Senior police officers' bid to halt Baby Pendo murder prosecution fails

The high court has dismissed an application by 11 senior police commanders to stop their prosecution for the murder of Baby Samantha Pendo and crimes against humanity including torture and rape committed in Kisumu during the 2017 post-election violence.

The 11 senior police commanders had challenged the jurisdiction of the Kenyan court to try them for the crimes against humanity borrowed from the International Criminal Court (ICC}

Justice Kanyi Kimondo affirmed the authority of the Kenyan court to try the suspects and ordered they be charged with the offences on October 3 this year.

Amnesty International Executive Director Irungu Houghton welcomed the decision saying it affirms the jurisdiction of Kenyan courts to hear cases under Kenyan laws and procedures and not the procedures of the ICC.

"This decision is a crucial step towards justice for all victims of the 2017 PEV," Houghton stated.

The officers had filed numerous petitions to challenge their prosecution but lost, paving the way for their imminent trial for the offences that guarantee lengthy or even lifetime incarceration upon conviction.

The senior cops include former Kisumu county police commander Titus Yoma, Nyanza regional commander for the General Service Unit (GSU) Christopher Mutune and John Masha who was the Kisumu Central Administration police service (AP) commander.

Others are Linah Kogey who was in charge of the Nyalenda police post, and inspectors of police Benjamin Koima and Benjamin Lorema who were alternately in charge of a GSU platoon deployed at the Kachok Roundabout among others.

They are accused of failure to exercise control of their juniors to repress unlawful activities including the murder of Baby Pendo on August 12, 2017, at around 1 am.

They will each be charged with murder as a crime against humanity under Kenya's International Crimes Act of 2008, for failing to report Baby Pendo's murder to competent authorities for investigation and prosecution despite knowing she had been killed by officers under their command.

Together with six others who were leading the operation, they face charges of crimes against humanity by failing to use their authority to restrain their officers from committing widespread cases of sexual violence including rape on civilian women during the "Operation post-election Mipango".

Baby Pendo's mother was fleeing her teargassed house and police brutality when the child was brutally injured allegedly by the police.

An inquest recommended the prosecution of the 11 and their accomplice, also a police officer who has been at large. The office of the Director of Public Prosecutions recommended the charges.

The ODPP said that from the inquest, the crimes were committed by the police officers because of the failure of the suspects to exercise control over their subordinates in the concept of superior command responsibility.

However, the suspects petitioned the court to temporarily stop their prosecution pending the determination of applications to declare that they could not be prosecuted for the offences under Kenyan laws.

Dozens of residents of Nyalenda slums were extensively tortured and women gang-raped allegedly by the police during the operation to suppress protests by opposition supporters.