“I just couldn’t bring myself to look at his body again; it was so badly mutilated ... I couldn’t recognise him at first,’ the wife of a witness told a BBC reporter outside a mortuary. Her husband’s body was found after he’d disappeared 10 days earlier.
He had been due to appear at the International Criminal Court (ICC) as a witness in the case against the deputy president of Kenya, William Ruto, who had been accused of crimes against humanity following the post-election violence of 2007/2008. His family believes his death is linked to the case.
Witnesses are crucial in criminal trials, and their testimony is central to building cases that can be prosecuted effectively. Yet without effective legislation and systems to protect witnesses who face being threatened, intimidated, injured or killed, Africa’s criminal trials are at serious risk. These circumstances threaten the very fabric of the rule of law, and compromise access to justice for African citizens.
A witness is a person with evidence that is vital to judicial and criminal proceedings. Witness testimony is particularly crucial for complex crimes such as terrorism, money laundering and corruption. Given their covert nature, these crimes are often harder to detect, report and investigate. Cases where accused persons are powerful, wealthy and influential – or those with a history of violence – can pose serious challenges relating to witnesses.
These suspects may have resources and influence to threaten or harm witnesses and their loved ones, and interfere with legal processes. Serving as a witness in such cases is risky, and potential witnesses must consider these risks when they decide whether or not to offer testimony. This is why witness protection is crucial.
Witness protection refers to mechanisms in or outside courts that ensure witnesses’ safety and prevents interference so that their testimony can be secured. This could be through the concealment of identities, a change of identity, or admission to a programme that could involve their permanent relocation.
It is also common practice in many African countries to provide ad hoc protection – for example, police protection for the duration of trial. The certainty and reliability of such protection mechanisms offer incentives to witnesses to testify in criminal trials. However, such a decision could be life-changing for the witness, especially when relocation is necessary.
The “missing cornerstone”
Witness protection has been described as the missing cornerstone in criminal justice systems in Africa. A new publication by the Institute for Security Studies titled Witness protection: facilitating justice for complex crimes, explores progress that has been made towards protecting witnesses in Africa. However, much more needs to be done.
Of the 55 African countries, only three have institutionalised witness protection programmes. South Africa, Kenya and Rwanda all have established programmes, yet each experiences its own challenges. In Cabo Verde, Egypt, Ethiopia, Morocco and Mozambique, witness protection laws are in place, but are yet to be fully implemented. Ghana, Namibia, Tanzania and Nigeria have draft witness protection laws awaiting enactment. In countries like Burundi, specific provisions have been made within the penal code to provide protection to witnesses.
Without legislation or even policy guidelines, a number of problems emerge. One of these is the delay or abandonment of trials. One example is the disappearance of Peter Mulamba in 2004 in Malawi. Mulamba was a key witness in the corruption case against former finance minister, Friday Jumbe. The witness remains at large and the case is yet to be finalised.
Inconsistencies relating to protection measures pose another serious challenge. These result from a lack of uniform policies and regulations.
In April 2014, in Nigeria, a crucial prosecution witness declined to testify during the trial of an alleged Boko Haram member, Dr Muhammad Nazeef Yunus, because the presiding judge decided against the use of facial masks to conceal his identity and preferred using a cubicle in order to maintain an open court. This is likely to have resulted in the witness’s withdrawal, and unfortunately, the trial continues.
Generally, the need for witness protection has been accepted and mainstreamed in a range of international justice proceedings. In Africa, many regional institutions and processes have also recognised the centrality of witness protection to trials. These include the African Prosecutors’ Association, the East African Association of Prosecutors, the East African Magistrates and Judges Association, the African Union (AU) policy on the Model Law on Universal Jurisdiction over international crimes, the African Commission on Human and Peoples’ Rights rules of procedures as well as the AU Transitional Justice Framework, which all recognise witness protection.
At the national level, South Africa, Kenya and Rwanda have established programmes. However, these national services continue to experience challenges. Protecting witnesses is expensive, and many governments have competing financial obligations. Protection officers require training, equipment, resources and adequate capacity to handle the ever-increasing demands, particularly in complex crimes.
Africa has made reasonable progress in the area of witness protection, but much more needs to be done. It is necessary to strengthen understanding among policymakers on witness protection and to urgently enact laws where these are lacking.
Governments also need to prioritise the consideration given to the cost implications associated with witness protection to inform the allocation of adequate funding, or else seek alternatives. It is commendable that low-budget practices (such as testifying in camera, voice distortion and facial concealment) are being explored. This will add the much-needed value for witness protection in practice.
One intimidated witness rolls back the wheels of justice; and one dead witness is one too many lives lost.
Jemima Njeri, senior researcher, Transnational Threats and International Crimes Division, ISS Pretoria.