By Dr Owiso Owiso
As reported in an earlier post, on 3 October 2024 the High Court postponed plea-taking in Kenya’s first domestic international crimes trial (the Baby Pendo case) to 5 November 2024. However, for the second time, plea-taking failed to proceed on 5 November 2024. This time, only ten suspects were present in court, Titus Yoma, Titus Mutune, John Chengo Masha, Benjamin Kipkoskei Koima, Benjamin Lorema, Volker Edambo, Cyprine Robi Wankio, Josphat Sensira, Mohamed Ali Guyo and James Rono. Linah Kogey was reportedly taken ill and admitted in hospital, while Mohammed Baa, who went into hiding in 2022, remains a fugitive.
The Prosecution again sought deferment on the same ground raised on 3 October 2024, that it would be prejudicial to proceed with plea-taking in the absence of the fugitive Baa. While deferring plea-taking on 3 October 2024, the High Court had also extended the arrest warrant for Baa and directed the Inspector-General of Police (IGP) to apprehend and present him in court. On 5 November 2024, the Prosecution reported to the Court that despite written requests to the IGP for an update on Baa, no information was forthcoming. Notably, however, the Prosecution did not provide any evidence of its alleged communications with the IGP. The Prosecution and the Defence also cited the absence of Kogey as another reason why plea-taking could not proceed. While lawyers representing victims/survivors (retained by Utu Wetu Trust, Kenya National Commission on Human Rights, Law Society of Kenya, Independent Medico-Legal Unit and International Justice Mission) strenuously opposed the application to defer plea-taking on account of Baa’s absence, they were nonetheless willing to indulge Kogey on condition that she presents medical evidence of her indisposition at the next court appearance. The Court again deferred plea-taking to 15 January 2025 and directed the IGP or any senior police officer assigned by the IGP to appear in court on said date to explain why Baa cannot be apprehended. The Court also directed Kogey to avail medical evidence of indisposition at the next appearance.
Public confidence in the State’s willingness to prosecute the case is waning. During the court session on 5 November 2024, Counsel for victims/survivors took issue with what appears to be the Prosecution’s accommodation of the suspects at the expense of the victims/survivors, and also suggested that some of the suspects who still hold senior positions in the National Police Service – one of them being a Commissioner of Police – were undermining efforts to prosecute the case. It was also alleged that the police were aware of the whereabouts and movements of Baa and that he had been cited severally in Nairobi and that he frequently travelled back and forth between Nairobi, Wajir and Somalia.
It is increasingly becoming clear that the “new” Director of Public Prosecutions may not be ready and/or willing to prosecute the case. If indeed Baa cannot be found, nothing in law prevents the Prosecution from amending the charges to exclude Baa until such time as he may be apprehended, and proceeding with the case against the eleven available suspects. As Counsel for the victims correctly argued, while the intended charges concern the superior responsibility of the suspects, criminal accountability is individual in nature, meaning that the suspects answer charges in their individual capacities and not as a group. In fact, it is now the norm in international criminal law and procedure that trials, including those involving command/superior responsibility, frequently proceed to conclusion in respect of the available suspects and in the absence of their fugitive co-accused. For instance, in the trial of Dominic Ongwen at the International Criminal Court (ICC), the case initially involved four suspected senior commanders (Joseph Kony, Vincent Otti, Okot Odhiambo and Ongwen), but when Ongwen surrendered to the ICC in 2015, the Court severed the case and proceeded with his prosecution alone. Therefore, proceeding with the charges against the eleven available suspects in Baby Pendo case in the absence of Mohamed Baa would not cause any prejudice to any of the suspects or the victims/survivors.
Surprisingly, the Prosecution has not once suggested or indicated a willingness to explore this option. Counsel for victims/survivors made this suggestion on 3 October 2024 and again on 5 November 2024, and both times the Prosecution and the Defence strenuously opposed the suggestion, instead insisting that the case can only proceed with all the suspects present. Since the Prosecution has made clear its position that it is only willing to proceed with the case if all twelve suspects are present, and considering the unlikelihood of Baa being apprehended anytime soon, it may be up to the Court to take the initiative and sever the case to allow it to proceed. Without firm judicial initiative, Baby Pendo case may stall indefinitely. As argued in an earlier post, this case is “an important milestone in criminal accountability for gross violations of human rights, and in particular, police violence in Kenya …[and] will either signal a break with the past or further entrench impunity”. In other words, the Baby Pendo case is too important to fail!
Atrocities Watch Africa, alongside other civil society organisations, continues to monitor and report on the case.
