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TABLE OF CASES
TABLE OF ABBREVIATIONS
1.1.1 Overhauled Wildlife Laws & Poaching
1.1.3 Enforcement Authority
1.1.4 The New Proposed Bill, The Wildlife Conservation and Management (Amendment) Bill,
1.2 Statement of the Problem
1.3 Literature Review
1.4 THEORETICAL FRAMEWORK
1.4.1 Theory of Change
1.4.2 Deterrence theory
1.4.3 Rational Choice Theory
1.4.4 Utilitarian School of Thought on the Death Penalty
1.4.5 Kantian Ethics on the Death Penalty
1.4.6 Alternative Forms of Control Theory
1.5 Justification of the study
1.6 Research Hypothesis
1.7 Research Objectives
1.8 Research Questions
1.9 Research Methodology
1.10 Chapter Breakdown
POACHING: CAUSES & REASONS AND WILDLIFE STATISTICS OVER THE YEARS
2.1 Causes & Reasons for Poaching
2.1.1 Poverty, Lack of Jobs or Job Opportunities
2.1.2 Corruption & Weak Governance
2.1.3 Human Wildlife Conflict
2.1.4 Bush meat
2.2 Wildlife Poaching Statistics Over the Years
2.3 Poaching Effects & The Importance of Wildlife Conservation
2.3.1 Effects on Local Communities
2.3.2 Effects on Animals
2.3.3 Effects on the Ecosystem
2.3.4 For Agriculture & Farming
2.3.5 For a Healthy & Clean Environment
RESEARCH METHODOLOGY, FINDINGS & DISCUSSIONS
3.2 Measurement Instruments
3.3 Reason for Choosing Methodology
3.4 Data Results & Findings
3.5 Data Analysis
OVERVIEW OF THE WILDLIFE CONSERVATION AND MANAGEMENT (AMENDMENT) BILL, 2017 TO THE OLD 2013 WCMA ACT
4.2 Are the laws imposed strong enough to fight or eradicate poaching in Kenya?
4.2.1 Section 92. Offences relating to endangered and threatened species -
4.2.2 Section 95. Offences relating to trophies and trophy dealing
4.2.3 Section 97. Offenses relating to subsistence hunting
4.2.4 Section 98. Offences relating to hunting for bush-meat trade
4.2.5 Section 99. Import and export of wildlife species
4.2.6 Section 101. Offenses relating to failure comply with a lawful order
CONCLUSION AND RECOMMENDATIONS
5.2.1 Urgent amendment of Section 92 and Section 95 of the Wildlife (Conservation and
5.2.2 An NGO structure to support KWS in anti-poaching and investigations to be established
5.2.3 Poaching prevention strategies
5.3 The 5 simple actions that one can do to make a difference
Lists of Figures
Lists of Tables
Most importantly, I would like to acknowledge my father, Ejaz Satar for always believing in me and pushing me to achieve my best. I can honestly say that without your guidance and assistance I would not be where I am today and the passion and amount of knowledge, I have learnt from you in regards to wildlife is all through you. And like you told me once, “The caring for animals is different from theory than practical” and just like the law, that statement is true. I cannot thank my parents enough for they have given their all to ensure I attain my goals and have the finest education.
Lastly, I would like to thank the Kenyan Wildlife Service for giving me the opportunity to work with them as a volunteer in caring for the animals and research and work in the field in matters regarding conservation.
I would like to dedicate this research to all the game rangers across the world, who put their lives on the line protecting our wildlife, on a day to day basis in order to preserve, conserve and protect these extraordinary creatures from extinction.
Furthermore, I would like to dedicate this research to all the animals around the world for they are voiceless and we, humans are the only ones who can advocate for them as they cannot advocate for themselves.
“An animal doesn’t know what extinction is, it doesn’t know why it is being killed for its tusks or horns, it doesn’t understand what global warming is, it doesn’t know what laws are protecting them or are in place for them. All they know is to exist and create a balance on the earth. On the earth, balancing nature out.
Since animals cannot advocate for themselves, we must advocate for them.” – Ali Ejaz Satar.
Kenya has set up a far-reaching administrative system that criminalizes wildlife poaching. Punishments for infringement of the substantive laws and required legal techniques comprise of fines, imprisonment, and relinquishment of tools used to perpetuate a wrongdoing, and in addition the products of the wrongdoing themselves. While certain parts of implementing the substantive laws are shared over a few government foundations, it is the Kenya Wildlife Service (KWS), an organization with full prosecutorial powers that bears the essential duty regarding wildlife.
Kenya recently overhauled of the country’s wildlife regulatory regime. In December 2013, Kenya enacted the Wildlife Conservation and Management Act (WCMA) 2013.1 The WCMA repealed and replaced the Wildlife (Conservation and Management) Act, 1976.2 The World Wildlife Fund (WWF) helped coordinate the input of environmental civil society organizations views after the Wildlife Conservation and Management Act 2013 was passed. This law was a summit of endeavors spreading over more than 15 years to get a far reaching and comprehensive enactment set up.
The legal issue here arises on whether or not the new laws imposed are strong enough to fight poaching or whether the laws should be repealed or replaced again?
Another legal issue which arises is whether a death penalty will strengthen the laws leading to an eradication of poaching. Recently, Wildlife poachers in Kenya will face the death penalty, the country’s tourism and wildlife minister has reportedly announced. Najib Balala warned the tough new measure would be fast-tracked into law.3 Plus, Whether or not this new law would minimize the poaching crisis in Kenya.
However, there was a lot of misinformation on this as Articles shared on countless occasions online have reported that Kenya is planning to introduce the death penalty for convicted wildlife poachers. The articles quote Tourism Minister Najib Balala, who is supposed to have made the announcement during a meeting held on May 10, 2018. However, Balala was not at that meeting, and told AFP there was no such plan. Capital punishment is in theory permitted in Kenya, but the country has an effective ban on carrying out death sentences. No death row prisoner has been executed since 1987.4
Therefore, we shall not look at whether that statement was valid or not, as the purpose of this research on the issue on the death penalty on poacher is to see whether that would eradicate poaching completely.
