MCCR/1132/2015, the Republic (of Kenya) vs Abdulrahman Mahmoud Sheikh and eight others - a case study
Part 2 of Inside the Wildlife Crime Courtrooms of Kenya
By Chris Morris
Part One (linked): The day of the acquittal, the context surrounding the seizure, the initial investigation and arrests, and early prosecutorial decisions.
Part Two (linked): Early Days of the prosecution, Financial Investigation and Asset Recovery, Mutual Legal Assistance request and failed Thailand trip, Jefwas-the First Cracks of corruption, Testimony re-cap of 25 witnesses.
Part Three (linked): The Second Mutual Legal Assistance Request, Last day of the Prosecution, Case Management, Analysis of Evidence, Phone Data, Questions and Contradictions.
Part Four (Conclusion): Transnational Organized Crime Linkages, DNA Analysis and Connectivity to other Seizures, Micro-seizures and TCO Involvement, Denouement, A Past Indicative of the Future, the Battle Needs to be Taken to the Courtroom.
ORGANIZED CRIME – IT BEGAN WITH TWO LORRIES
At various times during various proceedings, the court heard from the prosecution, that there was evidence of a structured organization behind the movement of the subject ivory. During bail arguments, the court was told “clearly a syndicate operating in this country and in Uganda.”34 In the opening arguments of the ODPP made on February 2nd, 2016; “the prosecution will prove that a syndicate operated in Kenya, Thailand, Vietnam, Singapore and the United Arab Emirates.”32 In the application for new evidence it was written; “(the Thailand seizure) involved an organized criminal enterprise that enabled the partially successful illegal exportation of the elephant tusks from the source locations within East and Central Africa” and that the “respondents are members of an organized criminal network.”
In the trial of ‘Sheikh’s et al’, from an evidential perspective, the aspect of organized crime involvement never moved past the ‘insinuated’ stage notwithstanding it was clearly evident in the initial stages of the investigation. It began with two lorries.
To reiterate, a Fiat lorry, reg. KNY 944, driven by Kenneth Mwangi Njuguna (A#9), delivered into Mombasa port on March 23rd, 2015, the ivory/tea container that was seized in Thailand.
A few weeks later, he drove the same vehicle pulling another container of ivory/tea into port. This container was seized in Singapore on May 16th. This was container #1 of the two-container sister consignment. The second container was delivered to the port by Fiat lorry, reg. KSM 783, driven by David Ali. These deliveries were made under the direction of Musa Jacob Lithare (A#5), the de-facto vehicle owner, and the Jefwa brothers.
This was not the first time that these two vehicles and these two drivers had delivered ivory to the port. In late 2012 (the actual seizures were made in January 2013), on three different dates, KNY 944 and KSM 783, driven by their respective drivers, delivered ‘ivory’ containers to Mombasa port. These shipments all contained a cover load of mazeras stones. The deliveries were made under the direction of Musa Jacob Litare, and freight forwarder Fredrick Sababu Mungule. For these three shipments, Mungule was acting in the same capacity as the Jefwa’s but two years earlier. Over a three-week period in January 2013, these three containers carrying a total of 6994 kg of ivory between them, were seized in Hong Kong, Mombasa and Singapore respectively. Mungule was arrested and charged in relation to these three shipments.
Summarizing, the same two vehicles and drivers, of the same owner, had delivered at least six containers of ivory into Mombasa port. That did not include three other containers, purportedly containing tea, delivered to port that had gone through Siginon Global Logistics and the Jefwa’s in the same manner as the Thailand and Singapore seizures.
These were the overt and obvious signs of an organized ivory trafficking cartel. The evidence of such would accumulate through three very different sources.
ORGANIZED CRIME – ON HOME TURF
After the three January 2013 seizures, the DCI continued their investigation and discovered an extensive ivory trafficking network of which Mombasa Port was an integral part.
This evidence was yielded surprisingly through what appeared to be an administrative letter from the Head of DCI Kilindini (Mombasa Port) to DCI Headquarters, Nairobi, dated March 15th, 2013. The following paragraphs were found in the body of the correspondence entitled:
“REQUEST FOR AUTHORITY TO TRAVEL TO HONG KONG & SINGAPORE.”
“……..As a result of the three seizures in Hong Kong, Singapore and Mombasa, Kenya and the pursuant investigations a common pattern facilitating the smuggling and shipping of Ivory has been identified.
In the three shipments, a number of purported clearing agents are involved in sourcing of the empty containers for stuffing of the ivory and subsequent smuggling into the Port using fake customs entries and subsequent irregular loading into vessels in collusion with employees of the Kenya Revenue Authority and Kenya Ports Authority.
It is imperative to state here that it takes a lot of planning and preparation for one to compromise the systems put in place by both the K.P.A and the K.R.A. for acceptance and shipment of export containers………
In the process of these investigations we did expand the scope of our enquiries and have established that the same forwarder (referring to Fredrick Sababu Mungule) has successfully shipped and delivered a total of thirty three (33) containers to various consignees in Vietnam, Thailand, Singapore and China between the year 2011 and 2012 through East African Commercial and Shipping C. Ltd.
All this shipment were exported using fake customs entries and bypassed the established protocols put in place by both the K.R.A. & K.P.A. It is our considered opinion that all these containers contained prohibited cargo mostly Ivory. These points to an alarming state of affairs which needs to be addressed urgently.
