Do animals have legal rights? A Contemporary Analysis

Do animals have legal rights? A Contemporary Analysis

The Constitution of Kenya promulgated in 2010 provides extensive protection of the rights of both domestic and wild animals. Equally, the Holy Qur’an and various Hadith contains obligatory provisions of keeping and treating animals and protecting them from unnecessary suffering

By Abduljabar I. Hussein

Many years has lapsed since societal recognition of the fact that not only human beings posses several rights but also nature should have some rights too. Legislations have been enacted in many country and regions of the world in 19th century. It was only at the turn of the 21st century that animal law started gaining prominence as a legal disciple. The application, however, is not distributed consistently across the world. 

Animal rights, conventionally, could take one of two forms. The first option would place all animals in a single category and provide them with a specific protection with intent of improving the status of Animals. Along this lines, modern states has reached agreements among its self to protect all animals and respect then “ as sentient being”.

The other forms of protecting animals’ legal rights would to organize animals into groups, possibly by species membership, and then grant each and every group a specific rights or benefits appropriate to such groups.  A hybrid of these two approaches has been favored by Favre, who suggests that all animals should be placed into a new category called “living property” that would be added to the existing categories of real, personal, and intellectual property. The rationale behind this distinction is that, as a living property, Animals would hold equitable title over themselves, although humans could continue to hold legal rights. Within category of living property, animals would be organized into groups and rights allocated accordingly.

In Kenya, the main animal protection legal rights are set out in the Constitution of Kenya promulgated in 2010. It provides extensive protection of the rights of both domestic and wild animals. More particular, Chapter 5 which obligates the state to protect biodiversity and further the Fourth Schedule explains the roles of the two levels of government in promoting animal welfare. The national government is responsible for protection of wild animals in conservation areas while the county governments are mandated to seeing the welfare of domestic animals including livestock and pets.

In 2012 the Kenyan Parliament enacted Prevention of Cruelty to Animals Act 2012, the provisions of this Act constitutes the revised version of the earlier law passed in 1983. Other legal protection of Animal is also found in Kenyan’s Wildlife Conservation and Management Act No. 47 of 2013 and also in Penal Code cap 63.

Each of the main statutes set out a list of cruelty offences. Most important are the offence of ‘ cruel-ill-treatment’ and offence of ‘causing unnecessary suffering’ by wanton, unreasonable or willful conduct. Despite their disparity in wording, both cover much the same ground, imposing a duty not to inflict unnecessary suffering as well as a duty of care to prevent or alleviate unnecessary suffering.

The remaining offences are concerned with specific conducts or activities: (i) failure to supply sufficient food or water; (ii) confine, convey, lift or carry an animal in such a manner or position which it unnecessary pain or suffering; (iii) abandonment; (iv) animal fighting and baiting; (v) using unfit animal for work or labor; (vi) kill, poison, maim or render useless an animal; and (vii) bestiality. It’s also an offence to commit cruelty indirectly, by procuring, aiding or permitting an act of cruelty by another person. While the offences differ in the required element of fault, a consistent theme is the protection of animals from unnecessary suffering.

Despite these beautiful pieces of legislations, the protection of animals in Kenya, receives very little attention and is often perceived as a subject of trivial importance unworthy of limelight and true scholarship, a “Mickey Mouse” subject.

Holy Qur’an and Hadith contains obligatory provisions of keeping and treating animals laid down principles , more than 1400 years ago, which provides protections of animals from unnecessary suffering.  From Islamic point of view, animals represent Allah’s might and wisdom, and humanity must pay attention to their health and living conditions.

A question of ethical importance is how much humanity is allowed to make use of animals. According to Islam, humanity manipulation of animal life is not unrestricted and humans are only allowed to take animals’ lives if necessary.

The Islamic rule stipulates restriction on manipulating animals, among which are; (i) Restrictions on collecting honey. According to Islam the amount, the amount of honey left in a honey comb should be enough to feed honeybees and in winter it’s praiseworthy to leave more honey than enough to feed the bees of a honeycomb; (ii) Restriction on riding and carrying loads. Quoted from holy prophet of Islam “Muhammad” (PBUH) that there is no beast of burden that does not pray to God every morning so that Lord may bestow it an owner who would give it enough forage and water and would not overload it. Also, Abu Huraira (R.A) quoted from the Prophet (PBUH), “Ride animals as much as it is necessary for your needs and do not use animals as your sedan chair.” Ali ibn Talib (R.A) instructs his agents “ do not ride an animal as much as it can no longer bear your load, be fair to animals.....if animal is exhausted, it must take some rest.........................’’ (Shahidi 1996); (iii) prohibition on verbal abuse and beating of animals.  Numerous Hadith forbid insulting and beating of animals particularly in their faces. Moreover, Islam prohibits slaughtering of animals in front of one another; (iv) Hunting of animals and birds should be avoided at night as much as possible, probably Allah has made nights a time of rest and peace for all living things. Slaughtering devices are also recommended being of sharp objects so as to minimize the pain. Hunting as a hobby without legal necessity is forbidden and deemed in violation of Allah’s commands; (v) Hunting baby birds out of  is also forbidden; separating young animals from their mother with no genuine ground is prohibited; (vi) prohibition on sports violating animal rights.

Although Islamic law encourages sports such as horse and camel racing, it forbids sports which violate animal rights. Prior to Islam, some people run their camel as long as only one camel survived. Some other practices that violate the animal rights include bullfighting and or dog and rooster fight which is regarded as a cultural patrimony in many parts of world including western Kenya.

Human are responsible for whatever they have at their disposal, including animals whose rights must be protected. Ali Ibn Abi Talib says, ‘ Be obedient to Allah regarding His subjects and the lands at your disposal, for you are responsible even for the survival of animals.”

The writer is a Senior Resident Kadhi.

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