The trial of 12 police officers accused of the murder of Baby Samantha Pendo and 39 other victims of extrajudicial killings has been put on hold to await the outcome of a constitutional petition challenging its legality.
Allowing a plea by defence lawyers Andrew Makundi and William Arusei, and the Director of Public Prosecutions (DPP) to thrash out contentious rights issues, Justice George Kimondo said it would be prejudicial to call upon the suspects to answer the murder charges at this stage before they are examined to satisfy their mental status.
The judge said both the defence and the DPP have a common ground that the murder case against the officers is premised under the Rome Statute and the International Crimes Act on atrocities against humanity.
“We need to question why these police officers are being charged under Rome Act 28 and 62 as domesticated in 2008,” Mr Makundi told the judge while seeking to have the case adjourned to enable the suspects to file a constitutional reference.
The lawyer said the High Court should determine, first, which category of cases are referred to the International Criminal Court.
Mr Arusei plus other seven lawyers echoed Mr Makundi in pleading for more time to enable the officers challenge the decision to charge them locally under the International Crimes Act.
“Also the jurisdiction of this court has been questioned to determine whether it is capable of determining the murder case pegged under the Rome Statutes,” Arusei told Justice Kimondo.
The lawyer told the judge jurisdiction is everything and if the court finds that it cannot handle the case, then the sole option is to fold up the trial and free all the officers.
State prosecutors Tabitha Ouya, Alexander Muteti and Victor Owiti told the judge the “current case is unique and the first of its kind in Kenya to be filed under the Rome Statute and International Crimes Act.”
Mr 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.
Mr Muteti said he has been instructed by the DPP to seek the courts indulgence over the serious and contentious constitutional issues touching on the fundamental rights on the decision to charge the officers under the Rome Statutes.
Eleven police officers turned in court to answer the murder charges filed against them as one, Mohammed Baa, failed to turn up.
Ms Ouya applied for a warrant of arrest.
Lawyers for IPOA and rights Organizations-International Justice Mission, IMLU, Utu Wetu and Kenya National Human Rights Commission (KNHRC) opposed the plea to defer plea taking until the constitutional application is determined.
Postponing the case Justice Kimondo allowed defence lawyers to file the constitutional applications.
He issued a warrant of arrest for Mohammed Baa to be executed by the Inpsector General of Police Japheth Koome.
The judge put off the case to January 30,2023 when the officers will be required to answer to the murder charges.
Justice Kimondo further said constitutional applications which had been placed before Justice Momanyi Bwonwong’a have been referred to him for further directions.
Justice Kimondo ordered the officers Titus Yoma, Titus Mitune, John Chengo, Benjamin Koima, Benjamin Lorema, Volker Edambo, Cyprine Robe Wankio, Josphat Sensira, James Rono, Linah Kogey and Mohammed Ali Guyo to comply with the bond terms and return to court January 30, 2023 for further directions.
He also ordered IPOA to escort the officers to Mathari Mental Hospital for examination whether they are fit to stand trial.
“I direct IG to arrest Mohammed Baa who could not be traced by IPOA officers to effect summons,” Justice Kimondo ordered.
All the 11 officers are out on a personal bond of Sh200,000.