It goes without saying that there is indeed an International Criminal gang operating between some Asian and African countries specializing in poaching of endangered Wildlife species like the Elephant and Rhino……..”
It cannot be ascertained if the observations of the author were converted into further investigation but it can be stated that the substance of the correspondence relating to the organized criminal element within the port and involving Fredrick Sababu Mungule, never found its way into any courtroom relating to any prosecution for a Mombasa related ivory seizure.
ORGANIZED CRIME – FROM AWAY
Two years later, an unrelated investigation was initiated that had its origins on the other side of the Atlantic. A U.S. based consultancy, ‘The Satao Project’, and headed by Gretchen Peters, was awarded a contract by the U.S. Department of State to conduct research relating to transnational supply chains moving ivory off the East African coast.
In their research, they conducted 67 structured interviews with those who had knowledge of ivory trafficking in East Africa, from diplomats to national and international law enforcement experts, to members of local crime networks and everyone in between. Interviews led to further investigations of involved companies, brokers, transporters, freight forwarders, and included background on the local drug trafficking network.
The Satao Project concluded that the Akasha Brothers drug family, of which Feisal Ali Mohamed was a part, were the major network involved in ivory trafficking and that 13 different ivory shipments dating back to 2013 could be linked.78 (The Akasha brothers and two others were ‘spirited’ out of Kenya to the U.S. for trial in January 2017 on realization that the extradition process in the Kenyan courts had been de-railed by bribes.79)
ORGANIZED CRIME – DNA ANALYSES
While Gretchen Peters and Satao Project were conducting their research, they became aware of Dr. Wasser’s ivory DNA analyses work. At this point in time, Dr. Wasser had analysed the ivory from approximately 40 major seizures made in Africa and Asia. On comparing notes in 2016, Peters and Wasser found that they had both discovered linkages in multiple ivory shipments but through their totally different methodologies.
Dr. Wasser continued and expanded his study. In his 2018 report entitled “Combating transnational organized crime by linking multiple large ivory seizures to the same dealer”39, Dr. Wasser et al, revealed more connections between ivory seizures whereby one tusk from a specific elephant was found in one seizure and the matching tusk from the same elephant was found in another seized shipment often months apart. The indication being a very high probability that the ivory was stockpiled at the same location but separated on loading, an attestation to TCO involvement.
This was the case with the January 2013, 3287 kg, Mombasa seizure, (MCCR/417/2013* – R. vs. Fredrick Sababu Mungule and James Kassiwa) where two tusks in that shipment were found to be an exact match to two tusks analyzed in the 1478 kg ivory seizure made in Dubai four months later. This Dubai shipment was linked directly, by tusk exact matches, to a 2898 kg seizure made in Mombasa in October 2013 that was in turn directly linked in the same manner to a 6034 kg seizure made in Malaysia in December 2012 and an 1838 kg seizure made in Uganda in May 2014.
In a subsequent 2022 study, “Elephant genotypes reveal the size and connectivity of transnational ivory traffickers” Dr. Wasser et al, expanded the scope of their DNA analysis to include familial genetic matching of tusks of close relatives, parent-offspring, full and half-siblings. The study was based on data from ivory samples taken from 49 major ivory seizures made in Africa, the Middle East, and southeast Asia between 2002 and 2019. Samples were taken from over 4300 elephant tusks. It was found that:
“The consistency of genetic matches among large numbers of shipments containerized in, and transiting through, the same African port implies that a very small number of TCOs are responsible for the bulk of these shipments, even when shipments are containerized in separate nearby countries. The TCOs operating in Mombasa, Kenya, and Kampala, Uganda, may in fact, represent a single large network as was suggested by a report based on over 400 contacts from the Uganda TCO’s phones, covering many countries and continents, most notably in East Africa and Southeast Asia.”16,81
Figure 24 depicts the connectivity of the 4600 kg sister Singapore seizure of ‘Sheikh’s et al’ based on DNA familial matching and common logistical and suspect elements with other seizures. The DNA analysis indicates links to fourteen other seizures as depicted. Seven of those seizures had exact tusk matches with others in the group.
While the ivory seizure subject to this case study was not DNA analyzed with the same parameters as in the Wasser study (by Thailand authorities instead), there is a likelihood of strong similarities between the two seizures considering the ivory came from the same Nyali ivory consolidation point.
The only seizure with no apparent Mombasa connection is the July 2006 Hong Kong shipment that originated from Dar-es-Salaam, Tanzania. At that time, all major ivory shipments out of East Africa were exiting via Dar-es-Salaam. That did not shift to Kenya until approximately 2009. However, the 2006 Hong Kong seizure was identified as having a heavy concentration of ivory from the Selous Game Reserve (now Nyerere National Park) and north Mozambique as did the ‘Sheikh’s et al’ Singapore seizure.
To date, DNA analysis evidence has been used only once in an ivory trafficking prosecution in Kenya. That was in relation to the prosecution of Mombasa clearing agent, Ephantus Mbare, (MCCR/2511/2016*, R. vs. Ephantus Gitonga Mbare {1098 kg}) As per the written judgement on that matter71, (Mbare was acquitted) testimony relating to the ivory origins did not include that at least 10% of the 1098 kg ivory shipment came from Kenyan elephants or that the shipment was related to at least nine others organized through the West African crime group and a Vietnamese cartel.
