Inside the Wildlife Crime Courtrooms of Kenya

In the realm of African ivory seizures, it was a rarity. In Kenya, such an arrest had never been made. A man was in custody who confessed to being the financial go-between in an ivory consignment originating from DRC and Uganda, transiting Nairobi via Jomo Kenyatta International Airport (JKIA) and going to Thailand.

In late June 2017, officers of Kenya’s Special Crime Prevention Unit (SCPU) searched a home in the Utawala area of Nairobi and found 216.7 kg of ivory being packaged as ‘flowers’ for an air freight shipment to Bangkok.

Five men were arrested at a rental property, four of them having employment connections to JKIA. A sixth man, Abdinur Ibrahim Ali, alleged to have financial links with a West African ivory supplier, Moazu Kromah, was arrested a short time later. Arguably the coup de grace to the seizure was the arrest three days later of Ahmed Mohamed Salah, alias Ahmed Mahabub Gedi, who had handed over $25,000 in cash sent by a Guinean in Bangkok, Thailand, to Abdinur Ibrahim Ali for the ivory. Salah was arrested at the Tanzanian border crossing, initially for being in Kenya illegally.

It is difficult to envisage a criminal arrest with more compelling grounds for custodial remand. Ahmed Mohamed Salah, a Somali, schooled in a refugee camp, in possession of fraudulent Kenyan identification, no fixed address in Kenya, resident of Mozambique for five years, in Kenya illegally for the criminal purpose of facilitating the trans-national trafficking of 216.7 kg of ivory, and arrested at a border point with Tanzania while fleeing justice.

As it happened, the sitting chief judge in court 1 of Kibera law courts had (or was requested to have) a different interpretation of Section 49 (h) of Kenya’s constitution relating to bail and bond. On the afternoon of July 7th, 2017, Ahmed Mohamed Salah was released on a $10,000 cash bail. From a judicial perspective, he has not been seen since. Two court dates passed without the appearance of Salah before a warrant for his arrest was finally issued. Salah’s advocate had told the court that his client had been sick and was on ordered bed rest. It was subsequently found that there was no record of Salah having checked himself into a hospital. Investigators discovered through phone GPS data that he was in the Dadaab refugee camp. No attempt was made to arrest him.

Those with the most basic understanding of justice would have described the late Friday afternoon cash bail release of Ahmed Mohamed Salah as dubious. There were other irregularities in this case. The apparent deception by his lawyer to the court over Salah’s failure to attend because of ‘sickness.’ The Isuzu pickup truck seized by investigators on the day of the seizure went ‘missing’ from police custody a few months later. The non-arrest of the man is believed to have cut the ivory for transit and identified through phone data. An apparent lack of follow-up investigation on the ivory pipeline out of Jomo Kenyatta Airport. The listing of Salah alias Gedi on the Interpol Red Notice list with no photograph, no alias, no descriptors, no offense listing, and no mention that he was a resident of Mozambique.

So why is a 2017 ivory seizure prosecution of interest? From an integrity perspective, nothing has changed within the criminal trial process. If a similar arrest and seizure were made today, under similar circumstances, there would have been no systemic changes within all the agencies involved to suggest that the ‘irregularities’ would not play out in exactly the same manner.

Since 2017, from the perspectives of the public, government, and non-government organizations, the ivory trade has retracted somewhat from its previous pole position in the illegal global market. Poaching numbers are generally down, there have been some successful, high-profile arrests internationally, and in general, the focus that was on East Africa (Kampala and Mombasa) shifted to West Africa (Lagos) where it is has been now for a number of years. The more recent high-profile Nigerian arrests appear to have slowed the onslaught of containers full of ivory and pangolin scales heading east. Law enforcement awaits to see if the trade will pick up or if it will find another modus operandi and location from which to be based.

Paradoxically, these investigational successes against wildlife crime transnational criminal organizations (TCOs), like the Salah case above, have not been matched by prosecutorial or sentencing success in the courtroom, and perhaps predictably so. The bulk of international funding and support provided to combat poaching and trafficking of endangered wildlife is primarily funneled into improving the capacity of those agencies to prevent or investigate such crimes. This support has generally come through capacity building in some form, either through training and mentoring or by providing the latest technology, weapons, and equipment. The increased quality of investigations and efficiency in evidence gathering has been noteworthy, but one critical area continues to be neglected: the prosecution of these investigations and what happens in the courtroom post-arrest.

