You are currently viewing Consistency and Deterrence in Ivory Cases Still a Challenge for the Courts

Consistency and Deterrence in Ivory Cases Still a Challenge for the Courts

It would have been a safe bet to wager.  On January 18th, 2014, in Nampula, Mozambique, a 40-year-old Chinese national, Tang Tongjian (also known as Tang Yong Jian), boarded a flight for a journey to Guangzhou, China, transiting Nairobi, Kenya.  His luggage contained a 3.4 kg piece of ivory.  Would he have had even the slightest inkling that he was days away from becoming a poster boy of Kenya’s freshly reinvigorated Wildlife Conservation and Management Act?  Mere hours after departure, Tongjian was under arrest at Jomo Kenyatta International Airport, Nairobi, and the ivory was in the hands of the police.

Ten days later, Tang Tongjian pled guilty in a Nairobi courtroom and was sentenced to pay KES 20 million fine (USD $200,000) or serve seven years in jail in default.  Within hours, his photograph could be found on news media sites, national and international, in story lines such as “Chinese ivory smuggler gets record Kenya fine”. The Makadara court decision heralded the re-introduction of Kenya’s Wildlife Conservation and Management Act (WCMA), now with stringent, no-nonsense penalties.  Tang Tongjian was its first conviction.

The sentence was seen as a game changer meant to stem the ivory poaching onslaught.  Paul Udoto, the spokesperson for the Kenya Wildlife Service at the time, referred to it as a “landmark ruling”, one that will make the “killing of wildlife a high-cost business.”  “It’s very motivating for our rangers” to see poachers “lose a lot of money and spend long terms in Kenyan prisons,” he said.

Thomas Muhoro Ngatia taken away by police of the Special Crimes Prevention Unit on March 22nd, 2016 after being found with 112 kg of ivory under his bed. On December 15th, 2022, he was sentenced to two years jail without a fine option.

Cartel Trafficker Receives Two Year Jail Sentence

Nine years later, in a different Nairobi court, the story and dialogue were changed.  On December 15th, 2022, Thomas Muhoro Ngatia, was sentenced to two years jail without a fine option after being found guilty on two counts relating to the possession and trafficking of 112 kg of ivory in 2016.  The sentences were to run concurrently. While members of the media were present, it did not make the news.  There was no statement from the Kenya Wildlife Service.

Thomas Muhoro Ngatia was not a foreign national passing though Kenya with one ivory tusk piece.  He was not the average level one poacher, killing elephants for familial survival. He was an essential role player in an East African criminal network that collected and forwarded poached ivory to Kenyan ports of egress to south-east Asian markets.  While on bail release for the first offence, Ngatia was arrested a second time with 55 kg of ivory for which he made bail again.

It began with Ngatia’s initial arrest on March 22nd, 2016, in the family home on the outskirts of Nairobi.  Police of the Special Crime Prevention Unit raided the premises at 3am to find 40 pieces of ivory under the bed in which he was sleeping.  Such was the importance of the arrest, that the seizure site was attended by Francis Muhoro Ndegwa, a former head of the Directorate of Criminal Investigations (DCI).  In the press conference that followed, Chief Ndegwa stated that the home was being used as a temporary storage site.  He continued:

“We have found materials in his house that suggest he is part of a transnational gang that is dealing in ivory.”

Ngatia’s confession to police corroborated Ndegwa’s comments.  Ngatia told investigators that he had been in the ivory business since 2008, having been recruited by local businessman, Fredrick James Muchina.  Muchina paid him $10 per kilogram of ivory sold.

Fredrick Muchina was a name not unfamiliar to the public.  In the 2014 KTN News investigative documentary “Poachers and Butchers”, Muchina was named as a lead figure in the poaching and trafficking of ivory and rhino horn throughout Kenya.  He had links to Guinean traffickers of the West African cartel.  Muchina was also named as being specifically involved with rogue elements of the Kenya Wildlife Service in the staged killing of two “alleged” poachers outside the perimeter wire of Solio Ranch, a rhino conservancy.

Whether or not Muchina was ever going to be charged became mute when an unknown gunman fired six shots into his chest.  It was a targeted killing that had all the hallmarks of an extrajudicial murder, either government accomplices tying off a loose end or government agents tired of his evading justice. All this to say, Thomas Muhoro Ngatia was not an average poacher.

