Ejercicios

The following case is fictional. It may be included in as pre-, in- or post-class exercise.

Case

The Federal State of Vondu (hereinafter Vondu) and the Republic of Borot (hereinafter Borot) are coastal States adjacent to one another with Vondu situated in the north. Both their shorelines extend to the Ziwa Ocean along the western coastal line of the continent of Mwiba. Vondu is a developing country with a population of approximately 10,000,000 people. The country is around 200,000 km2 in size. About 40% of the population lives on less than $1.25 (USD) per day. The gross domestic product of Vondu is around $6 billion (USD). Vondu’s economy is based primarily on trade, agriculture, and ecotourism.

Borot is a rapidly developing country with a population of approximately 600,000,000 people. The country is around 5,500,000 km2 in size. About 10% of the population lives on less than $1.25 (USD) per day. The gross domestic product of Borot is around $4.7 trillion (USD). Borot’s growing economy is based primarily on manufacturing, agriculture, and consumerism. Borot is also involved extensively in International trade.

The Mwiban elephant (Loxodonta Mwibana) is indigenous to the continent of Mwiba and the shared ecosystem of Vondu and Borot namely the national reserves Mazuri Kwetu and Kupendeza Kweli. In the 1940s, around 3,000,000 Mwiban elephants lived in Mwiba, but the population has decreased since then, largely due to hunting and illegal poaching. In 2008, around 600,000 Mwiban elephants lived in Mwiba and as of May 2015, only around 300,000 Mwiban elephants remained in the wild. The Mwiban elephant is listed as vulnerable on the International Union for Conservation of Nature (IUCN) Red List of Threatened Species.

Vondu’s population consists of the Dombolo community, a local group of hunters and gatherers indigenous to Shula forest found in the province of Shula. The government however relocated them to Shula pale, which is at the outskirts of the Shula forest and at the north-eastern boundary of the Mazuri Kwetu national reserve. The Dombolo community prides itself of the Mwiban elephant which plays a significant role in the culture of the Dombolo community, as they are important figures in their myths, history, and religion. The ancient Dombolo temples typically have large elephant statues on the temple walls. It is believe that elephants carry the souls of the dead safely to the afterlife. The Mwiban elephant tusks are also considered potent in their cultural rituals.

In 1977, the “Wildlife Protection Act of Vondu” (Wildlife Act) went into force in Vondu. The purposes of the Wildlife Act were to protect wildlife and to implement Vondu’s obligations under CITES. The Wildlife Act criminalizes CITES violations, and a violation is punishable by a maximum of 20 years in prison and a fine of at least $100,000 (USD). The Wildlife Act also provides for the confiscation of illegally traded wildlife specimens and provides that such confiscated specimens shall be returned to the country of origin, where practicable.

The National Environmental and Wildlife Management Authority (NEWMA) is the governing body in Vondu that regulates management and conservation of environment and wildlife. It was established by the Federal government of Vondu in 2009 as part of the Vision SASAHIVI – a government development program that focuses on three pillars that are the foundation of Vondu’s economy i.e. trade, agriculture and ecotourism. The ecotourism pillar provides for the establishment of NEWMA.

The president of Vondu appointed Nyoka Musota as the Director-General of NEWMA to oversee among other duties the conservation of the Mwiban elephant that was under threat of extinction given the dwindling numbers of the species from the 1940s to present day. Nyoka Musota is a prominent business man in the transport industry and a respected village elder in the Dombolo community in Shula province. It is hoped that his influence on the Dombolo community will bring about awareness and deterrence of the illegal poaching of the Mwiban elephant. In a move to prevent to extinction the Mwiban elephant species, NEWMA issued a directive that declared in part, that “the Shula Forest, where the Mwiban elephants are found are of historical and cultural importance to the Dombolo community, who are part of the Federal State of Vondu.”

