THE CURSE OF FIXED MINIMUM HIGH SENTENCES - WILDLIFE CRIME STORY

By around the 2000, many jurisdictions across Africa, started migrating from low sentencing regimes to enacting wildlife laws that provided for the imposition of high minimum fine or jail sentences on wildlife offenders. The general understanding was solely to try and send a strong message to wildlife criminals that “we are now serious in dealing with you.” I think the message was more like: “once you are caught, we are ready to prosecute you and once you get convicted the court will impose the maximum punishment we have set for you.” I remember as a young Zambian wildlife crime prosecutor then everything went well for a good number of years, securing “heavy” sentences on most wildlife criminals. The cases would be prosecuted swiftly in court. The whole process sent out an impressive message for sure. Even what you might consider as simple offenses such as - unlawful entry into a national park came with a minimum high fine….although, after looking back, I have come to make my own conclusions that in essence there should be two types of entry into a national park. One entry with criminal intent and one for people who enter without criminal intent (this is an argument for another day but those who wish to know can directly contact me so I provide details).

However, after more than 25 years of prosecuting wildlife crimes across courts in Zambia and having had an opportunity to physically or remotely follow and compare with the happenings in other jurisdictions across Africa, especially those with Statutes providing for high minimum sentences, I have noted with regret that the high minimum sentences approach is deeply counter-productive and grossly undermines and water down the very aims that we are seeking to achieve.

WHAT DO WE WANT TO ACHIEVE?

1. A court system that functions independently and in a manner that deters criminals.

2. An appeal proof prosecution process that does not give worries if the convict filed an appeal.

3. A quick appeal process that would prevent convicts from enjoying “temporal” freedom on bail perpetually

4. Strong prosecution process that is based on sound and good investigations.

5. The final verdict to be proportionate and consistent sentencing.

WHAT IS THE PROBLEM

While trying to achieve the above desires the following has come to play and eventually defeating every aspect of enjoying the benefits of “minimum high sentences.” Suddenly we are now experiencing

1. Unnecessary case adjournments

2. Accused persons on bond/bail absconding court and sureties for hire

3. Those accused in custody often not brought to court due to lack of transport or the case officer has forgotten to bring them to court

4. missing case files (I personally had a case, years ago that ended in an acquittal but my appeal against the acquittal never materialized because the case record suddenly disappeared from the registry at court)

5. Difficulty in organizing state witnesses to testify in court

6. In some jurisdictions, lack of expert witnesses to testify. And this creates a loophole resulting in acquittals

7. Over the years the ability to secure convictions has become more difficult, compounded by witness fatigue due to prolonged case delays

8. Loss of exhibits that are critical in the case. I personally had a case in which suspects were apprehended with 20 pieces of ivory and in the process half of the exhibits “were stolen” from the stores before trial opened up. I was asked to pickup the case with half the pieces of ivory and we secured a conviction because we depended on the seizure note that was earlier signed by the accused. The accused again lost on appeal

9. I have also seen that the desire by criminals to escape punishment has resulted into opportunities for corruption. Some players along the criminal justice path have been soiled resulting in frustrating the criminal justice system and making criminals appear clever as they can easily escape justice

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THE OTHER ISSUE

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The high minimum sentences clearly has taken away the ability for Judges and Magistrates to impose appropriate sentences based on facts and other mitigatory aspects before them. The high minimum sentences are arm twisting the courts. Remember the unlawful entry situation I mentioned earlier? The courts often want to have sufficient discretion and have a reasonable chance to punish severely those they feel deserve high punishment and give lesser punishment to those the court considers so. By taking away all such discretion I have seen the following:

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1. Courts are now left with a temptation to proceed and acquit suspects even in the most straight forward cases. Acquittals that have left both the investigators and prosecutors blown away. Even the public is sent into shocks as they too had considered the case to be watertight. But acquitting on technicalities that often does not make legal sense

2. In some countries, I have seen some courts avoid imposing the high minimum jail terms, instead proceed to impose suspended sentences, community sentences, etc, creating further confusion in the criminal justice process. This is common especially in courts based in rural settings where supervision is not always possible or takes time to be initiated and once the accused has gone away, it becomes a mere academic exercise to correct the situation.

3. In some jurisdictions I have seen the courts impose a high fine but give a very low term of imprisonment as a default. This gives a good option for the accused to go to jail for a few days or weeks or months

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Now in all this process we should acknowledge that we are dealing with an extremely organized criminal system so with such punishments it will be the very low and poor criminals directly implicated while the perpetrators are never punished or if they are punished they will easily find a way out of trouble.

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ANY OPTIONS?

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1. Can binding sentencing guidelines work? That set a range for minimum and maximum sentences for given classes of crimes. The court would then decide what punishment to give based on evidence, mitigation and aggravating factors on a case basis? The sentencing guidelines can also promote an environment that encourages good aspects of plea bargaining to reduce on time and cost on non-contentious issues

2. Make the necessary legal amendments

3. Promote effective investigations and robust prosecution and swift appeal processes (of course there is a general cry in many jurisdictions that there are fewer Judges to expeditiously attend to appeals)

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What must be acknowledged is that the time a case now takes in court from start to end is so unreasonable, long, breeds fatigue and opens up corruption opportunities. The now long trial processes have been used to defeat the criminal justice system and the initial wildlife management plan to use the law as a tool to conservation become a circus.

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And the cycle continues

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