TNRC Where are the weakest links in the illegal wildlife trade enforcement chain? Lessons from corruption risk assessments with agencies in three countries

This note has a dual focus. First, it summarizes experiences and lessons from conducting CRAs with authorities responsible for investigations and prosecutions of IWT cases in three countries in Africa and Latin America. It seeks to demonstrate the value of adopting a collaborative approach to CRAs, illustrates potential avenues for pursuing such an approach when the right factors are in place, and demonstrates how mapping the criminal justice process provides a solid starting point to identify critical vulnerabilities. The note also highlights factors that might recommend another approach, for example where collaboration cannot be assured.

Second, this note highlights some common risks that emerged from the CRAs in the three countries and that may negatively affect the progress of IWT cases in other countries. Still, corruption risks vary among countries and agency contexts, and it is not always feasible for practitioners to conduct or initiate a CRA. These general insights can help point practitioners to possible vulnerabilities to look out for.

Corruption risks that facilitate IWT are usually assessed from a supply chain perspective: the risks at the stages of poaching and harvesting; to transportation, processing, and export; and to sale and laundering of proceeds (e.g., Zain 2020). This approach is hugely valuable in helping practitioners to develop targeted mitigation measures, as well as in highlighting the role of the private sector in detecting and mitigating the risks. 

At the same time, corruption vulnerabilities in the wildlife trade exist not just at every stage of the supply chain, but also at every stage of the criminal justice chain. Informal networks of corrupt politicians, officials, and traffickers, coupled with bribes, can allow perpetrators to evade justice at any stage, from detection and arrest to investigation, prosecution, and sanction (e.g., Kassa et al. 2020). Corruption risks in law enforcement agencies may also have systemic negative impacts, such as selective or biased enforcement actions against environmental crimes more generally (Williams 2019). Efforts may be skewed towards lower-level actors or activities which offer greater opportunities to collect bribes. The suspicion that investigators, prosecutors, and judges can be bribed or influenced destroys public trust in the criminal justice system; limits the potential for effective inter-agency, international, and public-private cooperation; and denies individuals the right to a fair trial (Outhwaite et al. forthcoming).

What can natural resource management and conservation practitioners do to help ensure that corruption risks in law enforcement agencies are better understood and less able to undermine IWT cases? If the right factors are in place (see box 2 on the next page), a CRA is a good place to start.

The Basel Institute’s Green Corruption team conducted CRAs with law enforcement agencies responsible for IWT cases in three countries in Africa and Latin America.[1] The team developed and applied the MCAR approach, which focuses on analyzing systems and processes in a law enforcement context:

Step 1: Mapping & Characterization

A unique feature of the MCAR methodology is the development of a process map for IWT investigations and prosecutions in each country. This requires significant desk research of criminal procedures, plus consultations with local experts. Hand-drawn maps are an option, but a software program can help make the map visually clearer and more consistent, as well as easier to update and share. Developing a detailed map can be time-consuming, but it is vital to understand how the process works, identify the key actors and agencies, and highlight specific points prone to corruption risks. In all three countries, the mapping exercise surfaced a somewhat surprising diversity of opinions among interviewees about the steps in a criminal procedure, despite the fact that these should be highly standardized processes. The mapping allowed us to make sure we referred to the same thing during interviews, as well as to identify who was responsible for different decisions and elements of investigations and prosecutions.

Step 2: Assessment

The map forms the basis of a systematic gathering and analysis of information about corruption risks at key points along the process. This includes using a scoring system to quantify the potential impact and likelihood of each risk. Ideally, in the MCAR methodology, assessment would be done via in-person workshops that bring together internal stakeholders from the agency, including current officers, to gain a better understanding of processes.[2] Where the environment allows it, external stakeholders can validate potential risk points and weaknesses. These may include civil society, human rights, and conservation actors with relevant knowledge of investigations and prosecutions.

Step 3: Recommendations

The “so what?” of a CRA is to develop recommendations for realistic mitigation measures, based on the identified corruption risks and their respective impacts and likelihoods. The intended result is a priority list of recommended actions to address weaknesses, allocate resources, or seek external support, for example for capacity building or IT equipment. A pragmatic way to develop these actions is to combine suggestions from interviewees in Step 2 with best practices based on international guidance and consultations with law enforcement experts.

