New era in wit­ness pro­tec­tion

Nairobi Law Monthly - - Analysis - CALVIN OREDI Writer is Pin­ci­pal Pub­lic Re­la­tions Of­fi­cer, Wit­ness Pro­tec­tion Agency

Wit­ness pro­tec­tion is recog­nised as a fun­da­men­tal hu­man right, by var­i­ous in­stru­ments of both na­tional and in­ter­na­tional law in the ad­min­is­tra­tion of jus­tice. Ar­ti­cle 50 of the Con­sti­tu­tion, un­der the Bill of Rights, not only pro­vides for the pro­tec­tion of iden­tity of wit­nesses and vul­ner­a­ble per­sons in the in­ter­ests of fair hear­ing be­fore a court or tri­bunal, but also for en­act­ment of leg­is­la­tion pro­vid­ing for the pro­tec­tion, rights and wel­fare of vic­tims of of­fences.

The much an­tic­i­pated Wit­ness Pro­tec­tion Rules have been fi­nally gazetted, cre­at­ing a much more con­ducive and se­cure en­vi­ron­ment for wit­nesses to tes­tify. The Chief Jus­tice and Pres­i­dent of the Supreme Court Willy Mu­tunga gazetted the Wit­ness Pro­tec­tion Rules 2015 via Le­gal No­tice No. 225 of 2015 on Oc­to­ber 30, 2015. The rules be­came op­er­a­tional on Novem­ber 30, 2015, thirty days af­ter pub­li­ca­tion in the Kenya Gazette as stip­u­lated in law.

The Chief Jus­tice had tasked the Wit­ness Pro­tec­tion Agency (WPA), in its ca­pac­ity of main­stream­ing wit­ness pro­tec­tion in the coun­try, to draw up req­ui­site draft rules of court as en­vis­aged un­der Sec­tion 36 (2) of the Wit­ness Pro­tec­tion Act for his con­sid­er­a­tion. The agency, work­ing closely with a con­sul­tant, drafted the Wit­ness Pro­tec­tion Rules of Court which were for­mally pre­sented be­fore the Na­tional Coun­cil on Ad­min­is­tra­tion of Jus­tice (NCAJ) in July 2014, where mem­bers pe­rused and give feed­back on the same.

A val­i­da­tion work­shop or­gan­ised by the Ju­di­ciary, WPA and the In­ter­na­tional Com­mis­sion of Ju­rists (Kenya) was held on Oc­to­ber 24, 2014 to in­ter­ro­gate the draft rules. Var­i­ous stake­hold­ers in the jus­tice sec­tor gave in-depth cri­tiques of the rules in a bid to make them all in­clu­sive and ac­cept­able. The fi­nal gazette- ment of the rules by the Chief Jus­tice marks an im­por­tant mile­stone in en­sur­ing that wit­nesses who are pro­tected do not feel in­se­cure when giv­ing their tes­ti­monies in court.

The Wit­ness Pro­tec­tion Act, Cap. 79 Laws of Kenya, pro­vides for the pro­tec­tion of wit­nesses in crim­i­nal and other pro­ceed­ings, and es­tab­lishes a Wit­ness Pro­tec­tion Pro­gramme to specif­i­cally pro­tect the safety and wel­fare of cru­cial wit­nesses and re­lated per­sons who are threat­ened or at risk.

For in­stance, of the Wit­ness Pro­tec­tion Rules, 2015, em­pow­ers Courts to take ap­pro­pri­ate mea­sures to pro­tect the safety, phys­i­cal and psy­cho­log­i­cal well-be­ing of a wit­ness. In do­ing so, rel­e­vant is­sues such as age, gen­der, health and na­ture of the crime are looked into. The Court is now man­dated to give pro­tec­tion or­ders by tak­ing into ac­count all the cir­cum­stances of a case, el­i­gi­bil­ity cri­te­ria and whether the pro­tec­tion or­der in ques­tion is likely to in­hibit the ev­i­dence be­ing ef­fec­tively tested by any party to the pro­ceed­ings or con­trary to the in­ter­est of jus­tice.

Wit­nesses are con­sid­ered to be vi­tal pil­lars in any suc­cess­ful crim­i­nal jus­tice sys­tem. Any cred­i­ble in­ves­ti­ga­tion or pros­e­cu­tion is mainly de­pen­dent on the qual­ity of ev­i­dence ad­duced by wit­nesses to the crime, or about the crime. Wit­nesses need to al­ways have un­fail­ing trust in the crim­i­nal jus­tice sys­tem if they are to vol­un­teer in as­sist­ing law en­force­ment agen­cies in the in­ves­ti­ga­tion, pros­e­cu­tion and, ul­ti­mately, de­ter­mi­na­tion of cases. Wit­ness pro­tec­tion can en­sure such trust by en­hanc­ing ac­cess to jus­tice by wit­nesses at risk with­out fear of reprisals, thus pro­mot­ing the rule of law.

Pro­tec­tion of wit­nesses there­fore en­tails ju­di­cial pro­tec­tion mea­sures which reg­u­late pro­ceed­ings where pro­tected wit­nesses are con­cerned. of the Wit­ness Pro­tec­tion Rules spells out ap­pro­pri­ate mea­sures to fa­cil­i­tate the tes­ti­mony of a pro­tected wit­ness. For in­stance, stip­u­lates mea­sures to pre­vent dis­clo­sure to the pub­lic or me­dia of the iden­tity or where­abouts of a wit­ness. They in­clude ex­pung­ing iden­ti­fy­ing in­for­ma­tion from the Court's pub­lic records, redac­tion of state­ments, voice dis­tor­tion, closed ses­sions and use of pseu­do­nyms by the wit­ness.

A ma­jor im­prove­ment in the rules is al­low­ing ev­i­dence in the phys­i­cal ab­sence of wit­nesses who are pro­tected. The Courts will now have ju­ris­dic­tion to ad­mit wit­ness ev­i­dence us­ing au­dio-vis­ual tech­nol­ogy such as video con­fer­enc­ing and closed cir­cuit tele­vi­sion. This is in ad­di­tion to video record­ing ev­i­dence-in-chief and in­ter­views, and us­ing sound me­dia or live link. Any mea­sure al­lowed by the Court for the pro­tec­tion of a wit­ness is ex­pected not to prej­u­dice the rights of an ac­cused per­son to fair trial.

The court in­fra­struc­ture in the coun­try has pre­vi­ously been a ma­jor con­cern to the safety and pro­tec­tion of wit­nesses in the court pro­ceed­ings. of the Wit­ness Pro­tec­tion Rules now re­quire the Reg­is­trar to make avail­able fa­cil­i­ties and equip­ment that pro­tects wit­nesses. Fu­ture re­fur­bish­ment of courts and con­struc­tion of new ones will there­fore be re­quired to fac­tor in Sec­tion 5 (3) of the Rules.

The Rules have also taken into ac­count rights of chil­dren who are wit­nesses.

out­laws any other per­son apart from a par­ent guardian or a per­son in loco par­en­tis to be present dur­ing court pro­ceed­ings. Ap­pli­ca­tions made un­der this sec­tion shall be heard in cam­era.

The gazetted Wit­ness Pro­tec­tion Rules will hence pro­vide clearly set out rules of court on ev­i­dence and pro­ce­dure to be ob­served by all par­ties to ju­di­cial pro­ceed­ings. The bot­tom-line will be to en­sure that wit­nesses and vic­tims of of­fences not only tes­tify in an en­vi­ron­ment that se­cures their rights to fair hear­ing, but also en­sure that jus­tice is done.

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