The research will contain specific cases and statutes of the law regarding wildlife in Kenya and if they are strong enough to fight poaching and wildlife trade in Kenya. Further, the research shall converse and contrast the current wildlife act and the previous one to see if the laws amended are of any good, and if so, do they reduce poaching, and by how? If not, whether any new laws can be proposed to do so.
1. Feisal Mohamed Ali v Republic  eKLR.
1. The Wildlife Conservation and Management (Amendment) Bill, 2017.
2. The National Wildlife Conservation Status Report 2015-2017.
3. WILDLIFE CONSERVATION AND MANAGEMENT ACT NO. 47 OF 2013 of KENYA.
4. PART XI – OFFENCES AND PENALTIES, WILDLIFE CONSERVATION AND MANAGEMENT ACT NO. 47 OF 2013 of KENYA.
5. THE NATIONAL WILDLIFE CONSERVATION AND MANAGEMENT POLICY, APRIL 2017.
6. Constitution of Kenya, 2010.
1. THE ZAMBIA WILDLIFE ACT, 2015 No. 14 of 2015 311, PART XIV OFFENCES AND PENALTIES.
1. CITES - Convention on International Trade in Endangered Species of Wild Fauna and
2. CS – Cabinet Secretary
3. GOK – Government of Kenya
4. KES - Kenyan Shilling/s
5. KWS - Kenya Wildlife Service
6. KRA - Kenya Revenue Authority
7. USD - United States Dollars
8. UN – United Nations
9. US – United States
10. WCMA -Wildlife Conservation Management Act
11. WWF - World Wildlife Fund
The Wildlife Act came into effect on the 10th of January 2014, through Presidential consent on 24th December 2013. With this in place, Kenya overhauled the wildlife laws due to the rise in elephant and rhino deaths caused by poaching and whether the new Act imposed is strong enough to fight poaching in Kenya? And with laws constantly being questioned or amended, will the death penalty law on wildlife poachers make any difference?
The management and protection of Kenya’s wildlife was regulated by the Wildlife Conservation and Management Act (Cap 376 of 1989) which in Section 56 provides for a maximum of 10 years jail for offences related to lions, elephants, rhinos and leopards (GOK, 1989). Efforts to address poaching and trafficking have focused on reinforcing anti-poaching measures and lobbying for stiffer penalties in the legislation on the basis that current legislation is inadequate to deter poachers and traffickers. Legal reform with stiffer penalties has been proposed as a remedy.5
At the time of this study, the Cabinet Secretary of Tourism & Wildlife, Najib Balala stated that the death penalty should be fast tracked as law against the poachers. However, this came to be false as he did not mention such, so this topic was of much controversy as several articles spread all over social media on the topic due to misinformation until Najib Balala clarified that, “this does not mean death penalty -- that, I assure you, was taken out of context. We can have the fines increased, longer jail terms and ensure that the poachers do not easily get away by paying fines."6
Given global and regional trends in this crisis, wildlife crime in Kenya is projected to increase and affect the country’s economy and biodiversity if not addressed.7
Kenya's Cabinet secretary of environment & natural resource endorsed an entire upgrade of the nation's national natural life enactment by favouring the Wildlife Bill and Policy, in one of the swiftest reactions to the current reports of heightening poaching of elephants and rhinos.
In passing the Wildlife Conservation and Management Bill and Policy 8, the Cabinet coordinated that the measures be completely executed to convey a stop to instances of poaching in the nation and streamline management of wildlife services. In such manner, a portion of the measures applied by the Cabinet were;
- Establishment of an inter-agency security team composed of personnel from KWS and the Police Service to continuously track down and apprehend bandits in the wildlife sanctuaries including private conservancy areas. The team will also intensify surveillance in wildlife zones.9
- Increasing KWS rangers by a thousand.10
- Marking, naming and arresting those that partake in the poaching industry. 11
- The dismissal of any KWS official who has been scheming with the poachers. 12
- Fining those engaging in poaching a sum of up to a million shillings.13
- Confiscate property attained via the earnings from poaching & inspect any vehicle or vessel and seize and confine any wildlife examples in regard of which there are motivations to trust that an offence has been submitted, together with any instruments, equipment, vessels or vehicles utilized as a part of the commission of the offence.14
Furthermore, the new laws prohibits the hunting of a protected animal as well as the hunting of a game animal without a proper license or in violation of the terms of a license.15
The law forces strict prohibitions on the utilization of specific instruments and techniques for hunting, principally those giving an authorized seeker undue preferred standpoint over his prey. These incorporate utilizing certain sorts of gin or other comparable traps, shoot, poisoned weapons, explosives; hunting an animal amongst nightfall and day break; taking part in game drives other than a drive of birds; driving animals into water to catch, cripple or kill it. The law additionally restricts bringing in a trophy assigned a disallowed import. An individual who abuses any of these arrangements confers a relinquishment offense and is subject to other certain punishments not identified with those for a relinquishment offense.16
There are two classes of penalties, specific and general. Specific penalties are those stipulated for the violation of a particular legal provision. In the context of the WCMA (1976), a person convicted of hunting any animal in a national park is subject to a fine ranging from 5000 Kenyan shillings (KES) (around US$58) to 20,000 KES (around US$232), and/or imprisonment ranging from six months to three years, which may include corporal punishment.17
However, in the new and requested act, one of the most striking parts of the WCMA is the sensational increment in punishments for wildlife related offenses contrasted with the revoked law. Under the repealed law, the highest custodial penalty prescribed was ten years, while the highest fine possible was set at KES 40,000 (about US $ 486)18
After the increase of the penalties of the wildlife offenses, all the fines were increased for instance an offense relating to hunting of endangered species and threatened species (elephant & rhinos), Section 79 of the WCMA 2013 clearly states that, “Any person who commits an offence in respect of an endangered or threatened species or in respect of any trophy of that endangered or threatened species shall be liable upon conviction to a fine of not less than ten million shillings or to imprisonment of not less than fifteen years or to both such fine and imprisonment”.19
However recently with the death penalty proposed by the current Cabinet Secretary, Najib Balala, this is the highest form of punishment and it has to be thoroughly considered before it can be enforced as it would not only affect the country, but also the international level to a certain extent in the Human Rights context.