MBA: Mombasa; JKIA: Jomo Kenyatta International Airport; MYS: Malaysia: UAE: United Arab Emirates; UGA: Uganda; THA: Thailand; SGP: Singapore; HKG: Hong Kong. A solid blue box indicates a shipment that was containerized and/or transited Mombasa, a blue box with green border indicates containerized in Kampala, Uganda. The green box with blue border indicates a Uganda seizure what was to transit Mombasa. The lone grey box indicates a shipment that originated in Tanzania. The blue box with orange border indicates the Mombasa connection with no DNA analysis. The Mungule Singapore seizure of January 2013 was one of only two major Kenya ivory seizures that was never DNA analyzed.16,39
ORGANIZED CRIME – NO DNA ANALYSIS
DNA analysis is unfortunately conducted on only a small number of ivory seizures, typically those whose weight exceeds 500 kg, and only if the seizing country agrees to submit them for testing. As example, the last time that Thailand agreed to have ivory DNA analysed through Dr. Wasser, was a 2011 seizure that originated in Mozambique. Vietnam has historically been resistant to DNA analysis although in 2010, through a serendipitous opportunity, they submitted a Kenya ivory seizure for analysis and then nothing until 2019.
Connectivity between seizures can obviously also be realized through regular investigative processes and particularly in regards to the logistics chain. TCO’s are as lazy as anyone, and in 2015, they would not change an established and corrupted logistical route unless a shipment had been seized. To clarify, they would use the same faked documentation, same transporters, same shipping lines, same shippers, same shell company names (consignors and consignees), and same cover load, until a shipment was seized. When this occurred the TCO would consider the chain broken and everything would be changed. If, however, a shipment was seized and the TCO had other shipments on the high seas at the time, the likelihood would be high that the other consignments would be picked off by customs authorities. This can be seen in the three January 2013 Mombasa related shipments that were seized within a three-week period. The Hong Kong shipment was detected first and then based on logistical similarities, authorities were able to detect the Mombasa and Singapore seizures. It is highly likely that the DCI used a logistical chain to determine that Fredrick Sababu Mungule, while utilizing the East African Commercial and Shipping Company Ltd., had made 33 successful container shipments to China, Vietnam, Thailand and Singapore within a two-year period.
Another example of this can be found through the last consignee involved in ‘Sheikh’s et al’. When the vessel, Cape Moss, arrived in Singapore, and prior to its transshipment to Thailand, the Jefwa’s attempted a third change in consignee to that of the Van An Co. Ltd. of Da Nang, Vietnam. Four months later, the Van An Co. Ltd. of Da Nang, was the consignee for more shipments of wildlife trophies. Within a two-week period, Vietnamese authorities seized six containers, spread over three different dates, whose contents totalled 3685 kg of ivory, 115 kg of rhino horn, and over 4000 kg of pangolin scales from Mozambique, Nigeria, and an unnamed West African country whose shipment transited Malaysia (Figure 26).
It was later learned that the Vietnamese director of Van An Co Ltd., Nguyen Van Sau, had entered into an agreement with a Chinese national to ship his product under the Van An Co. name. Nguyen Van Sau was later charged with offences relating to only one container and served 15 months 23 days in custody as his sentence. He was also fined the equivalent of approximately USD $200.00.77
Those individuals who actually kill the elephant or rhino for their ivory or horn are very rarely arrested in the act. Arrests are typically prone to occur while the ivory is being transported from the killing site or initial hidden cache, to the consolidation point. The consolidation of thousands of kilogrammes of ivory to make a 3127 kg shipment takes time, organization, and multiple ivory deliveries by motorcycle or motor vehicle. It is not uncommon for those who are transporting, to look for other buyers who will give a better price. This is when the various intelligence services really earn their salary. Almost all KWS arrests, as observed by the author’s study, derive from intelligence and/or informants. This ivory that is seized is essentially never analyzed. Regardless, linkages have been noted through the various prosecutions in Kenyan courts and particularly those that are identified as having a TCO element.
The first evidence of a working relationship between the Sheikh’s and the Guineans of the West African crime group was initially evidence in a small 2014 seizure.
On May 19th, 2014, at approximately 02:00 hrs, a Nissan Van was travelling east, about one hour outside of Mombasa, when it was intercepted by police acting on intelligence. A subsequent search revealed that the vehicle had two ivory tusks, total weight of 25 kg, strapped to the undercarriage of the van. The driver and passenger were arrested. It was further ascertained that the vehicle had been supplied to the occupants by a Bernard Musau Mailu. At the time, Mailu had two other ivory trafficking charges proceeding in two other courts, one of them involving two Guinean nationals.
The investigating DCI officer continued with a controlled delivery into Mombasa. In the process, two more persons were arrested, Mohammed Kuoruoma aka Mohamed Nkoroumah, and Haji Faki Ali. Mohammed Kuoruoma was the son/nephew (there are conflicting reports on the exact nature of the relationship) to Moazu Kromah of the West African crime group. It was later discovered years later, through court documentation82 that Haji Faki Ali was the nephew to Mahmoud Abdulrahman Sheikh (A#3).
