Trial in Absentia in Wildlife Trafficking Cases

1. The Problem

The pattern is familiar to anyone who has monitored wildlife prosecutions in Kenya. A seizure is made — a container of ivory at Mombasa, a consignment of rhino horn at JKIA. Low-level actors are arrested: the clearing agent, the driver, and the porter. Investigation eventually identifies the organiser. Charges are laid. The organiser is admitted to bail. And then, somewhere between the third and the eleventh mention, he stops appearing.

What follows is attrition. The file is adjourned repeatedly pending execution of a warrant. Witnesses lose interest or become unavailable. Exhibits deteriorate or disappear. The co-accused, who are present and who are the least culpable participants, are convicted and sentenced while the principal remains at large. Years later, the file is either quietly closed or the accused is rearrested, and the prosecution must reassemble a case whose evidentiary foundations have eroded.

The instinctive prosecutorial response is to ask whether the trial can simply proceed without him. This article addresses that question — and argues that while the answer is a qualified yes, trial in absentia is neither the strongest nor the most reliable tool available, and that the prosecution's better strategy lies in a cluster of adjacent mechanisms that are underused in Kenya and that international instruments on illegal wildlife trade expressly contemplate.

The argument proceeds in three movements. First, that Kenya's constitutional architecture permits trial in absence more narrowly than practitioners often assume, because Article 25(c) removes the ordinary limitation analysis. Second, that comparative authority — properly read — cuts against using the seriousness of wildlife offences as a reason to proceed in absence, which is precisely the argument prosecutors are most tempted to make. Third, that the international IWT framework, particularly UNCAC Article 54(1)(c), points toward asset-focused and evidence-preservation responses rather than in absentia conviction.

2. The Kenyan Constitutional Framework

2.1 The text

Article 50(2)(f) confers on every accused person the right:

"to be present when being tried, unless the conduct of the accused person makes it impossible for the trial to proceed."

The internal qualifier is the whole battleground. Note first what it is not: it is not a general public-interest exception, not a seriousness exception, and not a flight exception in terms. It is a conduct exception, and the conduct must render the trial's continuation impossible.

The drafting history matters here. Section 35(3)(e) of the South African Constitution, on which much of Kenya's Article 50 is modelled, confers simply the right "to be present when being tried," without qualification, leaving the exceptions to ordinary limitation analysis and to section 159 of the Criminal Procedure Act 51 of 1977. Kenya's drafters added an express internal qualifier. That choice is capable of two opposite readings, and both are respectable:

a. The narrow reading. The qualifier codifies the Illinois v Allen situation — the accused who disrupts proceedings so persistently that the trial cannot continue with him in the room. On this reading, "conduct" means conduct in the proceedings, and absconding falls outside it entirely.

b. The broad reading. "Conduct" is unqualified as to location. Voluntary flight is conduct. If the accused's flight makes it impossible for the trial to proceed with him present, the exception is engaged. On this reading, the drafters supplied an express textual basis for an in absentia trial that South Africa lacks.

In Kenya, practitioners advancing the broad reading should expect to argue it from first principles and should anticipate the contra proferentem instinct that courts apply to exceptions from fair trial guarantees.

2.2 Article 25(c)—the constraint that changes everything

This is the point most often missed.

Article 25 provides that despite any other provision in the Constitution, certain rights "shall not be limited," and Article 25(c) lists "the right to a fair trial."

The consequence is structural. In most comparator jurisdictions—the United Kingdom under the Human Rights Act, South Africa under section 36, and Canada under section 1—a fair trial right may be limited where the limitation is demonstrably justified in a free and democratic society. Prosecutors in those systems often argue that the public interest in prosecuting serious organised crime justifies a proportionate incursion on the right.

That argument is not available in Kenya. Article 24's limitation clause cannot reach a right listed in Article 25. The Supreme Court has affirmed the non-derogable character of the fair trial right, and the practical effect is that any in absentia trial must be justified internally, within the four corners of Article 50(2)(f), and not as a reasonable and justifiable limitation on the right to be present.

