Baby Pendo case belongs to ICC, lawyers tell court

Tuesday, November 22nd, 2022 05:30 | By
Some of the police officers arraigned at the High Court in Nairobi on Monday November 14, 2022 over the murder of Baby Pendo during post-election violence in Kisumu in 2017. PHOTO/Courtesy.

Trial of 12 police bosses, including a commissioner linked to the death of Samantha Pendo, also known as Baby Pendo, in 2017 in Kisumu has taken a new twist following arguments that Kenyan courts lack jurisdiction to hear offences emanating from the International Crimes Act.

The officers claim that only the International Criminal Court (ICC) has the powers to hear the charges leveled against them. Their defence lawyer told High Court judge George Kanyi Kimondo that Kenyan courts have no mandate to hear the intended offences against his clients, which are under International Crimes Act.

“The information supplied to us brings in the offences of International Crimes Act. Our considered view is that this court, as empanelled, lacks jurisdiction to take plea in this matter. Why now, is the DPP filling the case here? How many other Kenyans have been tried locally? What are the legitimate expectations of other Kenyans facing allegations under the International Crimes Act? Who is next; who goes to the Hague court and who doesn’t?” the defence led by lawyer William Arusei asked.

Following the submissions, the Director of Public Prosecutions urged the court to postpone the plea taking set for yesterday for 21 days to enable him review the case.

Review the file

The DPP, through Alexander Muteti and Victor Owiti, sought more time to interrogate afresh the file in the matter, the evidence on record and a constitutional petition filed before a separate court by the suspects prior to commencement of the murder trial against the officers.

“Before a plea is taken, we urge the court to grant us 21 days to look at the file as it has came to my boss’ attention that there is a constitutional petition in another court, where the suspects are challenging the legality of the intended trial. What has emerged from the proceedings is the issue of jurisdiction and manner in which the charges have been framed, “ Muteti said.

The prosecution continued: “This is a very serious case with far-reaching implications, as it is of unique nature. The suspects have been brought to court where they are being charged under International Crimes Act. This is a case where one individual died, a child, and of other violations of sexual violence and torture.  We need directions on how to proceed”, Muteti said.

The court allowed the DPP’s application to review the case until January 30, 2023, and give directions on how to proceed.

But Judge Kimondo ordered the 12 officers to present themselves before a clinical officer at Mathari Mental Hospital, Nairobi, for mental assessment before they can plead to the murder charges. The mental assessment is mandatory for all suspects facing murder charges.

“Since the DPP has informed the court that the suspects are yet to undergo a mental assessment as required, I direct all suspects to present themselves before a consultant psychiatrist at Mathari Mental Hospital for examination and a report furnished with the court,”the judge directed.

The court also ordered the Inspector General of Police, Japhet Koome, to arrest one of the officers —  Mohammed Baa — who failed to appear in court.

“To progress this matter, and the interest of justice, a warrant of arrest shall be issued against Mohamed Baa. That warrant shall be executed by the Inspector General of police,” ordered Judge Kimondo.

The court also ordered the officers —  Linah Kogey (inspector and post commander; Nyalenda)and Mohamed Guyo (chief inspector), who appeared in court for the first time — be released on personal bonds of Sh200,000 each and to appear in court during the next mention date.

The judge also extended the bond terms granted to Titus Yoma (former Commissioner of Police and retired County Commander), John Masha (GSU inspector and platoon commander), Benjamin Koima (retired Administration Police senior superintendent), James Rono (chief inspector), Mohamed Guyo (chief inspector), Benjamin Loreman (Kenya Prisons Service), Volker Edambo (inspector in charge of crime; Kisii) and Cyprine Wankio (chief inspector).

The suspects did not oppose the request by the DPP to defer the plea for three more weeks, but urged the court to allow them file a formal application on whether the Kenyan court has jurisdiction to hear offences under the International Crimes Act.

But the victims’ lawyers, Law Society of Kenya (LSK) and Independent Policing Oversight Authority (IPOA), opposed the DPP’s request to differ plea-taking, saying there is no order to stay the proceedings.

“We are ready to proceed; any constitutional issue can be raised after a plea has been taken,” said LSK lawyer David Ayuo.

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