By Peter Mwangi
The Building Bridges Initiative Report proposes insightful and detailed recommendations under the Safety and Security pillar among others.
However, one of the solutions recommended to facilitate court procedures that guarantee the protection of informants, whistle-blowers and witnesses is to “create rules in courts that allow for the presentation of confidential testimony from whistle-blowers, informants and witnesses, particularly in regard to terrorism, serious transnational crimes and corruption.” It gives the impression that there are no such rules in place to enable courts address the safety and security challenges posed by serious criminality. That is incorrect, but before getting there, let’s differentiate the three actors at issue.
There is no statutory interpretation of “informant”, but in both investigative and intelligence gathering parlance, an informant is a source of information which is rendered free, or on payment. Mostly, sources are confidential and they would rather not be identified as whistle-blowers or witnesses, especially in criminal investigations, or prosecution of such cases in judicial proceedings.
Currently, there are two interpretations of a whistle-blower – one under the Bribery Act, 2016 and the other under the proposed Whistle-blower Protection Bill, 2017.
Under Section 2 of the Bribery Act, a whistle-blower means “a person who makes a report to the Commission (EACC), or the law enforcement agencies on acts of bribery, or other forms of bribery”. In a more elaborate interpretation under Section 2 of the Whistle-blower Protection Bill, a whistle-blower means “any person who has personal knowledge or access to any data, information, fact or event constituting improper conduct and makes a disclosure of that information in accordance with the (Act), or person who assists such an individual”. Unfortunately, this definition is still moot since the Bill is yet to be enacted.
Under Section 2 of the Witness Protection Act (Revised 2016), a witness means “a person who has made a statement or has given or agreed to give evidence in relation to an offence, or criminal proceedings in Kenya or outside Kenya, and requires protection on the basis of an existing threat or risk”. It is important to underscore the fact that a whistle-blower could, willingly, turn out to be a witness in a criminal investigation and eventual case prosecution in judicial proceedings. However, very rarely would an informant, or an informer become a whistle-blower, or a witness, but in the event that happens, they should henceforth be categorized accordingly and afforded right of protection under the respective statute(s). As a result, anyone testifying in judicial proceedings is invariably identified and recorded as a witness, thus courts are blind to any other terminology.
Rules of Court, which provide for what is variably referred to as procedural, or in-court protection measures, are about witnesses and their testimonies, as presented by prosecution and defence parties who constitute, together with trial court, the triangulation of criminal justice system. The rules complement the provisions of the Criminal Procedure Code in the administration of justice, specifically to ensure witnesses who are threatened or intimated, or likely to suffer other forms reprisal, testify freely and without any fear or worry. Consequently, under Section 36(2) of the Witness Protection Act, the Chief Justice is empowered to make such rules of court as may be necessary or expedient for carrying out or giving effect to the Act in judicial proceedings.
Between 2014 and 2015, ‘The Witness Protection Rules’ were developed, validated, and eventually adopted by the National Council on Administration of Justice, chaired by Dr Willy Mutunga, then Chief Justice. He ratified them for implementation in October 2015. The rules set out a procedural protection framework of witnesses, essentially under the Witness Protection Programme, by providing a comprehensive component of protection measures to ensure safety, physical and psychological well-being, dignity and privacy of witnesses while testifying in court. The measures include: in-camera hearing, use of pseudonyms, redaction of identifying information, use of audio-video links, voice distortion, testifying through an intermediary, testifying behind a screen to obscure identity, expediting testimony of a protected witness to meet the ends of justice and assigning a separate waiting room for protected witnesses. The rules are based on international best practice and the first to inform criminal justice in Africa.
Yes, there is an elaborate rules of court framework to cater for any exigencies demanding procedural protection in judicial proceedings, save for wanting physical infrastructure in court rooms to support it. The framework protects the rights of the accused too. In the circumstances, there is absolutely no need to create another framework.
Regrettably, four years later, there is widespread ignorance of the framework by majority of key players along the administration of criminal justice chain – no wonder the unnecessary recommendation in the Report! Ideally, every crime investigator, prosecution counsel, defence counsel, magistrate and judge is duty bound to be knowledgeable in the framework, to ensure expeditious, judicious administration and dispensation of justice. Indeed, the framework should form part of curricula in law enforcement, anti-corruption, public prosecution, law and judicial training institutions, to entrench understanding of witness protection as a fundamental right as enshrined in our Constitution.
Besides, the pending Whistle-blower Protection Bill should be enacted to provide a legal framework for non-procedural protection measures such as those executed by the Witness Protection Agency.
Finally, let’s keenly and objectively interrogate the commendable Report to reinforce justification for its implementation. (
— Writer is a law enforcement & security management consultant, and lead partner, Edge Trainers & Consultants