Authored By: Dennis Okile
Kenyatta University Parklands
Abstract
Beneath the official denials and carefully worded press statements lies a grim pattern. Extrajudicial Killings by Kenyan police continue year after year, yet almost no senior officer has ever been convicted for the actions of the units under their command. “I never gave the order” has become the perfect shield. Despite reforms and the establishment of independent oversight bodies like the Independent Policing Oversight Authority (IPOA), accountability for such killings is often obstructed by deliberate cover-ups by police superiors, frustrating investigations and denying justice to victims’ families. This article examines the applicability of the command responsibility doctrine as a legal mechanism to hold police commanders criminally liable for Extrajudicial Killings committed by their subordinates, particularly where superiors engage in deliberate concealment of crimes. Drawing on international criminal law principles, the article analyses the critical elements of command responsibility. It explores how these can be integrated into Kenya’s legal framework to overcome systemic barriers to accountability.
Introduction
The command responsibility doctrine allows commanders to be convicted of crimes committed by their subordinates when they fail to take all necessary and reasonable measures to prevent, repress, or punish their subordinates’ crimes. The necessity of this doctrine continues to grow prevalent, especially when cases of enforced disappearances have shot to an all-time high, with high-profile cases such as the Albert Ojwang case hitting every news outlet, sending heads spinning. What made this killing different is not the brutality, but the paper trail. Officers openly alleged that the fatal beating was ordered by a senior commander furious over Ojwang’s social-media posts. For the first time in years, the chain of command is named, recorded, and undeniable. In a country where more than 160 Extrajudicial Killings were recorded in 2024 alone, and where junior officers have long absorbed the blame for “rogue” actions, the Ojwang case cracks open the central legal question Kenya has evaded for decades. When a commander orders, facilitates, or turns a blind eye to torture and murder in custody, can and must they be held personally criminally liable in the same way generals are at the Hague? This article delves into the doctrine of command responsibility under Kenyan and international law, arguing that the Ojwang tragedy is no longer just another statistic of impunity; it is the test case that could finally force Kenya to treat police superiors as the architects, not mere bystanders, of extrajudicial executions.
Legal Framework
The legal regulation of police command responsibility in Kenya, particularly in relation to accountability for extrajudicial killings, is anchored in the 2010 Constitution, which establishes a transformative framework for policing that emphasises human rights compliance, civilian oversight, and hierarchical accountability. As it stands, Kenya lacks a standalone statute explicitly codifying the international law doctrine of command responsibility under which superiors are liable for subordinates’ crimes if they knew or should have known of the acts and failed to prevent or punish them. However, this doctrine has been progressively incorporated through judicial interpretation, drawing on constitutional imperatives and enabling statutes. The framework is sector-specific, blending constitutional norms with police-specific laws, criminal codes, and oversight mechanisms to impose both individual and vicarious liability on commanders for unlawful killings by subordinates. This approach addresses systemic issues like the “blue code of silence” and impunity, as highlighted in parliamentary inquiries and human rights reports. Key principles include the obligation of police commanders to ensure subordinates act within the law, with failure triggering personal liability under domestic law, akin to international standards from the Nuremberg Trials and the Rome Statute of the International Criminal Court, which was ratified by Kenya in 2005. Courts have increasingly applied these, as seen in cases like the 2017 Baby Pendo killing during post-election violence and the 2016 Willie Kimani murder, where command failures led to prosecutions. Despite robust provisions, enforcement gaps persist due to political interference and under-resourced oversight bodies, with 97 Extrajudicial Killings documented in 2025 alone. Constitutional Provisions serve as the grundnorm, mandating a rights-compliant police service and embedding command responsibility through principles of accountability, non-discrimination, and the right to life. It structures the National Police Service (NPS) as a national security organ under civilian control, with commanders bearing ultimate responsibility for ensuring compliance among their subordinates.
Article 26 of the COK 2010 protects the right to life, stating that no person shall be deprived of life intentionally except as authorised by the Constitution or other law. Extrajudicial Killings violate this provision. This article additionally imposes strict liability on the State and commanders who fail to prevent or investigate potential Extrajudicial killings. Courts have invoked this in EJK cases, requiring independent probes into police actions.
Article 238, on the other hand, provides for the principles of National Security, which mandate that national security be promoted with utmost respect for the rule of law, democracy, human rights, and fundamental freedoms. Policing must foster public trust and accountability, prohibiting arbitrary or excessive force. This underpins command responsibility by requiring superiors to ensure their operations at all times, especially during “maandamano “, align with these principles, with any breaches constituting express constitutional violations.
