Good practices in witness protection

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By Calvine Oredi

The ability to protect witnesses and victims of offences in judicial proceedings is critical to ensure effective investigation and prosecution of serious crimes. It is particularly salient in the context of prosecutions of organised criminal gangs and terrorist groups, who have the means and the motivation to intimidate and harm potential witnesses to prevent them from cooperating with law enforcement and judicial authorities.

Protection of victims and witnesses is of importance also in regard to prosecution of serious violations of human rights and of international humanitarian law.

Investigating and prosecuting serious and organised crimes requires that law enforcement and judicial authorities are able to obtain information, and to have witnesses willing to provide evidence that is factual and truthful. Potential witnesses are less likely to cooperate with authorities when the state has inadequate capacity to undertake proper risk assessments and to provide protection measures. Needless to say, any credible investigation or prosecution is mainly dependent on the quality of evidence adduced by witnesses to the crime, or about the crime.

It is important, therefore, that witnesses 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.

Various instruments of both international and national law in the administration of justice now recognise witness protection as a fundamental human right. Article 50 (8) and  50 (9) of the Constitution of Kenya, 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 Witness Protection Agency, through the Witness Protection Act, Cap. 79 Laws of Kenya, is mandated to provide protection to witnesses in criminal and other proceedings. The Agency has an established Witness Protection Programme which specifically protects the safety and welfare of crucial witnesses and related persons who are threatened or at risk.

In essence, witness protection embodies a range of measures and methods applied to ensure safety and security of intimidated and threatened witnesses who are required by law to testify in a court of law or tribunal.

The kind of protective measures required in a given case depend to a large degree on the type of witness (victim, vulnerable witness, justice collaborator, etc.), the type of crime and the level of threat. They will also depend on the environment and resources available.

Good practices for the protection victims and witnesses is a complex area, requiring a legal basis or policy, and the action and coordination of a variety of actors such as the police, investigators, prosecutors, judges and prison officials. Furthermore, there is often a lack of awareness of the concept of “whistle-blower protection” and a tendency to equate whistle-blower protection with witness protection. A whistle blower is necessarily a witness.

Witness protection encompasses operational and judicial protection measures. Judicial protection measures regulate proceedings where protected witnesses are concerned.

Section 36(2) of the Act empowers the Chief Justice to make rules of court as may be necessary for giving effect to the Act. For effective implementation of the Act, the Chief Justice gazetted the Rules of Court which clearly set out rules on evidence and procedure to be observed by all parties to judicial proceedings. The bottom line was 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.

It’s also worth noting that protecting victims and witnesses requires regional and international cooperation. Police protection, procedural protections, victim assistance, witness protection and whistle-blower protection programmes all serve different purposes and involve different resources, expertise and risks. Failure to understand their differences can imperil the success and justification of each programme, as well as to put people at risk of harm.

Writer is Principal PR Officer, Witness Protection Agency

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