LEGAL TENETS AND STRUCTURAL CONFINES OF WITNESS PROTECTION IN THE KENYAN JUDICIAL SYSTEM

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By Lucy A. Oulo and Benta Moige**

Introduction

The role of witnesses in the dispensation of justice in any civilized society can never be overemphasized. Usually, court relies heavily on the cooperation of both the victims and witnesses of a crime in order to achieve justice.Justice J.M Panchal examines the role of witnesses of crimes in criminal justice system. He opines that witnesses play a critical role in the dispensation of justice, and protection of witnesses through legislative measures can go along way conducting a fair trial. Similarly, Jeremy Bentham, affirms that witnesses are the eyes and ears of justice, hence the importance and primacy of the quality of trial process. If the witness himself is incapacitated from acting as eyes and ears of justice, the trial gets putrefied, and it no longer can constitute anything close to fair trial. The Supreme Court of India in Gujrat v Anirudh Singh has held that it is the salutary duty of every witness who has the knowledge of the commission of the crime, to assist the State in giving evidence. From the foregoing illustrations, it is evident that a witness is one of the indispensable parts of the criminal justice system as his stand determines the very backbone of the decision of the case.

Historically, witnesses have been prevented from testifying through intimidation, inducement or threats to their lives or those close to them. These calls for the need to protect witnesses who may be facing such threats as the same could obliterate ends of justice in a trial. The Constitution of Kenya, 2010 provides for the protection of witnesses or vulnerable persons in a free and democratic society. Similarly, article 29 guarantees freedom and security of persons from physical or psychological harm. It is in accord to these provisions that witness protection has become a fundamental aspect of the modern legal system. As the name suggests, witness protection aims at protecting witnesses from threats by perpetrators on account of testifying against them in court.

As a rule, every citizen has a duty to testify whenever called upon to do so by the court. This is an essential element of civilized life. Hakam Cen Cetin affirms that not even a death can be a legal excuse to abstain from testifying. Further, the Supreme Court of the United States indicates in dictum that not even the fear of death can obviate this obligation. In Kenya several cases are thrown out of court due to lack of witnesses or witnesses simply becoming reluctant to appear before the courts to give their testimonies. A case in point is the prosecution of the murder of a former minister for foreign affairs, Dr. John Robert Ouko who was found dead in 1990 at Got Alila. This case has not been solved to date due to the demise of core witnesses. In fact there is doubt as to whether it will ever be solved because almost all crucial witnesses have died or vanished.

This case is similar to the ICC cases that faced President Uhuru Kenyatta, DP William Ruto and the former radio presenter Joshua Arap Sang’ where the charges against the alleged criminals were quashed due to lack of sufficient evidence. The prosecution could not prove its case beyond reasonable doubt as most crucial witnesses were reported to have died. As a result, Elizabeth Evenson stated that:

Sadly, this case will be remembered for an apparent campaign to corrupt witnesses. Many Kenyans had supported justice for crimes committed during the 2007-2008 Post Election Violence, but those hopes are likely to disintegrate now given the lack of action in Kenya and the seeming obstruction of the process in The Hague. “

The two alleged perpetrators of crimes against humanity were acquitted on 5 April 2016 on account that the prosecution had failed to show tangible evidence to require the defendants to occasion a case. A dissenting judge in a bench of three judges of the ICC pointed out what he termed as serious tainting of the trial process by way of witness interference and political intimidation of witnesses. The witnesses in these cases were either corrupt, threatened or were reluctant to work with the ICC’s prosecutor during the investigations.

Therefore, it is significant that a witness must depose without fear, force or pressure. It should be out of the witness free will and consent. Notably, the quality of the testimony given by a witness also determines the pace of a given case. Interfering with a witness has a fundamental impact on the outcome of a particular trial.

Different legal scholars have embraced the idea of witness protection in a proper and just judicial system. For instance, Karen Kramer points out that assistance and support measures should be employed before, during and after the trial to help witnesses in coping with the psychological and practical issues they may have in testifying. They may also be used in coordination with procedural protections and other security measures before, during and after trial. Procedural protections are those that may be used both to support a witness’ ability to testify as well as to enhance a safety of the witness before and during the trial. Therefore Witness Protection Programmes are considered a last resort providing more special protection measures, including those of the international relocation and identity change.

