The Republic versus James Tipape and 2 Others – Criminal Case 346 of 2015 Taveta
It is a rarity for a decision on a wildlife case in a rural Kenyan court to cause ripples internationally, but that is exactly what happened on July 20, 2016. Stemming from the shooting of five elephants in Tsavo West National Park just over 1 year previous, three Kenyans were charged before the Taveta Law Court with the offences of Hunting Endangered Species, Possession of Hunting Apparatus and Unlawful Entry in a National Park. What had caught the eye of conservationists and wildlife investigators in particular, however, was the manner of arrest and subsequent acquittal.
On July 27, 2015, in Tsavo West National Park, a Kenya Wildlife Service (KWS) dog handler and his canine had tracked two of the accused a distance of 17 km from the crime scene where the five elephants had been killed, to their manyatta, not far from the Tanzanian border. In the course of the arrests, KWS and Directorate of Criminal Investigations (DCI) detectives seized bloodied clothing, an axe, saw, mobile phone and spent bullet casings.
The remarkable track was all for naught, however, as Senior Resident Magistrate, James Omburah, acquitted the three accused of all charges. He stated: “it is clear from the evidence on record that this case was not thoroughly investigated and the accused were merely charged out of public pressure and reaction upon learning the elephants were killed. This court cannot bow to public pressure to lay a conviction where there is no evidence at all to support a conviction.”
The scathing judgement continued with Magistrate Omburah lambasting all who had anything to do with the investigation; the KWS canine handler, KWS investigators, the KWS laboratory analyst, the DCI investigating officer and the prosecutor, in essentially that order. The primary target of his angst, however, was the KWS canine handler, who had failed in his testimony to provide any information at all about the dog who did the track, his pedigree, his training, any previous successes, and the science behind tracking. With no witnesses to the actual event, Magistrate Omburah deemed the canine track as “hardly believable”. The inability of the KWS analyst to determine the source of the blood (human, elephant or livestock) on the seized clothing and tools because of degradation through improper handling, appeared to be the icing on the cake for the Magistrate. All accused walked free.
The prosecution was characterised by other anomalies; inconsistencies in ballistic reports, unexplained witness absences, phone data intelligence with a Tanzanian linkage falling to make it into evidence. Of course, anomalies in wildlife cases that have an international connection normally indicates corruption. While on one hand, SRM Omburah did the canine world a favour by clearly laying out a court’s expectations from specially trained canine officers, there were other aspects of the decision that did not ‘sit right’.
This prosecution had significance for another reason. The Taveta Law Court and SRM Omburah were an integral part of Kenya’s declared 90% wildlife crime conviction rate.
Behind the 90%
To be clear, I am not disputing the 90% conviction rate for offences charged under the Wildlife Conservation and Management Act of Kenya. The published figures showing a prosecution success rate from between 90% to 95% rate has been around now for a few years.
In 2016, the head of the Office of the Director of Public Prosecutions (ODPP) – Wildlife Crime Prosecution Unit, Wangui Gikui, told Nairobi seminar attendees that the new “WCMA coupled with inter agency collaboration has enhanced prosecution of wildlife leading to an increased conviction rate of 91% up from 44% in 2013.” The ’90%’ also appears in various publications from time to time, both government and NGO, normally as an indicator of the ODPP’s increased abilities and professionalism. In a December 2021 UNODC video entitled “Strengthening Prosecutions – Africa”, a banner was displayed stating: “Kenya reported conviction rates for wildlife crime rose to more than 90% in 2020 from about 20% in 2013.”
Like the viewers of the video, I do not know exactly from where or on what this 90% figure is based. But I do know the history of the “90%” and some of the context surrounding it. It is this context which lends itself to a question; while the advertised 90% conviction may be technically correct, is it a true representation of the overall state of what is happening in wildlife crime cases in Kenya?
In the latest ODPP annual report (consolidated report for the financial years 2017-2020), it is stated that for fiscal year 2019-2020, out of 203 registered wildlife crime cases, 195 were concluded with a conviction rate of 88.81%. There are no figures for preceding years, just a statement that “cases declined compared to 2017/2018 and 2018/2019.”
