Poaching case victory highlights prosecution challenges

Three judges of Tanzania’s highest court have confirmed conviction and sentence of a Chinese national, Song Lei, after 11 rhino horn were found in a ‘secret chamber’ of his Toyota Hilux. However, the court upheld the acquittal of three other men who were with him at the time. This follows the widely welcomed arrest, trial and initial conviction of all four as well as the tough sentences imposed on them in 2016. Among those most elated by the initial conviction were members of the Lusaka Agreement Task Force (LATF). That task force, from seven countries in the region, had worked with Interpol to bring the four men to trial. Since then, however, two appeals have reduced the success of the LATF operation in relation to the four accused, underlining just how difficult it is to secure convictions in such cases.

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The arrest, trial, conviction and tough sentencing of four Chinese men for smuggling 11 rhino horns from Malawi into Tanzania was met with great rejoicing by the Lusaka Agreement Task Force (LATF) and many other environmental agencies.

In a congratulatory statement, they explained how the LATF had worked with Interpol and other authorities to secure the convictions. In the process, they had found the accused were part of a ‘large criminal network of Chinese nationals operating in the region, linked to the trafficking of elephant ivory and rhino horn’.

But that was in January 2016. Since then, frustration has long replaced celebration.

In December 2015, just a month before their statement about LATF’s success, a local Tanzanian magistrate had convicted all four accused, ordered them to pay about US$5.8m and sent them to jail for 20 years each.

Then the four accused turned to the high court, where the matter was registered as an economic crimes appeal. The court acquitted all four on the first count. This related to being part of organized crime, in having ‘furthered the objectives of a criminal racket’ by importing the horns into Tanzania without a permit.

On the remaining two counts, unlawful dealing and unlawful possession, the court acquitted three of the four men.

In other words, all that was left of those exciting rhino horn convictions were two counts against just one of the group, Song Lei.

In mid-August Lei took his case to Tanzania’s highest court where it was heard by three court of appeal judges - Judge Stella Mugasha, who wrote the judgment, along with Judges Gerald Ndika and Barke Sehel. They have now given their decision, confirming both Lei’s conviction and the acquittal of the other three.

The arrest of the four, retold by the appeal court, could be movie material. Almost exactly four years ago, one of the group, since acquitted, was driving from Tanzania to Malawi. At the border post a customs official found that the vehicle belonged to Lei and asked for proof that the owner gave permission for it to be taken out of the country. The driver contacted Lei who emailed the required proof. The customs official then inspected the vehicle and found it had a welded space that looked like a fuel tank but had no fuel in it. He made a mental note of what he had found. When the vehicle returned, more than a month later, driven this time by Song Lei himself and with three other passengers, Lei had to produce documentation which was handed to the same customs official.

The official realised it was the same vehicle as the one in which he found a ‘secret chamber’. He told Lei that he would need to inspect the vehicle at which Lei became visibly concerned. Another official was called to conduct the search and the three passengers left in haste.

They were quickly brought back and in the presence of all four, the secret chamber was searched and the rhino horn was found. The four signed a seizure certificate listing the horns and their mobile phones among other things. When the police tried to find the messages sent to and from the phones, they muddled them up and were unable to say which phone (and therefore which messages) belonged to which accused. This was ‘a shortfall’ in the way the seizure and its documentation had been handled, the appeal court said.

During the appeal, counsel for Lei said that although he was driving the vehicle and was the owner, there was no proof that he had been the one who packed the rhino horn into the vehicle. His conviction was based purely on suspicion.

In their decision, the appellate judges said that Song Lei was in charge and control of his motor vehicle. Even if, as counsel argued, someone else had packed the horns into the secret chamber, this must have been with the owner’s knowledge and approval. This meant that Lei had correctly been found in possession of the 11 horns.

The court also found that there had been no interruption of the chain of custody in relation to the rhino horn. It was ‘proved beyond a speck of doubt’ that Song Lei was found in possession of the rhino horn and his appeal should therefore be dismissed.

As to the other three, on their previous appeal the High Court had found that, because they were not owners of the vehicle, some other proof was needed to show they knew about the rhino horn. That court had found that although their behaviour was suspect, ‘suspicion, however grave, is not a basis for a conviction’. The Court of Appeal judges agreed with that outcome, and held that charges against the three had not been proved.

The history of the prosecution of these four men illustrates how very difficult it is to make charges stick when it comes to poaching. Investigators as well as prosecutors have to collaborate closely with their counterparts in other countries, and be at the top of their game.

It was to achieve exactly that aim that the LATF was formed. This task force, which expressed its great satisfaction at the initial success of the joint operation in the case of the rhino horn smuggling, is the fruit of a co-operative wildlife law enforcement agreement, begun in 1999, with headquarters in Nairobi. Its seven members are the Republic of Congo, Kenya, Liberia, Tanzania, Uganda, Zamibia and Lesotho while South Africa, Ethiopia and Eswatini are signatories.

* 'A matter of justice', Legalbrief, 24 September 2019