Concerns raised over DPP's handling of Baby Pendo's murder case

Human Rights Organisations have raised concerns over the handling of Baby Samantha Pendo's murder case after it emerged that the witnesses' identities have been exposed by the prosecution handling the case.

Their identities are contained in charge sheets of the four officers who took plea on Monday this week that have since been shared across multiple platforms, exposing them to danger as the matter remains highly sensitive.

What is concerning the organisations the most is the fact that the publishing of the witnesses' names seems to have been done deliberately, having not been included in the previous charge sheets on the matter that has also dragged in court for years raising concerns over whether the respective state agencies are willing to pursue the matter to its logical conclusion.

"We are concerned that the Office of the Director of Public Prosecutions (ODPP) dropped charges against eight senior commanders who had been lined up for prosecution. Even more worrying was the move by the ODPP to expose witnesses in the charge sheet and thus endangering their safety," International Justice Mission's Country Director Vincent Chahale said.

His sentiments were echoed by the Law Society of Kenya (LSK) President Faith Odhiambo during the launch of the Missing Voice (2024) report on Wednesday, who said Kenyan courts should remain as temples of justice, not "echo chambers of delay or injustice and corruption."

"After raising so much hue and cry over Baby Pendo's case and finally charges are made against some, we continue to see the inequality and injustice in our system. Some seniors are set aside-charges are not meted out against them, who do we hold accountable for that? Charges are changed, and I dare say injustice starts even from the charges. If you frame the charges in a manner to ensure that the threshold will not be met, it is playing to the gallery; you want to be like you are doing work, yet you are doing absolutely nothing," she said.

The LSK President further reminded all officials in the justice system that they have a constitutional duty and responsibility to do what is right.

"I hope one day it will be time to hold former office bearers personally accountable because when you change things for the purposes of ensuring that there is injustice, then you can offload that responsibility to a different institution, yet the failure started with you. We shall hold you accountable," she added.

Over time, the challenges of investigating and prosecuting cases emanating from protests have necessitated the doctrine of command responsibility, which Missing Voices and its partners are pursuing in the Baby Pendo Case.

The failure to charge all the officers in the case, according to the HROs amounts to an injustice and the long-held criminal justice actors' decision to refuse to hold a section of rogue police officers accountable for their actions.

"Not all police officers are bad, that is not the notion we are saying, but we are saying the bad ones must be rooted out. They swear an oath of office to defend, to protect, if they are loyal to their country, to their people and the nation, then they must uphold the rule of law, they must exercise restraint. It should not be allowed to continue to see police officers that are being investigated, who have defiled people, who have maimed, shot and killed, continue to sit in those given police stations while nothing is being done. Justice must also continue to be seen as being done," Odhiambo added.

On Monday, the DPP dropped the charges against eight of the 12 police commanders and officers who were initially included in the original charge case, much to the shock of a section of human rights organisations, amongst them Amnesty International Kenya, Utu Wetu Trust, the International Justice Mission and the Police Reforms Working Group.

"We are also deeply concerned that, contrary to the ODPP's obligations on protection, the charge sheet, which is now public, contains the names of victims and witnesses. This public identification has the potential to expose the victims and witnesses to possible harm and reprisals and could jeopardise the case against the four officers," the organisations said.

It is worrying that the majority of the cases forwarded to the ODPP arising from last year's protests have either been returned for further investigations or closed, making it difficult to hold police officers to account for public order management violations.

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