The KWS was set up under the WCMA and is a state enterprise with the order to monitor and deal with Kenya's untamed life and authorize all the significant laws. The KWS's Security Division is ordered to ensure untamed life and uphold the WCMA. The Security Division has five offices, including the Wildlife Protection Department, Intelligence Department, and Investigation Department. The Wildlife Protection Department, which notwithstanding its officer workforce incorporates a unit of tracker dogs, battles poaching. Certain authorization powers are imparted to other government establishments.
The WCMA gives any approved officer (counting an officer of the KWS, a forestry officer, a cop or an authoritative officer) implementation powers which incorporate examination, confinement, capture and seizure powers.
The Committee on Environment and Natural Resources has published the Wildlife Conservation and Management (Amendment) Bill, 2017 that seeks to provide clearer penalties for the violation of the Act enacted in 2013.20 The strategy formulation process is being spearheaded and coordinated by the Ministry of Environment and Natural Resources with financial support from the United States Agency for International Development though a cooperative agreement signed between the U.S. Department of Interior and The African Conservation Centre for technical and financial cooperation.21
This process will build on past and present policies, practices, regulations, amendments, and strategies to ensure coherence. The process will review existing strategies and document best practices nationally and internationally, use focus group discussions, seek technical input from experts, organise key stakeholder consultations and broad public participation.22
The Bill has not yet been passed, but looking at the current amendments made, will establish if the proposed law(s) are suitable and enforceable, for example, such as,
“A person who kills or injures, keeps or is found in possession of a wildlife trophy, manufactures an item from trophy of critically endangered or endangered species specified under the Sixth Schedule without a permit or exemption issued under the Act commits an offence and shall, on conviction, be liable to a fine not exceeding Sh100 million or life imprisonment,” a new section 92 states.23 Plus whether or not a death penalty could be the possible solution to eradicate poaching. Also, certain laws, if any which may newly be proposed in order to further strengthen the laws to fight poaching in Kenya.
The main problem here unfortunately is that our laws are still not strong enough to fight poaching in Kenya, and with the proposed death penalty towards poacher, might this be the solution that we need or will it cause conflict.
The problem on whom it affects is basically every person in Kenya. Furthermore, it is important to note that poaching does not only affect the country, but the world at large as it is a worldwide, global issue. In addition, the proposed death penalty may affect the poachers.
If poaching continues, the impact will be irreversible as once a species is wiped out, there is no way of bringing it back. Already the greater northern white rhino is extinct, (passed on in Ol Pejeta Conservancy due to natural causes) however extinction of a whole species is something which not only affects Kenya, but the whole world at large. Furthermore, 2013 was Kenya’s worst year for poaching when 59 animals were killed. (More than 5% of the national population)24. It is hard to dismiss the fact that, Tens of thousands of elephants are killed every year, one every 15 minutes.25 If this doesn’t stop, in the near future there shall be hardly any wildlife left.
This problem/issue on poaching has been there since 1979 and is ongoing till to date. Between 1979 and 1989, the worldwide demand for ivory caused elephant populations to decline to dangerously low levels. During this time period, poaching’s fueled by ivory sales cut Africa’s elephant population in half. Since they were big targets and sported the largest tusks, savannah elephants took the worst hit. In 1977, 1.3 million elephants lived in Africa; by 1997, only 600,000 remained.26 Right now only about 320,000 African Elephants remain. The main decline in these figures is mainly due to poaching due to, poachers.
LEILA AL-AJJAZ 27 states that,
There is no simple resolution to poaching and the illicit wildlife trade. However, initiatives to attempt to tackle the phenomenon can be divided into three approaches; the reduction of demand, increased security and law enforcement, and community driven socio-economic development through the support of alternative livelihoods.28
Her primary focus on her research in this field is mainly on the first two approaches, with limited regard to the third. As such, this paper will not focus on the demand side drivers of the industry, but rather conduct a cost-benefit analysis of security based and socio-economic solutions.29
However, this research is primarily focused on the area/field of the law enforcement and legal framework.
There are significant gaps in academic literature that study the socio-economic and security drivers of poaching and that explore the relationship between poaching and international crime and terrorism.30 But in this thesis the gap is in the legal framework and its relationship between amended laws and poaching, for till today laws have been enforced but poaching is still carrying on, why? Are the laws imposed strong enough? If so, why is there still poaching? And more over will the new law of enacting the death penalty resolve poaching? Will it work?
The importance of wildlife management and conservation is recognized across the world.31
Wildlife and conservation management laws in Kenya are part of the legal framework governing natural resources. Muigua, Wamukoya and Kariuki identify the Wildlife Conservation and Management Act as part of the national legal framework on environmental management and conservation. They acknowledge that the subject has received recognition under regional and international law; and note that the intense interest in wildlife conservation and management on the global scale may be attributed to the fact that wildlife forms an integral part of biodiversity, a natural resource which is renewable only if it is conserved and managed sustainably.32
Literature on wildlife crime is important to examine because it sheds light on whether the legislative and institutional framework in Kenya adequately addresses poaching and wildlife trafficking.33
Horne concludes that while policy approaches may contribute to reduction of wildlife crimes, the proliferation of such crimes shows that the policy responses may not have as large an effect as they may be theorised to have.34
Therefore, there will always be a gap in the sense that instead of poaching coming to an end it is only continuing. We can see from the past that poaching, the rate of number of deaths of elephants and rhinos were extremely high as compared to now and have declined over the years.
Statistics obtained from the Kenya Wildlife Service by the Star on Thursday revealed that 47 elephants have been killed this year, compared to the 86 in 2016. A whooping 384 elephants were killed in 2012, 302 in 2013, 164 in 2014 and 96 in 2015. Seven rhinos have been poached this year compared to 10 killed in 2016. In 2015, 11 rhinos were poached while another 35 were killed in 2014. Some 59 rhinos were poached in 2013 while 30 were poached in 2012.35
It is clear that the decline and change has been brought about by the strengthened and stricter laws against the crime, however it doesn’t ignore the fact that is still ongoing and shows us that there are still laws in this field which need to be strengthened/amended or proposed in order to further strengthen and sanction the wildlife laws against poaching in order to fully and eventually eliminate it.
