The Tragedy. 11 August 2017, Kisumu

Baby Samantha Pendo‘s life was short, her death abrupt and painful. 

That way, Samantha Pendo became a metaphor of Kenya’s 2017 electoral violence.

Days after the 2017 general election, Pendo’s family was fast asleep in their Kisumu home, a one room rental in Nyalenda Kilo estate, in Kisumu,  when at 12.30 a.m. screams of a neighbor under attack woke them up. Panic-stricken, Pendo’s mother, Lencer Achieng’, and her husband, Joseph Abanja, hesitated to make any move. Achieng’ sat still at the edge of the bed. Achieng’ and Abanja knew the only thing standing between them and the attackers was the sofa, which they usually placed as a barricade across the door at nightfall. But seeing how ferocious the attackers were – kicking things and shouting – Achieng’ and Abanja knew it was only a matter of minutes before the sofa succumbed and the ravaging attackers gained entry. Why, they wondered, would anyone use such brutal force to gain entry into such low income homes? There wasn’t enough time to process that thought. A tear gas canister burst through a crack in the door into Baby Pendo’s house. It was the police.

When Achieng’ took the stand during Pendo’s inquest in Kisumu Law Courts on 19 February 2018, she recounted how at that point, the house was filled with smoke. Dry coughs inadvertently escaped from their throats as it became more difficult to breath by the second. An attempt by Abanja to open the door and let in some air proved futile. The men, who had turned out to be cops, had locked the house from outside. Abanja screamed, asking the cops to open the door. The children inside the house were choking. And when the police finally opened the door, in Abanja’s recollection, at least eight of them clad in anti-riot gear descended on him with blows. Three-year-old Moesha Akinyi, Baby Pendo’s elder sister, escaped into the night as the melee unfolded. Had she not escaped, Akinyi could’ve been another metaphor of Kenya’s election violence.

“They kept saying we will just come out of the house since they were under orders to shoot to kill,’’ Abanja told the inquest. ‘’I heard one say ‘‘Cock the gun.’’ But another shouted ‘‘No need.’’” 

Wearing only her underwear, Achieng’ grabbed Pendo’s bosom and dashed for the door. She didn’t make much headway. Cops pounced on her. Cornered, Achieng’ pleaded with the officers to spare her the beatings, if only for the six-months-old baby she was holding. 

“But when one officer let me pass, another took the chance. I blocked the first truncheon with my left hand, only for another to land on my back,” a piteous Achieng’ narrated to the dismayed court during the inquest in Kisumu.

Achieng’ told court that when she turned back to look, she felt the gust of another blow, but this time, the baton merely grazed her arm.

“Pendo grabbed and held me so tight,’’ Achieng recounted, ‘‘I looked at her. There was foam coming from her mouth and the left side of her head immediately swelled. I ran towards my husband who was still being beaten by the officers crying that they had killed my child.” 

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The Inquest. 19 February 2018, Kisumu Law Courts

Achieng’ was the first of 21 witnesses lined up to take the stand during the inquest led by Kisumu Magistrate Beryl Omollo. Due to public interest, Omollo noted that she would expedite the inquest, giving it a maximum of 12 months. 

Anticipation was ripe on the day she was to give her testimony, and upon taking the stand and narrating the events of what must have been one of the worst nights of her life, no one, not even the defense team, could manage as much as a murmur. There had been pindrop silence as Achieng’ made her way to the deck and started speaking, occasionally pushing her purple braids together and tying them at the back of her head, exposing a river of tears. At such junctures, three different times, the Magistrate granted Achieng’ time off, before she got her composure back.

“Jose, Jose, they have killed the baby,” Achieng’ wailed during the inquest in one of the moments the Magistrate had to intervene and offer her a break. Hardly minutes later, Achieng’ would carry on, still shaky and snorting, determined to get her daughter justice. “Fanyia mtoto first aid, hujui kufanya first aid, vutia mtoto makamasi,” Achieng’ said, quoting a policeman’s words to Abanja.

Then, slowly, the officers dispersed in small batches.

Together with a good samaritan and a brother-in-law, Achieng’ and Abanja walked to three different hospitals. They met closed gates at the first and second hospitals. This led them to Nightingale Hospital, from where Baby Pendo was transferred to Aga Khan Hospital in Kisumu after she was discovered to be in a coma, which lasted for five days until her death.

