THE DESTINY OF DOMESTIC ANIMALS IN KENYA

"The world is a dangerous place, not because of those who do evil, but because of those who look on and do
nothing." ~ Albert Einstein
Table of Contents
FOREWORD ...................................................................................................................................... 3

ACKNOWLEDGMENTS................................................................................................................. 4

LIST OF ACRONYMS ..................................................................................................................... 5

OBJECTIVES...................................................................................................................................... 6

METHODOLOGY AND SCOPE ................................................................................................... 6

PRIMARY DATA .............................................................................................................................. 6

SECONDARY DATA ....................................................................................................................... 6

ARRANGEMENTS OF THE REPORT ......................................................................................... 6

INTRODUCTION ............................................................................................................................. 7

PUBLIC STATEMENT ..................................................................................................................... 8

RECOMMENDATIONS................................................................................................................ 16
CONCLUSION ................................................................................................................................ 16
FOREWORD

What can be said to be the central issues in Kenyan animal law are and always has been the
tension between, on the one hand, freedom of the domestic animal owners to deal with their
‘property’ as they like and, on the other hand, protection of animals from unnecessary and
unjustified pain.

The raging debate has made us to ask some questions. Does Kenya belong only to human beings?
Must the reports only be looked at in the view of what the public want? Can the other players
have life unreasonably interrupted by human activities and their advocates be given space to be
heard? What about the consequences of impunity and inaction on their welfare?
ACKNOWLEDGMENTS

This report is the result of s sixty hours’ externship conducted at Kenya Society for the Protection
and Care of Animals. This report goes to acknowledge various contributors, known and
unknown. It gives special thanks to Dr. Bett for providing guidance throughout my four-year
course. It further acknowledges unknown KSPCA clients who participated in its creation through
accepting to be interviewed. Special thanks also goes to the entire employees of KSPCA for their
gratitude and caring way of dealing with the interns and other clients.
LIST OF ACRONYMS

KSPCA KENYA SOCIETY FOR PROTECTION AND CARE OF ANIMALS.

OBJECTIVES

This report aims at exposing the strengths and weakness of KSPCA as an organization

advocating for welfare of animals in Kenya. The report is, however, limited to

unwrapping the protection of domestic animals by the said organization.

METHODOLOGY AND SCOPE

The information herein consists of primary data and Secondary.

PRIMARY DATA

These were data I was able to gather through interviewing people who had first-hand experience
and knowledge about the hard life domestic animals in Kenya. The data from my observations

were analyzed before being put down to form part of this report.

SECONDARY DATA

This report also relied on reports already documented by the official at the KSPCA, books,
journals and website sources

ARRANGEMENTS OF THE REPORT

This report has five finding. Part 1 provides an introduction. Part 2, found out that the law that
exist to protect animals is outdated and marred with gaps that cannot provide proper protection
for animal. Part 3, The Kenyan culture is a bar to the protection of domestic animals. Part four
KSPCA as structured at the moment lack basic departments and structures to efficiently provide
guardianship to domestic animals in Kenya. Part 5 contains conclusions and recommendations,
drawn from an analysis of both the deficiencies in morals examined in Part 2 and gaps,
weaknesses, inconsistencies in the legal and policy framework identified in Part 3 and weakness
of KSPCA in ensuring protection of welfare of animals. Some of the principal conclusion is that
poverty and wicked laws are factors of critical importance in establishing the context in which
cruelty to animals arise in Kenya. The poor and unemployed usually lack resources to care for
their domestic animals. The poor health status mostly has nothing to do with love or hatred for
animals. It is in most cases an issue of economic disability that create their cruelty to animals'
manifestation. Nevertheless, the poor may also be perceived as cruel to animals because of
number of cases taken before the court involving the poor being charged with the offense of being
cruel to animals. This, however, creates the wrong perception that only the poor are cruel to
animals. This report found out that county government authorities, police and KSPCA officials
disproportionately harass the poor and take them to court more frequently than the rich.1 Based
on part II, the report also concluded that the existing culture create a condition that is unfavorable
for the protection of domestic animals. It, therefore, calls upon the state and the KSPCA to commit
themselves to creating a condition in which animals can enjoy protection at any place whether
local or urban areas.