Perhaps it is felt by the various stakeholders that once an investigation hits the courtroom, it is no longer a conservation problem but a justice problem. Perhaps there is the perception that compromise and corruption are only evidenced within law enforcement agencies and not the prosecution or the judiciary. Perhaps it is felt that some arbitrary line is being crossed by being in the courtroom, that a national legal autonomy is being trespassed. Or perhaps it is a funding issue; donors are only willing to support capacity-building initiatives for rangers and wildlife crime investigators.

Improvements have been realized in the handling of the lower level and more numerous ivory-related arrests and seizures. The same cannot be said for the major cases with a transnational element, particularly in the courtroom. The so-called “West African Cartel,” ironically based in Kampala, Uganda, featured in most. This transnational criminal organization acted in concert with Kenyan organized crime, utilizing the port city of Mombasa and, to a lesser extent, Jomo Kenyatta International Airport, to ship tonnes of ivory from all over Africa to Asia. Uganda has not escaped the grim reaper of courtroom ‘compromise,’ their failed 3.3-tonne ivory investigation from 2019, tanking after a highly ‘controversial’ bail release by Chief Magistrate Saray Namusobya Mutebi of the arrested Vietnamese nationals, who predictably fled the country.

Most of these seizures and arrests were typically characterized by good initial investigations that collapsed post-arrest. Circumstantial evidence exists, at the ‘beyond a reasonable doubt’ level, pointing to these ‘collapses’ emanating from influences outside the justice system. But the site of these collapses, the point of failure, is in the courtroom. This is not to say that judges, magistrates, and prosecutors are solely responsible. They are not. But the courtroom is the site of the demise of many a stalwart case. And who is there to mitigate or report? More often than not, news of these failed verdicts is subdued or minimized, with the root cause of the collapse never provided or determined for the purpose of lessons learned.

The results of thirteen Kenyan involved seizure investigations dating back to 2010. Six acquittals, one acquittal on appeal, one case withdrawn, three (possibly five) non-prosecutions, and one conviction. In only three of the prosecutions, was someone higher than a clearing agent charged. In the sole conviction, two men were sentenced to two years imprisonment after an 8-year trial for their part in trafficking 3.8 tonnes of ivory in 2013. One of the accused had his custodial sentence reduced to ‘within the community’ after nine months. There is presently only one major ivory case remaining before the courts in Mombasa, a 2014 one-tonne seizure made in Singapore that did not produce arrests until 2017. That case has concluded awaiting judgment for the six accused, with the probability of conviction, pending divine intervention or presidential decree, at zero.

While Kenya has not had a major seizure (over 500 kg) since 2016, there are clear indicators that these external influences are still being used in present-day investigations/prosecutions where an organized crime or cartel presence is detected. It was this challenge within the criminal justice system from which the wildlife crime courtroom monitoring initiative was born.

Wildlife Direct

To clarify, there are no special wildlife crime courts in Kenya and there are no specialist wildlife crime prosecutors amongst those of the Office of the Director of Public Prosecutions. That is not to say that there aren’t those who have received sensitization training on the Wildlife Conservation and Management Act. But on any given day, of the 30 to 50 plus files stacked on the prosecutor’s courtroom table, only one or two may be related to wildlife. The remainder runs the entire gamut of criminal offenses, motor vehicle infractions, and even inquests.

Listening, observing, and making notes on a particular wildlife case takes time and patience. One could be in court for less than five minutes or all day in a packed courtroom, straining to hear the proceedings through the constant hum of multiple ceiling fans or the hammering of heavy rain on a metal roof, seated on the hardest wooden benches characteristic of courtrooms around the world. This is the essence of courtroom monitoring.

Organizations that conduct courtroom monitoring activities are not, however, all observing the proceedings through the same lens. Organisations may use the information and data for purposes of mentoring and advising. Others have put their observations in the public realm thereby providing (in theory) a risk mitigation to compromised activities in the court.

In Kenya, Wildlife Direct is generally recognized to be the founder of the courtroom monitoring initiative, certainly in East Africa. The Kenyan NGO was founded in 2004 by Richard Leakey and Harold Wackman, initially to provide a public voice for those in the conservation arena. They (Wildlife Direct) did not find themselves in the courtroom, however, until late 2014.

The year previous, with poaching numbers out of control, Wildlife Direct, at this point led by Paula Kahumbu, embarked on a data collection exercise from Kenyan courts based on the hypothesis that Kenya’s criminal justice system was doing little in the way of dispensing justice in matters of wildlife crime. The hypothesis was proved correct, and their initial report, “Scoping study on the prosecution of wildlife-related crimes in Kenyan courts,” substantiated the necessity to revamp Kenya’s outdated Wildlife Conservation and Management Act, which was a work in progress at the time.

