The High Court of Kenya issued an arrest warrant for Mohammed Baa, a senior police officer, on charges related to the killing of Baby Samantha Pendo. The six-month-old child tragically lost her life in Kisumu’s Nyalenda Slums during the unrest, and the case has remained a poignant symbol of the brutality and injustices that emerged from that dark period. The court’s action marks a critical moment in the prosecution of senior police officers accused of involvement in her death, and it places significant pressure on the Kenyan justice system to hold those responsible for such atrocities to account.
The Baby Pendo Case: A Symbol of Post-Election Violence
Baby Samantha Pendo’s death in August 2017 shocked the nation and the world. She was struck on the head by police officers during a raid on her family’s home in Kisumu, a city that was a hotspot for violence following the disputed presidential election. Her killing quickly became emblematic of the broader issue of police brutality during the post-election period, during which numerous civilians were killed or injured.
At the time of her death, Kenya was engulfed in widespread unrest. The police, tasked with quelling the violence, often employed excessive force, particularly in opposition strongholds like Kisumu. According to various human rights organizations, law enforcement officers were implicated in several extrajudicial killings, assaults, and other abuses during that period. Baby Pendo’s death, however, stands out not just because of her tender age but because it is one of the few cases where direct legal action has been taken against high-ranking police officers.
The Arrest Warrant: A Turning Point in Accountability
On Thursday, a high-stakes development unfolded when the High Court issued a warrant of arrest against Mohammed Baa after he failed to appear for a scheduled court hearing. Baa, alongside 11 other police officers, faces murder charges stemming from his alleged role in Baby Pendo’s death and other acts of violence during the 2017 post-election turmoil.
Lady Justice Lilian Mutende, presiding over the case, directed the Inspector General of Police, Douglas Kanja, to execute the warrant and ensure that Baa is brought before the court to face the charges. This directive follows repeated failures by Baa to attend court proceedings, despite previous warrants issued for his arrest. The court has made it clear that Baa must be present for the plea hearing, scheduled for November 5, 2024.
The court’s move to issue an arrest warrant underscores the seriousness of the charges and reflects the gravity of the allegations against Baa and his co-accused. While the other officers, including senior figures like Titus Yoma, Titus Mutune, and Linah Kogey, have appeared before the court, Baa’s continued absence has delayed the trial. His non-compliance with court orders has been met with strong reactions from the prosecution and the victims’ families, who view it as a deliberate attempt to obstruct justice.
Charges Under the International Crimes Act
The charges brought against Baa and the 11 other officers are notable not just for their gravity but also because they are being prosecuted under the International Crimes Act of 2008. This legal framework allows the Kenyan government to prosecute individuals for crimes such as genocide, crimes against humanity, and war crimes under Kenyan law, but with reference to international legal standards.
The case represents the first time that Kenya has sought to prosecute individuals under this Act, and it is being closely watched by legal experts, human rights activists, and international observers. Central to the charges is the principle of superior responsibility, a doctrine in international law that holds superiors criminally liable for crimes committed by their subordinates if they knew or should have known about the unlawful acts but failed to prevent them.
The prosecution’s decision to apply the International Crimes Act in this case is highly significant. It highlights the Kenyan state’s commitment to pursuing justice for the victims of the 2017 violence, particularly given the longstanding impunity surrounding police brutality and extrajudicial killings in Kenya. By invoking this legal framework, the state seeks to set a precedent for future prosecutions and hold not just the direct perpetrators but also their commanders and superiors accountable.
The DPP’s Role and Prosecution Strategy
The Director of Public Prosecutions (DPP), Mr. Renson Ingonga, is leading a high-profile prosecution team that includes Senior Assistant Director of Public Prosecutions (SADPP) Mr. Vincent Monda, SADPPs Mark Barasa and Jalson Makori, Assistant Director of Public Prosecutions Ms. Gichuhi Gikui, Senior Principal Prosecution Counsel Ms. Christine Kathambi, Principal Prosecution Counsel Mr. Victor Owiti, and Prosecution Counsel Ms. Becky Arunga. Together, this team is tasked with ensuring that the case is handled meticulously and that all legal processes are followed to the letter.
During the court proceedings, Mr. Monda emphasized the importance of having all the accused present for the plea to be taken. He argued that proceeding in the absence of one of the accused, particularly someone of Baa’s seniority, would undermine the interests of justice. The DPP has indicated that it intends to make an opening statement at the plea hearing that outlines the role of each accused person in the commission of the alleged crimes.
The prosecution’s reliance on the International Crimes Act signals its intention to highlight the systemic nature of the violence that occurred in 2017, and to show how senior officers like Baa were complicit in or directly responsible for the actions of their subordinates. The case is expected to be a watershed moment in the fight against impunity in Kenya, as it will test the extent to which the state can hold powerful individuals accountable for their actions.
Challenges and Legal Arguments
The legal battle surrounding the case has not been without its challenges. In July 2024, the High Court dismissed applications by the accused officers that sought to challenge the court’s jurisdiction to hear charges brought under the International Crimes Act. The officers had argued that the Act could not be applied retrospectively to events that occurred in 2017, but the court rejected this argument, clearing the way for the prosecution to proceed.
Additionally, the victims’ counsel has pushed for the plea hearing to proceed even in Baa’s absence, citing the need for timely justice for the victims. However, the court has upheld the prosecution’s position that all accused persons must be present, stressing that the DPP has the sole authority to decide when and how to prosecute.
The victims’ families, many of whom have waited years for justice, have expressed frustration with the delays in the trial. Their counsel has urged the court to expedite the proceedings, but the complexity of the case and the involvement of high-ranking officials have made it a drawn-out process. Nevertheless, the victims’ advocates remain hopeful that justice will eventually be served, and that the case will set an important precedent for holding state actors accountable for human rights abuses.
Looking Ahead: The November 2024 Plea Hearing
With the plea hearing now set for November 5, 2024, all eyes will be on the court as the accused officers face their charges. The arrest warrant issued against Baa raises the stakes considerably, as it underscores the court’s determination to bring all the accused to justice. The prosecution’s strategy of applying the International Crimes Act and the principle of superior responsibility could have far-reaching implications, not just for the officers involved in this case but for the broader culture of impunity within the Kenyan police force.
For the victims of the 2017 post-election violence and their families, this case represents a crucial step toward achieving justice. The death of Baby Pendo is a stark reminder of the devastating human cost of political violence, and the prosecution of those responsible could bring much-needed closure to a community that has suffered immensely. However, with numerous legal and procedural hurdles still to overcome, it remains to be seen how the case will unfold in the coming months.
As Kenya continues to grapple with the legacy of police violence and impunity, the outcome of this case will be closely watched both domestically and internationally. The November plea hearing promises to be a pivotal moment in the ongoing fight for accountability and justice for the victims of the 2017 post-election violence, and it could set a powerful precedent for future prosecutions of human rights abuses in Kenya.
