Bridging the great rift for East and Southern Africa, The

African elephant, human economies, and international law: Bridging the great rift for East and Southern Africa, The

Berger, Joseph R


The African elephant dominates the human environment and physical landscape wherever it roams, a source of poverty and a source of wealth, causing ecological change while providing for the conservation of national treasures, and sparking political struggles over Africa’s most important natural resources. In April 2000, the international community re-imposed a global ban on the international trade in ivory, but preserved the mechanisms to trade when the issue is revisited under the governing treaty. In future meetings, African governments will once again clash over ideas, as they have over the trade ban since its inception in 1989. The conflict involves a fundamental African disagreement on the implications of international trade in ivory, but at the heart of the issue are common approaches to human needs and strong attitudes towards conservation. These areas of agreement will eventually provide a basis of stability for the elephant, the residents of rural communities who live with it, and the governments that struggle to protect their natural heritage and provide for their people.

Management of Africa’s half-million elephants by national governments affects millions of people. The international community, and the United States, with the power to support, control or discourage an international trade in ivory after a ten year ban, greatly affects the range of management options open to African governments. Southern African countries with positive conservation records convinced the international community in 1997 to approve an experimental, one-time trade in ivory. However, the different positions of other African nations, especially East African, should be afforded special consideration and support, in light of their devastation by the ivory trade of the past, despite their equally progressive environmental leadership. Like the governments of Southern Africa, the governments of East Africa have taken dramatic steps to protect human needs in rural communities while protecting unique natural places and priceless national heritage.

The influence of developed nations on wildlife conservation in modern Africa has often been described in terms critical of western interference and “neocolonialism,” especially in regard to elephants and the ivory ban.1 When it comes to the ivory ban, however, the disagreements and pressures between Western nations and African nations are not nearly as important as the differences between the national management of elephants in the East and Southern African regions, and the reasons for those differences. The largest numbers of known elephant populations are found in East and Southern Africa.2 In most U.S. legal debates since the 1989 ivory ban, it has been argued that the ban hurts conservation and human needs in Southern Africa.3 But the potential of the ivory trade to hurt human needs in East Africa and Central Africa, with a greater number of nations that remain among the poorest in the world,4 is equally important, and no less so now than before the ban, when most revenues from ivory went to illegal poaching operations, not to local communities or national governments.

In Southern Africa, elephant populations have been well protected, to the point where some governments have decided to cull elephant herds for ecological reasons, in order to preserve vegetation and biodiversity. Hunting is accepted and promoted, and ivory stockpiles remain in expensive storage. Governments expect that a limited ivory trade would not ignite poaching there, and have always opposed the ivory ban. Zimbabwe has addressed elephant pressures on rural wilderness by encouraging consumptive use and local management of elephants, while successfully conserving elephants and elephant habitat outside parks and reserves.

By contrast, in East Africa, there is moral opposition to culling, and after uncontrolled poaching caused elephant numbers to plummet, their populations have enough room to increase while conflict with humans is effectively managed. Hunting of elephants has been banned for several decades in Kenya, but is allowed in Tanzania. The governments have argued that resumption of the ivory trade anywhere in the world has the potential to renew poaching in East Africa and elsewhere, and Kenya has dramatized its support for the ivory ban by burning stockpiles of ivory. East African countries, especially Kenya, have taken vital steps to resolve conflict between elephants and the people who live alongside them, while taking equally important steps to protect their ecological heritage for future generations, under extremely challenging social and economic pressures.

Part II of this paper explains the international legal mechanism controlling the trade in ivory, the Convention on International Trade in Endangered Species (CITES). Part III provides an overview of the history of the 1989 CITES ivory trade ban. Part IV presents the outcome of the 1999 CITES ivory auction, the first legal international trade in ivory in a decade. Part V discusses the proposals made at the April 2000 CITES Conference of the Parties in Nairobi (COP 11), the fifth COP since 1989 to revisit the rift between East and Southern Africa on the issue of the ivory trade. Part VI introduces the contrast between Kenya and Zimbabwe in their management of wildlife and elephants. The article focuses on Kenya in more detail than Zimbabwe, owing to my experience studying elephant management by the Kenya Wildlife Service while in Nairobi in 1996. Section A of Part VI presents the Kenyan approach to resolving the conflict between elephants and rural Kenyans affected by conservation decisions, a strategy illustrating that the ivory trade is unnecessary to solve the problems between conservation and local communities. Kenya has to some degree sacrificed ecological concerns in favor of human needs with a strategic use of electric fencing, and local communities often benefit where it is possible to keep fences down. Section B of Part VI presents the approach of Zimbabwe to elephant conservation, showing how consumptive utilization of elephants has also succeeded, without the ivory trade, in conserving elephants and rural land, and promoting human needs. Part VII concludes that CITES parties should balance the needs of East and Southern Africa and the rest of Africa by taking the most restrictive approach to the ivory trade possible that could permit periodic, conditional sales of government stockpiles, but rejects indefinite annual quotas, which past experience has proven unreliable and dangerous.


The ivory ban was instituted under the Convention on International Trade in Endangered Species, signed by the United States in 1973 and entered into force for signatories in 1975.(5) CITES was drafted at the initiative of the United States and the United Nations.6 The treaty is available to protect all forms of plant and animal life, but is particularly important for vertebrate species, as forty percent of these endangered with extinction are threatened due to trade.7 In the 1980s, one year’s international wildlife trade included ivory from as many as 90,000 African elephants.8 The overall wildlife trade in one year was worth at least US $5 billion, and as much as US $1.5 billion was illegal, violating CITES and/or national laws.9 In the 1990s, the legal and illegal trade may have risen to twice that level.10 The Convention authorizes the United Nations Environment Programme (UNEP) to oversee the CITES Secretariat and enlist the assistance of technically qualified NGOs. Secretariat functions have been delegated to the World Wide Fund for Nature (WWF) and the World Conservation Union (IUCN),11 which together compile lists of endangered and threatened species to be considered by CITES in its listing process.12 An arm of the WWF and IUCN called TRAFFIC (Trade Records Analysis for Fauna and Flora in International Commerce) monitors illegal trade from offices around the world, working closely with the CITES Secretariat in Switzerland. At the time of the Kenya CITES meeting in 2000, 151 states had acceded to the treaty.13

The CITES treaty classifies species into three appendices. Those listed on Appendix I are “threatened with extinction which are or may be affected by trade,” and international trade in these species, requiring import and export permits allowed only for non-commercial purposes, is effectively banned.14 In the case of elephants, however, this means that a foreign hunter may, if issued permits, take home tusks as a trophy, provided they are not resold. Those species listed on Appendix II are those that “although not necessarily now threatened with extinction may become so. . . .”15 Trade of Appendix II species requires only export permits. Those species listed on Appendix III are not expected to become endangered but are listed because one or more CITES parties desires international regulation of trade. Species can be transferred by a vote of two-thirds of the parties present at the Conference of Parties (COP), held once every two or three years.16

Criteria for listing species on each appendix were adopted at the first COP in Berne, Switzerland, in 1976. These criteria allowed for economic, political and ethical factors to play a role in decisions by nations.17 While no biological data was required to list a species on Appendix I, strict standards for biological data were required to delist the species.18 The Berne Criteria were changed at the 1994 COP in Ft. Lauderdale, Florida, with new guidelines drafted by biologists from the IUCN, creating a clearer biological basis for the listing and delisting of species.19 While Southern African nations lobbied for these criteria and used them as a basis for their argument to delist their populations of the African elephant, others have argued that the new criteria are still inappropriately subject to political will, and a more precautionary approach should mandate Appendix I listing for the entire population of the African elephant.20 No matter what the right listing decisions may be, however, the CITES parties have reserved the right to make further decisions regarding sales and quotas, for elephants as well as other species, on the basis of many concerns other than science. Because the fate of the elephant is so strongly intertwined with the livelihoods of the people who live with it, it is impossible for CITES decision-makers not to place the human needs of elephant range states at the forefront of the debate.



In 1989, the CITES Conference of Parties banned all trade in ivory by moving the African elephant to Appendix I. In the decade before the 1989 ivory ban, the elephant went extinct in many parts of its range, as its total population in Africa was halved from more than a million to under 600,000 animals, due largely to the legal and illegal ivory trade.21 The price for raw (unworked) ivory in the major consumer markets of Japan, Hong Kong, and Europe rose from about US $5 per pound in the 1960s to US $50 per pound in the 1970s, to US $125 per pound by 1987,22 and as high as US $300 by some estimates.23 As National Geographic writer Douglas Chadwick noticed, “had the animals borne tusks of solid silver instead, such teeth would have been worth considerably less. . .,24

In 1985, the CITES Conference of the Parties attempted to institute a nation-by-nation quota system for elephants allowed to be killed annually, and for allowed exports of uncarved ivory.25 This system failed, and as much as three-fourths of the first year’s legal quota trade in 1986 was believed to have been illegally poached.26 Some elephant range countries requested ivory trade quotas exceeding their corresponding elephant populations.27 Others were not signatories to the treaty, and the most notorious smuggling center, Burundi,28 exported thousands of tusks a month for years during the 1980s, while only a single elephant remained alive in the entire country.29

As the price of ivory increased, an old bull elephant was worth as much as US $5000 to any middleman who could obtain the tusks.30 Poachers received about a tenth of the retail value.31 In 1987, the African Elephant and Rhino Specialist Group of the IUCN concluded that the continuing population decline was caused directly by the ivory trade, and that by the time poaching reached the stable elephant populations in Southern Africa, populations in East and Central Africa would be eradicated.32 The chairman of the IUCN Group, Dr. David Western, a Kenyan biologist, later spearheaded an independent study to assess the need for a trade ban, called the Ivory Trade Review Group, bringing together more than 35 biologists, economists, and trade specialists from Africa and all over the world.33 The group played a critical role in establishing scientific support for the necessity of the ban, helping to win over the U.S. World Wildlife Fund to its position, and then President George Bush as well, after announcing its recommendations in a Washington, D.C. press conference with the WWF.34


The crisis in East and Central Africa created a continental divide on the issue of ivory. Many scientists who studied elephant populations amidst the killing in East Africa became outspoken on the issue, and they encouraged journalists from around the world to investigate the dramatic declines in elephant numbers, the savagery of illegal poaching, the danger to rangers and troops assigned to stop the poachers, and the smuggling of ivory in Africa and abroad. Among the first scientists advocating a ban included Cynthia Moss, an American responsible for the longest-running study of elephant social behavior in Africa, which she began in the 1970s in Amboseli National Park in Kenya (releasing a best-selling account of her studies in 1988); Katy Payne, an American scientist who discovered, during research at Amboseli, how elephants communicate in silence across long distances-in frequencies below the human range of hearing; and Kenyan resident authors lain and Oria Douglas-Hamilton, among the most influential advocates for a total ban. lain Douglas-Hamilton, a well-respected elephant biologist, left his elephant research in Tanzania in 1977 to launch the first continent-wide effort to assess populations in all range states, in response to dramatic declines in elephant numbers in most of Africa. Along the way, he led a Ugandan military effort to halt cross-border poaching by Sudanese troops, and observed first-hand Kenya’s war on poaching by Somali troops and bandits.35 In Kenya in 1988 and 1989, tourists were killed by poachers, rangers died fighting them, incursions from Somalia grew bolder, and the Kenyan President instituted a shoot-to-kill policy against poachers.36 The country’s few heavily guarded white rhinos were killed off, and in 1989 the President installed Kenyan paleontologist Richard Leakey to head a new anti-poaching effort as Director of National Parks; Leakey had been calling for a trade ban for several months.37 These prominent East African voices were joined by Kenyan David Western and the Ivory Trade Review Group. Meanwhile, reporters uncovered the growing role of apartheid South Africa in illegal ivory trading, as it assisted rebels in Angola and Mozambique to help finance bloody civil wars with ivory from the last of their countries’ elephants.38 In the words of Katy Payne, the scientist who solved the mysteries of elephant communication, writing in The Washington Post before the April 2000 CITES meeting and recalling the original reasons for the ban, “[t]he ivory industry became a source of government revenue in southern Africa. Meanwhile, in East Africa, the ivory trade was the force behind a devastating loss of wildlife, human life and important tourism revenue.”39


The earliest seeds of the ivory ban were sown in the United States, with a campaign launched by the African Wildlife Foundation, based in Washington, D.C., in May 1988 to convince American consumers to stop buying ivory, bringing awareness to the poaching crisis.40 In October 1988, the U.S. Congress adopted the African Elephant Conservation Act, which gave the President the authority to impose a flexible ivory importation ban keyed to CITES rules on ivory, and established a fund for African conservation, while allowing continued importation of sport trophies.41 The African Wildlife Foundation, in May 1989, also became the first organization to call for a CITES ivory trade ban. Meanwhile, a proposal for Appendix I listing was written by a World Wildlife Fund officer in Washington, Jorgen Thomsen, and an American biologist in Kenya, Joyce Poole.42 According to one of the most detailed accounts of the ivory ban, journalist Raymond Bonner’s book At the Hand of Man, which criticizes the developed world’s influence on wildlife conservation in Africa, western NGOs persuaded Tanzania to use the Thomsen/Poole proposal in its formal submission in May 1989 to CITES.43 But according to David Western, later a director of the Kenya Wildlife Service, the legitimate beliefs of the East African governments were neglected in Bonner’s account, especially those of the newly appointed, well-respected Tanzanian Wildlife Division director, Costa Mlay, regarding Tanzania’s loss of 200,000 elephants in only ten years.44 “East Africa was unable to cope with poaching and was ready for draconian measures,” wrote Western. “[T]he facts and figures provided the evidence that Costa Mlay needed to make an impassioned plea to stem the elephant slaughter.”45 Shortly after Tanzania submitted the proposal to CITES for Appendix I listing, Kenya joined the campaign for a ban, with the leadership of Richard Leakey, who was appointed to head the Kenya wildlife authority in April 1989, just weeks before Tanzania’s proposal to CITES.46

On June 1, 1989, the U.S. chapter of the World Wildlife Fund held a press conference announcing its support for the ban, after convincing the international organization, the World Wide Fund for Nature, to join in the announcement, timed with the release of the conclusions of the Ivory Trade Review Group.47 On World Environment Day, June 5, 1989, President Bush announced a complete unilateral ban on ivory imports, followed by similar announcements by Britain, France, and then the European Economic Community. The piano maker Steinway announced that no new pianos would have keys made from ivory.48 Even the largest ivory consumer nation, Japan, agreed to support a total trade ban.49


In July, 1989, Kenya gathered a stockpile of two thousand ivory tusks worth US $3 million50 and invited the world press to watch it bum at a ceremony in Nairobi National Park, where much of Kenya’s diverse wildlife, except the elephant, persists in the shadow of skyscrapers.51 “I appeal to people all over the world to stop buying ivory,”52 said Kenyan President Daniel arap Moi, where a plaque now commemorates the burning ceremonies with his words, “Great objectives often require great sacrifices.”53 In anticipation of the upcoming 1989 CITES conference, Southern African nations lobbied against a total ban, and Zimbabwe spelled out its position in Swara, the magazine of the East African Wildlife Society: “Do not take your lead from the countries in Africa that have failed to conserve their animals-the Kenyan and Tanzanias-where elephants are indiscriminately and illegally killed. Do not listen to the panicked voices of conservationists who have failed. Listen to us, copy our success, spread it through Africa; don’t destroy it.”54

