October 02, 2017

International Law Committee Reports on the Rule of Law in Namibia

In September 2016 Section members Jordan Lesser and Sorell Negro travelled to Namibia for a series of meetings with stakeholders in partnership with the Legal Assistance Centre of Namibia (LAC)—the country’s sole public interest law group—answering a request by LAC for help on measures to limit and to prosecute poaching. This is their report.

What once seemed to be a limitless expanse of wilderness is facing severe reductions in wildlife populations because of an influx of sophisticated organized criminal syndicates seeking the very lucrative rhino horn and ivory to sell overseas. Working with attorneys at Robinson & Cole LLP and DLA Piper and with Section member Kelly Walsh of Schwabe Williamson & Wyatt, we researched Namibia’s legislative framework and wrote two reports with recommendations for legislative reform, as requested by LAC. Those reports addressed and identified the following issues:

  1. penalties were too weak to deter wildlife crimes;
  2. investigations and prosecutions often fail to pursue the broader criminal syndicate networks and operatives;
  3. whistleblower protections are non-existent;
  4. there is a lack of coordination between investigations and prosecutions of wildlife crimes;
  5. communal conservancies would benefit from improved mechanisms to manage communally-owned wildlife; and
  6. judicial reforms, including establishment of an environmental court and specialized wildlife crimes prosecutors, would improve prosecution and adjudication of illegal poaching.

We completed the full report by July 2017 at a first-of-its-kind workshop in Windhoek, Namibia. The workshop was well-attended by high-ranking Namibia government officials. They now were prepared to roll out increased penalties for possession of wildlife products, adding to recently enacted higher penalties for the act of poaching. Our team developed new and amended legislation to address whistleblower protections, enhanced penalties, a sentencing scoresheet for improved uniformity and reporting of wildlife crimes, the elimination of loopholes that defy investigators, establishment of an environmental court and specialized wildlife crimes prosecutors, and similar other reforms.

We identified the following next steps of the project:

  • develop sentencing guidelines, including minimum sentencing;
  • establish a Wildlife Crimes Trust Fund to receive assets and penalty monies recovered from wildlife crimes, and to aid further investigations and the specialized Protected Resources Division;
  • formalize plea bargaining in statute to allow for better information gathering practices that could expose international criminal syndicates operating in Namibia; and
  • implement electronic monitoring devices for suspects released on bail to prevent them from fleeing the country on secondary passports.

Currently, the research team is engaged in preparing a secondary report based on the results from the workshop, while LAC discusses implementation of the most popular reforms with critical government officials.

New York City is the largest point of entry in the nation for illegal wildlife products and has its own robust market. New York State codified enhanced protections in law on August 12, 2014, by updating penalty provisions for the illegal sale, trade, or barter of ivory articles and established bans on the sale, offer for sale, purchase, trade, barter, or distribution of an ivory article or rhinoceros horn, subject to limited exceptions.