Recently, Namibians have united in their collective expression of anger, despair and determination against the bane of poaching.
Emotive pictures of downed elephants and rhinos, with their tusks and horns severed – at times whilst they remain alive – accompanied by rallying calls, have become commonplace on social media and on the front pages of daily papers.
Reasons to halt the rapidly declining poaching situation range from the sheer wildlife cruelty that poaching and dehorning involves, to the pressing need to conserve our unique fauna for the collective benefit of present and future generations.
The manner by which this is achieved, in light of the persistent poaching predicament, is multifarious: education on resource protection’s value and community beneficiation, particularly for those in close proximity to parks, conservancies and reserves, remains key; law enforcement through deployments on the ground to deter, prevent and capture assailants is indispensable.
But what remains neglected is the necessity for legal innovations adapted to changes in circumstances. This, in our view, can be done through the legal innovation of plea-bargaining.
The nature of plea-bargaining will be elaborated on later in this piece.
First, a few lines must be noted on law enforcement. Even in the dire circumstances of poaching, it remains evermore important that anti-poaching be done within the rule of law, as anchored in the Namibian Constitution.
State agents who have taken to patrolling the natural habitats of threatened species are worthy of commendation: they do so in trying physical environments, frequently risking their own limbs and lives against an often well-equipped and determined adversary.
Nonetheless, the nation must remain dedicated to crime fighting in the only manner possible—within the realm of the rule of law. The vile nature of poaching should not serve as a breeding ground for us to justify, or condone parting with inalienable principles of our moral existence and those reflected in our Constitution, the most central being the sacrosanctity of life.
We should safeguard against allowing our savannahs from becoming arenas where “jungle justice” is excusable. In confronting poaching perpetrators, the strict legal requirements for acting in private (self) defense, particularly those relating to an attack that has commenced or is imminent, must be fully satisfied by law enforcers.
This collective responsibility is one of guardianship and caution that requires society to not expressly or implicitly champion conduct contrary to our laws. Journalists and the media retain a unique frontline duty of vigilance, as the fourth estate in this respect.
As mentioned, new legal innovations are needed to assist in bringing about effective and efficient anti-poaching strategies. Current anti-poaching efforts have yielded arrests, detentions, prosecutions, and convictions that have drawn penalties of fining and incarceration.
Some poachers caught red-handed have been injured, while others have lost their lives in the pursuit of criminal deeds. As the old Nigerian proverb goes: “The death that will kill a man starts as an appetite”. Every lost life is nevertheless as painful and a regrettable loss to society.
There is evidence that markets consuming these poached ivory and rhino horns are located in countries and on continents afar. The men who are engaging in running gun battles with law enforcement are evidently the small fry, proxies of ‘bigger fish – possibly domestic or foreign – used to perpetrate wildlife crimes.
Arresting and detaining – sometimes killing – these men is unlikely to stop the rot. The ‘big fish’, with access to lucrative black markets, will continue to create ‘appetites’ by approaching and incentivising those who are at times desperate from social and economic destitution to risk their individual liberty, limbs and lives.
In synchronicity with other strategies and campaigns, such as those involving ‘boots on the ground’ against poaching, the law ought to recast its approaches to identifying, apprehending and convicting these ‘big fish’.
Various strategies can – and are – being invested in by the State (including the recent high-level ministerial campaign on wildlife crime launched during the 2016 Ongwediva Trade Fair) and private citizens.
However, the criminal law is uniquely positioned to help in identifying the ‘big fish’ and ensuring that they are subjected to the full wrath of the criminal justice system in light of the changing circumstances under which these crimes are being committed today.
International organisations, such as the Wildlife Justice Commission, have alleged that some law enforcement agents, politicians, and even foreign diplomats abusing immunity are implicated and corruptly derive personal benefit from organised syndicates.
Though these assertions remain just that, almost every successful prosecution is triggered by an allegation, the veracity of which is to be established by the prosecution. Indeed, the absence of evidence is not the evidence of absence.
These far reaching allegations therefore merit investigation, with the view of bringing culprits to book on the basis of evidence presented. But this remains a mammoth task without direct evidence proving their involvement in poaching beyond the physical poachers being caught in the act.
Therefore, the innovation of plea-bargaining would be of assistance here. By way of a simplified example, a plea bargain is a legal arrangement applied on a case by case basis and one that would be effected as follows: assume a group of Namibian poachers are caught red-handed by the anti-poaching unit police officers in Etosha, while attempting to dehorn a rhino carcass they had just tracked down and killed.
After the police arrest them, the prosecutor responsible either offers to bring lesser charges against them or offers to pursue only a sentence of lesser severity. This would be subject to the condition that the accused persons agree to co-operate with the prosecutor, providing substantial information leading to evidence as to who sent them, who provided them with the weaponry used, and to whom the horns would have been handed over.
Alternatively, the accused persons agree to act as witnesses against others with the aim of convicting the rhino horn dealer and weapons supplier.
Plea-bargaining arrangements are made in the realisation that it is next to impossible for a successful prosecution of the rhino horn dealer in our example to be undertaken due to the inevitable insufficiency of evidence and that there is a greater benefit in convicting the big fish pulling the strings and sustaining poaching, rather than their low level proxies.
Therefore, it is our view that legislative reform towards the introduction of a plea-bargaining regime could lead to the deterrence or conviction of the organised poaching syndicates that are in operation within Namibia and beyond.
Plea-bargaining mechanisms could also be extended to other criminal cases where obtaining direct, substantial evidence for a successful prosecution is an enduring challenge, in particular crimes involving corruption in the public and private sectors. A large body of research on plea bargaining models and best practices are widely available.
Across the Orange River, South Africa has, for example, employed a variant form of plea-bargaining, called sentence bargaining, with exceptionally positive results in curbing corruption, conserving their judicial resources, and fostering the accused’s acceptance of guilt.
Although the introduction of plea-bargaining in Namibia has also been considered by and found support in the Director General of the Anti-Corruption Commission and the Judge President and Deputy Chief Justice (although in an extra-judicial context) from as far back as 2010, citing added advantages of efficiency for the administration of justice and decongesting the currently heavily congested court rolls, no institutional efforts levelled towards research or reform have been observed to date.
In closing, our view is that the scourge of poaching presents an opportune time to critically reflect on the functioning of criminal justice in Namibia. This should be done with the view of introducing legislative reforms towards the adoption of a suitable plea-bargaining model as a means to, amongst others, protect and preserve her wildlife through law enforcement that retains an enduring fidelity to the rule of law.
* Ndjodi Ndeunyema is an MPhil in Law Candidate at the University of Oxford, UK and is co-author of the textbook ‘The Law of Pre-Trial Criminal Procedure in Namibia’, while Elize Shakalela holds an LLM focusing on the establishment of environmental courts and tribunals from Loyola University, Chicago. She is currently an independent environmental law consultant.