The three had been charged for their role in exporting 1833 kg of elephant tusks through Mombasa Port in December 2012.
In a March 2021 report, the Head of Kenya’s Directorate of Criminal Investigations (DCI), George Kinoti, admitted: “wildlife crime was not initially taken seriously as a major crime.” His counter part, Head of the Office of the Director of Public Prosecutions, Noordin Haji, should be echoing the remarks.
On Friday, February 11th, 2022, Chief Magistrate Francis Kyambia, ruled in a Mombasa Court, “the prosecution has not met the threshold of establishing a prima facie case”, thereby acquitting the three accused. After eight years in court, the testimony and exhibits of 15 witnesses, and the repatriation of 1833 kg of ivory from Singapore to Kenya, the prosecution could not prove the essential elements of the two charges before the court.
The seizure from which the charges emanate occurred in Singapore in January 23rd, 2013. Singapore officials, on a notification from the Kenya Revenue Authority, seized a 20’ container found concealing 1833 kg of ivory in eight of the 17 wooden crates found within. Galana stones (also known as mazera stones) were found to be the cover load and the container originated from Mombasa.
This seizure came barely one week after 3872 kg of ivory was intercepted at Mombasa Port , and three weeks after 1300 kg of ivory was discovered in a sea container in Hong Kong having originated from Mombasa. All three shipments were allegedly from the same consignor, processed by the same clearing agent and all had a cover load of galana stones.
Within days, DCI detectives arrested employees of the Kenya Port Authority and Kenya Revenue Authority relating to the Mombasa 3872 kg seizure. Gideon Naftali Onsinyo Nyangau and James Kassiwa were charged with ‘Bringing into a customs area prohibited goods namely 1099 pieces of ivory’ and ‘Comprising to bring’ the same, both offences under the East Africa Community Customs Management Act.
The charge sheet was amended on February 7th with the addition of the clearing agent alleged to have processed the shipment, Fredrick Sababu Mungule. Mungule was no stranger to the ivory game having been suspected of facilitating a 2033 kg shipment from Mombasa to Thailand in March 2011.
In late August 2013, the ivory seized in Singapore was back on Kenyan soil. Five weeks later, the same three accused; Mungule, Nyangau, Kassiwa, with the addition of KRA employee, Nelson Ayoo, were charged again for the Singapore 1833 kg shipment, the charge for which they have been acquitted. It was alleged that Mungule had processed the shipment documentation, Kassiwa and Ayoo had permitted the container into the port and that Nyangau had manipulated paper work to permit the loading of the containers onto the required vessels.
While some ‘curious’ decision making took place in the early years of this prosecution, it was not until late 2017 that the true colours of the case were unfurled. It was then that Kenyan NGO, Wildlife Direct, decided to put this prosecution under their microscope to monitor. Shortly thereafter, their Legal Department manager was threatened on a busy Mombasa street by an armed man who made it clear of his and his family’s health would be impacted if he did not drop his interest in this case. A few months later, his Nairobi residence was broken into by unknown suspects.
From that point forward, the outcome was clearly preordained. The question was only how circuitous the route.
Before the trial came to a close, the prosecution called 15 witnesses. Two of the ‘witnesses’, Musa Jacob Lithare and David Ali, had been arrested for their involvement in transporting 3 containers of ivory into Mombasa Port in April and May 2015. It was subsequently found that they had also been involved in transporting ivory in the cases for which Mungule et al had been charged.
Initially, Lithare and Ali, were also charged with Mungule et al but that changed in 2016. The ODPP, on request from DCI, decided to make Lithare and Ali prosecution witnesses against Mungule et al. During their ensuing testimony in the two separate trials, however, they gave not one piece of evidence against any of the accused.
Of the remaining 13 witnesses, none could provide any evidence that Mungule had anything to do with the container that was taken into port. In fact, testimony revealed that a male identified as Denis Maitha, accompanied the container into port and paid the appropriate fees. There was never an explanation by investigators as to the identified Maitha.
None of the 13 witnesses provided any evidence that Mungule knew Ayoo or Kassiwa (Nyangau had reportedly passed away in 2014) or that they had conspired in any manner. In fact, there was evidence indicating that Nelson Ayoo was not even working on the evening that the container was “gated in” to the port but that he had “unprocedurally authorised use of his lotus credentials” to Kassiwa with the knowledge of his direct supervisor.
Amongst witnesses that were not called? Any one of three employees of the East Africa Commercial and Shipping Company who provided statements to the police indicating that Fred Sababu Mungule was a frequent customer of theirs, had communicated with them face to face, and received the bill of lading relating to the container of ivory that went to Singapore.
The worst was yet to come, however, when on July 1st, 2021, the lead investigator, Sgt. Lemiso, took the stand. This was the time when the prosecution had an opportunity to try and plug the significant leakage in their case. Sgt. Lemiso concluded his testimony within 30 minutes, hardly the time to cover an investigation that spanned two continents and some years. In the ensuing cross examination, Sgt. Lemiso, provided not one answer that indicated that he had anything but the briefest idea of what the investigation entailed. Most of his responses were one word: “no”. And the last question from defence counsel: “Are you aware of anything relevant to this case?” Facetious but sadly appropriate.
At the time of this acquittal, the prosecution relating to the 3827 kg Mombasa seizure is waiting on the final judgement of Chief Magistrate Edna Nyaloti. On the positive side, that prosecution did pass the threshold of a ‘prima facie’ case. On the negative side, “external factors” were present, yet again.