The charges against Faki Ali were withdrawn during the first few weeks of the prosecution. Bernard Musau Mailu was arrested in Nairobi court while attending on his other charge, also within weeks of the incident. When the final judgement was rendered in 2016, Kromah’s son/nephew was acquitted along with the other vehicle occupants and Mailu was convicted and given a ksh 100,000 fine (USD$1000.00) or in default a 1-year jail sentence. The sentence as per the Wildlife Conservation and Management Act was minimal and outside sentencing guidelines. (MCCR/384/2014*, R. vs. Daniel Kilingua Wambua, Nzole Mumba Chileta & 2 others {25 kg})
Mailu’s Nairobi case (MCCR 3543/2013*, R. vs. Traore Lancini and Bernard Musau Mailu (55 kg}) was proceeding in much the same manner as discerned in other ivory trafficking prosecutions involving Guinean nationals. KWS investigators had arrested Mailu and Traore Lancini in a motor vehicle in Nairobi transporting 55 kg of ivory. In the course of that investigation, Kone Kourtoume, another Guinean national was also arrested. He was later released without charge, and Lancini was reportedly deported mid-trial. Mailu was acquitted on appeal.83
Traore Lancini was also linked to a Fredrick James Muchina, a publicly recognized local kingpin in the ivory and rhino horn trade.84,85 In January 2016, Muchina was shot six times in a targeted extrajudicial killing. It is not known if he met his demise at the hands of those who were aggrieved at his continual evading of justice or from a business deal gone wrong.
Three months after the Muchina murder, Thomas Muhuro Ngatia was arrested in his family home with 112 kg of ivory hidden under his bed. The home had been rented to Fredrick James Muchina. In his statement to police, Ngatia said that he had been in the ivory business since 2008, recruited by Muchina. Ngatia was arrested with ivory again in January 2020 and made bail again.
Figure 20 exhibits a number of Nairobi area ivory seizures indirectly linked to ‘Sheikh’s et al’ through Moazu Kromah’s West African crime group. One of those seizures, the 1332 kg ivory capture (also reported as 2160 kg) at Jomo Kenyatta International Airport in August 2010 (PCR/2305/2011 – R. vs. Kenneth Kamau Maina {1332 kg}, was linked by DNA analysis to the ‘Sheikh’s et al’ Singapore seizure (Figure 24).
Since 2013, there has been a accumulation of intelligence from several different sources; internal, international, and scientific, leading to two undeniable conclusions. Kenyan TCO’s have been working hand in hand with the West African TCO to transport massive amounts of ivory from Mozambique, Tanzania, Uganda and Kenya to Southeast Asia.
The author has seen no indication that even a scintilla of this organized crime evidence has been produced for a wildlife trophy prosecution in Kenya.
DENOUEMENT – ‘FAILED’
This was a ‘fail’. The acquittal of MCCR 1132/2015*, R vs. Abdulrahman Mahmoud Sheikh and 8 others, was also pre-ordained. The failed negotiation in the mutual legal process between Kenya and Thailand was inconsequential to the final result.
The evidence is unequivocal and beyond a reasonable doubt. Balancing the scales of justice was not in the equation for this prosecution, one in which the trajectory had been pre-determined in the early months. This was a corrupted prosecution.
From one perspective, this conclusion is a relief. It is a relief for proponents of law enforcement or the prosecutorial process to realize that their brethren involved in this case could not have been as calamitously inept as has been portrayed.
It explains all the evidence seemingly amassed in the early stages of the trial that never made it into court as actual evidence. It explains how early affidavits revealed linkages between accused through phone data analysis that never made it to trial as admissible evidence. It explains the loss of a Nakumatt receipt that would have connected Sheikh A#2 to the Nyali ivory consolidation point. It explains the irrelevant ‘tea’ witnesses and the absent witnesses who were unwell, or unable to travel, or just not called.
It explains how in relation to the sister Singapore seizure, China charged and convicted the consignee of that shipment to 10 years’ imprisonment, Singapore fined the involved freight forwarder the equivalent of USD $5000 for failing to exercise due diligence,86 and in Kenya, it never made the charge sheet.
It explains the smoke and mirrors surrounding the failed mutual legal assistance with Thailand and the second failed mutual legal assistance with the United States involving new evidence that never made it past the magistrate’s chambers.
It explains the two-year delay before the first witness testified. It explains why expert witness, Dr. Ogeto Mwebi, of the NMK, on two occasions, forwent testifying in ‘Sheikh’s et al’ for seemingly lesser cases, because ‘Sheikh’s et al’ was, in reality, the lesser case. It explains how the Jefwa brothers, having evaded capture for seven years, knew exactly when it was safe to turn themselves in.
It explains how in the early stages, the financial investigation found evidence of a “well financed criminal cartel” and unexplained suspicious financial transactions in the accounts of the primary accused, only to retract on the final day, leaving the court with the belief that there was an absence of any financial connection between the primary accused and the trafficked ivory.
It indicates that the last day of the prosecution was never intended to tie up evidentiary loose ends but was instead, an orchestration. An orchestration to deflect blame, primarily onto Thailand, away from the DCI and ODPP, while at the same time, exonerating the accused. This orchestration involved defence counsel and almost certainly with the knowledge of the sitting magistrate.
The orchestration is explained by the court’s and defence counsel’s acceptance of countless documents, without the respective author’s present, many being irrelevant to any of the charges before the court.
It explains why the IO could provide no reasons for the charging of two accused, and trivial reasons for three others. It explains why his statement on the investigation was written four years after the fact and missing seemingly significant evidence. It explains how he could not eliminate the possibility that there was a real Said Juma Said sitting in Tanga (Tanzania) or the possibility that the ivory went into the container after it was loaded onto the Cape Moss.