In addition, specifically, for death penalty, it is a critical area that needs to be dealt with uttermost determination and care. Moreover, there is nothing on literature on the death penalty on poaching not only in Kenya, but in Africa aside from Richard Wayne Charlton thesis & Dissertation on Death and Destruction: Insight into the Rhino Poaching Epidemic in South Africa which only mentions that, “Criminological research has shown that even some of the most severe deterrents, including the death penalty, do not always work” 36.
Therefore, this paper further seeks to fill the gap regarding the issues at hand through extensive research, recommendations will be given on how we can address this issue of the death penalty as a capital offence on poaching and advise on it accordingly as well as how we can further strengthen our wildlife laws.
A TOC is: A decision support tool that helps illustrate the causal links and sequences of events needed for an activity to lead to a desired outcome or impact... TOC maps the missing link between what an activity does, what impact it has and how this leads to the desired outcomes (Biggs et.al, 2016: 3 & Center for Theory of Change, 2015).37
The TOC will aid in the analysis of the case study findings, as it is a useful framework to determine whether enabling conditions for successful socioeconomically driven solutions are in place, and whether, through a particular intervention, a pathway is able to achieve appropriate solutions to poaching.38
Deterrence theory is founded on the premise that the essential object of the criminal justice system is to deter individuals from engaging in crime.39
In pursuit of this objective, the authorities would increase the severity of policy, law and extra- legal sanctions to heighten the dangers associated with apprehension for crime.40
Deterrence theory should inform Kenya’s approach to combating poaching and wildlife trafficking. In terms of certainty, poachers and those involved in wildlife trafficking must be presented with a clear message that engaging in the crime yields consequences. Also, the criminal justice system does not apparently rely on severity, as lenient sentences are given for serious activities including poaching and wildlife trafficking.41
The deterrence theory has received criticism in certain quarters. It is based on the assumption that human beings think and operate in a rational manner, and decisions are made based on the rational choice theories.42
Rational choice theory is based on the fundamentals of classical criminology and Cesare Beccaria’s theory. Beccaria’s theory rests on three main areas which states that all individuals possess freewill, rational manner and manipulability. In other words, Beccaria believed that all individuals make their choices at freewill, by looking out for their own personal satisfaction. The manipulability part of his theory rests on the premise that there is a universal shared human motive of rational self-interest and this makes human actions predictable, generable and controllable (Roshier, 1989, p. 16). The central part to this theory is that crime is committed because human nature is predicated upon the search for pleasure and the avoidance of pain (Hayward, 2007, p. 233).43
Hence, in order to prevent the crime of poaching, through a rational choice approach, one should look at reducing the monetary value of the ivory example, a rhino horn, which will have a domino effect on the sum of currency the poachers obtain from taking the animals life.
Utilitarian school of thought similarly has a unique perception of the validity of the death penalty. The school’s proponents believe that a law is a good law in so far as it is enforced with efficiency and usefulness, for the greatest happiness of the greatest number of people.44 From a utilitarian aspect, the law on the death penalty is efficient, and thus has usefulness. It acts as a deterrent to the commission of capital crimes. It, therefore, may be said that the death penalty advocates for the happiness of the greater number of people in the society, as it reduces the rate of serious crime in the society.45
Similar to the utilitarian school of thought theory on the death penalty which supports the death penalty the only distinction is that Kants theory shows when the death penalty may take effect. Immanuel Kant believed that,
To achieve absolute justice, Kant advocates for “jus talionis” where the offence committed is punished by a similar punishment, “An eye for an eye”. This makes Immanuel Kant a retributivist - as he sees the death penalty to be mandatory for capital offenders.46
Kant believes that various crimes qualify to be punished by death. These crimes are of two kinds (amongst others), murder and treason by harming the Head of State or Government (to create vulnerability and instability). The state in tolerating such crimes by failing to execute capital punishment makes the state itself complicit in the commission of such crimes. Therefore, Kant’s key objective in this case is the execution of the death penalty in instances where the protection of the public is needed.47
Hence, in this research this theory shall be vital, for according to the “Eye for an eye”, and in this matter concerning murder, should it be “A life for a life”. As poachers murder the animals.
Alternative forms of control include offering non-crime alternatives to those involved in wildlife crime and moving away from enforcement-based approaches to place a greater importance on prevention.48
In conjunction with improved enforcement one could make legal activities be seen as more rewarding than offending (Wellsmith, 2011, p. 143). This can be done by using a provision of alternative subsistence schemes or by employing members of the local community, including poachers as rangers (Wellsmith, 2011, p. 143). The main idea here is to educate the local community about the value of the wildlife and explain how the animals are more valuable to the communities alive and protected in their natural habitats, then captured or poached. By employing members of the local communities, the local residents will feel included in the business and will understand that the animals are a revenue of income and are more valuable alive than dead.49
The purpose of this research in the end is to eventually find a way to tackle the problem of poaching. With the aim to check whether our wildlife laws are strong enough to tackle the issue of or prevent poaching in Kenya. Furthermore, the aim would also be to check whether the death penalty if passed as law would have any effect on poaching.
Much of the focus into the illegal wildlife trade has been in an international scale and has looked at international policies and laws that prevent the illegal trade in wildlife. However, little research is available as to what is being done at the local level where poaching takes place.50
The study is also of importance to policy-makers because it identifies areas of weaknesses and suggests recommendations to the legal and institutional framework to assist in formulation of an interagency coordination policy framework to address the problem of poaching.51
It is important because poaching is still a major issue not only in Kenya, but globally. The results of it is irreversible, like climate change, once a species has been wiped out and becomes extinct, there is no way to bring it back. In order to prevent/reduce poaching in Kenya,
This research focuses on the beginning part of the network, the actual poachers who are killing the animals52 and if imposing stronger penalties, such as the death penalty on poachers, would diminish poaching.
