Witness protection critical in human trafficking cases

Witness protection critical in human trafficking cases

Witness protection is now recognized as a crucial element in countering trafficking in persons as well as a fundamental human right, under national and international law. Article 50 of the Constitution of Kenya, not only provides for the protection of witnesses and other vulnerable persons in the interests of fair hearings before courts, but also for enactment of legislation providing for the protection, rights and welfare of victims of offences. The United Nations Convention Against Transnational Organized Crime, obligates State Parties to provide effective protection from potential retaliation or intimidation for victim witnesses in criminal proceedings.

Witness Protection is a fundamental right under international legal instruments as well the Constitution of Kenya. Article 50(8) provides for the right to protection of witnesses or vulnerable persons. Under Article 50(9) as read together with Article 48, government of Kenya is obligated to protect victims and witnesses as means of promoting access to justice.

Under Section 4 (1) of the Witness Protection Act, the Agency is mandated to set up a Witness Protection Programme whose objective is to protect threatened, vulnerable and intimidated witnesses and family members from harm because of co-operating with the law enforcement agencies. The Agency is mandated under Section 4 (2) to employ protection measures depending on the circumstances of each case, the danger and threat involved among other considerations.

Such protection measures may include; Physical and armed protection; relocation within or outside Kenya and change of identity. The Agency may invoke provisions of the Act to urge the courts to hold in camera or closed sessions; allow the use of pseudonyms and the redaction of identifying information; to use of video link or employ measures to obscure or distort the identity of the witness, as protection measures.  The Kenya’s Witness Protection Programme is now fully established and protecting witnesses in serious crime such as human trafficking.

The counter trafficking of persons Act provides guidance on how Victims of Trafficking (VoTs) should be treated including their rights with an emphasis of confidentiality. At the end of the process, the WPA has an obligation under the Act to reintegrate witnesses. This is usually done through cooperation with other governmental and non-governmental organizations to facilitate safe and dignified return, readmission as well as sustainable reintegration.

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