GIVING A VOICE TO THE VOICELESS – THE ROLE OF IMPACT STATEMENTS IN WILDLIFE CRIMINAL TRIALS

Carina Bruwer, EWT’s Wildlife and Law Project Officer, carinab@ewt.org.za

“Some people talk to animals. Not many listen, though; that’s the problem.”

A. A Milne

While this may be true, climate change, natural disasters, and the rapid loss of biodiversity have forced a growing consciousness of the impact of our actions on the Earth and all who inhabit it. Humans have been forced to listen.

Some of the best listeners in society are magistrates and judges, often listening to weeks of arguments and evidence being presented. When it comes to criminal matters, their task is to balance the accused’s right to be presumed innocent with the evidence presented against them. But just as every accused is owed a fair trial and the right to be heard, so too the perpetrator’s victim must be allowed to tell the court about the impact of the perpetrator’s actions against them.

But what if the victim cannot speak? What if the victim is an entire forest that has been illegally harvested? What if the victim is an Orangutang who no longer gets to live in his favourite tree or any tree for that matter? Has anyone asked a rhino what it feels like to have his horn removed or dugongs, sharks, and dolphins how it feels to be bycatch? Not only are animals and plants not able to speak, but they are also not afforded the status of victim in law, a privilege typically reserved for humans.

But as it is in the interest of justice that lawyers represent human clients in court, so too must humans speak up on behalf of the world’s fauna and flora. When a human is the victim of a crime, their voice is often heard through a victim impact statement, detailing the effect that the crime has had on them, their family, and even their community. This statement can be written by the victim, a family member, or someone like a doctor or psychologist, detailing the injuries that the victim sustained.

There are increasing movements all over the globe that argue that animals, or non-human species, should be afforded the status of the victim. And rightly so. But even then, animals and plants cannot speak of their suffering. One way to ensure that fauna and flora are heard is by presenting the court with an impact statement similar to those used when a victim is a person. Such statements are increasingly finding their way into wildlife crime trials, including in countries like Scotland and Hong Kong, where they are used with great success. They are also making their way into courtrooms in Africa.

Southern Africa is home to many of the world’s most iconic species of flora and fauna, which means that it is also the source region of much illegal activity aimed at these species. Unfortunately, in the words of George Orwell’s Napoleon, “all animals are equal, but some animals are more equal than others”. While everyone is aware of the region’s rhino poaching crisis, not everyone is aware of the illegal trade in countless species of reptiles and plants, wiping out certain species from entire areas. But the leopard tortoise shipped to Europe disguised in a shoebox deserves as much attention as the leopard, as its role in the ecosystem is equally important. Its voice must be heard as loudly as that of the leopard caught in a snare.

The EWT has launched a new project, funded by USAID, to mobilise a collective voice for the voiceless fauna and flora of southern Africa by coordinating the drafting of wildlife crime impact statements to be used by the region’s prosecutors. These statements can be used during trials or sentencing proceedings as a tool for prosecutors to make the court aware of the impact of a specific crime. The court must then consider the impact, balancing the accused’s circumstances with the gravity of the offence and the public interest to determine suitable punishment for perpetrators, whether it be a fine for illegal fishing or jail time for being a pangolin-trafficking kingpin.

These statements will be written by species experts, including members of academia, government departments, law enforcement officers, NGOs, and many other stakeholders, all of whom are eager to be a voice for the voiceless wildlife victims of crime. The purpose of these wildlife crime impact statements is to ensure that courts see wildlife not only as a commodity measured only in value but as living beings whose removal from the wild at an unprecedented, unsustainable rate has an impact on the individual species, on other biodiversity, ecosystems, and ultimately, on humans. It is now up to us, and the judicial systems of southern Africa, to listen.