Article 244 altogether provides for the objects and functions of the National Police Service. It outlines NPS duties, including striving for professionalism, preventing corruption, promoting transparency and accountability, complying with human rights standards, and fostering community relations. Commanders must train and discipline officers to uphold these, with failure exposing them to liability for subordinates’ actions that may result in extrajudicial killings, as was witnessed in the recent ‘maandamano’. Article 245, which is the Command hierarchy of the National Police Service, vests independent command in the Inspector-General (IG) of Police, appointed by the President with parliamentary approval for a single four-year term. The IG exercises control over operations, discipline, and administration, subject only to policy directions from the Cabinet Secretary, which must be in writing and prosecutorial oversight by the Director of Public Prosecutions (DPP). No interference in specific investigations, enforcement, or personnel decisions is permitted, reinforcing command responsibility. The Inspector General is accountable for systemic failures like unreported Extrajudicial Killings. Removal grounds include gross misconduct or incompetence. Deputy IGs head the Kenya Police Service and the Administration Police Service, extending liability down the chain.
Article 243 establishes the NPS under the National Police Service Commission (NPSC) for recruitment and oversight, but operational command remains with the IG. This separation was intended to ensure that commanders cannot evade responsibility by deferring to commissions. Article 59, which establishes the Kenya National Commission on Human Rights (KNCHR), empowers KNCHR to investigate human rights violations, including Extrajudicial Killings, and recommend prosecutions. It has documented over 500 police killings annually in past reports, aiding command liability claims. This body was intended to serve an oversight role to ensure the National police service acts within its mandate by the writers of this constitution, as can be drawn from Article 59(1)(d).
These provisions align with international obligations under the African Charter on Human and Peoples’ Rights, which was ratified in 1992, and the International Covenant on Civil and Political Rights ICCPR, which was also ratified in 1972, which Kenya must domesticate. The UN Special Rapporteur on Extrajudicial Killings, 2009 mission, urged full implementation to curb unforeseen police executions. Statutory provisions enabling legislation operationalise constitutional mandates, imposing disciplinary, civil, and criminal sanctions on commanders for Extrajudicial Killings. Oversight bodies like the Independent Policing Oversight Authority (IPOA) investigate command failures, with low prosecution rates highlighting impunity. The National Police Service Act gives effect to Articles 243 to 245, by outlining the NPS structure and command hierarchy. Section 8 vests the IG with independent command over discipline and operations, making them liable for subordinates’ unlawful acts. Section 49 prohibits unlawful force, requiring proportional response and reporting of all deaths/injuries to IPOA within 30 days.f Non-compliance with this directive triggers command sanctions. Section 87 additionally establishes the Internal Affairs Unit for internal probes, with the Sixth Schedule mandating non-violent means first and accountability for excessive force. The Act promotes command responsibility by requiring superiors to prevent impunity, as was applied in the Willie Kimani case convictions.
Judicial interpretation.
Courts have taken a surgical approach in an attempt to protect and promote the rule of law and human rights. These profound legal strides can be demonstrated in the courts’ interpretation of the concept in the following landmark cases:
Kenya Human Rights Commission & 8 others v Nchebere; Law Society of Kenya & 2 others
The honourable court in this case interpreted the doctrine as arising from the inherent and inalienable trait of the rights under the Bill of Rights and the respective obligations of these police officers to protect them. By virtue of these rights being inherent, the courts state that the executive cannot suddenly inflate its obligations, allowing itself to derogate the same right in any way not provided for under Article 24 of the Constitution, which outlines instances when rights can be limited. In this case the police disrupted a peaceful procession of doctors on strike prompting the court to rule that the unprovoked police action of violently breaking up the KMPDU’s members’ peaceful and unarmed demonstration in exercise of their constitutional right to assemble, demonstrate, picket and present their petition, and, in the process, hurting KMPDU’s Secretary General, was an act that contravened articles 36, 37 and 41 of the Constitution. It was not an act that was within the limitations circumscribed in Article 24 of the Constitution, and neither could it be justified under any written law.