This is a significant discipline. It means: 1. The prosecution must instead demonstrate that the accused's own conduct triggered the exception the Constitution itself supplies. 2. The remainder of Article 50(2) continues to apply in full to any in absentia proceeding — including 50(2)(g) (representation by an advocate of choice), 50(2)(h) (assigned advocate at State expense where substantial injustice would otherwise result), 50(2)(j) (advance notice of evidence) and 50(2)(k) (to adduce and challenge evidence).

Point 2 has an important corollary developed at Part 4.3 below: An in absentia trial in which the absent accused is denied representation is doubly unconstitutional, and this is the single most common way such proceedings fail on appeal internationally.

2.3 Other relevant constitutional provisions

Provision

Relevance

Article 2(5)–(6)

General rules of international law, and treaties ratified by Kenya, form part of Kenyan law. This is the gateway for the ICCPR, UNTOC, UNCAC, CITES and the CBD.

Article 42, 69, 70

Right to a clean and healthy environment; the Article 69(1)(a) duty of sustainable exploitation and conservation; the Article 69(1)(h) duty to eliminate processes and activities likely to endanger the environment. Grounds the public interest in wildlife enforcement.

Article 50(1)

Fair and public hearing.

Article 50(2)(e)

Trial to begin and conclude without unreasonable delay — the accused's own right, but also the interest that indefinite adjournment pending a warrant defeats, particularly for co-accused who are present.

Article 50(4)

Exclusion of evidence obtained in a manner that violates rights.

Article 50(9)

Legislation for victims of offences — the Victim Protection Act, 2014.

Article 157(11)

The DPP must have regard to the public interest, the interests of the administration of justice, and the need to prevent and avoid abuse of the legal process.

Article

Justice without undue regard to procedural technicalities — but this cannot be

159(2)(d) used to erode a non-derogable right.

2.4 The co-accused problem

Article 50(2)(e) deserves separate emphasis because it reframes the question. Where a principal absconds, and the trial is adjourned indefinitely, the persons whose rights are most immediately violated are the co-accused who did appear — typically the least culpable participants, often in custody, whose trials are suspended pending the apprehension of someone else.

This supplies an argument for proceeding that is stronger and constitutionally cleaner than the seriousness argument: the court should either sever and proceed against those present or proceed in absence against the absconder, because the alternative is an open-ended violation of the present accused's own Article 50(2)(e) right. Severance is the more orthodox route and should ordinarily be sought first.

3. The Kenyan Statutory Position

3.1 The Criminal Procedure Code

The CPC (Cap 75) contains the machinery that actually governs most of what happens when an accused absconds, and it is more permissive than the constitutional analysis alone would suggest. Section 206 of the Criminal Procedure Code (Cap 75) of Kenya, which deals with the non-appearance of parties after adjournment. Under this provision, if an accused person fails to attend court on the specific date and time to which their hearing has been adjourned, the subordinate court has the legal discretion to continue with the trial in their absence under specific conditions.

Continuation after plea. The relevant provision permits the subordinate court, in defined circumstances, to proceed with the hearing or further hearing as if the accused were present and separately preserves the power to issue a warrant. Practitioners should read this provision closely and in its current amended form: it is the strongest existing statutory foundation for continuing a part-heard trial in the accused's absence, and it aligns Kenya with the international mainstream (see Part 4).

The critical distinction is before or after commencement. Every developed system draws the same line. Proceeding in the absence after the trial has begun and the accused has voluntarily absented himself is widely accepted. Commencing a trial against an accused who has never appeared is a different matter and is prohibited or severely restricted almost everywhere, for the elementary reason that a person who has never appeared may never have been properly notified, and waiver cannot be inferred from silence. Kenyan practice should hold this line rigorously.

Proclamation and attachment. The CPC contains provisions, inherited from the same Indian Criminal Procedure Code lineage as sections 82 and 83 of India's CrPC 1973, permitting the court to publish a written proclamation requiring an absconding person to appear at a specified place and time and to order attachment of that person's property. These provisions are markedly underused in Kenyan wildlife practice. They should be the automatic first step on absconding, not an afterthought: they create a formal judicial record of the flight (which matters enormously to any later waiver argument), and they place the absconder's assets under judicial control while the criminal process runs.