In October 1989, the CITES parties met in Lausanne, Switzerland. They adopted an ivory trade ban by placing the entire population of the African elephant on Appendix I, with seventy-six votes in favor, eleven against, and four abstaining. The ban was supported by a majority of African nations and opposed by four Southern African nations and several others.55 Five took reservations on the listing.56 No major ivory purchasing nations took reservations.57

The ivory ban was enormously successful and effective in ending illegal poaching, and in ending demand for ivory in the United States and Europe. The price of ivory collapsed, and the crisis of poaching came to an end everywhere on the continent. In Kenya, yearly poaching dropped from more than 3000 elephants per year immediately prior to the ban, to about fifty or less in the years afterwards.58 Kenya’s elephant population, after falling from about 165,000 to less than 20,000 in two decades preceding the 1989 ivory ban,59 increased by as much as 13,000 in the decade following the ban.60 Scientific surveys later indicated that the total elephant population across the continent may have decreased by about 0.5% per year in the first few years after the ivory ban,61 a stable decline relative to the plunge towards extinction that took place before it. Meanwhile, ivory stockpiles in Namibia, Botswana, and Zimbabwe rose from forty tons in 1990 to 110 tons in 1996, before the tenth Conference of Parties was to meet in Zimbabwe.62


Southern African nations lobbied for an end to the ivory ban at the CITES COP in 1992 and in 1994. At the tenth COP in 1997 in Harare, Zimbabwe, their continued efforts resulted in a downlisting of elephant populations in Zimbabwe, .Botswana, and Namibia to Appendix II, with a two-thirds majority backing the proposal. A CITES Panel of Experts appointed at the previous COP announced that the populations in these three countries no longer met the new biological criteria for listing on Appendix I.63 The COP agreed to allow a one-time experimental sale of stockpiled ivory to a single buyer, Japan, after an eighteen month waiting period, to ensure the adequacy of conservation efforts and regulatory controls on ivory stockpiles.64 All proceeds from the ivory sale were to go to elephant conservation programs.65 The conditions of the downlisting, appearing in CITES Decisions 10.1 and 10.2, Conference Resolution 10.10 and Annotation 604 to the Appendix II listing, limited the three countries to a one-time sale of 59 metric tons of stockpiled ivory: 25.3 tons for Botswana; 13.8 tons for Namibia; and 20 tons for Zimbabwe.66 After the sale, quotas would return to zero and a two-thirds majority would be needed to authorize a new sale or quota.67 The conditions included the agreement of the three countries to withdraw their reservations to the Appendix I listing; the establishment of mechanisms to reinvest revenues from the ivory sale in elephant conservation; the strengthening of legal enforcement, reporting and monitoring, with two new international programs-Monitoring the Illegal Killing of Elephants (MIKE) and the Elephant Trade Information System (ETIS, to continue TRAFFIC’s monitoring of ivory trading)-and a mechanism for a halt in trade in the event of non-compliance or renewed poaching.68

In the months preceding and following the downlisting of the elephant in 1997, illegal poaching increased in at least small amounts across Africa.69 After CITES approved preconditions for the sale in February 1999 and scheduled it for April 1999, poaching increased again slightly in Kenya, and ivory seizures went up significantly.70 Poaching also increased slightly in Zimbabwe in 1999, but with less than a hundred elephants killed, according to the government.71 By other critical accounts, the actual number was several times higher.72 In 1999, wildlife rangers again suffered fatalities fighting poachers in Kenya.73

In April 2000, the eleventh Conference of Parties met in Nairobi to consider a proposal by South Africa to sell thirty tons of its stockpile of tusks for about US $3 million, and by the other three countries for permanent annual quotas.74 The Kenyan government, acting as host, continued its strong opposition to any approval of an international ivory trade.75 Western governments, and the most prominent international NGOs, including many that had supported the ban in 1989, refrained from intense international lobbying, as many had refrained in 1997.(76)

“At the end of the day, we are also struggling for our own livelihood,” said KWS Director Nehemiah Rotich before the Nairobi CITES meeting, in the -midst of a media war of words. “No tourist would enjoy seeing carcasses in the park, as they used to see in the ’80s and ’70s.”77 At the same time, South African Environment Minister Mohammed Valli Moosa argued, “We have one of the best elephant management and monitoring programs on the continent. Why should we be penalized because other countries have problems managing their elephants?”78 At the CITES meeting, Rotich went so far as to point out South Africa’s indifference to the fate of Kenya’s tourist industry: “The challenge we are seeing here is political, economic,” he said. “South Africa would not mind if our tourism industry collapsed.”79



After the permanent CITES Standing Committee determined in February 1999 that all conditions mandated had been met by Botswana, Namibia, Zimbabwe, and Japan, the sale was authorized to proceed. The ivory auction took place in April 1999, raising US $5 million for the African countries, and the ivory arrived in Japan in July 1999.(80) At the Nairobi COP, the Standing Committee reported that the three countries had satisfied the additional conditions relating to the reinvestment of these funds into elephant conservation. Botswana had established a new fund for the money, from which 70% would go to elephant conservation projects, including costs for the new CITES monitoring program, MIKE, and 30% to development projects for communities adjacent to elephant ranges.81 Namibia had utilized a pre-existing fund, with 50% of the ivory revenues earmarked for recurrent costs in elephant management, such as fences and guards, and 50% for monitoring the elephant populations, with 20% for MIKE expenses, 20% for equipment, and 10% for a national elephant survey.82 Zimbabwe had also utilized a pre-existing fund, with 38% of the ivory sale funds dispersed to ten rural District Councils, and the remaining funds earmarked for elephant conservation projects, such as MIKE costs, population monitoring and ecology research.83 The Standing Committee was also satisfied with Japan’s domestic controls on the ivory trade.84


In Nairobi, the CITES Standing Committee reported the efforts of the Secretariat to monitor illegal killings of elephants that might be connected to the experimental ivory auction.85 In Kenya, after the ivory auction, a large shipment of forty-five tusks had been intercepted on its way overland to Ethiopia, and a shipment about twice as big was confiscated at Nairobi International Airport from a Korean diplomat. However, the Standing Committee would not link these events to the CITES ivory auction. The Standing Committee also examined the Kenya Wildlife Service’s data regarding elephant deaths, which showed poaching fairly steady throughout the 1990s, with less than a hundred elephant deaths each year. The Committee reported that in Zimbabwe, similar government statistics also showed elephant poaching deaths in double-digit numbers each year during the 1990s. Despite a slight increase in poaching in Zimbabwe in 1999, the Secretariat found no evidence that the increase was due to Zimbabwe’s legal ivory trade or the CITES ivory auction. In Botswana and Namibia, elephant poaching incidents were mostly in the single digits through the 1990s. Although few other African countries made similar data available to the CITES Secretariat, data that existed indicated ecologically insignificant numbers of illegal elephant killings. The Standing Committee found that hunting and problem animal control in Botswana, Namibia, and Zimbabwe during 1997, 1998, and 1999 showed no indication of manipulation to affect government ivory stocks. The Secretariat examined warnings previously expressed by India that the experimental trade could affect poaching in Asia, and claims by Chad that the experimental trade had sparked increased poaching in that country, but found no concrete evidence to support these concerns.

According to the Standing Committee, “the one-off experimental trade offered no opportunity for the laundering of poached ivory…. The trade appears to have been a success in all respects. . . . The Standing Committee considers that the evidence before it does not substantiate claims from a limited number of sources that the trade has prompted a significant increase in illegal killing of elephants at continental level or in terms of the national populations affected.”,86


Important data was also presented at the Nairobi meeting regarding the illegal trade in ivory worldwide, a distinct issue from current illegal killing. The Harare 1997 COP established a comprehensive international monitoring system to be coordinated by TRAFFIC. An interim TRAFFIC report was subsequently issued in January 2000, presenting data on ivory seizures in the past decade.87 The United States had the most seizures of any country during that period, a total of 1435 seizures. TRAFFIC urged that it was not possible to assess current levels of illegal trade or trends over time due to low quality data, and stated that the data “simply suggest that illegal trade in ivory continues to occur in various parts of the world, but the important issues of current levels of illegal trade, trends over time and causality remain to be explained.”88 The data indicate that since January 1989, the year of the ivory ban, more than 117 metric tons in ivory had been seized, the majority in raw ivory-about 100 tons, representing about 28,000 tusks.89 Although TRAFFIC urges against interpretation of the incomplete data, what is presented shows a general drop in seizures over time, dropping by half after 1996. The most important implication of the data is that, despite statistics from elephant range countries showing insignificant poaching throughout the decade, ivory continued to be smuggled illegally in significant amounts throughout the world. The sources of smuggled ivory could include pieces from private or government stockpiles collected before or after the ban, pieces gathered from natural deaths, or pieces collected through continued poaching. The numbers also indicate continued demand around the world for ivory. TRAFFIC has elsewhere reported that demand continued since the trade ban in Burma, Thailand, Vietnam, Egypt, Singapore, China, Taiwan, Korea, and other parts of Southeast Asia, in addition to domestic markets in African elephant range states.90


The meeting of the Conference of Parties in April 2000, in Nairobi (COP 11), surprised the international community by rejecting all proposals to renew any trade in ivory, with a compromise consensus among the African nations that had fought bitterly over the issue up until the last minute. The Southern African nations will renew their cause in preparation for the next COP meeting. And in the meantime, ivory stockpiles continue to grow.

In 1997, the Harare COP established a procedure, laid out in Decision 10.2, whereby donor countries or organizations could purchase declared government ivory stockpiles for any non-commercial purpose that precluded reselling them, including having them destroyed. Fourteen African countries registered stockpiles totaling 158 tons for this purpose. In 2000, the CITES Secretariat reported that no donors had accepted the invitation to purchase the stockpiles. One reason for this reluctance may have been uncertainty over the effect of eliminating these supplies of ivory. Would unsatisfied demand then increase illegal trade and stimulate new poaching? Or would this send a message that could help end demand for ivory all over the world? And if so, would this be the right message to support? At the Nairobi COP in 2000, one nation, the United Kingdom, announced that it would enter into negotiations with one African elephant range state, Mozambique, to purchase its small declared ivory stockpile for noncommercial disposal.91 Considering the benefits in funding and security that could result for African countries from the elimination of their stockpiles, it would be a positive development for other donors to step forward to pay to destroy them. If none are willing to do so, then these stockpiles will impact elephant range state decisions regarding the ivory ban, and it is difficult to argue that the African governments should not be allowed to sell the stockpiles in a manner that could reduce existing demand for ivory through future, conditional sales that need not lead to continuing sales afterwards. However, the CITES parties were right, a decade after the ivory ban, to reject requests for indefinite annual quotas, such as those submitted and withdrawn by Botswana, Namibia, and Zimbabwe at the Nairobi COP, which envision perpetual demand for ivory, and a mechanism to supply it that is hard to control and difficult to stop once started.


In preparation for the Nairobi COP, South Africa proposed downlisting its elephant population to Appendix II, subject to similar conditions imposed by CITES Decision 10.1 in 1997, with an experimental quota of thirty tons of whole tusks from government stockpiles originating from Kruger National Park, and new trade in hides and leather goods, as well as continued trade in hunting trophies.92 South Africa noted that its elephant population had grown from only 120 in 1920 to more than 12,000, with populations in at least fifteen national parks and reserves, as well as private reserves.93 It stated concerns that vegetation in Kruger Park is vulnerable to uncontrolled elephant population increases; that in South Africa it is only feasible to keep elephants within fenced protected areas; and that within fenced areas, populations must be controlled by humans.94 After damage to vegetation in Kruger became noticeable in the 1960s, an annual culling program began in 1967, with the goal to maintain between 6000 and 8000 elephants within the park.95 The number killed each year was as high as 1377 in 1984, but was usually between 300 and 500.96 Due to debates over the morality of culling, the practice ceased in 1995, and the population has since grown to more than 9000.97 South Africa stated it was prepared to resume more limited culling in the near future.


Botswana, Namibia, and Zimbabwe proposed to maintain their populations in Appendix II, and amend the annotations to the listing of their populations, allowing for annual ivory trade quotas, as well as new trade in hides and leather products for Botswana and Namibia and continued trade in trophies from hunting. The proposed annual ivory quotas by Botswana, Namibia, and Zimbabwe were for twelve, two, and ten metric tons, respectively. Their existing stockpiles stood at 24.8 tons, 35 tons, and 24.4 tons, respectively; recent growth in the stockpiles was at five, one, and five tons per year; future potential growth was estimated at ten-to-fifty, one-to-five and seven-to-thirty-five tons per year, with the three elephant populations standing at 100,000, 10,000 and 70,000.(98) If South Africa’s comparable population is viewed in a similar position as Namibia’s, this means that the four countries could, at the time of the Nairobi COP, produce twelve tons of newly collected ivory each year under sustainable conditions and without culling, perhaps several times that amount in the future. Based on the prices at the 1999 sale, twelve tons would amount to about US $1 million between the four nations each year, in addition to a sale of existing stockpiles.

The Zimbabwe proposal noted its population was above 70,000 and increasing, and argued that population compression was an ecological problem.99 The proposal urged that survival of elephants inside protected areas was contingent on the survival of suitable habitat in communal areas outside protected areas.100 While Zimbabwe’s arguments are similar to Botswana’s and Namibia’s, Zimbabwe, like Kenya, has a more difficult problem resulting from human-elephant conflict and competition for land between agriculture, ranching, and conservation. Zimbabwe’s management program is examined in more depth in Section VI below.

The Botswana proposal stated concerns over habitat degradation from its high elephant population, and noted that the Botswana Parliament in 1991 adopted a management plan that advocated culling in order to keep the population at the 1990 level of 54,600, although culling was never done.101 The population now stood at more than 106,000, growing at five percent per year, up from just 34,000 in 1983.(102) Botswana began sport hunting of elephants in 1996, with quotas increasing to 174 in 1999.(103) Botswana’s stockpiled ivory was mostly from natural mortality, problem animal control, and confiscations from illegal hunting or illegal trade, with almost a third originating outside of Botswana.104 Botswana had not yet collected hides for sale, but expressed a desire to begin this practice.105 The proposal noted that Botswana’s elephant population, while roaming over a vast network of protected areas covering 80,000 square kilometers, was partly confined to this gigantic range by the “Buffalo Fence,” a fence that separates wildlife areas to the north from cattle areas to the south, and elephants from human settlements.106 Botswana has thereby limited conflict between people and elephants by cordoning off a gigantic section of its nation dedicated to wilderness, in which the entire hundred thousand elephants are confined. However, at the western outskirts of the Okavango Delta, where fences may be impractical, the elephant population was expanding into human territory, and crop depredation increasing.107 Botswana’s position was summarized by the statement that “illegal trade continues and if it is not replaced by legal trade, it will grow.”108

Namibia noted that its elephant populations, all in the northern part of the country, are not confined to any protected area and disperse widely during the rainy season.109 Elephant populations had increased from about 5000 in 1984 to more than 10,000 in 2000,(110) and Namibia allowed no more than seventy-five elephant trophies each year.111 Protected areas cover fourteen percent of Namibia but only half of the elephant range.112 Namibia noted that most of the elephant range outside protected areas is found on communal lands, many of them communal land conservancies.113 This resembles the situation in Kenya and Zimbabwe, but these nations have more people, more elephants, and more conflict between them.