This report found out that there is a gap in both law and research, however, there was no evidence
that this research gap was caused by any conspiracy by those who did not wish to see animal
issues popularized. Based on certain theories that are discussed in next chapters, the report
concluded that such absence of substantial body of research and activism on animal welfare are
as a result of conspiracy.

INTRODUCTION

On Friday, November 12, 2010, the daily nation reported that certain people overwork their
donkeys, on fourteenth may 2013, pigs were used in a riot to portray how members of parliament
were greedy, on fourth November 2017, standard digital media reported that police are accused
of killing 300 livestock belonging to pastoralist communities. The then opposition leader said that
the government should compensate pastoralists. The most important as far as the incident was
concerned, was the property rights that had been infringed. No one cared about the maimed
animals which required emergency treatment to save their lives. In fact, some senior officials in

1
Coalition of Non-Governmental Organizations on Economic, Social and Cultural Rights and Kenya Human Rights
Network, Taking These Rights Seriously: Civil Society Organisations’ Parallel Report to the Initial State Report of the
Republic of Kenya on the Implementation of the International Covenant on Economic, Social and Cultural Rights,
2008, p. 26, available at: http://www2.ohchr.org/ english/bodies/cescr/docs/ngos/K-
HURINET_Kenya_CESCR41_report.pdf.
government had defended domestic animals' killers. These and many more not codified in this
report are prima facie evidence that our society sanctifies sinners and criminals.

Though this report does not aim at an abolitionist approach to causing pain to animals. It,
nevertheless, puts hurdles nearly tantamount to such approach. It argues that whatever the pain
to be inflicted on domestic animals should be limited, justified and be determined by the principle
of necessity. It has been determined that necessity for causing pain to an animal (destroy) depend
on the justification. Necessity as a principle in the animal law has in the past been interpreted
strictly and generously in favor of not causing pain to the animal. The court determined that even
where a report is made to a police officer that a particular dog was attacking other animals, the
police were obliged to determine whether such alleged attacks were, imminent, in progress or
recent. If such requirements are not met, then killing may be unlawful.2

PUBLIC INTEREST STATEMENT

The concept of private right is now elevated to a constitutional plane and is jealously guarded.
Despite the importance of this right, there exist fallacies of domestic animals as private properties.
Usually, the term private property is considered a basket with various kinds of properties.
Among them are; real property, Intellectual property, and domestic animals. Theoretically, it is
believed that private property entitles the real owner with certain entitlements which include;
right to use, misuse or destroy, authorize use by others under their conditions and prohibit the
enjoyment by others. In most occasions, right to use encompasses owners right to decide the way
he/she will enjoy its property. This means that the individual has sweeping powers of use, while
this is the ideological belief in a free market economy, characteristics or nature and crucial place
of certain properties in the life of humankind and in the life of such properties themselves have
made a compelling case for public intervention into the regime of private properties. This debate
started in early days with the unique features of land that lead to the regulation of private land.
It was agreed upon that use of land could not be left in the hands of the individual owner because
the general populace had interest in its use. Both current and future generations have interests in
individuals’ private land. This idea has spread to the regulation of domestic animals but with a

2
City of Garland et al., Appellants, v. Talmadge White et al., Appellees
different connotation, we now want regulation of individuals private right to domestic animals,
not because that is what the society want but because it is in the public interest.3

REGULATING EXPLOITATION BY OTHERS

Laws protect domestic animals' owners' rights to economically derive financial reward from the
use of their domestic animals by others. Unlike other kinds of property, where property owner
decide how it is to be used, for the purpose of domestic animals, how it is to be used by "licensee”
is a matter of co-regulation. The government usually prohibit certain use through its regulation.
Such regulations are usually expected to apply to both owners and other users whenever they
exploit their right to use domestic animals. The state prohibition laws on the use of domestic
animals for economic, cultural or amusements or any other use with which humans place
animals, might extend beyond respect for the legally recognized rights and interests of other
members of society, to the inherent welfare of the property itself.

