IS IT LAWFUL TO ENSLAVE THE UNCONSENTING?
BY SONNY MNCEDISI DUBE
It is one usual sombre noon, Zebra who lives in NovemberMan National Park is getting a feel of the weather, practically one of his favourite pastimes. Whilst Zebra is sharing his majestically decorated natural outfit with the environment, Donkey his friend who lives across the fence passes by, laden with load and his master’s whip spitting volumes of pain on his back. Zebra jovially waves at Donkey, a wave which gets in return a subdued nod and Zebra quickly gets the picture that his friend is super-busy hence play and chat time will be later than usual, not that Donkey plays or talks anyway. Donkey is usually quiet, his eyes teary but he is at least man enough to never let the tears decorate his cheeks. Thinks Zebra. In a split second Zebra sadly recalls one of the stories Donkey told him in their usual late night buddy chat after Zebra having convinced him to unburden his heart. Donkey gave a lengthy mumble about his master overworking him, even when he is not feeling well and using the whip as his only way of what he deems clear communication, but he managed to utter one thing clear, at least in Zebra’s ears. It was in form of a question and it echoed the following, ‘to help and to work is a divine instinct of mine but IS IT LAWFUL TO ENSLAVE THE UNCONSENTING’. This question Zebra least expected from Donkey and he was shocked to the core but although he had neither the tiniest idea of what or what not constitutes unlawfulness, he could not imagine that his unconsenting friend’s plight, a plight that ended up taking his life in the most sadistic manner would escape the definition of unlawfulness. This question he pondered in his heart throughout the span of his friendship with Donkey. He then met and told MR MHUKA the zoologist whom I was then lucky enough to get this question from and it also struck me as not only intriguing but also requiring interrogation.
Is it Lawful to Enslave the Unconsenting? An Interrogation
The above story concisely captures the lamentations of a working animal in form of a Donkey. As far as animal rights and animal law activism is concerned, working animals whom we might deem safe from poaching have always known the cruellest of abuses; that is “overworking, neglect and abandonment” to mention just a few. Captive animals are also subjected to torturous and irksome discomforts which totally contrast the comforts of their natural habitats. To put it bluntly the above mentioned unconsenting beings endure constant enslavement, the gravity of which society not only underplays but turns a blind eye on like it’s nobody’s business. In the same vein it is judicious to acknowledge the single fact that in Africa and other like third world states, animal rights activism has been a concept unpopular until recent expanse awareness campaigns and conscientisation by animal advocates and different environmental organisations. The question that a substantial sector of society still grapple to date is whether or not it is lawful to enslave the unconsenting nonhuman animals. This burning question is one which the ensuing piece seeks to succinctly address.
As a point of commencement, it sounds bizarre to a conventional youth to even talk of animal rights, this can be traced to the basics of throwing a stone and hitting an animal, nothing is said to be out of the usual here. This aimless torture, sometimes done without the conscious contemplation that it’s a pain inflicting act or sometimes done consciously but rather without regard to its implications, is in fact animal abuse in its infancy. These seemingly simple but subtle acts are in most traditional and even non-traditional societies not unusual, they are something close to custom. This emanates from the society’s perception of animals as personal property, objects over which they have dominion to use, enjoy and dispose of, just like any other piece of property. The society’s view in this regard is unmistaken, animals can indeed be traced back to history as constituting both public and private property. In the historical Roman societies and under Roman-Dutch law which constitutes a substantial part of Zimbabwe’s common law animals were res nullius,[1] with ownership only claimable upon captivity and domestication. These legal principles live to this day as our animals still fall under property category and are subject to man’s proprietary rights.
One pertinent point would be to point out that at law consent is a central tenet in any act(s) or any relationship be it contractual or not. For natural and juristic persons, consent can either be express or implied whilst with the latter category consent also takes either of the aforementioned forms but by a representative or a group of persons representing it. It thus at this juncture suffices to note that animals are by law excluded from the legal equation of persons, hence they are exempt from most of the privileges and rights that the law bestows upon both natural and juristic persons. It is also at this instance clear that the law says little or nothing about the consent of nonhuman animals. It becomes rightly placed to call them unconsenting beings. They are unconsenting to being overworked, neglected, ill-beaten, overridden etc. This digest emphasizes that despite the exclusion of animals from legal personhood, both societal and jurisprudential perceptions must shift from objectifying them[animals] to acknowledging their sentience as beings that can also perceive sensation. Animal law activism drives this objective to inspire jurisprudences to be more accommodative of animal interests more than is the current situation. It is therefore against the aforesaid background that the same movement questions the lawfulness of animal abuse by humanity.