The way that specific risks manifest will differ across contexts. However, common themes emerged across the three countries studied, despite their different political-economic contexts and criminal justice systems:

1. Procedural abuse

Deliberate abuse of procedures to weaken a case in court, or prevent it being investigated or prosecuted in the first place, is a risk type that manifested across the countries studied. A top risk in this category was “death by delay,” meaning cases ping-pong endlessly between agencies or are deliberately delayed at every stage, such as via multiple court adjournments. Investigators, prosecutors, and judges or magistrates all have significant discretion that allows them to delay the case in this way, leaving room for corruption to affect their actions. This leads to a “running down the clock” on the time a suspect can legally be detained, or simply causes the case to be forgotten.

Similarly, at the prosecution stage, interviewees pointed variously to the risk that prosecutors could use their discretion to present fewer or less serious charges than would be warranted under the law, submitting weak legal proceedings that appear designed to fail in court, and leaving out or dismissing key witnesses and evidence.

How to mitigate risks?

While recognizing that mitigation measures will depend on what is feasible considering political, capacity, and resource constraints in each country, one promising option identified was to adopt or improve case management tools that facilitate tracking and monitoring. The UNODC goCASE software is one example. 

Such case management tools help strengthen transparency and reduce discretion through systematic case progress monitoring by both the agency leadership and external stakeholders, such as civil society or anti-corruption/natural resource management practitioners (Outhwaite et al. forthcoming).

Collaboration on case strategy, for example through inter-agency units or with oversight from external technical review committees, could help to avoid weak cases being presented in court. Clear time frames and protocols around court adjournments could also set realistic expectations and help avoid “death by delay.”

2. Undue influence

Interviewees in all three countries pointed frequently to risks of external influence being exerted directly on officers or on agency leadership. This includes pressure from powerful actors outside the justice system, including foreign individuals, to divert, delay, or abort the criminal justice process, or to grant bail to a suspect despite being a credible flight risk.

External pressure can be transferred down internally within the agency to the officers in charge of a case. This is a common problem in institutions where the organizational culture discourages lower-level staff from speaking up about corruption, and where internal control and reporting mechanisms are weak or non-existent.

How to mitigate such risks?

Protecting the criminal justice process from undue influence is challenging in any context, but improving whistleblowing or other reporting systems can enable pressured individuals to raise alerts safely and, if necessary, anonymously. This is an area where wildlife management bodies ought to invest significantly more resources.

Third-party stakeholders, such as the media or civil society, could also raise attention to examples of undue influence. This is especially powerful if clear guidelines and procedures are developed, implemented, and made publicly available. These could range from technical guidelines for judges on granting bail to high-level government protocols regarding undue interventions in the criminal justice process by foreign diplomats or other foreign nationals. Where such guidelines exist or could feasibly be developed, they would allow third-party stakeholders to highlight where practice diverges from publicly available policies.

3. Evidence

IWT cases typically rely heavily on physical evidence, including the trafficked goods themselves. This may be why the risk of physical evidence “disappearing” from store rooms arose frequently in discussions. Interviewees also pointed to deliberate tampering with the chain of custody to render evidence invalid. Both risks may result in investigations failing due to a lack of leads and/or charges being dropped for lack of evidence.

How to mitigate such risks?

Acknowledging resource constraints, mitigation measures could include consistent use of secure storage facilities with protected access systems that record access, plus revising protocols for collecting, logging, storing, and documenting evidence. 

An electronic evidence management system to replace paper records could be part of the solution to tampering with evidence records. Low-cost, low-tech measures such as clean desk/clear screen policies – widely used in the private sector as well as police forces – could also plug many gaps. 

Here in particular, respondents recommended capacity building around evidence collection, handling, recording, and disposal. Capacity building around digital and financial evidence was reported as especially beneficial.

4. Intrinsic risks

Another broad category of corruption risk emerges from weaknesses “built in” to the IWT investigations and prosecutions process. Interviewees often directly related these weaknesses to a lack of resources, resulting in low morale and low pay that incentivizes officers to take a bribe.

