People's Court of a province or city directly under central authority also acts as an appellate court, having the power to conduct appeals for criminal cases where the first instance judgments and decisions of the lower Court are not yet effective and have been appealed or protested under provisions of procedural law.1299 1290 Articles 231 and 232 of the Vietnamese Criminal Procedure Code. 1291 Article 233 of the Vietnamese Criminal Procedure Code. 1292 Article 234 of the Vietnamese Criminal Procedure Code. 1293 Article 239 of the Vietnamese Criminal Procedure Code. 1294 Article 235 of the Vietnamese Criminal Procedure Code. 1295 Article 244 of the Vietnamese Criminal Procedure Code. 1296 Article 246 of the Vietnamese Criminal Procedure Code. 1297 Article 248 of the Vietnamese Criminal Procedure Code. 1298 Organisational Structure of the Court of Vietnam, the Process of the Law Reform and Practice Justice in Vietnam, Deputy Chairman of the Supreme Peoples Court of the Socialist Republic of Vietnam - court.by/upload/10(2).doc 1299 Paragraph 3.2 of Organisational Structure of the Court of Vietnam, the Process of the Law Reform and Practice Justice in Vietnam, Deputy Chairman of the Supreme Peoples Court of the Socialist Republic of Vietnam - court.by/upload/10(2).doc 277 First-instance judgments and decisions, if not appealed or protested against within the time limits prescribed by the Vietnamese Criminal Procedure, are legally valid.1300 5.4 Judicial capacity Research has not indicated that there is specialised capacity to deal with environmental crime within the Vietnamese judiciary. Further, the limited number of, and insufficient training provision for, judges, lawyers and enforcement personnel, may be having an impact upon the quality of decisions passed down in relation to illegal trade in wildlife. A 2003 article published by JURIST1301 reported a shortage of trained lawyers and judges and no independent bar association in Vietnam. The article stated that at the Supreme People's Court level, there was a 10 to 20 percent shortage of qualified judges, while at the provincial level the shortage ranged from 30 to 40 percent.1302 The US State Department Report on Human Rights Practices for Vietnam for 2012 states that there continues to be a shortage of trained lawyers, judges and enforcement personnel in Vietnam.1303 This shortfall remains in spite of the existence of a Judicial Training School branch to the Supreme People's Court, which has the power to set up short-term and long-term training courses and training plans and programmes for professional knowledge improvement which are intended to function as bases for teacher recruitment internally and externally to the Supreme People's Court.1304 A US State Department Report on Human Rights Practices for Vietnam for 2008 identified low judicial salaries as a hindrance to efforts to develop a trained judiciary.1305 However, an increased recognition of the importance of protections for endangered species is evidenced by the participation of the Vietnamese senior judiciary in the annual ASEAN Chief Justices Roundtable on the Environment symposiums. These symposiums have been held annually since 2011 in order to enable the judiciary from the Southeast Asian nations to share experiences and consider ways in which they can collaborate to effectively enforce environmental law in the region. In particular, the discussions consider issues such as access to environmental justice, the application of interim relief measures and alternative dispute resolution mechanisms in environmental cases, and the enforcement and execution of court orders.1306 It is hoped that this will raise judicial awareness of the duty to effectively comply with the provisions of international conventions such as CITES and domestic wildlife protection laws,1307 particularly given that Vietnam has agreed to host the fourth roundtable in 2014.1308 5.5 Additional information There appears to be a lack of understanding of the importance of demand reduction in tackling illegal wildlife trade in Vietnam. ENV is hanging banners discouraging consumption 1300 Article 20 of the Vietnamese Criminal Procedure Code. 1301 A legal education network supported by the University of Pittsburgh School of Law. 1302 http://jurist.law.pitt.edu/world/vietnam.htm (Accessed 6 February 2014). 1303 http://www.state.gov/documents/organization/204463.pdf 1304Paragraph 2.9 of the Organisational Structure of the Court of Vietnam, the Process of the Law Reform and Practice Justice in Vietnam, Deputy Chairman of the Supreme Peoples Court of the Socialist Republic of Vietnam - court.by/upload/10(2).doc 1305 http://www.state.gov/j/drl/rls/hrrpt/2008/eap/119063.htm (Accessed 6 February 2014). 