In modern times there has been renaissance in the recognition that victims and witnesses need protection, and there has been the rise of Witness Protection Programmes in many countries. The United States of America is believed to be the pioneer of the contemporary witness protection programmes. It developed witness protection programmes for purposes of safeguarding witnesses willing to testify against suspects of organized crime. Other countries like Colombia, Australia, Germany and Italy have consequently promulgated Witness Protection Act. International tribunals have also not been left behind in these developments. The International Criminal Court (ICC), the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Tribunal for Rwanda (ICTR) were created with elaborate witness protection provisions in their Statutes.

Domestic Legal Framework of Witness Protection

In Kenya witness protection is a fundamental aspect of human rights as enunciated in the Bill of Rights under the Constitution. There are different provisions of the Constitution that guarantee witness protection. Article 50(8) provides for the protection of witnesses or vulnerable persons in a free and democratic society. Specific sections of the Constitution that provide for protection include Article 29 which provides for freedom and security of persons from any physical or psychological harm, Article 50(7) which provides for the right to a fair hearing where the court may allow an intermediary to assist a complainant or an accused person to communicate with the court. Further, Article 48 guarantees the right to access to justice while Article 50(9) provides for the need for parliament to enact legislation to provide for the protection, rights and welfare of victims of offences. The two provisions read together puts an obligation on the government to protect witnesses in Kenya.

1.2.3 Statutory Underpinning

The statutory provisions governing witness protection in Kenya and the entire judicial system is enshrined in a number of Acts of Parliament. These include the Witness Protection Act, the Sexual Offences Act, the Children’s Act, the Criminal Procedure Code and the Prevention of Terrorism Act Number 30 of 2012.

The Witness Protection Act of 2006 was the first ever enacted legislative instrument whose main aim was to oversee protection of witnesses in Kenya. The Act was signed in 2006 but became operational in 2008. This Act was necessitated by the need to ensure successful investigation and prosecution of economic crimes, organized criminal gangs and cases arising out of ethnic clashes which were on the risk. The Act defines a witness as a person who needs protection from a threat or a risk which arises on account of him being a crucial witness. However, the Act has been criticized on several grounds some of which include its lack of autonomy from the central government by reason of its establishment under the Attorney General’ office and the nonexistence of institutional integrity. The Witness Protection (Amendment) Act of 2010 tries to cure some of these loopholes. The Act establishes an independent Witness Protection Programme under section 4.

The terms under which a particular is to be placed under the Witness Protection Programme are to be set out in a Memorandum of Understanding (MOU). The MOU is designed to contain the details of protection and assistance accorded including the obligations of the participant under the WPP; and the terms, surrender and issue of passports, the taking and retention of photographs by the participant, the provision of new identity to the participant, activities prohibited, social and domestic obligations, consequences of failure to abide to the MOU and termination of the programme for breach of the provisions of the MOU.

Sections 31 and 32 of the Sexual Offences Act No 3 of 2006 provide for the protection of vulnerable witnesses in sexual and gender based violence cases. Such cases are to be heard in camera. Section 31(11) of the Act prohibits anyone from publishing information which would expose identity of the witness.

Further, section 77(4) of the Children’s Act requires that cases involving children shall be held in the children’s court at distinct times from other cases and that no unauthorized persons shall be allowed in the court room. Section 75(5) of the Act also enunciates for the protection of the children by prohibiting the publication of the child’s identity, home or last place of residence or school in any proceeding. Subject to the provisions of this Act the Witness Protection Agency has designed a special protection application form (Form ‘C’) to cater for the needs of child witnesses.

Section 17 of the Prevention of Terrorism Act evinces that a person who does or omits to do any act against a person or a member of the family of a person in retaliation for the person having given information or evidence under the Act commits an offence and is liable on conviction to imprisonment for a term not exceeding twenty year. Further section 18 of the Act sanctions a person who inflicts fear on the other person for his safety or safety of anyone known to him on an account of the person doing anything that the person has a lawful right to do and to do anything that the person has a lawful right to abstain from doing under the Act.

