In unprecedented win for rule of law, Director of Public Prosecutions Noordin Haji Friday opened a window for top-level accountability for post-election violence of 2017, including the killing of a six-month-old 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 sink in the coming days, when the suspects- top police leadership- are arrested and charged in court under a novel "superior/command responsibility" principle of international law.
Under the principle, superiors can be held responsible for actions committed by their juniors if it is established to deter their unlawful behaviour which leads to the commission of international crimes. Under the Rome State which Kenya is party to, the principle is covered by Article 28.
"A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces," it says.
Haji said investigations had established elements of a systematic and organised violence inflicted on the civilian population of Nyalenda, Nyamasaria and Obunga, all in Kisumu, over the post-election period. He said the attacks were coordinated, planned, and not random. The operation also had heads of command in charge of its implementation, he added.
Operation order
"The police officers acted under the operation order, 'operation post-election mipango' under which they committed atrocities. The operation had a well-organised command structure with sector commanders and was executed according to a consistent pattern involving similar victims and similar modus operandi," Haji said.
His decision comes three years after a judicial inquiry recommended the prosecution of five police commanders found culpable for the death of Baby Pendo during a security operation to crush protests. The inquiry had also declared that some 46 junior officers - 30 GSU officers and 16 regular police officers as persons of interest and recommended they be investigated over the murder. Following the decision by the court, activists and the family of the slain child have been pushing for a conclusion into the matter and have been holding onto hope that the culprits will be brought to book.
On Friday, October 28, the DPP explained the delays in recommending prosecution saying he was dissatisfied with the original Directorate of Criminal Prosecutions (DCI) hence the inquest route. It is after the inquest that the DPP established the systematic nature of the attacks, and ordered further investigations by Independent Police Oversight Authority. IPOA worked with Kenya National Commission on Human Rights, civil society organizations, witnesses and the victims to complete the missing links.
Excessive use of force
"The DPP requested and was supported by the United Nations Office of the High Commissioner for Human Rights to advance accountability for serious human rights violations," he said.
According to Haji, there is evidence that police officers subjected residents to untold suffering as they engaged in excessive use of force and sexual violence. Haji's office also believes that they have enough evidence to build a case against the police officers implicated in the murder of Baby Pendo.
In February 2019, Kisumu Resident Magistrate Beryl Omollo, who presided over an inquest, found five senior officers who commanded the police deployed to crush protests culpable for the infant's death and asked the Director of Public Prosecutions to take action against them.
Baby Pendo died from internal injuries after she was allegedly hit on the head by officers who had broken into the house while in pursuit of residents protesting against the outcome of the presidential election.
In a 38-page ruling, the magistrate noted that officers failed to demonstrate their professionalism and meted out unwarranted violence to protesters. The magistrate stated that the commanders had a responsibility to know whether their officers were involved in illegal operations.
"That day, a fine flower was plucked out of the safety of their house and violently nipped in the bud by one of the baton-wielding police officers," said Ms Omollo.
In the course of the proceedings, witnesses who testified, including Pendo's parents, faulted the officers over the death. Lencer Achieng, Pendo's mother, narrated to the court how she begged the officers to leave them alone after a teargas canister had forced the family of four to come out of their single room. She said the officers 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 officers for her death. She noted that there was enough evidence to prove that Pendo's death was a premeditated murder because of the actions of the police.
The weapons that were used, including a teargas 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 implicated in Pendo's death were reportedly deployed at Kachok, a few metres from where the baby was assaulted.
Evidence presented by the prosecution indicated that two of the GSU officers failed to 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.