The study was based on the hypothesis that;
1) Not everyone in the general public will advocate for a death penalty as a punishment to the poachers
2) If Kenya does consider the death penalty law on poachers, other countries in Africa which face the same issue of poaching may follow in the same footsteps.
3) Eventually the rate of poaching will decrease once the wildlife laws are further strengthened and enforced.
The objectives of this research are;
1) To determine whether the death penalty on poachers could be the possible solution to eradicate poaching in Kenya.
2) To investigate whether the penalties on poachers are sufficient enough.
3) To determine the new proposed bill, The Wildlife Conservation and Management (Amendment) Bill, 2017 and its effectiveness.
4) To identify various techniques and methods that can be used to prevent poaching from happening.
1) Could the death penalty strengthen the laws leading to an eradication of poaching?
2) Are the new laws imposed are strong enough to fight poaching in Kenya?
3) Will this new law minimize the poaching crisis in Kenya?
4) What can be done in the future to prevent poaching in Kenya?
5) Are there any other various techniques and methods that can be used to prevent poaching?
Both, primary and secondary sources of data will be used in this research. Primary sources of information shall be collected from the citizens to get their views from a semi-structured surveys/questionnaire.
While secondary information shall be provided by reports, newspaper & scholarly articles, textbooks, documentaries, books & journals, all to support the arguments presented in the study, and to carry out the objectives of the study.
As a descriptive research, it will involve inquiry into the views of different authors as well as the respondents to semi-structured questionnaires, a structured questionnaire in relevance to the study will be distributed to relevant persons in accordance to this research in order to collect their views on the questions of this study.
This chapter of the dissertation will consist of the Introduction to poaching , theoretical framework & literature review, background of the study, statement of the problem , justification of the study, hypothesis , objectives of the study and research questions.
This chapter will explain the importance of conserving our wildlife. Causes and reasons for poaching. Furthermore, providing a more detailed view with facts and figures, statistics on wildlife poaching in Kenya.
This chapter will present the research methodology carried out in this research. It shall entail the views of the respondents via a structured online survey questionnaire in relevance to the study in order to collect their views on the matter and issues of questions regarding this topic. Closing with the data analysis & findings.
The chapter will also consist of an overview of the effectiveness of The Wildlife Conservation and Management (Amendment) Bill, 2017 to the old act.
This chapter will close with an overall conclusion & recommendations to improve the current crisis of poaching. And also, if so, recommend various techniques and methods that can be used to prevent poaching from happening.
Poaching has numerous causes and it is important to understand why they do what they do in order to have a better understanding on poaching. The following are the causes and reasons why poachers poach.
The best way to address this is by first asking yourself, who is a poacher? The Wildlife Conservation & Management Act of Kenya defines poaching; "poaching" means illegal hunting, illegal capturing and illegal harvesting of any wildlife but does not include the control of species widely and commonly regarded as pests or vermin, as listed in a schedule of this Act.53 They are usually poor individuals who don’t come from wealthy backgrounds hence they carry out the illegal killing of the animals in order to get compensated for it as it is a quick source of income.
Unfortunately, most if not all are born into poverty and with trying to make ends meet or position themselves into a better financial position, and despite education being free in public schools, there are still expenses such as school uniforms and books which need to be acquired and some may not even have the money to acquire these for their children. Basically, to make ends meet or to get wealthier than they are, no wonder they result into poaching.
But why poaching?
For the driving reason of the great amount of money involved as, horns from endangered rhinoceros bring up to $25,000 per pound in China.54 While Ivory fetched prices as much as $1,500 per pound due to demand in Asia.55
Horns of the African rhino weigh on average 1.5-3.0 kilograms (3.3-6.6 pounds), with white rhino having the heaviest front horn which on average weighs 4.0 kilograms (8.8 pounds).56 Elephant tusks from Africa average about 6 feet (2 meters) in length and weigh about 50 pounds (23 kg) each.57
Before getting into the calculations of the value of ivory on Kenya’s elephants and rhinos. It is important to note that the animals themselves vary in sizes, thus the tusks themselves weigh different sizes; especially for elephants such as large bulls known as “tuskers” whose tusks are long enough that they almost touch the ground, these tusks may weigh up to 100 kilos and exceed over 2 meters.
But for the purpose of this calculation it was estimated that an average elephant carries 50 pounds (23kg) of ivory each. According to this an elephant can carry up to 50 pounds (23kg) of ivory per tusk, hence amounting to $75,000 (50 pounds x $1,500 per pound) per tusk. At the cost of $75,000 per tusk, the total value of the ivory of a pair on an elephant is worth $150,000 (15,030,000.00 Kenyan Shillings).
On the other hand, it was estimated that an average rhino carries 3.3 - 8.8 pounds of ivory each depending on the species (Northern White Rhino & Black Rhino). According to this, at a cost of $25,000 per pound, the total value of the ivory of a rhino is worth anywhere between $82,500 (8,267,242.50 Kenyan Shillings) & $220,000 (22,045,980.00 Kenyan Shillings) (3.3 pounds x $25,000 = $82,500 to 8.8 pounds x $25,000 = $220,000) depending on the weight of the tusk.
In all, the killing of just a single elephant or rhino is life altering for the poachers as they will get their cut/share they feel that they deserve per kill and because of the great amount of money involved, it is not hard for a poacher to resist this market as they find it easier to make a living this way.
Corruption & Weak governance have intensified the poaching crisis. Endemic poverty has helped organized criminal elements recruit, bribe, and threaten locals, poorly paid police, military personnel, and wildlife rangers to participate in wildlife crime.58
Corruption is linked with the dilemma of poverty as yet again; quick source of income enables the corrupt individuals to make ends meet.
“Corruption among government and private sector officials is a key enabling factor of the illegal wildlife trade,” states the wildlife trade report. “The fact that wildlife contraband, especially rhino horn and elephant ivory, has been exported from Kenya only to be seized in transit or in destination countries means that wildlife traffickers are able to exploit security loopholes in the country’s law enforcement network.”59
With this being said, it further proves that corruption intensifies the poaching crisis due to the loopholes in Kenya’s law enforcement at the ports as various questions arise such as how did the ivory pass customs? Whether or not the containers were checked? This really makes one question the authorities in charge and competence in carrying out their duties.