Bail and bond. The Bail and Bond Policy Guidelines issued through the National Council on the Administration of Justice govern cancellation of bail, forfeiture of bond and enforcement against sureties. Rigorous enforcement against sureties in wildlife cases — including actual recovery, not

merely an order — is one of the few practical deterrents to organised absconding and is inconsistently pursued.

3.2 The Wildlife Conservation and Management Act, 2013

The WCMA's enhanced penalty regime does more than punish. Because its principal trafficking offences carry maximum penalties well above four years' imprisonment, they satisfy the definition of "serious crime" in Article 2(b) of UNTOC — an offence punishable by a maximum deprivation of liberty of at least four years. That classification is not academic. It is the key that unlocks the UNTOC cooperation architecture described in Part 5, including extradition under Article 16, mutual legal assistance under Article 18, and confiscation and international cooperation for confiscation under Articles 12 and 13.

Kenyan prosecutors should plead and argue this classification expressly in any case with a transnational dimension. It is frequently omitted.

The WCMA also provides for forfeiture of trophies, vehicles, vessels, aircraft and equipment used in the commission of offences. Forfeiture provisions that operate on conviction are of no use against an absconder; this is precisely why the non-conviction-based route in Part 6.2 matters.

3.3 Proceeds of crime and financial tools

a. Proceeds of Crime and Anti-Money Laundering Act, 2009 (as amended, including by the 2023 amendments enacted in response to Kenya's FATF grey-listing) — establishes the Asset Recovery Agency and provides for both conviction-based and civil (non-conviction-based) forfeiture, through preservation orders followed by forfeiture orders on the civil standard of proof. This is the most important underused tool against absconding wildlife traffickers in Kenyan law.

b. Prevention of Organized Crimes Act, 2010 — organised criminal group offences, applicable to trafficking networks.

c. Mutual Legal Assistance Act, 2011 — the domestic vehicle for incoming and outgoing MLA requests.

d. Extradition (Contiguous and Foreign Countries) Act (Cap 76) and Extradition (Commonwealth Countries) Act (Cap 77).

e. Witness Protection Act, 2006 — the Witness Protection Agency, relevant because networks that can arrange an absconding can also reach witnesses.

4. Comparative Authority

Kenyan courts routinely draw on comparative jurisprudence, and Article 2(5)–(6) makes international human rights standards directly relevant. The material below is organised by the proposition it supports.

4.1 Trial in absentia is not per se a violation of fair trial rights.

Human Rights Committee, General Comment No. 32 (2007) on Article 14 ICCPR is the authoritative starting point. It states that proceedings in the absence of the accused may in some circumstances be permissible in the interest of the proper administration of justice—for instance, where accused persons, although informed of the proceedings sufficiently in advance, decline to exercise their right to be present. Because Kenya has ratified the ICCPR, Article 2(6) makes Article 14 part of Kenyan law and General Comment No. 32 the natural interpretive aid.

Mbenge v Zaire (HRC Communication No. 16/1977) is the corresponding limit: an in absentia conviction violated Article 14 because the accused had not been properly summoned and had not been informed of the proceedings in sufficient time. Notice is the hinge. Sejdovic v Italy [GC], ECtHR App. No. 56581/00 (1 March 2006) is the leading modern statement. The Grand Chamber held that trial in absentia is not incompatible with Article 6 of the ECHR provided the accused can subsequently obtain a fresh determination of the merits of the charge, in both fact and law, by a court that has heard him. Crucially, waiver of the right to be present must be established in an unequivocal manner and attended by minimum safeguards commensurate with its importance; it cannot be inferred merely from the accused's status as a fugitive.

Colozza v Italy, ECtHR (12 February 1985), is to the same effect: the State bears the burden of showing that an untraced accused unequivocally waived his right. Application to Kenya. The Sejdovic framework is directly usable, but it produces an uncomfortable result for prosecutors, addressed at Part 4.4.

4.2 Voluntary absence after commencement constitutes waiver.

United Kingdom. R v Jones (Anthony William) [2002] UKHL 5 is the leading common law authority. The House of Lords confirmed that a court has a discretion to commence or continue a trial in the absence of a defendant who has voluntarily absconded, but that the discretion must be exercised "with great care and only sparingly." Lord Bingham endorsed the checklist set out by the Court of Appeal in R v Hayward, Jones and Purvis [2001] EWCA Crim 168, which includes the nature and extent of the defendant's behaviour in absenting himself; whether an adjournment might result in his attendance; the likely length of any adjournment; whether the

defendant is legally represented; the extent of disadvantage to the defendant in not being able to give his account; the risk of the tribunal of fact reaching an improper conclusion from the absence; the public interest in trials taking place within a reasonable time; the effect of delay on witnesses' recollection; and, where there are co-defendants, the undesirability of separate trials.