Kenya and India submitted a proposal to transfer all Appendix II populations back to Appendix I. Kenya’s argument was that the conditions of the 1997 CITES Decision 10.1 had not been met; that poaching had increased as a result of the ivory auction, and could increase further; that the risk of increased poaching had led to increased management and enforcement costs, and would lead to further costs; and that the large amount of money required for the MIKE monitoring program would drain resources away from other enforcement measures.114

Kenya pointed out that the most comprehensive data on elephant populations across the continent was the 1995 African Elephant Database compiled with the assistance of the IUCN, and that these numbers reflected inherent uncertainty, which compounds uncertainty over the effect of illegal poaching on populations, and the effect of the ivory auction on illegal poaching.115 Kenya argued that, according to the precautionary principle embodied in the general listing criteria adopted at the 1994 Fort Lauderdale COP, all elephant populations should be maintained in Appendix I.116 The submission quoted elephant biologists Katy Payne, lain Douglas-Hamilton, Cynthia Moss, and Joyce Poole, all with ties to East Africa, in support: “The CITES [Standing] Committee was not authorized to approve trade in ivory in the absence of a method whereby the impact of the trade on elephant populations would be assessed. We believe such a method is still lacking. Each of us has attempted to count elephants by various methods and can attest that a reliable, sensitive census is extremely difficult even in the best of circumstances.”117

Kenya argued that wildlife tourism is the top foreign exchange earner in Kenya, the third largest exchange earner in Zimbabwe, and high on the list of top earners for Botswana, South Africa, Tanzania, and Namibia.118 Furthermore, Kenya argued that Africa as a whole, in 1998, earned US $9.5 billion from tourism, more than double the figure for 1989, when poaching was a major security issue negatively affecting tourism earnings.119 According to the World Almanac, the regions of East and Southern Africa, excluding South Africa, each earn hundreds of millions of dollars from tourism, and South Africa alone earns more than two billion-dwarfing the few millions that can be earned from ivory sales.120

The Kenya proposal detailed ivory stockpiles through Africa, noting that at least 158,332 kilograms (158 metric tons) of ivory stockpiles had been declared by governments.121 It has been reported elsewhere that although African governments together have declared stockpiles of at least 176 metric tons, representing some 40,000 tusks and pieces, TRAFFIC suspects that the actual amount exceeds 660 tons.122 The Kenya submission carefully detailed major seizures of illegal ivory since the last COP in 1997, carefully demonstrating that the illegal trade continues at unknown levels across the continent and around the world.123 The Kenya submission also detailed poaching incidents since the 1997 COP, likewise demonstrating that the illegal killing of elephants continues at unknown levels across Africa.124 Kenya also noted that eleven nations permit domestic trade in ivory, and that hunting trophies have been authorized from at least eight nations in recent years.125 Kenya argued that the experience of legal trade in ivory prior to the 1989 ban, when most legally traded ivory originated from illegally poached animals, compared to the success of the ban after 1989, demonstrates that a legalized trade anywhere in the world would again permit illegal dealers to launder large amounts of ivory into the legitimate market.126

Kenya’s most direct criticism of the CITES decision focused on the MIKE monitoring program, described as “fundamentally flawed” while costing an initial US $11 million, funded partly by African countries, not expected to provide reliable data before six years in operation, and requiring vast amounts of information from countries that may not be able to provide it.127 Kenya also argued that Botswana, Namibia, and Zimbabwe had failed to accede to the 1994 Lusaka Agreement on cross-border wildlife crimes, and that there was no way to prevent illegal ivory trade into Japan, where 40,000 ivory retailers would not be policed adequately.128

Kenya had invited all African elephant range states to a consultative meeting held in Kenya in October 1999, where Kenya presented its proposal against the ivory trade in preparation for the forthcoming COP Twenty-one African countries attended and expressed a general support for Kenya’s proposal; the Southern African countries pressing for an ivory trade did not attend.129


TRAFFIC, the wildlife trafficking watchdog arm of the WWF and IUCN, submitted analyses and recommendations for each listing proposal. Regarding the proposals for annual quotas, TRAFFIC stated that “[i]t is TRAFFIC’s view that a deeper understanding of illegal trade dynamics and the illegal killing of elephants is fundamental before the Parties take further action on the allowance of legal international commercial trade in elephant ivory…. It is premature to approve new ivory quotas at this time.”130 TRAFFIC acknowledged that South Africa’s population did not meet the criteria to remain listed on Appendix I, but recommended against allowing it an experimental sale. TRAFFIC further advised that Namibia had provided a credible basis for its proposed annual quota of two tons annually, but that Botswana and Zimbabwe had not provided a credible basis for their higher proposed quota levels: “These countries need to document that through their elephant management programmes, twelve and ten tons of ivory respectively, will reliably accrue to the Governments on an annual basis through natural and management-related elephant mortalities.”131 TRAFFIC supported allowing trade in elephant hides, which had been limited to Zimbabwe, to all four countries. TRAFFIC recommended rejecting Kenya’s proposal to transfer Southern African populations to Appendix I because Kenya’s main arguments concerned not the populations in the Southern African countries, but populations elsewhere in Africa.132


The proposals of Botswana, Namibia, and Zimbabwe were withdrawn, postponing any decision on future ivory trade until the next COP. The proposal of South Africa to downlist its population to Appendix II was accepted, with an amended quota of zero, instead of its proposed one-time trade of thirty tons. This places South Africa in the same position as its three neighbors-with elephant populations listed in Appendix II, but without authorization to trade. In subsequent COP meetings, the proposals of these four countries, while considered individually, will likely succeed or fail together. Kenya’s proposal was also withdrawn, leaving the status quo intact.

A crucial event that tipped the balance was the decision during the COP meeting by the European Union to support a complete ban, in the absence of consensus among African nations, and with an impending showdown between them. 133 A similar influence by the United States from behind-the-scenes was also reported from Nairobi.134 The withdrawals took place shortly before a vote was scheduled on the proposals, so the vote did not take place.135 It was reported that the compromise occurred when the Southern African trade proponents anticipated that their proposals would be defeated.136 Both sides said the compromise was a victory.


In considering the next step, the CITES Parties should consider more carefully what elephant management approaches in East Africa and Southern Africa have in common, despite their differences. The approaches to management in Kenya and Zimbabwe best illustrate the fundamental differences and similarities between the larger regions. In Southern Africa, the human population of Botswana and Namibia is relatively low, limiting conflict with wildlife. In Botswana and South Africa, land with large elephant populations is, for the most part, contiguous and dedicated to wilderness in adjoining national parks and reserves, allowing fences to more easily separate elephants from humans. But competition for land between people and elephants is severe in Zimbabwe, as it is in Kenya, where rural lands are shared by both elephants and people. In East Africa, because poaching ran rampant, Kenya’s elephant population is less than half of Zimbabwe’s (which is contiguous with the huge numbers in Botswana). Zimbabwe’s elephant density is more than threefold higher than Kenya’s; Kenya’s human population density is almost double Zimbabwe’s.137 Most of the elephant population in Zimbabwe is found in three gigantic rural areas at the edges of the country, each with populated areas surrounding numerous parks and reserves: in the west bordering Botswana, in the northern Zambezi River Valley bordering Lake Kariba and Zambia, and to the south bordering South Africa and Mozambique. Kenya’s elephant population, found over many large and diverse areas of the nation, is more broken up and divided, due to development and the history of poaching.

Kenya has set aside eight percent of its land in protected areas; Zimbabwe, twelve percent.138 Both countries resorted to controversial shoot-to-kill policies to fight trans-border incursions by poachers during the years of the ivory trade.139 After the ivory ban, wildlife authorities in both countries turned their attention to human needs while forming and implementing their elephant management strategies. Both wildlife authorities are seeking to keep wildlife alive on lands outside parks and reserves. Both wildlife authorities, while acknowledging failures and problems, are proud of their history of responsible management of wilderness areas. But at the time of the Nairobi COP in 2000, both countries were experiencing economic downturns and twin crises in their tourism industries, in East and Southern African regions that have elsewhere seen positive economic and political developments.140 Tourism remains more vital than ever to both economies.

The Kenyan wildlife authorities have long opposed both hunting and culling, while both are supported in Zimbabwe, where wildlife authorities have been leading proponents of culling for ecological reasons.141 In Kenya, the national government retains control over most wildlife management, sharing some control over reserve revenues with rural County Councils. In Zimbabwe, a significant portion of wildlife management and ownership has been transferred directly to rural District Councils. The ivory ban saved Kenya’s elephants from a tragic decline towards extinction, but deprived Zimbabwe of a reliable source of income. Before the ban, the legal trade outside Kenya fueled poaching inside it. After the ban, that history is not forgotten. But after the ban, Southern African trade proponents argue that problems of security, ivory smuggling, and poaching will continue elsewhere, whether or not a controlled ivory trade is allowed for Southern Africa. The disagreement over the ivory trade between Kenya and Zimbabwe fuels an ideological rift over the entire continent. But when it comes to conservation of wildlife and wild lands, both nations have positive legacies and an approach to human needs that is progressive, and more similar than distinct.


1. Old and New Challenges

In Kenya, a fast growing human population means land-use competition for agriculture, pastoral cattle-herding and cattle ranching, and wildlife conservation. The government, in its management of elephants and conflict between humans and elephants, pays close attention to the human economics of land use, and the land’s ecology, despite the absence of comprehensive land use laws. However, the wildlife authorities were only able to turn their attention to human concerns after the crisis of poaching came to an end after 1989. A decade later, Kenya’s economy had staggered backwards, and its tourism industry, its chief source of wealth, was in a new crisis. Half of its tourist beds emptied between 1997 and 2000, when earnings from tourism had dropped nearly forty percent in five years, as crime increased and Kenya lost tourism business to Southern Africa and Tanzania.142

For twenty years, the problem for elephant management in Kenya, and for tourism, was illegal poaching, as elephant numbers dropped from 160,000 in the late 1960s to 130,000 in 1973, to about 20,000 at the time of the ivory ban, raising the specter of extinction in the country. That year, the crisis of ecology and economics came to an end, with the international ban on the ivory trade, a surprisingly reactive plummet in ivory prices, and the anti-poaching efforts of a newly created Kenya Wildlife Service-envisioned as a parastatal corporation by new laws designed to modernize wildlife management. Richard Leakey, the Kenyan anthropologist and paleontologist appointed to head the KWS, received credit for building “a crack force of anti-poaching rangers” and bringing in tens of millions of dollars in international aid for the KWS.143

At the end of the poaching, only tourism or forest cover had allowed some populations to remain fairly stable in Kenya. Elephants remained in twenty-nine parks and reserves, not all of them tourist destinations, and elsewhere outside protected areas.144 The population increased to 25,000 by 1996,145 and to 29,000 by 1999.(146) But at the time of the ivory ban, many populations, especially in the northeast, had been reduced by poachers to populations that the KWS stated “may no longer be viable.”147 Those that remain today and in the future face new challenges as they compete for land with the people who live alongside them. Elephants can be immensely destructive to human settlements, raiding farms for food and sometimes destroying a farmer’s livelihood in a single night. Elephants can also be dangerous and deadly to people.

2. Killing Dangerous Animals Without Hunting or Culling

In the years after the ivory ban, elephants began to lose their fear of humans, and 108 people were killed by elephants in Kenya in the first four years after the ban.148 The chairman of the Narok County Council, where the Maasai Mara National Reserve is located, clashed with KWS Director Leakey over control of the reserve,149 and accused Leakey of letting elephants trample Maasai people to death.150 Under Leakey’s direction, field wardens gained more autonomous authority to shoot dangerous elephants, shooting only ten in 1990, then fifteen, forty-two, fifty-seven, and sixty-six in the following years.151 Nonetheless, the controversy over elephants contributed to Leakey’s resignation after a political rift with President Daniel arap Moi. When new KWS Director Dr. David Western (like Leakey, a Kenyan citizen) assumed responsibility for elephant management in 1994, he affirmed that caring more about elephants than people was “not an accusation KWS can ignore.”152 In 1995, the KWS formed a new management unit for problem animals, to kill troublesome elephants with what Western called an “early strike policy.”153 That year the number of people killed by elephants fell to fifteen, from forty and thirty-five the previous years, a drop that Western attributed to a more aggressive policy towards killing dangerous animals.154 Between 1992 and 2000, 428 elephants were killed by the KWS in Kenya, versus 413 by poachers.155

While problem animal control usually involves killing one or a few dangerous animals, and hunting usually involves the killing of a lone, adult male elephant, culling for ecological purposes-to preserve elephant habitat-requires the killing of large family groups, and the practice has not generally been supported in Kenya. While the KWS is eager to kill dangerous elephants before they cause harm, it has always been opposed to culling solely for ecological purposes. The first KWS policy framework cited several reasons for this opposition: “ethical considerations; the disturbance that the killing of elephants would have on the survivors and the negative impact it would, in turn, have on tourism….”156 At the same time, both Richard Leakey and David Western, as KWS Directors, supported the idea of consumptive use of wildlife on private land,157 not including elephants. Although a 1977 ban on hunting and a 1979 ban on trade in wildlife products remain in place, Kenya is experimenting with consumptive utilization and the laws will likely change.158 And while the KWS has authorized the killing of thousands of problem animals of various species that eat farmers’ crops and livestock or threaten people, experimental programs for meat and hides from wild animals have not included elephants, and proposals for future hunting have not usually envisioned the hunting of elephants. In Kenya, as around the world, there is a good degree of moral opposition to both hunting and culling of elephants, and to any trade in ivory that encourages culling, stemming from the universal observations of scientists on the intelligence and emotional capacity of elephants.159 However, because poaching decimated Kenya’s elephant populations, ecological change due to elephant overpopulation is not the same problem in Kenya as it may be in Southern Africa.

