opinionBy Paula Kahumbu
Environmentalist PAULA KAHUMBU narrates her experiences when she attended the hearing of two ivory cases in Makadara court, Nairobi, on April 19
I'm 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 7 with 488 pieces of ivory. I arrived at 9am for the 10am case and the small clean white painted room that serves as a court is fully packed.
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 diva-like Vietnamese translator. I'm 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 Nicole's number was sent to me. She may be the only Vietnamese speaker in Nairobi! I tweet my gratitude to all who helped and promise that this criminal is going to jail.
Everything seems to be going our way lately. The government's 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 1. They said: "The council acknowledged that elephants and rhinos are Kenya's 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 Kenya's indigenous resources wherein the tourism sector is a major contributor to the country's 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 April 2 asking 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. It's our moment. This is the first of two ivory cases to be heard today. I can't help but feel excited.
It is 11am. 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 can't wait to see how long our Vietnamese friend will be jailed for.
His case is next. Didi explains the history. On April 7, he arrived at JKIA from Benin and was in transit to Bangkok 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 two 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 33.6kg of ivory and KWS assessed it to be worth Sh5.7 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 one foot long and five inches square. I can see a picture on the boxes of colourful 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 magistrate's 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 travellers, some countries in the region, for example, 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 Truong's lawyer. How did he come to be this man's 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 to 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 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 co-operating 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 traveller 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 recognise 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 was purchased in Kenya, implying that if it's not Kenyan elephants that died, it's not really our problem. Didi reminded her that the Kenyan 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 Kenya's responsibilities to comply with those regulations were as alien to this court as the man's undecipherable language.
The magistrate sought extra time to research the law and reconvened at 3pm. 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 Sh40,000! The ivory he was trafficking was worth Sh5.7 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 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 euphoria. The outcome of this case feels like a slap in the face. It is just another painful reminder that Kenya 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, it's no surprise.
At the recently concluded Cites conference, Kenya's rhetoric did not match her actions and the convention listed Kenya amongst eight countries found to be complicit in the ivory trade. Other countries include Uganda, Tanzania, Vietnam, Malaysia, Philippines, Thailand and China.
The 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 organisation that is campaigning to save Kenya's elephants. She is spearheading conservation efforts to achieve law reform in wildlife and environmental matters.