In addition, in some cases, corruption hides behind incompetence, according to Elizabeth Gitari, a legal officer at Wildlife Direct in Kenya. She says some cases against poachers have been compromised by defective charge sheets, which she suggests may be a deliberate effort by lower level officials to ensure the cases are not heard.60
Even people paid to protect Kenya’s wildlife have been accused of being complicit in poaching. Local media have reported several rhino horns disappeared from various storerooms managed by the Kenya Wildlife Service (KWS) in recent years. No signs of forced entry suggest theft or complicity by an insider. But KWS rejects claims that public officials are colluding with traffickers.61
Kenya’s first-ever national ivory stockpiles inventory was conducted in 2015 in order to determine just how much ivory was stored in the stockpiles. It was found that 137 tons of elephant ivory and 1.5 tons of rhino horn were recorded. The CS of Environment, Judi Wakhungu states that the audit presented that the storage systems of the KWS should be reinforced as they were robust.
“Kenya will put in place strong systems to enhance security and management of Kenya’s trophy stockpile,” she told journalists at a press conference in Nairobi last October.62
Furthermore, a Kenya Revenue Authority (KRA) official and a transporter were also recently jointly charged in a Kenyan court in connection with 511 pieces of ivory seized in Thailand on April 27, 2015 originating from Mombasa.63
Therefore, if persons in the law enforcement, judicial system and especially the transportation sector have been compromised with bribes turns them into corrupt individuals who promote wildlife tracking, it will only result to an increase in poaching or the continuity of poaching because simply put, there would be little or no poaching if there was no ivory to traffic (wildlife trafficking).
Habitat loss because of land use changes and human encroachment into areas that were antecedently occupied solely by wild animals has a significant impact on population for animals. It is important to note that elephants and rhinos are not the only two animal species that get poached, predators such as big cats like lions suffer to.
Due to the increase in human population which has led to an increase in encroachment into wildlife habitat regions has reduced the number of wild herbivores in those areas as they migrate to undisturbed or unoccupied regions, away from humans hence substituting their livestock as easy prey for the lions compared to the wild herbivores which were once there. In addition, due to the increase in human population which has led to an increase in urbanization has led to a decrease in the wild population of the herbivores in that area eventually forces the carnivores to wander off into nearby communities and kill their cattle as that is the only source of food available.
This, in turn leads to poaching by the communities which has led to a decline in the lion numbers as the lions kill their livestock hence take revenge and justice in their own hands, hunt down and kill the lions.
This loss of lions is as a result of human wildlife conflict has becoming extremely rare outside protected areas. Their numbers are threatened by both direct and indirect persecution. These species are threatened directly when they are killed due to threats on human beings and livestock. Indirectly, they are killed when they get into snares set for other species. Poisoning, snaring for ungulates and spearing, all are major threats. Poisoning is perhaps the single greatest threat to carnivores and scavenging birds.64
Thus, resulting into Kenya having only about 2,000 lions left compared to 2,280 in 2004, according to Kenya Wildlife Service. KWS communications officer Paul Udoto said Kenya is losing an average of 100 of its 2,000 lions yearly due to growing human and wildlife conflict, poisoning of carcasses and loss of prey.65
Resulting to unfortunate headlines in our newspapers and articles such as “7 elephants killed in Kajiado as human-wildlife conflict rages”66 … “Herder spears to death lion that attacked his 105 goats”67 and “Kenya Wildlife Service rangers arrest herders for poisoning lions”68.
Bush meat is defined as meat obtained by hunting wild animals especially in Africa.69
A large part of wildlife in Kenya are being killed by poachers for their meat for personal and commercial reasons.
This is done through snares and traps and being poached with bow and arrows. For the most part, these animals are not killed for subsistence use but for commercial trade. And this killing affects every animal species, from the smallest ones such as porcupines, hares, dik-diks and even baby baboons to the largest: buffaloes, zebras, lions, giraffes and elephants.70
They are mainly killed for commercial trade as they will make much more money by selling to, city hotels, bars and restaurants and local butcheries who will ordinarily go for the cheaper low- cost meat. However sometimes they may poach for the bush meat for their own needs, for instance to put food on their table as,
"They see all this wildlife on the other side of the fence and they see it as an opportunity to either have food for themselves or have food to sell to neighbouring communities,” says Walsh. "It's not like rhino horn where there's a massive payoff."71
No wonder they amount to dealing in bush meat because it is important to note that it is not costly for a poacher to hunt an animal as it is not a must that they have to use a gun which is expensive to acquire, but a snare in itself is one of the most effective death traps for an animal because cable snares do not biodegrade after very long periods of times, they are still effective even after years of bad weather conditions. The snare will still trap and kill the wild animal. Unlike a gun, snares are inexpensive for the poacher to acquire and set up as snares could be made at home from thin metal wires to thick cables, hand crafted bows and arrows of different sizes, some with poison applied on the spear and on the tips of the arrows.
In a 2013 annual report KWS indicated that 59 rhinos had been lost to poachers that year along with 302 elephants. The country is known to have lost at least 24 rhinoceros and 137 elephants to poachers in 2014. Fortunately, the existing Black Rhinoceros populations have been recovering from past poaching epidemics through careful monitoring and translocation efforts. In 2007 they numbered 577 individuals and in 2009 had reached 612. The native elephant populations within KWS-monitored areas also appears to be growing according to 2013 census data which placed the number at 1,930, up from 1,420 in 2010. The total elephant population within Kenya was estimated at roughly 38,000 according to the KWS 2012 annual report, but has been revised down to approximately 30,000 in later annual reports.72
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( Figure 1 – Rhino Poaching in Kenya (2006-August 2018)
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Source: The National Wildlife Conservation Status Report 2015-2017. Pg. 65. ( Figure 2- Rhino Poaching Trends (2012-2017))
From the diagrams above it can be noted that; The rhino poaching reduced by 10% in 2017 as compared to 2016. This was also an 85% reduction in rhino poaching compared to when poaching was at its peak in 2013 (and lowest in 9 years).73
*It is very important to note that from the total census of the rhino population in Kenya, under the species of the Northern White Rhino, there are only 2 females hosted at Ol Pejeta Conservancy in Kenya. These are the only remaining living individuals in the whole world and when they die, the Northern White Rhino will be extinct!
