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The provision of witness protection is a crucial component of criminal justice reform. Witness protection underpins the success of criminal justice and in a unique way fosters and forces change within the criminal justice system from within. For witnesses of sensitive crimes to testify, they must have confidence in the states’ ability to protect them. The Kenyan government’s failure to fully implement witness protection, signals a lack of political will at the highest level.
The Kenyan government is currently engaged in the implementation of the new constitution. The constitution provides for the transformation of Kenyan institutions into transparent, accountable and responsive establishments. This includes the transformation of the judiciary and the criminal justice system as a whole.
Therefore by doing all that is necessary to conclude the process of establishing the Witness Protection Agency, government will give evidence to its commitment to fulfilling the above.
In the main, Kenya should be applauded for taking on a challenge that most African states have shied away from. Save for a few examples like South Africa’s witness protection unit – Africa’s first domestic witness protection programme – and efforts in Uganda, Rwanda and Sierra Leone, Kenya is one of only a few countries that have established the framework for a comprehensive witness protection programme.
The Witness Protection Act of Kenya was promulgated in 2006 and became operational in September 2008. The regulations that facilitate the implementation of the Act were adopted in January 2009. The Attorney-General, Amos Wako, set up a multi-sectoral team to operationalise the Act. Physical office space to house the witness protection unit was acquired and procedural and policy documents developed.
With assistance from the United Nations Office on Drugs and Crime through its resident consultant in Nairobi, amendments to the Act were drafted, and adopted by parliament on 7 April 2010, receiving Presidential assent on 12 May 2010.
The amended Act effectively removes the programme from the office of the Attorney-General. The witness protection unit is now an independent and autonomous witness protection agency that is in charge of its own staffing and able to mobilise and disburse its funding independently. This is an important move away from the legacy of political interference in state agencies.
The Agency boasts an acting director, a few key staff, an advisory board, a policy framework and internal operational manuals.
This is an impressive account of government commitment to efforts towards establishing an efficient and robust criminal justice framework. But challenges remain.
In September 2010, the Witness Protection Advisory Board agreed that the Agency should begin protecting applicants. It recommended that a competitive process of staff recruitment begin and indicated that funding should be sought to protect at least 20 witnesses (100 people). It suggested that staff from other departments be seconded to proceed with the work of the Agency whilst the Agency awaits full enforcement and resourcing.
In a statement on 22 September 2010, whilst pointing out the efficacy of the new constitution in the fight against graft, Attorney-General Amos Wako highlighted the importance of taking witness protection seriously in order to attract witnesses for corruption cases. In reassuring prospective witnesses and a querying civil society, he announced that the Witness Protection Agency “would be commissioned soon”. Unfortunately, “soon” is yet to materialise.
Of the KSh1.2 billion (about US$11.8 million) requested by the Attorney General as implementing minister for the 2010/2011 budget, treasury only allocated KSh35 million (about US$ 413 000).
This is hardly enough to meet the running costs of the Agency, to enable the appointment of permanent agency staff and for the agency to be able to implement its programmes and activities in behalf of witnesses and victims.
In the greater scheme of things, government cannot argue that it does not have a sufficient pool of funds to commit to witness protection. Donors have been waiting keenly to support the programme on condition that government first displays the will to make a success of the programme by providing a sizeable portion of the funding requested by the Agency.
The challenge is not the unavailability of funds, but political will at the highest level - cabinet. The Agency and its Advisory Board are rearing to go; the Attorney-General has in speech and action given his assent to making the Agency work.
The antithesis to the desire and many efforts towards creating a robust witness protection programme and to establish an efficient, effective and functional witness protection agency is treasury’s reluctance to commit the necessary funds to make it happen.
It is ironic that the Ministry of Finance headed by Uhuru Kenyatta (recently summoned by the International Criminal Court (ICC) as a suspect in the post-election violence of 2007/08) should be the Witness Protection Agency’s Achilles heel.
The Kenyan government’s failure to fulfill the guarantee to put in place and empower the Witness Protection Agency does not bode well for domestic and international confidence in its said commitment to implement constitutional reforms to transform the country’s criminal justice institutions.
This unfortunately feeds the strong perception that government is intent on shielding perpetrators of serious crimes.
Speaking to parliament last month, Justice and Constitutional Affairs Minister Mutula Kilonzo said, “A lot of people continue thinking that whenever we talk about witness protection, we’re talking about the International Criminal Court. No, my concern is with witnesses in drug trafficking, rape, paedophilia and such other crimes”.
However the reality of ICC proceedings against six Kenyan’s recently summoned to the court in The Hague is all the more reason that government should do more than just talk about witness protection. Full implementation of the programme will put the country in good stead to investigate and prosecute the incidents of post-election violence domestically.
Written by Nompumelelo Sibalukhulu, Junior Researcher, International Crime in Africa Programme, ISS Pretoria Office