WILDLIFE CRIME LAWS AND PROSPECTS OF INCREASED SUNSET PROVISIONS is it a futuristic possibility?

WILDLIFE CRIME LAWS AND PROSPECTS OF INCREASED SUNSET PROVISIONS?

is it a futuristic possibility?

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As a former wildlife prosecutor, one of the biggest challenges I faced was facing gaps in the wildlife law and then note that there was absolutely nothing I could do to fill up the gaps law in order to prosecute a particular case. These gaps often would come up because wildlife crime is dynamic and we have novel crime patterns in the making everywhere and everyday…. In effect, the gaps would render the wildlife laws and policies irrelevant, ineffective and unaccountable. ?And the legislative process is often rigid to quickly respond to such predicaments and in some jurisdictions, these gaps are left open for some time while authorities prefer to maintain this fact under “lock and key” that the gap “does not exist” but of course, they would later run to the legislature to begin the long process of filling the gap up, but by then “multa mala evenissent ob hiatus in lege” (a lot of bad things would have happened because of the gaps in the law).

However, as wildlife crime patterns continue to evolve, expand and prove problematic, I have seen that certain earlier legal provisions become less effective and it is certainly not possible each time to rush and initiate amending the subsisting law to allow it have more teeth to bite. What is then the best, simple but effective remedy to this? What now is true is that with years of practical experience in wildlife crime, comparing and contrasting management and legal provisions in different jurisdictions, I can provide relevant consulting services on the matter under discussion and any other matter connected directly or indirectly.

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SUNSET CLAUSES

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These are provisions implanted in the laws, regulations, or policies that??

1. Automatically repeal or expire a particular provision or entire law after a specified period (so this might encourage a constant review process of any developed criminal justice toolkits followed by capacity building activities).

2. Require periodic review to assess the continued need, effectiveness, or impact of the law (so it’s important for wildlife management agencies to consider having a comprehensive legal research team to carry out needs analysis)

3. Trigger a re-evaluation of the law's relevance, necessity, or consequences (as stated in 1 & 2 above).

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BENEFITS?

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Sunset clauses aim to:

1.?????????????? Prevent perpetual laws that may become outdated or unnecessary (sometimes we have had situations in which a protected area(PA) has, on basis of policy change, declassified into a multiple land use zone, due perhaps to new land use plan such as mining, farming, settlement or fishing but may still have its boundaries (on paper) entirely still displayed as a PA with all the entry or settlement restrictions still active and legally binding

2.?????????????? Encourage periodic assessment of laws to ensure they remain relevant and effective.

3.?????????????? Promote accountability by requiring lawmakers to re-examine and justify the continuation of a law (provides that relevant platform to constantly engage with lawmakers and other stakeholders towards a legislative process)

4.?????????????? Limit the scope and duration of laws, preventing potential abuse or unintended consequences.

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WHERE SUBSET CLAUSES CAN BE FOUND

Sunset clauses can be found in various contexts, including:

1. Legislation: Laws with sunset clauses that expire after a set period. And I have a few examples I can list starting with Cameroon, the country that I have fallen in love with their bi-jural legal system:

??The Investment Incentives Act (2013): Article 24 contains a sunset clause for investment incentives, limiting their duration to 5 years.

??The Customs Code (2000): Article 121 contains a sunset clause for customs exemptions, requiring periodic review and renewal. They also have something in their Tax Code, the Labour Code and The OHADA Uniform Act

??Both Zambia and Zimbabwe have sunset laws in their Revenue Acts providing for tax exemptions, these two countries have similar provisions for sunset laws in their Investment Acts, Mines and Minerals Acts, etc

??Kenya's Wildlife Conservation and Management Act, Tanzanian’s Wildlife Conservation Act, Ugandan Wildlife Act and Rwandan Law Relating to the Conservation and Management of Wildlife and Their Habitats all have Sections that contains a sunset clause for the transition period of wildlife conservation and management

??South Africa's National Environmental Management: Biodiversity Act (2004): Section 83 contains a sunset clause for the phased implementation of biodiversity management plans.

2. Regulations: Regulatory provisions that automatically repeal or require review after a specified time.

3. Policies: Organizational policies with sunset clauses to ensure periodic review and updating.

4. International agreements: Treaties or agreements with sunset clauses to facilitate periodic review and renegotiation. For example:

??African Union's Convention on Preventing and Combating Corruption (2003): Article 22 contains a sunset clause for the establishment of an advisory board.

??Southern African Development Community's (SADC) Protocol on Trade (2012): Article 24 contains a sunset clause for tariff phase-down.

??East African Community's (EAC) Customs Management Act (2012): Section 42 contains a sunset clause for transitional provisions.

These examples above illustrate the use of sunset clauses in various African countries and regional organizations to ensure that laws, regulations, or policies are reviewed, updated, or terminated after a specific period.

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CAN SUNSET PROVISIONS HELP FIGHT WILDLIFE CRIME?

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Wildlife crime is not only a fast growing illegal enterprise but also is managed and organized by highly specialized criminal gangs. These gangs operate skillfully outside the borders of the legal system and when they plan to use the legal framework, then it is often to exploit it to their own advantage, usually targeting weaknesses in the law or procedures to their advantage and committing several cross cutting offenses such as corruption, money laundering, tax evasion, etc on the way. To this extent, sunset provisions can be highly relevant in wildlife laws when fighting wildlife crimes in the following ways:

1.?????????????? Adaptability: Wildlife crimes evolve rapidly, and sunset provisions allow laws to adapt to new threats and tactics in order to remain relevant and effective (UNODC, 2020)

2.?????????????? Preventing perpetual restrictions: Sunset provisions prevent laws from becoming outdated and overly restrictive, ensuring they remain effective and targeted. For example, access to fish in some areas is only restricted for a certain number of months and later opened up (Hemingway, 2018)

3.?????????????? Encouraging review and improvement: Sunset provisions prompt regular review and assessment of wildlife laws, enabling updates and improvements to stay effective??especially when the wildlife protection agency has a legal research unit overseeing this aspect (Wyatt, 2013)

4.?????????????? Addressing emerging issues: Sunset provisions allow laws to address emerging issues, such as new technologies or tactics used by wildlife criminals.

