Can they suffer?: The new demand for donkey skins20 March 2017
"“[T]he question is not, Can they reason? nor, Can they talk? but, Can they suffer? Why should the law refuse its protection to any sensitive being?” - Jeremy Bentham"
The export of animal products to the Far East has been much in the news recently. First there was rhino horn, then lion bones and now: donkey skins.
There has been a sudden massive increase in the value of donkey skins which are used for production of ejiao, a prized ingredient in traditional Chinese medicines. This has sparked a huge increase in trade in donkey skins, both legal and illegal.
It does seem clear that the trade has major animal welfare implications: in a nutshell, the condition of the donkey does not affect the value of the skin and there is no incentive for traders to ensure the donkeys are healthy or happy. Donkeys are being stolen, transported long distances, kept in crowded conditions, starved and slaughtered illegally in the rush to cash in on this trade.
The United Kingdom Donkey Sanctuary has compiled a comprehensive report on the trade, Under the Skin, which concludes that “this trade, in both its legal and illegal forms, results in a chain of welfare issues for the donkeys at every step, from sourcing to transport and finally to slaughter. These issues can’t be ignored – the donkeys’ welfare and their real value supporting people’s livelihoods is at risk.”
Notwithstanding this, the North West Department of Rural, Environment and Agricultural Development has taken the view that the donkey skins trade is an economic opportunity and has recently issued a media statement about its plans to promote the trade actively.
What does the law say?
Donkeys are domestic animals and not protected by conservation laws in South Africa. Like any other domestic animal though, their welfare is regulated by the Animals Protection Act, which is administered by the national Department of Agriculture and implemented by the NSPCA. The Act allows the Minister of Agriculture to prohibit the killing of animals, including donkeys, in order to use their skins for a commercial purpose. It does not prescribe the circumstances in which the Minister may do so, but given the Act, purpose, which is to prevent cruelty to animals, our view is that he could invoke this section in order to ban the killing of donkeys for their skins where there is clear evidence that the trade is causing suffering to animals. At the least, we submit that he could impose a moratorium on the export of skins until it can be determined whether the trade can be properly regulated.
A recent string of judgements about animal welfare has culminated in the Constitutional Court (see our Case Summary here) linking “the suffering of individual animals” to “broader environmental protection efforts” and talking about animal welfare as a Constitutional issue for the first time (See National Society for the Prevention of Cruelty to Animals v Minister of Justice and Constitutional Development and Another  ZACC 46 at para 58. The judgements all relate to wild animals but surely domestic animals are no less worthy of the law’s protection? The Constitutional Court referred with approval to the Supreme Court of Appeal’s view that “[c]onstitutional values dictate a more caring attitude towards fellow humans, animals and the environment in general” (Lemthongthai v S (849/2013)  ZASCA 131 at para 20.)
The Constitutional Court’s comments are welcome. Animals, both domestic and wild, are still regarded as property in South African law. This enables us to think about them mainly in terms of their economic value. Musing on the abolition of slavery during the French Revolution, Jeremy Bentham considered whether animals should have rights as well as humans. For Bentham the question was not “Can they reason? nor, Can they talk? but, Can they suffer? Why should the law refuse its protection to any sensitive being?”
He wondered when “the rest of the animal creation may acquire those rights which never could have been withholden from them but by the hand of tyranny?”
Hopefully, that time is drawing nearer.
- Sarah Kvalsvig
Sarah is a Consultant at Cullinan & Associates and serves on the Board of Eseltjiesrus Donkey Sanctuary.