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Canine evidence hitch in poaching cases

Tuesday May 1 2018

Canine evidence

A ranger trains a sniffer dog at the Maasai Mara Game Reserve. KWS is sensitising court officers on the importance of canine evidence. PHOTO | FILE | NATION MEDIA GROUP  

COLLINS OMULO
By COLLINS OMULO
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In a boot camp deep inside a local game reserve, an elite squad of four sniffer dogs are being trained for combat duty against cross-border wildlife poaching.

Rising incidents of wildlife poaching, especially for game meat and wildlife trophies, have forced a number of game reserves, conservancies and even border exit points to beef up security.

Unlike human trackers, who are inundated with dozens of limitations among them poor visibility, tracker dogs can trace a runaway suspect from the scene of crime to his hideout by simply sniffing through the air.

These elite dogs are increasingly becoming instrumental in tracking and apprehending poachers and traffickers, in courts however, prosecutors find it quite daunting to convince judges to accept evidence produced by dog handlers –which is also known as canine evidence.

Ms Florence Magoma, head of prosecutions at Kenya Wildlife Service, reckons that part of evidence wildlife prosecutors rely on before the courts is canine evidence. Regrettably, the country's legal framework largely treat such evidences as mere circumstantial or opinion evidence rather than admissible evidence.

COLLAPSE

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And for this reason, she noted, many wildlife criminal cases collapse pre-maturely.

Ms Magoma reckoned that canine evidence is a new mechanism in the Kenya's legal system. Most prosecutors do not understand the procedures taken to adduce the evidence.

"Sniffer dogs are properly trained and have high sense of smell which enables them to identify 12,000 different scents, they can never misguide you to a wrong exhibit, the dog is just a tool helping its handler retrieve evidence," she added.

The prosecutor notes that they have successfully prosecuted three cases on wildlife crimes but lost one 'big case' for lack of reliable evidence since the court 'could not believe that the tracker dog was able to track the scent of the person who killed an elephant from about 20 kilometres from the crime scene.

While the prosecutor says that canine evidence cannot be used as a stand-alone evidence, she asks courts to consider them as part of crucial evidence rather than opinion.

"What we now rely on is the Evidence Act section 48 which allows an expert to produce evidence before the court," explained Ms Magoma.

TRACKER DOGS

The prosecutor added that they also rely on Case Law –cases already done in court and the courts have pronounced themselves on what would be considered as the procedures on how to rely on canine evidence.

Emmanuel Molai, an administrator at the Mara Triangle, whose unit  uses tracker dogs to track poaching activities along the Mara-Serengeti corridor, says they rely on additional pieces of evidence such as weapons or game meat to put a strong case in court.

"Sometimes poachers can either throw their weapons when they are caught or flee the scene then but we have been lucky…if there isn't any other exhibit it becomes difficult to pin the suspect down in court,"Mr Molai said.

When presenting a canine based evidence, a prosecutor is expected prove the qualifications of both the sniffer or tracker dog and its handler. The process used must to arrive at the evidence including how the dog was able to sniff and detect where the counterfeit product in a consignment.

VETERINARY RECORDS

Furthermore, all the records such as the dog's veterinary records and personal record of the handler must also be presented before the court.

"The dog trainer has to adduce all the qualifications he has in terms of training. He has to tell the court the breed of the canine present before the court and the abilities of the particular canine," said the KWS prosecutor, adding that the process is important in convincing the court that the evidence you are adducing before it is reliable.

Ms Magoma is at loss that the country's legal system does not understand canine evidence. When such evidence is presented before the court, it will depend on the opinion of the person either sitting on the other side or the one trying to adduce the evidence. If the two parties do not understand the procedures then the evidence will be deemed unreliable.

"In the past, we used testimonial evidence. Evidence that was recorded by persons who attended to a scene of crime and collected exhibits, Ms Magoma pointed out, "other analytical evidence, for example, forensic DNA evidence from the persons at the Museums of Kenya or KWS forensic laboratory are also handy."

Kenya Wildlife Service has come up with procedures to be used during the handling of the evidence. Its experts have done several scene of crime training for their officers on how to handle evidence from a crime scene.

WILDLIFE JUDGE

Because there is not a single wildlife judge in the country, KWS now plans to sensitise the court officials, judicial officers and even defense prosecutors to be able to understand canine evidence.

Mr Philip Muruthi vice president Species Conservation Africa Wildlife Foundation (AWF) observes that the entire continent faces a poaching crisis.

Wildlife and the natural habitat forms the backbone of the country's tourism sector. It contributes 12 per cent of the country's GDP.

"About 30,000 to 35, 000 elephants are killed each year out of a population of about 415, 000 in 2016. About 10 per cent of the elephants are killed each year. In about 20 years, we may not have any elephant in Africa," Mr Muruthi says.

Rhino horns are used by the Chinese as traditional medicine, while in Vietnam, highest consumer of rhino horns, it is used as medicine and Viagra.  There are no scientific evidence to support the medicinal values of the horns.

In 2000, the country introduced a Canine Unit with only three dogs but they now have 25 dogs in different ports, entry and exit points, such as Jomo Kenyatta International Airport and Port of Mombasa. They also have 40 professional dog handlers.

CONTRABANDS

While the sniffer dogs are capable of snorting even contrabands concealed in containers beyond the reach of scanners, wildlife criminals have devised other ways of concealing their trade from the dogs.

Sometimes they use substances like tobacco powder to confuse the dogs.

The scale and magnitude of illegal wildlife trade has grown tremendously such that income from the illegal trade now ranks among the top global sources of illegal wealth according to the Wildlife Traffic report 2016 titled Wildlife Protection and Trafficking Assessment in Kenya. 

"We are working on three areas. First stop the killing. Then boot on the ground by helping equip rangers, training, transportation, current modern equipment to deal with the poachers. Then stop the trafficking where we enhance detection to prevent illicit trade," Mr Muruthi explained.

He added that traffickers know the capability of the dogs and have come up with new ways to defeat them.

"The next step is improve on the training of the dogs by bringing to them the scents so that when they encounter them they do not get confused," he said.