The High Court in Nairobi Photo: (Ting Chen Wing/Flickr)
Witness protection generally involves the act of safeguarding people who agree to provide testimonial evidence in court from any dangers that may be posed to them as a result of their brave decision. A good witness protection program is one of the key ingredients to achieving a successful criminal justice system in a country. In Kenya, the structure of Witness protection has restrictions that hinder its purpose of ensuring witnesses are protected from perpetrators who may endanger them. This is a major drawback to the criminal justice system because witnesses to crime scenes ought to dispose information without fear, force or pressure.
The legal structure of Witness Protection
In Kenya, the witness protection law was enacted in 2006 and it covers organized crime, terrorism, drug trafficking, corruption and international crimes. It aims to ensure safety and security of intimidated and threatened witnesses who are required either by law, or on their own accord to testify in a court of law, tribunal or other judicial proceedings.
The law was signed in 2006 but became operational in 2008. However, there were major loopholes in the law that led to concerns as to whether it would meet its objective of protecting witnesses. For instance, the said law is established under the Attorney General’s office under Section 4 thus making it difficult for witnesses to testify against state officials.
This led to the Witness Protection (Amendment Act) of 2010 which establishes the Witness Protection Agency that administers it. Despite the efforts of the Amendment Act to improve the protection of witnesses in the country, this current structure has restrictions that challenge its objective.
Ambiguous descriptions
According to section 3 of the Amendment Act, the description of a witness only focuses on people who have agreed to testify on behalf of the state and their lives or those of their loved ones may be at risk as a result of this. When thought about broadly, this poses as a restriction to the protection of witnesses because its interpretation excludes witnesses who testify on behalf of the defense. Therefore, does this mean that defense witnesses are not entitled to protection as much as the prosecution witnesses?
Potential abuse of power
Under Section 3E of the Amendment Act, there is a Director of the Agency who is in charge of running the witness protection program. This task was formerly carried out by the Attorney General. In addition to this, Section 5 of the Amendment Act empowers the Director to include or exclude individuals from the witness protection program. This may encourage abuse of power by the Director because the task of including witnesses to the program is at his or her discretion. As a result, some witnesses may end up not being protected by the Agency.
The centralization of the Agency
The Witness Protection Agency in Kenya has the head office located in Nairobi. Moreover, there are two regional offices located in Mombasa and Kisumu. (Witness Protection Agency-Kenya , n.d.) This clearly highlights that the Agency is not widely located. Consequently, some witnesses may be at a disadvantage because they are forced to make long trips for the purpose of accessing the services. This is a major hindrance to achieving the objective of the witness protection system in the country.
Lack of independence by the Agency
Section 3(g) of the Amendment Act provides that the agency is supposed to carry out its tasks without interference by any authority. However, most citizens believe that the realization of this is yet to be done. Many witnesses perceive the Agency as an extension of the government. They are become reluctant to approach the Agency due to this.
Additionally,under Section 3(p) of the Amended Act the Commissioner of police forms part of the Advisory Board. From past events the police have been seen to be perpetrators of violence against innocent individuals. How are witnesses supposed to testify against the police who form part of the body whose main function is to protect them? This eventually leads to most of the witnesses withholding information that would be essential in promoting justice in the country.
Inadequate funding of the Agency by the state
According to Alice Ondiek, director of the national Witness Protection Agency (WPA), for this financial year, the agency received only 196 million Kenyan shillings (2.2 million US dollars) of the 500 million (six million dollars) that it asked for. “This is barely enough to cater for the 50 high-level witnesses currently under the agency’s protection,” she said. The outcome of this was that witnesses are asked to take their own steps to protect themselves. The obvious outcome of this would be that most of the witnesses will avoid testifying thus negatively impacting the criminal justice system.
On the bright side, there has been an improvement in the witness protection system. For instance, the Amendment Act has replaced the Attorney General as the head of the Agency with the Director. This is a notable attempt to create autonomy of the Agency and consequently reduce direct interference by the executive. Despite having these restrictions, do you think that the objective of the witness protection system in Kenya has been met?
Bernice Mutinda,
Criminal Justice Division
Strathmore Law Clinic
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