a) Overview of Witness Protection
Witness protection, as a function, simply refers to a range of measures and operational methods applied to ensure the safety and security of intimidated and threatened witnesses that are required either by law, or on their own accord to testify in a court of law, tribunal or other judicial proceedings.
Generally, witness protection is done through good investigative, prosecutorial, judicial procedures and ultimately Witness Protection measures undertaken by the Agency, either before, during or after testimony.
The purpose of the Witness Protection Programme (WPP) is, therefore, to accord witnesses and related protected persons an opportunity to participate in bringing to justice perpetrators of crime by delivering their evidence to law enforcement agencies, or testifying in judicial proceedings, or before a competent authority without fear of intimidation, or harm to themselves, or to members of their family, or house hold. To that extent, the Programme plays a significant role in enhancing effective and efficient criminal justice system.
The implementation of the Programme is covert in nature and thrives on strict confidentiality undertaken through well designed standard operating procedures that are based on internationally accepted good practices on witness protection.
b) The Kenya’s Witness Protection Programme
Under Section 4(a) of the Witness Protection Act, the Agency is mandated to set up a Witness Protection Programme whose objective is to protect threatened, vulnerable and intimidated witnesses and family members from harm because of co-operating with the law enforcement agencies.
The purpose of the Witness Protection Program is to accord all persons that can give evidence in regard to a crime that was committed the opportunity to participate in the bringing to justice of the perpetrators by testifying and delivering their evidence to the police, in court or before a competent authority without fear of intimidation or harm to themselves or to members of their family or household.
This is attained by providing basic, procedural or non-procedural judicial or special protection measures that ensure psychological and physical protection. The Agency is mandated to employ the following protection measures depending on the circumstances of each case, the danger and threat involved among other considerations:
- Physical and armed protection
- Change of identity
- In – camera hearings
- Use of pseudonyms
- Redaction of identifying information
- Video-link testimony
- Distortion and obscuring the identity of the Witness
The Witness Protection Program is the last resort in a range of measures to ensure the protection of witnesses and related persons.
c) Constitutional and Legal instruments
Witness Protection is a fundamental constitutional right to any witness who has been threatened for cooperating with the law enforcement Agencies. The Constitution of Kenya has adequately covered the issues of witnesses under Chapter Four on the Bill of Rights.
Specific sections of the Constitution that provides for the right to protection include:-
Article 29 which provides for freedom and security of person, which right is not to be subjected to any form of physical or psychological harm.
Article 48 guarantees the right of Access to Justice.
Article 50 (7) the right to a fair hearing. The court allows an intermediary to assist the complainant or an accused person to communicate with the court.
Article 50 (8) provides for the right to protection of witnesses or vulnerable persons.
Article 50 (9) has provided for the need to have legislation to provide for protection, rights and welfare of victims of offences.
Under Article 50 (8) as read together with Article 48, Government is obligated to protect witnesses in Kenya. While witnesses have a right to be protected, it is subject to certain established criteria and procedures. Under the Witness Protection Act, there is an application procedure, and the decision to be admitted into or excluded from the protection programme is made by the Director of Witness Protection Agency.
Other legal instruments that provide for the Protection of Witnesses
Beside the Constitution, there are laws that provide for Protection of Witnesses and Victim Support. These include:-
i) The Witness Protection Act CAP 79 LOK
Section 4 of the Witness Protection Act which obligates the Agency to establish and maintain a protection programme and further provides for protection measures to be applied by the Agency. Sections 13 to 29 of the Witness Protection Act provide for the protection of the identity of the witness.
Such protection is found in the following instances:
- Obtaining a new identity for the witness including such identity being placed in the proper registries of birth, marriage(section 13)
- Restoration of former identity (section 20)
- Information of a participants’ identity not to be disclosed (section 22)
- Non-disclosure of former identity (section 23)
- Identity of participant not to be disclosed in legal proceedings (section 24)
ii) Sexual Offences Act
Section 31 and Section 32 of the Sexual offences Act provides for the protection of vulnerable witnesses in sexual and Gender based violence cases. Cases are to be heard in-cameras.Section 31 (11) of the Sexual Offences Act makes it an offence for anyone including a juristic person publishing information contrary to this section or direction of the court information that would reveal the identity of a witness.
iii) The Criminal Procedure Code
Section 77 (2) of the CPC provides for camera hearings in cases related to incest, abduction, rape and defilement shall be held in private and the proceedings should not be publicized.
iv) The Children’s Act
Section 77 (4) of the Children’s Act requires that cases involving children shall be held in children’s court at different times from other cases and that no unauthorized persons shall be allowed in the court room.
