By Dr Owiso Owiso
Kenya is currently in the process of hearing the first case under its 2008 International Crimes Act, colloquially known as the Baby Pendo case. The case is potentially a landmark effort to ensure accountability for international crimes at the national level, but its future seems uncertain after plea-taking was delayed further on 03 October 2024.
The case
The case revolves around protests which erupted in parts of Kenya including in Nairobi and the Western city of Kisumu following the August 2017 general elections. The police responded with excessive force, killing tens of people and injuring others. The Law Society of Kenya, Kenya National Commission on Human Rights and local civil society organisations including the Independent Medico-Legal Unit, International Justice Mission and Utu Wetu Trust lobbied local authorities to prosecute police officers responsible, including by threatening private prosecution. This resulted in a judicial inquest in one of the cases, where a six-month-old baby named Samantha Pendo was fatally beaten by the police. The inquest, Chief Magistrate’s Court at Kisumu Inquest No. 06 of 2017, was held by a magistrate at the instigation of the Director of Public Prosecutions (DPP) pursuant to section 388 of the Criminal Procedure Code. The inquest found that police officers were responsible for the death of Baby Pendo and that commanding officers failed to prevent or investigate the incident, and recommended that the DPP take appropriate legal action.
Eventually, on 27 October 2022, the DPP charged twelve senior police officers who were commanders or had effective responsibility for police officers involved in the operation in various parts of Kisumu City. The police officers are Titus Yoma, Titus Mutune, John Chengo Masha, Linah Kosgey, Benjamin Kipkoskei Koima, Benjamin Lorema, Volker Edambo, Cyprine Robi Wankio, Josphat Sensira, Mohamed Ali Guyo, Mohammed Baa and James Rono. The twelve had, together with other police officers not charged, also been identified in Inquest No. 06 of 2017. According to the Information (intended charge sheet) dated 26 October 2022 and laid before the High Court on 27 October 2022, the police officers are charged with seven counts of the crimes against humanity of murder, rape, and torture, contrary to sections 6 and 7 of Kenya’s International Crimes Act, 2008 and article 28 of the Rome Statute of the International Criminal Court, 1998. Specifically, they are accused of the murder of Baby Samantha Pendo, widespread acts of sexual violence, and acts of torture against civilians. The case, Republic v Titus Yoma and 11 others, High Court Criminal Case No. E074 of 2022, is popularly referred to as the “Baby Pendo case.”
Objections to plea-taking and prosecution
Between November and December 2022, the suspects filed an application in Criminal Case No. E074 of 2022 and a separate constitutional petition (originally Constitutional Petition No. E499 of 2022, later transferred to be heard with E074 of 2022 and renamed Nairobi Miscellaneous Application No. E033 of 2023) challenging their prosecution and objecting to plea-taking. The suspects argued that: i) the proposed charges were inadmissible as they did not meet the gravity threshold for international crimes and offences based on the command responsibility doctrine; ii) section 28 of the Rome Statute on command and superior responsibility and the section of the International Crimes Act which adopts this provision are inconsistent with the command structure of the national police service as defined in the Constitution of Kenya, 2010; and iii) their arrest and prosecution were motivated by malice on the part of the DPP and civil society organisations and therefore offended constitutional provisions on national values and principles of governance and public service, leadership and integrity, and the rights to equality and freedom from discrimination, inherent dignity, freedom and security of the person, fair administrative action, access to justice, and fair hearing. Plea-taking was halted pending the resolution of these applications. Eleven suspects were released by the High Court in November 2022 on personal bond, while one suspect, Mohamed Baa, remains a fugitive.
On 25 July 2024, the High Court dismissed the suspects’ applications and held that the decision to charge and the charges as preferred did not violate the suspects’ constitutional rights. It further ruled that most of the issues raised, including whether the threshold for international crimes is met, whether the command responsibility doctrine is applicable and whether the intended prosecution is motivated by malice, can and should be determined during trial. The Court then directed the suspects to take plea on 03 October 2024 before a different judge.
