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Acquittal in 16 kg ivory possession case; a microcosm of the challenges and opportunities faced by Kenya Wildlife Service, National Police Service and Prosecutors, in wildlife crime prosecutions.

A Review: Criminal Case No. 843/2017 Chief Magistrate's Court, Kwale, Republic vs Hasira Makoti Mwanzala

Kwale Law Courts, Court #1

Kwale Law Courts are typical of many through out Kenya; rustic, often dusty, spartan.  There are two physical courtrooms but it is presently running three different courts; court 3 taking advantage of mid-morning breaks in either court 1 or court 2.  The prosecutors manage to squeeze into a small, hole in the wall, type office. In the administration offices and adjoining hallways, files are stacked in every conceivable niche. 

Kwale County is Kenya’s most south easterly county.  An hour’s drive southwest of Mombasa, with an eastern boundary of the Indian Ocean and spectacular beaches, it is also home to the Shimba Hills National Reserve and the Mwaluganje Elephant Sanctuary.  Shimba Hills has, according to some, a slowly diminishing elephant population and so ivory poaching and trafficking cases are no stranger to the Kwale law courts.

One such case ended on Monday, June 20th, 2022.  For Hasira Makoti Mwanzala, a Revenue Officer with Kwale County, it was the end of a 4 1/2 year journey through Kwale Court.  Senior Principal Magistrate J. Omido found Mwanzala, not guilty of being in possession of  two tusks weighing 16 kilogrammes on December 15th, 2017.  

From a law enforcement and prosecution perspective, this was the type of prosecution that should have registered a conviction; a basic sting operation, based on intelligence and quick witted undercover KWS Rangers trying, by way of phone communications, to entice a wary buyer of selling his/her ivory at an attractive price.  

But instead of a conviction, and with Hasira Makoti Mwanzala unrepresented, an acquittal was eked out through investigational, prosecutorial, and procedural failings along the way.

The accused, Hasira Makoti Mwanzala, on his arrest in December 15th, 2017 at the Diani police station.

Acquittals are not typical in these smaller cases and while it is perhaps easy to blame the outcome on human failings, there are lessons to be learned and opportunities to follow for those who are open minded enough to appreciate.  This scenario type, the undercover ivory sting, is the most basic and most typical of KWS investigations.  The foundering of this case was not due to the errors of one or two individuals but through what could be considered a series of minor breakdowns, each on their own not fatal, but in concert, enough to lead to an acquittal.  

There will be many whose first thoughts on cause will vector straight to “corruption”. While this review does not rule out that possibility, it is not obvious as has been seen in other subverted prosecutions.  

The author began following this case in May 2021 and only heard the testimony of one of the prosecution witnesses.  However, based on observations made from attending the court on eight occasions in relation to this prosecution, conversations with the presiding Magistrate and prosecutor, in addition to reading the detailed 15 page judgement of the Honourable Magistrate, there are some lessons that can be learned. 

Investigational Overview

On the afternoon of Friday, December 15th, 2017, the Kenya Wildlife Service arrested two men in the area of Kwale, in the possession of four elephant tusks.

The basic facts of the case are as follows.  On December 14th, investigators at the KWS office in Mombasa received information of two men in the Kwale Town area who had ivory they were looking to sell.  The two KWS personnel, Cpl. Jarvis Galole and Ranger Samson Mwiti, make a plan for a sting operation and drive to the Mtsangatamu and Tiribi area of Kwale county the following day. They are in a plain KWS vehicle and have a driver, Ranger Abdullahi.

They make contact with the first accused, Saidi Kuzidi, and negotiate for the “purchase” of his ivory.  KWS meet him in the Mtsangatamu area of Kwale County at approximately 14:00hrs.  He is placed under arrest, having been found with two ivory tusks weighing a total of 34 kg.

Cpl. Galole and Ranger Mwiti with their driver Abdullahi, proceed to the Tiribe area, and through phone conversations with Mwanzala , find him standing by the roadside with his motorcycle at approximately 15:30hrs.  The two Rangers speak to him and he leads them to some type of structure where two more tusks are located.  The two tusks weigh 16 kg.  Mwanzala is arrested and his Hadjin motorcycle seized.  

Saidi Kuzidi and Hasira Makoti Mwanzala are transported to the police station and spend the weekend in custody until they are arraigned in Kwale court on Monday December 18th. A decision is made to prosecute the two separately, Mwanzala under court file (CF) 843/2017 and Kuzidi under CF 844/2017, in different court rooms and so in front of different magistrates. Mwanzala was charged with Possession of Wildlife Trophies  under the Wildlife Conservation and Management Act and released on bond. Kuzidi was also released.

The Judgement

The judgement by Senior Principal Magistrate J. Omido was rendered 4 1/2 years from the offence date.  It was based on the testimony of four prosecution witnesses and the unsworn testimony of the accused. SPM Omido did not hear the testimony of the first prosecution witness, Ranger Mwiti, and so had to rely on the hand written notes of  Chief Magistrate D. W. Nyambu who was initially assigned the case.  SPM Omido took over the file on September 2nd, 2019, after the transfer of CM Nyambu.

