Tofauti Podcast
Tofauti Podcast
Episode Twelve - Shamini Jayanathan
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.
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Hello and welcome to the Tofauti podcast series. For my next Tofauti pod, I am delighted to be joined by Shamini Jayanathan. We first met, unbeknownst to Shamini, when I listened to her so eloquently on a webinar talking for Space for Giants around the topic of criminal justice response to wildlife and forestry crime. I was taken aback by her understanding of Africa and a sheer ambition to make a difference. And so I was really keen for her to become part of our Tofauti podcast series. So welcome Shamini to the Tofauti pod and it's an absolute pleasure to have you join us.
Shamini Jayanathan:Thank you very much for having me. I'm delighted to be here.
Crista Cullen:Good. So Shamini, you have quite a history and we've connected over this before, but I'd love to sort of just for our listeners to understand the journey that you've been through to sort of become this influential figure across the African judiciary landscape. So can you just give us a bit of an insight as to how you've ended up in that area of expertise?
Shamini Jayanathan:Well, I started out as a barrister. I qualified in the 90s, and I practiced for nearly 16 years in the Crown Courts of, first of all, Southeast Wales, and then London. And I moved from London to Kenya first in 2012 with a posting to complements of the Foreign 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 young children and it was a very exciting, very new role working for the diplomatic service and trying to realize some of the UK's ambitions in terms of fighting terrorism in the source of some of the problems that were posing a risk to UK interests, both in the UK and abroad. So I found myself in places like Mogadishu and Somaliland in Hargeisa as well. And it was whilst I was doing that that that I suppose by way of a chance meeting, it was actually at a party, that I met a woman who asked me a question about conservation and poaching. At the time, Kenya was one of the, I think it had a reputation as being one of the gang of eight at that time, being responsible for quite a large volume of ivory that was either originating from Kenya or transiting through. And I suppose that inquiry led me down the rabbit hole of conservation. And eventually I pivoted towards of Wildlife Conservation and I started to work building criminal justice sort of responses from the prosecutorial and judicial point of view. Before that, most of the work had been really focused on law enforcement and so I found that I was able to provide, based on my experience, a rather unique experience given I'd been a prosecutor for so long. So yeah, that's how I found myself in this space. It's been quite an interesting and unexpected
Crista Cullen:journey. Amazing when you sort of end up at at parties and they sort of influence your trajectory. But yeah, I mean, there's always these sort of unbeknownst conversations that you have that sort of sway you in different directions. But you've kind of been really instrumental in sort of building criminal procedures, especially in our arena that we're talking about here on the Tefauti Pod around wildlife trafficking. So tell us about some of those policies that you've put in place and I guess some of those sort of, in some ways, global transitions that have kind of happened off some of the policies that you've driven?
Shamini Jayanathan:So I've taken quite a holistic approach. It kind of puzzled me at the beginning when I saw, even in the work of counterterrorism, that there was a very siloed approach being taken by both governments, IGOs and NGOs, as if we could somehow solve wildlife trafficking, human trafficking, counterterrorism, sexual violence or crimes relating to sexual violence, all in in isolation and I was puzzled because all of those cases wind up in the same bottleneck of a courtroom and all of those cases had to go through sort of the gatekeeper which is the prosecutor and so a lot of those cases were in all of those sectors were basically floundering when you got into court either because the prosecutor had not made the right decision on charge and there were so many reasons for why that happened or because courts are plagued by a and then at the end of it you may have a sentence that really bore no relation to the criminality the culpability or the harm that was caused and so my approach was very holistic and it came from my experience as a barrister for so long which was number one let's look at the way that prosecutors are actually charging all of their cases and so I worked with the then DPP of Kenya and I've worked more recently with the current DPP of Kenya on the same thing which is to codify the way in which all prosecutors charge every single criminal case that comes into their docket and I've done that in Uganda and Botswana and other jurisdictions because without that foundation you can't really move forward into specialisms and it was once that those codes were passed and what we saw as a result was that the number of cases being charged by prosecutors started to drop because they weren't charging cases that didn't have enough evidence at the beginning and the quality of the directions they were giving to investigations started to improve quite dramatically. And it was only layered on top of that that I created something called the Rapid Reference Guide. And I'd done that first for terrorism in Somalia, navigating the existing legislation because they didn't have a counter-terrorism law at the time. And then I created the same sort of model for wildlife trafficking. And that's been really helpful in identifying what I call the points to prove. Any prosecutor will be familiar with that sort of terminology. And so That in turn, the previous DPP of Kenya raised his conviction rates from 24% to over 80% in quite a short period of time because it just made, again, that decision to charge more of a science rather than an art. It became an accountable