1 No. 47, KENYA GAZETTE SUPPLEMENT, No. 181 (Dec. 27, 2013), Kenya Law website.
2 Cap.376, Kenya Law website; WCMA, § 118
3 Jane Dalton @JournoJane, “Wildlife Poachers in Kenya 'to Face Death Penalty'” (The Independent May 13, 2018) <https://www.independent.co.uk/news/world/africa/poachers-kenya-wildlife-death-penalty-capital-punishment- najib-balala-a8349966.html> accessed November 12, 2018
4 Kulundu M, “No, Kenya Is Not Introducing the Death Penalty for Wildlife Poachers” (AFP Fact Check April 16, 2019) <https://factcheck.afp.com/no-kenya-not-introducing-death-penalty-wildlife-poachers> accessed April 20, 2019
5 Kahumbu P and others, “Scoping Study on the Prosecution of Wildlife Related Crimes in Kenyan Courts” Scoping study on the prosecution of wildlife related crimes in Kenyan courts, January 2008 to June 2013.
6 Kulundu M, “No, Kenya Is Not Introducing the Death Penalty for Wildlife Poachers” (AFP Fact Check April 16, 2019) <https://factcheck.afp.com/no-kenya-not-introducing-death-penalty-wildlife-poachers> accessed April 20, 2019.
7 Warinwa F, “Fighting Wildlife Trade in Kenya” (2014) 51 UN Chronicle 36.
8 Wildlife Conservation and Management Act (WCMA) 2013.
9 Paula Kahumbu, 'Kenya Overhauls Wildlife Laws Following Rise In Elephant And Rhino Deaths | Paula Kahumbu' (th e Guardian, 2017) <https://www.theguardian.com/environment/africa-wild/2013/jun/07/kenya-wildlife-laws- elephant-rhino-deaths> accessed 27 November 2017.
14 Paula Kahumbu, 'Kenya Overhauls Wildlife Laws Following Rise In Elephant And Rhino Deaths | Paula Kahumbu' (th e Guardian, 2017) <https://www.theguardian.com/environment/africa-wild/2013/jun/07/kenya-wildlife-laws- elephant-rhino-deaths> accessed 27 November 2017.
15 Cap.376, Kenya Law website; WCMA, § 118.
17 Locgov, 'Wildlife Trafficking and Poaching: Kenya' (Locgov, no-date) <http://www.loc.gov/law/help/wildlife- poaching/kenya.php> accessed 28 November 2017.
18 'Kenya: Implementation Of New Wildlife Law Expedited | Global Legal Monitor' (Loc.gov, 2017) <http://www.loc.gov/law/foreign-news/article/kenya-implementation-of-new-wildlife-law-expedited/> accessed 27 November 2017.
19 The Wildlife Conservation & Management Bill 2013 of Kenya, S.79.
20 Mutai E and others, “Poachers Face Sh100m Fine or Life Sentence in New Bill” (Business Daily May 9, 2017) <https://www.businessdailyafrica.com/news/Poachers-face-Sh100m-fine-or-life-sentence-in-new-Bill-/539546- 3920490-ha7qqz/index.html> accessed November 12, 2018.
24 “Poaching Numbers | Conservation | Save the Rhino International” (Save The Rhino) <https://www.savetherhino.org/rhino-info/poaching-stats/> accessed November 22, 2018.
25 “AN ELEPHANT KILLED EVERY 15 MINUTES” (WORLD ANIMAL FOUNDATION) <http://www.worldanimalfoundation.org/articles/article/8950044/186390.htm> accessed November 22, 2018.
26 “Elephants of Africa” (PBS December 5, 2014) <http://www.pbs.org/wnet/nature/elephants-africa-poaching- problem/11367/> accessed November 22, 2018.
27 In her Comparative Analysis Of Anti-Poaching Strategies, AFRICAS WHITE GOLD.
28 Leila Al-Ajjaz. " AFRICAS WHITE GOLD, Comparative Analysis Of Anti-Poaching Strategies " (2016): 3.
31 Swarndeep S Hundal, „Wildlife Conservation Strategies and Management in India: An Overview‟ (2010).
32 Kariuki Muigua, Didi Wamukoya and Francis Kariuki, Natural Resources and Environmental Justice in Kenya (Glenwood Publishers Limited 2015) 6 – 7.
33 Felicitus C. Ngetich, “AN ASSESSMENT OF THE ROLE OF PROSECUTION AUTHORITIES IN COMBATING POACHING AND WILDLIFE TRAFFICKING IN KENYA” (2016) 13.
34 Dylan Horne, “Policy responses to transnational wildlife crime in the Asia-Pacific” (Working Paper 2/2013, Transnational Environmental Crime Project 2013).
35 KOECH GILBERT, “Elephant Poaching Declines in Kenya, Focus Turns to World Markets” (The Star, Kenya November 30, 2017) <https://www.the-star.co.ke/news/2017/11/30/elephant-poaching-declines-in-kenya- focus-turns-to-world-markets_c1677846> accessed November 12, 2018.
36 Charlton, Richard Wayne, "Death and Destruction: Insight into the Rhino Poaching Epidemic in South Africa" (2017). Theses and Dissertations. 661. https://ir.library.illinoisstate.edu/etd/661.
37 Leila Al-Ajjaz. " AFRICAS WHITE GOLD, Comparative Analysis Of Anti-Poaching Strategies " (2016): 14.
38 Leila Al-Ajjaz. " AFRICAS WHITE GOLD, Comparative Analysis Of Anti-Poaching Strategies " (2016): 15.
39 Ronald L Akers and Christine S Sellers, Student Study Guide for Criminological Theories: Introduction, Evaluation, Application (6 edn, OUP 2013); Stephen E Brown, Finn-AageEsbensen and Gilbert Geis, Criminology: Explaining Crime and its Context (7edn, Matthew Bender & Company 2010).