In summary, SPM Omido found that there was drastically contradictory evidence presented and that the “inconsistencies, discrepancies, and contradictions remain(ed) unexplained.”  

“The above, viewed against the accused person’s defence, which I have considered, are in my view substantial shortcomings in the prosecution case, which as per the authorities cited above (Richard Munene v Republic [2018} eKLR and Gedeon Norge v Republic [2021] eKLR), can only be resolved in favour of the accused person.”

R vs Mwanzala CF 843/2017 Judgement

Charge Sheet 843/2017 Kwale

THE TIMELINE

It needs to be said at the onset that by the time the acquittal was rendered, not one of the original players at the time of arrest were still actively involved in the prosecution.  Chief Magistrate D. W. Nyambu had been transferred to Kilifi Law Courts, a 3 hour drive north. The initial prosecutor had been transferred to be replaced by Ms. Mwaura who had come from Mombasa Law Courts. 

Cpl. Jarvis Galole had at the time of his testimony had been been transferred to Taveta Border Post and Ranger Samson Mwiti had been transferred to the opposite side of the country; the Isebania Border Post situated west of Masaai Mara National Reserve and a stones throw from both Lake Victoria and the Tanzanian border.  

The original Directorate of Criminal Investigations (DCI) designated Investigating Officer (IO) from the Kwale Police Station, Sergeant Letai, had passed away, and so the file had been assigned to Police Constable Ronald Kirui, also from Kwale DCI.

While it is not the purpose of this report to dig into the ideology behind what is certainly a debilitating transfer culture for all the criminal justice actors, from both a systemic and personal/family perspective, it most certainly played into this acquittal.

 A damaged hut or a house under construction?

SPM Omido in reaching his conclusion made referral to drastically contradictory evidence.  He penned three primary concerns with the evidence before him; where exactly was the elephant ivory found, how many Rangers were involved in this operation, and how exactly did the arrest of the first accused, Saidi Kuzidi, play into the arrest of Mwanzala?

As regards to seizure location, three different sites were described by the three primary witnesses to the presiding magistrate. Ranger Mwiti (identified in the judgement as PW1) was recorded by CM Nyambu as testifying that:

 “they met the 2nd accused (Mwanzala)…….next to the road. There was an old, damaged hut nearby, next to a house. Though damaged, the hut was still standing.  He stated that Cpl. Galole asked Mwanzala where the ivory was and he pointed to the old house.”  

It cannot be ascertained for certain as to whether Ranger Mwiti’s description is the old, damaged hut or the house.  It is certain, however, that there are two structures and at least one in disrepair.

In Cpl. Galole’s (PW3) testimony, he stated initially that the tusks were hidden at a construction site but also said that the accused led the officers to a house under construction. 

P.C. Ronald Kirui (PW4) under cross examination, stated that the accused had two houses and that the ivory was found in one of the houses.  He did not provide a description of the structures. 

The accused, in his unsworn testimony, describes a house nearby where he was arrested as “incomplete”.

It is certainly evident that the evidence before SPM Omido is muddied and should have been more precise.  Having said that, another perspective could be that the house descriptions were not dissimilar. Ranger Mwiti, described a “old damaged hut”, Cpl. Galole talks about a house under construction and even the accused refers to a house that was “incomplete”. The testimony of PC Kirui was the only one ‘off theme’ in this regard, but it should be taken into account that he was never at the arrest site and was in fact, providing hearsay evidence from a report written by an author not known to the court.  Could the court have also taken into consideration that in Kwale County, it is not uncommon to find houses that are incomplete, under construction or in dis-use?

How many officers?

The second concern of the court relating to integrity of testimony concerned the number of officers actually involved in the operation.  Ranger Mwiti stated under cross examination that only himself and Cpl. Galole were present during the operation.  Cpl. Galole stated that while there were other officers at the scene of arrest, it was only himself and Ranger Mwiti who took an active part.

While the learned Magistrate took this as an inconsistency, and while again the evidence was muddied, what was described in testimony was consistent with a typical sting operation.   One or two undercover officers are actively involved in the buy but have other officers in close proximity for required support.  This was actually confirmed by Mwanzala’s unsworn testimony where he stated that he saw two parked (KWS) vehicles on the roadside close to where he was arrested.

Who is Saidi Kuzidi?

The third concern of the court was who was Saidi Kuzidi, why was his arrest seemingly downplayed, and how many pieces of ivory were actually seized?  Ranger Mwiti stated that they met the 1st suspect (but could not remember his name) in Mtsangatamu. He was arrested in possession of 2 tusks then went to Tiribe for second suspect.  Cpl. Galole, in his testimony, while referring to travel to Mtsangatamu, omits the arrest of Kuzidi entirely. It is not until the testimony of P.C. Kirui that the court hears for the first time the name of Saidi Kuzidi.  

