Four or more criteria present in a “cartel” case indicates that someone has their fingers on the scales.
Sitting in the dock of courtroom 5, Kibera Court (Nairobi), middle-aged Kenyan, Bernard Musau Mailu does not look like a threat to anyone, let alone the savannah elephants of East Africa. It is difficult to believe that his connections to West African Ivory cartel leader, Moazu Kromah, were as close as they were. Mailu had been arrested and charged on three separate occasions in various parts of Kenya between October 2013 and May 2014 with what could be considered small amounts of ivory.
His involvement in one of those seizures was subject in a recent media article “Mansur Surur and how Botched Cases Kept Ivory Cartels in Business”. On October 12th, 2013, Kenya Wildlife Service (KWS) officers in Nairobi, acting on intelligence, (Mailu had been arrested with ivory 8 days previous near Tsavo East National Park), snagged Mailu again in the process of ‘giving’ 55 kg of ivory to Guinean national, Traore Lancine.
A later search subsequent to arrest of Lancine’s Nairobi residence yielded two passports, a laptop, an iPad, camera and three mobile phones. Hardly the possessions of your basic ivory mule. A third male, also Guinean, was also arrested in this investigation and later released without charge.
During the ensuing court process, Lancine was reportedly deported to Guinea, (never officially verified), his passports, laptop, phones etc., returned, his name removed from the charge sheet and 3 years later Mailu was acquitted.
The disposition of Mailu’s first arrest in Makindu is not known but in his 3rd arrest in Mariakani, he, the only one of four other co-accused, was found guilty and fined ksh 100,000 ($1000). It should have been closer to $50,000 with jail time in default. One of the co-accused was also Guinean, based in Kampala and and happened to be the son of Moazu Kromah.
To the more cynical, it appeared that the cases were corrupted and/or interfered with by those higher up the food chain. But how can one really tell? How does one differentiate between incompetence, poor training, sub-standard evidence handling, questionable prosecutorial or judicial decision making against subversive elements at play.
The 2018 Organization of Economic Co-operation and Development (OECD) report “Strengthening Governance and Reducing Corruption Risks to Tackle the Illegal Wildlife Trade” presented a somewhat damning pie chart (recently replicated in the UNODC 2020 Wildlife Crime Report) that would indicate that police, military, park rangers and low level government bureaucrats bear the brunt of corruption allegations in wildlife crime.
The data, however, and as explained, came from just 100 cases sourced from open media. It was admitted that the data was “affected by a range of difficulties that limit their reliability” and favoured the reporting of corruption at the lower levels. But what of judges, magistrates, prosecutors, defence lawyers, and court administrators who are also part of the criminal justice process? The reason there are so many acquittals in major wildlife crime cases does not fall solely on the shoulders of police and investigators.
In the arrest of Bernard Mailu and Traore Lancine described above, while it is clear that the case was corrupted, it did not begin with the arresting officers. If the KWS officers involved had been corrupt, the arrests would never have happened. They would have taken the ivory, laptops etc. for themselves and cut the accused loose or at least taken money in exchange for their release. The arrest of Mailu and Traore was corrupted post arrest, meaning that it came from the top down to include any one (or more) of the following: KWS hierarchy, prosecutors, magistrates or higher level politicians.
INTERFERENCE FROM ABOVE
The “extradition” to the United States of Kenyan drug lords (and sometimes ivory traffickers) Baktash and Ibrahim Akasha, in late January 2017 revealed clearly to all what many already knew. The government of Kenya does interfere in judicial decisions and that corruption within the criminal justice system is a more common occurrence than would like to be acknowledged. The manner in which the Akasha’s et al found themselves before a New York District Court was anything but sanctioned through rule of law and for one very good reason as described in the second point. The Akasha’s had conspired to pay “hundreds of thousands of dollars in bribes to the judges, prosecutors and law enforcement officials” in Kenya to ensure that the extradition hearings went their way. While some may say that one case is not indicative of anything, those who know the Kenyan criminal justice system know that the Akasha’s were not just one case.
In the past two years, four acquittals have been registered in Kenyan courts in four separate major ivory trafficking prosecutions. There were indications of corruption in all four (more on that later) but only the appeal acquittal of Feisal Mohamed Ali registered any attention and it had little to do with the corrupted process but the decision itself. The other three acquittals were quietly assessed as the result of sloppy investigation or poor prosecution.
In the prosecution of Republic v. Nicholas Maweu John, (Mombasa 3.3 tonne ivory seizure July 2013) Chief Magistrate J.M. Nang’ea stated in his judgement that “the case was poorly investigated” and that “the onus is on the prosecution to tender evidence incriminating the accused beyond a reasonable doubt …..the prosecution has not discharged this burden.” But do judges and magistrates also bear responsibility for the corruption that often appears in major wildlife crime cases?
Our society gives amazing latitude to judges. Regardless of how inane or highly questionable a decision may seem, magistrates are given powers of discretion that on occasion makes ones eyes tear in laughter or pain. Society has them on a pedestal from which they can make legally defensible decisions based on their personal values and political leanings with minimum of oversight. For this very reason, judges can be a final trump card for organized crime cartels to get them off the hook.