Section 75 (5) of the Children’s Act provides for the protection of the children by prohibiting the publication of the child’s identity home or last place of residence or School in any proceedings.
v) The Prevention of Terrorism Act
Sections 17 and 18 of the prevention of Terrorism Act provides for the protection of Witnesses from retaliation and intimidation by making such Acts criminal offences. In particular Section 19 prohibits anyone from disclosing any information regarding the conduct of investigations by a police officer.
d) Application and Admission
Admission into the Witness Protection Programme is open to a person who meets the criteria of admission into the programme as set out in Section Sec 3 (1) (2) Act. A witness or person related to the witness who has reason to believe that his/her safety is or may be under threat by reason of being a witness or being related to a witness is eligible to request for protection from the Witness Protection Agency.
This may be due to the fact that:
- He/she has agreed to give evidence on behalf of the State
- He/she has reported a crime to the Police or any law enforcement agency
- He/she is required to give evidence before a court, commission or tribunal outside Kenya
- He/she is related to a witness who requires protection
- He/she requires protection for any other reason under the Act
As a witness, a person qualifies for protection:
- On account of his/her testimony
- If there is a threat or risk to his/her life because he/she is a key witness in a given case
Application for admission into the programme may be made by the following persons if they have reason that the safety of a witness or related person may be threatened:
- Any witness and/or related person
- An intermediary
- Legal representative
- Parent or legal guardian
- Public prosecutor
- Law enforcement agency
Any of the persons to whom a report has been made that a witness life is in danger shall immediately investigate the claims and if found credible should assist the person with his/her application and submit the application to a Witness Protection Officer. The following forms are filled depending on the nature of the applicant:
e) Legislative Enactments
The Agency in collaboration with Kenya Law Reform Commission proposed amendments to the Witness Protection Act in order to conform with the Constitution and other upcoming laws.
1. The Witness Protection (Amendment) Bill 2015.
The Witness Protection Act No. 16 of 2006 has been in existence since it was enacted in 2006.It was however realized that some sections of the Act are not in conformity with the current Constitution which was passed in 2010. This necessitated the amendment of the Act so that it is aligned with the Constitution.
For effective re-alignment of the Act, the Agency, working closely with the Kenya Law Reform Commission, came up with the amended Witness Protection (Amendment Bill) 2015 which has to be subjected to stakeholders to interrogate and give further input on the same.
The Bill underwent stakeholder consultation, critique and input to reflect emerging issues. A Cabinet Memo was prepared and submitted to the Attorney General for transmission to the Cabinet for approval. The Bill is currently in the National Assembly awaiting Parliamentary input before presidential assent to make it law.
2. Witness Protection Rules 2015
On 7th February 2012, the Chief Justice tasked the Witness Protection Agency, in its capacity of mainstreaming witness protection in the country, to draw up requisite draft Rules of Court as envisaged in Section 36 of Witness Protection Act, for his consideration. The Agency, working closely with a Consultant, drafted the Rules of Court which were formally presented before the National Council on Administration of Justice (NCAJ) on 15th July 2014 and members were requested to peruse and give feedback on the same.
In recognition of the centrality of witness protection in enhanced administration of justice, the Witness Protection Agency, The Judiciary and the International Commission of Jurists (Kenya) held a validation workshop on the draft Rules of Court in 2014. The Rules were subjected to stakeholder critique and input. The Rules were gazetted vide Legal Notice No. 225 of 2015 by the Hon. Chief Justice on 30th October 2015 and become operational on 30th November 2015.
The Witness Protections Rules, 2015, have been disseminated to some of the key stakeholders and interested parties to guide them in trials on judicial witness protection measures and procedures.