5.?????????????? Maintaining relevance: Sunset provisions ensure laws remain relevant to current conservation needs and priorities (IUCN, 2019)

6.?????????????? Fostering international cooperation: Sunset provisions can encourage international cooperation and harmonization of wildlife laws, although due to jurisdictional differences in policy and legal frameworks this can be problematic (CITES, 2020)

7.?????????????? Enhancing accountability: Sunset provisions require periodic justification and review of wildlife laws, promoting accountability (Transparency International, 2019)

8.?????????????? Supporting evidence-based policies: Sunset provisions encourage data-driven decision-making in wildlife crime policy development (OECD, 2019)

9.?????????????? Protects against abuse: Sunset laws prevent potential abuse of power or overreach by authorities (Human Rights Watch, 2020).

10.?????????? Promotes transparency: Sunset laws increase transparency in wildlife crime law development and implementation (World Bank, 2019)

11.?????????? Encourages innovation: Wildlife crime is dynamic so sunset laws allow for the exploration of new approaches and strategies to combat it (WWF, 2020).

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DISADVANTAGES OF SUNSET CLAUSES

The following might be considered as dangers of sunset clauses:

1. Unintended Consequences: Sunset clauses can lead to unintended consequences, such as disrupting established practices or creating uncertainty (Gilmour, 2015).

2. Lack of Accountability: Sunset clauses can allow policymakers to avoid accountability for their decisions, as the provisions will automatically expire (Kagan, 2001).

3. Inadequate Review: Sunset clauses can lead to inadequate review of laws and regulations, as the focus is on expiration rather than evaluation (Posner, 2001).

4. Disruption of Programs: Sunset clauses can disrupt programs and services, causing harm to beneficiaries and stakeholders (Schneider, 2012).

5. Uncertainty and Instability: Sunset clauses can create uncertainty and instability, making it difficult for individuals and organizations to plan for the future (Lewin, 2014).

6. Abuse of Power: Sunset clauses can be used to abuse power, allowing policymakers to push through controversial provisions under the guise of a temporary measure (Moe, 2009).

7. Inequitable Distribution of Power: Sunset clauses can perpetuate inequitable distribution of power, as those who benefit from the provisions may have more influence over their renewal (Krause, 2013).

8. Lack of Transparency: Sunset clauses can lack transparency, making it difficult for the public to understand the implications of the provisions (Sunstein, 2013).

9. Rush to Renewal: Sunset clauses can create a rush to renewal, leading to hasty decisions and inadequate consideration of alternatives (Gilmour, 2015).

10. Undermining the Rule of Law: Sunset clauses can undermine the rule of law, as the automatic expiration of provisions can create uncertainty and undermine the stability of the legal system (Posner, 2001).

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RECOMMENDATIONS

1. Careful consideration: Sunset clauses should be used judiciously and only when necessary.

2. Clear goals and objectives: Establish clear goals and objectives for sunset clauses to ensure they achieve their intended purpose.

3. Adequate review and evaluation: Ensure adequate review and evaluation of laws and regulations before they expire.

4.Transparency and notice: Provide transparency and notice to stakeholders about sunset clauses and their implications.

5. Flexibility and adaptability: Allow for flexibility and adaptability in sunset clauses to accommodate changing circumstances.

6. Independent review: Establish independent review mechanisms to prevent abuse or manipulation of sunset clauses.

7. Public engagement: Encourage public engagement and participation in the review and evaluation process.

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References:

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- UNODC (2020). World Wildlife Crime Report.

- Hemingway, J. (2018). Sunset Clauses in Wildlife Law. Journal of Environmental Law, 30(2), 247-264.

- Wyatt, T. (2013). Wildlife Trafficking: A Deconstruction of the Crime, the Victims, and the Offenders. Palgrave Macmillan.

- IUCN (2019). Wildlife Crime and the Law.

-CITES (2020). Cooperation and Coordination.

- Transparency International (2019). Corruption and Wildlife Crime.

- OECD (2019). Evidence-Based Policy Making in Wildlife Conservation.

-Human Rights Watch (2020). Protecting Human Rights in the Context of Wildlife Conservation.

- World Bank (2019). Transparency and Accountability in Wildlife Conservation.

- WWF (2020). Innovative Approaches to Combating Wildlife Crime.

-Gilmour, J. B. (2015). Sunset Clauses and the Diffusion of Policy Innovations. Journal of Public Policy, 35(2), 257-275.

-Kagan, E. (2001). Presidential Administration. Harvard Law Review, 114(8), 2245-2385.

-Krause, G. A. (2013). Sunset Clauses and the Politics of Legislative Review. Journal of Legislative Studies, 19(1), 34-53.

-Lewin, L. (2014). The Sunset Clause: A Critical Analysis. Journal of Law and Policy, 22(1), 1-25.

-Moe, T. M. (2009). The Politics of Structural Choice. Cambridge University Press.

-Posner, R. A. (2001). The Constitution and the Rule of Law. Harvard Law Review, 114(8), 2035-2044.

-Schneider, A. L. (2012). The Dangers of Sunset Clauses. Journal of Public Administration Research and Theory, 22(3), 531-553.

-Sunstein, C. R. (2013). Why Nudge? Yale University Press.

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