Legal Precedent or “Legal” Corruption – The Repatriation of Seized Ivory
Mombasa Port - August 2013. 1833 kg of ivory returned from Singapore where it had been seized seven months previous.

Legal Precedent or “Legal” Corruption – The Repatriation of Seized Ivory

In the spring of 2015, the conservation world was rocked by three major ivory seizures that occurred within the space of a month.  Thailand customs seized approximately 4000 kg of ivory in a bean shipment from the Democratic Republic of Congo on April 18th. One week later they seized another 3127 kg of ivory in a tea shipment from Mombasa, followed three weeks later by Singapore seizing 3364 kg of ivory (later discovered to be closer to 4600 kg) in a sister shipment of tea, also from Mombasa.

While there were some logistical links between all three shipments, the two ‘tea’ shipments were clearly the work of the same Mombasa cartel.  Nine persons (Abdurahman Mahmoud Sheikh @ Said Juma Said and eight others) were charged for the Thailand 3127 kg shipment which is presently still before the Mombasa courts. No charges were laid in relation to the Singapore seizure.

The Thailand case is now in its 6th year, not uncommon in a Kenya court case of significance.  What was uncommon, however, was the initial reason for the delay; Kenya wanted the seized ivory back.  

3127 kg of ivory from Mombasa, seized in Bangkok, and enroute to Laos. Nine persons are presently before a Mombasa Court.

It was claimed that ivory was an essential exhibit and the case could not be adjudicated without the court seeing the actual ivory.  I was but a neophyte to wildlife crime investigations at the time and it was incredulous to me that over three tonnes of ivory would have to be returned 7000 kilometres to Kenya for a successful prosecution.

It was my initial belief that the necessity to view the real ivory evidence was a requirement of the presiding magistrate.  That belief was recently quashed when I read the typed court proceedings of the Republic versus Abdurahman Mahmoud Sheikh et al to find there was no such reference.  The closest referral to the subject was a statement made on November 10th, 2015, by Senior Principal Magistrate Rotich, that “the issue of exhibits is germane to the case”.  

Of course, we do not know what happened behind the closed doors of court chambers or who specifically proposed that the ivory should to be repatriated.  It turns out, however, that this apparent legal precedent to repatriate ivory was not new and has come up on five other occasions with a Kenyan connection to all.

Singapore 2002 - “The Largest Recorded Ivory Seizure”

June 2002, Singapore - A shipment totalling 7091 kg of Zambian ivory, including over 40,000 ceremonial Japanese hankos, seized.

At the time, it was the largest recorded ivory seizure since the international ivory trade ban in 1989. Based on a tip to investigational NGO, Environmental Investigation Agency (EIA), 7091 kg of ivory from Zambian elephants, including 758 kg or 40,810 of ‘hankos’ ( a traditional signature stamp made of ivory found primarily in Japan) was found in a container that had made a circuitous trek through Malawi, Mozambique and South Africa. 

Considerable investigations were done by both law enforcement and the EIA.  The unforeseen hurdle came when both Zambia and Malawi indicated that the ivory would have to be repatriated before prosecution.  Their courts needed to see the ivory. 

Despite the idea being refuted by international prosecutor  Kamudoni Nyasulu, both the Lusaka Agreement Task Force (LATF) and international NGO, International Fund for Animal Welfare (IFAW) bought the argument, and in 2004, the ivory was returned, not to Zambia, but to Kenya, perhaps as it was serving as the headquarters (Nairobi) of the LATF.  

The ivory was reportedly stored at the Kenya Wildlife Service (KWS) Law Enforcement Academy until 2011 when the bulk of it was burned in a public relations exercise by then President Kibaki.

The disposition and the exact weights involved ivory have always been a little clouded.  It has been claimed that part of the ivory was sent to Zambia and Malawi for ‘educational purposes’, 1656 kg and 548 kg respectively.  CITES records show that Kenya sent ‘pieces and carvings’ only with no specification as to the precise weights involved. 

In the end, despite the repatriation, there was never any prosecution of consequence.

Dar es Salaam 2012 - Hassan Othman ‘Hassanoo’

1330 kg of ivory from Tanzania seized by Hong Kong Customs and Excise November 15, 2012.

On November 15, 2012, the very efficient Hong Kong Customs and Excise Department seized a shipment of 569 tusks from Tanzania amongst a consignment of sunflower seeds. Within a week, Tanzanian investigators had arrested Hassan Othman Hassan @ Hassanoo and five others for exporting the 1330 kg of ivory.

Tanzania made a formal application to Hong Kong for the return of the ivory which after some considerable time was declined.  It is reported that Hong Kong did agree to sending photos of the seizure but would not accept a visit by Tanzanian investigators.  The status of this case is not known but Hassan’s bail application appeal was turned down in 2016.

