March 17, 2021 • 25 mins
Africa's is known for its extraordinary wildlife and conservation efforts. Because of weak rule of law, this is under threat. African lawyers are toiling to address the problem but there are issues of resources and capacity that undermine the ability of prosecutors to prioritise wildlife cases alongside all of the other serious criminal matters that they have to deal with.
In this podcast, we gain exclusive insights from criminal barrister, Shamini Jayanathan who gives us a unique insight into the challenges - and some of the solutions - based on her experience working with lawyers and in courtrooms across Africa. Here she explains why a more holistic approach to criminal justice is required if we are to succeed in the fight against wildlife crime.
Inspiring positivity together.
...Together we make Tofauti.
Mark as Played
Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Crista Cullen (00:02):
Hello and welcome to the Tofauti podcast series.
For my next Tofauti pod, I amdelighted to be joined by
Shamini Jayanathan.
We first met, unbeknownst toShamini, when I listened to her
so eloquently on a webinartalking for Space for Giants
(00:24):
around the topic of criminaljustice response to wildlife and
forestry crime.
I was taken aback by herunderstanding of Africa and a
sheer ambition to make adifference.
And so I was really keen forher to become part of our
Tofauti podcast series.
So welcome Shamini to theTofauti pod and it's an absolute
pleasure to have you join us.
Shamini Jayanathan (00:46):
Thank you very much for having me.
I'm delighted to be here.
Crista Cullen (00:49):
Good.
So Shamini, you have quite ahistory and we've connected over
this before, but I'd love tosort of just for our listeners
to understand the journey thatyou've been through to sort of
become this influential figureacross the African judiciary
landscape.
So can you just give us a bitof an insight as to how you've
ended up in that area ofexpertise?
Shamini Jayanathan (01:10):
Well, I started out as a barrister.
I qualified in the 90s, and Ipracticed for nearly 16 years in
the Crown Courts of, first ofall, Southeast Wales, and then
London.
And I moved from London toKenya first in 2012 with a
(01:32):
posting to complements of theForeign Office to work on
counterterrorism in East Africa,which was quite a jump for me.
I have no connection to Kenya.
I came here with my two youngchildren and it was a very
exciting, very new role workingfor the diplomatic service and
trying to realize some of theUK's ambitions in terms of
(01:53):
fighting terrorism in the sourceof some of the problems that
were posing a risk to UKinterests, both in the UK and
abroad.
So I found myself in placeslike Mogadishu and Somaliland in
Hargeisa as well.
And it was whilst I was doingthat that that I suppose by way
of a chance meeting, it wasactually at a party, that I met
(02:15):
a woman who asked me a questionabout conservation and poaching.
At the time, Kenya was one ofthe, I think it had a reputation
as being one of the gang ofeight at that time, being
responsible for quite a largevolume of ivory that was either
originating from Kenya ortransiting through.
And I suppose that inquiry ledme down the rabbit hole of
(02:36):
conservation.
And eventually I pivotedtowards of Wildlife Conservation
and I started to work buildingcriminal justice sort of
responses from the prosecutorialand judicial point of view.
Before that, most of the workhad been really focused on law
enforcement and so I found thatI was able to provide, based on
(02:57):
my experience, a rather uniqueexperience given I'd been a
prosecutor for so long.
So yeah, that's how I foundmyself in this space.
It's been quite an interestingand unexpected
Crista Cullen (03:07):
journey.
Amazing when you sort of end upat at parties and they sort of
influence your trajectory.
But yeah, I mean, there'salways these sort of unbeknownst
conversations that you havethat sort of sway you in
different directions.
But you've kind of been reallyinstrumental in sort of building
criminal procedures, especiallyin our arena that we're talking
(03:28):
about here on the Tefauti Podaround wildlife trafficking.
So tell us about some of thosepolicies that you've put in
place and I guess some of thosesort of, in some ways, global
transitions that have kind ofhappened off some of the
policies that you've driven?
Shamini Jayanathan (03:42):
So I've taken quite a holistic approach.
It kind of puzzled me at thebeginning when I saw, even in
the work of counterterrorism,that there was a very siloed
approach being taken by bothgovernments, IGOs and NGOs, as
if we could somehow solvewildlife trafficking, human
(04:03):
trafficking, counterterrorism,sexual violence or crimes
relating to sexual violence, allin in isolation and I was
puzzled because all of thosecases wind up in the same
bottleneck of a courtroom andall of those cases had to go
through sort of the gatekeeperwhich is the prosecutor and so a
(04:23):
lot of those cases were in allof those sectors were basically
floundering when you got intocourt either because the
prosecutor had not made theright decision on charge and
there were so many reasons forwhy that happened or because
courts are plagued by a and thenat the end of it you may have a
sentence that really bore norelation to the criminality the
(04:46):
culpability or the harm that wascaused and so my approach was
very holistic and it came frommy experience as a barrister for
so long which was number onelet's look at the way that
prosecutors are actuallycharging all of their cases and
so I worked with the then DPP ofKenya and I've worked more
recently with the current DPP ofKenya on the same thing which
(05:07):
is to codify the way in whichall prosecutors charge every
single criminal case that comesinto their docket and I've done
that in Uganda and Botswana andother jurisdictions because
without that foundation youcan't really move forward into
specialisms and it was once thatthose codes were passed and
what we saw as a result was thatthe number of cases being
(05:30):
charged by prosecutors startedto drop because they weren't
charging cases that didn't haveenough evidence at the beginning
and the quality of thedirections they were giving to
investigations started toimprove quite dramatically.
And it was only layered on topof that that I created something
called the Rapid ReferenceGuide.
