Baby Pendo's pending trial could reshape police accountability in Kenya

In July 2024, a landmark ruling by High Court Judge Kanyi Kimondo ordered 11 Senior 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.

This ruling represents the first time that the ICA has been applied in Kenya, setting a potential precedent for future cases involving serious human rights violations.

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.

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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.

Additionally, the ICA may address the accountability challenges faced by oversight bodies like the Independent Policing Oversight Authority (IPOA) and the ODPP during the recent “Gen Z” protests in holding individual officers accountable for violations. These challenges include tactics used by police to obscure their identities during operations, such as covering their faces, failing to wear uniforms, and using unmarked vehicles, making it difficult to identify perpetrators for prosecution.

Notably, this week, the High Court ordered the police to cease using these obscuring tactics in the context of policing protests. This order, combined with the potential application of the ICA, signals a move towards greater accountability and transparency in law enforcement, potentially reshaping the landscape of policing in Kenya. As the 11 Senior Police Officers prepare to take their plea, the country watches closely, aware that the outcome of this case could have far-reaching implications for the future of justice and human rights in Kenya.