Based on data research and analysis by non-profit Center for Advanced Defence Studies (C4ADS), this particular seizure was closely linked to three Kenyan related ivory seizures, one of which was repatriated to Mombasa from Singapore in August 2013.

Singapore January 2013- 1833 kg Repatriated to Mombasa

January 23, 2013, Singapore. 1833 kg of ivory from Mombasa.

Singapore was the source again of another repatriated ivory seizure.  On January 23, 2013, the Agri-Food and Veterinary Authority of Singapore inspected a sea container from Mombasa and found 1833 kg of ivory amongst a shipment of mazara stones that had been declared as waste paper.  This was the third Mombasa related seizure in the space of three weeks, all with a similar logistics train.

According to later testimony from a lead Kenya Wildlife Service investigator, the Director General of the KWS (William Kiprono), after consultation with his investigators and those of the Lusaka Agreement Task Force (again), made a formal written request to AVA Singapore.  

“The management of Kenya Wildlife Service in consultation with the Lusaka Agreement Task Force made a decision to pursue further investigation on the container including repatriation of the container to Kenya for Law enforcement/ prosecution purposes.

This ivory was returned to Mombasa in August 2013.  Five weeks later, a Kenyan clearing agent, Fredrick Mungule, and an official of the Kenya Port Authority were charged in relation to this shipment.  They had already been charged in relation to two other Mombasa related seizures from January of 2013.

Six years later, on July 18th, 2019, the court went to the “scene” (in other words, the container) to verify the contents.  Retired Assistant Inspector General, Pius Macharia, who had led the small Kenyan delegation to Singapore regarding the repatriation, gave verbal testimony to the court as to the contents of each of the eight large wooden crates.  His testimony was detailed as to the weight of ivory in each box, the number of tusk pieces and even the number of bags.   On conclusion, one of the boxes, exhibit # MFI-35, said to contain 65 pieces of ivory weighing 144 kg, was opened for the court.  It was noted that “the contents were verified by the witness.”  The magistrate then asked the three defence counsel if they wished to verify all the boxes, to which all declined.

In other words, a shipment of 1833 kg of ivory, consisting of 17 large crates of which 8 contained ivory, were shipped 7000 kilometres back to Kenya for the court to actually see just one.  

This case is still ongoing and two officials of the Kenya Revenue Authority have been included on the charge sheet.  Coincidentally or not, this seizure was closely linked to the Abdurahman Mahmoud Sheikh seizures to the point that the same two drivers delivered the all the involved containers (6) to Mombasa port.

Perhaps also of note, in 2015, KWS sent samples from most its major seizures to the U.S.A. for DNA analysis.  This shipment was not among those shipped. 

Kampala October 2013 - An Illegal Seizure

October 17, 2013, Kampala. 2903 kg of ivory seized from a warehouse pending shipment to China through Mombasa.

While not falling under the strict definition of repatriation,{ “the act or process of returning a person or thing to country of origin}, this last included seizure was characterized by a legal twist that shocked both the legal and conservation fraternity at the time.

On October 17th, 2013, a container of 2903 kg of ivory was seized in a warehouse just outside Kampala, Uganda, as it was about to be trucked to Mombasa for a Chinese destination.

This seizure was made not even two weeks after 4000 kg of ivory had been seized in Mombasa,  days apart of each other, both shipments originating from Kampala and heading for Turkey. 

The main suspects were identified as a Kenyan, Odhiambo Owino, and Kayumba Emile Ogane of Rwanda. Warrants were issued for their arrest.  

In a bizarre twist, and while on the run, Emile Ogane through his advocate, petitioned the Ugandan court for the return of his 832 pieces of ivory.  He claimed that the cargo had been wrongfully seized, that the Uganda Revenue Authority had caused a loss of delivery time to its destination in United Arab Emirates and China and that the statutes of Uganda Customs law were not applicable to a shipment in transit.

Emile Ogane ‘found’ an ally and on February 24th, 2014, Justice Wilson Masalu Musene ruled in his favour, stating that the ivory confiscation had been illegal and should be returned immediately to Ogane (he was still on the run from the criminal arrest warrant).

In the end, as is not always the case, sanity prevailed and the ruling of Justice Musene was suspended by a higher court.  Emile Ogane was arrested in Uganda  in 2016 and it is believed that the proceedings are still ongoing.  Odhiambo Owino is still on the run seven years later even though authorities are aware that his wife works in Mombasa .  There was no prosecution regarding the two sister shipments seized in Mombasa.

Mombasa December 2016 - Recalled from the High Seas

Timber planks as seen in container
Hollowed out timber, packed with ivory and surrounded with plaster
Filler chipped away revealing ivory.

