I was in Mombasa Court yesterday listening to the testimony in a case from 2018 where two ‘gentlemen’ were arrested in a vehicle heading to Mombasa with 37 kg of ivory.
One of the witnesses was a scientist from the National Museum of Kenya (NMK) who was testifying that the 37 kg of ivory seized was actually ivory. This is normal procedure in any ivory related prosecution. I am not sure how long this has been normal procedure but for quite some time; many, many years. In Kenya, when Kenya Wildlife Service or the police make an ivory seizure with arrest and the accused is not pleading guilty, the ivory ‘exhibits’ have to be sent to scientists at the NMK for identification purposes. The scientists then examine samples of the seized tusks under a microscope, looking in particular for ‘schreger’ lines, and make the determination that yes, these tusks or these bangles, are definitely ivory.
But one has to wonder, how necessary is this? Do we really need a scientist from Nairobi to travel to a Mombasa courtroom to tell the Magistrate and the court, that yes, the tusk like objects found in a vehicle with a modified hidden compartment driven by the two accused while also in possession of a hack saw, were actually ivory. Can elephant tusks be anything but elephant tusks and is there anything else in the world that looks like an elephant tusk?
Below is a photo of an ivory seizure made in July of 2019; 182 kg’s of ivory allegedly found in the custody of the ‘gentlemen’ in the photo. The seizure was made in the Kilifi area, about a 2 hour drive north of Mombasa.
So I pose the question again, is there anyone residing on this planet in 2024, and above the age of 2 years old, that could not have walked into a courtroom and told the Magistrate that the items depicted in the photograph were elephant tusks?
So why, in this day and age, do the Kenyan courts require a senior research scientist (with 33 years experience in this case) to tell us the very obvious?
The present process is thus. When the ivory is seized, the first thing the officers will do is complete an exhibit memo (below) requesting the NMK to examine the ivory. It will detail who will escort or transport the ivory. The ivory will then be transported from where ever in the country it is seized to the museum in Nairobi. In this particular case, it will take two officers or rangers 9-10 hours (on a good day) to complete the drive. They will leave the ivory with the Osteology Section of the Zoology Department of the National Museum of Kenya.
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| Exhibit Memo Form – Ivory |
The scientists will examine all the ivory and complete a report like seen below. This report is of particular note as it shows that one of
the seized tusks has markings indicating that it had been seized
previously by police or KWS in Narok County. This, of course, means
that this piece of ivory somehow found its way out of police or court
custody and back into the hands of traffickers.
When the scientific examination and report is complete, the investigative authority is notified and they will return to the NMK, sign for the ivory exhibits and return to their home station. As detailed in this report, it was for almost 2 months that this ivory was
in the possession of the NMK for the purposes of “ascertaining whether exhibits marked J1 and J6 are elephant tusks”.
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| National Museum Report – Ivory Page1 |
Finally, when the case comes up for hearing, the Nairobi scientist who
examined the ivory, will be required to travel to whichever court in the
country is hearing the case, to testify that yes, these elephant tusks,
that even a small child could identify, are really elephant tusks.
To be fair, there are certainly occasions when a scientific eye may be required. If ivory has been worked into bangles, chopsticks, or jewellery, it is an obvious necessity. I am sure there will be a day when a mammoth ivory or ankara cow horn defence will be introduced and scientific examination will be required. But those cases are the few, the majority of ivory seizure cases involve readily identifiable tusks, something that even the greenest ranger should be able to attest to. We are not talking cocaine or marijuana that can be and has been seen as glucose or herbs or similar. And yes, it is recognized that Bryan Christy of National Geographic once had an imitation tusk made, at substantial cost I am sure, but that would have to be considered an anomaly to the extreme.
SOLUTIONS
So in a time when KWS and the Kenyan judiciary are in a period of financial distress and court hearings are taking three years plus, perhaps it is time to re-examine the necessity of a Ph.D doctor or similar, travelling to court for every ivory prosecution across the land.
1. Reduce the man hours, transportation and accommodation costs relating to ivory going to NMK for compulsory examination.
2. Reduce costs incurred for scientific examination process at the NMK.
3. Reduce court costs incurred for transporting/accommodating that scientist/expert to testify in whichever court is hearing the case, bearing in mind as well, the likelihood of adjournments and the expert witness having to return to the court more than once.
4. Minimizes chain of custody issues with the ivory exhibits, travelling from point of seizure to Nairobi back again
5. Reduces court time by eliminating a witness.
6. Frees up thousands of hours of time for the scientists of the Osteology Section of the Zoology Department at the Nairobi National Museum.
To streamline the present process, perhaps the judiciary could permit pre-trial agreements negating the need for scientific analysis and expert testimony where both the prosecution and defence are in agreement that the substance is ivory.
If there is a disagreement as to whether the seized object is elephant ivory, could not a certified document from the NMK could be submitted in lieu of necessity for oral evidence. If this is not considered acceptable to defence counsel, then either the NMK expert can testify or consideration could even be given for a KWS officer of certain experience to say that the elephant tusk is an elephant tusk.
Sometimes, don’t we just make things too complicated?
