(4) THE FINDINGS AND CONCLUSION OF THE THEORETICAL FRAMEWORK STUDY’S.

The Mixed Theoretical Approach

All theories of criminology have in common the explanation of non-compliance of the law or regulation. That means lack of knowledge of the law may be a limitation to all these theories in criminology. However in the field of law, ignorance or lack of knowledge of the law is no excuse “ignorantia juris non excusat”. Therefore through the findings in this research, all 100% respondents participating in this research were familiar with the WCMA (2013), while a majority of the respondent surveyed representing 63.81% indicated that effectiveness of the penal sections of the WCMA (2013) in deterring wildlife crime in Kenya was not adequate. Therefore the new law is not adequate to deter crime and therefore cannot ensure compliance. According to Karen Yeung, in Securing Compliance; A Principled Approach (2004), where regulatory standards are poorly designed, compliance with these standards will not deliver on the collective goals of the regulatory system. Without compliance review mechanism in Kenya the government needs to rely on empirical research study like this one to be able to assess effectiveness of the enacted law and act on it where research shows it is not effective or does not meet the desired standards or goals. It is a misnomer to think that increasing the fine in the penal sections of a criminal law would be sufficient to deter offenders as according to Yeung(2004) this would make law-breaking conduct a commodity that may be effectively “purchased” by requiring the offender to pay a penalty for breaking the law,

The mixed model framework approach to be adopted in this study will be generated from the three theoretical approach considered in this study. According to the Economic Approach theory, where Pf is the fine and V is the value of the wildlife trophy, If Pf< (less) V then the offender will engage in wildlife crime as the economic gain exceeds the assessed risk.

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However if the assessed risk is a custodial sentence to serve a prison term, then where Pc represents prison time then Pc> (greater) V and the offender will have to carefully access the risk and even if S represents corruption Pc + S > V would still make committing the offence carry a greater risk then the value in V.

According Becker’s deterrence framework which is based on positive economic justification for noncompliance, a wildlife criminal being rational actor whose main objective is to maximize on his profits, if the positive benefits in his economic assessment exceed the negative deterrence incentive for compliance with the law, he will engage in wildlife crime the extent off which will be guided by the value market value of the wildlife trophies. Therefore if V is the value of the trophies and Pf is the penalty which is the fine and therefore where V > (greater) Pf = non-compliance with the law.

Abbots expanded Becker approach by adjusting it to reflect (a) the range of enforcement tools and (b) the escalation of enforcement action and rewrote it to:

B < gH + eF + cD

where gH represents the probability and associated costs of detection by an enforcement agency, eF the probability and associated costs of administrative enforcement action and cD the probability of formal court action including prosecution and conviction in the criminal courts. This frame work though meant for pollution offences can also apply for wildlife crime as it includes enforcement and punishment. For wildlife it can be expanded to where R is the Criminal Justice System, Rk is high probability of arrest by KWS while Rb is prosecution and Rz prison term from judiciary while V is the value of the trophies. Therefore where Rk + Rb are > (greater) V then wildlife crime ill not be committed.

According to the Routine Activities Theory, where V is the illegal acquisition of wildlife trophy and L is its location and Ag is the absence of capable guardian therefore the offence of wildlife crime will occur if:

Ag + L =V

(the easily accessible location and presence of any of the charismatic 5 wildlife and absence of any capable guardian will lead to the offender to being motivated and illegally acquiring the trophy) This theory recently came in to application in March 2017 when poachers broken into Thoiry Zoo im Paris, France, through unguarded rear doors and shot dead a white rhino and took its horn. (CNN news 2017). This is a case that can be explained through the Routine Activities Theory as there was an easily accessible location (L) and absence of guardian (Ag) which motivated (V) to illegal poaching and acquisition of the rhino horn.

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According to the Deterrence Theory if P is the punishment and C is the certainty of the punishment while S is the severity of the punishment and Q is the swiftness of the punishment, therefore the theoretical framework equation will be

P= C+S+Q.

Therefore if either C or S or Q were in the negative, then P would not occur and instead V would occur where V is committing the offence. Therefore the equation or formula would be:

C+S- Q -P=V

Therefore considering all these formulas or equations jointly to form the mixed approach (MA) theory presented in this research it would be:

B < Rk + Rb V= Ag + L P= C+S+Q. Therefore where: R(b+k+z) –Ag –L +C+S+Q= MA

This Mixed model framework pronounced in the above model or equation encompasses all the positive incentives that ensures compliance and enforcement and the negative disincentives that deter committing of crime by an offender. This is the mixed model theoretical approach to be adopted by this study in explaining compliance and enforcement of the law. From the model it is clear that it is not the severity (S) that deters crime. That is because a negative severity in the equation or mixed model framework would equal to non-compliance with the law, lack of deterrence and upsurge in crime.

Therefore according to the theoretical mixed model framework generated by this study, it is not the severity of the law that will deter wildlife crime, it the likely hood of getting caught and punished with certainty (C) plus severity (S) and swiftly (Q). However this will only be effective in the source/supply country. In the consumer markets, consumer demand must be curbed to eliminate wildlife crime by using the 3Cs concept propagated through this research.