Ngatia had top-notch legal representation throughout his trial. A defence team that successfully prevailed through for his bail release that had initially been denied, and a second appeal won over the recall of two prosecution witnesses that ultimately led to proceedings moving to the court of  Senior Resident Magistrate E. Riany over alleged bias.  It was clear that for a man who declared himself as a ‘hardware merchandise supplier’, his defence was being bankrolled from another source.

It was somewhat of a surprise, therefore, when on November 24th, 2022, SRM Riany found Ngatia guilty on both counts. Hopes that Natia’s conviction signalled the unshackling of cartel influence were dashed when the two-year jail sentence was hurriedly read in Court #9 on a Thursday mid-afternoon, three weeks later. 

Was this to what the WCMA was now reduced?  From the 2014 promise of fines up to $200,000 and/or life imprisonment, now diminished to two years prison for a cartel ivory trafficker, who, while out on bail for the first offence, was arrested for a second ivory trafficking offence and made bail again. And to add salt into the wound, Ngatia’s pre-sentence report did not portray him as a remorseful, responsible, and/or contributing member of society.  Should there be surprise that on Magistrate Riany’s departure from court post sentencing, the accused was overheard to say: “my brothers had already sorted it out.” 

The sentence was not appealed by the prosecution, perhaps for obvious reasons.

Fredrick Sababu Mungule and James Ngala Kassiwa in Mombasa court one having just been sentenced to two years jail for their role in attempting to ship 3.8t of ivory to China.

Sentence review gives cartel trafficker non-custodial probation

One week after Ngatia’s sentencing, another troubling decision was being made in the High Court of Mombasa.  While the WCMA was not under the spotlight for this prosecution, the principals of sentencing in Kenya wildlife cases were.

On December 22nd, 2022, James Ngala Kassiwa, a Kenya Revenue Authority (KRA) officer, had an ivory related, two-year jail sentence reduced to non-custodial probation after serving only nine of the 24 months.   Kassiwa had been convicted for his role in a 3.8t ivory shipment seized in Mombasa Port in January 2013.

Kassiwa had applied to the courts for a sentence review based on the trial magistrate having erred on several issues relating to his sentencing, including his being a first-time offender, an obedient employee of KRA for 20 years, and other mitigating factors relating to his age, health and family status. Lady Justice A. Ong’injo accepted the recommendations of a sentence review report and and as documented in Criminal Revision E192/2022, released Kassiwa three days prior to Christmas. 

Once again, when this prosecution and the related investigations are examined, one has to question if there were not other forces in play besides rule of law.  The term ‘related investigations’ is used here as Kassiwa was not originally charged for involvement in one ivory shipment, but for three.

For clarity, the specific prosecution for which Kassiwa was granted probation stems from a seizure of 3.8t ivory made at Mombasa port on January 14th-15th, 2013.  He was also charged in relation to a 1.3t ivory seizure made in Hong Kong on January 3rd and a 1.8t seizure made in Singapore on January 23rd, 2013.

But the picture is bigger.  In an internal correspondence from DCI Kilindini to Nairobi Headquarters dated two months after the 3.8t seizure, it was stated that:

“we did expand the scope of our enquiries and have established that the same forwarder 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”

The letter also read: “shipment(s) 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………. smuggled into the Port through irregular loading into vessels in collusion with employees of the Kenya Revenue Authority and Kenya Ports Authority.”

Subsequent DNA analysis by the University of Washington confirmed the trans-national criminal element.  The ivory in the Mombasa 3.8t shipment was directly linked to a 1.5t ivory shipment seized in Dubai four months later. This Dubai shipment was linked directly through DNA analysis to a 2.9t seizure made in Mombasa in October 2013 that was in turn directly linked to a 6t seizure made in Malaysia in December 2012 and a 1.8t seizure made in Uganda in May 2014.  All of this signifying that one supplier was behind all these shipments, later found to be the West African Cartel.

A Kenyan joint task force set up to investigate the three shipments initially charged James Kassiwa, as well as Gideon Naftali Osinyo, a Kenya Ports Authority (KPA) officer involved in the berthing process for the Mombasa shipment.   Two weeks later, clearing agent, Fredrick Sababu Mungule, was also charged.  These charges were in relation to the Mombasa and Hong Kong shipments and under the East African Community Customs Management Act. The maximum penalty was five years jail on each charge.

Seven months later, these men were charged similarly in relation to the Singapore seizure and under a separate file.  This was a curious decision. Separating the court files meant that there were going to be two wholly distinct trials, essentially involving all of the same witnesses but in different courts with different magistrates and prosecutors.  It would seriously weaken and compromise the prosecution.