And I'd done that first forterrorism in Somalia, navigating
(05:52):
the existing legislationbecause they didn't have a
counter-terrorism law at thetime.
And then I created the samesort of model for wildlife
trafficking.
And that's been really helpfulin identifying what I call the
points to prove.
Any prosecutor will be familiarwith that sort of terminology.
And so That in turn, theprevious DPP of Kenya raised his
(06:13):
conviction rates from 24% toover 80% in quite a short period
of time because it just made,again, that decision to charge
more of a science rather than anart.
It became an accountabledecision, a transparent
decision, and something thatprosecutors could justify
whether they decided to charge acase or not.
It protected them in many ways,that code for charging and that
(06:37):
sort of approach.
And then the other area that Isort of focused on was this
issue, as I mentioned, that theculture of adjournments that
exists in so many courts acrossall jurisdictions, certainly on
this continent, that I've beenexposed to.
And I've sat in the back ofcourtrooms from Mogadishu down
to Mozambique.
And this is a problem thatpersists and it affects both
(06:58):
prosecutor and defense counsel.
And so with the Britishgovernment and the Judicial
Training Institute of Kenya, wework very hard to introduce
criminal procedure rules thatbasically sped up criminal
trial.
And it is now being rolled outby the United Nations Office of
Drugs and Crime.
So that's been, again,holistic.
(07:20):
It impacts all criminal cases.
And in doing so, it starts todeliver justice, you know, both
for victims and defendants alikein a much more efficient, fast
way.
And I suppose a third area thatI've looked at is sentencing.
Because, again, we see so manytimes prosecutors work very hard
hard investigators work veryhard and at the end of it you're
(07:42):
suddenly puzzled by this thisfine that's imposed or a
sentence completely suspendedand the defendant basically
walks free and so deliveringguidance on sentencing
particularly for wildlife crimehas been really effective
coupled with training ofmagistrates and prosecutors so
that they're aware and againwhat I saw when I was working
(08:04):
for the NGO space for giants andwe did a survey in Botswana we
saw the rate of imprisonment forivory cases go from 13% to 92%,
again, in a very short periodof time in northern Botswana.
So, and those principles thenextend, and that approach
extends to other areas ofcriminal law.
So, you know, holisticapproach, things are actually
(08:26):
systemically changed the way thecriminal justice is
administered, is really the onlysustainable way, in my view, to
actually bring about somechange.
Crista Cullen (08:35):
No, absolutely.
And yeah, the overlap, I guess,as you sort of say, from some
of the other criminal acts thatcan happen is so helpful, I'm
sure, for our area of wherewe're trying to all operate.
But that doesn't stop thefrustrations.
I'm sure you've had themextensively, and I know we have
(08:55):
them within the conservationspace.
We sort of have this lengthyprocesses of sentencing.
Of course, we have aresponsibility to collate all of
the data and all of thebackground evidence.
But bails are relativelyaffordable.
We see people, just like you'vesaid, getting out to source and
unfortunately committing thesecrimes once again.
(09:16):
It can just be so frustrating.
And I can only imagine thelength of time you've sat in a
courtroom and then only for itto be adjourned and not actually
sit.
All of those things in Africa,I think, are sort of
highlighted.
How do we sort of manage thatprocess better?
Do you think we sort ofimplement some of those things
you were talking about?
Or is there another way to makeit more sustainable and make
(09:39):
people more accountable for someof these crimes they commit?
Shamini Jayanathan (09:43):
So I think the changes or the ideas that I
just shared a moment ago arereally important because when a
prosecutor turns up at court,and I observe this in many
courtrooms, very often they'represented with a file for the
first time by an investigatorwho's effectively been waiting
for them to turn up thatmorning.
(10:05):
In northern Kenya, I remembersitting in a courtroom over a
couple of years ago, and themagistrate had listed 24 trials
in one courtroom in one day.
The courtroom itself waspacked.
Some of those cases involvedivory, but others involved child
abuse, aggravated robbery.
I remember the prosecutorlooking at her smartphone trying
to find a law.
(10:26):
It was quite an obscure pieceof law for one of the case files
that she was due to present onthat morning.
And so when you picture thatsort of a scene and an officer
coming in and saying, we've gotthis really serious case, he
needs to be remanded in custody,custody, we need to set this
down for trial, that prosecutorreally hasn't got much of a
chance to do the adequate sortof preparation or to give
(10:49):
instructions to the investigatorabout what she needs or he
needs to present an argument fora remand in custody.
So changing the sort of system,the way in which that sort of
physical interaction, thatdiscussion over the file, the
examination of the evidencetakes place has to happen
because it's very difficult tothen say to that prosecutor,
(11:10):
you've got this ivory case, youmust prioritise this over the
rapes and robberies that you'reabout to present.
It's probably not going tohappen.
That case is probably going togo to the back of the queue when
you've got human victims, childvictims sitting in court
waiting for their hearing.
And
Crista Cullen (11:28):
so...
It's so difficult todifferentiate, isn't it, between
those sort of wildlife elementsand then, of course, the human
factor that we're a lot moreconnected to naturally, aren't
we?
Shamini Jayanathan (11:39):
Of course.
And I think also with all ofthese procedures, to counter
that situation where, forexample, a prosecutor is well
prepared, either on a bailhearing or a sentencing matter,
and a sentencing court then doessomething sort of left field,
that prosecutor needs a power ofappeal.
(11:59):
And sometimes the legislationthat I've looked at, and it
doesn't sit in wildlifelegislation, it will sit in
procedural codes, it will sit ina prosecution act.
Sometimes that doesn't actuallyexist.