United States. Federal Rule of Criminal Procedure 43(c)(1)(A) provides that a defendant waives the right to be present when he is voluntarily absent after the trial has begun. Diaz v United States, 223 U.S. 442 (1912) and Taylor v United States, 414 U.S. 17 (1973) establish that voluntary flight during trial constitutes waiver. Illinois v Allen, 397 U.S. 337 (1970) addresses the disruptive defendant.

Crosby v United States, 506 U.S. 255 (1993) supplies the limit, and it is a hard one: Rule 43 does not permit trial in absentia of a defendant who is absent at the commencement of trial. The Supreme Court reasoned that the language of the rule and the practical difficulty of establishing knowing waiver before any appearance both foreclosed it. This is the clearest comparative authority for the before/after commencement line drawn at Part 3.1.

South Africa. Section 159 of the Criminal Procedure Act 51 of 1977 permits continuation in the accused's absence where his conduct renders continuation in his presence impracticable, read against the section 35(3)(e) right.

India. Sections 82 and 83 of the CrPC 1973 provide for the proclamation and attachment of the property of an absconder, and are the direct ancestors of Kenya's equivalent provisions.

4.3 Even a fugitive must be permitted representation

This proposition is unanimous across jurisdictions and is the most frequent basis on which in absentia convictions are set aside.

Krombach v France, ECtHR App. No. 29731/96 (13 February 2001) held that the refusal to allow defence counsel to represent an absent accused violated Article 6(1) and 6(3)(c). Poitrimol v France, ECtHR (23 November 1993) and Van Geyseghem v Belgium [GC], ECtHR (21 January 1999) are to the same effect: denying representation as a sanction for non-appearance is disproportionate, however unmeritorious the accused's conduct. Medenica v Switzerland, ECtHR (14 June 2001) found no violation precisely because the accused, though responsible for his own absence, had been represented.

In Kenya this is not merely persuasive. Article 50(2)(g) and (h) survive the Article 50(2)(f) exception intact, and Article 25(c) precludes limiting them. Any Kenyan in absentia proceeding must therefore have defence counsel in place — instructed if the accused's existing advocate

retains instructions, and is assigned at State expense where substantial injustice would otherwise result. A Kenyan court that proceeds in absence with no defence representation is producing a conviction that will not survive appeal.

4.4 The retrial paradox

Sejdovic requires that an in absentia conviction be reopenable at the accused's instance unless unequivocal waiver is established. The Special Tribunal for Lebanon — the most significant modern experiment in in absentia international criminal justice — built this expressly. Article 22 of the STL Statute permitted a trial in absentia where the accused had expressly waived the right to be present, had not been handed over by the State authorities concerned, or had absconded or could not be found, subject to the assignment of defence counsel and to a right to retrial in the accused's presence unless he had accepted the counsel who defended him. Prosecutor v Ayyash et al. proceeded entirely in absentia to judgment in August 2020.

The paradox this creates for prosecutors is the analytical centre of this article and should be confronted directly. If the in absentia conviction is reopenable on the accused's later apprehension, then it does not finally dispose of the case. The prosecution will have to try the matter again, with witnesses now years older and a record already publicly ventilated. If it is not reopenable, it is very likely to be struck down on appeal as inconsistent with Article 50 and with the ICCPR standards imported by Article 2(6).

The realistic value of an in absentia conviction is therefore not finality. It is evidence preservation, asset consequences, and international cooperation leverage. Which raises the obvious question: are there tools that deliver those outcomes directly, without the constitutional exposure? Part 6 argues that there are.

4.5 Evidence preservation without trial — two models

India, CrPC section 299. Where it is proved that an accused has absconded and that there is no immediate prospect of arresting him, the competent court may, in his absence, examine the witnesses produced on behalf of the prosecution and record their depositions. Those depositions may, on the accused's later arrest, be given in evidence against him if the deponent is dead, incapable of giving evidence, cannot be found, or his presence cannot be procured without unreasonable delay or expense.

