JUSTICE DENIED

How Kenyan courts handle ivory trafficking: 2 cases in Nairobi Makadara court 19 April 2013
Im sitting in court 6, Makadara court waiting to hear the case of a Vietnamese traveller arrested in transit at the Jomo Kenyatta International Airport Nairobi on April 7th with 488 piece of ivory. I arrived at 9 am for the 10 am case and the small clean white painted room that serves as a with court is filled to absolute capacity. Throngs of people line up outside the court room. I squeeze through a crush at the door and find a spot where I can stand. Nicole, is already here. She is a distinctive woman, oriental African features and extremely tall. I feel drab against this is Diva-like Vietnamese translator. Im filled with pride for having found her to help us in this case. KWS had called me days earlier in desperation, the court was going to throw out the case against a Vietnamese ivory trafficker because they could not find a translator. Twitter came to the rescue, an appeal went viral and Nicoles number was sent to me. She may be the only Vietnamese speaker in all of Nairobi! I tweet my gratitude to all who help and promise the that this criminal is going to jail. Everything seems to be going our way lately. The Governments highest advisory body the National Social and Economic Council deliberated on evidence and came up with clear resolutions to end the crisis facing elephants and rhino and committed to using the full force of the law on February 1st this year. They said The COUNCIL acknowledged that elephants and rhinos are Kenyas national treasures and must be protected in their own right and also to secure economic potential of tourism in Vision 2030. The illegal killing of these and other species should be viewed and responded as an economic sabotage since this poses a grave threat to Kenyas indigenous resources wherein the tourism sector is a major contributor to the countrys economy.

Then reading from the same page President Uhuru Kenyatta surprised Kenyans at his inauguration by stating My fellow Kenyans, poaching and the destruction of our environment has no future in this country. The responsibility to protect our environment belongs not just to the Government, but to each

and every one of us. At the opening of parliament he went even further and said We are stewards of our environment, holding in trust this earth for future generations of Kenyans. We have a sacred duty to protect it, our wildlife and our landscape. That is why I will propose legislation to strengthen the protection of the environment. Immediately the country responded. Conservationists and tourism operators signed a joint letter to the Chief Justice on 2nd April asking for him to implement actions to elevate the seriousness with which wildlife crimes are handled in Kenyan courts, and to review cases where justice had clearly not been achieved. This case against a Vietnamese ivory dealer was a perfect opportunity to prove that this is a New Kenya and wildlife really does matter. My smugness was badly misplaced. The KWS prosecutor, Didi Wamukoya is already sitting in the dock, next to her is the lawyer for the accused, Nguyen Viet Truong Phong. The magistrate, a small, busy, smartly dressed, Mrs. Nyongesa arrives a good two hours late and we all rise as she apologises for the delay and gets straight to work. She is a no-nonsense woman. She wades through what seems like hours of other offences including assaults, family problems, business frauds, and robberies and other crimes. The cases being heard are funny, sad, boring, and tragic when two women are taken to the cells and their children left to the court officers to handle. After what feels like an eternity, the magistrate pulls up a bright yellow file. Didi stands up. Its our moment. This is the first of two ivory cases to be heard today. I cant help but feel excited. It is 11 am. A name is called, a police officer opens the door to the hold and a Chinese man appears from the cells. The acrid smell of urine wafts into the already stuffy court. His interpreter says he is guilty of the charges of having ivory bracelets and a string of 13 ivory beads, and an ivory pendant. Didi asks to take the items to the National Museums of Kenya to confirm that it is indeed ivory, unless he does not dispute that it is ivory. He says he does not know if it is ivory and the magistrate makes the decision to send the specimens for testing. The man is withdrawn back into the stinking hold. He will remain in remand for another week; being Chinese and in transit, he is a flight risk so he is not allowed out of remand. Good, let him rot in those cells I think to myself. I am pleased with how this is going, this magistrate is clearly on our side. I cant wait to see how long our Vietnamese friend will be jailed for. His case is next. Didi explains the history. On 7th April 2013 Nguyen Viet Truong Phong arrived at JKIA from Benin and was in transit to Bankok on a Kenya airways flight. He was stopped at gate 12 by airport security personnel after his luggage was screened and found to contain suspicious items. The airport officers opened the baggage in his presence and confirmed that he had 488 pieces of worked ivory bangles. The airport police arrested him and called KWS officers. Specially trained sniffer dogs were brought in and they confirmed the suspicion of ivory. A handsome young police officer pulls 2 smart suitcases away from the wall in front of me. They are both hard backed cases, one shiny black, one blood red. He lays them down, unzips them and flips the lids over. Didi says The ivory weighed 33.6 kg of ivory and KWs assessed it to be worth Ksh 5.7 million.