No other charges were ever laid in relation to the 31 other containers as identified in the DCI internal correspondence.

Predictably, the second prosecution relating to the Singapore 1.8t seizure failed.   The case had been clearly compromised and included unchallenged ‘hostile’ testimony from the lead investigator and death threats to staff of Kenyan NGO, Wildlife Direct, who were monitoring the case at that time. 

Chief Magistrate Francis Kyambia ruled on February 11th, 2022, after nine years before the courts, that the prosecution had not established a primae facie case.  James Kassiwa, Fredrick Mungule, and Nelson Ayoo (another KRA officer) walked free. KPA employee, Gideon Naftali Osinyo, had at that point passed away, reportedly from illness.

Just over one month later, however, the tide of acquittals surprisingly turned.  On March 23rd, 2022, Chief Magistrate E. Nyaloti found both accused guilty on one of two charges that they faced and sentenced each to two years jail.  This was in relation to the Mombasa seizure.  The two charges relating to the Hong Kong seizure had ‘disappeared’ in 2014 under the guise of what was referred to as case consolidation. The court never heard any direct evidence relating to this shipment.

This conviction was bitter/sweet.  While celebrated as the first conviction in a major ivory case in Kenya since at least 2009 (ivory trafficker Feisal Mohamed Ali had been convicted in 2016 but the decision overturned on appeal) the sentence of two years jail was seen as insipid considering the amount of ivory involved and the trans-national organized crime element.

There is no doubt that Kassiwa was the scapegoat for many others within the KRA and KPA who were equally responsible for the “gating in” of this contraband container and many others besides.  But what message were the courts sending when a person who assists a trans-national criminal cartel in trafficking containers full of ivory receives a non-custodial probation seven months in to an already token two-year jail term?  And was any consideration given as to how Kassiwa, apparently fired from KRA immediately on arrest, was able to afford arguably the top defence lawyer in Mombasa, Jared Magolo, for the over 100 court sittings required in the two separate trials?

DNA Linkages with the January 15th Mombasa 3.8t ivory seizure courtesy Center for Environmental Forensic Science

“Anything Goes” or Haphazard?

A recently released study in the Pachyderm Journal: “Process and outcomes of ivory-related trials in Kenya, 2016–2019”, stated in reference to the WCMA:

“But ambiguities remain, especially regarding sentencing. The variations in sentencing reported here reflect a lack of oversight over judicial approaches to sentencing that cuts across the entire range of criminal offences……this situation where ‘anything goes’ limits the effectiveness of the law.” 

Perhaps ‘haphazard’ would be a more accurate term albeit less diplomatic.

In July 2018, Paul Njogu Muthoni and Isaac Mbugua Mburu, charged under similar circumstances to Thomas Muhoro Ngatia (and also connected to the West African cartel), were found guilty in Kibera law courts of being in possession of 155 kg of ivory.  They were sentenced to eight years in jail.  They appealed their sentence separately to two different higher courts and both appeals were dismissed in 2020 decisions.

In January 2022, the High Court of Voi, in the area of Tsavo National Park, reduced a 10 year jail sentence to seven years non-custodial probation for dealing 38 kg of ivory.  In October 2022, a Rift Valley court in Kitale, convicted Martin Mukesa Juma of possession of 4 kg of ivory and sentenced him to a KES 1 million fine (USD $10,000) or in default, one year in jail.  

No examples of sentencing in major wildlife prosecutions can be provided as there have been no other convictions.

The 2014 renewed and purportedly revigorated Wildlife Crime and Management Act, promulgated through the January 28th conviction of Tang Tongjian, lasted but 48 hours before the virus kicked in.  On January 30th, Zhang Chen Sheng, another Chinese national also in transit to Guangzhou, pled guilty to possession of 300 grams of worked ivory.  The KES 1 million fine (USD $10,000) or in default 5 years in jail was appealed by the DPP as being too lenient.  The ploy backfired.  Just weeks later, the Nairobi High Court ruled that the new section of the WMCA that gave it ‘teeth”, was “ambiguous” and acquitted Chen Sheng. It is a decision that still haunt’s Kenya’s Wildlife Conservation and Management Act to the present day. 

And the unsuspecting WMCA poster boy, Tang Tonjian?  He appealed successfully and was released on time served, three years later.

Leave a Reply