This is not a trial. It is a preservation mechanism, and it is calibrated: the depositions become admissible only on proof of subsequent unavailability. Given the shared CrPC lineage, this is the most transplantable model available to Kenya, and its absence from the Kenyan Code is a genuine gap that a targeted amendment could close.

ICTY, Rule 61. Where an arrest warrant had not been executed, the Tribunal could convene a public hearing at which the prosecution presented its indictment and supporting evidence in open court. The chamber could then confirm the indictment and issue an international arrest warrant. No conviction resulted and no fair trial right was engaged, because nothing was determined against the accused. The hearing served to place the evidence on the public record, to internationalise the warrant, and to create diplomatic pressure on the sheltering State. The Rule 61 hearings concerning Nikolić and others illustrate the mechanism.

Nuremberg. For completeness: Martin Bormann was tried, convicted and sentenced to death in absentia by the International Military Tribunal, Article 12 of the Nuremberg Charter having expressly authorised trial in absentia. The precedent is historically significant but methodologically unhelpful — it predates the ICCPR and reflects standards no contemporary court would apply.

By contrast, the ICC rejects the model. Article 63(1) of the Rome Statute provides flatly that "the accused shall be present during the trial," with Article 63(2) permitting only removal for disruption. Article 61(2) allows confirmation of charges in the accused's absence in limited circumstances. Kenya is a State Party to the Rome Statute and has domesticated it through the International Crimes Act, 2008. A Kenyan court asked to develop the law in this area will notice that the most recently constituted permanent international criminal court declined to adopt in absentia trial at all.

4.6 The point that cuts against the prosecution

This must be stated plainly because it goes directly to the premise of the request.

The tenth Hayward factor was the seriousness of the offence. In R v Jones, Lord Bingham expressly declined to endorse it, taking the view that the seriousness of the charge should not be a relevant consideration in deciding whether to proceed in a defendant's absence. The reasoning is that the graver the charge, the graver the consequences of an erroneous conviction, and the more — not less — important the defendant's presence becomes to the fairness of the process.

The instinct to reason, "This is a high-level wildlife trafficking case; therefore, we should be readier to proceed in the absence," is therefore precisely inverted relative to the leading common law authority. A Kenyan prosecutor advancing that argument should expect it to be met with Jones, and should have an answer that does not depend on gravity.

The available answer is the one identified at Part 2.4: proceed not because the offence is serious but because the co-accused's Article 50(2)(e) rights are being violated by indefinite adjournment and because the absconder's own conduct triggered the Article 50(2)(f) exception. That

argument is about the accused's conduct and the co-accused's rights, not about the gravity of the charge, and it is constitutionally coherent in a way the seriousness argument is not.

5. The International IWT and Biodiversity Framework

Article 2(5) and 2(6) of the Constitution make this material directly relevant, not merely rhetorical.

5.1 Instruments establishing the enforcement obligation

CITES (1973), to which Kenya is a party. Article VIII(1) obliges Parties to take appropriate measures to enforce the Convention and to prohibit trade in specimens in violation of it, including penalising trade in or possession of such specimens and providing for their confiscation or return. Resolution Conf. 11.3 (Rev.) on Compliance and Enforcement elaborates the obligation, and Resolution Conf. 10.10 (Rev.) governs trade in elephant specimens and underpins the National Ivory Action Plan process in which Kenya has participated.

UNTOC (Palermo Convention, 2000), to which Kenya is a party: a. Article 2(b) — "serious crime" means an offence punishable by a maximum deprivation of liberty of at least four years. WCMA trafficking offences qualify. b. Article 12 — confiscation and seizure of proceeds of crime and of property, equipment and instrumentalities. c. Article 13 — international cooperation for purposes of confiscation, including giving effect to foreign confiscation orders. d. Article 16 — extradition, including the provision permitting the Convention itself to serve as the legal basis for extradition between Parties lacking a bilateral treaty. e. Article 18 — mutual legal assistance. f. Article 20 — special investigative techniques, including controlled delivery.

