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No Beacon Shining on this Mombasa Court Room

A March 2021 report, “Kenya a Beacon in Fighting Transnational Wildlife Crime” painted a rosy picture of how Kenya’s fight against wildlife crime was progressing. In the article, the Head of Kenya’s Directorate of Criminal Investigations, George Kinoti, (it is the DCI who investigate the major ivory crimes), was quoted: “Wildlife crime was not initially taken seriously as a major crime. Now, we realize hospitals, roads, community development and others are proceeds from our wildlife.”  But yesterday, July 1st, in courtroom 6 of Mombasa Law Courts, one of his detectives was surely not on the same page. 

As a former police officer, I am always torn when watching another police officer acting contrary to their public duty, especially when testifying in court.  That was clearly exhibited yesterday by Sgt. Fredrick Lemiso of the DCI, testifying in an eight year old ivory case.  It was evident to all in the courtroom.  And Sgt. Lemiso’s body language? He just wanted to crawl under a rock.

The prosecution in question dates back to an ivory seizure in January 23rd, 2013, when Singapore customs officials opened up a shipping container from Mombasa to find 1833 kg of elephant tusks amongst crates of mazeras stones.  Mazeras stones, for those you aren’t aware, are a slate type stone often used for floor or wall finishing in homes or offices. The Agri-Food and Veterinary Authority of Singapore (AVA) knew they were going to find ivory.  In the preceding weeks, ivory shipments had been seized in Hong Kong and Mombasa with identical (fraudulent) shipping documentation and both obfuscated with mazera stones.  

Kenya subsequently put together a multi-agency task force to investigate the three contraband shipments.  Cpl. Lemiso, as he was then, and even though not the most senior ranking officer, was named as the IO or Investigating Officer for the Singapore shipment.  

The IO is the DCI equivalent of a lead investigator.  He is the go-to person for the investigation and meant to know everything about the file.  

This particular seizure was notable in that all 1833 kg of ivory was repatriated to Kenya later in August for what was described by KWS as “law enforcement/prosecution purposes”, this  decision apparently made by the management of KWS in consultation with the Lusaka Agreement Task Force.  Sgt Lemiso was one of the four person delegation who travelled to Singapore in July of 2013 regarding the repatriation process.

Now back to courtroom 6.  In an atypically quiet courtroom, Sgt. Lemiso was the sole witness to testify for the prosecution.  Unfortunately for me, his examination-in-chief, and at the request of the three accused, was in Kiswahili (even though all accused speak English well).  Although my Kiswahili is limited at best, I knew enough about the investigation to piece together much of what was being stated.  His testimony lasted for about 30 minutes and that included 10 minutes spent for arguments from both sides as to whether an ivory certification, drafted by the KWS investigator, could be entered into evidence (it was not ).  Thirty minutes is NOT the required amount of time one would normally expect for a lead investigator to testify on a complex, transnational investigation.  

In any event, the wheels came off during the cross examination. Defence advocate, Jared Magolo, no stranger to high stakes ivory cases, asked: “Do you know who the exporter is?”  Lemiso replied that they only knew the name of the exporter that was on the documentation.  

“Do you know who brought the container into the port?”  Answer: “No”.  {This is true although the investigation revealed that they knew the owner of the truck who was responsible for the delivery to port of all three ivory shipments.} 

Magolo then continued with a line of questions relating to continuity of the container, from the time it was gated into Mombasa port to the time Lemiso next saw the container when he and his four person team verified the contents later that July.  Lemiso’s response to all these questions was continually one word: “No.”  An impartial observer would have been left with the impression that ivory could have been put in the container at Mombasa port, on the ship, or in Singapore.   

This entire line of questioning could have been shut down with the truth. When this container of ivory was permitted entry to Mombasa port on December 10th, it was found sealed with a shipper’s seal #6282504 (it was never ascertained who exactly put the seal on the container).  When the container was opened on January 23rd by a group of ten persons from five different organizations in Singapore, shippers seal #6282504 was still in place and intact. This wasn’t new evidence, these facts having been previously entered into court through an internal Kenya Port Authority (KPA) report, MCT/EXP/DOC/RPT003/2013.

Mr Magolo continued. Did Sgt. Lemiso know what the declared contents of the container were?  He replied: “Waste paper”.  

This was correct, indicating that Lemiso did in fact remember some of the facts of the case. The next question from Mr. Magolo: “Are you aware if the scanner report showed that there was anything in the container besides paper?”  Lemiso replied: “No”.  

The truth here is that there was no scanner report on the container in question. The reason there was no scanner report was because the container was never taken to the scanner. The container had entered the port on a fraudulent and previously used entry document, and when permitted access, was hidden in a location within the port that only the conspirators could find.  This information was in the same KPA report referred to above. 

To cap off the pain that I am sure all but the accused and defence lawyers were now experiencing, Mr Magolo asked Sgt. Lemiso if he knew that two of the accused were employees of KRA, if he knew they both worked the entry gate to the port and if he knew that the accused, Nelson Ayoo, had been on leave on the date that the container had been “gated in”?  His answers were “No”  and “No” and “No”, respectively.  And similar to all of Sgt. Lemiso’s previous answers in the negative, there was no hesitation that may indicate that he was at least trying to access the deep recesses of his brain for some tidbit that may jog his memory. 

It is difficult to fathom that the lead investigator could not recall that two of the three accused were employees of the Kenya Revenue Authority.  In fact, it is even conceded by all sides that accused, Nelson Ayoo, was not working on the night that the container entered port.  Nelson Ayoo was not actually arrested until almost two years after the incident, partially due to his being suspended by KRA and his subsequent departure from Mombasa.  Ayoo had became one of the accused on the belief that even though he was not working, he gave his computer login credentials to James Kassiwa, the second accused, so as to fraudulently allow entry of the said ivory containers. Do we dig Sgt. Lemiso’s hole a litter deeper by revealing that there were at least six documents in the investigative file relating to Ayoo, one being a cautioned statement that he voluntarily provided?

And the last question from defence counsel: “Are you aware of anything relevant to this case?” Facetious but sadly appropriate.

So what to make of this testimony?  Is there anyway to mitigate his answers, to reveal anything but what appears to be subversive intent?  Is it possible that Sgt. Lemiso did simply forget in the eight year time span since the ivory investigation?  On the one hand, and as stated by DG Kinoti, we do know that ivory investigations were not taken seriously at that time.  Perhaps for Sgt. Lemiso, this investigation was the equivalent of a minor theft?  But on the other hand, he did get a one week, all expenses paid, trip to Singapore, to reclaim a container of ivory. Surely an event with surrounding circumstances that one would remember for a life time.

Or maybe Sgt. Lemiso was the IO in name only, appointed through his involvement with the repatriated ivory?  Perhaps he was not hostile or deliberating circumventing the truth as it appeared but actually had  no knowledge of this investigation? In which case, why was he on the witness stand? 

Whatever the reason, none of the inferences to be drawn are positive.  This is surely not the picture the DCI are now trying to portray regarding their capabilities in solving and successfully prosecuting wildlife crime traffickers, regardless of the fact that the investigation was in 2013. The testimony was in 2021.

George would not be pleased.

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