Amendment bill to protect victims and witnesses timely

A state's ability to protect victims and witnesses is a fundamental issue for the effective investigation and prosecution of many types of serious crimes.

It is particularly salient in the context of prosecutions of organised criminal gangs and terrorist groups, who have the means and the motivation to intimidate and harm potential witnesses to bar them from co-operating with law enforcement and judicial officers.

The protection of victims and witnesses is of importance also with regard to the prosecution of serious violations of human rights and international humanitarian laws.

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 crucial witnesses and related persons who are at risk.

Owing to the specialised nature of witness protection operations, which include operational autonomy, covert capability, confidentiality and accountability, there was a compelling need to amend the Witness Protection Act yet again.

This was to specifically conform to the provisions of the Constitution, other legal instruments and emerging best practices in witness protection.

It is in this regard that the Witness Protection (Amendment) Bill 2016 was approved by both the Witness Protection Advisory Board and the Cabinet before rigorous debate in the National Assembly. The lengthy deliberations on various clauses of the original Act by Parliament were finally assented to by the President.

Key among the amendments is widening of the circumstances to be considered when assessing a witness for inclusion in the Witness Protection Programme. To realise this, Section Six of the Witness Protection Act was amended to include two additions; the ability of a witness to adapt to the protection programme and witnesses in prosecution cases of public interest.

Examples of such cases include terrorism cases, sexual and gender-based violence, especially for minors. Previously, for one to be admitted into the programme, the seriousness of the offence and importance of available evidence were considered. This was in addition to the nature of perceived danger to the witness.

The amendments also included Section 22 of the Act, which widened the list of persons to whom disclosures or communication of information relating to entries under the Act in a register of births, deaths or marriages are specifically permitted. It is an offence to violate this provision and anyone found guilty is liable on conviction to a fine not exceeding Sh500,000 or imprisonment for a term not exceeding three years, or both.

The Act has now been amended and seeks to prohibit intimidation, harassment, obstruction and threats hindering or preventing a witness in any way with intention to subvert the course of justice. Intimidation of witnesses is now a criminal offence punishable by seven years' imprisonment.

It is extremely important that witnesses and the general public have unfailing trust in the criminal justice system if they are to volunteer in assisting law enforcement agencies in investigating, prosecuting and determining cases.

The Witness Protection (Amendment) Bill 2016 therefore seeks to entrench the important role that a protected witness plays in the overall criminal justice chain.

The bottom line is enhancing access to justice and promoting the rule of law.