This ‘failed’ prosecution, besides identifying that there were elements of corruptive practises involving Almasi Chai, Siginon Global Logistics, and lower level officials within Mombasa port, could not have been subverted in the manner that it was without state actor involvement.
One can imagine a conversation between them:
State Actor 1: “There has been a seizure of two shipments in which we have an interest. Siginon Global Logistics, ex-President Moi’s company, has been implicated. Our two exporters have escaped but the businesspeople working with the West African group have been arrested.”
State Actor 2: “Our partners will be disappointed. There is also a potential backlash impacting tourism and conservation funding, not to mention the negative portrayal of our national imagel. We need to indicate resilience and resolve in our response.”
State Actor 1: “We are already languishing on four other prosecutions in Mombasa courts, and there is the other one that Interpol became involved in that we extinguished.”
State Actor 2: “Let’s set up a multi-agency task force, bring in the LATF, get Interpol involved somehow, and have the police arrest and charge many. This necessitates a tactic beyond charging our usual one clearing agent. And perhaps some ancillary charges this time, an organized crime charge would show our commitment. We have not done that before in a wildlife case. Let’s restrain some assets, the vehicles of course, and perhaps a few bank accounts. Tell our people that once the international focus is reduced, we will get the courts to permit access to their accounts.”
“We do need the ivory back to mitigate losses. It worked with that 2013 Singapore case. If the ivory is not returned, we can blame that on the acquittal that must happen. Let everyone know that the investigation requires termination, bury the phone data, and internally we conclude the search for the Jefwa’s, while publicly spinning the opposite”.
“We need to drag this case out like all the others. It would help if the Magistrate who makes the acquittal decision drafts a long and wordy ruling that obfuscates what really happened.”
Not unplausible. But ‘Sheikh’s et al’ began in 2015. Are the same vulnerabilities of ten years ago still in play?
Past and Present Indicative of the Future
On the morning of Wednesday, November 16th, 2022, Yang Changgui, a 58-year-old Chinese national, was found dead by a roommate in his Lavington (Nairobi) apartment. Hoang Thi Diu, an apparently transient woman of Chinese/Vietnamese origins, contacted the police.
Investigating authorities attended the apartment and in the process of investigating the death (believed to be of natural causes), found a number of game trophies and other evidence of wildlife trafficking including: 80 cut pieces of ivory weighing 145 kg, 2 worked pieces of ivory, 2 rhino horn weighing 4.2 kg, 116 lion claws, 65 lions’ teeth and an electric saw. All evidence pointed to the police serendipitously discovering a consolidation point for wildlife trophy export.
A number of these wildlife trophies and documentary evidence were found in the bedroom of a third party, named by DCI investigators as Ali Hussein, described as an Egyptian national, who had been staying in one of the rooms. Testimony indicated he also had a home in Machakos and stayed in the Lavington apartment only on weekends. Ali Hussein was arrested at JKIA airport prior to boarding a flight out of the country. He was taken to Kahawa court, but the ensuing investigation absolved him from any involvement in the possession or trafficking of wildlife trophies. The court was also told that nothing of relevance to the investigation was found on the three mobile phones of the deceased Chinese national. The female found in, Hoang Thi Diu, who made bail despite a contradictory immigration status, was acquitted.87 (MCCR/E113/2022*, R. vs. Hoang Thi Diu)
On May 7th, 2023, the NPS and Kenya Wildlife Service intercepted a car in the Machakos area, approximately 90 km south of Nairobi, and found 81 kg of worked ivory in sacks. The ivory had been cut into disc like pieces and painted black and brown. The driver, Samwel Muisyo, and rear seat passenger (sitting beside the sacks of cut ivory) was Bashir Kasim, a Tanzanian national. Sitting is the front passenger seat was an unknown person who managed to escape. As the investigation continued, a third individual, Lazarus Kinyumu Mativo, was also arrested. It was ascertained that the vehicle was heading to Jomo Kenyatta International Airport (JKIA) with the ivory and almost certainly for international exportation. While the size of the seizure could be considered small, it was clearly the work of a TCO.
Within weeks, this prosecution, (MCPCR/E049/2023* – R. vs. Lazurus Kinyumu Mativo {81.7 kg}), had all the hallmarks of a case whose fate was already cast. The trial was going to be held in Machakos instead of Kahawa, a specialized court established in 2021 to hear terrorism and other more serious cases including environmental crimes. The case was given a ‘petty criminal case’ designation. The decision was made to withdraw the charges against the vehicle driver and his passenger, Samwel Muisyo and Bashir Kasim respectively, and instead have them testify for the prosecution. Kasim was at the time in Kenya and working illegally.
His August 2023 testimony was inconsistent and contradictory. There were significant differences between his statement to the police and that given on the witness stand. His evidence was more weighted against the vehicle driver, Samuel Muisyo, (now a prosecution witness) than the actual accused. In short, his evidence was not credible. To date, no other hearings have taken place and the matter is now on its 3rd Magistrate.88 Clearly, yet another prosecution on a pre-determined trajectory that is not synonymous with justice and deterrence.
On August 21st, 2024, police in Molo town, (South Rift Valley) arrested two men on a motorcycle in possession of five pieces of ivory weighing 10 kg. The ivory was inside a black bag that also contained a Scorpion Evo 3, 9mm carbine loaded with a 30-round magazine.