3. Electric Fencing: An Inevitable Solution

Kenya’s approach to solving the conflict between humans and elephants is a carefully planned long-term strategy that is tailored to the land use patterns throughout the country.160 It is a dual approach dealing with agricultural areas, where elephants raid crops, and pastoral areas, where elephants can potentially co-exist with people and cattle. Kenya’s most dramatic solution to the problem is fencing. Vast areas of the Kenyan wilderness are being cordoned off with electric fencing, designed to keep elephants in or out (usually stopping other large herbivores, but allowing other animals to pass under high electric wires). The result may be a fenced biological island of wilderness, where elephants are isolated. In some instances, the area is already a biological island, due to the encroachment of development around it. In some instances, the government has decided to sacrifice ecology in favor of people, as elephant population compression within fenced areas will typically lead to a loss in biodiversity of vegetation, followed by a loss of animal species. The KWS carefully considers human land use when planning its fences. For instance, around Nairobi National Park, fences to the north keep lions out of Nairobi’s backyards, but in the south, the KWS negotiates continuously with private landowners to keep fences down, to allow migratory animals in and out of the park. In a speech in November 1999, new KWS Director Nehemiah Rotich stated that at least 400 kilometers of new fencing has been recently proposed by the KWS Elephant Programme to alleviate conflicts between people and elephants.161

Fences have been contemplated by the government in each of the largest elephant ranges in Kenya. They have not been put in place in all of them. But in areas of Kenya where the land is more suitable for agriculture, the government has decided to fence elephants in almost entirely, protecting people at the cost of ecological degradation inside the fenced biological island. The first area to be so enclosed was Shimba Hills, 220 square kilometers near Mombasa, where fencing began in 1991.(162) The government alleviated ecological pressure inside the park by establishing Kenya’s first community-run wildlife sanctuary, the Mwaluganje Community Elephant Sanctuary, which acted as a corridor to a nearby forest. The sanctuary was created with the cooperation of land given by 200 families, who decided they would be better off with revenues from tourism.163 A new fence was completed in 1999 to protect areas outside the park, launched by KWS Director Rotich.164

Another area on the way to becoming entirely fenced is Aberdares National Park, a forested mountain range near Nairobi, ten times the size of Shimba Hills.165 The KWS held an elephant management conference in the Aberdares mountains in 1996, focusing on human-elephant conflict around the Aberdares Park.166 A private fund had paid for the initial fencing, with the primary goal of protecting rhinos that live inside the park. Extensions of the fence were intended to protect agriculture and forestry outside the park, in an area long suffering from elephant raids. Inside the park, however, elephants had radically altered the vegetation in some areas over the previous forty years, a concern for KWS ecologists. Although the KWS investigated the possibility of establishing a protected corridor to nearby Mt. Kenya over a historic elephant migratory route cutoff in recent years by deforestation and agriculture, the cost of purchasing land was too high. The KWS hoped to negotiate a break in the fence with a ranch owner adjoining the park to the north, but this too was uncertain. At the conference KWS Director Western, an academic expert on the ecological effects of isolating protected areas, acknowledged that the wildlife service had agreed to sacrifice the park’s biodiversity in order to protect the park and the people around it, and that this was the right thing to do. But Western sought ways to mitigate the ecological damage. “What will happen when we fence off entirely?” Western asked; “will not the degradation we have seen so far accelerate? You can predict that over the next 200 to 300 years, you’ll lose as many as half the species that Aberdares has.”167 A similar solution was planned for Mt. Kenya, where the elephants will be fenced in around Africa’s second highest mountain, in equatorial rainforests that abut a snow-covered peak, surrounded by a ring of agriculture.168 Fencing began in 1997, at cost of more than US $17 million, expected to eventually cover a length of 370 km,169 similar in size to the Aberdares fence.

Where compression of elephant populations is not an immediate ecological problem, fencing solutions are easier. In two vast national parks at Tsavo, Kenya’s largest contiguous protected area, elephants were heavily poached inside the park before the ivory ban, and retreated towards human settlements outside the park, where agriculture led to substantial conflict.170 After poaching ended, conflict remained. Between 1992 and 1994, elephants raided settlements on nearly a thousand occasions around the town of Voi, five hundred around nearby Bura.171 One solution pursued by the government was fencing to keep elephants out of conflict areas and inside the parks. Two thirty-kilometer stretches along park edges were put in place to guard Voi and Bura.172 Although problems will continue around the vast parks, resolution of the worst conflict at Tsavo is promising, because after poaching decimated elephant populations from more than 40,000 to only 6000, there is plenty of room in the near future for elephants inside the park.173

In another high conflict area with more complicated ecological priorities, the Maasai Mara National Reserve, fencing solutions are not so easy. Conflict takes place in land adjacent to the reserve communally owned by members of the resident Maasai ethnic group. This land is a significant portion of crucial grazing areas for millions of wildebeest, zebra and gazelle that migrate yearly from Tanzania’s Serengeti plains, sustaining the largest migration of large animals on the planet.174 The KWS proposed fencing to keep elephants outside farming areas lining the main road from the reserve.175 The plan did not separate the reserve from the grazing areas outside. Because it could have limited agricultural expansion on this privately owned land, the local Maasai government did not approve the plan. However, tourism revenues have been a key source of income for the Maasai lands adjoining the heavily visited reserve, -through employment and contracts with tour operators, and through a history of local management of reserve entry fees.176 Given that the Maasai Mara is one of the most heavily visited wildlife areas in Africa, tourism revenues for local landowners remain where the most important solutions lie for conservation there, with or without fences, in the face of encroaching agriculture.177

The fencing approach is different in pastoral areas such as Amboseli National Park, where elephants can potentially co-exist with people outside protected areas.178 Some of the world’s foremost research on elephant behavior has been conducted at Amboseli,179 an area in semi-desert land that is made lush with permanent springs fed by water from Mt. Kilimanjaro, across the border in Tanzania. In the 1950s, the area was covered by woodlands and vegetation, which half a century later was entirely changed to grasslands and dust by elephants compressed into the protected park by poaching outside it.180

Local residents, also of Maasai ancestry, were evicted from the lush center of the area in 1974, when the land was declared a park. Twenty years later only a slim majority felt comfortable with the existence of elephants on their communal land outside the park.181 Maasai group ranches, communally owned, undivided and compatible with wildlife, surround Amboseli and connect it with elephant ranges in Tsavo and Tanzania.182 In 1995, the KWS held a workshop to examine management options for Amboseli’s 900 elephants.183 At the next KWS elephant management conference in 1996, KWS Director Western recalled the strategies employed at Amboseli. The solution, Western said, was:

[T]o try to win back space for elephants that had abandoned their migrations, some ninety percent of their range, since the mid- 1970s. The area is still there, it’s still open, so that’s a potential solution. But while recognizing what many of the threats were to biodiversity in Amboseli, the biologists readily conceded that the solution was not biological, it was economic and social, and necessarily involved the Maasai in the area allowing the elephants back on the migrations, under certain conditions.184

The KWS acted around Amboseli to fulfill new commitments to protect against crop damage, provide water, and create local benefits from tourism. Settlement areas most vulnerable to crop damage were to be fenced with exclosure fencing to keep elephants out, and water holes outside the park that had silted up were to be cleared for both people and elephants.15 Most importantly, the KWS helped the Maasai open Kenya’s second community-run wildlife sanctuary on Kimana, a group ranch adjoining the park. The sanctuary opened its gates in February 1996, its infrastructure paid for by the KWS with revenues going to the Maasai.186 Kimana Wildlife Sanctuary comprises 100,000 acres where the Maasai raise cattle and tourists watch elephants, lions, and leopards beneath Mt. Kilimanjaro, in more seclusion than those in the crowded park. The funds for Kimana from the KWS were in turn provided by a portion of a five-year, US $7 million grant to the KWS from the U.S. Agency for International Development (USAID).187 In his speech in November 1999, new KWS Director Rotich celebrated the completion of new fences outside Amboseli, protecting irrigation schemes on Kimana and nearby group ranches.188 At that time, conflict between the Maasai and the park’s management and elephants had continued, but mainly due to drought, moreso than KWS management policies, and a significant improvement occurred when the Amboseli Elephant Research Project volunteered to pay compensation for cows killed by elephants.189 At Kimana, although some conflict with crop-raiding elephants continued, at least two family groups well studied by Cynthia Moss “found a paradise” in the sanctuary, visiting Amboseli only a few times a year.190

Aside from Tsavo, the Maasai Mara, and Amboseli, the fourth area of highest elephant conflict in Kenya poses a different challenge yet again, as its few parks and reserves are less prominent, providing less revenue from tourism. This elephant population roams over a huge settled area, including Laikipia District, which stretches north from Nairobi and includes agriculture in the south and large-scale ranching in the north; and above Laikipia, over pastoral areas in Samburu District, which stretches into the desert below Lake Turkana. The KWS proposed an east-to-west fence to protect agriculture by keeping elephants completely outside the southern agricultural sector.191 Unable to negotiate a permanent land use policy with the Laikipia County Council, the KWS abandoned the idea, as there would be no guarantee that new agricultural settlements would not occur on the wrong side of the fence. The KWS instead must rely on enclosure fencing, where feasible, around individual farms to keep elephants out. To the north of agricultural land, the KWS benefits from the goodwill of Laikipia ranch-owners who tolerate elephants on their land, some of whom are conservation-minded or involved in tourism. Farther north, in Samburu, where there is little agriculture, nomadic herders live aside elephants as they have for hundreds of years. If a pastoral herding family has a field of crops, they may be burdened by the risk of visits by elephants, and the family may use any noisy means possible to scare them away. If, and only if, an elephant attacks, may a person shoot it, under basic KWS policies.192

These seven areas show the importance of fences as a potential solution to conflict between elephants and people in some developing areas of Africa. These seven areas account for the majority of Kenya’s elephants, and the majority of human-elephant conflict.193 Shimba Hills, the Aberdares, and Mt. Kenya are fenced or to be fenced almost entirely. Small portions of Tsavo have been likewise protected and cutoff. Laikipia and the Maasai Mara could, in theory, be protected with fences dividing private land, as proposed by the KWS, while tourism is encouraged on the private land that is compatible with elephants, especially outside the popular Mara Reserve. Amboseli is protected with smallscale fences on private land while dedication of communal land to conservation is negotiated with tourism benefits for local communities. Aside from elephants in these areas, other populations that were a high priority for protection in the first KWS policy framework were chosen in part for their potential to create tourism in new areas of the country.194

4. Competing Management Approaches Within Kenya, with Common Fundamental Solutions

A signature of David Western’s approach to conservation, distinguished from Richard Leakey’s,195 was Western’s focus on the conservation of wildlife outside protected areas, where three-quarters of Kenya’s wildlife remained.196 At the same time, Western, an original advocate of the ivory ban, has been one of the foremost advocates of linking conservation to the welfare of local communities as a strategy that can be employed for conservation around the world.197 However, Kenya’s conservation strategy under Western went so far in focusing on human needs that some, including donor representatives such as the World Bank’s African Environmental Group, criticized his approach for sacrificing ecology in favor of human development they considered unrelated to conservation.198 With tourism revenues dropping, due in large part to negative publicity over attacks against tourists, periodic outbreaks of ethnic violence, and industry competition from Tanzania and Southern Africa,199 it was difficult for Western’s KWS to sponsor community development projects outside protected areas without incurring criticism from other Kenyan conservationists.200 After Leakey had become an outspoken leader of the political opposition to Moi’s government, Moi returned him to the KWS Director position in 1998.(201) A year later, when Moi found himself at a standoff with international donor organizations over his government’s failures, he made Leakey the second most powerful politician in Kenya, appointing him to head a government-wide anti-corruption effort.202 Nehemiah Rotich, longtime chief executive of the East African Wildlife Society, was appointed the new KWS Director.

Regardless of the differences between Western and Leakey, and criticisms aimed at each in turn, their landmark approaches to the human-elephant conflict in Kenya show that the protection and promotion of human livelihoods can be addressed in the absence of elephant hunting, culling, or the ivory trade. Human lives are the top priority, and the government shoots dangerous elephants. Conflict with agriculture is addressed with a dramatic, growing fencing strategy that sacrifices ecology for human needs where necessary. Co-existence in pastoral areas is pursued through negotiations with local communities, while keeping land available for elephants outside protected areas. Tourism provides many communities with a stake in local conservation.

Kenyan attitudes towards wildlife conservation stem not only from ancient traditions, but also from modern notions of cultural heritage that are as proud as those of Western nations. Before the Nairobi CITES meeting, 5000 Kenyan students demonstrated in support of a total ivory trade ban.203 Many of them probably agreed with the view presented by Nairobi’s most widespread newspaper, The Nation, on its editorial page column during the CITES Conference: “Our position on the matter remains clear. The massacre of animals for sport is un-African and an abomination. Secondly, Kenya has no need to defend her conservation record. Thirdly, to pretend that the resumption of the ivory trade does not encourage poaching is dishonest and dangerous…. Countries such as South Africa and Zimbabwe refuse to see what is essentially a simple truth: The only way to guarantee the future of the world’s wildlife is to ruthlessly destroy the market for animal products.”204


1. Culling, Sustainable Consumptive Use, and CAMPFIRE

Zimbabwe has taken a prominent leading role in putting conservation in the hands of rural communities rather than the national government. Its vision of sustainable use, unlike Kenya’s, is based on consumptive use. Zimbabwe’s approach to elephant management, with a history of culling elephant herds to control them, now promoting hunting and a domestic ivory carving industry, is vastly different from Kenya’s.

Zimbabwe’s history of active elephant population management is notable: in two decades before 1992, the Zimbabwe wildlife department culled at least 44,000 elephants.205 Although government culling policies have been advocated mainly for ecological reasons, the Zimbabwe national treasury earned about US $2 million annually during the 1980s from the sale of raw, unworked ivory from the cullings, and a domestic carving industry produced worked ivory worth ten times as much as raw ivory.206 Since 1993, no culling operations have been undertaken, initially due to a lack of funds necessary to conduct a cull.207

In Zimbabwe today, sustainable use has been advocated and implemented under the Communal Areas Management Program For Indigenous Resources (CAMPFIRE), first authorized by law in 1982, and given new life with its first outside funding, from a Zimbabwean non-profit group, in 1988 and 1989.(208) CAMPFIRE gives local governments control over wildlife management, including revenues from tourism and hunting, and from meat, hides and ivory from elephants killed through culling, hunting, problem animal control, and natural mortality. CAMPFIRE operates “when a rural District Council asks the government’s wildlife department to grant [it] the legal authority to manage its wildlife resources, and demonstrates its capacity to do so.”209 In contrast to Zimbabwe, the national government of Kenya owns all wildlife, with no outright ownership or management by local landowners.210 In Zimbabwe, this local ownership and management is made possible through a 1982 amendment to the pre-independence 1975 Parks and Wildlife Act. The amendment allows district councils to be designated as appropriate authorities to manage wildlife.211 Communally owned lands constitute forty-two percent of the nation, and support about half its people.212 The communities participating in CAMPFIRE soon covered a significant portion of the country’s land.213 These grew from two to twenty-six district councils (of fifty-seven in the country) between 1989 and 1995, including every district council adjacent to a national park, and to thirty-seven districts by 2000.214 The most significant CAMPFIRE activities have therefore taken place since the year of the ivory ban.