Finally section 77(2) of the Criminal Procedure Code provides that cases relating to abduction, incest, rape and defilement shall proceed in camera. This protects the welfare of witnesses who may be vulnerable to exposure in such cases. In addition this section prohibits any person, in relation to that trial from publishing any particulars calculated to lead to the identification of the victim or any picture of the victim.

The principal objective of any witness protection programmes is to safeguard evidence which is under threat of being lost. The Witness Protection Programme has been defined to mean a formally established covert program, subject to strict admission criteria that provides for the relocation and change of identity of witnesses whose lives are threatened by a criminal group because of their cooperation with law enforcement authorities.

This paper majorly focuses on the Witness Protection Act which is the legal tool that guarantees protection of witnesses in Kenya. The Act has undergone amendments vide the Witness Protection (Amendment) Bill.This is because it fails to address some issues that raise eyebrows as to whether the Act is an adequate mechanism for protection of witnesses in Kenya. In addition to the gaps mentioned earlier, the 2006 Act lacks sustainability and structural integrity as well. The Amendment Act establishes Witness Protection Agency which is an independent corporate body with perpetual succession and a common seal, free from state control and external influences. Initially, Witness Protection Programme was under the control and direction of the Attorney General. This led to the rise of questions of autonomy of the programme which consequently compromised the whole process of witness protection especially where a witness was to testify in a case where high- ranked state officials were the subjects under investigation.

The key object and purpose of the Agency is provided in s 3B which is to provide the framework and procedures for giving special protection on behalf of the state to witnesses who are facing potential risks or intimidation due to their cooperation with prosecution and other law enforcement agencies.

Functions of the Witness Protection Agency

The functions of the agencies are stated in section 3C of the Act. They include to establish and to maintain a witness protection programme; to determine the criteria for admission to and removal from the witness protection programme; to determine the type of protection measures to be applied and to advise any Government Ministry, department, agency or any other person on the adoption of strategies and measures on witness protection.

The Powers of the Agency

The powers of the Agency are also highlighted under section 3D of the Act which include to control and supervise its staff in a manner and for such purposes as may be necessary for the promotion of the purpose and object for which the Agency is established among others.

Moreover, the Act confers a discretionary power to the director of the Agency over the inclusion and non inclusion of witnesses in the witness protection programme. The Act evinces that a person may only be admitted to the programme where the director has decided that such a witness be included and the witness agrees to join the programme. This means that the director is the sole decision maker with reference to inclusion and non inclusion of witnesses in the witness protection programme. The independence of the Agency is provided for under section 3G of part 1A which stipulates that the Agency shall have all the powers necessary for the performance of its functions without the interference from any authority. Further, it will report to the minister on the overall fulfillment of its objects and purpose and performance of its functions.

Challenges faced by the Witness Protection Agency

One of the principal problems faced by the Agency is the inadequate funding by the state. Any organization needs enough adequate funds to run its programmes such as implementing its objects; to employ well trained personnel as well to pay salaries to its employees. Some witnesses also need to be provided with an allowance for attending the court. They may include travelling allowances and accommodation allowances.

Another critical challenge is decentralization. The Agency has only one public affairs office which is located in Nairobi. The operations officers while visiting various parts of the country are forced to set up mobile offices. Witness protection service needs to be decentralized such that a witness residing in a marginalized area like Turkana does not have to travel all the way to Nairobi to seek protection. Other challenges include corruption, lack of public awareness, state control and the misunderstanding of the mandate of the Agency.

Achievements of the Agency

Despite the challenges discussed above, the Agency has shown some improvements in different areas of scope. The Agency for instance runs its own Finance vote (previously, the management of the programme including its fiscal affairs rested solely with the Attorney General’s Office and there has been mass awareness campaign using Television advertisement among others.

International Legal Instruments

By dint of article 2(5) and (6) of the Kenyan Constitution, the general rules of international law, treaties or conventions ratified by Kenya also form part of the Kenyan law. It is in this spirit that this article shall look at the provisions of some of the international instruments relevant to witness protection in Kenya.