And so it's important that thelaw is amended to give them the
power to appeal, for example,lenient sentences or to appeal a
granting of bail incircumstances where the
(12:21):
prosecutor feels very stronglyit's not merited.
So those are the sorts oflegislative changes that I'm
quite keen on because they layvery practical tools to, again,
mitigate these risks of eitherincompetence, corruption, or
just a misunderstanding on thepart of the court as to what's
been presented before them.
Crista Cullen (12:39):
Yeah.
Yeah.
So, so interesting and such agood sort of comparative, but,
you know, we, we work with anumber of conservation partners
here at Tefauti and some of themhave launched some of their own
initiatives, which we knowabout, and they do it through
sensitizing some of thesemagistrates on the ground
issues, such as your poaching oryour bushmeat trade.
(12:59):
And I think that's quite usefulin that you can at least allow
them to understand some of thefundamentals on the ground.
You're not trying to sway themin any direction but you're
trying to give them or help themwith some of the groundwork
maybe about the extensiveresearch that has to go in in
order to get some of theevidence before you actually get
somebody into the dock uh forsentencing itself do you think
(13:23):
that's a worthwhile um thing totry and do to sort of sensitize
some of these magistrates andhas it been effective or have
you experienced anything sort ofalong those lines
Shamini Jayanathan (13:35):
absolutely it's effective as the example i
gave in botswana where SpacerGiants, they were also working
with the UN Office of Drugs andCrime, Africa Wildlife
Foundation and others, it led toan increased sort of rate of
imprisonment for ivory cases.
And that was really as a resultof training and sensitization
of magistrates in particular.
So I think that sensitizationexercise is extremely valuable.
(14:00):
But, and there's always a butbecause I'm a lawyer, I think we
have to bear in mind that, youknow, it has to become systemic.
it has to become institutionalbecause otherwise we are on an
endless process of doing theseexercises and these exercises
cost a lot of money a lot ofdonor money and so the way to
make these sort of thesesensitizations become part of
(14:23):
the institutional memory say thejudiciary or the prosecution
services is through things likeprescriptive and binding
sentencing guidelines um thatcan be created again as i
mentioned when you amend aprocedural law you can create a
power to create a sentencingcommittee, as we have in the UK.
And that can start to createsome proportionality and
(14:44):
consistency in approach.
Developing sentencing policiesthat apply to wildlife crimes,
but also other crimes, really isessential in order that when
these magistrates that you'vejust spent a lot of money
training when they retire, whenthey transfer to an area where
perhaps there isn't any wildlifecrime, that knowledge isn't
(15:05):
just lost.
You don't have to keep startingagain and doing it over and
over and over again.
I'd also say while we're on thetopic of sensitization that
actually sensitization of thepublic is essential and I don't
really see that happening on alarge scale and injustice then
can happen and like when youtalk about sentencing and
sometimes particularlyconservationists may lobby for
(15:28):
very high minimum sentences andwhen those sentences are passed
the public don't know about itand that is where some injustice
can actually then creep intothe sentencing exercise when
people people going about theireveryday business and perhaps
committing a crime in thecontext, say, of bushmeat
hunting, find themselves caughtand thrown in prison for what I
(15:51):
would consider in somejurisdictions a
disproportionately long time.
Crista Cullen (15:55):
Yeah, and I think that sort of takes us on to
another point where we sort ofhave some blanket rulings in
some African nations wherewildlife crime sort of gets
pretty hard hit outcome and asyou say sometimes it isn't
necessarily connected to thecrime that's been committed and
(16:16):
I sort of have a view that thelittle guy sometimes is always
the one that gets hugely hugelyaffected and is underrepresented
because he can't afford it nottrying to in any way shape or
form say that you know bushmeattrade is not acceptable and it
shouldn't be practiced but whenpeople are starving it's a
(16:38):
really you like an emotionalissue because, you know, if I
had to feed my family, you know,sometimes you have to take
risks.
And whilst I don't endorse it,absolutely don't endorse it, I
do think that sometimes, youknow, the little guys on the
bread line who are in fullsurvival mode, sometimes are the
ones that kind of have some ofthe harshest outcomes.
Shamini Jayanathan (17:01):
Absolutely.
And what I see in a lot of thework that I've been doing in
this field for the last now, Isuppose, eight years, is we're
still not getting the ones whoare further up the criminal
chain.
We're not getting the middlemenand we're certainly not getting
the organizers of thesecriminal networks in most of
these sorts of cases.
There have been some successes.
We've seen them in Tanzania,for example, the Queen of Ivory,
(17:23):
as she was called, wasprosecuted and I think sent down
for 15 years.
But for the most part, we are,as you described, catching the
little guy, the poacher in themain.
And I think the problem is whenwe were having these When I
first started, everybody wasvery concerned about the low
levels of sentencing that wasprovided in statute, for
(17:44):
example.
I think in Kenya, it was reallyonly a fine for most cases.
And the result was thatconservationists in particular
started to lobby for extremelyhigh minimum sentences, thinking
that this would cure theproblem.
And I think part of thatlobbying was it arose perhaps
(18:04):
out of a slight distrust of thejudiciary and thinking, well, we
just got to tie their handscompletely and put in a minimum
sentence.
Now, the problem with minimumsentences is they result in,
number one, more not guiltypleas, therefore more trials
where defendants are representedat the beginning.
And so when you're talkingabout systems that are already
(18:24):
groaning under the weight ofunresolved criminal cases, this
just adds to the problem.
It also means there's noincentive to cooperate, to give
up information or evidence orbecome part of the state's
evidence against somebodyfurther up the chain.
There's just no incentive.
You're still going to look at aminimum term of five years or
(18:46):
10 years.
Why would you?
You may as well just take yourchances at trial.
