Witness protection is a pillar of any successful criminal justice system. Concern for witness protection is amplified in mass atrocity and complex criminal trials where suspected perpetrators may endanger witnesses.
In Kenya, these concerns were amplified after the 2007-2008 PEV, as reflected in the Waki Report that said failure to implement the witness protection law was one reason causing “real and genuine difficulties in investigating violence of such magnitude".
Kenya enacted a witness protection law in 2006 when the country experienced mega corruption scandals. A law was necessary to protect witnesses or families of witnesses whose lives would be in danger owing to the seriousness of offences to which they would testify.
The law covers organised crime, terrorism, drug trafficking, corruption and international crimes. Amendments in 2010 and 2016 ensured independence by delinking it from the AG’s office.
The law protects anyone likely to be a witness for the state or the defence if there is a threat or risk. 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 witness protection agency can admit witnesses and determine protective measures, including physical armed protection, relocation, in-camera hearings, use of pseudonyms, video-link testimony, distortion and obscuring the identity of witnesses, redaction of identifying information as well change of identity. This is done covertly with utmost confidentiality under internationally accepted procedures.
The High Court can order witness protection upon application.
Without witness protection some investigations are impossible to carry out, frustrating administration of justice.
Kenya’s witness protection regime is among the best. Perhaps devolution of the functions to the counties and more outreach is needed.
Despite great strides, the law has been criticised for including security agencies in its advisory board, hampering independence in cases involving state officials. The public should have more confidence in the witness protection programme and the administration of justice.
Read:
The Advocate of the High Court of Kenya and Law Lecturer spoke to the Star