40 Valerie Wright, „Deterrence in Criminal Justice: Evaluating Certainty vs Severity of Punishment‟ (The Sentencing Project 2010).
41 DLA Piper, „A Ten-Country Review of Legislative and Judicial Approaches‟ (DLA Piper 2014);Paula Kahumbu and others, „Scoping Study On The Prosecution Of Wildlife Related Crimes In Kenyan Courts‟ (Wildlife Direct 2014).
42 Valerie Wright, Deterrence in Criminal Justice: Evaluating Certainty versus Severity of Punishment (2010) 5.
43 Charlton, Richard Wayne, "Death and Destruction: Insight into the Rhino Poaching Epidemic in South Africa" (2017). Theses and Dissertations. 661. https://ir.library.illinoisstate.edu/etd/661.
44 LUBULELLAH EUGENE LUBALE, “‘Mandatory’ Death Penalty in Kenya: An Examination of Its Legality in Light of the Constitution of Kenya 2010 and the ‘Right to Freedom from Inhuman or Degrading Treatment or Punishment’”  ‘Mandatory’ Death Penalty in Kenya: An examination of its legality in light of the Constitution. of Kenya 2010 and the “right to freedom from Inhuman or Degrading Treatment or Punishment”.
48 Charlton, Richard Wayne, "Death and Destruction: Insight into the Rhino Poaching Epidemic in South Africa" (2017). Theses and Dissertations. 661. https://ir.library.illinoisstate.edu/etd/661.
49 Ibid. 66.
50 Charlton, Richard Wayne, "Death and Destruction: Insight into the Rhino Poaching Epidemic in South Africa" (2017).Theses and Dissertations. 661.
51 Felicitus C. Ngetich, “ AN ASSESSMENT OF THE ROLE OF PROSECUTION AUTHORITIES IN COMBATING POACHING AND WILDLIFE TRAFFICKING IN KENYA” (2016) 13
52 Charlton, Richard Wayne, "Death and Destruction: Insight into the Rhino Poaching Epidemic in South Africa" (2017).Theses and Dissertations. 661.
53 The Wildlife Conservation & Management Act of Kenya
54 Fears D, “Figure 2f from: Irimia R, Gottschling M (2016) Taxonomic Revision of Rochefortia Sw. (Ehretiaceae, Boraginales). Biodiversity Data Journal 4: e7720. Https://Doi.org/10.3897/BDJ.4.e7720”  Antique dealers say the new federal ivory ban will cost owners up to $12 billion.
56 “Buyers of Rhino Horn” (Poaching Facts October 15, 2018) http://www.poachingfacts.com/faces-of-the- poachers/buyers-of-rhino-horn/.
57 Britannica TEof E, “Ivory” (Encyclopædia Britannica April 14, 2017) <https://www.britannica.com/topic/ivory> accessed March 14, 2019.
58 Warinwa F and Kiprono W, “Fighting Wildlife Trade in Kenya | UN Chronicle” (United Nations) <https://unchronicle.un.org/article/fighting-wildlife-trade-kenya> accessed March 14, 2019.
59 Broad S, “Drivers and Trends of Transnational Wildlife Crime in Kenya - Wildlife Trade Report from TRAFFIC” (Drivers and trends of transnational wildlife crime in Kenya - Wildlife Trade Report from TRAFFIC) <https://www.traffic.org/publications/reports/wildlife-protection-and-trafficking-assessment-in-kenya/> accessed March 14, 2019.
60 Oniango M and Ochieng A, “Corruption and Poaching: The Tusk at Hand” (Corruption Watch June 9, 2016) <https://www.corruptionwatch.org.za/corruption-poaching-tusk-hand/> accessed March 14, 2019.
63 Weru, S. (2016). Wildlife protection and trafficking assessment in Kenya: Drivers and trends of transnational wildlife crime in Kenya and its role as a transit point for trafficked species in East Africa. TRAFFIC.
64 Kahenya E, “The Lion King Is Vanishing!” (My Amazing Outdoors December 24, 2012) <https://myamazingoutdoors.wordpress.com/2012/10/12/the-lion-king-is-vanishing/> accessed March 15, 2019.
65 @mwangimelanie MELANIEMWANGI, “Lion Population Declines to 2,000 Due to Poaching, Lack of Food” (The Sta r August 10, 2018) <https://www.the-star.co.ke/news/2018-08-10-lion-population-declines-to-2000-due-to- poaching-lack-of-food/> accessed March 15, 2019.
66 FREDRICK FADHILI, “7 Elephants Killed in Kajiado Conflict” (Daily Nation January 14, 2018) <https://www.nation.co.ke/counties/kajiado/Seven-elephants-killed-Kajiado/3444852-4263124-sgruns/index.html> accessed March 15, 2019.
67 Kiplagat R, “Herder Kills Lion That Attacked His Goats” (The Standard March 27, 2018) <https://www.standardmedia.co.ke/article/2001274641/herder-spears-to-death-lion-that-attacked-his-105-goats> accessed March 15, 2019.
68 Kenya C, “Kenya Wildlife Service Rangers Arrest Herders for Poisoning Lions” (Coastweek) <http://www.coastweek.com/3849-Kenya-Wildlife-Service-arrest-three-herders-for-poisoning-lions.htm> accessed March 15, 2019.
69 Merriam-Webster Dictionary.
70 International Fund For Animal Welfare, “IFAW Africa: Bush Meat Poaching in Kenya” (Encyclopædia Britannica April 14, 2010) <http://advocacy.britannica.com/blog/advocacy/2010/04/ifaw-africa-bush-meat-poaching- in-kenya/> accessed March 15, 2019.
71 Segedin K, “Earth - The Real Reasons Why People Poach Endangered Species” (BBC March 11, 2016) <http://www.bbc.com/earth/story/20160310-the-difficult-truth-about-poaching> accessed March 15, 2019.
72 “Rhino Poaching Statistics” (Poaching Facts Truths From The Frontline March 14, 2019) <http://www.poachingfacts.com/poaching-statistics/rhino-poaching-statistics/> accessed March 15, 2019
73 The National Wildlife Conservation Status Report 2015-2017.
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