1306 http://www.adb.org/news/asean-chief-justices-explore-legal-solutions-environmental-threats(Accessed 6 February 2014). 1307http://www.gms-eoc.org/uploads/resources/308/attachment/Background%20Note%20- %20ASEAN%20Chief%20Justices%203rd%20Environment%20Roundtable.pdf (Accessed 6 February 2014). 1308 http://www.asianjudges.org/third-asean-chief-justices-roundtable-on-environment-15-18-november-2013-bangkok/ (Accessed 6 February 2014). 278 of wildlife in markets across major Vietnamese cities. However, such demand reduction campaigns are undermined by the sale of protected wildlife which has been seized by Customs agents. For example pangolins, which are protected under a decree but may be traded with a permit from local authorities, are usually auctioned off by authorities after they are seized.1309 Similarly, the ineffective monitoring of tiger farms in Vietnam allows these establishments to engage in the illegal trade of tigers. Irregularities in the accounting for births and deaths of tigers at these farms suggest the active engagement in such trade. 6. CONCLUSIONS 6.1 Recommendations 6.1.1 ENV's recommendations to address Vietnam's illegal trade in wildlife (in particular in relation to the illegal trade in tigers) include:1310 A strengthening of Vietnam's position in the ASEAN Wildlife Enforcement Network (WEN) through an active engagement by law enforcement agencies with counterparts in nearby countries to develop cooperation and information-sharing, which would lead to increased arrests and convictions; A targeting of law enforcement resources on the investigation of significant individuals within criminal networks (rather than low-level participants such as middlemen); Greater use of custodial sentences, confiscation of property and instruments used for the commission of crimes, and the seizure of the proceeds of crime, as permitted by law; A strengthening of border posts, including tackling any local law enforcement corruption; and More stringent controls imposed on farms for protected species. 6.1.2 TRAFFIC has published specific recommendations in relation to the trade in rhino horn. They include the following:1311 Bilateral treaties need to be developed and implemented in order to promote collaborative law enforcement action; A strict regulatory mechanism needs to be developed in order to track rhino horn trophies; Concrete investigative actions and operational strategies in relation to illegal rhino horn trade in retail markets and on the internet need to be devised and executed; and Commitment from the government in the form of adequate financial and human resources is needed. Additional resources need to be allocated to key law enforcement agencies in Vietnam in order to assist ongoing market 1309 http://envietnam.org/images/News_Resources/Publication/pangolin_trade_summary_2011.pdf (Accessed 6 February 2014). 1310 http://envietnam.org/images/News_Resources/Publication/tiger_trade_investigation_findings_2010.pdf (Accessed 6 February 2014). 1311 TRAFFIC, "The South Africa - Vietnam Rhino Horn Trade Nexus: A deadly combination of institutional lapses, corrupt wildlife industry professionals and Asian crime syndicates", 2012, 147-148. 279 research (including research on the internet), investigation and prosecution of rhino horn crime cases. 280 DLA PIPER CONTRIBUTORS Glen Allen, Baltimore Ashley Anderson, Baltimore Yasmin Bailey, London Georgia Brooks, London Anita Brunst, Manchester Gillian Buchanan, Edinburgh Ann Byrd, Atlanta Tassanu Chutikanon, Manchester/Bangkok Vanda Craig, London Elannie Damianos, Perth Roya Dehbonei, Perth Keelan Diana, Baltimore Abhishek Dube, Reston Leigh Ferris, London Rita Flakoll, London Allan Flick, Sydney Ann Ford, Washington Anna Furness, Leeds Lauren Genvert Goetzl, Baltimore Lindsay Gerrand, Leeds Brian Gordon, Atlanta Jennifer Griffin, London Helen Hall, Manchester Mathilde Hallé, Paris Shari Helft Lennon, Chicago Jeffrey Herschman, Baltimore Emma Johnston, Edinburgh Uttara Kale, Atlanta Jennifer Kappel, Reston Samantha Kelly, Sydney Robert Laird, Perth Scott Lange, Atlanta Kirsty Law, London Kasia Lebiecki, Manchester/Bangkok 281 Michael Lebovitz, London Anthony Lehman, Atlanta Jonathan Leitch, Hong Kong Bethan Lloyd, London Söla Paterson-Marke, London Mercy Mba, London Alexander Monk, London Heidi Newbigging, London Supreedee Nimitkul, Bangkok Alice Puritz, London/Sheffield Brian Reid, Chicago Victoria Rhodes, Leeds Sarah Ritter, Baltimore James Rusert, Atlanta Ella Russell, Sheffield Andrew Schatz, Baltimore Jennifer Squillario, Baltimore Claire Clayton-Stead, Leeds Andrew Stein, Washington Billie Stevens, Sydney Kim van der Togt, Amsterdam Rachel Turnbull, Manchester Sydney White, Washington Claudia Wilton, London 282