Human rights defenders have expressed their disappointment with the Director of Public Prosecutions (DPP) for making application for deferral of plea-taking of 11 police commanders accused of committing crimes against humanity including murders and rapes in Kisumu during the 2017 post-election violence.

The International Justice Mission (IJM), Amnesty International (AI), the Independent Medico Legal Unit (IMLU), the Law Society of Kenya (LSK) and a consortium of 21 police reforms working groups (PRWG) in a joint press statement on Thursday said the DPP disappointed the survivors and victims’ families.

The officers face charges including use of unnecessary force and sexual and gender based violence during police operations in the aftermath of the 2017 general elections.

The violence led to the murder of six months old Baby Pendo and perpetrating human rights violations against a number of Kisumu residents.  

“Should justice be delivered, PRWG is confident this shall also create a greater respect and accountability for police officers who break our laws and use excessive and unnecessary force in future,” the joint statement reads in part.

“We commit to all the survivors, victims’ families and the public to actively follow the proceedings of this landmark case. The constitution recognizes the expectations of all Kenyans for a government based on essential values of human rights, equality, freedom, democracy, social justice and the rule of law. Constitutional offices must consistently be at the forefront of this or the nation will perish.”

IJM’s acting Country Director Vincent Chahale and Amnesty International executive director Irungu Houghton said the DPP’s application was a “major disappointment” in pursuit of justice for the victims.

Chahale said this case is pivotal in establishing police accountability and ensuring justice for victims of police violence.

This is the first time in Kenya police commanders and officers are being charged in Kenyan courts under the International Crimes Act as domesticated by the Rome Statute in Kenya.

This case applies the principle of command responsibility for police commanders who fail to effectively reign in or command police action in the course of duty.

The police commanders are accused of failing to restrain their juniors under their command from committing the crimes and therefore bear the responsibility for the crimes they should have prevented.  

The human rights defenders under the auspice of PRWG say they remain in solidarity with all victims and survivors of police violence, and professional, accountable policing centred on compliance to human rights.

Justice Lilian Mutende on Thursday deferred the plea-taking until November 5, 2024, to ensure that all suspects must be present in court when the DPP renders an opening remark on the atrocities meted out on civilians in Nyalenda and other parts of Kisumu culminating into the death of Baby Pendo and 39 others.

The charges against the officers are based on the principal of Command Responsibility under the International Crimes Act 2008, a first in the country.

In her ruling, Justice Mutende said the DPP should be given time to bring on board all the 12 suspects before the trial commences.

This is after the DPP through Prosecutor Vincent Monda successfully applied to have the case deferred to allow police to arrest one of the suspects at large for joint trial with the other accomplices. 

The suspect at large is Inspector Mohammed Mbaa.

The judge ordered Inspector General (IG) of Police Douglas Kanja to arrest Mr Mbaa.