RIGHT TO PROHIBIT

The term ‘prohibit’ in this case need to be interpreted liberally to encompass; individual
prohibition, state prohibition and state compellation(protection). Domestic animals’ owners may
prevent others from using it without permission. They have powers to prevent certain acts in
relation to their domestic animals. Similarly, the state may in certain occasions require beasts
guardian to take certain positive measures towards his/her animals. For instance, to provide
adequate food, water, or medical treatment to his animal(s).4

DOMESTIC ANIMAL IS SUI-GENERIS PRIVATE PROPERTY

This report views domestic animal as a sui-generis private property, they are to be distinguished
from other private properties like inanimate and plants. Animals are unique because they feel
pain. For this and other reasons, they are not like other items of trade to be exploited, used, abused
and dispatched at owners’ pleasure. Though the history leads us to this, it is a wrong direction
that has led to variance between; laws and reality, and laws amongst themselves.

3
Public interest.
4
Tammy Brown, Appellant, v. STATE of Florida, Appellee
KENYAN LAWS PROTECTING DOMESTIC ANIMALS AS SUI-GENERIS PRIVATE
PROPERTIES.

Chapter 60 Laws of Kenya, is the parent statute that provides protection for domestic animals, it
may appear at its face value to protect domestic animals against all unnecessary and unjustified
pains and suffering including the common one we see in our neighborhoods. Under section 3,
there are a number of acts and omission that are considered as falling under the offense of cruelty
to animals. The other provisions also provide for additional offenses to buttress the ones group-
named under this provision. Applying these provisions to the reality of how animals are used
and treated in our surrounding, there seems to be gap in law to be filled. One of such gaps is the
fact that, the act of embracing fighting bulls equipped with sharp hones capable of cutting deep
wound on each other. This, in the view of this report, is, or ought to be expressly considered
unlawful.

A glance at section 3(l) of the Act may mislead one to think that such activities are outlawed in
Kenya, however, the reading of section 2 of the Betting, Lotteries and Gaming Act consider birds
and animals as items under gaming instruments. This was aimed to be regulated through
licensing and permits. However, the reality is that country like Kenya, with persistent reports of
shenanigans in the public service, this regulation cannot be achieved.

The Constitution, on the other hand, provide the door for domestic animals under Article 40 as
mere owners property. Nevertheless, reading the constitution holistically, the opening sentence
of the preamble seem to prove them as sui-generis property. It acknowledges supremacy of the
Almighty God of creation.

This report considers this sentence as welcoming the influence of natural law. It brings into play
the concepts like reality and humanity. Law of humanity carries with it some dictates which
usually outlaw certain activities that a reasonable man may consider cruel or barbarous diversion
which ought to be discouraged. Example of activities that concern domestic animals that are
evidenced in Kenya, and which this report consider barbaric and inhuman is bullfight as a sport.
In Kenya, bullfight is carried out in Western Kenya as a sport chaired by a renowned politician.
Several courts have considered sports like bullfighting an offense punishable in law. In Squires
vs- Whisken, Lord Ellen Borough said that cockfighting must be considered a barbarous diversion
which ought not to be encouraged or sanctioned in a court of justice. In the case of State vs- Buford
(1985), court mentioned bullfighting among barbarous and cruel sports which lead to disorder
and danger and which tend to deaden the feelings of humanity. In another case of Tunner Vs-
Trustees of Albion Hill 121, court gave an obita that cockfighting, (just like bullfighting), be
considered unlawful because it is a violation……. of the plain dictates of the law of humanity
which is at the basis of common law and specially recognized in the constitution which makes it
the duty of the legislature “to countenance and inculcate the principles of humanity. Besides
being barbarous, it can be argued based on reality that sports like bullfight makes audience more
aggressive and thus, violent.

