By Dr. Kariuki Muigua, PhD (Leading Environmental Law Scholar, Natural Resources Lawyer and Dispute Resolution Expert in Kenya)*
Over the last several years, animal rights and welfare movement has gained momentum the world over, with many countries coming up with laws to protect the welfare of animals. Locally, the use of animals for political branding which includes painting them in indelible party colours has recently seen animal rights activists call for protection of animal rights across the country. We explore briefly the position that Kenya has taken as far as the subject is concerned and in particular the provisions of the Constitution and the Prevention of Cruelty to Animals Act animal ‘rights’ approach or the ‘welfare’ approach.
The Constitution of Kenya 2010
The Constitution of Kenya 2010 has some general provisions which cover animal rights, both domestic and wild animals. Under Chapter five, part 2, on environment and natural resources, the Constitution obligates the state to protect genetic resources and biological diversity. The Fourth Schedule also outlines the roles of the two levels of government in promoting animal welfare; the national government is responsible for protection of wild animals in conservation areas while the county governments are mandated to seeing the control and welfare of domestic animals. The Constitution thus lays a basis for other statutory legislation on the welfare of animals in Kenya.
Prevention of Cruelty to Animals Act, 1962
The Prevention of Cruelty to Animals Act was enacted in 1962 to make better provision for the prevention of cruelty to animals; to control experiments on animals and incidental matters. The Act defines acts and omissions which amount to cruelty and penalties which include cruelly beating, kicking, ill-treating, overriding, over-driving, over-loading, torturing, infuriating or terrifying any animal; or using an animal which is so diseased, injured or in such physical condition that it is unfit to be so used; or conveys, carries, confines or impounds an animal in a manner or position as to cause that animal unnecessary suffering; or without sufficient cause, starves, underfeeds or denies water to an animal; or being the owner of an animal, without reasonable cause or excuse, abandons it, whether permanently or not, in circumstances likely to cause the animal unnecessary suffering.
Further, it is animal cruelty if, being the owner of an animal, keeps it in a grossly dirty or verminous condition or, without reasonable cause or excuse, fails to procure or administer veterinary treatment or attention for the animal in case of disease, injury or delivery of young; or willfully, without reasonable cause or excuse, administers any poisonous or injurious drug or substance to an animal or causes any such substance to be taken by an animal. It is also cruelty to subject an animal to veterinary surgery in contravention of the Veterinary Surgeons Act (Cap. 366) or subjects an animal to any operation, surgical interference or other treatment which is performed without due care and humanity. In addition, if being the owner of any animal, one fails to have it destroyed where the animal is so seriously injured or diseased that to prolong its life would cause it unnecessary suffering; or hunts, kills or destroys any animal in such a manner as to cause that animal more suffering than is necessary; or being the owner of any animal, without reasonable cause or excuse, does or omits to do an act which causes unnecessary suffering to the animal, it amounts to animal cruelty.
However, the Act provides for exception to the foregoing by providing for: the hunting and killing or destruction of any animal under the provisions of the Wild Life (Conservation and Management) Act (Cap.376), the Rabies Act (Cap.365) or any other written law for the time being in force; or subject to the provisions of section 7 of this Act, the coursing and hunting of captive animals; subject to the provisions of section 8 of this Act, the slaughtering of any animal; or subject to the provisions of section 9 of the Act, the training of any animal; or the performance of an operation on an animal under the provisions of the Veterinary Surgeons Act (Cap.366); or subject to the provisions of Part III of this Act, the performance of any experiment on an animal, where the compliance with any provisions of that subsection would necessarily frustrate the object or purpose of the hunting and killing or destruction, coursing and hunting, slaughtering, training, or the performance of the operation or experiment.
In addition to the foregoing, the Act provides that a person who—causes, promotes or assists at the fighting or baiting of an animal; or keeps, uses, manages, or acts or assists in the management of, premises for the purpose, or partly for the purpose of fighting or baiting any animal, or permits any premises or place to be so kept, managed or used; or receives, or causes or procures any person to receive any money for the admission of any person to any premises kept or used for the purpose, or partly for the purpose of fighting or baiting any animal, shall be guilty of an offence. The Act also prohibits the use of traps and other devices for the purpose of capturing or killing an animal. Hunting of an injured captive animal is also an offence under the Act.