And thirdly, prosecutors andmagistrates that I've spoken to
in countries where you havethese high minimum terms are
really uncomfortable with it andunofficially will probably seek
to find alternative charges orto not charge at all.
And magistrates too will feelthat very human discomfort that
(19:09):
you've just described, andperhaps even annoyance that
their discretion is being takenaway, and they may find ways to
acquit, potentially setting alegal precedent, particularly in
appeal courts where this hashappened very recently in
Tanzania.
And that legal precedent cansometimes skew the legal pitch
for some time on, for example,interpretation of certain
(19:30):
definitions.
So those are the sort ofunintended consequences of this
well-meaning kind of drive toput in these very high
deterrents sentences.
And so whilst he may feel verysorry for the poacher who gets
caught by that, it doesn't dohis family any good.
And in countries where there'sno welfare state to catch them,
you're probably creating anymore poachers to take his place.
(19:52):
An example is in Zimbabwe, youknow, a young man received nine
years imprisonment for killing apython that was eating his
goats.
He's 35 years old.
He's got three kids, very youngkids, a wife, and he's in
prison for nine years.
Since then, Zimbabwe hasamended its specially protected
species list to remove pythonsbut I'm not sure that this guy
(20:15):
is out I don't know if anybodyhas taken on an appeal and
released him so that's the sortof injustice that we have to be
really careful about and it doesplay into the hands of the real
criminals who basicallyconsider those sort of poachers
as expendable and always alwaysreplaceable
Crista Cullen (20:32):
yeah it's just it's so difficult to get that
balance right isn't it andthat's um That's what's just
kind of, I guess, all of ourroles within this is to sort of
understand the holistic approachto what is the incident, gather
the evidence appropriately, andthen try and hold them culpable
for what the crime actually isthat was committed.
(20:53):
And that is where we all needto put a lot of effort and time
into sort of working out exactlyhow best to do that.
So I guess this sort of takesme on to the final point,
Shmini, that there's so manypeople listening to this podcast
sort of of working out, youknow, the depth of the problem,
understanding the depth of theproblem.
And we've only just brushed thesurface with our brief
(21:15):
conversation.
I mean, how do people help?
And you sort of said, you know,gather awareness, make the
public more aware of kind ofwhat's happening and how do we
get accountability for thosemiddlemen and for the ultimate
person who's receiving some ofthese goods wherever, whatever
country that may be in linereally with the crimes that
(21:39):
genuinely have been committed?
Shamini Jayanathan (21:43):
So I think what's important is that
everybody should play to theirown strengths.
And I'd say that particularlyin relation to organizations.
And that means either you havethe criminal justice expertise
within and you've got that andyou put it to good use.
(22:04):
And I'll just interject hereand say, for example,
environmental law lawyers arenot the same as criminal
lawyers.
And I think that's a mistakethat some conservation
organizations make.
You wouldn't have an elephantspecialist give you advice on
how to build protection around atiger.
Criminal lawyers, likedetectives and police officers,
they are there in the rough andtumble of the courtroom on a
(22:24):
daily basis, whereasenvironmental lawyers could go
their whole careers withoutsetting foot in one.
So there is a need fororganizations to appreciate
their own understanding andlimitations in this particular
sphere.
And where they don't have theexpertise, they should partner
with those that do have it andplay to their own strengths.
So maybe they have anincredibly important role in
(22:45):
sensitizing judiciary,prosecutors, but also the
public, not just about thedangers of wildlife crime and
what it means to us,particularly in the context of
COVID, which we're all nowparticularly alive to, but also
what's at stake for them if theydo commit a crime.
But then organizations like theUN Office of Drugs and Crime,
for whom I now work, are alwayskeen to partner with NGOs who
(23:06):
bring a local perspective.
It's not always easilyascertained.
So NGOs can bring localknowledge, experience to the
table.
It can be extremely valuable indeciding and delivering what's
needed in this roomable space.
And I would just say, you know,we need to work very much
together and start shifting froma siloed approach that wildlife
trafficking crimes can be curedjust on their own in silo and
(23:30):
accept that actually we need amuch more systemic lift, which
does take a lot of heavylifting, which is why large
organizations like UN end, forexample, and the EU and other
big entities like that can beextremely helpful in getting
that sort of muscle behindlifting these sorts of
programmes up to a level whereyou can see the change across
(23:51):
the board.
Crista Cullen (23:53):
Yeah, absolutely.
I mean, much of what we do withDefouncy is try and identify
those partners, as yourightfully have pointed out,
that have that specificknowledge base and specialism
within a set area in order tomake sure that you can
strategically partner in a waythat's the most effective on the
ground because you know we'vealways we think we know the
(24:16):
answer but unless you immerseyourself in that world I think
sometimes we sort of don'talways get the full story and
sometimes that can be moreeffective for us to to get the
outcome that we all we all arelooking for so Shamini thank you
so much for for an incrediblewhirlwind tour of the insight of
your world and I'm sure a lotof our listeners will will find
(24:39):
it hugely, hugely interestingand hopefully take an avid
interest in sort of watching howwe progress from here as a
continent in order to try andput a few things right that have
currently gone a bit wayward oflate.
So thank you, Shamini.
Really, really appreciate yourtime and efforts.
And I look forward to watchingyour progress.
Shamini Jayanathan (24:59):
Thank you.
Crista Cullen (25:03):
Thank you so much for listening.
And to find out more, visittofauti.org, T-O-F-A-U-T-I.
Or follow us on Instagram andFacebook at Tofauti Foundation.
Hello and welcome to the Tofauti podcast series.
For my next Tofauti pod, I amdelighted to be joined by
Shamini Jayanathan.