The court in this case also extended the application of command responsibility beyond a particular statute or tribunal, redefining it to encompass a universal trait which is more prominent in International Criminal tribunals such as the Rwandan tribunal. The court reiterated that, with or without that doctrine, the constitutional and statutory provisions with respect to the officers, read in their entirety, pointed to the conclusion that the Inspector General of Police bore the responsibility for the actions of the officers under his command. Where the Inspector General violently descended upon members of the public exercising their rights to assemble and express themselves in a manner endorsed by the Constitution in the Bill of Rights, to curtail or in any other way to disrupt their appropriation of those rights, he would thereby be held accountable and personally responsible for the consequences that may inevitably ensue. The buck stops with him. This reaffirmed the existence and recognition of the concept of command responsibility by the Constitution.
Republic v University of Nairobi ex parte Michael Jacobs Odhiambo & 7 others
This case delved into how the command responsibility is to be defined and applied by the Kenyan law courts. The applicants were eight University of Nairobi students who were expelled or suspended for their alleged roles in student riots. They filed for judicial review to quash the University’s decisions, arguing that the disciplinary process was flawed and unreasonable. The court cited Justice Bakone Moloto, in his article “Command Responsibility in International Criminal Tribunals”, where the learned judge stated that one can be held criminally responsible under the doctrine of command responsibility for an international crime if,
First, there is a superior-subordinate relationship between the accused as the superior and the perpetrator of the crime as his subordinate;
Second, the superior must have known that the crime was about to be committed or had been committed;
Third, the superior failed to take the necessary and reasonable measures to prevent the criminal acts or punish the perpetrators. The learned judge proceeded to expound on the jurisdiction of command responsibility to include persons not in the official military command hierarchy by concluding that the doctrine of command responsibility is ultimately rooted in the power of the superior to control the acts of his or her subordinates. In this respect, a military hierarchy is not necessary; the ICTY, the ICTR, and the Special Court have all held that the doctrine of command responsibility applies not only to military commanders, but also to political leaders and other civilian superiors in possession of authority. It is also not necessary that a formal, de jure subordination exist. A superior position for purposes of command responsibility can be based on de facto powers of control. Furthermore, the perpetrator does not need to be directly subordinated to the superior but can be several steps down the chain of command. At least in the military context, command responsibility applies to every commander at every level of command, even if the troops were only temporarily under the command of a superior.
The above cases prove that Kenyan courts are not oblivious to the concept of command responsibility, and they have taken substantial steps to reconcile and anchor it to both national legislation and the constitution. Though significant, the doctrine still faces a lot of friction in Kenya, especially in the execution process. This will be deliberated upon in the next section.
Critical Analysis
Although the doctrine of command responsibility appears straightforward, it has drawn significant criticism regarding both its definition and practical application, as seen in international and domestic courts. Using the controversial acquittal of Jean-Pierre Bemba by the ICC Appeals Chamber as a starting point, this analysis seeks to clarify the interplay between two core elements: effective control and the material ability to prevent or punish crimes committed by subordinates. The conclusion is clear: differing views on the fundamental nature of command responsibility lead to varying interpretations of its requirements. If the doctrine is viewed as based on endangerment liability, where a commander’s failure to maintain proper oversight creates a risk of criminal conduct, then the occurrence of subordinates’ war crimes can reasonably create a rebuttable presumption that the commander lacked sufficient control. This approach, however, overlooks cases of outright insubordination. Fortunately, the presumption can be rebutted in two key ways. First, by demonstrating that the commander took adequate steps to repress or punish the offenders. Second, since criminal liability requires personal culpability, it must be proven that the commander is blameworthy for his failure. A commander cannot be held guilty simply for losing control if, for example, another individual actually exercised effective control over the perpetrators, or if the commander was formally given authority but lost it through no fault of his own, such as during a mutiny. A further unresolved question in international criminal law concerns the precise nature of the liability imposed. Is command responsibility a mode of liability that holds the superior accountable for the subordinates’ crimes themselves, or is it a distinct offense based on the superior’s own failure to fulfill his duties under international law? In essence, when a superior knows of subordinates’ crimes and fails to take reasonable measures to prevent or punish them, should he be convicted for those underlying crimes, or solely for his own omission in dereliction of duty? This distinction is particularly relevant to cases of pure omission, as opposed to active contributions, which clearly fall under standard accomplice principles. Although this debate has not been fully addressed in national jurisprudence, it remains central to determining whether commanders face charges as principals for subordinates’ acts, or instead for a separate offense of negligence or dereliction. Historical precedents and evolving case law continue to illuminate the most appropriate path forward, underscoring the need for a flexible yet principled approach, one that will be explored further in the subsequent section.
