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The Special Services Unit (SSU) officers suspected of abducting two Indian nationals and their driver now want officers from other security agencies, including the National Intelligence Service (NIS), to also be investigated.

In an affidavit, the nine officers say the Internal Affairs Unit (IAU) lacks the mandate to investigate the abductions, adding that it was the work of police officers.

Under Section 6 and 7 of the Independent Policing Oversight Authority (IPOA), the authority is mandated to investigate complaints related to disciplinary or criminal offences committed by any member of the service.

The IAU has, however, dismissed the affidavit, saying Article 245 of the Constitution allows the Inspector General to investigate any matter.

The IAU reports to the IG.

New focus

With the investigations revealing that the SSU officers were involved in the abduction of the three, focus is now shifting to the National Police Service Commission, former DCI boss George Kinoti and his two commanders, the head of operations and former SSU director Pius Gitari.

Investigations by the IAU reveal that the suspected officers were in communication with their commanders and even shared photos believed to be those of the abducted people, through WhatsApp, with their bosses.

Though the officers said they were acting under the instructions of their bosses, this does not shield them from prosecution.

Section 51 of the Police Service Act states that a police officer should only obey lawful commands in respect of the execution of office duties. It further states that no action can be taken against any officer who fails to comply with unlawful orders.

On Friday, the Director of Public Prosecutions, Noordin Haji, explored the concept of command responsibility and directed that 12 police commanders who served in Kisumu in 2017 be charged with the death of Baby Pendo.

Various offences

“The ODPP perused the proceedings and judgment of the inquest and established that the attacks were committed by, or under the authority of, senior national police officers who, apart from the murder of Baby Pendo, committed various offences such as torture, rape and sexual violence,” the DPP said.

“Thus, the ODPP was of the opinion that the concept of superior command responsibility must be explored for the first time in Kenya’s history,” ODPP added. It is, however, not clear whether Kinoti and some of the senior commanders will face charges.

Investigators from IPOA adduced evidence during a public inquest. 

“Having analysed the (latest) file, I have arrived at the decision that the evidence meets the threshold of evidentially and public interest test,” the DPP said.

The matter will also be a first because the offences would be brought to court under International Crimes Act, read with Article 28 (b) of the Rome Statute.