2. Hunting and Benefits to Local Communities

More than ninety percent of CAMPFIRE revenues come from sport hunting, although other sources of revenue come from harvesting of timber and other wildlife products, tourism, and local hunting for meat.215 About sixty-five percent of hunting revenues come from elephants, with one elephant providing a trophy fee of US $12,000 or more going to the local community, and generating income of as much as US $40,000, including revenues of the safari operator.216 According to the Zimbabwe CITES proposal, elephant hunting contributes about sixty-four percent of total income for rural District Councils under CAMPFIRE and about half the income earned from hunting on government lands.217 In 1993, twelve districts participating in CAMPFIRE earned US $1.5 million from trophy fees alone.218 Meat from hunting as well as problem animal control is given to local communities.219

Elephants killed under the CAMPFIRE program each year are less than one percent of the national population, which has been growing at more than five percent per year.220 Zimbabwe has established a national export quota of four hundred hunted animals each year, divided about evenly between government-owned land, communal lands and private land.221 According to CAMPFIRE, while Zimbabwe’s elephant population was less than 4000 in 1900, a century later it was more than twice the amount the country could sustainably support without “severe environmental degradation and the loss of other species,” and 10,000 elephants could be found on communal lands alone, outside national parks.222 The elephants are hunted after reaching the grand old age of fifty.223

By some estimates, at least a third of hunting license fees in CAMPFIRE communities goes directly to villages.224 In 1996, about half of all CAMPFIRE revenues were used in community development projects selected by district councils, with another third devoted to CAMPFIRE operations.225 In a year, as many as 80,000 households have benefited, and some local community wards have returned revenues to individual households in cash.226 Citing a report by the World Wide Fund for Nature, which assists in CAMPFIRE administration, CAMPFIRE states it has increased household income in communal areas by fifteen percent to twenty-five percent.27 Annual CAMPFIRE income increased from US $327,621 in 1989, the first year of communal management, to more than US $1.4 million in 1993; in that year, income from CAMPFIRE for an individual district council ranged from US $8,000 to US $375,000.(228) These annual revenues totaled US $8 million after the first eight years, US $13 million after a decade.229 Revenue allocation figures for the decade show that half of all revenue was returned to community institutions below the District Councils, a fifth was devoted to wildlife management and CAMPFIRE administration, and a tenth retained for District Council funds.230 The program helps protect land for conservation by making it more profitable, relative to ranching or farming. Wildlife habitat loss in privately owned CAMPFIRE areas, rapid in 1989, has slowed and stabilized.231

3. Hides, Ivory Carvings, and Potential Benefits from the Ivory Trade

The 1997 CITES COP in Harare granted Zimbabwe the right to trade in hides and in worked ivory carvings, as well as continued trade in hunting trophies (which are allowed even for Appendix I populations). Under the 1997 CITES annotation for Zimbabwe elephants, ivory carvings could be sold to tourists for non-commercial purposes and taken from the country,232 remaining after the 2000 COP the only nation in East and Southern Africa where this was allowed. Foreigners who purchase carvings are issued a CITES export permit by the retailer. This is a permanent avenue of ivory trade that is authorized to continue in Zimbabwe, and which has received little criticism. This is probably due to the relatively low volume of domestic carving sales, not big enough to offset increases in the country’s ivory stockpile. The Department of National Parks and Wildlife Management (DNPWLM) sold ivory in the amount of 20.9 million Zimbabwe dollars to local registered ivory carvers between April 1998 and April 2000. In January 2000, Zimbabwe dollars traded at about forty to the U.S. dollar, but traded at twenty a few years earlier, in a period of unstable inflation.233 This money from domestic sales went to CAMPFIRE communities, in the amount of ZW $4.9 million, and the rest went to the National Parks Conservation Fund, which, like the CAMPFIRE District Councils, also received revenue from the CITES ivory auction.234

The DNPWLM also sold eighty tons of elephant hide, stockpiled over ten years, at an international auction in June 1998, for ZW $18.9 million, or US $1.3 million, with major buyers from Japan, the USA, and South Africa; another thirty tons were sold in December 1999 for another US $600,000.235 Trade in hides is not believed to significantly affect poaching.236

As of November 1999, Zimbabwe’s ivory stock stood at 1338 tusks in the possession of DNPWLM, and 520 in the possession of CAMPFIRE Communities.237 This accumulation of ivory was not diminished by weekly sales to domestic ivory carvers, and has increased by at least five tons per year.238 From 1997 to 1999, increases of five, ten and eight tons each year were a third part due to natural mortality and a quarter due to problem animal control.239 The cost of managing the stocks has been estimated at more than US $35,000 per year.240 After the ivory auction, CAMPFIRE pointed out that rural communities still possessed as much as US $1.6 million in stockpiled ivory.241 The CAMPFIRE Rural District Councils took a leading role in Zimbabwe’s push to downlist the national elephant population to Appendix II.242 Zimbabwe wildlife officials at the national level also firmly believe that the ability to sell ivory is crucial to their conservation efforts.243

It is important to note that much of CAMPFIRE’s success has occurred under the years of the ivory ban, and with international assistance. CAMPFIRE’s administration, like the Kenya Wildlife Service, is not self-sufficient, and CAMPFIRE benefited from USAID grants totaling US $28 million from 1989 to 1999; USAID has been the largest source of external funding, averaging about US $3 million each year.244 While the program has successfully created a link between local communities and conservation, the one-time international trade in ivory was not a necessary part of that link. It is argued that the ivory ban has hampered the benefits of the program by reducing the income of local communities that could have come from bulk international ivory sales.245 A large percentage of money that flowed from Zimbabwe’s participation in the 1999 CITES ivory auction went directly to CAMPFIRE District Councils. About US $575,000 from the sale was returned to rural villages in this manner.246 This came from twenty tons of ivory; an annual sale of newly collected tusks would, under recent conditions, take place at only a quarter or half this level, excluding the sale of existing stockpiles. These funds could provide some additional financial incentives or compensation for local governments that maintain land for elephants and wildlife. But nationwide, these financial rewards would be smaller than CAMPFIRE hunting revenues, and can be dwarfed by tourism revenues or foreign aid.

And while beneficial to conservation, people, and local management, money received through a national sale of ivory tusks does not directly create an individual benefit from conservation, and is no different in this regard from foreign aid. Any ivory sale of this sort must be tightly controlled on a national basis, due to the international problems of the past. Hunting and traditional tourism create a stronger link between communities and protected areas and a stronger incentive for conservation, as communal landowners and rural residents, if they are willing to put up with foreign tourists and hunters, can benefit directly from these activities and the elephants and wilderness that surrounds them. Revenue from a national ivory sale, undeniably valuable as a source of income and financing, provides no comparable connection between conservation and rural communities.


The international management of the elephant under CITES has been criticized from all sides. Both advocates and opponents of the ivory ban complain that the listing criteria are too political, and not fully based on science. Some argue that trade restrictions on ivory reflect a neo-colonial attitude in the developed world and hamper prosperity in countries that have the best conservation records. Others argue that the ivory ban has been an enormously successful way for the international community to assist a majority of elephant range nations in achieving security, stability and conservation-related development. Southern African nations argue that the trade ban hurts conservation and human needs in their countries. East African nations argue that lifting the trade ban hurts conservation and human needs in their own countries and elsewhere. These arguments of both Southern and East Africa are correct and logically consistent. However, experience in the two regions shows that the potential financial benefits from a limited ivory trade are unnecessary to promote the link between local communities and conservation.

Kenya’s approach to the human-elephant conflict shows that human livelihoods can be protected in the absence of hunting, culling, or the ivory trade. Because human lives are the top priority, the government shoots dangerous elephants. Conflict with agriculture is addressed with a fencing strategy that sacrifices ecological integrity of protected areas in favor of local human needs and economic development. Co-existence of wildlife and people in pastoral areas is pursued through negotiations with local communities. Tourism provides many rural communities with a stake in financial benefits from local conservation.

Zimbabwe has been even more successful than Kenya in promoting the link between conservation and local communities, by allowing hunting and trade in skins, meat, and ivory under the CAMPFIRE program. However, the success of this program also took place during the years of the international ivory trade ban. Even in Southern African countries where hunting is allowed and culling may be approved by the government, the ivory trade never provided a direct means to end conflict between elephants and humans, and likely could not provide for such in the future. Although the governments of Southern Africa have successfully demonstrated that rural communities can benefit from ivory sales, money from national ivory auctions provides only an indirect incentive for local conservation. It is necessary to control the disposition of raw ivory tusks and reinvestment of resulting funds on a national basis. The 1999 CITES ivory sale, by meeting the conditions imposed by CITES and de-linking the ivory sale from illegal smuggling, necessarily de-linked the sale from direct incentives at the local level, either for killing or conservation. Communities have no direct benefit from a national sale in the way they do benefit directly from tourism.

The link between conservation and local human livelihoods has been pursued with much success by many African governments, regardless of their position on the ivory trade. Nevertheless, it is plain to see that stockpiled ivory can provide badly needed funds for rural people, conservation projects, and national governments. These funds need not be unfairly or unnecessarily denied to nations that will reinvest them in conservation related development. These funds can indirectly encourage local conservation in the same manner as traditional forms of international aid, such as the USAID grant that established the Kimana community sanctuary at Amboseli in Kenya. The value of stockpiled ivory to nations that have well-managed elephant populations is a source of potential wealth that can be respected by the international community while it protects the benefits of the ivory ban. The United Kingdom has made a positive contribution by offering to purchase Mozambique’s declared stockpile for non-commercial disposal.

Other developed nations and donor organizations should accept the CITES invitation to purchase stockpiles and destroy them. If they remain unwilling to do so, then one-time or periodic, individually approved sales of stockpiled ivory are a potential solution and can be allowed again in the future. These sales are easier to control and assess than annual quotas. And while they could include ivory from stable countries with strong conservation policies and secure elephant populations outside Southern Africa, they can be carefully conditioned, as the 1999 experimental sale, on the ability of all African nations to prevent illegal killing and illegal trade. While they could be repeated on a periodic basis, they need not be, depending upon the impacts on illegal killing and illegal trading, and on demand for ivory.

Periodic sales of stockpiles also have the important benefit of de-linking, to the greatest extent possible, international decisions on the ivory trade from national decisions on the future culling of elephants for ecological reasons. Southern African nations will have the best chance of winning approval for another ivory sale if they continue to refrain from ecological culling; otherwise, the international community will be skeptical over the morality of subsequent sales. The international community will likewise have a better chance of influencing national culling policies if it allows some form of ivory sale. But indefinite annual quotas, as requested at the 2000 COP, should continue to be rejected, and proposals for such abandoned. This is the proper embodiment of the precautionary principle, based on past experience. Although conditional sales impose greater burdens on the CITES Secretariat and national CITES coordinators, these burdens are worth meeting. It is up to CITES, the institutions of international law, and national representatives to bridge their great rift of ideas successfully.

The national governments of both East and Southern Africa have taken important steps to protect their rich natural heritage, in the face of intense competition for land, between people and between people and wildlife. Conservationists in both regions fight tirelessly on behalf of people, wildlife and wild places. The nations of East Africa have taken equally progressive conservation measures as those of Southern Africa, despite more vulnerabilities in their economies and security. Their needs should be afforded special consideration, as should the success of international law, through the ivory ban, in protecting elephants, human livelihoods and the rule of law for the benefit of people and national governments all across Africa. Proposals for indefinite annual sales, which embrace an indefinite demand for ivory, with unpredictable incentives for its supply and unknown impacts on elephant populations and human economies throughout Africa, will not bridge the rift between the elephant range states. They are not the right way forward for the CITES parties, following only a decade of progress in elephant conservation throughout Africa. The cautious approach adopted by CITES-a strictly limited and supervised, individually approved sale of stockpiled ivory, conditional on adequate assessment of the impact-is the best possible compromise. It should only be allowed again if it continues to prove compatible with human development and national conservation efforts, in the entire African continent.

1. See RAYMOND BONNER, AT THE HAND OF MAN 35, 39-86, 76, 286 (1993) (Bonner’s wide-ranging and

sometimes indiscriminate criticism of the ivory ban is one of the most detailed, while controversial, accounts); see also Thaddeus McBride, The Dangers of Liberal Neo-Colonialism: Elephants, Ivory and The CITES Treaty, 19 B.C. THIRD WORLD L.J. 733 (1999).

2. According to the continent-wide scientific survey released by the IUCN in 1995, there were an estimated 225,219 elephants in Central Africa, 128,272 in East Africa, 228,047 in Southern Africa, and 14,725 in West Africa. However, there were definitive numbers totaling only 7,320 for Central Africa, 90,482 for Eastern Africa, 170,837 for Southern Africa, and 2,760 for West Africa. See M.Y. SAw ET AL., IUCN AFRicAN ELEPHANT SPECIALIST GROUP, AFRicAN ELEPHANT DATABASE 1995, IUCN SPECIES SURVIVAL COMMISSION OCCASIONAL PAPER No. 11, at 17-19 (1995) [hereinafter AFRICAN ELEPHANT DATABASE 1995]. The uncertainty over Central Africa results from the difficulty of surveying elephant numbers in the rainforests of the Congo basin. This also results in uncertainty as to population declines that may occur in the future as a result of ivory trading. In total, 37 nations had elephant populations.

3. See Andrew J. Heimert, How the Elephant Lost His Tusks, 104 YALE L.J. 1473 (1995); Bill Padgett, The African Elephant, Africa, and CITES: The Next Step, 2 IND. J. GLOBAL LEGAL STUD. 529 (1995); McBride, supra note 1 (supporting the Southern Africa viewpoints). For a well-balanced presentation of the regional views, see Iain Douglas-Hamilton, An East African Perspective; Dr. John Hanks, A Southern African Opinion; Daphne Sheldrick, The Moral Wewwpoint;forewords to DARYL AND SHAmA BALI:ouR, AFRicAN ELEPHANTS, A CELEBRATION OF MAjEsTY 18, 22, 26 (1997). According to Douglas-Hamilton, “We are convinced in conservation circles in East Africa that the CITES decision of 1997 to allow limited ivory trade risks a resumption of the uncontrolled illegal trading of the past…. Tinkering with limited sales will lend legitimacy to the purchasing of ivory and might well wake up a sleeping giant of demand.” Douglas-Hamilton, supra. Hanks argues that “[iuf African countries opt for a strong ‘protectionist’ policy towards wildlife and exclude the possibility of consumptive use, the cost will overwhelm them. If conservationists continue to regard a legal ivory trade as an anathema, they will be turning a blind eye to the realities of Africa .” Hanks, supra. Sheldrick, who has reintroduced a steady stream of orphaned elephants to the wild over four decades in Kenya, writes that elephants “should be handled as humanely as possible, for they are indeed very ‘human’ animals, richly endowed with all the better attributes of mankind, and very few of the bad.” Sheldrick, supra. While the moral implications surrounding the relationship of past and future elephant deaths, natural and by the hand of man, to a future, controlled ivory trade are not fully examined in my article, they are the most powerful arguments to persuade decision makers on the issue. Visitors to Sheldrick’s orphanage at the David Sheldrick Wildlife Trust in Nairobi can examine her full statement in strongest opposition to any form of ivory trade and especially to elephant culling, which can also be found at (last visited Nov. 7, 2000).

4. The estimated per capita GDP in 1997 (unless otherwise noted) for East and Southern African countries was: Kenya, US $1600; Uganda, US $1700; Tanzania, US $700; Zambia, US $950; Zimbabwe, US $2200 (1996 est.); Botswana, US $3300; Namibia, US $3700 (1996 est.); South Africa, US $6200. Total income from tourism for these countries in 1998 was: Kenya, US $400 million; Uganda, US $142 million; Tanzania, US $431 million; Zambia, US $90 million; Zimbabwe, US $246 million; Botswana, US $185 million; Namibia, US $339 million; South Africa, US $2370 million. See THE WoRL.D ALmANAc AND Boox oF FACTS 2000, 778, 814, 842, 859, 864, 868, 877 (Robert Famighetti ed., 1999).

5. See Convention on International Trade in Endangered Species of Wild Fauna and Flora, Mar. 3, 1973, 27 U.S.T. 1087, 12 I.LL.M. 1085 (entered into force July 1, 1975) [hereinafter CITES].

6. The U.S. Endangered Species Conservation Act of 1969 called for an international meeting on endangered species. See SusAN BUCK, UNDERSTANDING ENviRONMENTAL ADmINIsTRATION AND LAw 125 (1991). Following the U.S. initiative for an international agreement, the 1972 U.N. Conference on the Human Environment at Stockholm endorsed a treaty and recommended that secretariat functions be undertaken by the U.N. Environment Programme, established that year at the summit. See LYNTON CALDWELL, INTERNATIONAL ENviRoNmENTAL POLICY 217 (1990). The next year in Washington, D.C., CITES was opened for signature, and Congress passed the Endangered Species Act, which implements CITES in the United States. The CITES treaty addressed only trade, not the equally important problem of habitat loss, which was addressed twenty years later at the 1992 Rio Earth Summit, in the U.N. Convention on Biodiversity.


