Another trafficker walks free

Ephantus Gitonga Mbare at Mombasa Law Court during the ruling of his case

Mombasa-April 25, 2019: Another suspected trafficker of elephant ivory is set free by a magistrate at Mombasa Law Courts. Directly charged for the trafficking of 1097kgs of elephant ivory in two containers in December 2016, Mr. Gitonga walks out of court a free man. This unfavourable outcome of prosecution of a wildlife crime case reflects the reality of wildlife trafficking in Kenya – wildlife traffickers of elephant ivory are rarely brought to justice.

Every time law enforcement seize elephant tusks there is an expectation of the public that those responsible for the poaching and then trafficking of elephant tusks would be easily detected, swiftly apprehended, diligently prosecuted, harshly sentenced, eventually relieved of their wares and proceeds of wildlife crime through forfeiture.

Unfortunately, this is far from reality. In fact, Judicial officers sitting at Mombasa Law Courts have set free a record eight (8) suspected wildlife traffickers in four cases that have all ended in acquittals of all accused. I conducted a study in partnership with the Judiciary studying the outcome of criminal cases and my principle conclusion is equally frustrating – wildlife traffickers avoid justice while the book is thrown at low level poachers of whom the ODPP prosecutes with a 95% conviction rate!

One then wonders why it is so hard to bring wildlife traffickers to justice? Why is there a zero percent conviction of those who are arguably the greatest perpetrators of wildlife crime? Unveiling the chain of criminality and reasons for the recent acquittal at Mombasa Law Courts calls for a deeper examination. The single accused person in this case was acquitted after the court found the prosecution could not prove beyond reasonable doubt that the accused perpetrated the offence. Mr. Gitonga, a clearing agent, was uncannily the only accused person in a case relating to 1097 kilograms of elephant ivory with obvious organized and transnational elements exporting ivory from South Sudan to Cambodia.

This case is enthralled in more mystery. The elephant ivory was found hidden in hollowed out timber beams and covered with hot wax to evade detection by sniffer dogs. In fact, I was at the port at Mombasa on the day of the seizure and none of KWS sniffer dogs could detect that ivory was inside the logs! The only way Kenyan authorities got wind of this illegal consignment was when foreign customs law enforcement tipped them off on the shipper of the two containers of ivory.

It gets more sinister when you consider where the ivory was from. Upon scientific examination, Dr. Sam Wasser from University of Washington, conclusively deduced that the elephant ivory haul was from more than 75 elephants poached in Central Africa. This same ivory had markers identifying it as previously seized ivory from Burundi government stockpiles!

This case is a prime example of the audacity of corruption especially in high profile trafficking cases. One would expect that the stockpile storage of ivory would be examined at the very least by Burundi, one would even go a step further and expect the indictment of the owner of cargo, transporter, clearing and forwarding agent, shipper and final buyer of the cargo in the two containers. For equal measure, the law demands that the customs officer also is charged along other suspects as the responsibility to ensure ivory is not cleared for shipment rests with him or her.

All of these suspects have evaded indictment and prosecution. There is no reason given as to why this is so. All companies implicated in this illegal export continue to operate in the import and export business avoiding any adverse blacklisting. The court explicitly pointed to the poor investigations that led to this obvious miscarriage of justice.

The real culprits are still out there and have not been charged till this date. Elephants will not be safe until all wildlife traffickers are brought to justice. To change this state of affairs one has to look up to the new Director of Criminal Investigations, Director of Public Prosecutions and Director General of Kenya Wildlife Service. Only they have the power to turn the tide against this embarrassing outcomes. They have the power to rein in on their officers to do a better job of cracking trafficking networks.

To date, none of the eight high profile cases I have identified in Mombasa Law Courts have ended up in convictions. Four cases have ended in acquittals and the remaining four cases don’t give one confidence that they will have a different outcome. They all relate to a combined 20,400 kilograms in elephant ivory. By any measure, we are talking of over 1000 elephants poached as a conservative estimate. Law enforcement officers need to understand the gravitas of wildlife trafficking and actually wake up and address this issue which is arguably at crisis levels. Until then, Kenya will continue to provide the getaway car to traffickers & poachers who are decimating wildlife in East Africa and beyond!

The writer Jim Karani is a Legal Affairs Manager at WildlifeDirect