Illegal, Unreported and Unregulated Fishing and Fisheries Crimes Key Threats to Security and Fishing Industry
“In the 21st century more than ever before, no state can stand wholly alone. Collective strategies, collective institutions and a sense of collective responsibility are indispensable… (UN 2005)
The Indian Ocean Rim Association (“IORA”) identifies “Maritime safety and security” as priority areas requiring cooperation among its member states. Maritime safety and security is critical in exploiting the opportunities to grow the blue economy for Kenya. In achieving food security, the government has identified the Blue Economy as the seventh priority sector in addition to the six identified in the Kenya Vision 2030. Moreover, the “Big Four” agenda identifies fisheries as a key sector to drive growth in the next five years.
According to the 2018 Kenya Economic Survey, the value of fish landed amounted to Ksh 23 billion in 2017. Fishing and aquaculture industry contributes 0.5% to Kenya’s Gross Domestic Product (GDP). Overall, environment and natural resources sector accounted for 3.2% of Gross Domestic Product (GDP). Considering the value of the fishing industry sector and its direct contribution to the economy, it is important that the concept of governance extends to natural resources and that steps are taken towards achieving a Blue Economy in Kenya by maximizing its potential.
Globally, as much as US$ 23.5 billion is lost to illegal, unregulated and unregulated (“IUU”) fishing. It is estimated that Kenya loses Ksh 10 billion annually due to illegal fishing activities in its Exclusive Economic Zone (“EEZ”). The 2018 Economic Survey reports that the total quantity of fish landed declined from 147,700 tonnes in 2016 to 135,100 tonnes in 2017. This has been partly attributed to improper and destructive fishing practices (which form part of illegal fishing) and declining quantity of fish landed. Further, Kenya’s fish stocks are exploited by Distant Water Fishing Nations (DWFNs) who access the EEZ upon payment of access fees to the State Department of Fisheries. However, the State Department has constrained resources and lacks proper training and enforcement capacity to enable monitoring and control of the activities of DWFNs after they have permitted them access.
Kenya has become susceptible to IUU fishing due to the high presence of tuna fish in its coastal waters which are located on the South West Indian Ocean, the richest tuna belt. Although Kenya has signed the Agreement on Ports States Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, it is yet to ratify it. Kenya’s legislative framework also consists of the National Oceans and Fisheries Policy and the Fisheries Management and Development Act 2016 which regulate the fishing industry and fishing activities and operations.
What are “Fisheries Crimes” and IUU Fishing?
Fisheries crimes constitute several illicit and criminal activities associated with the fishing industry. These include illegal, unreported and unregulated (IUU) fishing activities. “Illegal fishing” occurs when there is a breach of licensing requirements and conditions imposed on a license, fishing without authorization, fishing without a license, overfishing, catching above a set quota, fishing in a restricted area, fishing in a State’s waters without its permission or in breach of its laws, fishing and harvesting prohibited species, using banned fishing gear and fishing out of season as prescribed by the domestic national law of each country. However, not all illegal fishing activities are criminal offences as this is determined by the respective domestic legislation of each country. In Kenya, for example, the Fisheries Management and Development Act No. 35 of 2016 provides the scope of permitted and prohibited fishing activities and operations. A fishing activity is illegal if the State’s laws make it illegal.
“Unreported fishing” occurs when activities in the fishing industry are carried out to evade national laws and regulations. The relevant national fishing authority is not notified or the reporting requirements and procedures are contravened. Further, “Unregulated fishing” refers to, among other things, fishing in an area where there is no fisheries management system and fishing on the high seas by vessels flying a flag of convenience. The concept of IUU fishing also includes use of fishing vessels to facilitate other criminal activities and perpetrate transnational organized crime such as drug trafficking, human trafficking, forced labour or transgressions of labour laws and standards aboard vessels, smuggling of illegal migrants, trafficking in arms and weapons, smuggling ivory and precious stones and metals and even terrorism.
Thus, fisheries crimes are multi-faceted and multi layered in nature, whereby evasive tactics such as flags of convenience, flag hopping and strategic flagging make fisheries crimes difficult to detect and successfully prosecute, and are magnified by inefficiency in fisheries crime law enforcement in Kenya and globally. As such, concerted and cooperative efforts through administrative and criminal action must be directed towards fighting fisheries crimes.
IUU fishing impacts on the natural resources of the maritime environment by depleting fish stocks, corroding the marine environment and decreasing aquatic and marine biodiversity. FAO estimates that nearly a third of fisheries resources are over-exploited or extinct. More than half of the global fish stocks are fully exploited and have reached their maximum fishing capacity. Only 15% of global fish stocks are under-exploited; however, they are predominantly low-value species. The decline of fish stocks over the years has necessitated the introduction of conservation measures including imposition of quota restrictions and issuance of fishing licenses to regulate the species caught, enforcement of restricted fishing areas, specifications on the nature of fishing gear, and reporting mechanisms on fishing operations.
