The Witness Protection Agency is an independent body that protects witnesses in Kenya. It was established under the Witness Protection Act (Cap 79 Laws of Kenya) which came into operation on 1st September, 2008 vide Legal Notice No. 110/2008 dated 19th August, 2008 and amended by the Witness Protection (Amendment) Act No. 2 of 2010. The Agency is headed by a director and performs all its functions independently, without interference from any authority.
The Witness Protection Agency provides special protection – on behalf of the state – to persons who have important information and are facing potential/real risk or intimidation due to their cooperation with the prosecution, the police and other law enforcement agencies.
The functions of the Agency in terms of Section 3C of the Witness Protection Act are to :-
a) Establish and maintain a witness protection programme;
b) Determine the criteria for admission to and removal from the witness protection programme;
c) Determine the type of protection measures to be applied;
d) Advise a government ministry, department, agency or any other person on adoption of strategies and measures on witness protection; and
e) Perform such functions as may be necessary for the better carrying out of the purpose of this act.
A person qualifies to be protected based on their testimony or if they are related to a witness who requires protection. Protection is only offered to witnesses who need protection from a threat or risk, which exists on account of his or her being a crucial witness.
One qualifies for protection if:
a) Has given or agreed to give evidence on behalf of the State
b) Has made a statement to the Police or any law enforcement agency in relation to an offence against a law in Kenya
c) Is required to give evidence before a court, commission or tribunal outside Kenya, or
d) For any other reason may require protection under the Act
The witnesses are protected by the Witness Protection Agency under a special Witness Protection Programme (WPP) managed by the Agency.
The Witness Protection Agency manages a Witness Protection Programme that takes necessary and reasonable actions to protect the safety and welfare of protected persons. This is done through various means including:
a) Physical and armed protection
b) Relocation; change of identity, or
c) Any other measure necessary to ensure the safety of a protected person.
Protection can also be done during court proceedings through:
a) Holding in “camera” or closed sessions
b) Use of pseudonyms
c) Redaction of identifying information
d) Use of video link, or
e) Employing measures to obscure or distort the identity of the witness.
The Witness Protection Agency decides on the criteria for admission into and removal from the programme and the type of protection measures.
• The Witness Protection Advisory Board oversees the work of the Agency and is chaired by the Attorney General. The Board was inaugurated on 12th August 2011 after its establishment under Section 3P of the Witness Protection Act. The principal function of the Board is to advise the Agency generally on the exercise of its powers and the performance of its functions under the Act.
• In addition, the Appeals Tribunal reviews the decisions of the Agency where clients are dissatisfied. The President, on the recommendation of the Attorney General, appoints the Chairman of the Tribunal.
The Director of the Agency will determine the admission of an applicant into the programme and the type of protection to be accorded to the admitted witness. The admission will be guided by the set procedure and criteria. The applicant will be required to fill the necessary application forms.
Application for admission into the witness protection programme may be made by the following persons if they have reason to believe that the safety of a witness or related person may be threatened:
a) Any witness and or related person
b) An intermediary
c) Legal representative
d) Parent or legal guardian
e) Public prosecutor
f) Law enforcement agency
g) An application for the protection of a minor can be made by a law enforcement agency without the consent of the person’s parent or guardian.
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:
1. Assist such a person with his or her application
2. Inform the Director of the Witness Protection
3. Agency of the application and Submit the application to the Director or a Witness
• Application may be made without the consent of his guardian or parent if the applicant and the relevant investigating official and or Public Prosecutor can proof to the Director that exceptional circumstances exist that warrant such an application
• Where an application is made for the inclusion of a child to the programme without the consent of the parents or legal guardian, the Director of the Agency shall decide if it is necessary for the child’s safety, that he/she be included on to the programme and after applying to the High Court for a protection order, assume care over the child.
In performing its functions under the Witness Protection Act, the Agency shall give due regard to the particular needs of vulnerable witness. The Agency may assign, as appropriate, a support person to assist the vulnerable witness through all stages of the witness protection program. Vulnerable witnesses include, children, victims of sexual and gender based violence, elderly, ill person, witnesses to certain types of offences and witnesses with close relationship to the perpetrator among others.
The Witness Protection Officer shall immediately undertake a threat and risk assessment upon receipt of an application and submit the recommendations to the Director. These relate to:
• Nature of protection to be provided
• Duration of protection
• Any considerations for such placement
If the application is declined, the Protection Officer provides recommendations on the way forward or alternatives including the period within which the application should be finalized.
The Director of the Agency shall negotiate resettlement and relocation of witnesses on a case by-case basis. The necessary resettlement forms shall then be completed.
A Witness Protection Officer may give instructions to the witnesses and to persons related to the witnesses, which the officer may consider necessary in the circumstances. Witnesses who do not adhere to issued instructions may be removed from the programme, in accordance with the Act.
• All documentation and information provided to the Agency by witnesses or persons related to witnesses are deemed confidential and treated as such.
• The Agency shall undertake various measures required to ensure its staff to undergo comprehensive security screening periodically to ensure the maintenance of strict confidentiality at all times.
Where a witness declines to continue with protection assistance or the Director has lawfully suspended the protection, the witness or person related to the witness shall complete discharge form.
The Witness Protection Agency can be reached at any time through:
Witness Protection Agency – Kenya.
P.O. Box 28801-00100, Nairobi, Kenya,
Liaison office Milimani Law Courts, 4th Floor, Room 413.
Tel: +254 7121337/8, Toll Free: 0800 720 460, Hotlines: 0711222441, 0725222442