A recent proposal to amend the Kenyan Penal Code would delete s.278 (stealing stock) of that law as well as the ‘illegal possession of stock’ offence under the Stock and Produce Theft Act and replaces them with a new cattle rustling offence. It was also add a ‘theft of livestock produce’ offence and a ‘handling of stolen livestock produce’ offence. Security officers who fail to investigate or report cattle rustling will also be penalised with a minimum sentence of 10 years. Here- in brief- are the pros and cons of the proposal from the point of view of criminal law.
The background of these proposals is the heavy toll cattle-rustling takes on Kenyans’ security. It is important to note that cattle-rustling has been linked to organised crime syndicates in Kenya and is a thriving business. It has also caused numerous incidents of ethnic clashes between pastoralist communities who engage in reciprocal cattle raiding. These sometimes lead to horrifying levels of killings and other atrocities as each raid escalates the previous one. It also led to the largest single massacre of police officers and reservists in Kenyan history when nearly 40 were killed in an ambush while pursuing rustlers in Baragoi. Indeed the Kenya National Commission on Human Rights is currently holding public hearings on the rising insecurity in Northern Kenya (in which cattle rustling plays a large role)
So it’s clear that there is a need to implement a solution to this rustling menace, but is the proposed law amendment the right medicine?
- Since cattle-rustling is how most Kenyans understand the theft of livestock, this is a more appropriate name for the offence and thus one could argue a fairer label for the offender than the old ones (stealing stock or illegal possession of stock).
- The law recognises that security agents are often seen to be at fault in failing to adequately respond to livestock thefts- this not only leads to the stock being difficult to track down (the trail left by the stolen stock is washed out by wind, water and other traffic within days), but also motivates the victims of the theft to take the law into their own hands since they expect little help from the security services.
- The authors have not clearly justified why the old offences under the Penal Code and the Stock and Produce Act were inadequate or an impediment to bringing suspects to justice or whether the goal was merely to consolidate all similar offences under the new Penal Code offences.
- The drafting needs sharpening- for example its unnecessary to name ‘cow’ and ‘bull’, ‘ram’ and ‘ewe’ separately if you’ve already included the phrase ‘the male or female’ of that species in the class. There are also some grammatical errors that can confuse the reader such as the phrase ‘an offence of cattle rustling intends to be…committed’ in clause 278(2)
- There is is no express fault element (such as intent, knowledge, recklessness etc.) for the stealing offences (cattle rustling and stealing livestock produce). However, stealing already contains a fault element of ‘fraudulent intent’ and since the new offences incorporate the old definition of stealing in s.268 et. al., this is not such a big problem.
- The use of high minimum sentences (10-15 years minimum):- these have, time and again, been shown to clog up prisons without really being deterrent, without achieving social protection and failing to proportionately punish the accused according to his/her culpability and harm of the actual offence (i.e. a lack of cardinal proportionality). One could argue that cattle rustlers tend to be repeat offenders and so the high sentences are needed to incapacitate them and give society long periods of respite from habitual criminals. The long sentences might also disrupt the gangs as experienced members and leaders are imprisoned for lengthy terms. But such claims should be backed up by empirical evidence otherwise the state will be burdened with a growing prison population that has no effect in reducing rustling.
- There are also real reservations in using high minimum sentences when some of the offenders who engage in cattle rustling may be juveniles, whose crimes could be dealt with in a more rehabilitative manner. Kenyan law has a similar problem with high minimum sentences for sexual offences. As noted in the Judiciary’s report on Sentencing Guidelines, these have bloated the borstal institutions with juveniles with low risks of re-offending who could have been beneficially redirected away from long custodial stints into sentences (including probation with counselling) that offer them a realistic chance to return to society as responsible adults. The same problem may plague this cattle-rustling offence.
- The lack of ordinal proportionality:- the new offences create minimum sentences that are higher than the maximum sentence for most other stealing offences. Indeed these minimum sentences are higher than the maximum sentences for corruption offences under the Anti-Corruption and Economic Crimes Act. Yet the empirical data from surveys such as this one would suggest that corruption in Kenya is not just perceived to be but is a worse problem that cattle rustling.
- No mention of the costs of new criminal offences and penalties:- Parliament should take a cue from jurisdictions like the US state of Minnesota that require any new criminal proposals or increases in sentences to be accompanied with an estimate of the cost to the state. Such estimates would include the cost in additional investigation, prosecution and prison resources. This approach ensures that politicians are not passing ‘Tough on Crime’ legislation that makes them look good but burdens the criminal justice system with fresh expenses for which no additional funds are forthcoming.
- Finally, without evidence of renewed all-round vigour in investigating, arresting and prosecuting rustlers and their funders, this law could end up a paper tiger like so many other quick-fix criminal provisions.
So my conclusion is that more needs to be done to justify the need for this law, to properly calibrate the sentences and to explain how it will fit in with other measures (including a commensurate increase in resources for anti-rustling bodies) that will deal a death-knell to organised cattle rustling in Kenya.