The release of four abductees made headlines, but Justice Ngaah Jairus’s ruling on former Police IG Japhet Koome’s culpability this Wednesday and next week’s “Baby Pendo” hearing could be pivotal for those seeking greater police accountability.
Three weeks of sustained public pressure and public interest litigation, finally paid off. As public protests kicked off on Monday, news filtered in that Billy Mwangi, Peter Muteti, Bernard Kavuli, Gideon Kibet and Rony Kiplang’at had been found disoriented and alone, several kilometres from their homes or where they were kidnapped.
Their release must be celebrated. It diverted the public relations disaster and increased conflicts among the political class and between the government and the public over the abductions. Attention has now shifted to who must be held accountable for the abuse of state resources with media headlines echoing most Kenyan’s lips, “Who is responsible for these abductions?”
While reassuring citizens of his government’s commitment to ending abductions a week ago, President William Ruto placed the responsibility squarely with law enforcement and security agencies. This week, the issue of command responsibility for human rights violations by police officers took another turn.
After weighing the evidence before the High Court, Justice Jairus ruled that former Inspector General of Police Japhet Koome erred in his directives to police officers under his command to violently disrupt the Kenya Medical Practitioners, Pharmacists and Dentists Union members’ peaceful march in April 2024.
He further ruled that Koome, who resigned in July, could be held personally criminally liable for the actions or inactions of police officers reporting to him. The April state violence left KMPDU Secretary General Davji Atelah seriously injured while leading industrial protests by doctors at that time. This ruling now opens the door for any individual to sue the Inspector General for any form of brutality resulting from his orders.
The ruling comes at a time when the National Police Service have several cases of abductions or excessive use of force against protesters. As significant as the cases from the violent policing of the 2023 and 2024 protests, is the “Baby Pendo” case that resumes next week.
The case of the Republic-vs-Titus Yoma and eleven police commanders seeks justice for 60 people whose rights were violated in their homes in a night police operation in the informal settlements of Kisumu. Six-month-old baby Samantha Pendo was among those who died that fateful night. The ODPP-led case seeks to charge senior police officers with 47 counts of command responsibility for offences that range from sexual assault, torture, murder and crimes against humanity committed under the International Crimes Act.
The case has recently been delayed twice after the ODPP applied to defer suspect plea-taking in October and November citing the absence of one or two of the accused. Their action has left victims, families, survivors and witnesses worried that early ODPP energies to seek justice are waning and the cases may not proceed.
Now that the responsibility of police commanders are under close public scrutiny, it is important that there be no further delays in this case. The integrity of our criminal justice system depends on public confidence that police investigations are independent and thorough, our prosecutors are effective, and our courts, are just.
All 60 survivors, victims’ families, witnesses and 12 suspects deserve their day in court. Furthermore, pursuing command responsibility in Kenya’s courts tests the independence of state investigators, prosecutors and courts.
It removes the necessity of Kenyans appealing to regional and international courts for justice. It also provides the National Police Service with the opportunity to correct and introduce human rights-based policing reforms Kenya so desperately needs.
Being the first time such charges have been mounted by the Office of the Director of Public Prosecutions in Kenya’s history, the case is a landmark one and could raise a higher standard in police professionalism. Kenyans will be watching closely on Wednesday, January 15th.