decision, a transparent decision, and something that prosecutors could justify whether they decided to charge a case or not. It protected them in many ways, that code for charging and that sort of approach. And then the other area that I sort of focused on was this issue, as I mentioned, that the culture of adjournments that exists in so many courts across all jurisdictions, certainly on this continent, that I've been exposed to. And I've sat in the back of courtrooms from Mogadishu down to Mozambique. And this is a problem that persists and it affects both prosecutor and defense counsel. And so with the British government and the Judicial Training Institute of Kenya, we work very hard to introduce criminal procedure rules that basically sped up criminal trial. And it is now being rolled out by the United Nations Office of Drugs and Crime. So that's been, again, holistic. It impacts all criminal cases. And in doing so, it starts to deliver justice, you know, both for victims and defendants alike in a much more efficient, fast way. And I suppose a third area that I've looked at is sentencing. Because, again, we see so many times prosecutors work very hard hard investigators work very hard and at the end of it you're suddenly puzzled by this this fine that's imposed or a sentence completely suspended and the defendant basically walks free and so delivering guidance on sentencing particularly for wildlife crime has been really effective coupled with training of magistrates and prosecutors so that they're aware and again what I saw when I was working for the NGO space for giants and we did a survey in Botswana we saw the rate of imprisonment for ivory cases go from 13% to 92%, again, in a very short period of time in northern Botswana. So, and those principles then extend, and that approach extends to other areas of criminal law. So, you know, holistic approach, things are actually systemically changed the way the criminal justice is administered, is really the only sustainable way, in my view, to actually bring about some change.
Crista Cullen:No, absolutely. And yeah, the overlap, I guess, as you sort of say, from some of the other criminal acts that can happen is so helpful, I'm sure, for our area of where we're trying to all operate. But that doesn't stop the frustrations. I'm sure you've had them extensively, and I know we have them within the conservation space. We sort of have this lengthy processes of sentencing. Of course, we have a responsibility to collate all of the data and all of the background evidence. But bails are relatively affordable. We see people, just like you've said, getting out to source and unfortunately committing these crimes once again. It can just be so frustrating. And I can only imagine the length of time you've sat in a courtroom and then only for it to be adjourned and not actually sit. All of those things in Africa, I think, are sort of highlighted. How do we sort of manage that process better? Do you think we sort of implement some of those things you were talking about? Or is there another way to make it more sustainable and make people more accountable for some of these crimes they commit?
Shamini Jayanathan:So I think the changes or the ideas that I just shared a moment ago are really important because when a prosecutor turns up at court, and I observe this in many courtrooms, very often they're presented with a file for the first time by an investigator who's effectively been waiting for them to turn up that morning. In northern Kenya, I remember sitting in a courtroom over a couple of years ago, and the magistrate had listed 24 trials in one courtroom in one day. The courtroom itself was packed. Some of those cases involved ivory, but others involved child abuse, aggravated robbery. I remember the prosecutor looking at her smartphone trying to find a law. It was quite an obscure piece of law for one of the case files that she was due to present on that morning. And so when you picture that sort of a scene and an officer coming in and saying, we've got this really serious case, he needs to be remanded in custody, custody, we need to set this down for trial, that prosecutor really hasn't got much of a chance to do the adequate sort of preparation or to give instructions to the investigator about what she needs or he needs to present an argument for a remand in custody. So changing the sort of system, the way in which that sort of physical interaction, that discussion over the file, the examination of the evidence takes place has to happen because it's very difficult to then say to that prosecutor, you've got this ivory case, you must prioritise this over the rapes and robberies that you're about to present. It's probably not going to happen. That case is probably going to go to the back of the queue when you've got human victims, child victims sitting in court waiting for their hearing. And
Crista Cullen:so... It's so difficult to differentiate, isn't it, between those sort of wildlife elements and then, of course, the human factor that we're a lot more connected to naturally, aren't we?
Shamini Jayanathan:Of course. And I think also with all of these procedures, to counter that situation where, for example, a prosecutor is well prepared, either on a bail hearing or a sentencing matter, and a sentencing court then does something sort of left field, that prosecutor needs a power of appeal. And sometimes the legislation that I've looked at, and it doesn't sit in wildlife legislation, it will sit in procedural codes, it will sit in a prosecution act. Sometimes that doesn't actually exist. And so it's important that the law is amended to give them the power to appeal, for example, lenient sentences or to appeal a granting of bail in circumstances where the prosecutor feels very strongly it's not merited. So those are the sorts of legislative changes that I'm quite keen on because they lay very practical tools to, again, mitigate these risks of either incompetence, corruption, or just a misunderstanding on the part of the court as to what's been presented before them.
