This was initially published in April 10, 2019.
Ephantus Mbare Gitongo was acquitted at Mombasa Law Courts on April 25th, 2019.
This commentary will be the introduction into future reports and in-depth coverage of ivory trafficking prosecutions of significance occurring throughout Kenyan courts. Case studies will also be featured on the individual cases referred to in this commentary and how all accused were acquitted.
On the Brink of Acquitting another ivory trafficker
It could be four in a row. On April 11th, Chief Magistrate Francis Kyambia is set to make judgement in a Mombasa court on the ivory trafficking prosecution against Ephantus Mbare Gitonga. A not guilty verdict, if rendered, will be the fourth consecutive acquittal in a major ivory case in the last fifteen months.
There will be many who find this hard to believe. Surely, the only acquittal was that against Feisal Mohamed Ali in August 2018. He had originally been convicted in July 2017 for being in possession of 2152 kilogrammes of ivory and sentenced to 20 years in jail and a ksh 20 million fine. The widely celebrated ruling was overturned in August of last year when Lady Justice D.O.Chepkwony of the Kenya High Court reached the decision that the initial finding was flawed on multiple grounds.
There are, however, two other acquittals in major ivory cases that quietly came and went with nary a whisper of surprise, dismay or disillusionment. On January 24th, 2018, a middle aged Mombasa clearing agent by the name of Nicholas Maweu John was acquitted for his role in the attempted exportation of 3287 kilogrammes of ivory from Mombasa port destined for Malaysia. You are forgiven if you have never heard of this individual. His arrest in December 2013 barely made seven lines in The Star. His acquittal did not make the news at all.
Nicholas Maweu John’s charge sheet, presented to the Mombasa court read in part: “On diverse dates between the 25th June 2013 and 8th July 2013”………“jointly with others not before the court conspired to contravene…..”. But there were never any others brought before the court and no conspiracy ever identified.
Chief Magistrate J. M. Nang’ea made comment in his judgement that “the case was poorly investigated”. Indeed, the testimony of the eight prosecution witnesses clearly showed that there were other known Mombasa business persons who played a more significant role in the criminal exportation. These persons were never located by police. Of interest, Abdul Halim Sadiq Omar, who was identified as the owner of the lorry that transported the 444 pieces of ivory to the port was interviewed by police and released. His name re-appeared publicly the following June when he was named as co-accused with Feisal Mohammed Ali in that 2152 kilogramme Mombasa ivory seizure.
3.3 tonnes of ivory seized at Mombasa Port July 8th, 2013. The lone accused, Nelson Maweu John was acquitted 4 1/2 years later.
This past January 15th another long standing ivory trafficking prosecution mercifully came to an conclusion. A Mombasa court, almost eight years after arraignment, acquitted Mombasa clearing agent Sammy Ndiririgi Maina of ivory trafficking related charges finding that “no prima facie case has been made against the accused”.
Ndiririgi had been charged with the illegal exportation of 1500 kilogrammes of ivory to Dubai, the ivory being seized after Kenya Revenue Authority (KRA)
scanned a container of apparent waste plastic and found the tusks therein. To say that the prosecution suffered significant delays, lengthy even by Kenyan standards, would be an understatement. At one point, there was a 26 month interlude in the hearing marked by 10 consecutive adjournments for a variety of superficial reasons.
Witness testimony again indicated the involvement of others who were never located or investigated. This testimony and submitted exhibits also raised the question of possible complicity by the Kenya Revenue Authority and its Head of Verification. In 2017, that same Head of Verification, James Kinyua Njagi, was charged with six others in a Shanzu court for his part in trafficking 1000 kilogrammes of ivory through Mombasa to Singapore in March 2014. That case is still before the courts with the two Ugandan co-accused having fled Kenya after successfully obtaining bail.
Which brings us back to Ephantus Mbare Gitonga. He has been charged under the Wildlife Conservation and Management Act for his part in the attempted shipment to Cambodia of 1097 kilogrammes of ivory in December of 2016. This shipment had actually cleared Mombasa Port but was ordered returned from Singapore by KRA officials on learning of its contraband from Vietnamese authorities.
At the time, even before the investigation was initiated, it was clear that this shipment was part of something much bigger. In the preceding three months, seven other shipments (one transiting Mombasa) totalling over 6000 kilogrammes had been intercepted in Vietnam and Cambodia. Their ports of origin covered four different African countries from both sides of the continent; Kenya, Cote d’Ivoire, Nigeria and Mozambique. In all shipments, the ivory had been obfuscated in the same identical manner; hidden in hollowed out timber that was sealed with wax or plaster, a technique known to thwart trained canines.
In the two years since those eight seizures, Vietnam identified Nguyen Mau Chien as one of the principals involved in that cartel and he was subsequently charged and convicted with wildlife trafficking related offences.
In January 2018, Cote d’Ivoire authorities arrested a Vietnamese national and five others who were part of the same cartel. Their case is still before the courts.
In Kenya, Mbare Gitonga is the sole accused in this trans-continental cartel who has been charged. It should be said that initial investigation by the DCI investigators was well done and identified that the shipment had transited South Sudan and Uganda while identifying involved shipping entities based in Kampala. The investigation stalled, however, and requests to the Lusaka Agreement Task Force, based in Nairobi and set up with the sole purpose of investigating transnational wildlife crime, could not accommodate due to apparent lack of funding.
In January 2019, Ugandan authorities seized a suspicious container outside Kampala and arrested three Vietnamese nationals. Inside was discovered 3299 kilogrammes of ivory and 423 kilogrammes of pangolin scales inside hollowed out logs sealed with wax. The container was enroute to Mombasa.
And in Kenya? One clearing agent is on the verge of yet another acquittal.
January 24th, 2019; authorities find ivory and pangolin scales secreted in hollowed out teak beams and filled with paraffin wax.