The Legal Framework

International Legal Framework on Witness Protection

The framework for protection of witnesses is enshrined in International instruments namely: –

  1. Rome Statute of the International Criminal Court

Article 68 of the Rome Statute provides for the “protection of witnesses and victim participation and reparation” The Article obligates “prosecutor to take measures during investigation and prosecution of international crimes to protect witnesses “

  1. United Nations Convention Against Transnational Organized Crime

Article 24, Obligates State parties to “take appropriate measures to provide effective protection from retaliation or intimidation of witnesses who give testimony in cases involving transnational organized crime.”

Article 26, requires State Parties to encourage persons who participate or have participated in organized criminal groups to cooperate with law enforcement authorities for investigative and evidentiary purposes by according them protection.

  1. United Nations Convention Against Corruption

Article 32. Provides for the protection of witnesses, experts and victims. State Parties are required to appropriate measures in accordance with its domestic legal system and within its means to provide effective protection from potential retaliation or intimidation for witnesses and experts who give testimony concerning offences established in accordance with the Convention and, as appropriate, for their relatives and other persons close to them.

National Legal Framework on Witness Protection

1. The Constitution of Kenya

Witness Protection is a fundamental constitutional right to any witness who has been threatened for cooperating with the law enforcement Agencies. The Constitution of Kenya has adequately covered the issues of witnesses under Chapter Four on the Bill of Rights. Specific sections of the Constitution that provides for the right to protection include: –

Provides for freedom and security of person, which right is not to be subjected to any form of physical or psychological harm.

Guarantees the right of Access to Justice.

The right to a fair hearing. The court allows an intermediary to assist the complainant or an accused person to communicate with the court.

Provides for the right to protection of witnesses or vulnerable persons.

Has provided for the need to have legislation to provide for protection, rights and welfare of victims of offences.

Under Article 50 (8) as read together with Article 48, Government is obligated to protect witnesses in Kenya. While witnesses have a right to be protected, it is subject to certain established criteria and procedures. Under the Witness Protection Act, there is an application procedure, and the decision to be admitted into or excluded from the protection programme is made by the Director of Witness Protection Agency.

2. The Witness Protection Act, 2006

Section 4 of the Witness Protection Act which obligates the Agency to establish and maintain a protection programme and further provides for protection measures to be applied by the Agency. Sections 13 to 29 of the Witness Protection Act provide for the protection of the identity of the witness.

Such protection is found in the following instances:

The Rules of Court were drafted in accordance to section 36(2) of the Witness Protection Act, 2006. The Rules provide guidelines to regulate proceedings where protected witnesses are concerned.

They also provide guidance to Court on evidence and procedures meant to be observed by all parties to judicial proceedings, 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.

The Rules are applicable in proceedings with respect to a protected witness.

The court can on its own motion make appropriate orders for protection of witnesses or on application by the Agency or the prosecution if its satisfied that: –

  • A person named before court or in the application is a witness
  • A person was a witness to or has knowledge of the offence
  • The person was or is a witness in any other proceedings
  • The life and safety of the person may be endangered as a result of being a witness

Sexual Offences Act

Section 31 and Section 32 of the Sexual Offences Act provides for the protection of vulnerable witnesses in sexual and Gender based violence cases. Cases are to be heard in-cameras. Section 31 (11) of the Sexual Offences Act makes it an offence for anyone including a juristic person publishing information contrary to this section or direction of the court information that would reveal the identity of a witness.

The Criminal Procedure Code, CAP 75

Section 77 (2) of the CPC provides for camera hearings in cases related to incest, abduction, rape and defilement shall be held in private and the proceedings should not be publicized.

The Children’s Act, 2001

Section 77 (4) of the Children’s Act requires that cases involving children shall be held in children’s court at different times from other cases and that no unauthorized persons shall be allowed in the court room.

Section 75 (5) of the Children’s Act provides for the protection of the children by prohibiting the publication of the child’s identity home or last place of residence or School in any proceedings.

The Prevention of Terrorism Act, 2012

Sections 17 and 18 of the prevention of Terrorism Act provides for the protection of Witnesses from retaliation and intimidation by making such Acts criminal offences. In particular Section 19 prohibits anyone from disclosing any information regarding the conduct of investigations by a police officer.

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