Crista Cullen:Yeah. Yeah. So, so interesting and such a good sort of comparative, but, you know, we, we work with a number of conservation partners here at Tefauti and some of them have launched some of their own initiatives, which we know about, and they do it through sensitizing some of these magistrates on the ground issues, such as your poaching or your bushmeat trade. And I think that's quite useful in that you can at least allow them to understand some of the fundamentals on the ground. You're not trying to sway them in any direction but you're trying to give them or help them with some of the groundwork maybe about the extensive research that has to go in in order to get some of the evidence before you actually get somebody into the dock uh for sentencing itself do you think that's a worthwhile um thing to try and do to sort of sensitize some of these magistrates and has it been effective or have you experienced anything sort of along those lines
Shamini Jayanathan:absolutely it's effective as the example i gave in botswana where Spacer Giants, they were also working with the UN Office of Drugs and Crime, Africa Wildlife Foundation and others, it led to an increased sort of rate of imprisonment for ivory cases. And that was really as a result of training and sensitization of magistrates in particular. So I think that sensitization exercise is extremely valuable. But, and there's always a but because I'm a lawyer, I think we have to bear in mind that, you know, it has to become systemic. it has to become institutional because otherwise we are on an endless process of doing these exercises and these exercises cost a lot of money a lot of donor money and so the way to make these sort of these sensitizations become part of the institutional memory say the judiciary or the prosecution services is through things like prescriptive and binding sentencing guidelines um that can be created again as i mentioned when you amend a procedural law you can create a power to create a sentencing committee, as we have in the UK. And that can start to create some proportionality and consistency in approach. Developing sentencing policies that apply to wildlife crimes, but also other crimes, really is essential in order that when these magistrates that you've just spent a lot of money training when they retire, when they transfer to an area where perhaps there isn't any wildlife crime, that knowledge isn't just lost. You don't have to keep starting again and doing it over and over and over again. I'd also say while we're on the topic of sensitization that actually sensitization of the public is essential and I don't really see that happening on a large scale and injustice then can happen and like when you talk about sentencing and sometimes particularly conservationists may lobby for very high minimum sentences and when those sentences are passed the public don't know about it and that is where some injustice can actually then creep into the sentencing exercise when people people going about their everyday business and perhaps committing a crime in the context, say, of bushmeat hunting, find themselves caught and thrown in prison for what I would consider in some jurisdictions a disproportionately long time.
Crista Cullen:Yeah, and I think that sort of takes us on to another point where we sort of have some blanket rulings in some African nations where wildlife crime sort of gets pretty hard hit outcome and as you say sometimes it isn't necessarily connected to the crime that's been committed and I sort of have a view that the little guy sometimes is always the one that gets hugely hugely affected and is underrepresented because he can't afford it not trying to in any way shape or form say that you know bushmeat trade is not acceptable and it shouldn't be practiced but when people are starving it's a really you like an emotional issue 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, you know, the little guys on the bread line who are in full survival mode, sometimes are the ones that kind of have some of the harshest outcomes.