The United Nations Convention against Transnational Organized Crime

This Convention was adopted by resolution number A/RES/55/25 of The United Nations General Assembly on 15th November 2000 and was ratified by Kenya on 16th June 2004. It envisages that States Parties are to take appropriate measures to provide effective protection from retaliation or intimidation for witnesses who give testimony in cases involving transnational organized crime. Such measures include physical protection, the relocation and non-disclosure or limitations on the disclosure of the identity and whereabouts of the witness and the introduction of the evidentiary rules to permit testimony to be given in a manner that ensures the witness’s safety. In addition, it proclaims that States Parties are to consider entering into agreements or arrangements with other states for the relocation of witnesses. The provisions of the article apply also to victims in so far as they are witnesses.

Rome Statute of the International Criminal Court

This statute was adopted on 7th July 1998 by the United Nations Diplomatic Conference of Plenipotentians on the Establishment of the ICC. It was ratified by Kenya on 15th March 2005 bringing the total number of states that are party to the statute to 98. The statute entered into force for Kenya on 1st June 2005. It establishes three core crimes: crimes of genocide, crimes against humanity, war crimes and the crime of aggression.

Article 68 of the statute requires the court to undertake appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses. In so doing, the court should take into consideration factors such as age, health, gender and the nature of the crime. It further requires the prosecutor to take protective measures particularly during the investigation and prosecution, a provision that cements Article 54(1) (b) that requires the prosecutor to respect the interests and personal circumstances of victims and witnesses for effective investigation and prosecution of crimes. Article 68 was intended to apply exclusively to victims and witnesses and proposals to include protective measures for accused persons under this article were rejected.

Article 43(6) of the statute provides for the establishment of a Victims and Witnesses Unit within the Registry by the Registrar. This unit in consultation with the office of the Prosecutor is required to provide protective measures and security arrangements, counseling and other appropriate assistance for witnesses and victims who appear before the court and others who are at risk on account of testimony given by such witnesses. The establishment of this unit under Registry and not the Prosecutor’s office ensures that the assistance is given to both prosecution and defence witnesses alike and therefore no conflict of interest between the goals of the prosecution and the needs of the witnesses.

The International Covenant for Civil and People’s Rights

The ICCPR refers to “respect for the inherent dignity of human persons.” It stipulates that no one shall be subjected to arbitrary or unlawful interference with his privacy, family or correspondence, or to unlawful attacks on his honour or reputation. Article 9(1) of the ICCPR further provides for a right to security of persons which the UN Human Rights Committee (HRC) has interpreted to include a right to protection.

Notably, witness protection is at the heart of all international human rights law instruments. In addition, Article 3 of the Universal Declaration of Human Rights (UNDHR) stipulates that everyone has the right to life, liberty and security of persons. Similarly, the United Nations Convention against Corruption is also explicit when it states that States Parties shall take suitable measures in accordance with their domestic legal system and within their means to provide effective protection from potential retaliation or intimidation for witnesses and experts who give testimony concerning offences covered by the convention (money laundering, bribery of public officials, embezzlement or misappropriation by public officials, abuse of functions, illicit enrichment e.t.c) and their relatives and other persons close to them.

Conclusion

Witnesses are very vital to the process of administration of Justice. The fact that the law requires witnesses to take oath before rendering evidence, demonstrates how vital their testimonies are. The court heavily relies on these personal statements in making a determination. For this reason, it is important that the witnesses are well protected so as to have authentic information presented before the courts. Some cases such as murder, gang crimes and robbery with violence have got heavy penalties and the accused persons may opt to use crude means to escape justice or to delay court processes. It is imperative that the Justice System and courts have well structured and working schemes of witness protection.

Unfortunately, even with the existence of laws governing witness protection in Kenya, Witnesses are still at risk of having their evidence altered through treats or even being murdered by the accused or related gangs and family. The structures are yet to take shape and a result witnesses are still at risk. Enforcement mechanisms should be put in place to ensure that witnesses do not shy away from the court processes because they are in fear of their lives. Kenya should borrow from countries such as Australia which have elaborate witness protection schemes.