Based on the above arguments, it is evidenced that that Prevention of Cruelty Against Animal
Act has gaps, while section 2 of the Betting, Lotteries and Gaming Act is unconstitutional. It is
also clear based on the time when Prevention of Cruelty Against Animal Act was enacted that
section 3(l) of the said Act which can be confused to prohibit Bullfight, was not passed with the
intention to prohibit the same. This report, therefore, calls for declaration of section 2 of the
Betting, Lotteries and Gaming Act unconstitutional, and the generous interpretation of section
3(l) of the Prevention of Cruelty Against Animal Act as prohibiting bullfighting.

THE LEGAL ANALYSIS.

This report alleges that laws which KSPCA depends on are outdated, wickedly legislated, the
provisions are not objectively driven, and the rules are copied and pasted thus do not reflect local
context. My task is, therefore, to scrutinize the act and prove my assertion. First evidence is that
the organization made an attempt to prepare a bill to be presented in the stakeholders meeting.
They saw a loophole in the Act. Nevertheless, their bill has a gap too. It was hurriedly made
without proper daily capture of problem of the domestic animals.

OUTDATED LAWS

Plainly circumstances may so change in time or so differ in space as to clothe with such an
[public] interest what at other times or in other places would be a matter of purely private
concern. In the history of Kenya, in fact, before 1984, domestic animals were purely private
property. Even after this time, certain acts which are now outlawed by the coming to force of the
2010 Constitution were purely decisions in the private sphere. The Constitution of Kenya is
referred as reformist, transformative charter and a radical departure from the old ways of
operations. The Constitution was to create a change and transformation not only to human life
but also animals and plants life. Domestic animals were to receive a change through the
introduction of principles like humanity and necessity. Kenyans believe in humanity and
everything to the contrary can simply be regarded as nuisance. Domestic animals as private
properties after 2010 were clothed with a public interest because they were used in a manner to
make it of public consequence(nuisance), and affect the community at large.

These changes led to certain laws that were necessary there before to be considered outdated and
unnecessary to the current regime of the of animals’ protection. Among them, is Prevention of
Cruelty to Animals Act whose parts are inconsistent with the current Constitution. Certain
penalties that are unfair and unnecessary still appear in the laws. The same laws, made prior to
2010 constitution appear to have gaps. For instance, outdated cultural practices which are out of
step with the wishes of the people and which ought to appear in the history are currently
practiced without legal response. The report blames animals’ predicaments on the dead laws.

SENTENCING

The sentencing of offenders in cases of cruelty to animals give rise to controversy which call for
serious public debate. There has been outcry from the organization that can be evidenced by their
formulation of a bill to be presented to the legislative assembly to look into. Among their reasons
that led to their call for change in law, was that sentences being meted out to or imposed on
persons found guilty under the Prevention of Cruelty to Animals Act, were too lenient and that
something needed to be done to address the situation. All penalties under the Act are considered
a misdemeanor despite the severity of the offense.

According to the existing knowledge, sentencing have underlying reasons. Among the reasons is
retribution. Under this ground, the offender is sentenced to feel some pinch, to pay in some sense
for the wrongdoing. It is an assertion that punishment is an expression of society's disapproval
of the offender's conduct. Their sentence, therefore, reflects the degree of disapproval. This
justification can be detected in the public interest theory and agency theory. Members of
parliament being agents of the society should only legislate the wishes of the people.

