The content and context of unnecessary suffering under Kenya’s prevention of cruelty to animals act of 2012: towards an effective standard of domestic animal welfare

Abstract

“Humanity's true moral test, its fundamental test consists of its attitude towards those who are at its mercy: Animals.” -Milan Kundera-

The Prevention of Cruelty to Animals Act of Kenya of 2012 is the main legislation in Kenya that directly provides a legal framework for animal welfare. This statute declares it a crime to cause any animal to suffer unnecessarily. This effectively makes ‘unnecessary suffering’ the standard of animal welfare. On its surface, this appears to be a good standard, as it focuses on the experience of the animal, here being the presence or absence of suffering. By its nature, the term unnecessary suffering requires an inquisition into the purpose for which the animal in question at any given point is suffering. Consequently, the purpose can either be deemed necessary, hence acceptable or be deemed unnecessary hence unacceptable, and punishable by law. The focal point of animal welfare therefore is not the animal, rather it is human beings and their needs. Whereas the Prevention of Cruelty to Animals Act under section 3 sets unnecessary suffering as the standard of animal welfare, it does not give any indication as to what this consists of. This lack of clarity in the act’s interpretation leaves great discretion to the courts to determine when suffering is necessary or not. It is important to note that in assessing whether suffering in an animal is necessary, a person’s perception of animals plays a fundamental role in their assessment. This is the same for judges as they are not exempt from the workings of human subjectivity. This paper aims to discuss the meaning of unnecessary suffering, and propose a possible definition for the term unnecessary suffering for use by the courts in interpreting the provisions of the Prevention of Cruelty to Animals Act. This proposed definition is aimed at limiting the scope of judicial discretion and ensuring certain minimum protections for animals.