Wildlife Traffickers – Untouchables

By Jim Karani

There are three Kenyans on INTERPOL’s worlds’ most wanted criminal list. They are not terrorists with ties to Al Shabaab or ISIS, neither are they drug traffickers. They are not even human traffickers or illegal arms dealers. They are all elephant ivory traffickers.

Of the three, Gedi Ahmed, is wanted for the possession of 230 kilograms of elephant ivory in Utawala, Nairobi in 2017. He ran from authorities after being given bail at Kibera Law Courts. The remaining two are brothers, Nicholas Jefwa and Samuel Jefwa, who have notoriously evaded authorities since 2015. They are the suspected masterminds behind the exportation of 6,400 kilograms of elephant ivory concealed in export coffee destined for Thailand and Singapore in 2013. This seizure remains Kenya’s largest illegal export of elephant ivory in its history. Put into context, this seizure potentially relates to over five hundred poached elephants!

INTERPOL has sent an international request to all its 192 member countries to arrest the three suspects on sight and extradite them for prosecution in Kenya. This is not Santa’s naughty list – it’s a list of very bad guys. You only get on INTERPOL’s most wanted list for the most heinous of crimes.  

Their continued cat and mouse game enters its third year for the Jefwas and a second year for Gedi. Unfortunately, it is still not a guarantee that they will be convicted and sentenced if they are arrested. Precedent from the courts shows that there is a high likelihood they will evade justice.  

Recently, the High Court at Mombasa, set free Feisal Ali, convicted for the trafficking of 2,152 kilograms of elephant ivory. Feisal too had a dishonourable mention on Interpol’s most wanted list having eluded law enforcement for six months. Feisal’s case related to 314 pieces of elephant tusks valued at Kshs. 44million ($440,000) seized in 2014. Dr. Sam Wasser, a scientist with Univ. of Washington, sampled this ivory and conducted DNA analysis to determine the origin of elephant tusks. With a certain degree of accuracy, Dr. Wasser determined that the tusks were from some 150 elephants emanating from the poaching fields of Northern Tanzania.

Twenty three witnesses gave evidence on how Feisal masterminded the transportation and offloading of ivory in a car yard where it was later seized. He was convicted and sentenced by, no nonsense magistrate, Hon. Mochache to twenty years imprisonment and a fine of twenty million shillings despite allegations of evidence tampering by the police. This landmark precedent sent the desired deterrence – traffic in ivory and risk arrest, prosecution, conviction and harsh sentencing.

Two years into his jail term, High Court Judge. Chekwony set free Feisal Mohammed Ali and all his co – accused, who are owners of the yard where the ivory was found. This outrageous decision leaves puzzles unanswered. Who then is responsible for the 2,152 kilograms of ivory seized in Fuji Motors yard?  If it’s not the owners of the yard, then who? How much more evidence is needed to convict?

This decision has undone a two ton illegal elephant ivory bust, a six month investigation, an Interpol INFRA TERA regional – joint – arrest operation, four years of court time and resources. These acquittals are not new to ivory trafficking cases. Through Eyes in the Courtroom project at WildlifeDirect, I have studied wildlife crime cases in Kenya and specifically followed this and similar cases.

Only two in nine high profile cases relating to major seizures in elephant ivory have been concluded. All two cases have ended in acquittals. Earlier this year, Nicholas Maweu, a customs agent, was acquitted of his role in the seizure of 3,287 kilograms valued at 164mn shillings at the port of Mombasa in 2013. This ivory was concealed in groundnuts and upon seizure the true owners of this consignment were never charged with criminal offences. Nicholas was the only one person accused in this case! While acquitting Maweu the court cast doubts to investigation coupled with a poor prosecution that did not charge all key suspected involved.

Seven cases are currently pending in courts in various stages of determination. They all relate to a shocking 12,455 kilograms of elephant ivory in evidence! Some cases are celebrating their sixth anniversary in the corridors of justice having begun in 2012. Delay is not new in these cases.

The arc of justice clearly seems to always bend towards wildlife traffickers, especially when it comes to sentencing. While reading out her judgement, Judge Chepkwony insisted that the twenty year imprisonment sentence for trafficking in 2152 kilograms of elephant ivory was too harsh for Feisal. This was shocking, despite the penalty being proportional to the crime. We have documented a case in another court, as early as this year, where a low level trafficker with a few kilograms of elephant ivory was sentenced to 8 years. There seems to be different rules for high profile traffickers!

Loopholes within Kenya’s wildlife law also favour traffickers heavily. When passing the Wildlife Act in 2013, Parliamentarians set a higher penalty for those that engage in trafficking of endangered species from the penalty of a 5 years’ imprisonment and one million shillings fine to life imprisonment and twenty million shillings fine. They, however, did not specify what illegal activity triggers the penalty in the law leaving a loophole that preferred less punitive penalties in favour of suspected ivory dealers and traffickers.

Cabinet Secretary, Hon. Balala has made it his mission to correct this glaring loophole and through the Statute Law (Miscellaneous Amendments) Bill, 2018, currently before Parliament, has proposed a raft of amendments that finally fixes this problem. When the Bill passes into law penalties against wildlife traffickers will be certain and enhanced. Unfortunately, these efforts to amend the law will find Feisal and his comrades long gone. Amendments will not apply retrospectively to even pending cases. It’s akin to closing the barn door when the horse has long bolted!

Wildlife trafficking suspects are untouchable and always seem to avoid justice. There is no guarantee that pending cases will have a contrary outcome. The precedent Feisal’s acquittal sets is now obvious for everyone to see. If you are a trafficker, you can get away with it if you interfere with evidence, get a good lawyer and prevail on the judge.

The ODPP has insisted he will challenge the decision to the Court of Appeal. I remain cautiously optimistic that this audacious attempt with bear fruits. One thing is certain, Feisal will run if he gets wind of imminent success of an appeal and the whole cycle will, unfortunately, have to start again. It’s a shame that Interpol’s most wanted list is now relegated to just a declaration of intent when it is obviously not being followed through with tangible outcomes of convictions and sentences.

Its aluta continua for traffickers.