Which brings us to Kenyan NGO, Wildlife Direct. Between 2016 and 2019 inclusive, Wildlife Direct published two reports* on wildlife crime based on court data that had been retrieved by young lawyers and legal interns from over 100 Kenyan courts around the country. The gathered data was extensive and included offence dates, file numbers, names of accused, prosecutors and magistrates, charge sheet descriptions, wildlife involved, bond and surety amounts, the type of penalties incurred, and current status.
Although Wildlife Direct is an NGO, both reports were done with collaboration and support of the Judiciary Training Institute (JTI) of Kenya. The JTI provides training, research and capacity development for Kenya’s Judges and Magistrates at a national level. It would not be wrong, therefore, to assume that the information published on the attained data was to be for the benefit of those in the legal profession throughout Kenya in dealing in wildlife crime. I am also aware that there was a spirit of cooperation between Wildlife Direct and ODPP regarding content, certainly in the first report if not the second.
The two reports found, and based on 2056 wildlife cases and 3986 persons charged over the four year period, that the conviction rates were 95% and 90% respectively.
While the conviction rates in isolation were impressive, there was an oft overlooked ‘small print’ message through both reports:
“Success is mainly limited to low level wildlife crime offenders possessing wildlife trophies, bushmeat or perpetrating illegal entry into protected areas with livestock. The cases involving the international trafficking of high value items like ivory, rhino horn and pangolin scales remain a major challenge in Kenya where cases are frequently delayed, and suspects are not brought to justice.”
“The more serious the offence, the less likely it is that the trial will result in a conviction. Only 68.2% of concluded trophy hunting trials in 2018 – 2019 and 68.7% of concluded ivory trials from 2016 to 2019 resulted in convictions compared to an average of 90.0% of all trials brought under the WCMA.”
So who exactly are these ‘low level wildlife crime offenders’? It turns out, that amongst that number, are pastoralists, children of pastoralists or associates of pastoralists, and that not an insignificant percentage of their prosecutions have passed through the law courts of Taveta town.
Taveta Town
The town of Taveta is one of the lesser known border crossings between Kenya and Tanzania. Essentially surrounded by Tsavo West National Park on the north, east and south, and with a population of approximately 22,000 people, it is the second largest town of Taita Taveta county, behind Voi. Taveta is known primarily as a market town for goods being sold between Kenya and Tanzania, with access provided by the only main road in the area going to Voi and the main rail line from Voi to Nairobi or Mombasa. Taveta Town and Voi (Wundanyi is the 3rd) are the two main courts that represent Taveta County. Between 2016 and 2019 inclusive, Taveta County courts combined had the most WMCA cases of any other of the 47 counties in Kenya.
Taveta Law Court ranked #1 of 121 Kenya courts of law for WMCA offences and was the undisputed king of illegal grazing of livestock (GRA) and illegal entry (ENT) offences.
Illegal Entry and Illegal Entry in a National Park with Livestock are offences under the WCMA and statistically figure prominently in Kenya’s 90% conviction rate.
Illegal Entry (ENT) and Illegal Entry of Livestock (GRA)
While it sounds relatively harmless to the uninformed, the illegal grazing of livestock in national parks can have profound consequences on wildlife management. Illegally grazing (GRA) in a national park can mean less food for the wildlife inside the park, which can lead to that wildlife exiting the park in search of food, which can lead to an increase in human wildlife conflict. The offence of Illegal Entry in a National Park (ENT) is often an included offence in livestock cases.
Livestock across Kenya is also associated to big money, legal and illegal, and certainly a way of money laundering ill gotten gains. It is generally recognised that there are powerful people behind many of these large herds. In a 2016 article, “Taita Taveta County raises concern over illegal grazing in Tsavo park”, Taita Taveta Tourism and Natural Resources Executive, Alexander Mwangeka, stated that there were more than 50,000 cattle illegally grazing in the park.
