The Doctrine of Command Responsibility in Kenya: Holding Police Leaders Accountable for Misconduct and the Case of Baby Pendo

Abstract

The doctrine of command responsibility is a fundamental principle of international law designed to hold leaders accountable for the actions of their subordinates. The military is well-trained in this doctrine but the same training has not been given to our police officers. In this paper, I interrogate how the can be applied to hold Kenyan police leaders accountable for the actions of their trigger-happy subordinate officers, despite the lack of training and awareness within the police force. Central to this analysis, I argue that Article 245 of the Constitution of Kenya 2010 and Section 8 of the National Police Service Act are explicit that police leaders can be held accountable for the actions of their subordinates. I draw from the decision of Justice Jairus Ngaah, which emphasised the importance of responsibility regardless of the label used, and Justice Kimondo’s ruling in the Baby Pendo Case, which signals the progressive adoption of this doctrine in Kenya to highlights this opportune time for reform. A comparative study with South Africa shows that although the term “command responsibility” is not explicitly used in both Kenya and South Africa, the concept is similarly applied. Finally, I will use the Baby Pendo case to posit that this is the crucial moment for Kenya’s courts to set a precedent and address systemic police violence and brutality using the doctrine of command responsibility.