The carbine was Kenya government issue and in the possession of one of the accused, Ben Muiru Mwangi, a police officer attached to the Nakuru Central Police Station.89
The following day, both accused were arraigned on charges relating to the ivory. Eleven days later, the charges were withdrawn for reasons never divulged. Prosecutors in Molo and Nakuru region advised that the direction had come from ODPP HQ in Nairobi. ODPP HQ pointed the finger of responsibility at their regional office in Nakuru.89 The magistrate that initially took the plea was coincidentally transferred to Nyeri within days. While the withdrawal of charges may have been legitimate, the legitimacy was cast into doubt when the responsible agency, the ODPP, could not answer the ‘Why’ question, a question that should have been expected when one of the accused was a police officer found trafficking ivory while armed with an automatic carbine. MCCR/E1697/2024*, R. vs. Maina Gichure Kamus and Ben Muiru Mwangi {10 kg}
This case study, while only focused on one prosecution, has provided comparative evidence of 17 other wildlife cases with TCO indicators to reveal connectivity and similar process. Nine were major ivory seizures. All those marked by an asterisk (16), even those whereby a conviction was registered, were corrupted. This would tend to suggest that wildlife crime cases involving TCO’s or other wildlife cases of significance will continue to be subject to compromise.
This would also signal that while Kenya on the surface appears to be an “ivory looks better on elephants” or a “Hands Off our Elephants” type nation, continually compromised outcomes in ivory prosecutions would signify the opposite. There is a state actor(s) within government who has no compunction in utilizing the resources of the judicial system for six, seven, or eight plus years to further an invalid perception that Kenya is tough on ivory traffickers while amassing personal wealth.
By extension, if compromise is an element of essentially all ivory related TCO prosecutions, what of the integrity in the prosecutions involving smaller amounts of ivory? The author believes that while KWS and the NPS architect many impactful arrests and seizures, there are also amongst their ranks, at a number higher than would be classified as ‘rogue’, those who are executing arrests that would characterized by illegal entrapment, planted evidence, and perjured testimony. Innocent persons are being imprisoned for offences they did not commit.
The recent study in Uganda, “You walk on glass if you are in that space: Risks and harms of corruption in wildlife justice pathways in Uganda”,89 identified, on a wider scope and different methodology, many of the vulnerabilities observed in this case study. That study paints a very clear picture as to the effect and extent of corruption within the Uganda criminal justice system in relation to wildlife crime. It is stated that:
“Based on the results of expert interviews, this study found different types of institutional and individual corruption risk exist at every stage of the wildlife justice pathway in Uganda, including detection, arrest and arraignment, investigation and prosecution, judicial process, and incarceration.”
A similar study in Kenya would likely yield similar results.
Uganda has had a similarly poor performance over the years in their prosecution of major wildlife traffickers.
In January 2019, Ugandan authorities seized 3299 kg of ivory and 423.7 kg of pangolin scales that were set to transit Mombasa before a sea journey to Southeast Asia. The excellent initial investigation resulted in the arrest of three Vietnamese nationals in Kampala within a matter of days. However, the case fell apart when two of the primary accused were released on bail by Chief Magistrate Sarah Namusobya Mutebi in highly suspect circumstances. They successfully fled Uganda with their passports still in the custody of the police. DNA analysis tied this seizure to the West African crime group.
In 2016, Kampala was the epicentre of a number of ivory shipments in what was a collaborative effort between a local Vietnamese cartel and the West Africa TCO. One of these shipments formed the basis of the Mombasa prosecution of clearing agent, Ephantus Mbare, (MCCR/2511/2016*, R. vs. Ephantus Gitonga Mbare {1098 kg}). Despite the overwhelming evidence of Kampala origins, a Uganda investigation never materialized.
The 2017 arrest of Moazu Kromah, Kourouma Bangaly, and Mohammed Kourouma (the same individual arrested in Mombasa in May 2014 with a nephew of Mahmoud A#3) in Kampala was the epic example of the challenges faced in prosecutions after arrest. Found in a home that was not theirs, an apparent wildlife trophy consolidation point containing 1303 kg, Kromah offered investigators over $100,000 in bribes which they refused. He told them that if they did not accept the money, he would simply pay it to someone else, within the judiciary, to release him. And that is what happened.90,91 That matter has never been dealt with by the Ugandan courts.
The West African crime group has been the common denominator in many of these corrupted prosecutions going back to 2010. Is it even conceivable that Kenyan state actors and Uganda state actors had a common interest in the connection and trade?
What is certain is that without some significant changes in the status quo; the forever trials, the acquittals, withdrawals, convictions overturned on appeals, convictions with affordable fines in lieu of imprisonment, will continue. The mountain of evidence indicating TCO involvement will continue to be ignored, the DNA analysis that buttresses that evidence will continue to be ignored, the continued compromise of investigations and prosecutions involving TCO’s will persist and likely escalate, and lip service will continue to be paid to the observed corruption and compromise that surfaces regularly throughout the judicial process, and particularly in those prosecutions of TCO’s involved in wildlife crime.
While this case study has been focused on just one prosecution, a prosecution that began in 2015, the identified process vulnerabilities when examined against similar major ivory prosecutions, linked through logistics or DNA analysis, present characteristics and symptoms that still exist. If these vulnerabilities cannot be addressed, there is no reason to believe that a conviction of justice, deterrence, or integrity is attainable in a major ivory trafficking prosecution in Kenya. (the initial conviction of Feisal Mohamed Ali does not fall within the category of conviction of integrity)
The Battle Needs to be Taken to the Courtroom
The basis and foundation of this case study comes from hundreds of hours spent in the courtrooms of Kenya, observing, tracking, and recording the prosecution of wildlife crime cases.