The roots of this confusion can perhaps be found at the decision, presumably by prosecutors, to have the two arrests separated into different files as opposed to consolidating to one trial.  The prevailing view here would be that the two arrests were closely connected and the second arrest flowed from the first and so should have been under one prosecution.

Another question that arises relates to the charge before the court.  Hasira Makoti Mwanzala was charged with being in possession of a wildlife trophies.  The evidence of the investigation indicates that he was not just in possession of two tusks but was trying to sell, meaning that he was dealing in wildlife trophies. In cases similar to this, KWS typically charge an accused with both offences. 

Said Kuzidi, a school teacher at Mwamasa Primary School, was arrested with 34 kilogrammes of ivory at Mtsangatamu, and Hamisi Makoti, a county enforcement officer, was arrested with 16 kilogrammes of ivory in Tiribe on December 15th, 2017.

Other Factors

The conduct of DCI Ronald Kirui in relation to this prosecution was not referred to in the judgement but it could well be asked if it was also a factor in the acquittal.  There is some contradiction as to exactly when P.C. Kirui was assigned this file. He stated in evidence that he took over the file in April 2021.  That seems unlikely, however,  as on June 29th, 2021, SPM Omido read out from court records that Kirui had been absent during the last four appearances due to: transferred to other duties, attending training, communications breakdown between court and police, and being on (last minute) leave.  Omido stated that: “games are being played here”, and clearly frustrated, issued an arrest warrant for P.C. Kirui.  Omido also ordered the warrant to be given to the Officer Commanding Kwale police, and also instructing the previous court proceedings to be typed, with copies sent to County Commander Kwale and KWS Kwale.

SPM Omido in his judgement wrote that the testimony between the three officers was materially different. While it is clear that there are contradictions, another perspective could be that the contradictions are but semantics.  Can a dis-used house be a house under construction, or an incomplete house?  Should the testimony from one deemed to be the Investigating Officer, who was not present at the arrest, and who is reading from a report that he did not write, even be considered in evidence?  Does an “operation” refer to the officers actually involved in the ‘buy’ or does it encompass both the ‘buying’ team, support team, and drivers?   

It could be therefore be argued, dependant on definition, that the evidence was not materially different at all, and that the accused in his unsworn testimony, even corroborated key points in the Rangers statements.

Takeaways

A sting operation of this kind is an entrapment type case.  It is critical, therefore, that involved officers provide detailed evidence for the entire arrest/seizure process.  In this case, details were lacking. This did not have to be fatal, however, if the prosecution had picked up on the differences in the statements or felt that they were materially different.  Also from the DPP side, the decision to separate the arrests of Kuzidi and Mwanzala into two prosecutions also played into the hands of the accused. 

There are a number of other systemic processes that could also be examined for streamlining: 

  1. In these type of operations by the KWS, it is common for an officer from DCI to be designated as IO.  This is part of the investigative fabric in the working relationship between KWS and DCI and is not likely to change any time soon.  However, what could be examined is the need for that officer to provide witness testimony.   In this case, and as is typical in this type of prosecution, the DCI IO is fulfilling what is primarily an administration function.  He was not involved in the arrest.  He was not involved in the seizure of the ivory. He was not involved in its chain of custody for the process of expert examination. He was not involved in the taking of a statement from the accused person or any other person. In this case, when P.C. Kirui took the stand, he was not presenting any first hand knowledge and his testimony was all hearsay, based on file reports written by someone other than himself.  It is also of note, that the accused, who was representing himself, on his cross examination of the P.C. Kirui, asked why he was in court testifying when he was not there. It was certainly a valid question.
  1. This is also an opportunity to examine the role of the ivory expert, and in this case, Dr. Ogeto Mwebi, from the Osteology Section of the National Museum of Kenya (NMK).  For those unaware, seized ivory does not go to the KWS forensic laboratory but instead to the NMK for expert identification. It is common practise, indeed deemed essential by the court, for an expert to testify personally that the ivory is actually ivory.  Could it not be an option, under circumstances where both the defence and prosecution agree to the substance of the ivory, that a certificate of analysis/authenticity be submitted to the court in lieu of personal testimony.  This would alleviate what must be considerable travel expenses for the NMK expert and reduce court time by eliminating a witness.  In this particular prosecution, without the testimony of the NMK expert and the DCI IO, there would have only been two witnesses required.
  1. Lastly, as is seen within NPS and KWS, assigned “drivers”, typically do not testify in trials.  From a legal perspective, they are written out of any hearing, as though they are some type of inanimate object incapable of thought or powers of observation. They are, however, fully trained police officers or rangers and obviously witnesses to events. In this case, driver Abdullah was present with Cpl. Galole and Ranger Mwiti.  He could have testified and corroborated the testimony of both.

NOTE: At time of writing, it is believed that a warrant of arrest is outstanding for the apprehension of Saidi Kuzidi, for possession of wildlife trophies. who absconded prior to judgement. 

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