Vondu and Borot are State Parties to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). The Mwiban elephant have been listed on Appendix I of CITES since 1977. Vondu and Borot are State Parties to the United Nations Convention against Corruption (UNCAC). Vondu and Borot are also State Parties to the United Nations Convention against Transnational Organized Crime (UNTOC). Vondu and Borot are both State Parties to the Protocol on Wildlife Conservation and Law Enforcement to the SADC Treaty (The Protocol) 2003.

In a bid to enhance trade cooperation the Federal Government of Vondu entered into a bilateral treaty with Borot to enhance their trade ties by constructing a Super Express Highway which is an infrastructural masterpiece with multiple lanes that runs from Shula province in Vondu, across the Vondu border and into Borot. The plans indicated that the highway will pass through the national park reserves ecosystem shared by Vondu and Borot. Interested companies have acquired land encroaching on Shula forest and the necessary environmental clearances to commence construction of infrastructures like malls, hotels and gas stations in anticipation of the construction of the Super Express Highway.

The agreement has raised a public outcry of the environmental implications of the project and put into question the Federal government of Vondu commitment to conserve the environment as elaborated in Vision of SASAHIVI. The community of Dombolo through Mazingara Safi, an environmental non-governmental organization has taken the government to court over the construction of the Super Express Highway. The KAPTCHA newspaper has published an expose implicating the Director-General of NEWMA, Nyoka Musota in corrupt dealings in the issuance of environment impact assessment reports for the construction of the various infrastructures on land encroaching on Shula forest.

Earlier in the year, the capital city of Borot experienced a terrorist attack from the infamous guerrilla group KATASHINGO that led to the death of 150 people and thousands of injuries. The KATASHINGO militia hides in Makubwa forest which is part of the Kupendeza Kweli national reserve. They seek to secede from Borot and have full control over the Kupendeza Kweli national reserve. The group is rumoured to have ties to the notorious International terrorist network known only by the name FUJO KUU suspected to run its operations from Thailand, a country located in Saweriq Continent. Two weeks after the attack, the customs and border control in Thailand intercepted a cargo from Borot containing 314 pieces of elephant tusks of the Loxodonta Mwibana species weighing 2,152.89kgs without permit.

An anonymous environmental justice journalist vigilante known as Haki Safi has released a video footage in the internet through the popular social media platform, UsoKitabu. The video shows Nyoka Musoto transport company vehicles on different occasions transporting Mwiban elephant tusks from Vondu to Borot into the hands of suspected members of the KATASHINGO militia while avoiding police checks at the border by providing bribes. The Public is calling for the resignation and prosecution of Nyoka Musota and the minister of tourism, Mr Balaa Tupu who in response to the video has called for a media conference where he rubbished the video on claims that it is not genuine.

‘Wildlife-in-the-Direct’, is a non-governmental organization situated in Vondu focusing on engaging with state and non-state actors to improve the protection status of wildlife in the continent of Mwiba. In 2018 it published a report that exposed the illegal trafficking of wildlife through an intricate web of corruption and money laundering scheme in the region. The report linked the recent terrorist attack in Borot to the discovered tusks in Thailand. The report also implicated high-level government officials in both Vondu and Borat including those in NEWMA and the Vondu and Borat police and customs officials who are involved in the smuggling of elephant tusks for individual financial benefits for the KATASHINGO militia group through their overseas accounts transactions.

The video by Haki Safi and report by Wildlife-in-the Direct prompted the Public Director of Prosecution (PDP) in Vondu to direct the Directorate of Criminal Investigations to look into these allegations and have Nyoka Musota and others arraigned in court for wildlife, corruption and environmental-related crimes.

Task

The matter is now before a Magistrates’ court in Vondu and the following is the established agenda for the hearing:

• Whether Nyoka Musota is liable for any wildlife crime and which specific crime he would be liable for
• Whether Nyoka Musota is liable for any environmental crime and which specific crime he would be liable for
• What other crimes can Nyoka Musota be charged with
• What regional and international instruments governing wildlife and environment would be applicable

The participants will argue both prosecution and defence and also use their national legislation to answer the issues raised.