We first met, unbeknownst toShamini, when I listened to her
so eloquently on a webinartalking for Space for Giants
(00:24):
around the topic of criminaljustice response to wildlife and
forestry crime.
I was taken aback by herunderstanding of Africa and a
sheer ambition to make adifference.
And so I was really keen forher to become part of our
Tofauti podcast series.
So welcome Shamini to theTofauti pod and it's an absolute
pleasure to have you join us.
Shamini Jayanathan (00:46):
Thank you very much for having me.
I'm delighted to be here.
Crista Cullen (00:49):
Good.
So Shamini, you have quite ahistory and we've connected over
this before, but I'd love tosort of just for our listeners
to understand the journey thatyou've been through to sort of
become this influential figureacross the African judiciary
landscape.
So can you just give us a bitof an insight as to how you've
ended up in that area ofexpertise?
Shamini Jayanathan (01:10):
Well, I started out as a barrister.
I qualified in the 90s, and Ipracticed for nearly 16 years in
the Crown Courts of, first ofall, Southeast Wales, and then
London.
And I moved from London toKenya first in 2012 with a
(01:32):
posting to complements of theForeign Office to work on
counterterrorism in East Africa,which was quite a jump for me.
I have no connection to Kenya.
I came here with my two youngchildren and it was a very
exciting, very new role workingfor the diplomatic service and
trying to realize some of theUK's ambitions in terms of
(01:53):
fighting terrorism in the sourceof some of the problems that
were posing a risk to UKinterests, both in the UK and
abroad.
So I found myself in placeslike Mogadishu and Somaliland in
Hargeisa as well.
And it was whilst I was doingthat that that I suppose by way
of a chance meeting, it wasactually at a party, that I met
(02:15):
a woman who asked me a questionabout conservation and poaching.
At the time, Kenya was one ofthe, I think it had a reputation
as being one of the gang ofeight at that time, being
responsible for quite a largevolume of ivory that was either
originating from Kenya ortransiting through.
And I suppose that inquiry ledme down the rabbit hole of
(02:36):
conservation.
And eventually I pivotedtowards of Wildlife Conservation
and I started to work buildingcriminal justice sort of
responses from the prosecutorialand judicial point of view.
Before that, most of the workhad been really focused on law
enforcement and so I found thatI was able to provide, based on
(02:57):
my experience, a rather uniqueexperience given I'd been a
prosecutor for so long.
So yeah, that's how I foundmyself in this space.
It's been quite an interestingand unexpected
Crista Cullen (03:07):
journey.
Amazing when you sort of end upat at parties and they sort of
influence your trajectory.
But yeah, I mean, there'salways these sort of unbeknownst
conversations that you havethat sort of sway you in
different directions.
But you've kind of been reallyinstrumental in sort of building
criminal procedures, especiallyin our arena that we're talking
(03:28):
about here on the Tefauti Podaround wildlife trafficking.
So tell us about some of thosepolicies that you've put in
place and I guess some of thosesort of, in some ways, global
transitions that have kind ofhappened off some of the
policies that you've driven?
Shamini Jayanathan (03:42):
So I've taken quite a holistic approach.
It kind of puzzled me at thebeginning when I saw, even in
the work of counterterrorism,that there was a very siloed
approach being taken by bothgovernments, IGOs and NGOs, as
if we could somehow solvewildlife trafficking, human
(04:03):
trafficking, counterterrorism,sexual violence or crimes
relating to sexual violence, allin in isolation and I was
puzzled because all of thosecases wind up in the same
bottleneck of a courtroom andall of those cases had to go
through sort of the gatekeeperwhich is the prosecutor and so a
(04:23):
lot of those cases were in allof those sectors were basically
floundering when you got intocourt either because the
prosecutor had not made theright decision on charge and
there were so many reasons forwhy that happened or because
courts are plagued by a and thenat the end of it you may have a
sentence that really bore norelation to the criminality the
(04:46):
culpability or the harm that wascaused and so my approach was
very holistic and it came frommy experience as a barrister for
so long which was number onelet's look at the way that
prosecutors are actuallycharging all of their cases and
so I worked with the then DPP ofKenya and I've worked more
recently with the current DPP ofKenya on the same thing which
(05:07):
is to codify the way in whichall prosecutors charge every
single criminal case that comesinto their docket and I've done
that in Uganda and Botswana andother jurisdictions because
without that foundation youcan't really move forward into
specialisms and it was once thatthose codes were passed and
what we saw as a result was thatthe number of cases being
(05:30):
charged by prosecutors startedto drop because they weren't
charging cases that didn't haveenough evidence at the beginning
and the quality of thedirections they were giving to
investigations started toimprove quite dramatically.
And it was only layered on topof that that I created something
called the Rapid ReferenceGuide.
And I'd done that first forterrorism in Somalia, navigating
(05:52):
the existing legislationbecause they didn't have a
counter-terrorism law at thetime.
And then I created the samesort of model for wildlife
trafficking.
And that's been really helpfulin identifying what I call the
points to prove.
Any prosecutor will be familiarwith that sort of terminology.
And so That in turn, theprevious DPP of Kenya raised his
(06:13):
conviction rates from 24% toover 80% in quite a short period
of time because it just made,again, that decision to charge
more of a science rather than anart.
It became an accountabledecision, a transparent
decision, and something thatprosecutors could justify
whether they decided to charge acase or not.
It protected them in many ways,that code for charging and that
(06:37):
sort of approach.
And then the other area that Isort of focused on was this
issue, as I mentioned, that theculture of adjournments that
exists in so many courts acrossall jurisdictions, certainly on
this continent, that I've beenexposed to.