8. See id. at 13-14. In addition to ivory from 90,000 African elephants, a year’s trade included forty thousand primates, one million orchids, four million birds, ten million reptile skins, fifteen million pelts from wild mammals and over three hundred fifty million tropical fish.

9. See id.

10. See DAviD HUNTER ET AL., INTERNATioNAL ENviRONmENTAL LAw AND PoLICY 1035 (1998) (quoting INTERNATIONAL WiLDLiFE TRADE: A MES SOURCEBOOK at vii-viii (Ginette Hemley ed., 1994)).

11. The IUCN is also known as the International Union for the Conservation of Nature. The national chapters of the World Wide Fund for Nature are each known as the World Wildlife Fund.

12. See CITES, supra note 5, art. XII. See generally HUNTER, supra note 10.

13. See TRAFFIC BULLETIN, Apr. 2000,

14 CITES, supra note 5, art. II.

15. Id.

16. See id. art. XV. Under the treaty, nations can file reservations concerning the listing of any species within ninety days of that listing or their accession to the treaty, thereby exempting themselves from requirements of the listing. See id. art. XXIII.

17. See Shawn Dansky, The CITES “Objective” Listing Criteria: Are They “Objective” Enough to Protect the African Elephant?, 73 TUL. L. REv. 961, 964 (1999).

18. See id

19. See id at 965. 20. See id. at 974-76.

21. See Hutmrra, supra note 10, at 1045. Among the most rapid and dramatic declines in elephant populations during the 1980s, Tanzania and Zambia each lost three-quarters of their elephant populations, and Kenya lost more than two-thirds of its elephant population.

22. See FITzGERALD, supra note 7, at 65.

23. See KENYA Wn,nF.wn SEPVIcE, POLICY FRAMEwoRK AND DEvELoPMENT PRO.RAmNE, 1991-1996, ANNEX 7B: ELEPHANT CONsERVATION AND MANAGEmENT 2 (Compiled by Elephant Programme Director Joyce Poole) (1990) (on file with author) [hereinafter KWS POLICY FRAmEwoRK].

24. See DOUGLAS CHADwic, THE FATE OF THE ELEPHANT 39 (1992) (an account that grew out of his work for National Geographic).

25. See HuNTER, supra note 10, at 1045. 26. See F(IZ.GERALD, supra note 7, at 69.

27. See BoNNER, supra note 1, at 96. Somalia requested a 1986 quota for 17,000 tusks, but had only 6000 elephants.

28. See id at 95. Burundi joined CITES in 1988.

29. See JEREMY GAVRON, TtE LAsT ELEPHANT 1 (1993). In one chapter, the author recounts his painstaking but successful effort to find the rumored single elephant left alive in Burundi-a metaphor for what had happened elsewhere on the continent. Gavron begins by recalling an old cartoon from the Chicago Tribune. A sad elephant huddles behind a lone stump, above the caption, “Scenes from the year 2000: The last elephant hides in the last rain forest.”

30. See MARK AND DELIA OWENS, THE EYE oF THE ELEPHANT 283 (1992) (an account by two field biologists of their conservation and anti-poaching efforts in Zambia during the years of the ivory trade).

31. See CHADWICK, supra note 24, at 39-40. 32. See FrrzER,, supra note 7, at 75.

33. See DAVID WESTERN, IN THE DusT of AARo 251 (1997). The Ivory Trade Review Group was sponsored by, among other organizations, the WWF, IUCN, and Wildlife Conservation International, the research arm of the New York Zoological Society.

34. See id. at 234, 241-43.

35. See LAIN AND ORiA, BATR-E PoR THE ELm%ANTs (1992) 234-45, 326-27. 36. See id. at 327-45; BorNE, supra note 1, at 130; WtS, supra note 33, at 246, 247, 249.

37. See BoNNER, supra note 1, at 130; DouGLAs-HnTu,*roN, supra note 1, at 130; DoUGLAs–AM ToN, supra note 35, at 329; WESTERN, supra note 33, at 246.

38. See DOUGLAs-HAmu.TON, supra note 35, at 321-22.

39. Katy Payne, Caring Beasts, WASH. POST, Apr. 8,2000, at A17. 40. See BONNER, supra note 1, at 54.

41. See African Elephant Conservation Act, Pub. L. 100-478, 102 Stat. 2315 (1988) (codified at 16 U.S.C. 4201-4225, 4241-4245 (1994)). Since 1993, the Department of Interior has administered an annual US $1 million fund under this law, sponsoring fifty-four projects in eighteen African countries. See Africa Initiatives of the U.S. Dep’t of Interior, at (last visited July 14, 2000).

42. See BoNNER, supra note 1, at 128.

43. See id.

44. WEsTERN, supra note 33, at 245. 45. Id. at 245-46.

46. See BoNNER, supra note 1, at 130; Wt, supra note 33, at 246. 47. See BoNNER, supra note 1, at 139,141.

48. See Dovctas-Hn*.tB..uriAs-HAMILTON, supra note 35, at 330.

49. See id at 325. 50. See iii at 331.

51. One Kenyan elephant does persist in the shadow of skyscrapers, in New York City, its likeness a statue in the garden of the United Nations Headquarters. A gift to the U.N. from Kenya, Namibia and Nepal in 1998, the life-size bronze statue was cast from a wild Kenyan elephant (tranquilized and unharmed). The statue stands as a monument to the world’s natural environment, to international law, and, in the words of U.N. Secretary General Kofi Annan at its unveiling, to “Mother Earth.”

52. WEsTERN, supra note 33, at 250.

53. Id. See also KENYA WILDLIFE SERVICE, KENYA PARKS AND REsERves TouR PLANNER 4 (1996) (on file with author) (two more ceremonial burnings of ivory stockpiles have taken place at the site).

54. DOuGLAs-HAMILTON, supra note 35, at 338; WEsTERN, supra note 33, at 250.

55. See BoNNER, supra note 1, at 157. Voting against the ban were Botswana, Zimbabwe, South Africa and Mozambique, as well as neighboring countries Gabon, Cameroon, and Congo.

56. See DOUGLAs-HAMILTON, supra note 35, at 341. Taking reservations were Zimbabwe, Botswana, Malawi, Zambia, and South Africa. Zambia later dramatized its change of position under a new President by burning a stockpile of ivory. See OwENs, supra note 30, at 271.

57. See Heimert, supra note 3, at 1479.

58. See WESTERN, supra note 33, at 243. The voices of three past, current and future directors of the Kenya wildlife authorities (Perez Olindo, Leakey and Western, respectively, discussing the positive results of the ban) were gathered, among others, soon after the ivory ban in a book which highlighted the critical nature of the years to come to the African elephant. ELEPHANT; THE DECIDING DEcADE (Ronald Orenstein, ed., 1997) (first published in 1991). “Nineteen eighty-nine was the year of hope for the African elephant. The 1990s will be its deciding decade. What we do in the next few years will determine whether the greatest land animal on earth starts its recovery after years of rampant slaughter, or slides once more towards extinction.” Ronald Orenstein, Preface to ELEPHANTS; THE DEciDiNG DECADE, supra, at 11.

59. See WSTERN, supra note 33, at 246.

60. See Kenya Wildlife Service Director Nehemiah Rotich’s Speech at the Kivumoni-Msurwa Fence Launching (Nov. 29-30, 1999), at (last visited Mar. 16, 2000) [hereinafter Fence Launch, KWS Director Rotich].

61. See Erwin H. Bulte & Cornelis van Kooten, Economics of Antipoaching Enforcement and the Ivory Trade Ban, 81 Art. J. AGRic. EcON. 453,453-54 (1999) (analyzing data collected in the report of the IUCN/SSC African Elephant Specialist Group, DuBLIN ET AL., FOUR YEARs AFrER THE cn-Es BAN: ILLEGAL KiLLING oF ELEPHANTs, IVORY TRADE AND STOCKPILES (1995)).

62. See Scott Hitch, Losing the Elephant Wars: CITES and the “Ivory Ban, ” 27 GA. J. INT’L & COMP. L. 167, 174 (1998).

63. See Danksy, supra note 17, at 971; TRAFFIC, Analyses of COP 11 Proposals, Introduction to the African Elephant Loxodonta Africana Proposals, at (last visited Mar. 16, 2000) [hereinafter TRAFFIC]. When the 1989 COP enacted the ivory ban, it established a special procedure for the downlisting of any national population, contained in Conference Resolution 7.9, that would empower a special Panel of Experts to examine the appropriate scientific criteria. This was replaced by a similar procedure at the 1997 COP, contained in Conference Resolution 10.9, which was used to examine South Africa’s proposal before the 2000 COP. When the COPS acted on these downlisting recommendations, they retained the power to control decisions on sales and quotas.

64. See Hitch, supra note 62, at 180-84; TRAFFIC, supra note 63. Japan met rigorous CIS standards for comprehensive regulatory controls on the importation of ivory, including registration of more than 30,000 ivory dealers. Interview with Tom Milliken, Director of TRAFFIC East/Southern Africa, at WWF Regional Programme Headquarters, Harare (Oct. 18, 2000) (Milliken was formerly Director of TRAFFIC for Japan). Any other nation wishing to take part in a future legal importation of ivory would be required to demonstrate the ability to meet equally demanding standards.

65. See Dansky, supra note 17, at 973. 66. See TRAFFIC, supra note 63.

67. See Tom Milliken, Director of TRAFFIC East/Southern Africa, Briefing: African Elephants and the Eleventh Meeting of the Conference of the Parties to CITES, at lthmeeting.html (last visited Mar. 16, 2000) [hereinafter Milliken].

68. See Hitch, supra note 62, at 180-84; see also Milliken, supra note 67. The requirement for the new monitoring system was laid out in CITES Conference Resolution 10.10, at index.shtml (last visited Mar. 16, 2000). According to Milliken, the greatest benefit of MIKE is that it will channel international monitoring resources into nations of Central and West Africa, which have previously received little foreign aid for this purpose. Interview with Tom Milliken, supra note 64. Milliken said the greatest divide between African elephant range states lies between the nations in East and Southern Africa which have received significant amounts of aid for conservation activities, and those in Central and West Africa which have received relatively little, and have a correspondingly lower capacity to conduct anti-poaching, monitoring and other conservation activities.

69. See Balfour, supra note 3, at 9; Hitch, supra note 62, at 184-86.

70. See Paul Harris, Kenya’s Elephant Poaching Soars, Tfa.oRAPH (London), Sept. 19, 1999, at 28. 71. See id.

72. See EIA: Elephant Poaching Overshadows Anniversary of International Ivory Ban, U.S. Newswire, Jan. 17, 2000 (estimating the number at 350).

73. See Nick Fielding, Poachers Return to Ivory Killing Fields, SuNDAY This (London), Oct. 24, 1999. Exact numbers of fatalities for rangers and poachers are not released by the Kenyan government, for fear of affecting the tourist trade. See Excitement at CITES, ECONOMIST, Apr. 15, 2000, at 88.

74. See Christopher Munnion, Rangers Fear Rise in Ivory Poaching, TELEGRAPH (London), Nov. 24, 1999. 75. See id.

76. See Ken Opala, Intrigue and Lobbying May Doom the Jumbo, NATION (Nairobi, Kenya), Apr. 15, 2000. 77. Dean fi. Murphy, Ivory Stash Driving Debate; South African Bid to Sell Bulk of Stockpile Has Activists,

Poor Communities and Governments Fighting over How to Protect Continent’s Signature Pachyderm, L.A. Tins, Apr. 7, 2000, at Al.

78. Simon Robinson, Dying for Ivory: Even African Conservationists Cannot Agree on How Best to Protect Elephant Populations from the Threat of Poachers, Tao, Apr. 17, 2000, at 44.

79. Kenya Charges South Africa with Economic Sabotage over Ivory Trade, Deutsche Presse-Agentur, Apr. 12,2000.

IlL RAw ZY .-777: uf -I U’ –

83. See id.

84. See id. (para,para) 18,19.

85. See CITES SECRETARIAT, ExPERIMENTAL TRADE iN RAw IVORY OF POPULATIONS IN APPENDIX fl, at ANNEX 4, REPORT OF THE STANDING CoMM-i.EE PURSUANT To DECISION 10.1, PART B (working document, COP 11, Apr. 10-20 2000), at (last visited Mar. 16, 2000).

86. Id. qq 59, 61, 62, 63.


88. Id 25.

89. See id. 130.

90. See Milliken, supra note 67. As ivory carvings have been treasured by civilizations around the world for thousands of years, continued desire for ivory and appreciation for ivory carvings is not surprising.


92. See RBuc OF Sour AFRIcA, PROPOSAL 11.20 (working document, COP 11, Apr. 10-20, 2000), at 1, at (last visited Mar. 16, 2000) (on file with author) [hereinafter SouTH AFRICA.

93. See id. at 1, 7. However, 300 years ago, there were 100,000 elephants in South Africa. See Hanks, supra note 3, at 22.

94. See SouTH AFRICA PROPOSAL, supra note 92, at 2, 5. 95. See id. at 5.

96. See id. at 13.

97. See id. at 10, 13. At the time of its suspension of culling, South Africa National Parks undertook a review of its culling policies in Kruger, completed in 1998. The revised management plan for Kruger, reaffirming biodiversity preservation as a reason to control elephant numbers, envisions three zones in the park-a fifth dedicated as two botanical reserves with minimal elephant impact; another two-fifths dedicated to low elephant impact, where elephant numbers will be reduced in a manner that offsets natural increases; and another two-fifths reserved for uncontrolled elephant increases. While translocation is the preferred method of controlling elephants, culling is also authorized. Should the impact on vegetation in the uncontrolled area exceed threshold levels, the low and high areas may be switched, at intervals of anywhere from 30 to 100 years. Interview with Danie Pienaar, South Africa National Parks Scientific Services Manager, Kruger National Park, at Skukuza, South Africa (Sept. 22, 2000). For the complete proposal and summaries, see Kruger National Park Management Plan, at (last visited Sept. 22, 2000). Domestic and international public pressure persists for the National Parks Department to abandon its culling policies, and any future decisions to implement the Management Plan through culling will remain controversial.

98. See Eleventh Meeting of the Conference of the Parties Convention on International Trade in Endangered Species (Apr. 2000), l/press/press-kit.shtml.

99. See ZuaABwE, PROPOSAL 11.23 (working document, COP 11, Apr. 10-20, 2000), at 2-3, at http:// (last visited Mar. 16, 2000) (on file with author) [hereinafter ZIMBABWE PROPOSAL].

100. See id. at 4.

101. See BOTSWANA, PROPOSAL 11.21 (working document, COP 11, Ap. 10-20, 2000), at 4, at http:// (last visited Mar. 16, 2000) [hereinafter BOTSWANA PROPOSAL] (on file with author).