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The Evidence. 10 to 17 November 2018, Kisumu Law Courts

Joseph Gitonga, a government chemist, testified that Baby Pendo couldn’t have survived her exposure to chlorobenzalmalnonitrile, an active compound found in the teargas handed to him by the Independent Police Oversight Authority (IPOA). Exposure to the chemical, the analyst revealed, causes a burning sensation, teary eyes, coughing, nasal discharge and difficulty in breathing. Another witness, a government consultant pathologist Dickson Mchana, told the inquest that Pendo died due to internal bleeding in the brain.

“She sustained severe head injuries,” testified Mchana, “Actually it was bad. The baby had gaping head fractures. That is what kept her alive. When the scalp opens it relieves pressure, otherwise if it would have been enclosed the baby would have died immediately.” 

Dr Sam Oula, a consultant pediatrician at Aga Khan Hospital in Kisumu, who attended to Baby Pendo, concurred with postmortem examination findings.

“There were small pockets of bleeding inside the brain that made the child slip in a coma,’’ he said, ‘‘She sustained serious head injuries that led to internal bleeding.”

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 Inquest Ruling. 14 February 2019, Kisumu Law Courts

After the inquest, Magistrate Omollo found five senior police bosses who served in Kisumu during the 2017 general elections culpable for the death of the child. In a 38-page ruling, Omollo noted that officers failed to demonstrate their professionalism and meted out unwarranted violence to protesters.

“A fine flower was bashed by one of the baton-wielding policemen, who had laid siege to her parents’ house during the 2017 post-election violence,” Magistrate Omollo noted in a graphical reconstruction of the moments leading to Baby Pendo’s death, ruling that police officers and their bosses be held responsible for the death of the six-month-old Pendo.

“Pendo died a death too painful to find expression in a normal infant or baby’s speech of expressing pain or discomfort. The evidence produced in court and the seamless witness statements submitted to the court significantly indicts police officers for the death of the baby”. 

Omollo directed the Office of the(ODPP) to take appropriate action against Chief Inspector John Thiringi, Inspector Lina Kogey,  Senior Superintendent Benjamin Kipkosgey Koima, Senior Superintendent Christopher Mutune Maweu, and  Commissioner of Police Titus Yoma in accordance with the law. The magistrate also , a total of 31 police officers will now be investigated by the ODPP.

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The Trial. 21 November, 2022, Nairobi, Kenya.

Five years after the killing of Baby Pendo on the night of 11 August 2017, the trial is yet to begin. The onset of the case plea-taking has been delayed twice.

On 21 November 2022, the case was pushed to January 30, 2023 after  the prosecution sought 21 days to allow for the ruling of the constitutional  petition filed by the defense, the same prayer the suspects had earlier made. Appearing before Justice George Kimondo, state prosecutors Tabitha Ouya, Alexander Muteti and Victor Owiti told the judge that the “current case is unique and the first of its kind in Kenya to be filed under the Rome Statute and International Crimes Act.”

Muteti told the Judge that they will be asking Chief Justice Martha Koome to appoint a three-judge bench to hear the constitutional petition by the officers as instructed by the Director of Public Prosecutions. This had also been sought a week earlier by the defense before Justice Daniel Ogembo, but was denied. Speaking to Debunk, Muteti said the prosecution team would benefit from the court’s constitutional guidance on these novel charges.

“We do not want to rush the plea-taking only for the court to annul it,’’ Muteti said. ‘‘We will wait for the Constitutional determination on how the case should proceed.” 

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The Accused. 14 November 2022, Milimani Law Courts, Nairobi

On Monday 14 November 2022, nine out of 12 police officers were arraigned at the Milimani High Court before Justice Daniel Ogembo. They were to face charges of murder, rape and torture as crimes against humanity for the death of Baby Pendo and 39 other victims of extrajudicial killings, rape and torture committed during the 2017 post election violence after President Uhuru Kenyatta was declared winner against Raila Odinga.

This is the first time in the country that prosecutors are seeking to charge suspects on crimes against humanity. The charge is on the principle of ‘command responsibility’ pegged under the Rome Statute of the International Crimes Act, which Kenya has domesticated. The officers to be charged are high ranking commanders whom the DPP argues could and should have prevented the crimes before they happened.