This position, however, was rebutted by Dr. Onyango who argued that agency theory only
applies to limited legislation. She contended that public choice theory takes precedence nearly in
all legislation passed in Kenya. Putting it into context, she said that that may be the reason
sentencing for killing a dog and being found in possession of an ivory are different. The simple
basis is that, either some legislature owns the ranches and want to benefit from tourist that is why
they protect Rhinos and elephants more or, the owners of the ranches acting as lobbying group
corrupt legislature to make the law in their favor.

It is therefore arguable that based on public choice theory and/ or capture theory, the sentences
in the aforesaid Act do not reflect society’s degree of disapproval. The agency theory which
explains agency relationship between the legislatures and the society as a whole open up the
possibility that the agents (the legislatures) may legislate on their own interests or may be
‘captured’ by certain interest groups whose interests may conflict with the goals of the
government or the interests of society as a whole.5

In an attempt to resolve this, Ian a graduate of economics and veterinary argued that a political
will is required from the members of the august house. Secondly, he contended that principle of
most favored animal treatment should apply to create equality of treatment of animals in the
animals’ farm. He complained that all animals are equal, game animals in Kenya are more equal
than domestic animals in the eye of the lawmakers.

Another justification for punishment is deterrence. In this view, the threat or punishment
discourages potential offenders from committing the crime. This justification is based on the
economic concept that human beings are rational and interact with policies economically
computing cost-benefit analysis. Firstly, it is the idea that offenders will be deterred by laws that
provide for harsh punishments. Therefore, offenders should be given such an unpleasant
punishment that they will never repeat their conduct, while those creating mens rea of
committing similar crime will be deterred. Secondly, it calls for the need to implement laws. It
argues that the higher the probability of being caught (the likelihood of being caught), severity of
punishment and the certainty of punishment deter people from committing crimes. The scholars
in support of this argument contend that if offenders are not punished, other law obedient citizens
will be influenced or motivated to disobey such laws. Okwaba feels that Kenya is in a state of
anarchy as far as the protection of animals is concerned. Her defense is that Kenyans are

5
Peter Trepte, Regulating Procurement (Oxford University Press 2006).
flagrantly disobeying the laws(The prevention of Cruelty to Animals Act) and going scot free
(without any punishment levied on them).6

The last justification is rehabilitation. Goal of rehabilitation is to reform offenders. To make

offenders able of living in a community with further committing similar crime.

The relationship between the punishments for maiming domestic animal and killing calls for
review though this was not in the organization proposed review. Since the sentence for both
maiming and killing is considered to bear equal penalty. It is arguable that one who merely
maimed an animal may be interested to kill it because penalty is the same.

DEFECTS IN THE PROPOSED BILL

Usually, a good change in law require a proper planning. It requires a creation of a working paper
to aid in the amendments of laws. A good policy should capture the daily changes and challenges
in the sector concerned, to provide details when amendment of a statute is required to ensure
everything that need to be covered in the law are properly captured in the working paper. It is
absurd that this was not done at KSPCA leading to a suggested amendment that has loopholes
just like the statute to be amended. The main reason why sector policy is made is to guide in the
revision of sectoral laws. Where it is not prepared, the revision of laws becomes tedious job and
gaps are usually left in the new law.

LACK OF ADVOCACY SECTION IN THEIR ORGANISATIONAL STRUCTURE

System theory advocates that if one develops a system that all components are good, it should
give optimal results. The legal change discussed above was aimed at making law a good tool to
protect animals. However, law is but one tool of social change and the components in society
usually compliments each other. Revisiting laws of other sectors like procurement regulations
and land use laws. It is believed that they were tendered to meet our peculiar circumstance.
Nevertheless, value for money or right to housing are still a dream. Certain scholars argue that
even with the perfect laws, if the environment the law is working do not compliment such law,
the objectives of a society are unlikely to be achieved.