UNCAC (2003), to which Kenya is a party. High-level wildlife trafficking is almost invariably corruption-facilitated, so UNCAC applies squarely. Article 54(1)(c) is the single most directly relevant provision in international law to the problem this article addresses. It requires each State Party to:

"consider taking such measures as may be necessary to allow confiscation of such property without a criminal conviction in cases in which the offender cannot be prosecuted by reason of death, flight or absence or in other appropriate cases."

Flight is expressly named. The international community's considered answer to the absconding high-value offender is not in absentia conviction — it is non-conviction-based confiscation. Article 57 governs return and disposal of confiscated assets, and Articles 44 and 46 mirror UNTOC on extradition and mutual legal assistance.

FATF, Money Laundering and the Illegal Wildlife Trade (June 2020) recommends parallel financial investigation alongside wildlife crime investigation and specifically endorses non-conviction-based confiscation. Kenya's grey-listing by FATF in 2024 and the resulting legislative response make this an area of active domestic reform.

5.2 Political declarations and General Assembly resolutions

These do not bind, but they inform interpretation of the public interest under Article 157(11) and the content of the Article 69 duties.

a. UN General Assembly Resolution 69/314 (2015), "Tackling Illicit Trafficking in Wildlife," the first stand-alone GA resolution on the subject, and its successors including A/RES/70/301 (2016), A/RES/71/326 (2017), A/RES/73/343 (2019) and A/RES/75/311 (2021). These urge Member States to treat wildlife trafficking involving organised criminal groups as a serious crime within the meaning of UNTOC Article 2(b)—the classification argued for at Part 3.2.

b. The London Declaration on the Illegal Wildlife Trade (2014) and the follow-on Kasane Statement (2015), Hanoi Statement (2016) and London Declaration (2018). The 2014 Declaration commits signatories to treat wildlife trafficking as serious organised crime, to strengthen legal frameworks, and to deploy anti-money laundering and asset recovery tools.

c. African Union Strategy on Combating Illegal Exploitation and Illegal Trade in Wild Fauna and Flora in Africa (2015).

d. Lusaka Agreement on Co-operative Enforcement Operations Directed at Illegal Trade in Wild Fauna and Flora (1994), whose Task Force is headquartered in Nairobi — the most directly applicable regional enforcement cooperation instrument for Kenya.

e. Security Council practice has treated wildlife trafficking as a threat to peace and security in specific contexts, including in resolutions concerning the Democratic Republic of the Congo and the Central African Republic, where illegal exploitation of natural resources including wildlife has featured in sanctions designation criteria.

f. ICCWC (CITES, INTERPOL, UNODC, the World Bank and the World Customs Organization) and its Wildlife and Forest Crime Analytic Toolkit, together with the UNODC World Wildlife Crime Report series, supply the operational and empirical framework.

5.3 Biodiversity loss — the harm the enforcement interest protects

• Convention on Biological Diversity (1992), adopted at a conference whose Final Act was signed in Nairobi. Kenya is a party. Articles 8 (in-situ conservation) and 8(l) (regulation or management of processes and activities determined to have significant adverse effects on biological diversity).
• Kunming-Montreal Global Biodiversity Framework (2022), particularly Target 4 (halt human-induced extinction of known threatened species and recover populations) and Target 5 (ensure that use, harvesting and trade of wild species is sustainable, safe and legal).
• CMS (Bonn Convention), Ramsar, and the World Heritage Convention, the last of which is engaged where trafficking threatens the integrity of listed properties.
• African Convention on the Conservation of Nature and Natural Resources (Maputo Convention).
• IPBES Global Assessment Report on Biodiversity and Ecosystem Services (2019) — the authoritative scientific statement that around one million species face extinction, and that direct exploitation of organisms is the second-largest direct driver of biodiversity loss globally after land- and sea-use change. This is the evidentiary anchor for any submission on the gravity of the underlying harm.
• Sustainable Development Goals, particularly Target 15.7 ("take urgent action to end poaching and trafficking of protected species of flora and fauna") and Target 16.4 (reduce illicit financial flows and combat organised crime).