Cruelty on Domestic Animals
Working animals are man’s best friend, yet are treated as if they are his worst enemy. Study has shown that there are an estimated over 43 million working donkeys in the world.[2] In semi-urban and largely in rural areas working animals are in the literal sense mans’ wheels to and fro their desired destinations. Cattle not only provide income and food in form of milk and meat but are also at the centre of subsistence farming. The mouldboard plough needs pulling and it gets tiresome eventually, but the whip works its way to their backs, a weirdest form of motivation but one requiring compliance and obedience. Donkeys endure the same plight and moreso drag a cart full of God knows what load man sets his mind on that particular day. Working horses are not immune to this plight, they too like Donkeys do carry the sick to and fro hospitals, the children to and fro schools you name it, yet nobody seems to care enough to think that their health and wellbeing too matters.
Working animals are most of the time overworked, hence falling and getting injured during the course of their work, some are driven whilst they are pregnant and some are blighted by infirmities that require veterinary attention from time to time, but they rarely get to see the doctor. Animals too need to see the Doc just like you too. A big joke to some I know but that’s some bittersweet truth that humanity needs to inevitably embrace. The author is not at this instance outrightly challenging man’s lawful hold over his property but rather implores that the sentience of these beings need be heeded with religious vigour. Animals unlike our furniture do think and feel, and this fact alone should motivate humans to cease from treating them as lifeless objects whilst they are the most amicable beings mother nature could ever offer. The recklessness with which these creatures are treated is in most cases cause for their early death, their souls eventually capitulate to human torture, torturous acts which humans regard as normative natural practice.
Cruelty on Captive Animals
As alluded to earlier above, captive animals are robbed of the comforts of their natural habitats and are subjected to lifelong cruelty and torture at the hands of humans and self-indulgent aestheticians. Qualitative data have always shown that zoos are hubs of animal cruelty and inhumane treatment. The Zimbabwean baby elephant Xiaofei which was sold to China in 2012 was in 2017 reported to be still confined in isolation in the Taiyuan zoo.[3] Separation of baby elephants from their mothers before they are weaned and their capture in general Joyce Poole who is a co-founder of ElephantVoices highlights that "For elephants, being held captive for decades in a circus or in the majority of the world's zoos is gruesome. It's a fate worse than death." [4]
The world darling Canadian elephant Lucy has been in solitary confinement at Edmonton Valley zoo for all her life since 1977, the creature is now 45 years old. A synopsis on SaveLucy.ca reveal that …. elephants require very large spaces, complex terrains, pasture, activities that keep them physically and mentally stimulated, a proper social environment and an appropriate climate that allows them to be outdoors most of the time….and Lucy’s life is deficient of the aforementioned comforts and more to being isolated she is forced to live in Edmonton’s long cold winters.[5] In addition the Elemotion Captive Philosophy reveal that animals in captivity, elephants in particular, endure a list of disorders including foot and nail disorders, chain cut wounds, physical abuse, stereotypy and psychological issues resulting from rigorous taming processes in an endeavour to break the animal’s wild spirit.[6] This unmasks the horrors of enslavement of unconsenting beings as rampant and not only limited to domestic and working animals but also extending to captive ones.