Former president Uhuru Kenyatta and his successor William Ruto were charged with similar offenses but at the International Criminal Court in the Hague for crimes against humanity committed in 2007/8 post-election violence, before the cases were dropped.

In Pendo’s case, the 12 officers, however, did not plead to the charges as their lawyers challenged the charges and jurisdiction of the Judge. The accused wanted the court to defer the charges for two months pending the hearing and determination of the constitutional application in a different court. In the petition, the defense lawyers want Chief Justice Martha Koome to appoint a special bench to hear the case. 

Justice Ogembo declined the request, instead giving the officers seven days to appear for plea-taking. He ordered the nine officers who were present in court to be released on a personal bond of Sh 200,000 each.

“This is a delay tactic by the defense. All High Court judges have original jurisdiction over any criminal case,” said Kenya National Commission on Human Rights (KNCHR) advocate Victor Kamau, who is part of the prosecution team, said when Debunk reached out for a comment.

Apart from the delay by the defense lawyers who have been in the spotlight before, the  inquest and complexity of the case also contributed to the slow quest for justice. The Baby Pendo’s parents and other victims did not know the identity of the police officer who beat their child to death.

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The DPP. 28 October 2022, Nairobi, Kenya.

Speaking in Nairobi on 28 October 2022, Director of Public Prosecution (DPP) Noordin Haji said his decision to charge took a long time because of the “complexity of the offenses, investigation, and vulnerability of witnesses and victims”. 

Haji said the inquest established that the attacks were committed by or under the authority of senior national police officers, who, apart from the murder of Baby Pendo, committed various offences such as torture, rape and sexual violence. To further get to the bottom of the murder case, the DPP directed that a prosecution-guided investigation be undertaken by the Independent Policing and Oversight Authority (IPOA), KNCHR, other civil society organizations, victims and witnesses to participate and assist in the investigations.

“I’m satisfied that there is evidence to support the following charges under the International Crimes Act, No. 16 of 2018; a) murder as a crime against humanity, (b) rape as a crime against humanity and (c) torture as a crime against humanity,” Haji said. 

The DPP argued that it was critical to ensure top cops are held accountable for their actions and direct command in the service after the 2017 polls.

“The concept of superior/command responsibility must be explored for the first time in Kenya’s history,” the DPP’s statement read in part.

Pendo’s case began with an inquest in February 2018 before a ruling was made a year later. But it was after three years that the DPP announced charges against 12 police officers. 

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What’s An Inquest Got To Do With It?

Criminal cases ordinarily begin with plea taking, but some murder cases, especially when the death is questionable, start with an inquest.

If a person is suspected to have killed another but there is no evidence showing that he or she was involved, then the DPP can ask the court to start an inquiry to find either corroborative or exonerating evidence. However, if there is enough evidence to sustain a conviction soon after a crime, the suspect is arrested, to be charged with murder, without an inquest.

Criminal Lawyer Onyari Nyameino explains that a death inquest is a public judicial probe to sudden or unexplained deaths to establish facts regarding the death.

“Inquests are a fact-finding process,’’ Nyameino said, speaking from his Nairobi office when Debunk reached out for comment. ‘‘During this time, the suspect is never under arrest, but under summons from court to attend the proceedings.” 

Nyameino explained that, usually, during inquest proceedings, witnesses are called to give accounts of circumstances pertaining to or leading up to the death of an individual. Inquest proceedings, he noted, are not trials against particular suspects but instead, at the end of the proceedings, the magistrate gives recommendations either for further investigations or arrest and prosecution of particular individuals.

According to CAP 75 of the Criminal Procedures, when a person dies while in custody, the nearest magistrate can hold an inquiry into the cause of death, either instead of or in addition to the investigation by the police or prison officer.

“This case makes it to the list of very few cases that have been brought for prosecution after an inquest,’’ noted KNCHR lawyer Kamau. ‘‘In many cases, people are found culpable but they are not prosecuted.” 

Much as hers was a short life, like everyone else, Samantha Pendo deserves justice.

Hopefully, that justice will neither be delayed nor denied, or both.

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