102. See id. at 5, 7.

103. See id. at 5.

104. See id. at 6.

105. See id.

106. See id. at 7. Although the “buffalo fence” is not electric and is broken by elephants, the Botswana wildlife authorities use problem animal control techniques-scaring elephants with firecracker-type devices, shooting them if necessary-to try to keep them from crossing the fence on a regular basis (lions that jump over the fence are likewise a problem). To the north, the elephant population spreads through Namibia’s Caprivi strip, then thins into war-torn Angola. To the north and east, it also spreads into Zambia and Zimbabwe. When I visited Botswana in December 1999, I was informed by a local naturalist about a decision of the International Court of Justice handed down days earlier, settling a decades old dispute between Botswana and Namibia over Sedudu Island in the Chobe River, which forms their border, awarding sovereignty over the island to Botswana. See Case Concerning Kasikili/Sedudu Island (Bots. v. Namib.), Dec. 13, 1999, 39 LL.M. 310. 1 passed the island, and it appeared an empty grassland. But during the dry season (which is the southern hemisphere winter), the island teems with elephants, buffalo and other wildlife. Although wildlife was not a historical basis for the dispute, wildlife has made the island more valuable to both Botswana and Namibia, as tourism in the area has increased rapidly. Elephant populations frequently straddle international borders, and while this often causes disputes, particularly over ivory poaching, it may also form the basis for international cooperation, under the right circumstances. In 2000, the governments of South Africa and Mozambique were in early negotiations over the formation of a transfrontier “peace park” mirroring Kruger on the Mozambique side, and stretching to the Zimbabwe border on both sides. This will involve the removal of a South African steel-cable elephant fence along the border, and a repopulation of elephants into Mozambique from South Africa. Interview with Dame Piennar, supra note 97.

107. See BOTSWANA PROPOSAL, supra note 101, at 7. There are no elephants in the almost equally vast Central Kalahari Reserve to the south. While fences have proven invaluable and inevitable all across Africa to end conflict between people and wild animals, financial benefits must always be carefully weighed against ecological harm. In the Kalahari Reserve, border fences caused an ecological tragedy by disrupting and ending Southern Africa’s biggest seasonal mammal migration. See MARK AND DELiA OWENs, CRY OF THE KALAHARi 292-321 (1984).

108. See BOTSWANA PROposAi, supra note 101, at 7.

109. See NAmmm, PROPOSAL 11.22 (working document, COP 11, Ap. 10-20, 2000), at 23, at http:11 (last visited Mar. 16,2000) (on file with author).

110. See id. at 3. 111. See id. at 6. 112. See id. at 9.

113. See id. at 3, 5. At the same time, if elephants were restricted to protected areas in Namibia and could not migrate outside, wildlife officials believe those areas might support only a fifth of current numbers. Interview with Dr. Pauline Lindeque, Chief Conservation Scientist (and CITES coordinator), Namibia Ministry of Environment and Tourism, in Windhoek, Namibia (Oct. 11, 2000). Namibia seeks revenues from ivory sales in order to fund its efforts to keep elephants safe on this private land, and humans safe from those elephants, in a nation where elephants compete with people for water. “For us to ensure the elephants’ long-term viability, we must make sure elephants and humans can co-habitate,” Lindeque said. “The only way of ensuring the range remains is by letting wildlife be a benefit.” The only way of solving problems between elephants and humans, she added, is with adequate funding, which is not forthcoming from the international donor community, and proposed ivory sales are a logical means to provide these funds.

114. See KENYA AND INDIA, PROPOSAL 11.24 (working document, COP 11, Apr. 10-20, 2000), at 2, at (last visited Mar. 16, 2000) [hereinafter KENYA AND INDIA (on file with author).

115. AFRICAN ELEPHANT DATABASE 1995, supra note 2. See KENYA AND INDIA PROPOSAL, supra note 114, at 5, 10.

116. See KENYA AND INDIA PROPOSAL, supra note 114, at 33-34.

117. See id. at 26 (quoting MAIL & GUARDIAN (South Africa), Apr. 13, 1999).

118. See id. at 12. 119. See id.

120. For tourism figures for each nation, see supra note 4. 121. See KENYA AND INDiA PROPoSAL, supra note 114, at 12. 122. See Murphy, supra note 77.

123. See KENYA AND INDiA PROPOSAL, supra note 114, at 14-15. 124. See id. at 14-16.

125. See id. at 13, 20. Nations with legal domestic ivory trades include Burkina Faso, Cameroon, Ethiopia, Malawi, Mozambique, Namibia, Nigeria, Senegal, South Africa, Togo, and Zimbabwe. Nations with hunting quotas include not only Botswana, Namibia, Zimbabwe, and South Africa, but also Cameroon, Ethiopia, Mozambique, and Tanzania.

126. See id. at 14, 18.

127. See id at 18-19.

128. See id at 29-30. Signatories to the Lusaka Agreement are Congo, Ethiopia, Kenya, Lesotho, South Africa, Swaziland, Uganda, Tanzania, and Zamiba.

129. See id at 32-33.

130. TRAFFIC, RECOMNDATIONS ON PROposALS TO To AmEND THE ia APPENDicEs AT THE ELEvENTH MEETiNG oF THE CoNFERENCE oF THE PARTIES To CITES, at 11.23, recommendations.html (last visited May 5, 2000).

131. Id

132. See id at 11.24.

133. See Ken Opala, EU Lends Hand in Ivory Battle, NATON (Nairobi, Kenya), Apr. 14, 2000.

134. See Ken Opala, Intense Lobbying That ‘Saved’ The Elephant, NAnON (Nairobi, Kenya), Apr. 23, 2000. 135. See Elephants Vote Deferred, Greenwire, Apr. 17, 2000.

136. See Ann Simmons, Nations OK Restored Ban on Ivory Sales, L.A. TwEs, Apr. 18, 2000, at A6.

137. Kenya’s 1999 population was 28.8 million, at a density of 128 people per square mile over a land area of 225,000 square miles; Zimbabwe’s 1999 population was 11.2 million, at a density of 74 people per square mile over 150,800 square miles. See THE WORLD ALMANAC, supra note 4, at 814, 877. As for elephants, at the time of the Nairobi COP in 2000, Kenya’s elephant population was around 30,000 and Zimbabwe’s, 70,000, at densities of 0.13 and 0.46 elephants per square mile, respectively.

138. See Michael McRae, Survival Test for Kenya’s Wildlife: Embattled Ecologist David Western Faces an Uphill Fight in his Struggle to Save Kenya sr Rich Biological Heritage – and the Agency Meant to Protect it, 280 ScCE 510 (Apr. 24,1998); Is CAMPFIRE Replacing National Parks?, at facts_3.html (last visited Mar. 16, 2000).

139. See BotmR, supra note 1, at 17, 18.

140. Both long-serving Presidents, Daniel arap Moi in leadership since 1978 in Kenya and Robert Mugabe since 1980 in Zimbabwe, had bright beginnings, but after holding power for more than two decades, each were eventually criticized and blamed for economic reversals, stifled democracies and ethnic tensions and violence, as they struggled to extend their political legacies. See Rachel L. Swarns, As Zimbabwe Falters, Many Ask Who Is Really to Blame, N.Y. Tmms, Apr. 8, 2000; Peter Godwin, Bloody Harvest… the Machinations of a President Desperate to Win One More Election, N.Y. TIMES, June 22, 2000 (Magazine), at 46; Blaine Harden, The Last Safari: Kenya was Once Africa’s Shining Star; Now it is Falling Apart, and There is No Greater Sign of Its Decline Than Its Once Glamorous Tourist Industry, N.Y. TIMES, June 4, 2000 (Magazine), at 66. Elsewhere in these regions, the turn of the century witnessed economic progress and proud democratic successes such as those in Botswana, Namibia, Uganda, Tanzania, and South Africa.

141. See CHADWICK, supra note 24, at 104,441.

142. See Harden, supra note 140.

143. McRae, supra note 138.

144. See KWS POLICY FRAmEwoRK, supra note 23. 145. See id.

146. See Fence Launch, KWS Director Nehemiah Rotich, supra note 60. 147. KWS POLICY FRAmEWORK, supra note 23, at 5.

148. See Winnie Kiiru, The Current Status of Human-Elephant Conflict in Kenya, 19 PACHYDERM (Journal of the IUCN Species Survival Commission, Specialist Groups for the African Elephant, African Rhino, and Asian Rhino) 1995, at 17.

149. In Kenya, reserves are generally managed to some degree by local governments, and national parks are managed by the national government. The Maasai Mara is one of the top tourist destinations in Kenya and therefore subject to a tug-of-war between the national Kenya Wildlife Service and the local Narok and Transmara County Councils.

150. See Joshua Hammer, Richard Leakey’s Fall From Grace, OUTSIDE, June 1994, at 69.

151. See David Western, Elephant and People, SWARA (Journal of the East African Wildlife Society),] Mar.-Apr. 1995, at 29.

152. Id. at 29.

153. Id.

154. See id.

155. See Murphy, supra note 77.

156. KWS PoLicY FRt*wom, supra note 23.

157. See BONNER, supra note 1, at 216, 278; Yvonne Baskin, There’s a New Wildlife Policy in Kenya: Use It or Lose It, Sc’ENcE, Aug. 5, 1994.

158. See Kenya Wildlife Service, Human-Wildlife Conflict, wildlife.htm (last visited Aug. 1, 2000) (report of a high-level policy review under KWS Director David Western) [hereinafter Human-Wildlife Conflict]. Although domestic trade in wildlife products is generally prohibited, international trade is permitted and governed by a process of regulation under the Ministry of Environment and Tourism. One potential change in laws could involve encouragement of local management of consumptive use of wildlife. Interview with James Ndungu, KWS Wildlife Utilization Coordinator, at KWS Headquarters, Nairobi, Kenya (Nov. 7, 2000).

159. See Payne, supra note 39. For some of the best accounts by field researchers of the intelligence and emotional capacity of elephants, see DOUGLAs-HAMiLTON, supra note 35; Moss, infra notes 179, 189; OwENs, supra note 30; WESTERN, supra note 33; IAI AND ORIA DOUGLAs-HAMILTON, AMONG THE ELEPHANTS (1975); JOYCE POOLE, ComiNG OF AGE WrrH ELEPHANTs (1996).

160. I became familiar with the Kenya elephant management strategy through the work of the scientists at the KWS Elephant Programme, a research and management unit that has been funded primarily by the European Union. When I studied in Kenya in 1996, there were about a dozen scientists in the unit, and soon after their completion of a comprehensive KWS survey of regional human-elephant conflict, I had the fortunate opportunity to speak with most of them, including director John Waithaka and field research scientists Hamisi Mutinda, Steve Njumbi, Salome Gachago, Moses Letoroh, Martin Mulama and Jim Sakwa, as well as Philip Wandera, director of the wildlife utilization unit of the KWS Community Wildlife Service, and J. Walter Kagiri, head of the KWS fencing unit.

161. See Fence Launch, KWS Director Nehemiah Rotich, supra note 60.


(1995) (on file with author) (discussing the need for problem animal control and ongoing maintenance of the fence in progress).

163. See Catherine Gicheru, Community to Run Wildlife Sanctuary, DAILY NATION (Nairobi), Oct. 25, 1995, at 18.

164. See Fence Launch, KWS Director Nehemiah Rotich, supra note 60.

165. Salome Gachago, KWS Elephant Programme Biologist, Presentation on Elephant Migration, Aberdares Biodiversity Workshop, near Nyeri, Kenya (Mar. 5, 1995).

166. I attended this conference, which included multiple discussions by KWS personnel and other parties on elephants and biodiversity issues, including presentations by KWS biologist Salome Gachago, KWS Director Western, and John Waithaka, head of the KWS Elephant Programme.

167. KWS Director David Western, Presentation on Elephant Management, Aberdares Biodiversity Workshop, near Nyeri, Kenya (Mar. 5, 1995). For a good example of Western’s earlier academic work on issues he would later face as KWS Director, see generally David Western & Helen Gichohi, Segregation Effects and the Impoverishment of Savanna Parks: The Case for Ecosystem Viability Analysis, 31 AFR. J. EcoL. 269-81 (1993) (explaining the impacts of isolation on the ecology of protected areas).

168. See Western presentation, supra note 167.

169. See Kenya to Commence Fencing Around Mt. Kenya Forest, Xinhua News Agency, June 10, 1997.

170. See HAMISI MuTINDA & JoHN WAITHAKA, KENYA WILDLIFE SERvicE ELEPHANT PRoGRAMME, THE ELEPHANT-HumAN Co, Licr IN SoME AREAs ARouND THE TrAvo EcosYSTEm 3 (1995) (on file with author) (recommending more aggressive problem animal control as a response to changes in elephant behavior in the absence of poaching, as well as fencing solutions for Voi and Bura, provision of water for elephants in the park, and the re-institution of hunting).

171. See id. at 8-11.

172. Interview with J. Walter Kagiri, KWS Fencing Coordinator, at KWS Headquarters, Nairobi, Kenya (Mar. 5, 1995); interview with James Ndungu, KWS Wildlife Utilization Coordinator, at KWS Headquarters, Nairobi, Kenya (Nov. 7, 2000). See also Fence Launch, KWS Director Nehemiah Rotich, supra note 60 (mentioning both satisfaction and criticism from residents of Tsavo’s Taita-Taveta District).

173. See Muo SA AND WAIAKA, supra note 170, at 3. The KWS strategy for Tsavo is to protect agriculture in the Taita Hills, surrounding them with protective fences, while allowing elephants to move from the parks through private conservancies around the hills. Interview with James Ndungu, supra note 172.

174. When the sun passes directly overhead of equatorial Kenya, during North America’s autumn and spring seasons, heat patterns bring showers to Kenya and Tanzania in two rainy seasons each year. When the sun passes overhead in the northern and southern hemispheres, during North America’s summer and winter, the rain follows and it is dry in the Tanzanian Serengeti National Park and surrounding grasslands. In the longer of these two dry seasons, when the sun and rain is to the north in May and June, the migrating herds seek more lush grasses in the Kenyan Maasai Mara reserve, across the Tanzanian border to the north. See generally A.R.E. SINCLAIR, SERENGEn PAST AND PRESENT, and M.D. BROTEN AND M. SAiD, PopuLATioN TRENDs OF UNGULATES iN

AND AROUND KENYA’S MAsAi MARA REsERvE, in SERENGETI Ii: DYNAMics, MANAGEMENT, AND CONSERVATION OF AN ECosysTEM 3-30, 169-93 (A:R.E. Sinclair & Peter Arcese eds., 1995) (noting the crucial role of the private land outside the Mara Reserve in the ecology of the Serengeti migration).

175. See J. STEVE NIM, KENYA WILDLIFE SERvICE ELEPHANT PROGRAMME, HUMAN WILDLIFE CoNFLICT SURVEY OF THE MAU FOREST COMPLEx, TRANSMARA AND NAROK ELEPHANT RANGE AREAS OF KENYA 13 (1995) (on file with author) (discussing various problem animal control and fencing solutions for both crop raiding by elephants and livestock depredation by marauding predators). With predators that pose no danger to humans, the KWS prefers to capture and translocate livestock-raiding lions, leopards, and cheetahs. Although elephants have been translocated in both Kenya and Zimbabwe, this option is by many magnitudes more expensive. The first method of discouraging crop-raiding elephants is with noisemakers, firecrackers, or gunshots into the air, but the animals are not always deterred.