Politicians can be prone to exaggeration, but court records do indicate that the numbers of herders arrested and livestock involved is significant. As example, on November 3rd, 2016, KWS made 8 separate arrest/seizures, at different times of the day between 08:30 and 17:30hrs, in different parts of Tsavo West NP, involving 17 different accused and over 9,850 head of livestock. One specific arrest of two minors involved 6,200 head. Even the logistics behind the processing of these multi-arrests is mind boggling.
There have also been stories of county officials and KWS rangers cutting deals for grazing rights with herders from the north. Perhaps the prosecution of 107 Somali nationals, all through Voi court (Taveta County), between 2016 and 2017 was an indication of a that issue.
And as well, the ever present anecdotal evidence that corrupted elements within the KWS extract bribes from herders in the form of either protection money or on arrest to avoid court prosecution. Herders may also be the camouflage of poachers or the camouflage for poachers. Is it any wonder that in 2016, Richard Leakey, who was head of the KWS Board at the time, suggested that national parks should be fenced to keep animals in and livestock out.
To give an idea as to the substance of the problem as it was in 2016 – 2017, of the 2610 listed offences committed against the WCMA, 1,344 were either ‘Illegal Entry with livestock (GRA)” (650) or “Illegal Entry (ENT)” type offences (694). In 2018-2019, while the number of offences for GRA and ENT were not totalled, it is documented that of the 1099 wildlife cases, 571 were for either GRA or ENT. In other words, GRA and ENT offences/cases are over 50% of the total cases prosecuted over four years.
Direct comparisons on conviction rates involving GRA and ENT over the full four year period cannot be made due to reporting differences between the two reports. It can be said that in 2018/2019, there were convictions for 1482 concluded offences and that approximately 1080 of those were GRA/ENT related.
In 2016/2017, the statistics were based on 957 cases under the WMCA; 506 cases involved GRA or ENT. In the Taveta Law Courts alone, from those 506 cases, there were 480 persons convicted of GRA/ENT offences of which 292 were discharges (no punishment imposed). 208 of the 292 discharges were against minors.
In 2016/207, 77% of all persons charged with GRA offences, pled guilty on first appearance and without plea negotiation. One does not have to look far for the reason. The low penalties, typically a fine of between ksh 20,000 to ksh 40,000 ($200 to $400 USD) with a possible default penalty of 2-3 months jail. Or even better, particularly in Taveta court, the high possibility of a discharge.
Taveta Law Courts
After one reads the two reports, it is clear that one area of the country and one law court in particular stands out as being an integral part of the WCMA wildlife crime statistics.
In 2018/2019, Taveta County led the country with a total of 499 cases out of a total of 1099, or 45.3%. Taveta Law courts had 369 of those cases or 33% of the country total, the bulk being GRA/ENT offences.
In 2016/2017, Taveta County led the country with 776 arrests for WCMA offences. Taveta Law courts processed 546 of those arrests, the vast majority comprised of GRA/ENT offences.
Over the four year period, Taveta County led total arrests with 1846, the majority coming from Taveta law court. The next closest was a sister county Makueni with 488 arrests.
Wildlife Direct, in the second report, also factored in an environmental crime rate relative to population size amongst Kenya counties. Taveta County topped that as well with 83.7 cases per year per 100,000 inhabitants compared to the next highest that came in with 35 cases per year per 100,000 inhabitants.
Paradoxically, for a town surrounded on three sides by Tsavo West National Park, the only statistic that the Taveta Law courts was low in was the number of ivory cases; only two over the four year period (it is believed there were actually 3). Taveta’s sister court in Voi, processed 19 ivory cases, the 3rd highest in the country behind Makindu (36) and Kibera (Nairobi) (25).
A Soupçon of Corruption
In November of 2015, while attending the trial of Republic versus James Tipape at the Taveta Law Courts, one of the staff of Wildlife Direct chanced upon an exchange of cash between Senior Resident Magistrate James Omburah and ODPP prosecutor Donald Ochieng Omondi. While the optics were far from ideal, there was no law being broken without knowing the context of the exchange.