The evidence is clear that it is in the courtroom where cases against high level offenders, even mid-level offenders, are being lost. This is not, however, where even a small fraction of conservation justice and international support is being funnelled. That funding and support is being allocated against anti-poaching and anti-trafficking training, classroom work and seminars on investigative and prosecutorial capacity building, and through the provision of up-to-date equipment, technical support, and advice. There is also significant involvement from international investigative NGO’s, comprised of highly trained operatives who, while primarily in the shadows, have led local enforcement agencies in serious and impactful transnational arrests. All this work, however, typically stops at the point of arrest and seizure. There is nobody, not a soul, in the courtroom when a re-enactment of the ‘Titanic hitting iceberg’ scene is quietly played out.
Metaphorically, when compared to a football match, the international conservation justice community is throwing all its resources and expertise into playing just one half of the match. They field their first team, including world class strikers, and are far superior to its opponent. The team attains a significant half time lead then walks off the pitch and out of the stadium. They are jubilant, believing that they have carried the day and won a significant victory. But there is a second half to play. The second team reserves are fielded, and the assistant manager is left to coordinate and strategize. The second team does have some very skilled players but their level of commitment is lacking.
The second half is not going to end well. The assistant manager has been given USD $18,000, deposited into an offshore account to make sure a loss ensues. The captain of the second team, the centre back, has been promised a slot in an elite national school for his daughter, if he can be ‘red-carded’ (ejected) from the match early in the second half. The goalkeeper had to be coerced, threatened with a transfer to a small-town side, away from his family, should the team win. The referee is promised international assignments and a future promotion to the league directorship to make the ‘correct’ calls. The VAR staff (video assistant referee) have had family members provided with employment, one with the Kenya Revenue Service at Mombasa port and another with an international wildlife NGO. In the end, the team suffers a decimating loss. It does not understand why.
The team strategy, however, remains unchanged. The team continues to play an exemplary first half, only to ultimately lose, and badly, in the second half. Over time, some of the team strategists understand what is happening but their responsibility is only the first half of the match. The second half is the responsibility of someone else. There is no available funding to rectify the second half implosions.
The team wins a match. There is elation. Weeks later, the decision is quietly reversed as a member of the second team, a player of minimal skill, is found to have contravened league drug policy. The ‘win’ is rescinded.
The team ownership is of the belief that they are only required to win the first half. They are eloquent and persuasive and attract more financial backers from sources who have little comprehension as to the real end game.
And the cycle continues.
The international conservation justice community is playing the ‘first half’. They may, from time to time, speak of the relevance or importance of the ‘second half’, but the money is rarely where their mouth is. Perhaps there is a tenet amongst ‘first half’ strategists, that the various criminal justice systems are capable of carrying the ‘second half’ to victory. That is incorrect. The criminal justice system of Kenya and those of many other elephant range states are compromised at will, particularly when involving TCO’s. There will be no final victory until those playing the ‘first half’ either get personally involved in the ‘second half’ or find others of skill and integrity to complement their ‘first half’ performance.
For the status quo to be reset, for there to be even a glimmer of hope in attaining a conviction of justice and deterrence in a major wildlife case, before even contemplating an attempt to circumvent the omnipresent corruption and state actor involvement, it is imperative for there to be a significant presence in the courtroom. This is also applicable to ancillary investigations relating to asset forfeiture or money laundering, types of investigations that require significant time and accuracy.
A courtroom presence necessitates independence, persistence, and commitment to the long term. It requires to be fashioned in such a way that the principles of the rule of law, integrity, transparency and accountability, are not sacrificed to political expediency, to garner trust, or through acts of collaboration with organizations that may compromise such independence. It needs to go beyond the collection and study of data.
The courtroom is the choke point of a criminal justice process where investigation, prosecution, judicial process, and often corruption, merge together for all to see. But somebody needs to be present to see it.
It took the court 8 ½ years and 81 sittings to reach the determination that in the case of Republic vs. Abdulrahman Mahmoud Sheikh and eight others, “no evidence has been produced by the prosecution to substantiate the claim that the accused persons were dealing with wildlife trophies.” In this case ‘no evidence’ literally means no evidence. The public and the international conservation justice community believe that Thailand was to blame.
Perhaps it is time to start playing the ‘second half’?
APPENDIX
When this case study was in the planning stages, I knew it was going to be a long one. I had been asked if it could be written in a range of 6000 words. That was not going to be enough. There were too many elements, too many story lines. I envisaged 30 pages. I underestimated.
The deeper I researched, went over transcripts, testimony, audio recordings, the more I came to the realization that the corruption was not local. In 2019, I received information from within DCI that the Sheikh’s case was over and to let it be. This study would seem to put credence in the story.
I am a staunch believer in a courtroom monitoring initiative. Compromised cases are not uncommon occurrences, discussed like the weather, an almost every day happening, and not treated as seriously as seen from a more western perspective. On the other side of the coin, however, investigations of integrity and commitment are still seen to regularly occur. The fact that in the past year, KWS have affected the arrests of 10 police officers transporting ivory in seven different incidents speaks to that. That also speaks to what should be seen as a worrying trend.