In the wake of rampant African elephant exports, Patricia Awori of the African Elephant Coalition (AEC) Secretariat, a coalition of 29 countries that has proposed a ban on the export of African elephants outside their natural range, said “The essence of being an elephant is that they live, function within and are shaped by their environment. Foraging for and consuming food, rolling in the mud, and frolicking with its siblings is an essential part of being an elephant. An elephant that ceases to be wild ceases to be.”[7]
A Brief Background of Animal Cruelty Legislation
Laws have long been put in place in this domain with Anti-cruelty laws having become part and parcel of a greater number of global jurisprudences and they are a remarkable step towards protecting animals from inhumane treatment. The earliest anti-cruelty laws in history date back to the United Kingdom’s Cruel Treatment of Cattle Act of 1822 popularly known as Martin’s Act after Richard Martin an MP cum an animal rights activist who vigorously pushed for its promulgation in the Parliament.[8] Later in the United States’ similar laudable developments followed in the later 1860s where the New York Legislature passed the first effective law against animal cruelty. Henry Bergh also founded the American Prevention of Cruelty to Animals before long in 1867.[9] These historical legal developments were foundational for global anti-cruelty laws that ensued after, with modern legal frameworks in the animal welfare domain to date still following suit with necessary modifications. One notable and laudable recent development is Cuba approving Animal Welfare law[10] which despite being substantively wanting and coming later than anticipated, is a remarkable first step towards addressing cruelty to animals still in the Cuban plateau.
Local Efforts in Brief
Societies for Prevention of Cruelty to Animals now pervade almost all global jurisdictions, African states included. In Zimbabwe the presence of the Zimbabwe National Society for the Prevention of Cruelty to Animals [11] is notable through its conspicuous work across the country which include rescuing of trapped and abandoned animals, ensuring humane treatment of regulated problem animals and alleviating animal suffering by all means necessary to mention just a few.
To narrow the narrative closer to home, Zimbabwe’s anti-cruelty laws scanty and obscure they may be, but are worth the mention as far as this topical issue is concerned. The Prevention of Cruelty to Animals Act (PCA Act)[12] is one such legislation and it defines an animal as any kind of domestic vertebrate animal or any kind of wild vertebrate animal in captivity or the young of either of the aforementioned category. This Act therefore applies to both domestic animals [ including livestock and pets] and wild animals that have been taken captive. As far as cruelty to animals is concerned, the PCA Act in section 3 clearly stipulates that any person who cruelly beats, kicks, ill-treats, overrides, overdrives, overloads or tortures any animal or causes any animal to so treated shall be guilty of an offence.[13] The aforesaid criminal offence(s) attract liability to a fine not exceeding level five or to imprisonment for a period not exceeding six months or to both such fine and such imprisonment.[14] In terms of SI 25 of 2021[15] a level 5 fine translates to a fine amounting to ZWL$30000 which also translates to three thousand (300)US dollars. This upward review of fines is remarkable and the aforesaid amount is justified to deter would be offenders from perpetrating cruelty on animals. Having unpacked the law relating to animal cruelty, one can testify that such cruelty is prevalent in society and perpetrators are either unconscious to the illegalities attached to such acts or merely overlook them.
A lamentable loophole in the above PCA Act is the presence of terms such as ‘unnecessary suffering’, unreasonable suffering’[16] which are not definitive and are left to the courts’ discretion to ascertain the degree of suffering which it might deem ‘unnecessary’ or ‘unreasonable’ as per case basis. This also reveals that the legislature leaves room for ‘necessary’ or ‘reasonable’ suffering which in the literal sense means that animals have to endure some degree of suffering as long as it falls within the necessity bracket. This still echoes total human dominion over animals, a notion which conflicts with the full protection of animals from abuse. One other problematic legislative turn in our jurisdiction as in many others is the lack of a proper legislative framework for private persons to institute an action challenging cruelty perpetrated on animals. This leaves state prosecution at the centre of exercise of its discretionary powers whether or not to prosecute and animal cruelty cases are usually let to slide and trivialised in the process.
As pointed out above that our legislation outlaws the aforesaid forms of cruelty, the secondary step that remains is to conscientise the public domain that animal cruelty is a prosecutable offence. The conscientisation process must not be merely limited to instilling in the public the fear of the legal consequences of such acts but must extend to completely transforming societal perception of animals, to stimulate society to accord humane treatment to animals in essence. To truthfully put it, society is oblivious and unalive to animal cruelty issues hence a need for rigorous awareness campaigns that are primarily premised at bringing these issues to region-wide if not global attention.
