Penalties in Ethiopia’s Wildlife Legislation

Introduction

The Development, Conservation and Utilization of Wildlife Proclamation (Proclamation No. 541/2007), the Wildlife Development, Conservation and Utilization Council of Ministers Regulations (Proclamation No. 163/2008) and the Criminal Code of Ethiopia (Proclamation No. 414/2004) provide for administrative, pecuniary and custodial penalties for wildlife offences.

Administrative Penalties

Administrative penalties include suspension and cancellation of licenses.  An authorized officer of the Ethiopian Wildlife Conservation Authority (EWCA) may suspend any license if the holder violates the provisions of Development, Conservation and Utilization of Wildlife Proclamation or the Wildlife Development, Conservation and Utilization Council of Ministers Regulation. Where a person is convicted of an offence under the Development, Conservation and Utilization of Wildlife Proclamation or the Wildlife Development, Conservation and Utilization Council of Ministers Regulation, any licenses held by him shall be automatically cancelled.

Further, a person who has been convicted of a wildlife offence or whose license has been revoked due to violation of wildlife laws shall not eligible to be issued with a license for a period of 5 years. Other administrative penalties include confiscation. Pecuniary penalties include fines and forfeiture and custodial penalties include imprisonment and arrest.

Fines
Fines are provided for under the Development, Conservation and Utilization of Wildlife Proclamation and Criminal Code of Ethiopia as a pecuniary penalty.

The Criminal Code of Ethiopia being the main penal law in Ethiopia gives general guidelines on imposition of fines. Article 90 provides that a fine is to be paid in money and is to be forfeited to the state. Where the Article of the law prescribing the offence does not give the amount of the fine to be paid, the fine will not be less than ETB 10 ($ 0.48) and not be more than ETB 10,000 ($ 480). In the case of a juridical person like a company the fine to be applied shall not be less than ETB 100,000 ($ 4,800) and not exceed ETB 500,000 ($ 24,000).

The Criminal Code of Ethiopia further provides that in fixing the amount of the fine, the court shall take into consideration the degree of guilt, financial condition, family responsibilities, occupation, earnings, age and health of the convicted person. The Criminal Code of Ethiopia further provides that where the law provides for a fine or imprisonment as an alternative, the court may impose both a fine and imprisonment depending on the degree of guilt.

Where a fine is imposed, it is required to be paid immediately. Where the convicted person cannot pay the fine immediately, the court may allow for a period of between 1 to 6 months within which the fine is to be paid. The court, taking into account the circumstances and financial position of the convicted person, may direct that the fine be paid in instalments. The period of repayment in instalments shall not exceed three years. This provision is peculiar in that even though the court provides for an alternative prison term in default of payment of the fine, the convicted person is given an opportunity to pay the fine in full without having to serve the prison term.

When the convicted person is not able to pay the fine immediately and the court allows him to pay over a period, he must produce sureties or a security to secure the payment of the fine. The sureties or security produced must be sufficient to ensure the payment of the fine within the required period. In default of the payment of the fine within the fixed period, the court shall give an order for the surety or security to be deposited in court.

If the convict is unable to or deliberately fails to deposit the surety or security, the convicts property shall be seized and sold to recover the fine. This is also another peculiar provision in penal law as it uses civil procedures to recover fines and does not apply default prison terms to punish the convict in where he fails to pay the fine.

In theory, a fine may be converted into labour where the convicted person is not able to pay it in cash although this has never been applied. Article 95 of the Criminal Code of Ethiopia provides that in default of payment of the fine, the court may order that the convict settles the fine by working for the state or for any public authority. The court shall determine the period within which the fine is to be settled by labour depending on the amount of the fine. However, the period of labour should not exceed two years.

A fine may also be converted into compulsory labour. The Criminal Code of Ethiopia does not define what compulsory labour means but Article 103(2) thereof provides that compulsory labour shall be served in the place where the convict normally works or is employed or in a public establishment or on public works. An amount not exceeding one third of the convict’s wages is then to be deducted and forfeited to the state.

The period of compulsory labour shall not exceed two years. When the fine is converted into compulsory labour the court may order the suspension of the enforcement of the compulsory labour where the convict is unable to carry out the compulsory labour due to his poverty, family obligations, state of health or other good cause.

The laws in Ethiopia limit the discretion of the courts by providing for a minimum and maximum fine. The Development, Conservation and Utilization of Wildlife Proclamation provides for a minimum fine of ETB 5,000 ($ 240) and a maximum fine of ETB 30,000 ($ 1,400) for offences related to illegal wildlife hunting or trade, carrying out unauthorized activities within wildlife conservation areas, causing damage to wildlife conservation areas or possessing wildlife and wildlife products without a permit.  The Development, Conservation and Utilization of Wildlife Proclamation imposes a lesser fine of not less than ETB 500 ($ 24) and not more than ETB 3,000 ($ 144) for other offences.