And I've sat in the back ofcourtrooms from Mogadishu down
to Mozambique.
And this is a problem thatpersists and it affects both
(06:58):
prosecutor and defense counsel.
And so with the Britishgovernment and the Judicial
Training Institute of Kenya, wework very hard to introduce
criminal procedure rules thatbasically sped up criminal
trial.
And it is now being rolled outby the United Nations Office of
Drugs and Crime.
So that's been, again,holistic.
(07:20):
It impacts all criminal cases.
And in doing so, it starts todeliver justice, you know, both
for victims and defendants alikein a much more efficient, fast
way.
And I suppose a third area thatI've looked at is sentencing.
Because, again, we see so manytimes prosecutors work very hard
hard investigators work veryhard and at the end of it you're
(07:42):
suddenly puzzled by this thisfine that's imposed or a
sentence completely suspendedand the defendant basically
walks free and so deliveringguidance on sentencing
particularly for wildlife crimehas been really effective
coupled with training ofmagistrates and prosecutors so
that they're aware and againwhat I saw when I was working
(08:04):
for the NGO space for giants andwe did a survey in Botswana we
saw the rate of imprisonment forivory cases go from 13% to 92%,
again, in a very short periodof time in northern Botswana.
So, and those principles thenextend, and that approach
extends to other areas ofcriminal law.
So, you know, holisticapproach, things are actually
(08:26):
systemically changed the way thecriminal justice is
administered, is really the onlysustainable way, in my view, to
actually bring about somechange.
Crista Cullen (08:35):
No, absolutely.
And yeah, the overlap, I guess,as you sort of say, from some
of the other criminal acts thatcan happen is so helpful, I'm
sure, for our area of wherewe're trying to all operate.
But that doesn't stop thefrustrations.
I'm sure you've had themextensively, and I know we have
(08:55):
them within the conservationspace.
We sort of have this lengthyprocesses of sentencing.
Of course, we have aresponsibility to collate all of
the data and all of thebackground evidence.
But bails are relativelyaffordable.
We see people, just like you'vesaid, getting out to source and
unfortunately committing thesecrimes once again.
(09:16):
It can just be so frustrating.
And I can only imagine thelength of time you've sat in a
courtroom and then only for itto be adjourned and not actually
sit.
All of those things in Africa,I think, are sort of
highlighted.
How do we sort of manage thatprocess better?
Do you think we sort ofimplement some of those things
you were talking about?
Or is there another way to makeit more sustainable and make
(09:39):
people more accountable for someof these crimes they commit?
Shamini Jayanathan (09:43):
So I think the changes or the ideas that I
just shared a moment ago arereally important because when a
prosecutor turns up at court,and I observe this in many
courtrooms, very often they'represented with a file for the
first time by an investigatorwho's effectively been waiting
for them to turn up thatmorning.
(10:05):
In northern Kenya, I remembersitting in a courtroom over a
couple of years ago, and themagistrate had listed 24 trials
in one courtroom in one day.
The courtroom itself waspacked.
Some of those cases involvedivory, but others involved child
abuse, aggravated robbery.
I remember the prosecutorlooking at her smartphone trying
to find a law.
(10:26):
It was quite an obscure pieceof law for one of the case files
that she was due to present onthat morning.
And so when you picture thatsort of a scene and an officer
coming in and saying, we've gotthis really serious case, he
needs to be remanded in custody,custody, we need to set this
down for trial, that prosecutorreally hasn't got much of a
chance to do the adequate sortof preparation or to give
(10:49):
instructions to the investigatorabout what she needs or he
needs to present an argument fora remand in custody.
So changing the sort of system,the way in which that sort of
physical interaction, thatdiscussion over the file, the
examination of the evidencetakes place has to happen
because it's very difficult tothen say to that prosecutor,
(11:10):
you've got this ivory case, youmust prioritise this over the
rapes and robberies that you'reabout to present.
It's probably not going tohappen.
That case is probably going togo to the back of the queue when
you've got human victims, childvictims sitting in court
waiting for their hearing.
And
Crista Cullen (11:28):
so...
It's so difficult todifferentiate, isn't it, between
those sort of wildlife elementsand then, of course, the human
factor that we're a lot moreconnected to naturally, aren't
we?
Shamini Jayanathan (11:39):
Of course.
And I think also with all ofthese procedures, to counter
that situation where, forexample, a prosecutor is well
prepared, either on a bailhearing or a sentencing matter,
and a sentencing court then doessomething sort of left field,
that prosecutor needs a power ofappeal.
(11:59):
And sometimes the legislationthat I've looked at, and it
doesn't sit in wildlifelegislation, it will sit in
procedural codes, it will sit ina prosecution act.
Sometimes that doesn't actuallyexist.
And so it's important that thelaw is amended to give them the
power to appeal, for example,lenient sentences or to appeal a
granting of bail incircumstances where the
(12:21):
prosecutor feels very stronglyit's not merited.
So those are the sorts oflegislative changes that I'm
quite keen on because they layvery practical tools to, again,
mitigate these risks of eitherincompetence, corruption, or
just a misunderstanding on thepart of the court as to what's
been presented before them.
Crista Cullen (12:39):
Yeah.
Yeah.
So, so interesting and such agood sort of comparative, but,
you know, we, we work with anumber of conservation partners
here at Tefauti and some of themhave launched some of their own
initiatives, which we knowabout, and they do it through
sensitizing some of thesemagistrates on the ground
issues, such as your poaching oryour bushmeat trade.
(12:59):
And I think that's quite usefulin that you can at least allow
them to understand some of thefundamentals on the ground.
