March 7th, 2023, was the day for the prosecution to close its case. It had been almost eight years since the first arrests, after Thailand authorities had discovered 511 pieces of ivory weighing 3127 kg and valued at KES 570 million (USD $4.3 million) in a sea container of tea leaves from Mombasa. The prosecutor and the investigating officer (IO) were prepared for a day of embarrassment and humiliation.
Four police witnesses were due to testify, only one was present. The explanation for absence? The Cybercrimes officer was unable to travel with no explanation given, the scene of crime officer was unwell, and a third involved officer was part of an active investigation in another part of the country and could not be released.
The reason that this was not a bigger issue than it should have been? This was not a day for solidifying the prosecution’s case, for tying up loose ends. This was a day for damage control. A day for throwing in the towel and capitulating with as much grace and humility as could be mustered by the Office of the Director of Public Prosecution and the Directorate of Criminal Investigations (DCI).
This court journey began in June 2015. Mombasa area businessman Abdurahman Mahmoud Sheikh @ Said Juma Said, his half-brother, father, a Kenya Revenue Authority (KRA) officer with five others were alleged to have been involved in shipping 3127 kg of ivory in a container of tea leaves to Thailand in April 2015. Facts also indicated that they shipped over 4600 kg of ivory to Singapore in May 2015 but those charges were never laid. The nine accused faced charges under the Wildlife Conservation and Management Act, the Prevention of Organized Crime Act and East African Community Customs Management Act.
Senior Superintendant James Githinji of the DCI was prosecution witness #27 and the only witness to be called. He was on the stand for almost two hours. Thirty minutes of his testimony was dedicated, on direct questions from prosecutor Jami Yamina, as to how the Kingdom of Thailand’s lack of cooperation had handcuffed Kenyan authorities in this trans-national investigation.
Much of his testimony was in effect a summary of the initial investigation, some was actual evidence, some was unsupported.
In essence, on March 21st, 2015, a sea container contracted by a Nicholas Jefwa went to Siginon Freight Services and was loaded with bags of tea. The container left a few hours later and instead of proceeding to a customs control area, went to a house in Nyali (east Mombasa). It remained there for 2 days until it was driven to the port where the container cleared customs, primarily on the strength of it carrying tea which, at that time, was exempted from scanning. It was implied through his testimony that the 3127 kg of ivory was loaded on the container during that 48 hour window.
The investigation subsequently revealed that the Nyali house was leased to a Said Juma Said, whom it was alleged, was one in the same as Abdurahman Mahmoud Sheikh, the first accused. Inside the home, a receipt was found that listed items from an area grocery store which, through loyalty points, was linked to the second accused, Sheikh Mahmoud Abdurahman. The father of the first two accused, Mahmoud Abdurahman Sheikh, was linked to the property through his sons. He had been seen at the Nyali property at least once in their company. That was unsupported by evidence.
Inside the Nyali property and amongst the items found were ivory fragments, tea leaves, a weighing scale, an electric grinder, and empty gunny bags, similar to those used to package the tusks in the Singapore seizure. The ivory fragments were confirmed to be elephant ivory.
The problems were then outlined regarding the required mutual legal assistance from the Kingdom of Thailand that had not prevailed. An investigative team from Kenya, supported by the NGO, Freeland, through the Lusaka Agreement Task Force, did travel to Thailand. Dr. Samuel Wasser, who had conducted DNA analysis on over fifty previous ivory seizures, was also part of that team. None of them were permitted access to the ivory for DNA sampling or related evidence gathering.
An investigative team from Kenya, supported by the NGO, Freeland, through the Lusaka Agreement Task Force, did travel to Thailand.
The continued diplomatic exchange of correspondence between Kenya and Thailand ended unsuccessfully on all counts but one. Thailand did provide an analysis to Kenyan authorities that the ivory found in the container was actually elephant ivory but it was not in a format that could be submitted to the court as real evidence.
Of note, and not specifically related to the trial at hand, was the testimony from SSP Githinji that two others wanted in relation to this ivory and on the Interpol Red List, were back in Kenya. The Jefwa brothers were the amongst the first to come under the microscope of the investigation. Nicholas Mweri Jefwa, 44 years of age, and his brother Samuel Bakari Jefwa, 30 years, were no strangers to Mombasa Port.
In September 2014, Nicholas Jefwa met with one of the directors of a tea exporting business, Almasi Chai, and together they formed an illicit partnership to export ‘tea’ to Far East destinations. It is known that the Jefwa’s, through their business, ‘Potential Quality Supplies’, and Almasi Chai, shipped three other containers of ‘tea’. The first one was on October 6, 2014, a second to Sri Lanka on December 12th and a third to Singapore on February 28th, 2015. The contents of those three ’tea’ shipments were never verified by customs officials, but it would not be a stretch to believe that they also contained ivory and almost certainly a minimum of 2000 kg per container.
The Jefwa’s fled Kenya within days of learning of the Thailand seizure. The pair, described by police as part of a cartel involved in ivory trade in East Africa, had been on the run ever since.
