By Calvine Oredi
A State’s ability to protect victims and witnesses is a fundamental issue for effective investigation and prosecution of crime. It is particularly salient in the context of prosecutions of organised criminal, gang and terrorist groups, who have the means and the motivation to intimidate and harm potential witnesses in order to prevent them from cooperating with law enforcement and judicial authorities. The protection of victims and witnesses is important too, in regard to prosecutions of serious violations of human rights and international humanitarian law.
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 protect the safety and welfare of crucial witnesses and related persons who are threatened, or at risk. Various measures and methods are applied to ensure safety and security of intimidated and threatened witnesses that are required by law, or on their own accord to testify in a court of law or tribunal.
Owing to the specialised nature of witness protection operations, which include operational autonomy, covert capability, confidentiality and accountability, there has been compelling need to amend the Witness Protection Act yet again. This was to specifically conform to the provisions of the Constitution of Kenya, other legal instruments and emerging best practices in witness protection. It is in this regard that the Witness Protection Advisory Board and the Cabinet Witness Protection (Amendment) Bill, 2016, approved for debate in the National Assembly. The amended Act was finally assented to by the President.
Key among the amendments is widening of the circumstances to be considered when assessing a witness for inclusion in the Witness Protection Programme (WPP). To realise this, Section 6 of the Witness Protection Act was amended to include two additions – the ability of a witness to adapt to the protection programme and witnesses in prosecution cases of public interest. Examples include terrorism, and sexual and gender based violence, especially for minors. Previously, for one to be admitted into the programme, the seriousness of the offence and importance of available evidence were considered. This was in addition to the nature of perceived danger to the witness.
The amendments also included Section 22 of the Act, which widened the list of persons to whom disclosures or communication of information relating to entries under the Act in a register of births, deaths or marriages are specifically permitted. It is an offence to violate this provision, failure to which one is guilty of an offence and liable on conviction to a fine not exceeding Sh500,000 or imprisonment for a term not exceeding 3 years, or both.
Key among the amendments is the duration a witness is supposed to be sustained in the protection programme. Previously, this could was not legally supported, causing some witnesses preferring to stay longer in the programme because of the perceived benefits. Section 5 of the Act has been amended to make clear provisions on how long a person can stay in the protection programme.
A crucial aspect of the amendments is the provision of reciprocal protection arrangements between Kenya and foreign countries, which previously did not exist. The Witness Protection Agency may now, in consultation with the Attorney General, on the basis of any treaty or convention ratified by Kenya, enter into an agreement with a competent authority from a foreign country to admit witnesses from foreign countries into the Kenya Witness Protection Programme on a reciprocal basis.
The Act now provides the procedure through which a foreign country, International Court, or tribunal, to which Kenya is a party or has an agreement, can request for admission of witnesses into Kenya’s witness protection programme and vice versa.
Previously, there have been many reported cases of intimidation, threats and harassment of witnesses. The Act has now been amended and seeks to prohibit intimidation, harassment, obstruction and threats hindering or preventing a witness in any way with intention to subvert the course of justice. Intimidation of witnesses is now a criminal offence punishable by seven years imprisonment.
It is extremely important that witnesses and the general public 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. The Witness Protection (Amendment) Act 2016 therefore seeks to entrench the important role that a protected witness plays in the overall criminal justice chain. The bottom line is enhancing access to justice and promoting the rule of law.^
Writer is Principal PR Officer, Witness Protection Agency
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