PJI is supporting accountability for post-election sexual violence in Kenya.
In partnership with the Office of the U.N. High Commissioner for Human Rights and UN Women, PJI is working with the Office of the Director of Public Prosecutions (ODPP) and the Independent Policing Oversight Agency (IPOA) to prosecute the “Baby Pendo” case, the first crimes against humanity case to be brought in Kenyan national courts. This work incorporates a public-private partnership component involving civil society organisations, including organisations with lawyers representing the victims.
The political history of Kenya reveals a pattern of extra-judicial killings, torture, arbitrary detention, and corruption. Both colonial and post-colonial authorities committed or sanctioned such crimes, and perpetrators were never held accountable. It is this history of impunity that continues to empower the organisers and perpetrators of violence during election periods to commit atrocities with the confidence that they will never be investigated or prosecuted for their crimes. Of recent and worthy note, disputed elections in 2007 and 2017 were both marred by serious human rights violations, including unlawful killings and beatings by police during protests, sexual violence, and house-to-house assaults in western Kenya. Elections held in August 2022 – by contrast – were mostly peaceful.
The aim of this project is to deepen and widen the capacity of justice sector actors to address impunity for sexual violence and other serious human rights violations committed in the context of the Post-Election Violence (PEV) periods of 2007-8 and 2017. In 2019, the ODPP requested PJI’s assistance in investigating and preparing a prosecution case involving potential crimes against humanity committed during the second PEV period.
On October 28, 2022 after nearly two years of support from PJI, the ODPP announced charges in the matter of systematic police attacks on civilians in Kisumu County, including the widely decried murder of Samantha Pendo “Baby Pendo” with prosecution set to proceed in Kenya. This case not only marked the first crimes against humanity case to be brought in the Kenyan national courts, but it also marked the first such case alleging post-election violence under a theory of command responsibility, a form of responsibility being applied in this case under the Kenyan 2008 International Crimes Act.
The Baby Pendo case demonstrates the power of PJI’s methodology. Working to support our peers over time, providing sustained support through the process of gathering evidence to build a case, we are all the while transferring skills to our peers.
PJI’s work on issues relating to accountability for grave human rights violations and international crimes in Kenya is built on the PJI legal team’s work with local actors in this country since 2008.
In addition to PJI’s accompaniment work, in 2016 PJI lawyer Maxine Marcus testified as an expert witness in a constitutional human rights case in Kenya, in which victim plaintiffs alleged failure to investigate and prosecute acts of sexual violence by police during the first PEV period. In a landmark decision in this case, the Kenyan High Court ruled in favor of four survivors of post-election sexual violence in Kenya, finding that Kenya failed “to investigate and prosecute violations of the rights to life, the prevention of torture, inhuman, and degrading treatment, and the security of person.”