Four senior General Service Unit (GSU) officers have been charged with the killing of Baby Samantha Pendo and 34 others during the 2017 post-election violence.
John Chengo Masha, Linah Kogey, Cyprine Robi Wankio and James Rono denied multiple counts including murder, rape, torture and crimes against humanity under the Rome Statute.
Director of Public Prosecution (DPP) Renson Ingonga, however, remained tight-lipped about the fate of seven other senior police officers who had been implicated in the murder of protesters in Nyalenda and Kachok areas within Kisumu County on August 12, 2017.
The charges stated that they committed the offences contrary to section 6(1)(b) as read with Section 6(3)(a) and Section 7 (1)(f) of the International Crimes Act No16 of 2008 Laws of Kenya and Article 28(b) of the Rome Statute of the International Criminal Court (ICC).
Initially, the DPP had preferred charges against 12 police officers, but one of them, Mohamed Baa, has been missing, delaying the case.
And on Monday, those missing in the dock were Baa, Titus Yoma, Titus Mutune, John Chengo, Benjamin Koima, Benjamin Lorema, Volker Edambo, Cyprine Robe, Josphat Sensira, Mohamed Ali Guyo, and James Rono.
Justice Muigai was told that Baa, a retired police officer allegedly disappeared into Somalia when he learnt that he was being sought to answer charges over the heinous killing of innocent citizens, rape and crimes against humanity.
The Law Society of Kenya (LSK), Kenya National Human Rights Commission (KNHRC) and Utu Wetu sought an explanation from the DPP about the fate of the seven officers whom the Court of Appeal and High Court Judges had directed they face justice over the deaths.
The bulk of the charges in a 30-page charge sheet presented before Justice Muigai were rape, torture and other clobbering of hundreds of women at Nyalenda.
According to the prosecution, the women were raped in turns by armed police with others feasting on meals they found the victims preparing for lunch.
The prosecution led by senior assistant directors of public prosecutions Mark Barasa, Mr Makori and Gikui Gichuhi told the judge that a vast majority of the helpless victims of the police brutality were left writhing in pain.
Each of the four commanders were separately charged with murder as a crime against humanity under the ICC and the Rome Statute which was domesticated under the 2010 Constitution.
Inspector John Chengo Masha, a General Service Unit (GSU) Commander of the operation at Kilo Junction and Kachok Roundabout within Nyalenda in Kisumu East Sub County within Kisumu County on August 12, 2017 was charged with failing to repress and or prevent the police officers under his command and control from killing Baby Pendo.
The charge claimed that Masha knew or had reasons to believe the officers were out to commit a crime during the crack-down on demonstrators.
As for Kogey, also a GSU Commander who was in-charge of operation to quell chaos during the 2017 post-election uproar has been charged with failing to prevent the killing of Baby Pendo on August 12,2017 by officer under her command.
Both Masha and Kogey were further charged with failing to prevent officers under their command from raping in turns 83 women after storming their residence, clobbering them with police batons and lobbying tear gas canisters into their houses.
James Rono a Chief Inspector of Police in-charge Obunga Estate faced five rape counts by failing to repress officers under his command from raping women.
Three officers under his command stormed into a woman’s house where they allegedly clobbered her, tore her innerwear pinned her on the wall and raped her in turns.
Cyprine Robi Wankio, an Inspector of Police in charge of Nyamasaria within Kisumu East was also accused of failing to contain police under his command from raping women on August 11 and 12 2017.
All the commanders were accused of failing to report to the competent authorities the incidences for investigation and prosecution of the officers concerned with meting out the atrocities.
Defence lawyers applied for the commanders to be released on bond saying it was their constitutional rights.
The DPP through Barasa did not oppose the bail applications but was quick add that he will be calling lawyers and officers from the LSK, KNHRC and IPOA which investigated the incident as prosecution witnesses.
Mr Barasa told the judge that the position taken by LSK, IPOA and KNHRC in the matter puts them in collision with the DPP.
“There is conflict of interest on the part of LSK, KNHRC and IPOA in this matter as they are opposing the bail application,” Mr Barasa told the judge.
She was also informed that “the DPP is not opposed to the accused being released on bond,” he said.
The LSK called for a pre-bail report on each of the police commanders while IPOA said its officers will file an affidavit opposing the release of the suspects on bond.
The DPP also applied for the case to be transferred to Kisumu, saying it was the place where the offences occurred but it was opposed by the victims and the lobby groups arguing that the officers are still persons of influence and are likely to interfere with the witnesses.
