Who should be held accountable when law enforcement officers or military personnel violate human rights? The individual who pulled the trigger, the officer who gave the order, or the entire chain of command that allowed such crimes to happen? International humanitarian law provides a clear answer through the doctrine of command responsibility. This legal principle ensures both direct perpetrators and their superiors are held accountable for law violations.
This doctrine has been successfully applied in in international cases to prosecute war crimes, crimes against humanity, and genocide. For the first time in Kenya’s history, it is being used in the Baby Pendo case.
Beyond the Officer on the Ground: The Chain of Accountability
Under international law, command responsibility extends beyond the officer who commits an unlawful act. It holds law enforcement or military supervisors accountable if they fail to prevent or punish violations. The International Commission of Jurists Kenya emphasizes that this responsibility extends from the officer commanding a riot squad to the Inspector General of Police and even the Minister of Interior.
Advocate Leah Aoko, a programs associate at Utu Wetu Trust, explains why this legal doctrine is critical in ensuring justice:
“What we are saying is that where an offence has been committed by an officer, we hold the person who gave the orders responsible. For example, if I am part of a mission and I go to an area and commit an offence—whether it’s sexual assault—my boss is going to be held responsible.”
She further highlights how this doctrine prevents a culture of silence within security forces. Police officers are often reluctant to report colleagues who commit crimes. However, when their superiors become liable for their actions, the entire chain of command must monitor and control what happens on the ground.
“This can be very effective because police bosses will be aware of what their juniors are doing. If something wrong happens, they will be held accountable. They will be very keen to ensure that their juniors do not commit crimes. The issue of blindly following orders will come to an end.”
Command Responsibility In Baby Pendo Case
The Baby Pendo case is a reminder of police brutality in Kenya. In 2017, six-month-old Samantha Pendo was brutally beaten by police officers during post-election violence in Kisumu. She later succumbed to her injuries.
This case was a turning point in Kenya’s human rights discourse, as it marked the first time that command responsibility was invoked to hold senior police officers accountable for the actions of their subordinates. The Independent Policing Oversight Authority (IPOA) investigated and recommended that the officers who carried out the violence and their commanders face prosecution under this doctrine.
By applying command responsibility, Kenyan prosecutors seek to hold top security officials responsible for failing to prevent or punish the crimes committed by officers under their command. This is a step toward ending police impunity.
How Command Responsibility Works
The concept of command responsibility is firmly embedded in the Geneva Conventions (1949) and Additional Protocol I (1977). The International Criminal Court (ICC) further solidified this principle in Article 28 of the Rome Statute, which defines two types of superior responsibility:
-
Military Commanders – A commander is criminally responsible if they:
- Knew, or should have known, that forces under their command were committing crimes.
- Failed to take all reasonable steps to prevent or punish the crimes.
-
Civilian Superiors – A non-military leader (such as a police commander or a government official) is responsible if they:
- Consciously disregarded information that indicated subordinates were committing crimes.
- Failed to act within their authority to prevent violations or report them for prosecution.
In both cases, the superior does not need to order the crime directly. Their failure to act is enough to establish guilt.
Why Command Responsibility Matters Now More Than Ever
For decades, police and military abuses in Kenya have gone unpunished, often because perpetrators are shielded by a powerful hierarchy that protects its own. However, with growing calls for justice in cases of police brutality, enforced disappearances, and sexual violence, command responsibility could be a turning point.
If successfully applied, it would send a strong message to police and military leadership: accountability does not stop at the junior officer. Every leader, from the commanding officer to the highest levels of government, is responsible for ensuring justice.
By implementing command responsibility, Kenya has a chance to break the cycle of impunity—where powerful officials escape justice while survivors of violence are left to suffer in silence. The law is clear: failing to act is as much a crime as committing the act itself.
Will Baby Pendo Case Be the Landmark Kenya Needs?
The Baby Pendo case is more than just one family’s fight for justice; it tests Kenya’s commitment to accountability. If the courts uphold command responsibility, it could change the way police brutality cases are handled in the country. But if the case persists, it will be another example of justice denied.
Will Kenya uphold this principle, or will impunity continue reigning?