Kenya on the brink of acquitting ivory trafficker number four (commentary)

Update: The NGO Wildlife Direct, which has offices in Kenya, reports that Ephantus Mbare Gitonga was acquitted by a magistrate at Mombasa Law Courts on April 25, 2019.

It could be four in a row. On April 11, Chief Magistrate Francis Kyambia is set to make judgement in a Mombasa, Kenya 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 2.2 metric tons of ivory and sentenced to 20 years in jail with a $200,000 fine to boot. The widely celebrated finding was overturned in August of last year when Lady Justice D.O. Chepkwony of the Kenya High Court reached the decision that the initial ruling 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 24, 2018, a middle-aged Mombasa clearing agent by the name of Nicholas Maweu John was acquitted for his role in the attempted exportation of 3.3 metric tons of ivory destined for Malaysia from a Mombasa port. 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 truck 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 2.2-metric-ton Mombasa ivory seizure.

This past January 15 another long-standing ivory trafficking prosecution mercifully came to a 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 1.5 metric tons of ivory to Dubai, the ivory being seized after officers of the 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 complicity by the KRA 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 1 metric ton 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 1.1 metric tons 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) totaling more than 6 metric tons 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 on wildlife trafficking-related offenses.

In January 2018, Cote d’Ivoire authorities, with the assistance of international NGO EAGLE (Eco Activists for Governance and Law Enforcement), arrested a Vietnamese national and five others who were part of the same cartel. Their case is still before the courts.

In Kenya, one clearing agent is the sole accused in this trans-continental cartel. It should be said that the initial investigation by the Kenya Directorate of Criminal Investigations 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.

Just over two months ago, Ugandan authorities seized a suspicious container outside Kampala and arrested three Vietnamese nationals. Inside was discovered 3.3 metric tons of ivory and 0.4 metric tons of pangolin scales inside hollowed-out logs sealed with wax. The container, while its final destination has not been made public, was almost certainly going to transit Mombasa.

And in Kenya? One clearing agent is on the verge of yet another acquittal.

Chris Morris has a background of 33 years in Canadian law enforcement and experience in uniform operations, major crime investigations, drug-related proceeds of crime, polygraph, court liaison, tactical operations, and training. His international experience includes a one-year secondment to the Special Court for Sierra Leone as an investigator to the Charles Taylor war crimes investigation and a one-year secondment with the EU Police Mission in Afghanistan as a mentor/advisor to the Afghan Police. Since 2015, Chris has turned his focus of study to international wildlife crime, primarily in Kenya, and more specifically to how it is affected by police corruption.

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Article published by Mike Gaworecki

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