On February 5th, 2020, I attended the scheduled hearing relating to case 418/17, an ivory trafficking prosecution commenced in April 2017 from a one tonne ivory seizure made in Singapore in March 2014.
I needed to make a report from my notes taken, and as I am doing a blog anyway (which will also go on a website that is under construction), I am going to change things up from my past practice and combine notes and blog. And why not? One of the main purposes of what I am doing is to share and educate, with IWC investigators, conservationists, and those of the general public who are interested in the nitty gritty of what happens with these wildlife trafficking cases from an investigative/courtroom perspective.
SEIZURE DATE: March 25, 2014
DESTINATION: Port Klang, MYS
ORIGIN: Kampala, Uganda
SEIZED: 1000kg 106 tusks
DESCRIBED AS: 15 boxes of coffee berries
FALAH MANZU YUSUF @ Mohamed Faki
JAMES ORIECH OMONDI
CYRUS NDOLO KIMEO
JUMBA GUMBA AMAHENO
GUYLORD AMAHENO JUMBA
JAMES K. NJAGI
Between 24 (21) January and 29 January 2014, at Mombasa, jointly with others, contravened Sec 200 (c)(ii) EACCM to wit…..exported restricted goods to wit, 106 pieces of ivory valued at ksh 180 million in container CMAU 1121948 to Singapore purporting to be 200 bags of robusta coffee on M/V Bravo Ship.
CONTAINER: CMAU1121948 20′
SHIP: MV Bravo
TODAY’S PROCEEDINGS (Senior Principal Magistrate F.W. Macharia)
The first accused, Yusuf, was represented by Jared Magolo
, who was part of the Feisal Mohamed Ali
defence team and also seen in the Mungule
matters. The 6th accused, James Kinyua Njagi, was represented by an unknown advocate who is believed to be from the office of Gikandi Ngibuini
. Gikandi was also part of the Feisal defence team and has represented someone in all major Mombasa ivory cases bar one and also represented the Akasha brothers who were extradited to the U.S. for drug trafficking.
Three witnesses were heard today all from either Kenya Revenue Authority (KRA) or Kenya Ports Authority). The highlight of the evidence was that the KRA officer who released the container for shipment was KRA officer ID number 6464. That ID belongs to the 6th accused, James Kinyua Njagi, who in 2014 was the Head of Verification for KRA at Mombasa Port.
The case was adjourned until June 17th, 2020 for further hearings.
|Updated and consolidated charge sheet.
I can still remember feeling excited when I first saw the story on this arrest, “African Task Force Snares Syndicate Trafficking Ivory to Asia
– eTurboNews (eTN)”. It was a detailed account of the investigative process that had taken place with names of accused, dates of arrest and listed involvement, unheard of in a media publication, let alone one dedicated to travel and tourism.
This arrest was also an anomaly for another reason, a virtual first, where arrests where made and charges laid over three years from the date of the offence. The typical IWC scenario is arrests within days of the seizure and not necessarily based on ‘reasonable grounds’.
I was also optimistic. These charges were the result of a combined investigation involving Thailand based NGO, ‘Freeland’
and the Lusaka Agreement Task Force
. I had not seen any Kenya activity by the LATF (a cooperative investigative unit of 8 different African countries) for some time despite their being based at the headquarters of the Kenya Wildlife Service in Nairobi. I was aware at the time that Freeland was in the process of moving their Nairobi office to South Africa and my thinking was that this was the perfect time for some type of partnership between them and Wildlife Direct in monitoring the court process and supporting the Office of the Director of Public Prosecutions (ODPP) if required. That, of course, never happened.
In the major ivory cases, there is often a story about the ivory; its weight (officially and unofficially), its storage and even where if came from (DNA analysis now gives a good approximation from where the elephants were killed). In this particular case, DNA analysis by Dr. Sam Wasser indicated that the ivory had come from elephants sporadically located around Tanzania as well as south and east Kenya, in the areas of Tsavo National Park (East and West).
It therefore presented the question as to whether the Kenyan ivory found its way initially to Kampala or was it added to the consignment in Mombasa?
One more anomaly with this case and what became (and still is) a major contention in another major Mombasa ivory prosecution, the ivory that had been seized in Singapore had already been destroyed. In other words, there was no evidence to show the court. (How some courts here feel they require to see the actual seized ivory while others do not is a story for another day.)