A caution on how to use this material. The temptation is to deploy biodiversity-loss evidence as an argument for procedural latitude — the harm is grave, therefore the court should be readier to proceed in absence. That is the Jones fallacy again, and in Kenya it is also an Article 24 argument in an Article 25 case. The proper use of this material is different: it establishes the public interest under Article 157(11), it justifies the allocation of investigative and asset-recovery resources, it supports submissions on sentence and on the quantum of forfeiture and restoration orders, and it demonstrates that Kenya's international obligations require an effective response — without dictating that the response take the form of in absentia conviction.

6. What the Prosecution Should Actually Do

The case for reframing is this: every legitimate objective a prosecutor seeks from an in absentia trial can be obtained more securely, and with less constitutional exposure, through other mechanisms.

6.1 Sever and proceed against those present

The first and most orthodox step. Where a principal absconds and co-accused are present, apply to sever. This vindicates the present accused's Article 50(2)(e) rights, secures the convictions that are available, and preserves the record. The absconder's file remains live on a warrant.

6.2 Non-conviction-based forfeiture — the primary tool

This is the mechanism UNCAC Article 54(1)(c) points to, that FATF endorses, and that Kenya already has.

Civil forfeiture under POCAMLA proceeds in rem against the property, on the civil standard, without requiring a conviction and therefore without engaging Article 50(2)(f) at all. Against a high-level trafficker whose motivation is financial, forfeiture of the proceeds is frequently a more meaningful sanction than a custodial sentence that will never be served because he is not in the jurisdiction.

The strategic implication is that the financial investigation should run in parallel from the outset, not be commenced after the accused absconds. By the time flight occurs, the assets have usually moved.

South African practice under Chapter 6 of the Prevention of Organised Crime Act 121 of 1998 provides a well-developed comparative model, considered by the Constitutional Court in National Director of Public Prosecutions v Mohamed NO 2002 (4) SA 843 (CC).

6.3 Proclamation and attachment

Use the CPC's proclamation and attachment machinery immediately on absconding. Two benefits: it places assets under judicial control pending trial, and — importantly for any later argument — it creates a formal, published judicial record that the accused was called and did not come. That record is the foundation of any subsequent submission that waiver was unequivocal within the meaning of Sejdovic.

6.4 Evidence preservation

Pending any legislative reform on the section 299 model, prosecutors should consider what can be preserved within the existing law: securing witness statements in admissible form; deploying the exceptions to the hearsay rule under the Evidence Act (Cap 80) for witnesses who later become unavailable; preserving and properly exhibiting physical and forensic evidence including DNA and isotopic provenance analysis conducted in accordance with the ICCWC ivory sampling guidelines; and documenting chain of custody to a standard that will survive a challenge mounted years later.

A legislative recommendation. Kenya should consider adopting a provision modelled on section 299 of the Indian CrPC, permitting judicial recording of prosecution witness depositions where an accused has absconded and there is no immediate prospect of arrest, admissible on later arrest only where the deponent has become unavailable. It is a narrow, well-precedented reform that addresses the actual problem — evidentiary decay — without the constitutional difficulty of in absentia conviction.

6.5 Extradition and international cooperation

Kenya's record here is better than is often assumed, and the precedents should be used. The extradition of Mansur Mohamed Surur to the United States in 2021, in the Southern District of New York prosecution of a rhino horn and ivory trafficking network alongside Moazu Kromah and others, demonstrates that transnational wildlife trafficking prosecutions can be pursued to conclusion through cooperation. The domestic history of the Feisal Mohamed Ali ivory prosecution — including his flight, apprehension abroad, return, conviction at first instance in 2016, and acquittal on appeal in 2018 — is equally instructive, and its evidentiary lessons about exhibit handling and identification are worth studying in detail.

Practical steps: INTERPOL Red Notice or diffusion; formal extradition request under Cap 76 or Cap 77, or using UNTOC Article 16 as the treaty basis where no bilateral treaty exists; MLA requests under the Mutual Legal Assistance Act, 2011, and UNTOC Article 18 / UNCAC Article 46; and, where the absconder holds assets abroad, requests for foreign restraint and confiscation under UNTOC Article 13.

6.6 Bond and surety enforcement

Actually enforce forfeited bonds against sureties, and pursue recovery to conclusion. Organised absconding depends on the calculation that the surety will not be pursued.