Wildlife Direct’s courtroom activities went to another level with the trial of so-called ivory trafficking kingpin Feisal Mohamed Ali in early 2015. Feisal and four other co-accused had been charged in relation to the seizure of 2,152 kg of ivory, found in June 2014 within a compound leased to a Mombasa vehicle dealer. Wildlife Direct’s lawyers and ancillary staff took an active part in the trial under a process known as ‘watching brief.’ They also documented the proceedings with written notes and video footage, publishing their observations on a regular basis through their website and on social media. This was complemented by television interviews and articles published in national and international media by Paula Kahumbu.

In July 2016, of the five accused persons charged, only Feisal Mohamed Ali was convicted on what observers would describe as minimal circumstantial evidence (he was later acquitted on appeal). His conviction, however, was a shining example of what could be accomplished through a courtroom monitoring initiative and what social media pressure and public awareness could achieve when acting in concert. Despite police obstruction, tampered evidence, perjured testimony, and a magistrate suspended mid-trial for gross misconduct, Feisal Mohamed Ali was still found guilty. The courtroom monitoring process during that trial was, without a doubt, a major contributing factor. Without Wildlife Direct’s involvement, it is likely that Feisal Mohamed Ali would never have been arrested, and the trial of the remaining accused would have met the same ignominious fate as other major ivory cases.

Feisal Mohammed Ali was not the only focus of Wildlife Direct’s courtroom monitoring program. In concert with this activity, they also gathered data and statistics from the majority of Kenyan courts regarding their handling of wildlife crime cases. It was through this process that Wildlife Direct detected the presence of the ‘West African Cartel’ in Kenya, although its significance was not initially realized.

Between 2014 and 2016, it was noted that the police and the Kenya Wildlife Service made a number of arrests that piqued interest through involvement by suspects of West African descent. These West African suspects appeared to receive a favorable bias that was not seen with their Kenyan co-accused. Amongst the different investigations, three were deported (reportedly) never to receive justice in Kenya, and at least three others were released prior to arraignment, one of them being Amara Cherif, arrested in 2014 when police found a water tanker truck containing 133 pieces of ivory weighing 784 kg in Nairobi. It was later recognized that Cherif was one of the leaders in the West African cartel, and it would be another five years before he was arrested again and extradited to the United States.

Wildlife Direct continued to actively monitor a few of the other higher-profile ivory cases in the Nairobi and Mombasa area, but their success came with a price. In such a setting, it is a challenge to work independently of the government or justice system, promoting change and transparency without some pushback. One law enforcement agency even referred to them as “of ignoble purpose.”

The staff of Wildlife Direct began receiving threats from ‘representatives’ of the criminal entities who were involved in the ivory trade, first with the Feisal case and then with another Mombasa case (that ended eventually in acquittal). They tried to shrug off the threats as ‘one-off’ initially, but the threats and intimidation did not desist. Security companies were consulted on the viability of personal protection, and even firearms training was discussed with one of their legal department managers. In the end, costs were too prohibitive, and slowly, over time, Wildlife Direct retracted from its independent, occasionally abrasive, style of courtroom monitoring, preferring an emphasis on the data collection and analysis side of the process. It withdrew completely from the court monitoring aspect of its work in 2021.

Two other major international NGOs, with a presence in Kenya, as well as other African countries, have also become involved in the courtroom monitoring initiative following the advisor/mentor path. For these organizations, courtroom monitoring is but one aspect of several areas in which they operate their expansive conservation umbrella.

In 2016, Space for Giants (SFG) began its own courtroom monitoring program under the leadership of Shamini Jaynathan OBE. Their focus was on the courts situated under the shadow of Mount Kenya, in north-central Kenya, centered in Nanyuki. At this point in time, Jaynathan had already worked informally with Wildlife Direct and had been a contributor to their first two reports. Her first report with Space for Giants as lead author: “Analysis of Prosecutions of Ivory, Rhino Horn, and Sandalwood Crime in North Central Kenya – A Case Study,” released in 2018, was probably the most factual and hard-hitting report of any released at the time. Corruption and integrity challenges were discussed, something rarely seen in such a report.

Since that time, SFG, and now under the direction of ex-prosecutor, Katto Wambua, appears to have become more reserved in their reporting of courtroom activities in Kenya, dedicating a few paragraphs in their annual reports to such. The last number of impact reports focused on their collaborative work with stakeholders, empirical data collection, capacity-building initiatives, and law/policy development in a number of different countries. SFG did, however, in their 2023 Impact report, indicate that not everything was a bed of roses within the Kenyan courts. They identified that of the 71 wildlife crime cases they were monitoring, “26 were cases of interest as they involved significant wildlife trophies, government officials, factions of organized crime, or repeat offenders.” The report continued by stating that “the team noted a concerning increase in cases involving public service employees, personnel working in protected areas, and repeat offenders.”