It is recognized that in a corrupted wildlife crime court case, the lines may be blurred as to exact culpability. Regardless, there is a need for these cases to be identified and called out, to be labeled as corrupted and acknowledged as such. Where proceedings do not specifically identify where the corrupt act(s) originated, the case and the magistrate should be identified. Magistrates do have a tool called a ‘mistrial’: “a trial that a Judge brings to an end without a determination on the merits, because of a procedural error or serious misconduct occurring during a proceeding.” This could have been done several times over in the trial of Feisal Mohamed Ali. Amongst over 1000 wildlife crime cases in Kenya, the author has never seen one declared ‘mistrial’.
HOW TO TELL IF THERE IS CORRUPTION IN A PROCEEDINGS
One of the reasons that corruption in a court proceedings is rarely called out is due to the fact that it is so difficult to prove. There is rarely a smoking gun or a single act that denotes beyond a reasonable doubt that a corrupt act occurred. The well known ‘missing file’, or ‘conflicting testimony’ can be human error. But corruption is rarely a single act and therefore circumstantial evidence, or similar fact evidence or modus operandi has to be examined to detect when corruption has reared its ugly head during a trial. Like the impaired driver who has the smell of alcohol on his breath, blood shot eyes, slurred speech, a half consumed bottle of rum in the seat beside, none of which, when taken singularly, prove he is impaired. The evidence has to be looked at in concert. And so with a corrupted court case.
The following indicators are presented to assist in identifying when a wildlife crime case before the courts has gone, or is going to go, sideways. The author hypothesizes that if four or more of the following is present in a “cartel” case, one can unequivocally make the conclusion that the case is being subverted. This report is based on Kenyan cases but the revealed criteria are clearly applicable to most, if not all, African elephant range states.
- CARTEL CASE OR NOT
The first thing to understand is that not all ivory seizure cases are created equal and the investigation and prosecution of each must be taken in context. A seizure of 5 tusks from a Maasai cattle herdsman on the back of a motor bike is not the same as a 100 kg seizure from a vehicle with a hidden compartment traveling from Kampala enroute to Mombasa. The risk of corruption appearing in the prosecution of a “cartel” case, (one with transnational connections) is much higher than for your local poaching scenario.
- TRIAL LENGTH – TOO LONG OR TOO SHORT
On the subject of context, it is also important to know what the base line is in certain areas of concern. As an example, criminal cases before Kenyan courts take considerable time to prosecute. The judiciary says the average is about 2.5 to 3 years. For “cartel” wildlife cases, it is about double that. In Kibera court, there is a “cartel” case involving 73 kg of ivory seized in 2012 that is still ongoing with no end in sight. A major Mombasa case made the news in 2019 “DPP accused of delaying Sh576m ivory case” after an adjournment request when a new prosecutor had been assigned to the case. That case is in its 7th year. There are two other prosecutions, both involving a clearing agent by the name of Fredrick Mungule, that are now in their eighth year (he was recently acquitted). From a corruption risk perspective, eight years is a huge red flag.
Interestingly enough, the prosecution of Feisal Mohamed Ali, perhaps the benchmark of corruption in a wildlife crime court proceedings, was at the other end of the spectrum. Despite the fact that the there were four other accused represented by 5 lawyers, it took an unheard of 19 months from the time of Feisal’s arrest to initial conviction (he was later acquitted on appeal). Clearly, some pressure for brevity was being applied. Another red flag.
- NUMBER OF SITTINGS AND BAD HAND WRITING
Some numbers may better assist to put this all in perspective. In the Republic versus Abdulrahman Mahmoud Sheikh et al, from June 23, 2015 to August 2019 the court had at least 48 sittings. That did not include miscellaneous application sittings related to seizure of assets. The court sat for 29 times before the first witness testified, two years and two months from the first arrest. Remember, the entire trial length for Feisal was 19 months. To date, nine different prosecutors have handled this case in some way and at least one judge and seven different magistrates. Chief Magistrate Evans Makori took the case in 2017 and has heard all 24 witnesses to date. He was recently promoted to the High Court and is in the process of being replaced. One can only hope that his hand writing is legible. In the Republic versus Feisal Mohammed Ali et al, the mid-trial and unexplained suspension of Principal Magistrate Davis Karani (red flag) caused the trial to start from scratch, ‘de novo’ is the legal parlance, when the replacement Senior Principal Magistrate Diana Mochache could not read his hand written notes on the previous testimony (red flag).
If one was to judge the health of criminal justice actors based on courtroom adjournments for sickness, the word ‘hypochondriac’ may come to mind. And sickness can occur with stunning swiftness. In one circumstance in Republic versus John, ODPP requested an adjournment to a scheduled hearing which was denied (surprisingly) with the hearing set back a few hours. In the time it took the court to resume session, the prosecutor came down with an illness, there was nobody in the office to replace him, and he could not continue. Adjournment granted. Red flag.
