New era in witness protection

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Witness protection is recognised as a fundamental human right, by various instruments of both national and international law in the administration of justice. Article 50 of the Constitution, under the Bill of Rights, not only provides for the protection of identity of witnesses and vulnerable persons in the interests of fair hearing before a court or tribunal, but also for enactment of legislation providing for the protection, rights and welfare of victims of offences.

The much anticipated Witness Protection Rules have been finally gazetted, creating a much more conducive and secure environment for witnesses to testify. The Chief Justice and President of the Supreme Court Willy Mutunga gazetted the Witness Protection Rules 2015 via Legal Notice No. 225 of 2015 on October 30, 2015. The rules became operational on November 30, 2015, thirty days after publication in the Kenya Gazette as stipulated in law.

The Chief Justice had tasked the Witness Protection Agency (WPA), in its capacity of mainstreaming witness protection in the country, to draw up requisite draft rules of court as envisaged under Section 36 (2) of the Witness Protection Act for his consideration. The agency, working closely with a consultant, drafted the Witness Protection Rules of Court which were formally presented before the National Council on Administration of Justice (NCAJ) in July 2014, where members perused and give feedback on the same.

A validation workshop organised by the Judiciary, WPA and the International Commission of Jurists (Kenya) was held on October 24, 2014 to interrogate the draft rules. Various stakeholders in the justice sector gave in-depth critiques of the rules in a bid to make them all inclusive and acceptable. The final gazettement of the rules by the Chief Justice marks an important milestone in ensuring that witnesses who are protected do not feel insecure when giving their testimonies in court.

The Witness Protection Act, Cap. 79 Laws of Kenya, provides for the protection of witnesses in criminal and other proceedings, and establishes a Witness Protection Programme to specifically protect the safety and welfare of crucial witnesses and related persons who are threatened or at risk.

For instance, Section 4 of the Witness Protection Rules, 2015, empowers Courts to take appropriate measures to protect the safety, physical and psychological well-being of a witness. In doing so, relevant issues such as age, gender, health and nature of the crime are looked into. The Court is now mandated to give protection orders by taking into account all the circumstances of a case, eligibility criteria and whether the protection order in question is likely to inhibit the evidence being effectively tested by any party to the proceedings or contrary to the interest of justice.

Witnesses are considered to be vital pillars in any successful criminal justice system. Any credible investigation or prosecution is mainly dependent on the quality of evidence adduced by witnesses to the crime, or about the crime. Witnesses need to always have unfailing trust in the criminal justice system if they are to volunteer in assisting law enforcement agencies in the investigation, prosecution and, ultimately, determination of cases. Witness protection can ensure such trust by enhancing access to justice by witnesses at risk without fear of reprisals, thus promoting the rule of law.

Protection of witnesses therefore entails judicial protection measures which regulate proceedings where protected witnesses are concerned. Section 5 of the Witness Protection Rules spells out appropriate measures to facilitate the testimony of a protected witness. For instance, Section 5 (a) stipulates measures to prevent disclosure to the public or media of the identity or whereabouts of a witness. They include expunging identifying information from the Court’s public records, redaction of statements, voice distortion, closed sessions and use of pseudonyms by the witness.

A major improvement in the rules is allowing evidence in the physical absence of witnesses who are protected. The Courts will now have jurisdiction to admit witness evidence using audio-visual technology such as video conferencing and closed circuit television. This is in addition to video recording evidence-in-chief and interviews, and using sound media or live link. Any measure allowed by the Court for the protection of a witness is expected not to prejudice the rights of an accused person to fair trial.

The court infrastructure in the country has previously been a major concern to the safety and protection of witnesses in the court proceedings. Section 5 (3) of the Witness Protection Rules now require the Registrar to make available facilities and equipment that protects witnesses. Future refurbishment of courts and construction of new ones will therefore be required to factor in Section 5 (3) of the Rules.

The Rules have also taken into account rights of children who are witnesses. Section 5 (9) outlaws any other person apart from a parent guardian or a person in loco parentis to be present during court proceedings. Applications made under this section shall be heard in camera.

The gazetted Witness Protection Rules will hence provide clearly set out rules of court on evidence and procedure to be observed by all parties to judicial proceedings. The bottom-line will be to ensure that witnesses and victims of offences not only testify in an environment that secures their rights to fair hearing, but also ensure that justice is done.

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