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New Evidence Application in Ivory Case – Legitimate or a Facade?

On May 20th, 2021, the prosecution in the case of Republic v. Abdurahman Mahmoud Sheikh et al, applied to the court to allow new evidence in the trial proceedings; a sincere and legitimate application or a facade of prosecutorial intent?
Abdulrahman Mamoud Sheikh and 8 others in Mombasa court on February 17th, 2021
What happens if a trial hearing is scheduled and nobody shows up?  This is close to what occurred this past Tuesday (September 14th) in Mombasa Courtroom #1 for an ivory prosecution now into its 6th year.
For those not familiar with the case, Abdurahman Mahmoud Sheikh @ Said Juma Said, his half brother, father, a KRA officer, and five others are alleged to have been involved in shipping 3127 kg of ivory to Thailand in a container of tea leaves in April 2015.  The nine accused face charges under the Wildlife Conservation and Management Act, the Prevention of Organized Crime Act and East African Community Customs Management Act.
In the Courtroom
Eight months ago, Chief Magistrate E. Makori stated to the court that “the spectrum of the case is being lost” and the “only remedy is to bring this to a closure”.  He ordered the prosecution to bring all remaining witnesses for hearing on April 7th and 8th, for their case to be concluded at that time.  There were 5 more witnesses scheduled for the prosecution.
But as is custom in most major ivory cases in Mombasa, fate intervened not just once, but twice.  The scheduled April hearing was adjourned when the prosecutor, Mr. Mulamula, and one of the accused were “trapped” in Nairobi on a Covid lock down.  And then, another bolt of lightning, when less than 48 hours later, the U.S. government ‘informally’ provided the police and ODPP with new evidence against the accused; evidence that the police and prosecution believed was, “new, credible, relevant and admissible evidence to the offences now before the court”.
On May 20th, the ODPP made an application to the court (in chambers), requesting the new evidence be admitted as part of the trial .  The ‘mention’, scheduled for open court May 27th did not happen and with another apparent ‘in chambers’ adjournment made for June 10th.  ODPP prosecutor, Jami Yamina, appeared on that date and advised the court that all advocates for the accused had been served with notice of the application.  A defence hearing to reply to the application was set for July 5th.
But on July 5th, confusion again.  Prosecutor Yamina was not there, nor any other prosecutor, for this scheduled hearing.  At 12:55 hrs, 3 hours and 55 minutes after the hearing was scheduled for commencement (with no other matters in the court), CM Makori entered the courtroom, with an audience of only the accused, their advocates and a representative of the Kenya Wildlife Service.  Magistrate Makori, in adjourning the hearing, intimated that his transfer was imminent and that if so, the proceedings to date would be typed.  He scheduled the next hearing for September 14th, while apologizing to all the accused for the manner in which this case was being handled.
Which brings us to this past Tuesday when there was no case representation for ODPP in court again (Jami Yamina, if the assigned prosecutor, has not been seen since June 10th), only one defence advocate was present (out of five) and Magistrate Makori was not sitting in courtroom 1, having given it to Magistrate Nyaloti.  (Court #1, normally the court of the senior magistrate, is the largest and has air conditioning).
At 10:15, while CM Nyaloti had taken a break, CM Makori entered Court #1 in shirt sleeves and tieless, and called the case.  All accused were in the outside hallway, the sitting prosecutor in court was on other matters and did not have the case file, and one defence advocate was present.  Clearly no hearing was going to take place.  It took mere minutes for the case to be adjourned to October 25th, a date by which CM Makori would no longer in be Mombasa. A new magistrate would being taking over the reins.
Legitimate or Facade
Since the new evidence application, there has been a very clear communications breakdown between all the players involved; prosecution, defence and the magistrate. All appear to have relegated this case into the realm of “not my problem”. One has to wonder why the cause for confusion. Had it to do with the pending transfer of CM Makori, a transfer that had been in the wings since late 2019. He was on a list of 40 Judges to be promoted, promotions that were unprocedurally delayed by the President.
A few months ago, however, the ‘promotion’ transfer morphed into a ‘time to go’ transfer, when CM Makori’s promotion (along with five other Judges) fell through for reasons unknown.  The story does not end there, however, as on September 3rd, the newly appointed Chief Justice, Martha Koome, stated that she was confident that the six judges left out of the appointment for superior courts, would soon be appointed.
Or perhaps the root of the confusion is the apparent return to the case of Prosecutor Jami Yamina and Superintendent of Police, James Githinji, one of the original investigators. Both had been transferred out of Mombasa, Githinji in mid-2016 and Yamina in late 2018. From one perspective, this could be seen as commitment from DCI and ODPP to keep some continuity with a prosecution that was on life support before the new evidence application. The opposing view could be that Yamina and Githinji have been returned to the case to keep the snakes in the can while maintaining a facade of prosecutorial intent to placate the American government agency that supplied the ‘informal’ information. 
The perspective of ‘facade of prosecutorial intent’ would not have been negated by the supporting affidavit of Superintendent Githinji, an affidavit that could be considered sloppy and weak on fact compared with his earlier work. Much of the detail he provided had been seen in earlier 2015 affidavits that he had also authored.  Paragraph’s 15 and 16, however, were new and related to the bill of lading information pertaining to the ivory shipment that formed the substance of the charge before the court. It was stated:
  1. “THAT upon reviewing the said intelligence, it is apparent that the person of interest “Kromah”, and the some of the accused persons with others not before the court are directly linked with the preparation of the bill of lading relating to the consignments of 511 pieces of ivory seized in Thailand, container and the subject of this case to the extent that they are seen giving or receiving instructions as to the place of final destination of container no. FCIU5235796
  2. THAT intelligence discloses that the said Moazu Kromar currently facing Ivory Trafficking Charges in the USA used to receive Instruction from Accomplices in Thailand and thereafter transmit the same to accused One and Two in this case. It is necessary to receive the said information in the form of admissible evidence in a court of law in Kenya before it is relied upon.”
The new alleged evidence could certainly be damning, and specifically to two of the nine accused. But could it also open a doorway of doubt on the integrity of the initial investigation.  It is known, through a June 23rd, 2015, affidavit by Supt. Githinji, that communication data was analyzed and connected the first, second and fifth accused to the movement of the subject ivory from a Nyali consolidation point (a compound rented to  Said Juma Said aka Abdurahman Mahmoud Sheikh) to the port.  Should that same 2015 phone data analysis have not picked up on the connection between Mahmoud Sheikh, his brother, and Moazu Kromah in Uganda? (to date, no phone data analysis has been submitted to the court as evidence)
It remains to be seen how this application will play out. But regardless, with a new magistrate soon to take over, one who has not heard the testimony of any the 25 prosecution witnesses to date or the previous hearings related to the freezing and forfeiture of assets, this trial will almost certainly see year #7.
And to think, it could all be for show. 

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