Shamini Jayanathan:Absolutely. And what I see in a lot of the work that I've been doing in this field for the last now, I suppose, eight years, is we're still not getting the ones who are further up the criminal chain. We're not getting the middlemen and we're certainly not getting the organizers of these criminal 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, as she was called, was prosecuted 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 the main. And I think the problem is when we were having these When I first started, everybody was very concerned about the low levels of sentencing that was provided in statute, for example. I think in Kenya, it was really only a fine for most cases. And the result was that conservationists in particular started to lobby for extremely high minimum sentences, thinking that this would cure the problem. And I think part of that lobbying was it arose perhaps out of a slight distrust of the judiciary and thinking, well, we just got to tie their hands completely and put in a minimum sentence. Now, the problem with minimum sentences is they result in, number one, more not guilty pleas, therefore more trials where defendants are represented at the beginning. And so when you're talking about systems that are already groaning under the weight of unresolved criminal cases, this just adds to the problem. It also means there's no incentive to cooperate, to give up information or evidence or become part of the state's evidence against somebody further up the chain. There's just no incentive. You're still going to look at a minimum term of five years or 10 years. Why would you? You may as well just take your chances at trial. And thirdly, prosecutors and magistrates that I've spoken to in countries where you have these high minimum terms are really uncomfortable with it and unofficially will probably seek to find alternative charges or to not charge at all. And magistrates too will feel that very human discomfort that you've just described, and perhaps even annoyance that their discretion is being taken away, and they may find ways to acquit, potentially setting a legal precedent, particularly in appeal courts where this has happened very recently in Tanzania. And that legal precedent can sometimes skew the legal pitch for some time on, for example, interpretation of certain definitions. So those are the sort of unintended consequences of this well-meaning kind of drive to put in these very high deterrents sentences. And so whilst he may feel very sorry for the poacher who gets caught by that, it doesn't do his family any good. And in countries where there's no welfare state to catch them, you're probably creating any more poachers to take his place. An example is in Zimbabwe, you know, a young man received nine years imprisonment for killing a python that was eating his goats. He's 35 years old. He's got three kids, very young kids, a wife, and he's in prison for nine years. Since then, Zimbabwe has amended its specially protected species list to remove pythons but I'm not sure that this guy is out I don't know if anybody has taken on an appeal and released him so that's the sort of injustice that we have to be really careful about and it does play into the hands of the real criminals who basically consider those sort of poachers as expendable and always always replaceable
Crista Cullen:yeah it's just it's so difficult to get that balance right isn't it and that's um That's what's just kind of, I guess, all of our roles within this is to sort of understand the holistic approach to what is the incident, gather the evidence appropriately, and then try and hold them culpable for what the crime actually is that was committed. And that is where we all need to put a lot of effort and time into sort of working out exactly how best to do that. So I guess this sort of takes me on to the final point, Shmini, that there's so many people listening to this podcast sort of of working out, you know, the depth of the problem, understanding the depth of the problem. And we've only just brushed the surface with our brief conversation. I mean, how do people help? And you sort of said, you know, gather awareness, make the public more aware of kind of what's happening and how do we get accountability for those middlemen and for the ultimate person who's receiving some of these goods wherever, whatever country that may be in line really with the crimes that genuinely have been committed?
Shamini Jayanathan:So I think what's important is that everybody should play to their own strengths. And I'd say that particularly in relation to organizations. And that means either you have the criminal justice expertise within and you've got that and you put it to good use. And I'll just interject here and say, for example, environmental law lawyers are not the same as criminal lawyers. And I think that's a mistake that some conservation organizations make. You wouldn't have an elephant specialist give you advice on how to build protection around a tiger. Criminal lawyers, like detectives and police officers, they are there in the rough and tumble of the courtroom on a daily basis, whereas environmental lawyers could go their whole careers without setting foot in one. So there is a need for organizations to appreciate their own understanding and limitations in this particular sphere. And where they don't have the expertise, they should partner with those that do have it and play to their own strengths. So maybe they have an incredibly important role in sensitizing judiciary, prosecutors, but also the public, not just about the dangers of wildlife crime and what it means to us, particularly in the context of COVID, which we're all now particularly alive to, but also what's at stake for them if they do commit a crime. But then organizations like the UN Office of Drugs and Crime, for whom I now work, are always keen to partner with NGOs who bring a local perspective. It's not always easily ascertained. So NGOs can bring local knowledge, experience to the table. It can be extremely valuable in deciding 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 from a siloed approach that wildlife trafficking crimes can be cured just on their own in silo and accept that actually we need a much more systemic lift, which does take a lot of heavy lifting, which is why large organizations like UN end, for example, and the EU and other big entities like that can be extremely helpful in getting that sort of muscle behind lifting these sorts of programmes up to a level where you can see the change across the board.
Crista Cullen:Yeah, absolutely. I mean, much of what we do with Defouncy is try and identify those partners, as you rightfully have pointed out, that have that specific knowledge base and specialism within a set area in order to make sure that you can strategically partner in a way that's the most effective on the ground because you know we've always we think we know the answer but unless you immerse yourself in that world I think sometimes we sort of don't always get the full story and sometimes that can be more effective for us to to get the outcome that we all we all are looking for so Shamini thank you so much for for an incredible whirlwind tour of the insight of your world and I'm sure a lot of our listeners will will find it hugely, hugely interesting and hopefully take an avid interest in sort of watching how we progress from here as a continent in order to try and put a few things right that have currently gone a bit wayward of late. So thank you, Shamini. Really, really appreciate your time and efforts. And I look forward to watching your progress.
Shamini Jayanathan:Thank you.
Crista Cullen:Thank you so much for listening. And to find out more, visit tofauti.org, T-O-F-A-U-T-I. Or follow us on Instagram and Facebook at Tofauti Foundation.