UPDATE: Monday, November 14, 2022 – Plea taking deferred to November 21, 2022 after nine officers were presented before the High Court Nairobi
I have approved charging of twelve (12) officers implicated in the violations that were meted to civilians in Nyalenda and other parts of Kisumu culminating into the death of Baby Samantha Pendo. You are therefore directed to immediately proceed to apprehend and arraign the suspects for plea taking – DPP Noordin Haji
Police bosses who served in areas that were marred by electoral violence in 2017, are set to be arrested and arraigned for the death of Baby Pendo in Kisumu County and other serious offences that occurred there, following an investigation by the Independent Policing Oversight Authority.
The twelve (12) police commanders served at the height of the post-election violence and their lieutenants who were in charge of various units and formations were deployed to quell the mayhem.
Besides the killing of Baby Pendo, other offences awaiting them include torture, maiming and sexual crimes against unarmed members of the public.
Some of the officers have since left the National Police Service while others are still serving.
All were deployed in parts of Kisumu County – Kachok, Nyalenda, Nyamasaria, Kondele and Obunga – which IPOA investigations revealed were the epicentres of “brutal, systematic and widespread violence against unarmed civilians.”
Baby Pendo became synonymous with the mayhem and thereafter, the poster child for agitation against police brutality and human rights violations.
DPP Acts on Inquest Ruling
She was six months old at the time of death and succumbed to a serious head injury inflicted with a blunt object.
The quest for justice for the victims of the electoral violence has been long.
In the matter of Baby Pendo and relying on evidence gathered by IPOA investigators and adduced during a public inquest in the early months of the aftermath, the Chief Magistrates Court in Kisumu on February 14, 2019, ruled that police commanders and some of the juniors who were deployed in the County were culpable for the death.
The Court thus directed the Office of the Director of Public Prosecutions to act against the police commanders.
After working with IPOA, DPP Mr. Noordin Haji wrote on October 25, 2022: “Having carefully analysed the (latest) file, I have arrived at the decision that the evidence on record meets the threshold of evidentiary and public interest test.”
It goes on: “I have approved charging of twelve (12) officers implicated in the violations that were meted to civilians in Nyalenda and other parts of Kisumu culminating into the death of Baby Samantha Pendo.”
“You are therefore directed to immediately proceed to apprehend and arraign the suspects for plea taking,” reads the DPP’s letter to IPOA Chief Executive Officer Mr. Elema Halake.
Record 84 witnesses and First on International Crime Act in Kenya
Among the evidence the DPP relied on, are statements recorded from eighty-four (84) witness, including some of the victims, residents, police officers as well as experts like pathologists, psychologists, explosive experts, crime scene investigators and medical personnel.
The officers lined up for a date with the courts include the retired the overall commander two Administration Police Senior Superintendents, a General Service Unit (GSU) Senior Superintendent, four Chief Inspectors, two Inspectors, a Senior Sergeant from Kenya Prions Service and a Sergeant.
The matter will also be a first because the offences would be brought to court under International Crimes Act, read with Article 28 (b) of the Rome Statute, Rape as a crime against Humanity contrary to Section 3 (b) of the International Crimes Act as read with Article 28 (b) of the Rome Statute and Torture as a crime against Humanity contrary to Section 3 (b) of the International Crimes Act as read with Article 28 (b) of the Rome Statute.
Since enactment, no cases have been prosecuted under ICA, not only in Kenya but in Africa, despite countries ratifying the laws under their own Criminal Justice Systems.
The DPPS’s directive puts to rest, the matter of command responsibility; a thorn that has troubled IPOA in its flesh, for a long time in its quest to guarantee Kenyans professional policing.
Blue Code of Silence
For instance On August 12, 2017, Nine-year-old Stephanie Moraa was fatally wounded after being shot by a police officer, and the commanders of the operation during which she died, remained mum in a bid to send the matter to oblivion, and the court christened this illegality – the Blue Code of Silence.
During the inquest, IPOA adduced evidence and on March 16, 2021, presiding Chief Magistrate in Nairobi ruled the girl died after a trigger-happy officer shot her at the height of 2017 post-election violence in the city’s Mathare North Area 2; but the killer was shielded by seniors who oversaw the fateful operation that was meant to cool the mayhem.
During the inquest, IPOA’s lead investigator told the court; “lack of cooperation from the police in making available the requested police documents hindered the Authority from ascertaining the formations of the officers deployed in the area.”
IPOA’s position was duly endorsed by the Court.
Among others called by the Court, then Senior Superintendent of Police Alice Jerotich Kimeli, who was in charge of Starehe Sub-County Police Command and under whose jurisdiction the matter fell, said the mayhem was an emergency and thus there was no Operation Order prepared to guide her deployments.
An Operation Order is a plan that details among others, the number and identities of officers deployed for a certain task, their commanders, their physical limits of action, as well as their mission and instructions.
The Court noted: “The blue code of silence is a common phenomenon, spanning across different countries and police cultures in America, Europe, Asia and even Africa. It is the unwritten rule according to which police officers never provide incriminating information about their colleagues.”
The Chief Magistrate forwarded his ruling to the Office of Director of Public Prosecutions for “necessary action,” which further stated: “IPOA must be applauded for taking up these cases and bringing them up to the public even as their efforts are frustrated by the blue code of silence. I am almost certain that if the police service wished to identify and bring to book the officer who took away the life of Stephany, it would not take them a day to do so. In conclusion I find that the death of the deceased was by deliberate shooting by a police officer whose identity has been frustrated by police officers covering for one another under the blue code of silence.”
Court rulings have continued to uphold the principle of command responsibility.
That is why, in Baby Pendo’s inquest, the court ruled: “Based on the principle of command responsibility in the National Police Service, the commanders in the in charge of the areas of Nyalenda are found liable for the death of the deceased baby and the ODPP to take necessary actions against these officers in accordance with the law.”
The ruling then listed the County Commander, two senior superintendents, a Chief Inspector and an Inspector as the persons culpable for the death of Baby Pendo.
Further, it named 46 other officers as persons of interest in the death of the baby.
However, the case the DPP is now taking to court, working with IPOA, has focussed on “command responsibility” and thus it is 12 officers of higher ranks and who were in charge of various platoons, who should be in the dock.