The High Court will on January 30, rule whether to defer plea for 11 senior police officers who are alleged to have killed baby Samantha Pendo and 39 protesters in Kisumu during the 2007 post-election violence.
This is after Director of Public Prosecution Renson Ingonga sought to have the plea-taking deferred to allow him search for one of the suspects who went missing.
Appearing before Justice Margaret Muigai, the DPP through state counsel Mark Barasa asked the court to postpone the plea for another 45 days to enable the Inspector of General of police and the National Police Service to trace and arrest former police Senior Superintendent Mohammed Baa who fled since 2022, when the case was filed.
Barasa also sought the prosecution to be given more time to review the investigations and amend the charges before the officers can answer to the charges.
The DPP claims that the charges facing the senior police officers revolve around international crimes including numerous human rights violations, torture and extrajudicial killings and the case can not proceeds in the absence of Baa.
“As the ODPP, we are now focusing on Article 61 of the Rome Statute, which requires that all suspects be brought before the pretrial chamber.”
“This is not a typical case under the Penal Code, as the crimes involved are categorized as atrocity crimes, which are considered the most serious because they impact humanity.
The suspects are being sought to be held accountable, particularly under the doctrine of command responsibility,” said Barasa.
“Given that Baa has not yet been produced, the DPP, who holds a role equivalent to the prosecutor in the Hague, seeks an adjournment of charges.
We will proceed with IPOA to review the charges and amend the information in the charge sheet.”
The victims have however vehemently opposed the application to defer the plea taking to a later date.
Through their lawyer Willis Otieno, they told the court that previous rulings directing plea taking were binding and have not been appealed.
“The plea must be taken because it has rained and shined,” argued Otieno. “The absence of one suspect cannot halt the process,” the lawyer said.
He accused the DPP of using delay tactics, saying that there had been four months to amend the charge sheet
He claimed the victims have been waiting for over seven years for their day in court.
“The victims have waited to just make a cameo appearance in court on plea only, the distraught families are asking where is justice for us,” said Otieno.
The Law Society of Kenya (LSK) in opposing the prosecution’s application to have the case adjourned for three more months said that it is unfair to continue delaying the matter further.
“Our instructions from the LSK President is, if the court is minded to allow the application, it will be important that the DPP Ingonga appear in court and explain why the matter has not taken off for the fourth time,” Vice President of LSK Mwaura Kabata told the court.
A legal officer at the National Police Service on his end told the court that efforts to trace Baa have been futile
According to NPS Legal Officer Pete Kanai, investigators have been unable to trace the former officer despite multiple efforts.
A review of his service file, he said revealed that he originally hailed from Adaga village in Wajir County, North Eastern Kenya.
Kanai however told the court that, local leaders and residents informed authorities that Baa never returned to Adaga after his retirement, and no known relatives remain in the area.
Further checks with the National Commission of Retired Officers confirmed that he never registered as a member.
With the village located near the border, He said, police suspect that the former officer may have crossed into a neighboring country.
“The National Police Service has the legal authority to execute arrest warrants under Section 34 of the Criminal Procedure Code.
We urge any citizen with information on his whereabouts to report to the nearest police station or any police officer,” Kanai stated.
The senior police officers are facing 47 counts of crimes against humanity including murder, torture and rape.
The offences were allegedly committed during the 2017 post-election violence in Kisumu.
Baby Pendo who died after a blunt object allegedly hit her as anti-riot police officers pursued protesters in their compound, has become the face of the victims.
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