Witness protection key to ICC probe

By Alex Ndegwa

Two years ago the International Criminal Tribunal for the former Yugoslavia (ICTY) in The Hague acquitted a former commander of the rebel Kosovo Liberation Army Ramush Haradinaj of charges of war crimes.

Haradinaj, who also briefly served as Prime Minister of Kosovo in 2005, was cleared of persecuting Serbs during the two-year guerrilla war for independence.

The ICTY judges ruled the prosecution had failed to prove a deliberate campaign targeting civilians.

Although they observed Haradinaj had killed and tortured, the trial judges said there was insufficient evidence to indict him, citing widespread fear among witnesses. The full version of events had not been told, they argued.

Back home, before the International Criminal Court (ICC) sanctioned a probe into post-election violence suspects, there were reports of potential witnesses and human rights activists helping them being harassed or intimidated.

The threats could intensify as ICC Chief Prosecutor Luis Moreno-Ocampo launches full-scale investigations.

Attorney General Amos Wako told Parliament 3,600 post-election violence cases are unresolved because prosecution is hampered by intimidation of witnesses, calling for a credible witness protection programme.

It is against this background that Parliament’s approval of the Witness Protection (Amendment) Bill 2010, putting in place bolder measures to protect witnesses in criminal trials, should be lauded.

From the onset it must be emphasised that to entirely tie the legislation to the impeding ICC trials is to miss the point.

Heinous crimes

It is not by coincidence that witnesses often turn hostile in cases involving heinous crimes or high profile personalities due to external pressures.

It is an open secret that wealthy and influential individuals who are virtually untouchable were behind the crimes. This fact makes it a futile attempt to nail the suspects without a credible witness protection programme.

The Witness Protection Act 2006 was too feeble. Implementation exposed its inherent shortcomings. Thus the importance of credible witnesses to the effectiveness of the criminal justice system and tacking impunity cannot be gainsaid.

Under the new changes, an independent Witness Protection Agency to replace the AG in, among others, formulation of a framework and procedures for giving special protection on behalf of the State to witnesses will be established. The agency shall be an independent outfit complete with own control of funds, assets and staff to ensure it discharges mandate in secrecy.

To accord special protection, the agency, which shall run a witness protection programme, will have power to acquire, store, maintain and control firearms and ammunition.

Armed protection

Key witnesses will enjoy physical and armed protection, relocation and change of identity to keep them away from individuals who may target them for elimination or intimidation.

In the protection of witnesses, the agency may enter into confidential arrangements with other countries, ICC, regional or other international entities like the UN, to relocate witnesses.

Also to be established is a Witness Protection Tribunal, which shall review and determine grievances by people not satisfied with decisions of the agency on matters of admission, and termination of witnesses to the protection programme.

The agency would also compensate for death or a crime committed against a witness. A kitty to that effect (Victims Compensation Fund) would be established.