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Witness protection: the missing cornerstone in Africa's criminal justice systems
1 September 2014

The successful prosecution of crimes largely depends on securing reliable evidence, including the testimony of witnesses. When witnesses withdraw from proceedings due to intimidation or actual harm, securing convictions often becomes impossible.

For this reason, the protection of witnesses remains a cornerstone to an effective criminal justice system.

In Africa, witness protection is often sorely lacking, and progress towards formalised and functioning witness protection services has been slow. Challenges include statutory frameworks and policies that are weak or non-existent, under-investment in witness protection services, and the scarcity of relevant knowledge and skills among policymakers and law enforcement agencies.

Among citizens, awareness of these issues also remains limited. These circumstances make it difficult to envisage how the rule of law may become a reality for African citizens.

Witness protection refers to a range of measures, which can be applied at any stage of criminal proceedings, to ensure the safety of witnesses to gain their cooperation in providing testimony. This includes concealing the identity of witnesses through the use of image and voice distortion, video-conferencing and pseudonyms while giving testimony, and anonymous testimony.

This is especially true in cases involving powerful individuals with links to influential networks

Other measures relate to the physical protection of witnesses or members of their families. This may include their temporary or permanent relocation, changing their identity, and – in extreme circumstances – cosmetic surgery to alter their physical appearance. The covert nature of witness protection is paramount in encouraging witnesses to come forward.

Complex crimes are constantly evolving, presenting new and varied challenges to criminal justice systems. These crimes include organised crime, money laundering, terrorism, international crimes (genocide, crimes against humanity and war crimes) and cybercrime. Guaranteeing the protection of crucial witnesses in such crimes gives courts the opportunity to listen to their testimony and evaluate the evidence. This is especially true in cases involving powerful individuals with links to influential networks and institutions.

Witnesses face many risks. Recently, potential witnesses to international crimes committed in Kenya during the 2007/8 post-election violence were reportedly threatened. This development led to some witnesses allegedly disappearing, being killed or withdrawing their statements. This is detrimental to the Kenyan cases at the International Criminal Court (ICC) – particularly the case against Uhuru Kenyatta, the president of Kenya.

Witness protection services can be central to the conviction of serious offenders. For example in 2013, the leader of the Movement for the Emancipation of the Niger Delta (MEND), Henry Okah, was convicted of terrorism-related offences committed in Nigeria and sentenced to a 24-year prison term. This was based on the testimony of witnesses from Nigeria. The South African Witness Protection Programme accorded protection for the witnesses from Nigeria, who were able to travel to South Africa and testified in a South African court without interference.

The importance of witness protection is recognised through various legal regimes, policies and declarations. For example, both the United Nations (UN) Convention against Corruption, and the UN Convention against Transnational Organized Crime (UNTOC) and its protocols call upon states parties to provide protection and support of witnesses and victims. The UNTOC also calls upon each state party to provide ‘effective protection from potential retaliation or intimidation for witnesses and experts who give testimony.’

At the end of the day, if there is no witness, there is no case

The Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, adopted by the UN General Assembly in 1985, and the UN Economic and Social Council Resolution 2005/20, also include provisions for witness protection. Similarly, international criminal tribunals and special courts also have provisions geared towards the protection of witnesses. These include the ICC, the International Criminal Tribunal for the Former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), the Special Courts of Sierra Leone (SCSL) and the Extraordinary Chambers in the Courts of Cambodia (ECCC).

In Africa, the importance of effective witness protection in the prosecution of international crimes has also been asserted through the recently amended Statute of the African Court of Justice and Human Rights, and the African Union (AU) Draft Model National Law on Universal Jurisdiction over International Crimes. The Africa Prosecutors’ Association, through its various declarations, also seeks to promote effective witness protection in Africa.

At the national level, however, formalised witness protection in Africa is not well developed. In 1998, South Africa became the first African country to promulgate a comprehensive witness protection law. Kenya also took this important step and amended the Witness Protection Act of 2006, and now has an amended Witness Protection Act, 2010, thereby enacting witness protection legislation that, among other things, establishes a dedicated and independent witness protection agency. Ethiopia, Rwanda, Morocco and Mozambique also have witness protection laws. Other countries such as Namibia, Nigeria and Uganda have developed draft laws.

There is little research on witness protection in Africa. In 2010, the Institute for Security Studies published a book entitled The Justice Sector Afterthought: Witness Protection in Africa. This publication captured developments on witness protection and recognised the need to develop these services further. The UN Office on Drugs and Crime (UNODC) has also published important comprehensive materials to support witness protection. The UNODC recommends minimum requirements for protection of witnesses including legislation, protection measures to be used, application and admission criteria and procedures, termination criteria, confidentiality of its operations and penalties for disclosure.

Witness protection is administratively complex and expensive. It needs to include physical protection, provision for daily living requirements of witnesses (and, in many cases, their families), ensuring that witnesses abide by the set rules to protect their safety, guarding against interference by authorities and others, and ensuring that the custodians of the operations are trustworthy.

New challenges emerge daily, including the possible exposure of witnesses based on the Internet and new information communication systems. It has become easier to establish locality of any person through various new technologies, and social media sites such as Facebook can be an extensive source of personal information.

Much still has to be done to advance research, training and legislation to inform and support the protection of witnesses. Once witnesses are afforded effective protection, their testimony could lead to the proper carriage of justice and the conviction of individuals – even those who are high profile. In this way, effective witness protection will promote the administration of justice, strengthen the rule of law and build the credibility of criminal justice systems. At the end of the day, if there is no witness, there is no case.

Jemima Njeri Kariri, Senior Researcher, Transnational Threats and International Crime Division, ISS Pretoria

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