176. Due in part to the Mara’s historical status as a reserve, rather than a national park, the Narok County Council collects all gate fees. However, the role of the Narok Council in managing the reserve and its entry fees is subject to uncertainty and criticism regarding dispersal of revenues, due to a lack of transparency in accounting, and large amounts have not usually flowed back to conservation or human development in the grazing lands bordering the Reserve. See Bol, ,supra note 2, at 135. The District Councils in Zimbabwe that manage their own wildlife have not been subject to similar criticism over revenue dispersals. While the Narok County Council’s financial management role could be improved on the Zimbabwe model, tourism may be more important in halting the encroachment of agriculture and securing Maasai land for continued conservation of the Serengeti ecosystem. I spent several days in 1996 both inside the reserve and outside on communal Maasai land. In many ways the communal Maasai areas are more interesting for visitors, in some places more secluded and wild than the popular reserve, and elsewhere graced by the presence of Maasai villages. The benefits of tourism are the best financial incentive that can keep the land of private landowners available for the migrating herds (and elephants as well).

Elsewhere in Kenya, rural communities have at times demanded dispersal of twenty-five percent of park gate fees, after President Moi years ago promoted a policy to that effect. The KWS, however, while participating in many revenue-sharing programs over the years, has argued and lobbied against the twenty-five percent model, calling it unsustainable, since these gate fees are the main source of KWS funding, aside from foreign aid. See Human-Wildlife Conflict, supra note 158. Zimbabwe has no publicized policy of gate-fee sharing that is comparable.

177. See M. NORTON-GR*Tms, ECONOMIC INcENTIVES To DEVELOP THE RANGELANDs OF THE SERENGETI: MICATIONs FOR WILDLIFE CONSERvATION, in SERENGETI n, DYNAMICS, MANAGEMENT, AND CONSERVATION OF AN ECOSYSTEM 588-604 (A.R.E. Sinclair & Peter Arcese eds., 1995) (criticizing the low volume of tourism revenues that return to local landowners, and promoting greater returns as the best way to conserve the ecosystem).

178. See generally W.K. LiNDsAY, Integrating Parks and Pastoralists: Some Lessons From Amboseli, in

CoNsERvATION IN AFRICA 149-67 (David Anderson & Richard Grove eds., 1989) (benefits provided to the Maasai living around Amboseli may have provided some relief from wildlife conflict, but because the benefits have not been continuous, the progress towards conservation goals has also been inconsistent).

179. See CYN Moss, ELEPHANT MEMoRiES (1988) (memoirs from the longest-running study of elephant social behavior in Africa, the Amboseli Elephant Research Project, which has been supported primarily by the Washington, D.C.-based African Wildlife Foundation).

180. See Ken Opala, The Mystery ofAmboseli’s Shrinking Rich Heritage, NATION (Kenya), Apr. 21, 1995. 181. See id.

182. In 1996, I accompanied a KWS field mission to tranquilize and radio-collar an elephant outside Amboseli, on 01 Gulului Group Ranch, to help track movements throughout privately owned Maasai land. While the collar was secured around the giant bull’s neck, vets noticed an ugly wound on his shoulder: he had been speared by a Maasai warrior, perhaps an indication of continuing sour feelings. See Joseph R. Berger, Collaring the Elephant, BALT. SuN, Jul. 3, 1996, at 27A. Scientists participating in the tranquilizing mission included Hamisi Mutinda from the KWS Elephant Programme, Dr. lain-Douglas Hamilton, and Amboseli field researchers Cynthia Moss, Soila Sayialel, Norah Njirane, and Katito Sayialel, who together could identify each of Amboseli’s 900 or so elephants by sight. The bull darted was male number 162, “Parsitau,” twenty-eight or so years old. Recently, several Amboseli bulls had been shot across the border in Tanzania by both hunters and poachers, and the researchers were seeking additional information on cross-border elephant movements.

183. See id. 184. Id

185. See id.

186. See id. I visited in April 1996, paying US $10 to enter and take a walking tour, which is not allowed in the neighboring Amboseli.

187. See id. The Kimana infrastructure was paid for by the KWS Community Wildlife Service, charged to promote the sharing of conservation benefits with local communities, and keep fences on private land down where possible, launched in 1992 with the help of the USAID grant. Dr. George Jones, the director of the All) mission to Kenya, told me that “bringing the people into the program has been magnificent. Not only are they protecting animals inside the parks, but the seventy-five percent that are outside the parks, and receiving economic benefits from it. That’s the important thing.” Id.

188. See Fence Launch, KWS Director Nehemiah Rotich, supra note 60.

189. See CYNTHiA Moss, ELEPHANT MEMoRiEs 325-42 (2000) (the 1999 afterword to her 1988 book about Amboseli).

190. See id. at 327, 340.

191. See Chris Thouless, Human/Elephant Conflict in Northern Kenya, ORYX, Apr. 1994, at 123.

192. This was the policy understood by nomadic Samburu pastoralists I visited during two weeks in Laikipia and Samburuland, Kenya, in February 1996. When I talked to scientists at the KWS, they confirmed this, but the laws establishing the rights of those defending themselves were criticized as unclear. The KWS has sought to protect its responsibility for shooting crop-raiding elephants and those that threaten people, and private citizens who shoot elephants for any reason run the risk of government prosecution.

193. See KWS PoLicy FRAmEwoRK, supra note 23, at 15. In 1990, there were about 6000 elephants in Tsavo, 2100 in Aberdares, 2100 in Laikipia, 1300 in the Maasai Mara, 1000 in Mt. Kenya, 735 in Amboseli, and 400 in Shimba Hills.

194. See id. The Kenya Wildlife Service has taken steps to encourage tourism in lesser-known parks and reserves while easing tourism pressures on the most popular parks. The KWS adopted a multi-tiered daily entry-fee price structure in 1996 to promote this approach, while maintaining separate, minimal fees for Kenyan residents. However, like Zimbabwe and many other African countries, Kenya has also established parks and reserves to protect rare species and unique ecologies, despite uncertain potential for tourism revenues, that may or may not be beneficial to communities near the protected areas, and is much lower than that at more popular destinations. For instance, the Tana River Reserve protects a unique subspecies of the red Colobus monkey, the Saiwa Swamp National Park protects Kenya’s only sitatunga (an aquatic antelope), Arabuko Sokoke Forest Reserve protects the largest surviving coastal tropical forest in East Africa, Kakamega Forest Reserve protects the only true tropical rainforest in Kenya, and Sibiloi National Park protects the Lake Turkana desert site where some of the earliest proof of man’s origins in East Africa were discovered in the 1960s. Tourism revenues are among the highest on the coast, where seven parks and reserves protect Kenya’s coral reefs, the first in Africa so protected by a national government. See KENYA WILDLIFE SERvIcE, KENYA NAToNAL PARKS & REsERVES TouR PLANNER 1-36 (1996) (on file with author).

195. See James McKinley Jr., It’s Kenya’s Farmers vs. Wildlife, and the Animals Are Losing, N.Y. less, Aug. 2, 1998, atAl (contrasting Leakey’s approach of fencing off areas and strict enforcement of anti-poaching laws with Western’s approach of encouraging projects that make wildlife conservation profitable for local people, such as pooling lands of farmers to open private wildlife reserves for the tourist industry).

196. See Kenya Wildlife Service, The Mission and Vision of KWS, at http:/ (last visited Mar. 16, 2000).

197. See NATURAL CONNECTIONS: PERSPECTIVES IN COMMtnY–BASED CoNsERvATIoN (David Western & R. Michael Wright eds., 1994) (a textbook of case studies from around the world).

198. See Victoria Butler, Unquiet on the Western Front; Head of Kenya Wildlife Service David Western, INT’L WILDLIFE, Nov. 1, 1998; McRae, supra note 138.

199. See Rosalind Russell, Leakey Back at Helm of Kenya Wildlife Service, Reuters, Sept. 25, 1998. 200. See McRae, supra note 138.

201. See Russell, supra note 199. 202. See Harden, supra note 140.

203. See Kenyan Students Demonstrate Against Ivory Trade, Xinhua News Agency, Mar. 18, 2000. 204. Poaching by Any Name is Appalling, NATioN (Nairobi, Kenya), Apr. 9, 2000, at 6:

These countries cannot be poachers and conservationists at the same time. They want to benefit from the slaughter of wildlife… and they want to do it by convincing us that it is the right thing to do. Poaching, by any name, is poaching. And those who wish to wallow in it must not be allowed to dip the hands of other nations in the blood, nor must they be given the stamp of approval that they seek. Kenya burnt huge stockpiles of ivory. Let others follow suit, and let us all send a clear message. We do not wish to benefit from the proceeds of poaching. Slap a ban on the trade in ivory products and never, ever, lift it. Id.

205. See BoNNER, supra note 1, at 105.

206. See id, at 107.

207. Interview with Frank Chinyoka, Zimbabwe Department of National Parks and Wildlife Management [DNPWLM] Extension Division senior officer and CAMPFIRE liaison, at DNPWLM Victoria Falls Office, Victoria Falls, Zimbabwe (Sept. 15, 2000); interview with Tapera Chimuti, DNPWLM Terrestrial Division Senior Ecologist, at DNPWLM Headquarters, Harare (Oct. 23, 2000). The reason usually provided for this cessation is a lack of funds, which is in turn logically related to the ivory ban. See, e.g., NicK GRAVEs, HwANGE: RETREAT OF THE ELEPHANTs 105-07 (1996) (noting a lack of funds as the reason for the end of culling in Zimbabwe’s largest park, Hwange). The Zimbabwe Parks Department, which must balance increasing elephant numbers, concern over ecological damage, debate over the morality and conservation rationale for culling, sensitivity to international opinion, and implications of the ivory trade ban, could likely decide to resume culling at some point in the future, although there are no immediate plans to do so. One official I spoke with argued that “the costs of ecological degradation are not home by the international community.”

208. See Bob supra note 1, at 263; Heimert, supra note 3, at 1483.

209. CAMPFIRE Association and Africa Resources Trust, How Does CAMPFIRE Work?, at http:fl (last visited Mar. 16, 2000).

210. See McRae, supra note 138.

211. See CAMPFIRE Association and Africa Resources Trust, Acts, Amendments & Appropriate Authorities: CAMPFIRE’s Legal Framework, at (last visited Mar. 16, 2000) [hereinafter Acts, Amendments].

212. See CAMPFIRE Association and Africa Resources Trust, What is CAMPFIRE, at (last visited Mar. 16,2000); Where is CAMPFIRE Found?, at (last visited Mar. 16, 2000).

213. See Hitch, supra note 62, at 193-196.

214. See Acts, Amendments, supra note 211; CAMPFIRE AssOCIATioN, ANNUAL REPORT 1999-2000, at 2 (on file with author) (the association is comprised of the participating Rural District Councils). Electric fences do not border any of Zimbabwe’s national parks, as they do some of Kenya’s. CAMPFIRE helps keep these fences down. However, with the assistance of the World Wildlife Fund Regional Programme in Harare, CAMPFIRE District Councils have installed various types of electric fences on communal land. Interview with Emmanuel Kawadza, acting Chief Ecologist, ZDNPWM Wildlife Extension Division, at DNPWLM Headquarters, Harare, Zimbabwe (Oct. 18, 2000) (the extension division handles relations with rural communities and works with CAMPFIRE); interview with Tapera Chimuti, DNPWLM Terrestrial Ecology Division Senior Ecologist and CITES coordinator, at DNPWLM Headquarters, Harare, Zimbabwe (Oct. 23, 2000).

215. See CAMPFIRE Association and Africa Resources Trust, Sustainable Rural Development: Driven By CAMPFIRE, at (last visited Mar. 16, 2000).

216. See CAMPFIRE Association and Africa Resources Trust, Sharing the Land: People and Elephants in Rural Zimbabwe, at (last visited Mar. 16, 2000), [hereinafter Sharing the Land]; Hunting: Funding Rural Development & Wildlife Conservation in CAMPFIRE, at (last visited Mar. 16, 2000) [hereinafter Hunting in CAMPFIRE].

217. See ZIMABWE PROPOSAL, supra note 99, at 5. 218. See Hunting in CAMPFIRE, supra note 216. 219. See ZIABABwE PRoposAL, supra note 99, at 5. 220. See Hitch, supra note 62, at 193-96.

221. See Za.E PRopOSAL, supra note 99, at 5.

222. Sharing the Land, supra note 216.

223. See CAMPFIRE Association and the Africa Resources Trust, Counting Big Game & Setting Harvesting Quotas in CAMPFIRE, at .html (last visited Mar. 16, 2000).

224. See Hitch, supra note 62, at 193-196.


226. See Hitch, supra note 62, at 193-96. 227. See Sharing the Land, supra note 216.

228. See CAMPFIRE Association and the Africa Resources Trust, CAMPFIRE’s Income and Expenditure: The Bottom Line, at http://www (last visited Mar. 16, 2000).

229. See USAID REPORT, supra note 225; CAMPFIRE AssOCIATION, ANNUAL REPORT 1999-2000, supra note 214, at 26.

__230. See CAMPFIRE ASSOCIATION, ANNUAL REPORT 1999-2000, supra note 214, at 27. 231. See USAID REPORT, supra note 225.

232. See TRAFFIC, supra note 63.

233. See ZIMABWE PROPOSAL, supra note 99, at 5. 234. See id.

235. See id.; KENYA AND INDIA PRoPosAL, supra note 114, at 13; see also Milliken, supra note 67.

236. See Douglas-Hamilton, supra note 4, at 21. “Trade in skins and meat derived from properly controlled culling done for ecological reasons is another matter and in my opinion can be legitimate and controlled.” Id. South Africa was extended permission to trade in hides at the 2000 COP.

237. See Z[MBABwE PRoposAL, supra note 99, at 5. 238. See id at 6.

239. See MInSTRY OF MINES, ENviRoNMENT AND TOURISM ZIMBABWE, STATUS OF IVORY IN ZIMBABWE 1997-1999 (current as of Oct. 12, 1999) (compiled by Tapera Chimuti) (on file with author). A smaller amount of ivory is recovered from poachers or unknown sources. While Zimbabwe recovered an average of five tons of ivory annually from culling alone before 1992, Zimbabwe continued to recover at least five tons of ivory per year after 1992, after culling ceased.

240. See ZmABwE PRoposAL, supra note 99, at 6.

241. See Sharing the Land, supra note 216.

242. See CAMPFIRE AssociAToN, ANNUAL REPoRT 1999-2000, supra note 214, at 4, 11.

243. Interview with Edson Chidziya, DNPWLM Terrestrial Division Chief Ecologist, at DNPWLM Headquarters, Harare (Oct. 23, 2000); interview with Tapera Chimuti, supra note 207. Chidziya said that failing to sell ivory in Zimbabwe was “tantamount to a waste of resources,” and argued that elephants are the “trump card for keeping wildlife viable outside protected areas,” meaning that elephants represent the greatest potential economic incentives to dedicate land to wildlife, and if land can be set aside for elephants, it will be secured for other wildlife as well.

244. See USAID REPORT, supra note 225; see also Hitch, supra note 62, at 193-96. 245. See Heimert, supra note 3, at 1485.

246. See Murphy, supra note 77. Zimbabwe’s total benefit was more than twice this level, with a greater amount of funds devoted directly to elephant conservation programs. See supra notes 80, 83.


* Associate, Arnold & Porter environmental group, Washington, D.C. J.D., Columbia University School of Law; B.A., Dartmouth College. The author researched elephant management by the Kenya Wildlife Service during a semester of study based at the University of Nairobi in 1996, and has traveled throughout East and Southern Africa. The author extends thanks to all who lent their time to assist his research, especially Hamisi Mutinda, research biologist with the Kenya Wildlife Service in 1996, now with the African Wildlife Foundation, and to all those involved with Dartmouth’s programs in Africa.

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