2015Wildlife Crime Courtroom Watch

1132/15 – New Evidence Application Withdrawn One Year Later

SEEJ-AFRICA
SEEJ-AFRICA
ODPP Prosecutor Jami Yamina stands before Chief Magistrate Martha Mutuku in requesting the withdrawal of the new evidence application that had been submitted on May 24th, 2021.
Abdulrahman Mamoud Sheikh and 8 others in Mombasa court on February 17th, 2021

SEEJ-AFRICA Summary:

  1. Abdurahman Mahmoud Sheikh @ Said Juma Said, his half brother, father, a KRA officer, and five others are alleged to have been involved in shipping 3127 kg of ivory to Thailand in a container of tea leaves in April 2015.  The nine accused face charges under the Wildlife Conservation and Management Act, the Prevention of Organized Crime Act and East African Community Customs Management Act.

2. On February 17th, 2021, Chief Magistrate E. Makori stated to the court that “the spectrum of the case is being lost” and the “only remedy is to bring this to a closure”.  He ordered the prosecution to bring all remaining witnesses for hearing on April 7th and 8th, for their case to be concluded at that time.

3. Just prior to that hearing date, the U.S. government (U.S. Fish and Wildlife Service is the lead agency in the Moazu Kromah prosecution) ‘informally’ provided the police and ODPP with new evidence linking the West African Cartel to two of the accused; evidence that the police and prosecution believed was, “new, credible, relevant and admissible evidence to the offences now before the court”.  
 

4.On May 24th, the ODPP made an application to the court requesting the new evidence be admitted as part of the trial.  It was made very clear that the accused, through their advocates, were opposed to the application and wished to present their case in open court.  That never happened.

5. In the year since the application, there have been delays, all from the prosecution side, for reasons not specified but certainly partially due to the transfer of Chief Magistrate E. Makori. Reading between the lines, one also has to question if Thailand has been anything but recalcitrant to submitted requests for mutual legal assistance by the ODPP. 

6. One is also left questioning whether there has been an issue in converting the ‘informally’ provided new evidence from U.S. Fish and Wildlife into evidence that can be presented to the Mombasa court.

7. The ivory shipment on which this prosecution is based was supplied by the West African (Kromah) cartel.  The history relating to previous Mombasa ivory prosecutions with Kromah connections has not been positive.  The only conviction that was registered was this past March (CF 417/2013) and it would be an understatement to suggest that 2 year jail sentence handed down was on the light side.   

8. It needs to said that while Prosecutor Yamina is the face of the DPP in this matter, the shots in this prosecution, with international ties to Thailand, now the United States, and perhaps even Uganda, are being called by his superiors in Nairobi, and most probably, above the ODPP.

Note: The story below refers to Mansur Mohamed Surur being extradited in 2019.  He was, in fact, arrested in July 2020 in Mombasa and extradited to the United States in January 2021.

Why DPP dropped bid to introduce new evidence in Sh570m ivory case

Thursday, July 21, 2022 by Brian Ocharo (The Nation)
 
Director of Public Prosecutions (DPP) Noordin Haji has dropped his bid to introduce new evidence from the US in a case where nine Kenyans are implicated in Sh570 million ivory seized in Thailand in 2015.
 
Through Malindi Assistant DPP Jami Yamina, Mr Haji withdrew the application and asked the court to proceed with evidence before it and conclude the matter.
 
“The case has taken too long to conclude and the international mutual legal assistance process is complex, takes long, open and unpredictable. We pray that the application to introduce the new evidence from the US be withdrawn,” said Mr Yamina.
 
The new evidence that the state wanted to introduce allegedly linked notorious Liberian poacher and ivory trafficker Moazu Kromar to two Kenyans, Abdulrahman Mahmoud Sheikh alias Said Juma Said and his son Sheikh Mahmoud Abdulrahman.
 
Other suspects in the case are Mr Mahmoud Abdulrahman Sheikh, Kenya Revenue Authority (KRA) employee Ms Lucy Muthoni Kahoto,
 
Mr Musa Jacob Lithare, Mr Samuel Mbote Mundia, Mr Salim Juma, Mr Abbas Issa Rashid and Mr Kenneth Mwangi Njuguna.
 
The evidence linking Mr Kromar to the two Kenyans had been obtained from Monsur Mohamed Surur’ alias Mansur after he was extradited to the US in 2019.
 
Mr Surur has pleaded guilty in a US court to trafficking illegal ivory and rhino horns.
 
The case was set for hearing before Chief Magistrate Martha Mutuku but Mr Yamina informed the court that the DPP had decided to withdraw the application to allow the court to conclude the matter with the available evidence.
 
Mr Yamina maintained that the state is committed to ensuring that the case, which was first brought to court in March 2015, was heard and concluded without any further delay.
 
Defence lawyer Jared Magolo welcomed the withdrawal of the application, noting that it was “ambitious”.
 
Mr Magolo and other lawyers for the suspects had opposed the introduction of new evidence and accused the DPP of attempting to sneak in “manufactured” evidence to punish their client.
 
They had urged the court to reject the application on the grounds that it was made at the tail end of the case, describing it as unacceptable and a miscarriage of justice.
 
According to the new evidence, the man and his son received instructions from Mr Kromah to facilitate the ivory smuggling.
 
“Intelligence discloses that Mr Kromar used to receive instructions from accomplices in Thailand and thereafter transmit the same to Mr Mahmoud alias Juma and his son Mr Abdulrahman,” court documents show.
 
Mr Kromar also pleaded guilty to similar charges on March 27. He is charged alongside his Guinean accomplice Amara Cherif.
 
Mr Cherif, Mr Surur and Mr Kromar are accused of conspiring with others to transport, distribute, sell and smuggle about 190 kilos of rhino horns and at least 10 tonnes of ivory in East and West Africa valued at $3.4 and $ 4 million respectively.
 
The DPP had argued that the evidence obtained from the US linking Mr Kromar and Mr Susur would have helped the state prosecute the suspects.
 
Mr Mahmoud, his sons and six other Kenyans are facing ivory smuggling charges in Mombasa.
 
The case will be heard on September 5.
 

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