You're not trying to sway themin any direction but you're
trying to give them or help themwith some of the groundwork
maybe about the extensiveresearch that has to go in in
order to get some of theevidence before you actually get
somebody into the dock uh forsentencing itself do you think
(13:23):
that's a worthwhile um thing totry and do to sort of sensitize
some of these magistrates andhas it been effective or have
you experienced anything sort ofalong those lines
Shamini Jayanathan (13:35):
absolutely it's effective as the example i
gave in botswana where SpacerGiants, they were also working
with the UN Office of Drugs andCrime, Africa Wildlife
Foundation and others, it led toan increased sort of rate of
imprisonment for ivory cases.
And that was really as a resultof training and sensitization
of magistrates in particular.
So I think that sensitizationexercise is extremely valuable.
(14:00):
But, and there's always a butbecause I'm a lawyer, I think we
have to bear in mind that, youknow, it has to become systemic.
it has to become institutionalbecause otherwise we are on an
endless process of doing theseexercises and these exercises
cost a lot of money a lot ofdonor money and so the way to
make these sort of thesesensitizations become part of
(14:23):
the institutional memory say thejudiciary or the prosecution
services is through things likeprescriptive and binding
sentencing guidelines um thatcan be created again as i
mentioned when you amend aprocedural law you can create a
power to create a sentencingcommittee, as we have in the UK.
And that can start to createsome proportionality and
(14:44):
consistency in approach.
Developing sentencing policiesthat apply to wildlife crimes,
but also other crimes, really isessential in order that when
these magistrates that you'vejust spent a lot of money
training when they retire, whenthey transfer to an area where
perhaps there isn't any wildlifecrime, that knowledge isn't
(15:05):
just lost.
You don't have to keep startingagain and doing it over and
over and over again.
I'd also say while we're on thetopic of sensitization that
actually sensitization of thepublic is essential and I don't
really see that happening on alarge scale and injustice then
can happen and like when youtalk about sentencing and
sometimes particularlyconservationists may lobby for
(15:28):
very high minimum sentences andwhen those sentences are passed
the public don't know about itand that is where some injustice
can actually then creep intothe sentencing exercise when
people people going about theireveryday business and perhaps
committing a crime in thecontext, say, of bushmeat
hunting, find themselves caughtand thrown in prison for what I
(15:51):
would consider in somejurisdictions a
disproportionately long time.
Crista Cullen (15:55):
Yeah, and I think that sort of takes us on to
another point where we sort ofhave some blanket rulings in
some African nations wherewildlife crime sort of gets
pretty hard hit outcome and asyou say sometimes it isn't
necessarily connected to thecrime that's been committed and
(16:16):
I sort of have a view that thelittle guy sometimes is always
the one that gets hugely hugelyaffected and is underrepresented
because he can't afford it nottrying to in any way shape or
form say that you know bushmeattrade is not acceptable and it
shouldn't be practiced but whenpeople are starving it's a
(16:38):
really you like an emotionalissue because, you know, if I
had to feed my family, you know,sometimes you have to take
risks.
And whilst I don't endorse it,absolutely don't endorse it, I
do think that sometimes, youknow, the little guys on the
bread line who are in fullsurvival mode, sometimes are the
ones that kind of have some ofthe harshest outcomes.
Shamini Jayanathan (17:01):
Absolutely.
And what I see in a lot of thework that I've been doing in
this field for the last now, Isuppose, eight years, is we're
still not getting the ones whoare further up the criminal
chain.
We're not getting the middlemenand we're certainly not getting
the organizers of thesecriminal networks in most of
these sorts of cases.
There have been some successes.
We've seen them in Tanzania,for example, the Queen of Ivory,
(17:23):
as she was called, wasprosecuted and I think sent down
for 15 years.
But for the most part, we are,as you described, catching the
little guy, the poacher in themain.
And I think the problem is whenwe were having these When I
first started, everybody wasvery concerned about the low
levels of sentencing that wasprovided in statute, for
(17:44):
example.
I think in Kenya, it was reallyonly a fine for most cases.
And the result was thatconservationists in particular
started to lobby for extremelyhigh minimum sentences, thinking
that this would cure theproblem.
And I think part of thatlobbying was it arose perhaps
(18:04):
out of a slight distrust of thejudiciary and thinking, well, we
just got to tie their handscompletely and put in a minimum
sentence.
Now, the problem with minimumsentences is they result in,
number one, more not guiltypleas, therefore more trials
where defendants are representedat the beginning.
And so when you're talkingabout systems that are already
(18:24):
groaning under the weight ofunresolved criminal cases, this
just adds to the problem.
It also means there's noincentive to cooperate, to give
up information or evidence orbecome part of the state's
evidence against somebodyfurther up the chain.
There's just no incentive.
You're still going to look at aminimum term of five years or
(18:46):
10 years.
Why would you?
You may as well just take yourchances at trial.
And thirdly, prosecutors andmagistrates that I've spoken to
in countries where you havethese high minimum terms are
really uncomfortable with it andunofficially will probably seek
to find alternative charges orto not charge at all.
And magistrates too will feelthat very human discomfort that
(19:09):
you've just described, andperhaps even annoyance that
their discretion is being takenaway, and they may find ways to
acquit, potentially setting alegal precedent, particularly in
appeal courts where this hashappened very recently in
Tanzania.
And that legal precedent cansometimes skew the legal pitch
for some time on, for example,interpretation of certain
(19:30):
definitions.
So those are the sort ofunintended consequences of this
well-meaning kind of drive toput in these very high
deterrents sentences.
And so whilst he may feel verysorry for the poacher who gets
caught by that, it doesn't dohis family any good.
And in countries where there'sno welfare state to catch them,
you're probably creating anymore poachers to take his place.
