alexa Feisal's acquittal points to elusive victory against trafficking - Daily Nation

Feisal's acquittal points to elusive victory against trafficking

Saturday September 8 2018

 ivory trafficking

Feisal Mohamed Ali arraigned in Mombasa on August 3, 2018. He was acquitted of ivory trafficking charges. PHOTO | FILE | NATION MEDIA GROUP 

MAUREEN KAKAH
By MAUREEN KAKAH
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Two years ago, conservationists were happy that justice had been done after the sentencing of Kenya’s first high-profile wildlife trafficking suspect to a 20-year jail term.

But come August 3, that conviction and sentence was quashed, a move that saw Mombasa businessman Feisal Ali Mohammed walk away from jail a free man, with a cleared name.

He had been remanded for two years since his arrest and during his trial.

“The sentence that was imposed by the trial court was unconstitutional and therefore the same is set aside,” High Court judge Dorah Chepkwony ruled.

She added: “There was no evidence of any ornaments having been recovered from the scene or the manufacture of any such thing found in progress at the alleged scene of crime.”

Mr Mohammed was arrested and charged with the offences of being in possession of wildlife trophies and dealing with them unlawfully.

20-YEAR JAIL SENTENCE

The prosecution allegedly found him with 314 pieces of elephant tusks weighing 2,152.45 kg without a permit at the business premises of Fuji Motors East Africa Limited situated on Tom Mboya Avenue, Tudor Estate, Mombasa, on June 5, 2014.

On July 22, 2016, he was convicted by a magistrate’s court of the offence of being in possession of the trophies of an endangered species and sentenced to 20 years in jail besides paying a fine of Sh20 million.

The Director of Public Prosecutions Noordin Haji stated that the government would appeal against the High Court’s decision at the appellate court.

Mr Haji insisted that evidence presented at the trial was sufficient to secure conviction.

The acquittal of the convict revealed that the war against wildlife trafficking is far from being won.

CAUSE FOR ALARM

And a recent survey dubbed "Court Room Monitoring Report on Analysis of Law Enforcement Response to Wildlife Crime by Wildlife Direct", underpins this fact even as cases of wildlife crimes surge.

The report points out that Kenya remains listed by the Convention on International Trade in Endangered Species (CITES) as a country of primary concern in as far as being a source or transit area in trafficking of elephant ivory, rhino horn and pangolin scales.

The report shows those arrested for possessing and dealing with trophies of the three wildlife species was 237 between 2016 and 2017.

Elephant ivory trafficking led in arrests of traffickers with 223 suspects caught while that of rhino horn and pangolin came second and third at 10 and four, respectively.

Out of the arrests, the Kenya Wildlife Service made 57 percent of them while the rest by the police.

There were 217 arrests made in Kenya alone for wildlife traffickers while Madagascar, Tanzania, Uganda and Sudan only reported a single arrest. China came second after Kenya with 13 arrests.

Nairobi, Taveta, Makueni, Laikipia, Meru, Mombasa, Nairobi, Kajiado and Kwale counties were the areas where most arrests were made locally.

DETECTION CONTROLS

In Nairobi, among those arrested included 12 foreigners who were caught either in the Kenyan capital or while transiting and connecting passengers at the Jomo Kenyatta International Airport (JKIA).

The report points out that increased detection controls at JKIA, which involves X-ray screening with the use of trained sniffer dogs, played a major role in the arrests.

Notably, there were no seizures made at either Malaba, Busia, Namanga or Mandera border stations.

These border points lack the kind of infrastructure like that at JKIA or at the port of Mombasa.

The report also identified a continued reliance on the physical production and presentation of wildlife trophy evidence at court hearings.

There is usually a challenge to preserve such kind of evidence as officers face logistical and security challenges in the chain of custody of the same.

The study recommends the use of electronic evidence in court, which would see certified photographs and videos used instead of the regular production of high value wildlife trophies.

PENDING CASES

Another challenge is lack of capacity to analyse ivory and rhino horn samples on the part of KWS, who have to rely on laboratories belonging to the National Museums of Kenya.

Besides Feisal’s case, there are nine other fugitives who are wanted for offences related to dealing and possession of elephant ivory. Their cases are still pending.

Out of the nine, seven absconded trial after being granted bond while the remaining two have never been arrested. These two are Nicholas Mweri Jefwa and Samuel Bakari Jefwa.

They are suspected to be behind the exportation of 6,400kg of elephant ivory from Kenya to Singapore in 2014.

Despite the fact that an international warrant of arrest against them has been issued, they remain at large.

The report points a finger at the Judiciary for lacking the capacity to verify the authenticity and determine the suitability of security documents used by accused persons to apply and secure bail and bond.

ENDANGERED

This, the survey said, is the loophole which such accused persons use to abscond trial once freed on bail or bond terms because they present fake documents.

During the period under review, the average bail in elephant ivory cases was Sh1.9 million and Sh678,000 for rhino ones.

As for bond, the two posted Sh250,000 and Sh300,000 respectively.

Elephants are considered to be in a steady decline while rhinos face extinction and pangolins are now classified as the world’s most trafficked wildlife species.