Plea-taking and concerns regarding prosecutorial independence
Unfortunately, plea-taking did not proceed as expected. Surprisingly, the prosecution sought deferment on two grounds. First, the prosecuting counsel informed the Court that the DPP would like to make an opening statement himself immediately after plea-taking, but that he was not ready and available to do so on the day. Second, the prosecution and counsel for the suspects argued that it would be prejudicial to proceed with plea-taking in the absence one of the suspects, Mohamed Baa, who was still at large. Notably, Baa went into hiding in 2022 shortly after the DPP announced its intention to charge, and remains a fugitive. Lawyers representing survivors and the Law Society of Kenya strongly objected to the deferment and argued that i) no prejudice would be caused if the eleven present suspects were to plead in the absence of the fugitive Mohamed Baa (who could plead separately whenever he is apprehended), ii) the DPP could make a statement at a later date before commencement of trial, and iii) that to further postpone plea-taking would be to compound the survivors’ suffering and frustration considering that it has been seven years since the event and two years since the charges were laid. Nonetheless, the Court deferred plea-taking to 05 November 2024, extended the warrant of arrest against Mohamed Baa that was initially issued in November 2022, and directed the Inspector-General of Police to apprehend and present Baa in court.
The current DPP, Renson Ingonga, appointed in September 2023, does not inspire much public confidence. He has, since his appointment, orchestrated the withdrawal of several high-profile corruption cases. Additionally, under his leadership, the DPP sanctioned and filed politically-motivated charges (most of which have since been dismissed by the courts) against young Kenyans who participated in pro-good governance protests in Kenya in June-August 2024 (dubbed “Gen Z protests”). By contrast, the DPP has been silent regarding murders, abductions, torture and violence allegedly perpetrated by police and intelligence officers against the protesters. There is therefore reasonable apprehension that the new DPP’s latest moves in the Baby Pendo case may be designed to frustrate effective prosecution.
What the Baby Pendo case means for accountability for systemic police violence
The Baby Pendo case is notable as the first use of two legal instruments. First, this marks the first time that criminal charges have been brought under the International Crimes Act, 2008, the legislation through which Kenya domesticated the Rome Statute of the International Criminal Court and which mirrors the Rome Statute at least in its definition of international crimes and their elements. Second, article 28 of the Rome Statute on command/superior responsibility has directly been invoked, again for the first time in Kenya, against police officers in command/control of operations.
As a result, this is an important test case for domestic prosecution of international crimes. It is likely to have significant implications for future trials, possibly including cases related to the 2007/08 post-election violence which the International Criminal Court tried unsuccessfully to prosecute, amidst allegations of witness and evidence tampering. In January 2012, the Pre-Trial Chamber refused to confirm charges against Henry Kosgey and Mohammed Hussein Ali. Charges against Francis Muthaura and Uhuru Kenyatta were withdrawn by the Prosecutor in March 2013 and December 2014 respectively. The case against William Ruto and Joshua Sang was terminated by the Trial Chamber in April 2016. Notably, no domestic prosecutions were ever undertaken despite the recommendations of the Commission of Inquiry into Post-Election Violence (CIPEV Report 2008) and the Truth, Justice and Reconciliation Commission (TJRC Report 2013).
This case could also have implications for efforts to hold those responsible for the brutal repression of the peaceful June–August 2024 Gen-Z protests across the country led by young Kenyans aggrieved by, among other things, punitive taxation provisions in the Finance Bill 2024, crippling increase in cost of living, and bad governance. The police killed at least sixty 60 people, mainly young Kenyans, and injured scores. Tens were also abducted. There are increasing calls including by the Law Society of Kenya and civil society organisations for police officers responsible for the violence, killings, and abductions to be prosecuted.
The Baby Pendo case is therefore an important milestone in criminal accountability for gross violations of human rights, and in particular, police violence in Kenya. The outcome of the case will either signal a break with the past or further entrench impunity.
Atrocities Watch Africa, alongside other civil society organisations, continues to monitor and report on the case.
