Criminal justice system is that much better on account of witness protection

By Alice Ondieki

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

In view of the critical role of witness protection, the Witness Protection Act, 2006 (as amended by Act No.2 of 2010) established the Witness Protection Agency and outlined its mandate, powers and the protection measures available to threatened and intimidated witnesses in the protection programme. Its object and purpose was to provide special protection, on behalf of the State, to persons in possession of important information and who are facing potential risk or intimidation due to their co-operation with prosecution and other law enforcement agencies.

It’s worth noting that Kenya is the only African country apart from South Africa to have a robust and functional witness protection legislation and protection programme. Since the enactment of the Witness Protection Act, great strides have been made in the criminal justice system in regard to the contribution of witness protection. More and more witnesses have had courage to come out and give testimony in serious crimes such as murder, terrorism and economic crimes among others.

In all criminal justice systems, the process of investigating and prosecuting criminal offences depends largely on the information and testimony of witnesses. As such, witness protection measures and programmes have been developed over time to ensure that evidence is preserved and heard during court proceedings.

Owing to the specialised nature of witness protection operations which include operational autonomy, covert capability, confidentiality and accountability, there was 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 (Amendment) Bill, 2016 was approved by both the Witness Protection Advisory Board, scrutinised and passed by the National Assembly before finally being accented to into law by the President.

A crucial aspect of the amendments was 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 a written 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 amendment further outlines 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.

The stable entrenchment of witness protection over time to judicial processes has further instilled faith in the criminal justice system in Kenya. For instance, applications for witness protection rose from an initial 60 in 2009 when the Witness Protection Programme (WPP) kicked off, to over 800 in 2017. Since inception, the Agency has admitted over 300 witnesses and 1100 dependants into the witness protection programme. Of the admitted witnesses, over 200 have successfully testified.

Previously, serious criminal cases dragged in courts for long and sometimes ended in acquittals due to lack of testimony from potential witnesses who feared for their lives. For instance, in 2017 over 18 cases involving witnesses who are protected were concluded and judgment delivered compared to 12 in 2016. The convictions ranged from death sentence, life imprisonment to a number of years in prison representing an 82% conviction rate.

The effective witness protection mechanism that currently exists has propelled witness testimony and led to higher conviction rates. This has also created an amiable environment for threatened or intimidated witnesses to come out boldly and testify unlike before because of the unfailing trust in the justice system.^

Writer is Director, Witness Protection Agency