It was heralded as a success of Mombasa customs protocol. It turned out to be anything but.  On December 21st, 2016, in Mombasa, various enforcement agencies verified the contents of two containers and found a total of 1097 kg of ivory secreted inside hollowed out pre-fabricated planks. 

This was, however, not the first time the containers had been verified by the Kenya Revenue Authority (KRA). In mid-October, the containers passed verification, were cleared for export with Kenya Ports Authority and KRA approval, and departed Mombasa.

Some weeks later, after six other ivory seizures  in Vietnam and Cambodia (one transiting Mombasa), all with identical modus operandi (ivory secreted in timber),  Kenya recalled the two containers as they arrived in Singapore.   

According to the Kenya Revenue Authority Commissioner of Investigations David Yego, two Cambodia bound containers ferrying ivory were recalled to Mombasa Port from the high seas when intelligence information indicated they were carrying the illegal cargo.

In the ensuing investigation, one Kenyan clearing agent was charged.  No prosecution was commenced in Kampala, the clear epicentre of all shipments.  

In January 2018, elements of the same Vietnamese cartel with a Guinean supplier, were arrested in Cote d’Ivoire.  They have since been convicted with minimal sentences.

Thailand - Mombasa April 2015 - "Tusks Were Court Evidence"

The investigation began with a rocky start.  Senior Thai politicians and customs officials stated publicly that the recovered ivory had been previously seized and then returned to Africa, to be seized by them again.  The various reports were ambiguous as to whether is was from Kenya or another African Nation. 

A Kenyan daily stated that it “had established that a criminal enterprise involving Kenyans and foreigners is involved in stealing and reselling ivory used as evidence against poachers in court cases”.

To make matters worse, a respected freight business, Siginon Freight Ltd,  owned by the family of ex-President Daniel Arap Moi, was initially implicated and a number of their staff jailed for weeks. Two ‘consignors’ of the shipment, brothers Nicholas and Samuel Jefwa, initially identified as prime suspects, absconded and have not been found to date.   There are reports from a number of unrelated sources that the Jefwa’s were being protected from a high level.

To cap it all, Thailand refused to release the ivory and even refused a Kenyan investigative delegation access to the ivory, after it had been flown to Bangkok in 2016 courtesy of international NGO, Freeland.

As of the date of this report, while Thai officials have permitted the DNA sampling of the ivory by U.S. DNA experts, and Thailand may send witnesses to testify in the Mombasa trial, there is no indication that the ivory will be released.

Mombasa Courts - The Lay of the Land

To date, only four of the nine ivory trafficking prosecutions in Mombasa court have made the seized ivory available to the court.

Mombasa Law Courts are no stranger to major ivory trafficking cases. Since December 2011, there have been prosecutions relating to nine ivory seizures.  There are still five ongoing, (four are the same cartel) and the other four ended in acquittals.

Kenya’s policy on prosecution appears to be inconsistent.  Of the nine prosecutions, four are from seizures made in other countries.  During that time, there have been three other notable Mombasa seizures where there was no prosecution at all and eight seizures in other countries that were not prosecuted in Kenya.

More importantly, there is clearly an inconsistency in the courts requirement to view the actual seized ivory. To date, only four of the nine ivory trafficking prosecutions in Mombasa court have made the seized ivory available to the court.   In R v Mungule (Hong Kong) the ivory was never returned, R v Maweu, the ivory was allegedly in police custody but never displayed (there is strong circumstantial evidence that most or all of this shipment was no longer in Kenya). In R v Yusuf et al, the ivory (in Singapore) had been destroyed even prior to charges being laid. It remains to be seen what happens in R v Abdurahman Mahmoud Sheikh.

There is no shortage of rendered rulings and judgements from courtrooms around the world that have defied logic or belief. The necessity in this era for a court to have tonnes of ivory returned thousands of kilometres to its jurisdiction for trial, surely fits in that classification.  By that logic, would not a court require a cadaver to prove a murder case, or an 18 wheeler lorry/truck with contents, in a theft case, or  an aircraft and contents in an arms trafficking prosecution?

While it cannot be ascertained in R v Abdurahman Mahmoud Sheikh who exactly pushed for the ivory to be repatriated to Mombasa, the close Kenya connection to the other five repatriated (or attempted) shipments has to raise some eyebrows.  

According to EIA seizure records up to March 2019, there have been upwards of 175 major ivory seizures around the world  since 2000.  A major ivory seizure is deemed to be one where the quantity of ivory recovered is over 500 kg in weight.  

Of those 175 seizures, legal avenues were explored to have six of them returned to apparent jurisdiction.  All six seizures have Kenyan links.  

Perhaps the avenues weren’t actually legal?

Editors Note: SeeJ-AFRICA would be grateful for any updated information on the ongoing trials in Tanzania and Uganda of Hassan Othman Hassan or Kayumba Emile Ogane respectively. Thank You.

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