Besides illness, the reasons for adjournments are many, with the more popular being; unavailability of witnesses (particularly police), lack of proper disclosure to defence, prosecutor or defence not ready, court documents not ready, Magistrate/prosecutor in training or on vacation, to name but a few. Many of theses reasons are legitimate, bearing in mind a judicial system badly in need of overhaul. Red flags are raised when a Magistrate has to issue an arrest warrant for a police officer or other key witness to testify (Republic versus Feisal) or there are long gaps in time between hearings for reasons even more frivolous than those previously mentioned.
- WE CAN’T FIND HIM
The public is not normally privy to the details of a police investigation but the integrity of an investigation can be clearly seen when its case is presented in court through testimony of witnesses. In a 2017 published ranking of police agencies internationally, the Kenyan police did not do particularly well, third from the bottom actually. Having said that, there is no doubt, that if they really wanted to find someone, if the money or stakes were high enough, they could do it. In Republic versus Maina, the apparent owner of the shipment, identified in court by a number of witnesses who knew him, was never found. In Republic versus John, two persons were identified in testimony as being considerably more integral to the shipment than the accused. One in particular, Mwinyi Hamisi, was also known by a number of witnesses as a Mombasa clearing agent of some years. He was never found. Mwinyi Hamisi’s name also came up in the Interpol involved investigation relating to a June 2013 Mombasa ivory seizure as a person of interest. Major red flags here. The Jefwa brothers, wanted for their very prominent role in shipping almost 8 tonnes of ivory to the Thailand and Singapore five years ago, have not yet been located in what is a story of high level corruption in itself.
- DON’T WORRY ABOUT IT, THE TRIAL IS NOT GOING TO FINISH
Typically, one of the first red flags of subversion is any deviation away from established police investigation protocols and evidentiary timelines. This includes the production of expert evidence to perhaps confirm that the ivory seized is actually ivory or to show links between accused through mobile phone communication data. When this evidence is actually requested by investigators or prosecution may also be a red flag. In R. versus Feisal, the first prosecution witness testified on January 20, 2015. The police request made to Police Officer David Kiboi for his phone data analysis was made in August 2015. He did not actually receive the data to analyze until November. The handwriting analyst, Superintendant John Muinde, testified that he did not receive the police request to analyze Feisal’s handwriting on the gate register/receipt until July 27, 2015. This means that the prime evidence on which Feisal’s conviction was based was not requested until eight months after the trial had commenced (two red flags). In the R. versus Mungule, investigators did not request their seized ivory to be examined until 2 years after it had been seized.
- HOW MUCH IVORY DID WE SEIZE?
Ivory seizure weights are something that people get sensitive about and expect to be accurate. In R. versus Maina, the first media reports indicated that the seizure weighed 1700 kg and consisted of 727 pieces. The numbers submitted by KWS to ETIS (Elephant Trade Information System) showed a 1899 kg seizure with 727 pieces. The charge sheet before the court still indicated 727 pieces but the ivory weight had decreased to 1500 kg. In R. versus John, the charge sheet indicated 444 pieces with no weight indicated (red flag). The amount submitted in the ETIS report was 3287 kg while the police cover report indicated an amount of 3.84 tonnes. More red flags.
- KENYA REVENUE AUTHORITY – WHOSE TEAM ARE THEY ON?
Personnel from the Kenya Revenue Authority have either been charged or demonstrated procedural “anomalies” in every Mombasa related ivory seizure. Of the four active cases in Mombasa courts presently, KRA personnel are on the charge sheets of every single one. One of the accused, James Kinyua Njagi, was the Head of Verification for at least 3 years before his arrest relating to a 2014 one tonne ivory seizure made in Singapore that had exited Mombasa Port. The use of customs seals and shippers seals seems to be an area of concern. The KRA in Mombasa Port is a red flag factory.
- GO STRAIGHT TO “CORRUPTED”
Threats and intimidation are one criteria where no supplementary evidence is required to make the determination that a court case has been corrupted. Jim Karani, past head of the Legal Department at Kenyan NGO, Wildlife Direct, can regale a few stories about that including what is chronicled in 2018 Vogue article, “Who will Save the Elephants?” But it is one thing to have Feisal sitting in court, pointing his fingers at Karani like a pistol and pulling the trigger compared to actually being shot at or finding a ‘messenger’ waiting by the front door of your Nairobi home. Karani was not the only one within Wildlife Direct to be subject to such tactics and the Feisal case was not the only one where intimidation and threats were used. One such case is still active.
Feisal Mohamed Ali points his finger, pistol style, at Wildlife Direct’s Legal Affairs manager, who was sitting in the Mombasa court.
There are certainly more criteria for identifying when a corruptive influence is in the courtroom. This report is meant to highlight a few. If the UNODC, who bends over backwards to avoid pointing fingers, can discuss corruption in a significant way in two 2019 reports, perhaps it is time for law enforcement agencies (including LATF and Interpol) and conservation NGO’s to take note and now move beyond the “discuss” stage. Identifying corrupted wildlife trials based on clear criteria is a pathway that it is time to take.
UPDATE: On 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 three accused of ivory theft. After eight years in court, the testimony of fifteen witnesses, and the repatriation of 1,833 kg of ivory from Singapore to Kenya, the prosecution could not prove its case.