As is usually the case morality and the law rarely coincide but I must admit that the call to outlaw the enslavement of unconsenting nonhuman animals is both a moral and a legal one. It is immoral to drive/ride a diseased animal or a pregnant animal, to overload any animal and to do many other like despicable deeds. It is also these immoral acts that our jurisprudences deem unlawful and punishable as indicated above. Noteworthy is the fact that despite animals still falling under public and private property and despite jurisprudences not according them rights or personhood as of yet, it is unlawful to perpetrate on animals the aforesaid forms of cruelty still. David Favre[17] propounded the concept of animals as living property as an ideal status for animals in the legal system. Unlike Gary L Francione[18] who takes an abolitionist stance of total non-use and non-ownership of animals, David Favre postulates that animals [ such as pets and domestic animals] will still remain under their owner but with certain expanse interests enshrined in the legal system; this status he calls living property and emphasises that it is the best way animals can be protected against certain cruelties and inhumane treatment[19]
In the final analysis, it is apparently clear from the above digest that it is both unlawful and immoral to enslave the unconsenting beings. The above digest also brings to fore the fact that despite the global jurisprudences not yet according legal personhood to animals, maltreatment, neglect and many other like uncouth acts perpetrated on animals are unlawful and punishable as per the Anti-cruelty laws [though uniquely on country jurisprudence basis] and other incumbent global and local laws protecting animal welfare. One other significant factor which this digest is emphatic throughout its concise span is that societal perception of animals must shift from proprietary inclinations to acknowledging the reality that animals are sentient beings which deserve humane and decent treatment.
BIBLIOGRAPHY
Articles
Favre D S, Living Property: A New Status for Animals in the Legal System 2010, Faculty Publications, Michigan State University College of Law
Francione G L, Animals-Property or Persons? 2004 Rutgers Law School (Newark) Faculty Papers.
News articles
https://en.wikipedia.org/wiki/Zimbabwe_Society_for_the_Prevention_of_Cruelty_to_Animals
Books
Scott S, Law of Property [ University of South Africa] 2016, University of South Africa
Legislation
Prevention of Cruelty to Animals Act [Chapter 19:09]
Criminal Law (Codification and Reform) (Standard Scale of Fines), Notice 2021/ SI 25 of 2021
Cruel Treatment of Cattle Act of 1822(3 Geo. IV c. 71) [United Kingdom]
Websites
[1] Scott S, Law of Property [ University of South Africa] 2016, University of South Africa
[3] https://www.theguardian.com/environment/2017/apr/06/secret-footage-obtained-of-the-wild-elephants-sold-into-captivity-in-chinese-zoos
[4] Joyce Poole as quoted https://www.nationalgeographic.com/science/article/141217-zimbabwe-china-elephants-zoos-tuli-botswana-south-africa
[7] Patricia Awori as quoted in https://www.theguardian.com/environment/2016/dec/23/zimbabwe-ships-live-elephants-to-wildlife-parks-in-china
[8] Favre D S, Living Property: A New Status for Animals in the Legal System 2010, Faculty Publications, Michigan State University College of Law
[9] ibid
[10]https://www.reuters.com/article/us-cuba-politics-animalrights/cuba-approves-animal-welfare-law-after-civil-society-pressure-idUSKBN2AR0GM?il=0
[12] Prevention of Cruelty to Act [Chapter 19:09]
[13] ibid
[14] Supra PCA Act Section 3
[15] Criminal Law (Codification and Reform) (Standard Scale of Fines), Notice 2021/ SI 25 of 2021
[16] Prevention of Cruelty to Act [Chapter 19:09]
[17] Favre D S, Living Property: A New Status for Animals in the Legal System 2010, Faculty Publications, Michigan State University College of Law
[18] Francione G L, Animals-Property or Persons? 2004 Rutgers Law School (Newark) Faculty Papers.
[19] Supra Favre D S.
ACKNOWLEDGEMENTS
I would like to pass my sincere gratitude to Speak Out For Animal's Advocate Astonia T Mwanjira for the necessary and utmost guidance through and through.
ABOUT THE AUTHOR
SONNY MNCEDISI DUBE is an LLBS Student at The University of Zimbabwe; A member of Speak Out for Animals Student Chapter and a Freelance Writer amongst other things.
sonnymncedisi@gmail.com
0718533598
© The NovemberMan
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