The significance of that transaction changed somewhat on May 30th, 2018, when Taveta prosecutor Donald Ochieng Omondi, was arrested by investigators of the Ethics and Anti-Corruption Commission. Two different media reports alleged that Omondi was acting as a ‘broker’ in two separate prosecutions; one a defilement case and the other related to charges stemming from the selling of unlicensed liquor. In the liquor case, Prosecutor Omondi requested a bribe of 40,000 but settled for 30,000 to be split between him and the presiding magistrate who was not named.
This brings us back to SRM James Omburah who was one of the two sitting magistrates at Taveta Law Court at the time. Magistrate Omburah was no stranger to controversy or the Appeal courts.
On December 16th, 2000, The Standard newspaper printed a story alleging that he, James Okoth Omburah, as an advocate for Okoth Omburah and Advocates, had committed certain acts of fraud. (He later was awarded damages for libel)
In a High Court of Kenya, Meru Criminal Appeal No. 142 or 2006, in a quite atypical case, the appeal court ruled against SRM Omburah, quashing his conviction of a 2000 shilling fine ($20) imposed relating to a dog bite incident.
In a Meru Court Criminal Appeal 44 of 2005, the court quashed the robbery conviction of Patrick Munene Nchebere who been sentenced to death by Magistrate Omburah, setting the accused free.
Some years later, this time in the Court of Appeal at Mombasa No. 1 of 2017, a similar scenario where SRM Omburah, this time the third sitting Magistrate in a nine year robbery trial, convicted the accused of robbery, and sentenced him to death. The appeal court quashed the conviction and set the accused free.
In 2012, Magistrate Omburah drew the ire of the Mombasa public after sentencing a matatu driver to 16 months jail for a dangerous driving incident in which two people were killed.
In yet another appeal, No. 67 of 2016, the appeal court reduced a 18 month jail sentence imposed by Magistrate Omburah on three men who had stolen three doors from a Taveta school, calling his sentence unnecessarily harsh.
Shortly after prosecutor Omondi’s arrest, SRM Omburah left the Taveta courts for reasons never confirmed. Some thought that he had been transferred. Indeed he had been there for over 3 years. Others believed that he had taken ill. He never did return to Taveta courts.
As regards to prosecutor Omondi, no evidence was found that he was ever criminally charged. Inquiries to the EACC and ODPP went unanswered. Regardless, the allegations indicate that at least one of the two sitting Taveta magistrates was complicit. Considering that the Omondi – Omburah cash exchange had been observed three years previous, obvious questions arise as to when did the alleged ‘activity’ start and how many other cases could have been compromised by greed over integrity factors?
A Dash of Perspective
From one perspective, would the hypothesis be incorrect, that Kenya’s 90% wildlife crime conviction rate, espoused by many over the last five years as a indicator of prosecutorial prowess, be based on a high volume of illegal entry and illegal entry livestock offences, characterised by guilty pleas on first appearance primarily due to the low penalties imposed, and most often at a law court that is at best, tainted.
Yes, on oversimplification with so many underlying issues; criminal, social, cultural and corruption to name a few.
To many, achieving a success rate of 90% is hand in hand with such descriptors as excellence, exemplary, exceptional, admirable. It is a clear indicator that one’s house is in order. The military expression that seems to be most apt here: “having your shit together”.
I go back to the ‘small print’ theme that was in both reports; “The more serious the offence, the less likely it is that the trial will result in a conviction”. This theme has also been constant in significant ivory prosecutions going back to 2009 where there have been no convictions in Kenya to date.
It is clearly evident that there has been progress in how wildlife cases have been investigated and prosecuted in Kenyan courts. It is unlikely that the acquittal registered in 2016 against Republic versus Tipape would be repeated today under similar tracking, arrest and seizure circumstances. But does progress equate to 90%?
The 90% conviction rate for the prosecution of wildlife crime offences in Kenya is correct. But is it right? Perhaps just a question of perspective.
* 1. Wildlife Direct – “On the Right Path, an analysis of Kenya’s law enforcement response to wildlife crime” (2016-2017)
* 2. Wildlife Direct – “Crimes Against Wildlife and the Environment, Kenya’s legal response to wildlife, forestry and fisheries crime.” (2018-1019)