Fish stocks and their value have been on the decline in Kenya. Although IUU fishing has partly contributed to this, countermeasures have largely been administrative in nature and imposed on the fishing vessel. There is need for a dual approach which also employs criminal action.
Challenges in Fighting Fisheries Crimes in Kenya
Some of the challenges in fighting fisheries crimes in Kenya include inadequate experience and capacity by relevant agencies in this area of maritime security. Relevant agencies also have insufficient resources to enable appointed officers to efficiently monitor commission of illicit activities, investigate, properly gather, collect and preserve evidence that meets the required threshold and standard of proof for ultimate successful prosecution and conviction of offenders, and enforcement of awards and punishment against convicted offenders. The efficacy of fisheries crime law enforcement is undermined due to inadequate capacity, training, technical skills and expertise in fisheries law enforcement. Authorities also require enhanced sophistication and precision in execution of their mandates to detect fisheries crimes, identify relevant species, carry out investigations and gather evidence to successfully prosecute accused persons. It is generally difficult to overcome the evasive tactics employed by offenders such as using flags of convenience, strategic flagging and flag hopping and this is exacerbated by inadequate experience and capacity.
Access to Kenya’s EEZ by DWFNs also perpetuates IUU fishing activities and resultant depletion of fish stocks. Kenya also lacks adequate and efficient technical and technological resources to enable monitoring and surveillance of the activities of fishing vessels in their coastal waters. There is also limited awareness on the impact of fisheries crimes, fisheries offences and therefore efforts to combat them are unlikely to be concerted and penalties are often administrative in nature with low fines imposed.
There is also inadequate cohesion, coordination and integration among the various national agencies and institutions appointed to tackle fisheries crime in their various respective capacities. Agencies and their officers work in competition and not in collaboration with each other, leading to institutional disharmony and resulting in ineffective control, prevention, detection, investigation, prosecution and eventual conviction of fisheries crimes.
Conclusion and Recommendations
Law and policy makers require sustainable solutions to curb or end the scourge of IUU fishing. Given that criminal networks and other criminal activities are connected to IUU fishing, administrative measures to fight the menace might not be sufficient. FAO has recognized that the realities of corruption and transnational organized crime in the fishing industry heighten the already existing problems related to combating IUU fishing and fisheries crimes and therefore a comprehensive approach beyond fisheries administration and control ought to be adopted. To this end, both administrative and criminal laws should be employed to combat the fisheries crimes.
As a starting point, a baseline survey should be conducted for the government and other stakeholders to understand the level and impact of IUU fishing and to identify the practices in Kenya which aid their commission, and form the basis of a needs assessment for officers engaged in the fisheries value chain.
An inter-agency and cross-border approach should be adopted in fisheries law enforcement. Cooperation, and not competition, fosters concentration of combined efforts and use of resources towards realization of common goals and achievement of results. The Fisheries Management and Development Act No. 35 of 2016 further emphasizes the need for harmonization of activities of various fisheries management authorities under Section 33, which requires collaboration between counties and the Director General; obligates the Director General to keep counties informed of management measures, processes related to fisheries and obliges the counties to keep the Director General informed on relevant developments in relation to the management of fisheries within the county, and Section 39 (5) which requires the Director General to consult with the appropriate fisheries management authorities of other States in the region to ensure the harmonization of their respective fisheries management plans and fisheries management in general. This will ultimately lead to decisions being executed with a common voice after consultations have been made across appropriate authorities.
In recognition of the threat of IUU fishing and the impact on Kenya’s potential to harvest its fish production and increase its fish stocks, the government has undertaken to establish a Fisheries Crime Law Enforcement Academy under the auspices of the University of Nairobi jointly with the Nelson Mandela University to train fisheries law enforcement officers, build capacity and expertise in national fisheries law enforcement, increase cooperation, collaboration and exchange of information between national agencies and with other regional and international States to encourage mutual legal assistance. The Government should hasten the process of establishing the Fisheries Academy to enable it to execute its mandate.
Relevant authorities should adopt more concerted efforts towards sensitization and creation of awareness on the menace and impact of IUU fishing and fisheries crime through multi-agency and multi-stakeholder workshops, roundtable discussions and seminars. There is also need for intensified political commitment towards fighting transnational organized fisheries crime. This would spur discussions and form an initial step in interagency collaboration. In addition to this, Kenya should ratify the Agreement on Ports States Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing.
Of importance is the need to prevent or restrict access by foreign and industrial trawlers and Distant Water Fishing Fleets to Kenya’s exclusive economic zone by eliminating fisheries access agreements, or imposing conditions that protect the State or publicizing the fisheries access agreements to ensure public participation.
Author: By Beverly Muthoki Musili
Photo: Courtesy of Kenya Broadcasting Corporation