By Paula Kahumbu in Nairobi
On Friday, April 19, I stood in Makadara Court in downtown Nairobi waiting to hear the case of a Vietnamese man arrested in transit at Jomo Kenyatta International Airport on April 7 for smuggling 488 pieces of ivory.
When I’d arrived, at 9:00 a.m., for the first of two ivory cases, scheduled for ten o’clock, court room six was already filled to capacity. Throngs of people were lined up outside, so I squeezed through and found a place to stand.
Nicholle Myles was already there, so tall and distinctive with her Oriental-African features. I felt proud for having enlisted her help.
An official with the Kenya Wildlife Service (KWS) had called me days earlier in desperation: Unless an interpreter could be found, the court would have to throw out the case against a Vietnamese ivory smuggler.
Twitter had come to the rescue. My appeal went viral, and a phone number was sent to me. I called, and Nicholle said she could do it. Nicholle Myles may be the only Vietnamese speaker in all of Nairobi!
I Tweeted my gratitude to all who had helped and promised that this criminal would be going to jail.
New Resolve to Stop Ivory Criminals
Everything seemed to have been going our way lately. On February 1, the government’s highest advisory body, the National Social and Economic Council, had come up with clear resolutions to end the crisis facing elephants and rhinos by committing to use “the full force of the law.”
“Elephants and rhinos,” the council acknowledged, “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,” the council asserted, “should be viewed…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.”
In the same vein, 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 on April 16, the president went further: “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 people reacted. On April 2, I sent a letter, co-signed by more than 60 conservationists and tourism operators, to the Chief Justice, 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 served.
These two fresh cases against a Chinese and a Vietnamese ivory trafficker were a perfect test for the nation’s newly articulated resolve—that from now on in Kenya, wildlife really would matter.
The KWS prosecutor, Didi Wamukoya, was sitting in the dock. Beside her was Ondicho Shem Nyakenyanya, the lawyer for the accused Vietnamese, Nguyen Viet Truong Phong.
Mrs. Nyongesa, the magistrate—petite and smartly dressed—arrived late. We all rose as she apologized for the delay and got straight to work.
The First Ivory Case
After wading through a long docket of other offenses—assaults, family problems, business frauds, robberies, and other crimes—Magistrate Nyongesa opened a bright yellow file, the first of the two ivory cases. I couldn’t help but feel excited.
It was now 11 a.m. A name was called, Zhou Jinkui. A police officer opened the door to the holding cells, and a Chinese man appeared as the acrid smell of urine wafted into the already stuffy court room.
Through his interpreter, Zhou pleaded guilty to charges of having ivory bracelets, a string of 13 ivory beads, and an ivory pendant.
Wamukoya asked that the items be taken to the National Museums of Kenya to confirm that they were ivory, unless Zhou didn’t dispute the fact.
Zhou said he didn’t know, and the magistrate instructed that the pieces be sent for testing. She adjourned the case for one week, and Zhou was taken back into one of the stinking holding cells.
I was pleased with how this was going. This magistrate seemed to be on our side.
The Vietnamese smuggler, Nguyen Viet Truong Phong, was next. I couldn’t wait to see how long he’d be jailed for.
On April 7, he had arrived in Nairobi from Benin in transit to Bankok on a Kenya Airways (KQ) flight. Airport security personnel had stopped him at gate 12 after his luggage was screened and found to contain suspicious items. The officers opened the baggage and noted that he was carrying 488 worked ivory bangles.
The airport police arrested him and called KWS officers. Sniffer dogs were brought in and confirmed that the pieces were indeed ivory.
To show the court the evidence, a young police officer pulled two hard-backed suitcases—one black, one blood red—from the wall in front of me. He lay them down, unzipped them, and flipped open the lids.
Wamukoya described the haul: “The ivory weighed 33.6 kilograms [74 pounds] and KWS assessed it to be worth 5.7 million Kenyan Shillings [$68,000].”
A gasp erupted from the room as everyone craned their necks to see inside the suitcases. Each suitcase perhaps 20 boxes about a foot long and five inches wide and deep. On their tops were pictures of a red, yellow, and orange vase with blue flowers, with the words “Flower Vase” inscribed in curly script.
The officer pulled out one of the “vases”—red, yellow, and orange painted ivory bangles stacked to form a tubular vase-like object. An ingenious way to conceal illegal ivory.
Nicholle Myles, the interpreter, stood up and walked over to the accused, who was standing in the dock. He had a vacant look—confusion, perhaps?
Handed a piece of paper by the magistrate’s assistant, Myles read out the charges. The man nodded at each, muttering incomprehensibly.
Magistrate Nyongesa asked what he was saying. “He says he bought the ivory but did not sell the items in the Nairobi airport,” Myles replied. “He bought them in a shop in Benin and was taking them to Vietnam.” He hadn’t known that any kind of paper work was required, Myles added.
Like many other ivory smugglers caught in Kenya before him, Truong simply accepted the charges. Since he had no previous convictions, he was treated as a first offender.
KWS asked for a stiff penalty because of the quantity of ivory involved. Truong’s lawyer, Ondicho Nyakenyanya, responded by appealing for leniency on the grounds that the accused was a tourist who was just buying trinkets with spare cash.
