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Witnesses should be given state protection

COMMENTARY
By Demas Kiprono | February 5th 2021

Over the past decade and a half, and especially after the passage of the 2010 Constitution, there has been a deliberate move to reform the criminal justice system. The aim is not only to enhance access to justice, but also to cater for victims and witnesses within the criminal justice system.

Legislatively, we now have laws dealing with the prevention of torture, legal aid for the indigent, victims protection, children, sexual offences, human trafficking and witness protection. The Constitution also recognises the rights of victims and witnesses in Article 50, which largely deals with the rights and entitlements of an accused person in a fair hearing in Kenya and also goes out of its way in Part 9 to require Parliament to ensure that laws are enacted to cater for the interests of victims.

It is noteworthy that all over the world, courts rely heavily on the evidence given by witnesses, who are often victims of the crime for the effective dispensation of justice. Witnesses and victims have often been described as the eyes and ears of justice without which the criminal justice system is blind, deaf and essentially incapacitated.

Be that as it may, they face unique challenges whenever they have information that can lead to the trial and conviction of an influential person in society. This power imbalance often takes place when a suspect is a person in a position of authority such as a politician, senior government official or police officer; or when the accused persons are part of a criminal network or syndicate or a criminal organisation like the mafia.

According to the United Nations Agency on Drugs and Crime (UNODC), “the reason for specific procedures for witness protection is to permit a witness to give testimony in a judicial setting, or to cooperate with law enforcement investigations, without fear or threat of intimidation or reprisal”. They add that “such protection is essential to maintaining the rule of law”.

Kenya set up its witness protection framework by enacting the Witness Protection Act in 2008 which set up the Witness Protection Agency (WPA) mandated to provide special protection to threatened or intimidated witnesses to ensure their security and welfare is guaranteed when testifying in court.

The WPA has very broad powers including resettlement of the witnesses under new identities in undisclosed places of residence, if in their considered opinion, relocation is the viable alternative to ensure safety of witnesses.

The statute defines a witness as any person willing to give important evidence on behalf of the State before any court of law, tribunal, or law enforcement agency. This includes persons willing to testify in relation to commission or possible commission of an offence; one who has made a statement to the police or any law enforcement entity; or one who is required to give evidence in a prosecution or inquiry held before a court, commission, or tribunal outside Kenya that Kenya is party to such as the ICC.

However, other players in the criminal justice system such as social justice centres and NGOs working on extrajudicial killings have observed that usually, by the time the Agency establishes contact with certain vulnerable witnesses, it may be too late due to the nature of threat.

Investigatory agencies

This is because the Act contemplates involvement in cases that have been formally investigated by the police and other law enforcement agencies, and have found their way into the court trial process; when a person has been identified as a witness by ODPP which, in turn, has determined that the person needs protection; or, when an investigator who is seized with a file, sees it fit that a witness should be protected.

The problem is, in cases dealing with serious crimes that involve the police or State officers, a witness may need protection from the moment of reporting, discovery or whistleblowing. There is a need to empower oversight and investigatory agencies such as IPOA, KNCHR, EACC who interact with witnesses at early stages to directly recommend protection for them if they see fit. There needs to be a better way of identifying witnesses and protecting them in a non-bureaucratic manner.

The Witness Protection Act is a good and comprehensive law that has had many successes only known to a few. Understandably, their successes are not known to many because of the secretive nature of witness protection.

Mr. Kiprono is Constitutional and Human Rights [email protected]

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