Experiments with animals are only to be performed by licensed persons.34 A person who, being the owner of an animal, permits the commission of an offence under this Act or against any regulation made thereunder in relation to that animal shall be guilty of that offence and liable to the penalties prescribed therefor. 35 Notably, an owner shall be deemed to have permitted the commission of an offence if he fails to exercise reasonable care and supervision in respect of the protection of the animal therefrom provided that, where an owner is convicted of permitting the commission of an offence by reason only of his having failed to exercise reasonable care and supervision, he shall not be liable to imprisonment without the option of a fine.36 The Act grants the court power to deprive a person convicted of offence ownership of animal. If any person is convicted of an offence under this Act or any regulation made thereunder in relation to any animal, the court may, if it thinks fit, in addition to any other punishment, make an order—depriving such person of the ownership of the animal; disqualifying such person from owning, possessing or controlling any similar kind, type or class of animal for such period as it thinks fit under the circumstances.
Prevention of Cruelty to Animals (Transport of Animals) Regulations
The Prevention of Cruelty to Animals (Transport of Animals) Regulations, 1984 provide guidelines on how animals should be transported whether by sea, air, road or rail. The Regulations require that during loading, any person who loads an animal into or unloads an animal out of a vessel, aircraft or vehicle, or who causes or permits an animal to be so loaded or unloaded, must do so in a way not likely to cause injury or unnecessary suffering to the animal. In addition, any person who transports an animal by sea, air, road or rail, or who causes or permits an animal to be so transported, must ensure that the same is done in a way not likely to cause injury or unnecessary suffering to that animal.
A person would be guilty of an offence where an animal is likely to be caused injury or unnecessary suffering—by reason of inadequately constructed or insecure fittings in that part of the vessel, aircraft or vehicle, or in the receptacle in which the animal is transported; by coming into contact with a fitting or other part of the vessel, aircraft or vehicle which has not been adequately padded or fenced-off, or with another obstruction; from unnecessary exposure to the action of the weather or the sea; from an inadequate supply of fresh air, whether the vessel, aircraft or vehicle is stationary or in motion; or from exposure to unnecessary fluctuations in or sustained high or low levels of temperature, humidity or air pressure, from unnecessary exposure to noise or vibration.
In addition, an animal under transport must be taken care of by the owner or charterer of a vessel or the operator of an aircraft in which an animal is transported by sea or air, and the transported or other person in charge of an animal transported by road or rail, ensuring ensure that—the animal is adequately fed and watered at suitable intervals during transport, including during a period in which the animal is waiting to be loaded or unloaded; where necessary, an adequate supply of food and water appropriate to the species of that animal is available in the vessel, aircraft or vehicle. As for the transportation of unfit animals, a person who loads or transports an animal that is unfit or likely to give birth during transport, or who causes or permits the loading or transportation of such animal shall be guilty of an offence unless a veterinary surgeon or an authorized officer has given prior written authority.
*This is article is an extract from an article by Dr. Kariuki Muigua, PhD; Muigua, K., “The Place of Animal Rights in Kenyan Law: Prospects and Challenges,” Available at: http://kmco.co.ke/wp-content/uploads/2020/07/The-Place-of-Animal-Rights-in-Kenyan-Law-Kariuki-Muigua-July-2020.pdf. Dr. Kariuki Muigua is Kenya’s foremost Environmental Law and Natural Resources Lawyer and Scholar, Sustainable Development Advocate and Conflict Management Expert. Dr. Kariuki Muigua is a Senior Lecturer of Environmental Law and Dispute resolution at the University of Nairobi School of Law and The Center for Advanced Studies in Environmental Law and Policy (CASELAP). He has published numerous books and articles on Environmental Law, Environmental Justice Conflict Management, Alternative Dispute Resolution and Sustainable Development. Dr. Muigua is also a Chartered Arbitrator, an Accredited Mediator, the Africa Trustee of the Chartered Institute of Arbitrators and the Managing Partner of Kariuki Muigua & Co. Advocates. Dr. Muigua is recognized as one of the leading lawyers and dispute resolution experts by the Chambers Global Guide 2021 and nominated as ADR Practitioner of the Year (Nairobi Legal Awards) 2021.