An audible Waaaah erupts from the filled court room as everyone cranes their necks to see the contents of the suit cases. They are both filled with long white boxes about 1 foot long and 5inches square. I can see a picture on the boxes of coloruful tube like structures with alternating red, yellow and orange bands. These are meant to be flower vases at the top is a bad painting of blue flowers. Curly writing down the side of the box says Flower Vase. There is no other information on the box. He opens one of the boxes and pulls out one of the vases it is a tube of brightly coloured ivory bangles red yellow and orange, stacked up to make the tubular vase-like structure. The items look plastic flower vases, an ingenious way of concealing ivory. The interpreter Nicole stands up and walks to the accused who is standing in the dock to the right of the court. He looks rather vacant, perhaps confused. She is handed a piece of paper by the magistrates assistant and reads out the charges. The man nodded to each charge and mutters something incomprehensible. The Magistrate asks what he is saying. He says he bought the ivory but did not sell the items in the Nairobi airport. He bought them in a shop in Benin and was taking them to Vietnam. According to Nicole, he admitted to buying the ivory but did not know there was any kind of paper work required. Like many other ivory traffickers caught in Kenya before him, Truong simply agrees to the charges and is immediately found guilty and convicted. It feels like a well rehearsed game. Since there are no previous records he is treated as a first offender. KWS asks for a stiff penalty due to the nature of this case and quantity of ivory involved. His lawyer responds by appealing against a stiff penalty saying the accused is a tourist and was just shopping and wanted to buy trophies with some spare cash. He did not know it was illegal in Kenya. He adds that the situation is confusing for travelers, some countries in the region eg Tanzania and South Africa allow trade in wildlife trophies. Despite objections from Didi, the lawyer for Truong argues that although poaching of elephants is an offence in countries across Africa, some do not have dealership in trophies as an offence. In fact, he adds The origin of the trophies are not known. The elephants might have died of natural causes perhaps of old age. Some may have been domesticated and died of natural causes. He even argues that the Kenyan Wildlife Act does not anticipate or provide for the origin of the ivory confiscated in transit. After the ruling I speak to Truongs lawyer. How did he come to be this mans lawyer I ask? He claims he stumbled on this witness but I get the impression that he has been here before. In his mitigation he blames Kenya for bad laws, and Kenya Airways for failing inform her passengers The accused was on KQ, KQ has a responsibility for informing their passengers that such trophies could be confiscated, there is no clear information in oura priority saying you can or cannot carry this. Asking for leniency his lawyer also noted that the accused was from a very different country with a different language which made it difficult for him to appreciate that he was carrying trophies and that it was illegal. My client is cooperating with the investigation he was not dealing with the ivory at the airport. He concluded.

Now this ivory dealer with commercial volumes of ivory, concealed as flower vases is beginning to look like an innocent child, a traveler in a strange land, a victim of poor policies and weak information across Africa. The Magistrate seemed to be swayed by this illogical line of reasoning and at no point did she appear to recognize the seriousness of the crime and its impact on elephants, the fact that the ivory was concealed means that this man knew it was illegal, the volumes show that it was commercial. He almost escaped justice by claiming he spoke no other language than Vietnamese yet how did he travel across Africa and purchase this ivory? I could see that things were going bad when the Magistrate asked Didi if the ivory purchased in Kenya implying that if its not Kenyan elephants that died, its not really our problem. Didi reminded her that the Kenya law does not take into account the origin of the ivory. Any trophy in Kenya is a government trophy. From his passport it is clear that he got it while travelling. The CITES convention and Kenyas responsibilities to comply with those regulations were as alien to this court as the mans undecipherable language. The Magistrate sought extra time to research the law and reconvened at 3 pm. Her ruling was simple. I convicted the accused because he has admitted to the charges. What she said next flew in the face of recent pronouncements by the Government of Kenya which has promised to use the full force of the law to stop poaching and illegal dealing in wildlife products. She said I will sentence him using the provisions of the laws of Kenya. He was fined a total of Ksh 40,000, the ivory he was trafficking was worth Ksh 5.7 million. I drive home in a state of shock. I feel devastated. No matter how much we invest in anti-poaching and dealing, no matter how many more poachers, dealers, traffickers we arrest, it makes no difference. The courts are letting them off with miniscule fines. President Uhuru Kenyatta made some excellent references to poaching and illegal dealing in ivory and rhino horn in his inaugural speech just days ago which left all conservationists in a state of euporia. The outcome of this case feels like a slap in the face. It is just another painful reminder that Kenyas has completely lost her credibility as a global leader in conservation. The words of the leaders are completely at odds with the actions of the courts. How did we fall down so far? Kenya traditionally has been on the front line in combating elephant poaching in Africa and has been a leading voice on elephant conservation through various international conventions including CITES, the Convention on Biodiversity, the Convention on Migratory species and others. Despite these commitments, trafficking of ivory via Kenya has reached an all time high, and Kenya has now become the second largest transiting country for illegal ivory in Africa, second only to Tanzania. Given our justice system, its no surprise. At the recently concluded CITES conference, Kenyas rhetoric did not match her actions and the convention listed Kenya amongst eight (8) countries found to be complicit in the ivory trade. Other countries include Uganda, Tanzania, Vietnam, Malaysia, Philippines, Thailand and China.

Todays ruling was a wake-up call for all of us. It is going to take more than nice speeches by His Excellency President Uhuru Kenyatta to turn this situation around. Otherwise, our elephants are doomed.

Paula Kahumbu is the Executive Director of WildlifeDirect, a conservation organization that is campaigning to save Kenyas elephants. She is spearheading conservation efforts to achieve law reform in wildlife and environmental matters.