The highest penalty for wildlife offences in the Criminal Code of Ethiopia is a fine of not less than ETB 10,000 ($ 480) and not more than ETB 100,000 ($ 4,800) for the offences of hunting or killing endemic species or possessing, collecting, transporting, transferring or exporting endemic animals or plants or their products.

Imprisonment
The Criminal Code of Ethiopia gives guidance on the kind of custodial penalties that can be prescribed in legislation in Ethiopia. The two kinds of custodial penalties provided for are arrest and imprisonment.

Article 747 of the Criminal Code of Ethiopia provides that in the case of petty offenses, arrest is the only penalty involving deprivation of liberty which may be imposed. The duration of arrest shall be not less than one day and not more than three months or any other longer periods that may be prescribed by law. Arrests are to be undertaken in special premises for detention at the courts or police stations. Persons sentenced to arrest are not to be detained in penitentiary or corrective institutions, nor are they to be confined together with persons sentenced to imprisonment. Further a person sentenced to arrest shall not be compelled to work nor entitled to any remuneration.

The Criminal Code of Ethiopia provides for several wildlife offences which are punishable by fines, imprisonment or arrest, depending on the discretion of the court. Offences punishable by arrest include intentionally violating the provisions concerning the exploitation of natural resources of the country including game and wild animals, intentionally violating provisions concerning the exploitation of wild animals and their products and contravening laws, regulations or directives for the protection and safeguard of the national arborescent species, flora and fauna. The arrest period is not less than one day and not more than three months.

The Criminal Code of Ethiopia also gives guidance on imposition of prison terms. There are two kinds of imprisonment under Ethiopian law. These are simple imprisonment and rigorous imprisonment.

Simple imprisonment is a sentence applicable to crimes that are not very serious in nature committed by person who are not a serious danger to society. It is for a minimum period of 10 days and a maximum of 3 years. However, simple imprisonment may be extended up to five years depending on the gravity of the offence or where there are concurrent crimes committed, all of which are punishable by simple imprisonment. Simple imprisonment may also be extended where the offender is a habitual offender.

Most of the wildlife offences under the Criminal Code of Ethiopia carry a penalty of simple imprisonment meaning that they are not regarded as being serious offences. Besides the specifically prescribed wildlife offences, all other offences under the Development, Conservation and Utilization of Wildlife Proclamation and the Wildlife Development, Conservation and Utilization Council of Ministers Regulation are punishable by simple imprisonment. The Development, Conservation and Utilization of Wildlife Proclamation provides for a simple imprisonment term of not less than one month and not exceeding six months.

Rigorous imprisonment is provided for under Article 108 of the Criminal Code of Ethiopia. Rigorous imprisonment is a sentence applicable only to crimes of a very grave nature committed by criminals who are particularly dangerous to society. The aim of rigorous imprisonment is to punish and rehabilitate the offender as well as to provide strict confinement of the offender and to protect society from him/her.

Rigorous imprisonment is for a term of not less than one year and not more than twenty five years but the law may provide for rigorous imprisonment for life. According to the United Nations Conventions against Transnational Organized Crime (UNCTOC), a serious crime is defined to mean conduct constituting an offense punishable by a maximum deprivation of liberty of at least four years. As such, wildlife offences punishable by rigorous imprisonment may be considered to be serious crimes under UNCTOC.

The Development, Conservation and Utilization of Wildlife Proclamation provides for rigorous imprisonment for offences related to illegal wildlife hunting or trade, carrying out unauthorized activities within wildlife conservation areas, causing damage to wildlife conservation areas or possessing wildlife and wildlife products without a permit. Imprisonment is for a term of not less than one year and not exceeding five years.

The Criminal Code of Ethiopia also provides for rigorous imprisonment for the offences of hunting or killing endemic species or possessing, collecting, transporting, transferring or exporting endemic animals or plants or their products. The prison term is not less than one year and not more than 12 years.

Forfeiture
The Development, Conservation and Utilization of Wildlife Proclamation and the Criminal Code of Ethiopia both provide for different forms of forfeiture including confiscation of items. Both laws mostly provide for forfeiture of proceeds of crime which shall be discussed in more detail later on in this blog.

There is very little provision on forfeiture of instrumentalities of crime. Article 16(2) of the Development, Conservation and Utilization of Wildlife Proclamation provides where one is convicted, the court may also order the confiscation of the weapon, wildlife or wildlife products which are the proceeds of the crime. EWCA officers are given the powers to seize and take over any wildlife or wildlife product which are the proceeds of an offence with a view of having it confiscated upon the conviction of the accused person.

The EWCA or the regional authority concerned may destroy, sell or transfer to a scientific or academic institution any confiscated wildlife or wildlife product. In the case of a weapon, EWCA or the regional authority may transfer it to the appropriate government organ or destroy it. In early 2015, EWCA disposed of more than 12,000 wildlife products which had been kept in its store for a long time. The products including wildlife horns, teeth, skin and tail products were destroyed by burning.

Author: DidiWamukoya

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