SSP Githinji told the court that the Jefwa’s had been in Kenya since November 2022 and under the protection of an anticipatory bail obtained through Mombasa High Court. The Jefwa’s were to provide statements to investigators as a proviso to the order.
While ODPP foisted much of the blame on the Kingdom of Thailand for the unsuccessfully resolved mutual legal assistance, there was no shortage of liability on the Kenyan side.
This case was beset with the regular institutional pitfalls associated with a long running prosecution such as transfers and re-assignments. Chief Magistrate Martha Mutuku is the 5th magistrate to have sat on this case. She has heard the testimony of three of the 27 witnesses. She will be relying on typed transcription made from handwritten notes of the other Judges to assist in her making a final decision.
Jami Yamina, now the head of Mombasa County DPP, was a prosecutor in this case in the early stages before a 2018 re-assignment to western Kenya and one year in the United States to obtain a masters in animal law. Three other prosecutors have had this as primaries, and a host of others have touched this file in some manner.
The police officer initially in charge of this investigation, Alphonce Odhiambo Kamlus, died sometime mid-investigation and not of natural causes. His sudden passing was blamed for a number of internal miscommunications and missing exhibits which included the weigh scales and the grocery store receipt that led them to the second accused. Under this umbrella was also the late ‘retrieval’ of scene of crime photos, not provided to defence counsel until the penultimate day of the prosecution. The photos and associated report were dated June 2015.
Overall, the prosecution had been plagued by delay not uncommon with prosecutions that have outside interests. It took two years and two months before the first witness testified. In August 2019, the DPP came under fire when the case was delayed again with the file being handed over to a more junior prosecutor with no knowledge of the case. In February 2021, Magistrate Evans Makori ordered prosecutor Edgar Mulamula to close the case, stating that “the spectrum of the case is being lost” and the “only remedy is to bring this to a closure”. He ordered Mulamula to bring the 5 remaining witnesses for a last hearing date.
The scheduled trial date did not happen. Fate intervened and for Covid related reasons, Mr. Mulamula was trapped in Nairobi as was one of the accused. Before another trial date could be set, the U.S. Fish and Wild Service supplied to the DPP in Nairobi, in an informal manner, new evidence that allegedly linked Abdurahman Mahmoud Sheikh and his brother to the Jefwa brothers and Moazu Kromah of the West African cartel. The DPP applied to the court to submit that evidence but 14 months later, the hearing to argue that application had never happened and the DPP withdrew the application.
From an evidentiary perspective, it was concluded in the day’s proceedings that there was no evidence whatsoever relating to Salim Mohamed Juma Khamisi or Abbasi Issa Rashid, who were drivers/staff under the employ of the first three accused. Evidence against Samuel Mundia, a taxi driver and trusted associate of the Jefwa’s, was provided literally in the last minute of SSP Githinji’s testimony. It was simply stated that he (Mundia) assisted the Jefwa’s in their escape from Kenya having driven them to the Tanzanian border and previously to the Ugandan border. There was also no evidence against the father, Mahmoud Abdurahman Sheikh, besides the fact that he had been seen once at the Nyali property. There was no witness who presented that fact, no date and time when that observation was made.
Mention was made of the asset recovery portion of this investigation that was initiated but fizzled out. Several vehicles were seized and a number of bank accounts frozen. But in the end, all that could be said was that amongst the accounts of the three primary accused, were some transactions for which they could offer no explanation. It was agreed by SSP Githinji on cross examination that there were no bank transactions that corresponded to a sale or transportation of 3127 kg of ivory.
And while all accused had been charged with an offence of under the organized crime act, there was no evidence presented that the organization behind these shipments was trans-national in nature or showed any collusion between accused. Phone data analysis, a normal staple of Kenya police investigations, was never presented. The application for new evidence, that could have shown a clear nexus between two of the primary accused and the West African cartel, was never heard. This was again blamed on complexities of mutual legal assistance between Kenya and the United States.
This major ivory trafficking case is expected to suffer the same fate as many before it. Acquittal. The lone previous 2022 conviction was tainted by the two-year prison sentence passed down to the two accused for a 3.8t ivory seizure from 2013. It was further marred when Lady Justice Ann Ong’injo converted the 2-year jail sentence to non-custodial probation, seven months into the sentence of one of the accused. Lady Justice Ann Ong’injo also approved the anticipatory bail order of the Jefwa brothers.
The consistent misfiring in the handling of major wildlife cases by the criminal justice system can’t help but make one wonder if all of this is being orchestrated by a hitherto unknown force, a force certainly at a level above that of Head of Mombasa County Prosecutions, Jami Yamina or Senior Superintendant James Githinji. Indeed, in this particular case, there are those who hypothesize that while the Attorney General of Kenya was requesting mutual legal assistance from Thailand through the ‘front door’, there were other and more powerful Kenyan interests speaking to Thailand through the ‘backdoor’, instructing them to decline.
Technically, theoretically, on paper, this case is not over. Chief Magistrate Mutuku still must rule on whether the prosecution has established a prima facie case for the defence to answer.
However, there was no one in court on that final day that did not see the white towel thrown into the ring.