Ben, the field officer, argued that to properly change the environment the law works, there is a
need to divide the social environment into; the general public environment and political

6
Shimmers Plaza Limited Vs National Bank of Kenya Limited” Civil Appeal No. 33 of 2012,
environment. Both the environments need to be in tandem with the law if the optimal results are
to be achieved. Though the message may differ, a change in both environments require among
others, vibrant advocacy. It is clear that anti-cruelty statute is practically unknown to many
lawyers and laymen. However, it is absurd that this section does not appear in the current
KSPCA structure. It is impossible to persuade or bring a change when the persuasive arm does
not exist.

IMPLEMENTATION OF LAWS

Though the Constitution binds all of us to obey the law. Other people do not obey it, some people
obey it for some time but later on disobey it. This report views these conducts as influenced by
rationality. Economists believe that every individual at their various capacity, exercise some cost-
benefit analysis which influence how they react towards regulations. It has now been agreed
upon that harsh penalties and the likelihood of being caught and punished are the deterrent
methods most used by civilized societies. There is usually a clear public interest in ensuring that
crime is prosecuted and that a wrongdoer is convicted and punished. One such interest is usually
to cause fear in the people who may plan to cruelly mistreat animals. Based on this, it is usually
advised that where there is sufficient evidence to justify prosecution, the court should do so,
unless there is a greater public interest to justify the contrary.7 Kenya seems to lag behind in
implementing their laws, the worst of all is usually the ones whose penalties are misdemeanor or
those which do not further the selfish interest of the leaders.

KENYANS CULTURE ON PROTECTION AND CARE OF DOMESTIC ANIMALS

ANALYSIS

Based on the above discussions, it is arguable that laws that existed prior to 2010. The legal
framework which was existing was not created to exhaustively protect animals as sui-generis
properties. Such frameworks were leaning more on the protection of animal owners than the
animals themselves. These laws were copy-pasted common laws and were not our size. Domestic
animals’ human interactions regulation may not be effective tool or sufficient of itself to eradicate
cruelty and inhuman treatment of animals where it has become societal culture. The laws,
including the constitution that reigns supreme, are not respected. The main impediment to the

7
, In Paul Ng’ang’a Nyaga and 2 Others v AG and 3 Others. Pet 518 of 2012.
implementation and protection of animal welfare is therefore, the prevailing social attitude. A
society can legislate against animal cruelty all they want, but they cannot make people think it
and live it particularly if they had been conditioned through inherited traditions and their own
life experiences to the concept of cruelty.8 Indeed, the first step, is believed to, appreciate the
common origin of human being and animals. Eradication of cruelty to animals will necessitate a
comprehensive which will include, in addition to laws, public awareness advocacies to counteract
a culture of pervasive cruelty to animals; penalties criminal or otherwise to root out and punish
neighbors who are cruel to animals. Currently, laws are wickedly made, though, even if we had
the most progressive laws, they alone cannot solve all the ills of society.

RECOMMENDATIONS

Need for devolution of KSPCA services.

Need for support from the government to ensure reliable finance sources, this is because what
this organization does is a role that ought to be carried out by the government.

Need to create a policy to guide in the revision of sector laws.

Need for actual implementation of laws

Need for advocacy department within the organization.

Need for realistic and purposive laws.

Need for public education

CONCLUSION

The movement for the protection of domestic animals involves more than just proposals for legal
change. It also requires the determination and struggle of advocates of animals’ welfare to ensure
such protection in practice. There is also a strong need to dissolve the culture of seeing animals
as purely property. It is trite truth that even if we are to achieve de jure protection, with the
existing culture, there is high probability that the laws will not be carried out thus denial of de
facto protection. The only way to ensure effective protection is to translate the paperwork into
reality. Nevertheless, I recommend the organization to work for the good laws to be enacted. At
least they will set a standard against which the actual treatment of animals may be measured and

8
FEDERATION OF WOMEN LAWYERS KENYA (FIDA-K) & 5 others v ATTORNEY GENERAL & another [2011] eKLR
addressed. Somehow their harsh penalties will work as deterrence tool to private individuals
doing their cost-benefit analysis.