“He did not know it was illegal in Kenya,” Nyakenyanya argued, adding that the situation was confusing for travelers because some countries in the region, such as Tanzania and South Africa, allow trade in wildlife objects, even though elephant poaching is an offense in countries across Africa.
“The origin of the trophies are [sic] not known,” Nyakenyanya said. “The elephants might have died of natural causes, perhaps of old age. Some may have been domesticated and died of natural causes.”
Nyakenyanya argued that the Wildlife Act of 1989 does not anticipate or account for the origin of the ivory confiscated in transit.
“The accused was on KQ,” Nyakenyanya said. “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.”
By now the accused was beginning to look like the innocent victim of poor policies and lack of information in Africa.
Nyakenyanya also noted that Truong was from a very different country, with a different language, which made it difficult for him to understand that he was carrying illegal ivory.
Things weren’t going well for the prosecution.
Magistrate Nyongesa gave no indication that she recognized the seriousness of the crime and its impact on elephants. She wondered if the ivory had been purchased in Benin rather than Kenya, giving the impression that she thought it a lesser crime if the ivory was bought elsewhere.
Didi Wamukoya noted that neither the Convention on International Trade in Endangered Species of Wild Flora and Fauna (CITES) nor Kenyan law takes into account the origin of the ivory.
Clearly, the CITES regulations, and Kenya’s responsibilities, as a signatory, to comply with them were as alien to this court as the Vietnamese man’s incomprehensible speech.
Magistrate Nyongesa sought extra time to research the law, reconvening the court at 3:00 p.m.
After we’d gathered again in room six, the magistrate wasted no time in convicting Truong, because he’d admitted to the charges. She fined him a total of 40,000 Kenyan Shillings (less than $500).
The ivory he was trafficking was worth more than a hundred times that.
Magistrate Nyongesa’s ruling flew in the face of recent pronouncements at the highest levels of government—the promise to use the full force of the law to stop poaching and illegal dealing in wildlife products.
Disbelief at the Decision
I drove home in a state of shock, devastated.
No matter how many poachers, dealers, and traffickers we arrest, it makes no difference. The courts let them off so lightly.
The outcome of this case feels like a slap in the face—another painful reminder that Kenya has lost credibility as a global leader in conservation. The words of our president are completely at odds with the actions of the courts.
How did we fall down so far? Traditionally, Kenya has been on the front line in combating elephant poaching in Africa and a leading voice for elephant conservation through CITES, the Convention on Biodiversity, the Convention on Migratory species, among others.
We have branded ourselves “Magical Kenya”—the country that has hosted so many documentaries celebrating our wildlife, especially elephants, which are a major tourism attraction. Tourism contributes 12 percent of the nation’s GDP.
Our wildlife enforcement agency, the Kenya Wildlife Service, is recognized as one of the most effective in the world.
The 1989 ivory burning by Kenya, which led to the successful international ivory trade ban, is indisputably the most powerful conservation symbol the world has ever seen.
Yet the killing of elephants has now reached a 20-year high. Ivory smuggling through Kenya has reached an all-time high, and Kenya is now the second-largest African transit country for illegal ivory, after Tanzania.
Tanzania, Kenya, and Uganda today account for nearly 70 percent of the illegal ivory flowing out of Africa.
At the CITES conference last month, Kenya and seven other principal nations were identified as complicit in the ivory trade: Tanzania, Uganda, Vietnam, Malaysia, Philippines, Thailand, and China.
The ivory crisis we’re facing is unparalleled. We have fewer elephants than ever before. There is unprecedented and rapidly escalating international demand for ivory, and highly sophisticated criminal networks are feeding that appetite.
It’s going to take more than speeches by His Excellency President Uhuru Kenyatta to turn this situation around.
Immediate Measures Needed
I believe that once again Kenya stands at the crossroads of turning things around for elephants. This can be achieved if we rediscover our courage and take some bold steps:
— Recognize that poaching and ivory trafficking are serious crimes and immediately elevate penalties for wildlife crimes.
— Put a specialized team of prosecutors in place to ensure that ivory traffickers and other wildlife criminals are dealt with as aggressively as the law allows.
–Empower a law enforcement task force to address poaching and ivory trafficking. The task force should include the KWS, national and local police, national intelligence and customs officials, and international agencies and organizations such as Interpol.
–Hire more rangers to patrol parks and reserves.
–Routinely use ivory sniffer dogs and scanners in transit areas of airports and seaports.
–Establish a wildlife crime hotline.
–Create an ivory crisis outreach campaign to educate a broad range of stakeholders including African customs officials, transporters, the judiciary, travelers through air and seaports, targeted Asian communities in Kenya, and the public at large.
Unless demand for ivory is confronted, the cost of protecting elephants in Africa will continue to rise.
This is why we call upon President Kenyatta to take the lead in international diplomatic discussions with the premiers of key ivory-demand countries: China, Thailand, Vietnam, and the Philippines.
Paula Kahumbu is the Executive Director of WildlifeDirect, a conservation organization that is campaigning to save Kenya’s elephants. She is spearheading conservation efforts to achieve law reform in wildlife and environmental matters in Kenya. Kahumbu is also an Emerging Explorer of the National Geographic Society.