EAAP Forum Coordinator, TRAFFIC East Africa
Bringing mis-certified timber out of the woodwork: a Malagasy Rosewood court case review
When a shipment of what was declared simply as ‘wood’ was instead identified as precious Malagasy rosewood upon arrival in Kenya, several years of contentious legal battle ensued. Jamal Juma, an experienced lawyer now working for TRAFFIC and Coordinator of the East Africa Association of Prosecutors (EAAP), unpicks the twisted strands of the story to demonstrate why he thinks the ruling was misguided in this case, and what steps should be taken to avoid repeat occurrences that put the survival of precious timber at risk.
Malagasy rosewood logs seized in Mombasa
Despite national and international bans, there are clear indications that the illegal trade in Madagascar's precious timber is still rampant.
The following case illustrates the oversight and shortcomings that enable this illegal trade to persist, putting the survival of Madagascar’s precious rainforests at risk.
In 2014, 34 containers arrived at the port of Mombasa from Madagascar en route to Hong Kong Special Administrative Region (SAR). They were accompanied by a Certificate of Origin issued by the Madagascar Ministry of Forestry and Environment certifying the goods as 7,100 pieces of “wood” – ordinary timber that does not require CITES permits to be issued.
Despite this, Kenya Wildlife Service (KWS) suspected the consignment contained Malagasy rosewood, Dalbergia – a protected species regulated by international trade. KWS seized the consignment of logs and kept them under their custody.
Malagasy rosewoods are precious timber species found in Madagascar. Consumer demand drives the production of high-quality items such as furniture and musical instruments. However, since the 1990s, the species have been subjected to unsustainable exploitation, threatening their survival. Due to this, they are listed on Appendix II of CITES (the global convention which governs the legality of international wildlife trade), meaning they should only be traded with a special permit.
In response to the confiscation, Shihua Industry Ltd applied to the Chief Magistrate Court (CMC) of Mombasa, arguing that the logs were illegally detained and seeking their release.
At the hearing on 29 November 2018, the CMC ordered the release of the goods to the company (Shihua) and the facilitation of their transit to Hong Kong SAR. The Court argued that at the time of seizure in May 2014, Malagasy rosewood species weren’t yet listed under CITES Appendix II, so the seizure and detainment of the goods were illegal. The reasoning given was that the species were only listed under Appendix II on 14 October 2017, following CITES meeting CoP17*. It alluded further that even if the rosewood had been classified under Appendix II, the consignee (Shihua) only needed to show the required permit, as trade in Appendix II species is not completely banned.
Following this ruling, KWS took the matter on appeal to the Environmental and Land Court. However, the decision of the lower court was upheld: KWS were ordered to release the seized logs and issue the CITES certificates and other relevant permits to enable the safe transit of goods to Hong Kong or any country of destination. The court passed a further order preventing any officer, person, agency and/or institution from placing any objections, encumbrances, and restrictions on the shipment. Failure to comply with the court orders would amount to contempt of court and render the Director of KWS subject to civil jail.
So, did the court act justly, or was KWS in fact right to seize the shipment? To determine this, we need to understand what the law was at the time of shipment and seizure.
The status of trade in Malagasy rosewood
Between 2000 and 2010, Madagascar's laws on the harvest and export of its precious timber fluctuated, creating uncertainties in enforcement and contributing to the illegal trade of rosewood.
In 2000, the unsustainable upsurge in rosewood harvesting was acknowledged by law, when Madagascar’s Government specifically banned the export of rosewood. But, after a destructive cyclone hit towards the end of 2003, the ban was temporarily lifted, allowing the harvest and export of the logs that had been felled by the cyclone. This then opened the door to illegal logging, since when issuing permits, it was very difficult to determine whether the timber was felled by the cyclone or illegally logged after the authorisation.
Political instability in Madagascar in 2009 then fuelled the unlawful logging of Dalbergia all the more. Due to increasing demands in Asia, particularly China, tonnes of rosewood were harvested in almost every Malagasy forest, affecting approximately 14,000 ha of forest. During this period, thousands of shipping containers were filled with rosewood and exported overseas.
Concerted efforts were deployed to curb the situation, and new laws brought into effect. In 2010, Madagascar made all trade in rosewood illegal. International legislation came into play in 2013 during CITES CoP16, when the government of Madagascar successfully submitted a proposal to list its populations of Dalbergia species (rosewood and palisander) and Diospyros species (ebony) in CITES Appendix II. Then, three years later at CITES CoP17, the whole genus Dalbergia was added to CITES Appendix II (with the exception of the species already included in Appendix I).
Weighing up the Court's decision
The Court in Kenya made its decision in reference to the provisions of CITES and the existing local laws. While it is true that it was only in 2017 that all Dalbergia species were listed under Appendix II, Malagasy rosewood has been listed on Appendix II since CoP16 in 2013. Affirming this fact, CITES issued a notification in 2022 declaring that the export in question contravened Madagascar's obligations under CITES since, by that time, Madagascar had already established a zero-export quota for Dalbergia species.
Had the shipment reached its destination in 2014, it is expected that Hong Kong’s Customs and CITES Management Authority (MA) would have seized the shipment as it would not be accompanied by any CITES permit: a case of mis-identification and fraud against CITES provisions.
Moreover, not only had rosewood been under CITES listing prior to the shipment leaving Madagascar in 2014, but Malagasy rosewood has been considered strictly banned for trade under national law since 2010.
What can be learnt from this?
Whether the Court ruling resulted from a lack of credible evidence or oversight on the proper listing and banning of the trade in Madagascar, the case raises pertinent issues to be addressed to improve the prosecution and investigation of timber-related crimes. The following recommendations would go a long way in achieving this:
Awareness and training
- Ultimately, a misinterpretation of CITES legislation led to the disputed court ruling. Governments should arrange more opportunities for NGOs such as TRAFFIC and the EAAP to offer training (including in CITES implementation) to prosecutors, investigators, and judges.
- Capacity for investigation, prosecution and adjudication of timber-related crimes in the region is relatively low. The East Africa Association of Prosecutors (EAAP) Secretariat should conduct a knowledge gaps assessment in the region on the prosecutions of CITES-related cases.
- Kenya should strive to fully meet all requirements for implementing CITES legislation, decisions and resolutions (thereby achieving Category 1 implementation status).
- Countries along the supply chain must cooperate to improve the prosecution of transnational crimes. Training on legal cross-border collaboration would prove beneficial, as well as employing mechanisms that facilitate cross-border coordination, such as Trade in Wildlife Information eXchange (TWIX).
- At the very least, information on the rosewood case in Kenya should be shared with the CITES Management Authorities along the supply route.
Knowledge and monitoring
- Sharing information on policy, legislation, and systems and permits used by countries along the supply chain would help in the monitoring, administration and enforcement of timber-related shipments, especially CITES timber species. With funding from Norway’s International Climate and Forest Initiative (NICFI), TRAFFIC is working to make this information readily available to relevant officials such as Forestry Officers, Customs, and CITES Management Authorities.
- The illegal trade in timber is transnational in nature and involves international criminal networks. Continuous monitoring of transnational timber trade and any exploitation of administrative loopholes that is occurring is essential. With funding from Norway’s International Climate and Forest Initiative (NICFI), TRAFFIC is developing innovative tech systems that will both improve the traceability of timber trade, and, through a new Wood ID app, resolve the mis-identification of timber species along the supply chain.
*Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) Conference of the Parties (CoP).