THE COURTROOM SETTING
Shanzu Court #1 is typical from what I have seen to date based on my experience with Kibera in Nairobi, Mombasa and Taveta. There are benches to seat perhaps 80 persons, the magistrate is sitting elevated at the front with a large table directly in front that is shared by a court clerk and security officer on one side and the prosecutor and defence advocate on the other. What is different is a secure prisoner ‘dock’ or cage located on the right hand side where defendants in custody stay, perhaps even the whole day regardless of whether their case is being called or not.
Like I have experienced in both Kibera and Mombasa, it is near impossible to hear the conversation of the magistrate, any court officers or witnesses unless one is sitting in the front row. In Shanzu, it is made even more difficult by four ceiling fans and a smaller fan running just above the magistrate. And of course, the ceiling fan directly over the back rows in this court room is running at “aircraft taxiing” speed to nullify all sounds including automatic rifle fire, should it ever occur.
THE HARDEST WORKING PERSON IN THE COURT – THE MAGISTRATE
If anyone is legitimately interested in improving court efficiency, mitigating corruptive opportunities or reducing trial times literally overnight, one has to look no further than the sitting magistrate for the clue. He/she is the only one writing notes at a feverish pace, basically from the moment they sit until they leave the courtroom. Their ability to gauge the veracity of a witness by observing body language does not matter, because it does not happen. Once a witness begins to testify, the magistrate rarely takes their eyes off the notes in front.
So the result is thus:
1. Magistrates are not using all senses available to them to ascertain whether specific testimony is truthful or not.
2. Because they hand write everything, testimony has to be given at a much, much, slower pace and amount of time required for a hearing is increased significantly.
3. When typed proceeds are required it takes considerable time as Magistrate’s writing is difficult to de-cypher.
4. The difficulty in de-cyphering can also lead to significant errors in the transcript, some which may have been made illegible by design.
5. In situations where the sitting Magistrate is transferred as often happens and their trial notes cannot be understood, the newly assigned Magistrate may have to start the trial ‘de novo’ or from the very beginning.
All of these problems can easily be remedied by some type of court transcription process. The idea is so basic it baffles me that this has not been done. It cannot be cost. For all the money being pumped into Kenya? Perhaps it is the criminal justice system who is resistant? A question for another day.
This investigation was initially composed of 3 files with 7 accused. The 3 files were consolidated into one file, 418/17, but in consolidation, one of the accused has dropped off. Ugandan Jumba Gumba Amaheno, apparent brother to Accused #2, is no longer a charged person.
- It is virtually impossible to hear the testimony of the first two prosecution witnesses who I believe are with KPA and testifying about the documentary process relating to the container being shipped through the port.
- It becomes apparent that only Yusuf Falah and James Kinyua Njagi are represented by advocates.
- The 3rd witness, first name Karen, is a little easier to hear and appears to be the last person in the paper chain after a container is loaded onto the ship. She clearly states that the KRA officer who released the container was ID #6464. She did not know his name. The form only had ID numbers.
- It so happens that I know that #6464 is the ID of James Kinyua Njagi from a previous ivory case where his name came up on an apparent fraudulantly created verification form. I think we know what his defence is going to be.
- On cross examination from Njagi’s advocate, there is an issue with Karen’s statement as to when it was written, where it was written and who wrote it. The date and location is not on the statement as is common on all police statements that I have seen. She states that she did not write the statement but those were her words. If this line of questioning was for the purpose of discrediting this witness, it worked.
- The scanning procedure also became part of her cross examination. She stated that all containers leaving the port were scanned and since 2013 the only ones exempt, were those carrying tea. She reiterated that in 2014, all exported containers were scanned. We know about the ‘tea’ containers and how ivory was shipped in similar in 2014 and 2015 but her statement regarding all containers being scanned is contrary to what was the believed practice. Previous reports indicated that only a small percentage of containers were scanned and that it was not unusual for the few available scanners to suffer mechanical breakdowns or sabotage.
THE JOURNEY HOME
‘Karen’ was the last witness for the day (ended at approx 13:15hr). As chance would have it, I ended up in the same matutu heading back to town as 3 of the accused, two of whom had been involved in the clearing process and one in moving the container. Their conversation was mostly Kaswhili but there was some English, enough for me to get the impression that it was not the conversation of guilty persons. Historically, in the big ivory cases, the first persons charged are clearing agents. Sometimes they are the only persons charged.
To date, not one clearing agent has been convicted. The reason being, besides incomplete investigations or subverted prosecutions, despite the name of the clearing agent appearing on shipping documents, it is extremely difficult to prove that the clearing agent had specific knowledge that ivory was in the container.