Interestingly, Shamini Jaynathan’s 2018 report is no longer on the SFG’s website and cannot be found online under normal search parameters.

In 2019, SFG signed a five-year memorandum of understanding with another international NGO, the African Wildlife Foundation (AWF), for the purpose “to share expertise and resources to achieve joint conservation goals.” This included an AWF courtroom monitoring component in “the Tsavo Ecosystem in Kenya to support the criminal trial process for combatting wildlife crime.”

AWF’s court monitoring activities came under Didi Wamukoya, the director of AWF’s Counter Wildlife Trafficking program. Wamukoya, previously a prosecutor with the Kenya Wildlife Service, certainly had the knowledge and experience of how courtroom collapses can play out in wildlife cases.

As with Space for Giants, AWF’s court work is collaborative in nature, working with the Kenya Wildlife Service, the National Police Service, the Office of the Director of Public Prosecutions, and the Judiciary. They accent training programs tailored to what they see in court, such as how to track digital transactions and evidence management. AWF also provides logistical support if required as well as pre-trial support to prosecutors. In their 2022 annual report, they boasted the most extensive court monitoring program on the continent.

While both these organizations do sterling work in the courtroom, one could not be faulted in questioning whether the collaborative nature of their work affects how they deal objectively in addressing issues of compromise and integrity amongst their partners, issues that surely arise.

SEEJ-AFRICA (Saving Endangered Species through Education and Justice) is a relative newcomer to the courtroom monitoring work and certainly at the other end of the size spectrum compared to SFG and AWF. They began their courtroom monitoring work in an informal manner in 2018. They have no full-time employees and most of their ‘freelancers’ who attend court have no legal training, compromised of well-educated Kenyans who have not found employment, like much of the country.

SEEJ-AFRICA is in court with the belief that from a wildlife crime perspective, there are process issues and integrity issues within the criminal justice system that are impeding justice and not being addressed. For example, should an ivory-related prosecution with four government witnesses take over 3 years, between 20 to 30 sittings, and require the seized ivory to be shown to the court every time a witness testifies? It is primary among their goals to provide clarity and an independent voice to counter the translucency or information void sporadically evident within the conservation justice realm.

The communication policy of the Kenya Wildlife Service ensures that their operational successes rarely make the news. Those that do are, more often than not, the multi-agency arrests that involve the participation of the Directorate of Criminal Investigations (DCI). The media typically publish a few paragraphs on wildlife-related arrests and seizures but are reticent to follow up, particularly when the major cases tend to run on for many years. The safety factor is also a hindrance, with many journalists avoiding such stories cognizant of the fact that major ivory and rhino horn cases are organized crime, typically linked to high-level government officials and agencies prone to acts of extrajudicial justice.

There is rarely a ‘smoking gun’ to identify those behind the subverted cases, and it is just as difficult to categorically state beyond a reasonable doubt that a case has been compromised. Nevertheless, SEEJ-AFRICA has found that strong circumstantial indicators of ‘facilitation’ do present themselves in the courtroom over time. SEEJ-AFRICA believes that simply being in court on a regular basis can mitigate against this compromise.

For the first few years, SEEJ-AFRICA was operating in a limited capacity, following a small number of cases that were deemed ‘vulnerable.’ In 2023, they received a short-term shot in the arm from the Elephant Crisis Fund, an initiative by Save the Elephants and the Wildlife Conservation Network, to expand the network of cases they were able to observe. Their cases are primarily in the Nairobi and coastal region but there is some overlap with SFG and AWF as SEEJ-AFRICA’s court monitoring follows different parameters.

In 2016, Paula Kahumbu wrote a piece in a local Kenyan newspaper entitled, “In the war on wildlife crime, we’re wasting our time unless we deal with corruption.” Since that time, discourse within the international conservation justice community on the harmful effects of corruption has become more evident. That dialogue, however, does not extend into the halls of justice and the compromise and facilitation found therein. Surely, if the status quo remains, convictions in wildlife cases of significance or convictions of deterrence will continue to be virtually impossible.

Any judicial process is no stronger than its weakest link, and the weakest link presently is found in the courtroom.

This is the first in a series of articles based on my observations made in wildlife crime cases prosecuted in Kenyan courts over the past nine years. Next up: “Post Mortem of a ‘Failed’ Ivory Prosecution”.