In an unprecedented victory for the rule of law, Director of Public Prosecutions Noordin Haji on Friday opened a window for high-level accountability for 2017 post-election violence, including the killing of a six-month-old child. Baby Samantha Pendo.
Haji sanctioned the arrest and prosecution of unnamed “senior national police officers” for crimes against humanity involving murder, rape and torture under the International Crimes Act No. 16 of 2008.
The full implication of Haji’s announcement will unravel in the coming days, when the suspects – senior police officials – will be arrested and charged in court under a new principle of “command responsibility” by the international law.
Under this principle, superiors can be held responsible for acts committed by their subordinates if it is established that they have the effect of deterring their unlawful behavior leading to the commission of international crimes. Under the State of Rome to which Kenya is a party, the principle is covered by Article 28.
“A military commander or a person effectively acting as a military commander is criminally responsible for crimes within the jurisdiction of the Court committed by forces under his effective command and control, or under his effective authority and control, as case, as a result of its inability to exercise proper control over those forces,” he said.
Haji said investigations had established elements of systematic and organized violence inflicted on the civilian population of Nyalenda, Nyamasaria and Obunga, all in Kisumu, during the post-election period. He said the attacks were coordinated, planned and not random. The operation also had commanders in charge of its implementation, he added.
“The police acted under the order of the ‘post-election operation mipango’ operation under which they committed atrocities. The operation had a well-organized command structure with sector commanders and was executed according to a consistent pattern involving similar casualties and a similar modus operandi,” Haji said.
His decision comes three years after a judicial inquiry recommended the prosecution of five police commanders found guilty of the death of Baby Pendo during a security operation aimed at crushing protests. The inquest had also declared some 46 junior officers – 30 GSU officers and 16 regular police officers to be persons of interest and recommended that they be investigated in the murder. Following the court ruling, activists and the family of the slain child have been pushing for a conclusion in the case and remain hopeful that the culprits will be brought to justice.
On Friday, October 28, the DPP explained the delays in recommending prosecution by saying it was unhappy with the original Directorate of Criminal Prosecutions (DCI), hence the investigative track. It was after the investigation that the DPP established the systematic nature of the attacks and ordered further investigations by the Independent Police Oversight Authority. IPOA worked with the Kenya National Human Rights Commission, civil society organizations, witnesses and victims to fill in the missing links.
excessive use of force
“The DPP has requested and has been supported by the Office of the United Nations High Commissioner for Human Rights to advance accountability for serious human rights violations,” he said.
According to Haji, there is evidence that the police have subjected residents to untold suffering through excessive use of force and sexual violence. Haji’s office also believes they have enough evidence to build a case against the officers involved in Baby Pendo’s murder.
In February 2019, Kisumu Resident Magistrate Beryl Omollo, who presided over an investigation, found five senior officers commanding police deployed to crush protests guilty of the child’s death and asked the Director of Public Prosecutions to take action against them.
Baby Pendo died of internal injuries after she was allegedly hit in the head by officers who broke into the house while pursuing residents protesting the presidential election result.
In a 38-page ruling, the magistrate noted that officers failed to demonstrate professionalism and inflicted unwarranted violence on protesters. The magistrate said commanders had a responsibility to find out if their officers were involved in illegal operations.
“That day, a beautiful flower was snatched from the safety of their home and violently nipped in the bud by one of the baton-wielding police officers,” Ms Omollo said.
During the proceedings, witnesses who testified, including Pendo’s parents, blamed the officers for the death. Lencer Achieng, Pendo’s mother, told the court how she begged officers to leave them alone after a tear gas canister forced the family of four out of their single room. She said the police beat her and her husband with batons and one of them hit the baby.
And in her ruling, the magistrate said the baby did not die of natural causes and blamed the police for her death. She noted that there was enough evidence to prove that Pendo’s death was a premeditated murder due to police actions.
The weapons that were used, including a tear gas canister and batons recovered from the scene, the court heard, were weapons that only trained officers had access to.
The 30 General Service Unit officers involved in Pendo’s death were reportedly deployed to Kachok, a few meters from where the baby was assaulted.
Evidence presented by the prosecution indicates that two of the GSU officers did not return their batons to the stores. Following the new orders, their bosses will now be prosecuted for their crimes, a first in the history of criminal prosecutions in Kenya.