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21st Aug 2022

Architect Africa Online

Africa's Leading Architecture Aggregator

Kenya court orders return of $13m in seized rosewood to suspected traffickers

  • In November, a Kenyan court ordered the release of 646 metric tons of Malagasy rosewood (Dalbergia spp.), worth up to $13 million, to a Hong Kong-based company from which it had been seized in 2014 by Kenyan authorities.
  • Lawyers for the Kenya Wildlife Services (KWS), which filed a case against the consignment owners, argued that trade in rosewood was banned under CITES, the international wildlife trade convention; however, the judge in the case disagreed.
  • Juan Carlos Vasquez, who heads the legal affairs unit of CITES, confirmed to Mongabay that Malagasy rosewood was listed in Appendix II of the international convention on June 12, 2013.
  • Since trade in Malagasy rosewood is banned under CITES today, legally moving the wood out of Mombasa will be tricky for the defendants; conservationist Chris Morris says the company is using false documentation to ship the rosewood from Kenya to Taiwan.

In May 2014, the Kenya Wildlife Services (KWS) seized a consignment of wood at the port of Mombasa. Shipping records listed the cargo only as “wood” headed for Hong Kong: in fact, the MV Kota was carrying 646 metric tons of Malagasy rosewood (Dalbergia spp.), worth up to $13 million.

KWS deemed the consignment illegal. A Mombasa court ruled otherwise, and now the rosewood has been handed over to the Hong Kong-based company, Shihua.

Rosewood is among the most heavily trafficked types of timber globally, and its extraction from Madagascar led to widespread illegal logging in some of the world’s most biodiversity-rich and threatened rainforests.

This November, the Land and Environment Court in Mombasa upheld an earlier ruling by a lower court that CITES regulations restricting global trade in Malagasy rosewood were not in effect when KWS seized the timber.

But Juan Carlos Vasquez, who heads the legal affairs unit of CITES, the global authority on the international trade in wild species, confirmed to Mongabay that Malagasy rosewood was listed in Appendix II of the convention on June 12, 2013. Species are placed on this list if unregulated trade threatens their survival. Madagascar’s own laws have prohibited rosewood timber exports since 2010.

Kenya and Madagascar are both parties to CITES, so Malagasy rosewood cannot enter any CITES member country without proper documentation.

But in its ruling, the Mombasa court noted that the consignee submitted permits from the Malagasy government authorizing the export.

The company’s representatives provided a certificate of origin to the court, dated April 1, 2014, signed by officials at the regional office of the environment ministry in Madagascar’s Atsinanana region.

Yet the Management Authority of Madagascar set a zero export quota for rosewood in 2013. The ban has been periodically renewed and is still in force today. Given the weak governance and turbulent political situation in Madagascar at that time, the authenticity of Shihua’s permits is in doubt.

Rosewood logs on the beach at Maroantsetra in Analanjirofo region of Madagascar, from 2005. Image by Rhett A. Butler / Mongabay.

Mongabay could not reach the Hong Kong-based company, which does not have a publicly listed phone number. Its listed address cropped up in the Panama papers leak and is linked to multiple shell corporations.

In a similar case in Singapore, the defendants argued their rosewood export permits were granted during a gap in the renewal of the export ban, The Madagascar government first submitted that the certificate of origin issued in Madagascar was valid, but later the prime minister wrote a letter saying it was false.

Madagascar’s current environment minister did not respond to Mongabay’s questions about the Kenya seizure and what help, if any, the country was offering Kenyan authorities.

Madagascar descended into chaos following a coup d’état in 2009, with rampant illegal logging and trading of rosewood. This stripping of Madagascar’s natural old-growth forests of hardwood prompted CITES to place the Malagasy populations of Dalbergia species in Annex II.

Despite this, the illegal trade has continued, enabled by Madagascar’s inability to control rosewood stocks seized within its borders and check unlawful logging.

China is the biggest market for rosewood, where it’s regarded as a symbol of prosperity, used extensively in furniture making. The U.K.-based Environmental Investigation Agency (EIA) estimates that less than 1% of the profits from the trade remained in Madagascar, shared between timber barons and corrupt officials.

In the documentation supplied by Shihua, the wood left Tamatave or Toamasina in the Atsinanana region on Madagascar’s eastern coast. Another Hong-Kong based entity, HK Minghantang Wood Industry International, is listed as the consignee for the timber exported out of Madagascar to Zanzibar. This entity was dissolved in 2018.

Contraband lumber often reaches Chinese shores through circuitous routes. In this case, it was shipped from Madagascar to Zanzibar, an autonomous region of Tanzania, before arriving in Mombasa, Kenya, one of the busiest ports in Africa.

Rosewood being removed illegally from Marojejy National Park, Madagascar. Image by Marojejy.com (PKA – EM) via Wikimedia Commons (CC BY-SA 3.0).

The fact that the shipment was headed to Hong Kong, a special administrative region of China, is not surprising. An EIA investigation found that after the 2009 Madagascar coup, Hong Kong emerged as a favored port for transshipping illegal rosewood. From the special administrative region, it is funneled to mainland China.

Hong Kong was also the destination for the timber cargo seized in Singapore in 2014. That was one of the biggest rosewood seizures in CITES’s history, estimated to be worth $50 million.

That litigation dragged on for five years before ending in a major disappointment for anti-trafficking proponents. Singapore’s top court acquitted the businessmen who had imported the timber and ordered its release to their Singapore-based company. Madagascar’s ambivalent role complicated the prosecution’s efforts to bring the alleged traffickers to book.

The case underscored the difficulties of enforcing regulations where governments and implementing agencies in multiple countries need to coordinate to bring perpetrators to justice. In Kenya, the protracted legal battle has also exposed a lack of coordination between its own departments.

A lower court ruled in favor of Shihua in 2018, a ruling KWS challenged in the Land and Environment Court, a specialized court dealing with environmental matters at par with the country’s high courts. The appeal was rejected in 2019. In the intervening period, KWS and the Kenya Revenue Authority (KRA) have been wrangling over who actually has custody of the seized timber and hence the responsibility for handing it over.

The KRA, meanwhile, pleaded that the consignee should pay back rent running into thousands of dollars for the stored logs. The judge denied the request, ordering the KRA to comply with its judgment and release the wood.

As with the Singapore case, the defendants who now have control of the rosewood face a quandary. Trade in Malagasy rosewood is banned under CITES, so legally moving the wood out of Mombasa will be tricky.

“Even though the courts have ruled that the seizure seven years ago was illegal, the consignee still has to ship rosewood to wherever it’s going, and presumably, permits are required to do that,” said Chris Morris, a Kenya-based wildlife trafficking expert, who is tracking the case closely. Morris worked in law enforcement in Canada before settling in Kenya, where he focuses primarily on ivory poaching cases at the nonprofit Saving Elephants through Education and Justice (SEEJ).

“It appears they are again trying to misrepresent what is in these containers,” Morris said.

According to documents filed in court, the company wanted to ship the logs from Mombasa to Taiwan in October, which China considers its territory. The paperwork, seen by Mongabay, shows the cargo listed only as “African timber logs.”

However, with Kenyan authorities delaying the release, the timber remains in Kenya.

Gulf Badr Africa, the shipping company hired to move the timber from Kenya to Taiwan, did not respond to questions emailed by Mongabay. KWS and KRA did not respond to calls for comment.

Banner image: Illegally logged rosewood from Masoala and Marojejy in Antalaha, Madagascar, circa 2005. Image by Erik Patel via Wikimedia Commons (CC BY-SA 3.0).

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