Death penalty for poachers in Kenya?

Recently, news broke (again) that Kenya was to introduce the death penalty for poachers (the same story ran already in May 2018). According to the Wildlife Conservation and Management Act (WCMA), poaching means the “illegal hunting, illegal capturing and illegal harvesting of any wildlife.” Kenya lists the African elephant (Loxodonta africana), the White rhino (Ceratotherium simum) and the Black rhino (Diceros bicornis) as critically endangered and thus under strict protection under the Act. Currently, penalties relating to a violation of any management plan in national parks or sanctuaries result in at least 2 years in prison or a fine of at least 500,000 KES (~ 4,500€) (WCMA, article 88).

An amendment to the penalty provisions of the WCMA would therefore mean a clause that introduces capital punishment into wildlife management law. While this has not happened yet, a call for such amendment was reportedly uttered by Cabinet Secretary for Tourism Najib Balala. The Ministry of Environment & Forestry, on the other hand, has remained silent on this issue.

© Marjo Ochieng

Balala expressed that the current penalties of life imprisonment and a $200,000 fine are not sufficient enough to deter poaching, according to this news story. However, upon closer inspection, the links provided refer to Taiwanese and not Kenyan law and it is thus unclear whether Balala has expressed this concern in the first place.

The amendments to the WCMA currently under consolidation do not include a clause on the death penalty. Instead, penalties are to be significantly tightened, based on the offence committed. In the case of illegal killing an animal of a species listed in Appendix I of CITES, thus banning trade in any products deriving thereof, will face a prison term of no less than 5 years. Also traders or those possessing items now face significant penalties once the amendments enter into force. Particularly drastic are penalties for manufacturers who face fines of at least ~90,000€ and/or life imprisonment.

All 2018 amendments currently under consolidation are available here. The amendments in question refer to No 18 of 2018.

This brief fact checking reveals that even though there may have been comments on introducing the death penalty for poachers, this does not reflect in factual (legal) developments in Kenya. According to the latest assessment by the UN Committee on Torture from 2013, the country has de facto not carried out the death sentence since 1987 even though 1,600 persons are still on death row. A factual reintroduction of the death penalty to protect wildlife would consequently break with this practice.

Moreover, the question remains whether the death penalty would serve as a deterrent for wildlife crime. Countless examples from countries such as the United States have shown that capital punishment does not ensure less crime. It certainly does not take away the incentives to conduct poaching in the first place. I think the questions that must be asked are: why does poaching occur in the first place? Who conducts poaching? What happens with the poached animal? In other words, to effectively curb poaching, detailed socio-economic assessments need to be conducted in order to develop efficient counter-measures.

Eradicating people does not solve crime. Eradicating the incentive does.

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