6.7 In absentia continuation — when it is genuinely available

Where the accused has appeared, taken plea, been fully notified of the hearing date, and voluntarily absconded mid-trial, continuation is available under the CPC and defensible under Article 50(2)(f) on the broad reading. If it is pursued, the court should:

1. satisfy itself on evidence that the absence is voluntary and that the accused had actual notice — not merely constructive notice;

2. record findings to that effect expressly on the record; 3. consider whether an adjournment might secure attendance, and record why it would not;

3. ensure defence counsel is in place and participating — instructed if possible, assigned at

State expense if necessary (Krombach; Article 50(2)(g)–(h)); 5. work through the Hayward/Jones factors expressly, excluding seriousness consistent with

Lord Bingham's qualification; 6. address whether the conviction will be reopenable on the accused's apprehension,

consistent with Sejdovic; 7. give reasons of sufficient depth to survive appellate scrutiny of a non-derogable right.

7. Summary Table

Objective

In absentia trial

Better alternative

Prevent evidentiary decay.

Partial conviction may be reopened

Evidence preservation (India CrPC s 299 model); Evidence Act unavailability exceptions

Impose financial consequence

Requires conviction and enforcement against an absent person

NCB forfeiture under POCAMLA; UNCAC Art 54(1)(c)

Secure assets pending No trial

CPC proclamation and attachment; POCAMLA preservation orders

Vindicate the

Yes

co-accused's Art

50(2)(e) rights

Severance — more orthodox

Create public record Yes, with constitutional risk ICTY Rule 61–type hearing (would

of the case

require reform)

Secure custody of the No accused

Red Notice; extradition (Cap 76/77; UNTOC Art 16)

Final disposition of the charge

No — reopenable under Sejdovic

Extradition and trial in presence

Deter future absconding

Marginal

Surety enforcement; asset restraint

8. Conclusion

Trial in absentia is available in Kenya. It is available because Article 50(2)(f) contains an express internal exception where the accused's own conduct makes it impossible for the trial to proceed, because the Criminal Procedure Code provides machinery for continuing a part-heard trial after an accused absconds, and because international human rights law—General Comment No. 32, Sejdovic, Jones, Rule 43—accepts that voluntary absence after commencement can constitute waiver.

It is narrow because Article 25(c) makes the fair trial right non-derogable, which removes the proportionality analysis on which prosecutors in other jurisdictions rely; because Crosby and the international consensus foreclose commencing a trial against an accused who has never appeared; because Krombach and Article 50(2)(g)–(h) require defence representation regardless of the accused's conduct; and because Lord Bingham's qualification in Jones denies prosecutors the very argument — gravity — that wildlife cases most naturally invite.

And it yields little because Sejdovic requires that the conviction be reopenable, which means it does not finally dispose of the charge. The prosecution that obtains an in absentia conviction has bought a public record and a symbolic outcome, and will still have to try the case again if the accused is ever produced.

The international framework governing illegal wildlife trade points somewhere else. UNCAC Article 54(1)(c) names flight expressly and prescribes not conviction in the absence but confiscation without conviction. FATF says the same. Kenya already possesses the necessary

tools in POCAMLA, the Asset Recovery Agency, the CPC's proclamation and attachment provisions, the Mutual Legal Assistance Act and the two Extradition Acts. What is missing is not authority but sequencing: parallel financial investigation from day one, immediate proclamation and asset restraint on absconding, severance to protect co-accused, rigorous surety enforcement, and early recourse to international cooperation.

For the high-level trafficker who has absconded, the realistic choice is not between conviction in absence and impunity. It is between a symbolic conviction that will have to be redone and the systematic dismantling of the financial architecture that made the trafficking profitable and the flight possible. The second is harder, slower, and considerably more effective.

The one genuine legislative gap is evidence preservation. A narrowly drawn provision on the model of section 299 of the Indian Criminal Procedure Code — judicial recording of prosecution depositions where an accused has absconded, admissible on later arrest only where the witness has since become unavailable — would address the real harm caused by absconding without touching a non-derogable right. That is the reform worth advocating.

Prepared as an information and knowledge argument. It does not constitute legal advice on any specific matter, and all constitutional, statutory, treaty and case references should be verified against current authority.