While there are many dedicated and honest rangers and police involved in combatting wildlife crime, there are just as many who are not. Is it not owed to the honest ones to do what can be done to assist them post arrest to mitigate corruptive influences?
I believe that courtroom monitoring executed in a manner whereby there is attendance in the courtroom in a consistent manner that includes the recording, audio or written, of the testimony of witnesses and accused, can mitigate against corruptive influences.
It cannot be based on data gathering, and/or attending a court station for a day or two every few months to check the court registry and perhaps sit in and observe a relevant case. Data as a general rule may indicate irregularities in the justice process but will not indicate compromise. It will not indicate flaws or inconsistencies in the arrest process. It will not indicate areas of opportunity in improving the handling of evidence or exhibits.
In 2023, I was fortunate to receive a grant from the Elephant Crisis Fund, an initiative by Save the Elephants and the Wildlife Conservation Network, to attend courts on a regular basis to observe, track and record what was happening in ivory related prosecutions. Two of the more significant findings related to the handling of exhibits and the arrest process.
It was observed that the seized elephant tusks were produced for the court on every occasion that an involved witness was testifying on such. If there were four KWS rangers involved in the arrest and seizure, the ivory would have to be produced for the court on each occasion that they took the witness stand. It would also have to be present when the expert from the National Museum of Kenya testified. This meant that the seized ivory was typically having to be removed from secure custody and transported to court on at least four or five occasions during the course of every trial. For the larger amounts, it meant that extra transport or security would have to be arranged accordingly.
Secondly, it was noted in the arrest process, that there was an uncommonly high number of arrest incidents executed by KWS where one of the ‘perpetrators’ escaped. The number suggested the use of an ‘agent provocateur’ or another third party indicative of illegal entrapment tactics.
These types of indicators are not realized through the infrequent gathering of data. They are also significant challenges and need to be addressed.
The courtroom monitoring equation would benefit with two other components to complement the process; mainstream media support and an NGO Support Structure in Wildlife Investigations and Prosecutions.
Mainstream media coverage is requisite to mitigating the corrupted processes and rulings in wildlife court cases. Silence plays into the hands of involved state actors and those within the judicial process who are coerced to do their bidding. While cases are routinely compromised in the criminal courts in situations where an interested party has the economical resources to subvert, no magistrate, prosecutor, law enforcement officer, or defence counsel likes to see their name come up in a google search associated to a corrupted ivory or rhino horn prosecution.
Kenya media are reticent in writing articles that portray the challenges faced by wildlife crime cases in the courtroom. As expected, there is no shortage of articles trumpeting arrests and seizures of wildlife poachers and traffickers. Follow up is wherein the problem lies.
Over the past six years, I have attempted to facilitate engagement with the media for related coverage, achieving but minimal success. A number of engaged journalists took stories of substance to their editors to have them nixed. Many journalists believe there is a safety concern by covering ivory and rhino horn cases. That speaks to state actor involvement and needs to change.
Published reports by Wildlife Direct in 2014 and 2016 on their courtroom monitoring activities included a number of recommendations. One of those recommendations, included in both reports, was the necessity to have an “NGO support structure to support wildlife investigations and prosecutions”. The aim of the structure was to “collaborate with government on investigations, arrest operations and prosecutions” and would also assist in “fighting corruption within the enforcement and justice system, ensuring good governance and transparency.” 93
It took seven years for that recommendation to be realized when in 2021 the DCI and international NGO, Focused Conservation, entered a partnership to combat wildlife crime in Kenya through collaborative investigations, arrests and prosecutions. Focused Conservation, led by retired Drug Enforcement Agency, Special Agent William Brown brought into the mix a team of highly experienced advisors, mentors, trainers, and analysts with extensive international law enforcement experience (a prosecutorial element added to their repertoire would have been welcome). The unit was known as the Kenya Wildlife Task Force (KWTF) and came into being in July 202194.
The collaboration, however, only lasted for three years when in October 2024, the unit was disbanded, ostensibly for lack of funding. The KWTF enjoyed success with significant arrests in both sandalwood and ivory operations. Just as importantly, it added an integrity component to the investigations and prosecutions of wildlife crime within Kenya. The disbandment came at an unfortunate time, a time when within Kenya, both the number of ivory seizures and the involved weights of each seizure, are slowly climbing and particularly in the coastal region.95 (Focused Conservation presently maintains similar high-level units in Uganda, Liberia and Nigeria.)
Some of you may be aware that I have signed off emails some years with “there will be no justice when the hyenas are investigated by the hyenas”. It is my belief that the particular hyenas to which I refer are at a level at which their prosecution is highly unlikely. However, we do now know their location. A courtroom monitoring element with a more active media participation can hopefully mitigate their activities.
ACKNOWLEDGEMENTS
I will always be especially grateful to Ofir Drori of the The Eagle Network who launched me into this, my third career. Also special thanks to Paula Kahumbu and Wildlife Direct for taking me on as a volunteer in 2015. Those thanks are extended to all the legal staff that I worked with at that time and particularly, Liz Gitari, Jim Karani, and Judy Wangari Muriithi. I would also like to thank the Wildlife Direct investigator, who I cannot name, and with whom I bumped heads with from time to time. Should you ever read this, your work is not forgotten.
Special thanks as well to Dr. Sam Wasser, John Brown III, and to Dan Stiles and a few years of our Friday afternoon meetings.
Author’s Note: In the coming days, this will be formatted for a PDF that will be found on this website.
