Witness protection is recognised as a fundamental human right by various instruments of both International and national law, in the administration of justice.
Article 50 (8 and 9) 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 were gazetted, creating a much more conducive and secure environment for witnesses to testify. The then Chief Justice 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 which is 30 days after publication in the Kenya Gazette as stipulated in law.
The gazettement of the rules by the Chief Justice marked 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 progamme to specifically ensure the safety and welfare of crucial witnesses and related persons who are threatened, or at risk.
Courts are 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.
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. Section five of the Witness Protection Rules, 2015 spells out appropriate measures to facilitate the testimony of a protected witness.
For instance, section 5 (a) 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. 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 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.