Legal and procedural factors appeared to be at play as well, however. In one country, for example, respondents related corruption risks to the unusually high level of complexity of IWT procedures, which involve multiple national and regional police and prosecutorial bodies participating at different stages of the process, sometimes with overlapping jurisdictions. At a basic level, this complexity leads to a disparity in information and understanding between different actors, giving individual officers more opportunities to subvert the process for personal gain. Shifting case files (and sometimes evidence) from one agency to another also increases risks of tampering or chains of custody being disrupted. Unclear or overlapping roles between different entities can also result in competition or “turf wars,” which damages trust and reduces open communication between parties.

Social and cultural factors were also commonly mentioned, including the closeness of law enforcement officers to their communities and their conflicted loyalties when assigned to investigate local cases.

How to mitigate such risks?

Interviewees believed that strengthened personnel management could help mitigate some intrinsic risks, for example improved selection procedures and performance management, regular staff rotation, and a review of incentives and pay scales for those with significant discretionary power.

Another common recommendation was to strengthen internal control and reporting/whistleblower protection systems, which are weak or nonexistent in many wildlife management agencies with enforcement powers. Where it is not feasible to introduce effective whistleblowing systems within an agency, including sufficient protections for whistleblowers, it may be possible to raise awareness of the existence of international avenues. Concerned individuals could use those avenues to confidentially report natural resource corruption, including corruption that undermines IWT enforcement (e.g., Kohn et al. 2021).

Efforts to build relationships between colleagues, both within an agency and with counterparts in other relevant institutions, could also help to strengthen the trust that is essential to successful lawenforcement collaboration and avoiding institutional competition.

5. Collusion and information leakage

Collusion between prosecutors and defense teams can tip the odds further against a weakly presented case. This was a frequently cited vulnerability in two of the studied countries.

In particularly, disclosure of the case strategy and confidential information to the defense teams or other interested parties can confer an unfair advantage and prejudice a case. Where the information concerns individuals – such as informants or the investigators in charge – the impact was considered far more serious, as it may affect their physical safety and/or reputation. 

How to mitigate such risks? 

In addition to above-mentioned measures relating to record keeping, transparency, and third-party monitoring, interviewees recommended protocols and training on avoiding and mitigating conflicts of interest. Too often, according to interviewees, conflicts of interest are only recorded, not mitigated. Measures could include avoiding assigning prosecutors to a case who have a prior relationship with defense lawyers (for example by attending the same law school/class) and arranging court procedures to limit opportunities for inappropriate contacts. For example, a court in Southeast Asia found that lawyers and prosecutors sitting in the same small room while waiting for the judge to arrive caused unnecessary opportunities for collusion.

• Corruption risks in IWT investigations and prosecutions will vary among countries but often exhibit some similarities in type. Common themes to look out for may be abuse of procedures; undue influence from external parties; tampering with evidence or evidence procedures; intrinsic risks arising from personnel management, trust, or how the system as a whole operates; and collusion or information leakage. 
• Before undertaking or initiating a CRA, it is vital to understand the political, social, and economic context in which investigations and prosecutions take place. A political economy analysis can help to illuminate relevant factors that affect risks and the development of sustainable mitigation measures – as well as the feasibility of conducting a CRA at all (Baez Camargo and Kassa forthcoming).
• The results of the three-country pilot study indicate that it can be helpful for a CRA to focus primarily on understanding and strengthening systems and processes, without pointing fingers at individuals or specific agencies. Drawing a process map of the relevant parts of the criminal justice chain, while time-consuming, can help all stakeholders to understand the process and more accurately pinpoint corruption risks. 
• A collaborative approach to conducting a CRA in this context involves working with the key agency or agencies involved in IWT cases. Without strong relationships of trust, there is a risk of noncooperation or even a backlash. Internal control departments, where they exist, might be useful allies as they often have a mandate to conduct risk assessments. Commissioning an external specialist organization may be another option.
• While CRAs offer a systematic approach to analyzing corruption risks, the data gathered and subsequent analysis will likely be more complex and less clearcut than practitioners may desire. They should be thought of as a starting point on a journey, with the focus being to address high-priority risks and to open the door to future updates and reforms.

[1] Semi-structured individual interviews were conducted with 12–15 stakeholders in each country. A local advisor facilitated the interviews to help generate trust and openness. Data from the interviews were processed using Microsoft Excel. An online questionnaire was then shared with interviewees to validate the overall results and assist in scoring the impact and likelihood of each risk and collect suggestions for mitigation measures.

[2] Due to Covid-related restrictions, video interviews were substituted for in-person workshops.