The Office of Director of Public Prosecutions (ODPP) approved charges against four police officers in the high-profile Baby Pendo murder case in a remarkable move.
The ODPP however dropped charges of six other police officers citing lack of evidence following a comprehensive review of the case files.
Prosecutors told the court that the accused failed to prevent the crimes committed by their fellow officers.
The case marks the first time Kenyan police are prosecuted under the International Crimes Act, which targets those responsible for grave human rights violations and war crimes.
The case that has drawn widespread attention from the public and human rights organizations is seen as a significant step toward justice and police accountability.
The ODPP, led by prosecution counsel Vincent Monda, told the court that after reviewing the case files, it has approved charges against only four individuals, with charges against the six remaining suspects being dropped.
The case is before High Court Judge Margaret Mbugua.
Among those facing prosecution is John Chengo Masha, who was charged with serious offenses, including murder and crimes against humanity under the International Crimes Act.
He also faces a separate charge of rape. Prosecutors allege that Masha failed to take reasonable measures to prevent officers under his command from entering victims’ homes, where they reportedly beat residents with rungus and raped at least six women.
Lina Kogei was charged with murder in connection with events that took place on August 12, 2017.
It is further alleged that officers involved in the operation extorted money from the victims.
This marks the first time that officers have been charged under the International Crimes Act.
The charges were instituted under the International Crimes Act, 2008 considering the role played by each of the suspects on the basis of the international law principle of superior responsibility.
The National Police Service informed the court that Mohammed Baa, who is linked to the brutal killing of Baby Samantha Pendo, remains at large, years after the tragic incident that sparked nationwide outrage.
Mohammed, a retired police officer, has never been arrested since the case began.
Police efforts to locate Baa at his rural home in Wajir County have so far been unsuccessful.
In July 2024, a landmark ruling by High Court Judge Kanyi Kimondo ordered 11 police officers to take a plea over the death of six-month-old Baby Samantha Pendo, who lost her life during police operations in Kisumu following the contested 2017 General Elections.
During that time, there were widespread protests, particularly in opposition strongholds such as Nyalenda and Kondele in Kisumu.
These protests prompted heavy police operations, which reportedly led to numerous human rights violations, including torture and extrajudicial killings.
The ODPP became involved after an inquest into Pendo’s death, during which the trial magistrate highlighted the role of senior officers in the policing of the protests.
The magistrate asserted that the commanders in charge of operations at the Kilo Junction in Nyalenda Estate on the night of August 11, 2017 should be held liable for the infant’s death.
In response to these findings, the ODPP invoked the ICA, a law that provides for the punishment of certain international crimes, including genocide, crimes against humanity, and war crimes.
These crimes are characterised by widespread or systemic criminal acts committed by or on behalf of a state, which grossly violate human rights.
The use of the ICA, in this case, represents a shift from the usual focus on individual responsibility to the broader concept of superior or command responsibility.
The doctrine of command responsibility holds that superiors can be held criminally liable for crimes committed by their subordinates if they fail to exercise proper control over their forces.
This principle is based on the rationale that superiors have the power to control the actions of those under their command and, therefore, bear responsibility for preventing the commission of crimes.
The ruling by Kimondo underscores the potential for the ICA to serve as a powerful tool for accountability in Kenya.
Historically, the country has struggled to hold police accountable in situations involving widespread protests, political upheaval, or large-scale deployments of officers, such as during the COVID-19 curfew.
This lack of accountability has fostered a culture in which police officers feel emboldened to use excessive force against protesters or bystanders, like Baby Pendo, believing they will be shielded by their superiors.
Many observers see the application of the ICA as a critical step towards breaking this cycle of impunity by establishing the criminal liability of police superiors.
By holding those in command responsible for the actions of their subordinates, the law could serve as a potent deterrent, encouraging superiors to exercise greater oversight and control to prevent the commission of crimes.
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