(19:52):
An example is in Zimbabwe, youknow, a young man received nine
years imprisonment for killing apython that was eating his
goats.
He's 35 years old.
He's got three kids, very youngkids, a wife, and he's in
prison for nine years.
Since then, Zimbabwe hasamended its specially protected
species list to remove pythonsbut I'm not sure that this guy
(20:15):
is out I don't know if anybodyhas taken on an appeal and
released him so that's the sortof injustice that we have to be
really careful about and it doesplay into the hands of the real
criminals who basicallyconsider those sort of poachers
as expendable and always alwaysreplaceable
Crista Cullen (20:32):
yeah it's just it's so difficult to get that
balance right isn't it andthat's um That's what's just
kind of, I guess, all of ourroles within this is to sort of
understand the holistic approachto what is the incident, gather
the evidence appropriately, andthen try and hold them culpable
for what the crime actually isthat was committed.
(20:53):
And that is where we all needto put a lot of effort and time
into sort of working out exactlyhow best to do that.
So I guess this sort of takesme on to the final point,
Shmini, that there's so manypeople listening to this podcast
sort of of working out, youknow, the depth of the problem,
understanding the depth of theproblem.
And we've only just brushed thesurface with our brief
(21:15):
conversation.
I mean, how do people help?
And you sort of said, you know,gather awareness, make the
public more aware of kind ofwhat's happening and how do we
get accountability for thosemiddlemen and for the ultimate
person who's receiving some ofthese goods wherever, whatever
country that may be in linereally with the crimes that
(21:39):
genuinely have been committed?
Shamini Jayanathan (21:43):
So I think what's important is that
everybody should play to theirown strengths.
And I'd say that particularlyin relation to organizations.
And that means either you havethe criminal justice expertise
within and you've got that andyou put it to good use.
(22:04):
And I'll just interject hereand say, for example,
environmental law lawyers arenot the same as criminal
lawyers.
And I think that's a mistakethat some conservation
organizations make.
You wouldn't have an elephantspecialist give you advice on
how to build protection around atiger.
Criminal lawyers, likedetectives and police officers,
they are there in the rough andtumble of the courtroom on a
(22:24):
daily basis, whereasenvironmental lawyers could go
their whole careers withoutsetting foot in one.
So there is a need fororganizations to appreciate
their own understanding andlimitations in this particular
sphere.
And where they don't have theexpertise, they should partner
with those that do have it andplay to their own strengths.
So maybe they have anincredibly important role in
(22:45):
sensitizing judiciary,prosecutors, but also the
public, not just about thedangers of wildlife crime and
what it means to us,particularly in the context of
COVID, which we're all nowparticularly alive to, but also
what's at stake for them if theydo commit a crime.
But then organizations like theUN Office of Drugs and Crime,
for whom I now work, are alwayskeen to partner with NGOs who
(23:06):
bring a local perspective.
It's not always easilyascertained.
So NGOs can bring localknowledge, experience to the
table.
It can be extremely valuable indeciding and delivering what's
needed in this roomable space.
And I would just say, you know,we need to work very much
together and start shifting froma siloed approach that wildlife
trafficking crimes can be curedjust on their own in silo and
(23:30):
accept that actually we need amuch more systemic lift, which
does take a lot of heavylifting, which is why large
organizations like UN end, forexample, and the EU and other
big entities like that can beextremely helpful in getting
that sort of muscle behindlifting these sorts of
programmes up to a level whereyou can see the change across
(23:51):
the board.
Crista Cullen (23:53):
Yeah, absolutely.
I mean, much of what we do withDefouncy is try and identify
those partners, as yourightfully have pointed out,
that have that specificknowledge base and specialism
within a set area in order tomake sure that you can
strategically partner in a waythat's the most effective on the
ground because you know we'vealways we think we know the
(24:16):
answer but unless you immerseyourself in that world I think
sometimes we sort of don'talways get the full story and
sometimes that can be moreeffective for us to to get the
outcome that we all we all arelooking for so Shamini thank you
so much for for an incrediblewhirlwind tour of the insight of
your world and I'm sure a lotof our listeners will will find
(24:39):
it hugely, hugely interestingand hopefully take an avid
interest in sort of watching howwe progress from here as a
continent in order to try andput a few things right that have
currently gone a bit wayward oflate.
So thank you, Shamini.
Really, really appreciate yourtime and efforts.
And I look forward to watchingyour progress.
Shamini Jayanathan (24:59):
Thank you.
Crista Cullen (25:03):
Thank you so much for listening.
And to find out more, visittofauti.org, T-O-F-A-U-T-I.
Or follow us on Instagram andFacebook at Tofauti Foundation.
Popular Podcasts
On Purpose with Jay Shetty
I’m Jay Shetty host of On Purpose the worlds #1 Mental Health podcast and I’m so grateful you found us. I started this podcast 5 years ago to invite you into conversations and workshops that are designed to help make you happier, healthier and more healed. I believe that when you (yes you) feel seen, heard and understood you’re able to deal with relationship struggles, work challenges and life’s ups and downs with more ease and grace. I interview experts, celebrities, thought leaders and athletes so that we can grow our mindset, build better habits and uncover a side of them we’ve never seen before. New episodes every Monday and Friday. Your support means the world to me and I don’t take it for granted — click the follow button and leave a review to help us spread the love with On Purpose. I can’t wait for you to listen to your first or 500th episode!
Stuff You Should Know
If you've ever wanted to know about champagne, satanism, the Stonewall Uprising, chaos theory, LSD, El Nino, true crime and Rosa Parks, then look no further. Josh and Chuck have you covered.
The Joe Rogan Experience
The official podcast of comedian Joe Rogan.