Efforts to Stop the Slaughter of Cape Fur Seal Pups Through the Namibian Justice System
The fight to end the slaughter of Cape fur seals was brought to the courts of Namibia in 2011. Francois Hugo of Seal Alert South Africa first pursued a court injunction in an attempt to prevent the slaughter in 2011; however, that request was denied.
According to a legal opinion that he commissioned, the killing violates Namibia’s own laws. However, the Namibian Ministry of Fisheries disagreed with this legal opinion. The Fisheries Minister was charged with producing a legal opinion to counter that which Francois Hugo obtained.
An ombudsman was called in to consider the evidence brought by the two sides and rule on the legality of the slaughter. On June 23, 2012, Ombudsman John Walters produced his report.
In Namibian Ombudsman John Walters’ report, he noted the lack of scientific evidence that the killing of the seals is sustainable (i.e., that the population would not eventually collapse). He reported that, despite his requests for population data, the Ministry of Fisheries failed to provide the data. This was not enough in his view to stop the killing.
The Ombudsman then addressed the issue of whether the slaughter is humane. He argued specifically as to whether it violates Namibia’s Animal Protection Act, which “criminalizes a number of inhumane practices, including beating, terrifying and causing suffering.”
He quotes Judge Cameron’s opinion of the Animal Protection Act: “The statutes recognise that animals are sentient beings that are capable of suffering and pain. The statutes thus acknowledge the need for animals to be protected from human ill-treatment”.
Though it is clear that taking nursing seal pups away from their mothers, corralling them in an area in view of the seal colony, beating and stabbing the pups, and piling up dead seal pups in the midst of the seal rookery, are examples of cruelty that the Act addresses, Ombudsman Walters declared that the Act does not apply because the seals do not fall under the definition of ‘animal’ in the Animal Protection Act.
According to this Namibian law, animals are defined in the APA as “domestic animals and wild animals in captivity or under the control of any person.” The ombudsman concluded that, even though the seal pups are corralled into a section of the beach by the sealers, “it cannot be said that seals are under the control of the clubbers during harvesting.”
Walters also addressed the question of whether the killing violates the Marine Resources Act of 2000. This law also addresses animal welfare issues surrounding the killing of the seals. See the pertinent text of the act below.
The Marine Resources Act of 2000
20. (1) Pups selected for harvesting must be driven in a group away from the sea and allowed to settle down before clubbing begins, care being taken to facilitate the escape of adult seals.
(2) After the seals have settled down, pups must be harvested as follows: (a) a clubber must strike the pup a blow on the top of the head with a sealing club and with such force as may reasonably be expected to kill the pup and a clubber may not strike any pup, if he or she is unsure of being able to strike the pup in that manner;
(b) after a pup has been struck and, as soon as is practically possible, a sticker must pierce the heart of the pup with a knife, which knife must be inserted between the flippers of the pup and on the line along which the pup is to be flayed and must be twisted until blood flows strongly from the wound.
(3) Adult seals selected for harvesting must be killed on land and by shooting with a rifle at a point on the head of the seal so that the bullet effectively penetrates the brain of the seal and, as soon as is practically possible thereafter, a sticker must pierce the heart of the seal with a knife, which must be twisted until blood flows strongly from the wound.
The ombudsman provided suggestions for ‘improving’ the massacre, including “compelling rights holders to erect temporary enclosures where pups, not exceeding 100 at a time, can be confined to settle down before they are released and clubbed.”Ombudsman Walters admitted that the sealing does not comply with the regulations, but stated that the Regulations are not impossible to implement and ‘there is always room for improvement’.
He does not apparently realize that, if his suggestion were implemented, it would be more difficult to argue that these animals were not ‘under the control of a person’ and therefore protected by Namibia’s Animal Protection Act.
It is clear from the ombudsman’s report that his interest is in advising the Namibian government on establishing or confirming the legality of the killing of Cape fur seal pups in order to perpetuate this brutal and unnecessary massacre rather than in applying existing laws to stop the killing now.
Dissertation on the Legal Issues of the Cape Fur Seal Massacre
A Namibian law student, Suné de Klerk, recently completed a dissertation entitled, Seal Harvesting in Namibia: A Critical Analysis in partial fulfillment of the requirements for the degree of Bachelor of Laws at the University of Namibia.
In it, de Klerk provides background information on the killing of Cape fur seals in Namibia including methods used, the reasons the government of Namibia gives for allowing this slaughter, the employment provided by the slaughter, revenues generated from it, and the effects of the seals on commercial fisheries. De Klerk also provides historical information on the killing of the seals in South Africa and a comparison of the Cape fur seal killing with the killing of seals in other countries.
De Klerk analyzes how Namibian laws apply to the killing of Cape fur seals. The Cape fur seal slaughter violates Namibia’s Marine Resources Act, according to de Klerk, since “Section 38 (2) requires the Minister to determine quotas based on the best scientific evidence available. The Ombudsman has admitted Namibia is currently facing a lack of scientific evidence which imply the requirement in Section 38 (2) is not met.”
De Klerk also asserts that the seal slaughter violates Namibia’s Regulations Relating to the Exploitation of Marine Resources.These regulations prescribe that seals be killed in the presence of an inspector, first releasing a group of pups toward the sea, then clubbing the seal on the head while the group moves past the clubber. The inspector must be satisfied that the seal pup is dead, and then another person must stab the seal pup in the heart. Video evidence shows seal pups who regain consciousness when stabbed and who are not killed quickly by clubbers.
When Francois Hugo worked through Namibia’s judicial system to try to end the Cape fur seal slaughter, an Ombudsman was directed to address the legal opinion produced. In the report, he declared that seals are not animals and therefore are not deserving of protection under Namibia’s Animal Protection Act, because, according to the law’s definition, it applies to “any wild animal, wild bird or reptile which is in captivity or under the control of any person” and seals were not under such control. On the contrary, de Klerk asserts that, “seals do fall within the ambit of an ‘animal’ as defined in the Act. Pups are under the control of human beings as they are selected and round up while being subjected to human intervention. The APA, therefore, confers rights and protection onto seals.”
De Klerk concludes that “the Namibian seal harvest is unlawful, unnecessarily brutal, cruel and unsustainable.”
It is still possible to pursue this issue through the Namibian courts and to request that the High Court address the misinterpretation of the Animal Protection Act by the Ombudsman.
Namibians who want to get involved should join Seal Protection Namibia.