Recent Developments
Recent developments in command responsibility in Kenya focus largely on police reforms aimed at enhancing accountability for crimes committed by police officers, especially in cases of unlawful use of force, as seen in high-profile cases involving police violence. To address this, there is a growing call to officially incorporate the principle of command responsibility into Kenyan law, holding superior officers criminally liable for deliberate cover-ups and failures to prevent or punish subordinate misconduct.
Suggestions /Way forward
Kenya has made strong progress in applying the command responsibility doctrine through constitutional petitions, holding police superiors personally liable for subordinates’ human rights violations during protests, as seen in recent High Court rulings like KHRC v Nchebere (2024). Compared to Rwanda, where the doctrine was heavily used in post-genocide trials through the ICTR and domestic gacaca courts to prosecute leaders for failing to prevent atrocities, Kenya stands to focus more on civil remedies and police accountability rather than widespread criminal prosecutions for international crimes. This makes the reforms below all the more relevant:
- Amendment of the IPOA Act to mandate investigations into command failures and require ODPP prioritization of prosecutions enhances civilian oversight, tackles low conviction rates, and supports ongoing Maraga Taskforce reforms.
- Mandating command responsibility training for promotions and linking NPSC evaluations to subordinate misconduct records fosters a preventive accountability culture, as urged by civil society post-2024 protests.
- Define unified command chains with mandatory written orders, violation reporting, and post-incident reviews. This eliminates deniability and strengthens evidentiary trails under Article 245.
- Encourage courts to consistently apply the 2024 High Court precedent on constitutional command liability; this provides immediate judicial reinforcement without new laws.
- Increase funding for IPOA and Internal Affairs while involving civil society in monitoring this to ensure effective enforcement and track progress in high-profile cases. These reforms systematically embed the doctrine, reduce impunity, and align with Kenya’s constitutional goals as of December 2025.
Conclusion
Kenya is on an inspiring path toward true accountability. By building on powerful court rulings and learning from countries like Rwanda and South Africa, the nation can turn the command responsibility doctrine into a strong shield for human rights. With clearer laws, better training, and united efforts from police, oversight bodies, and citizens, a future where no leader can ignore abuses by those under them is within reach. Brighter days of justice, trust, and peace lie ahead for all Kenyans.
Bibliography
Legislation
- Constitution of Kenya, 2010 (Kenya)
- Independent Policing Oversight Authority Act, No. 35 of 2011 (Kenya)
- National Police Service Act (Cap 84) (Kenya)
Caselaw
- Kenya Human Rights Commission & 8 others v Nchebere; Law Society of Kenya & 2 others (Interested Parties) [2024] KEHC 16607 (KLR)
- Republic v University of Nairobi ex parte Michael Jacobs Odhiambo & 7 others [2016] KEHC 2093 (KLR)
Books
- Bartels R and others (eds), Military Operations and the Notion of Control under International Law (TMC Asser Press 2021)
Journals
- ‘Effectiveness of Police Reforms: Merging of Administration, Police Service and Regular Police in Kenya: A Case of Nakuru City County – International Journal of Research and Innovation in Social Science’ (International Journal of Research and Innovation in Social Science, 13 June 2025) https://rsisinternational.org/journals/ijriss/articles/effectiveness-of-police-reforms-merging-of-administration-police-service-and-regular-police-in-kenya-a-case-of-nakuru-city-county/ accessed 13 December 2025
- Kinoti F, ‘Police Reforms: Killing the Leviathan, a Case for Command Responsibility for Police Superiors in Kenya’ (2022) 3 SSRN Electronic Journal
- Meloni C, ‘Command Responsibility: Mode of Liability for the Crimes of Subordinates or Separate Offence of the Superior?’ (2007) 5 Journal of International Criminal Justice 619
- Moloto JB, ‘Command Responsibility in International Criminal Tribunals’ (2009) 3 Publicist 12
- O’Sullivan C, ‘New Court, Same Division: The Bemba Case as an Illustration of the Continued Confusion Regarding the Command Responsibility Doctrine’ [2022] Leiden Journal of International Law 1
- Varghese J, ‘Police Structure: A Comparative Study of Policing Models’ [2010] SSRN Electronic Journal https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1605290 accessed 26 January 2020
- ‘Vol 10 No 4 (2024): Journal of Business and Social Review in Emerging Economies | Journal of Business and Social Review in Emerging Economies’ (Globalcsrc.org, 2024) https://publishing.globalcsrc.org/ojs/index.php/jbsee/issue/view/116 accessed 13 December 2025
