By ndolo asasa Esq.
Introduction:
The Witness Protection Act was introduced and passed in parliament in 2006 and came into effect on 1st September 2008 upon being accenting to by the President and publication in the Kenya Gazette.
This Act inter-alia establishes the Witness Protection Agency, Witness Protection Programme, Witness Protection Advisory Board and Witness Protection Tribunal
The Purpose:
The Witness Protection Agency is established (Article 3B-1 of the Act) to provide the framework and procedures for giving special protection, to persons in possession of important information and who are facing potential risk or intimidation due to their cooperation with prosecution and other law enforcement agencies.
The Agency’s mandate(Article 3C-1 of the Act) thus include;
(a) establish and maintain a witness protection programme;
(b) determine the criteria for admission to and removal from the witness protection programme;
(c) determine the type of protection measures to be applied;
(d) advise any Government Ministry, department, agency or any other person on the adoption of strategies and measures on witness protection; and
To execute its mandate, the Agency has, among others, the following powers (Article 3D-1 of the Act);
1) control and supervise its staff in a manner and for such purposes as may be necessary for the promotion of the purpose and the object for which the Agency is established;
(b) administer the funds and assets of the Agency;
(c) receive any grants, gifts, donations or endowments and make legitimate disbursement therefrom;
(d) enter into association with such other persons, bodies, or organizations within or outside Kenya as it may consider desirable or appropriate in furtherance of its object and purpose;
(e) enter into confidential agreements with relevant foreign authorities, international criminal courts or tribunals and other regional or international entities relating to the relocation of protected persons and other witness protection measures;
(e) open bank accounts for the funds of the Agency;
(f) collect, analyze, store and disseminate information related to witness protection;
(g) give such instructions to a protected person as the Agency may consider necessary;
(h) search the protected person and their property and seize items regarded by the Agency to be a threat to the protected person or another person or the integrity of the programme;
(i) summon a public officer or other person to appear before it or to produce a document or thing or information which may be considered relevant to the functions of the Agency within a specified period of time and in such manner as it may specify;
(j) invest the funds of the Agency not currently required for its purposes.
Article 3G(1) of the Act envisions independence for the Agency and underscores non-interference from ANY authority.
Advisory Board.
The following are designated as Witness Protection Advisory Board Members (Article 3P -1&2)
(a) the Minister (thematically in charge of the programme) as chairman;
(b) the Minister responsible for matters relating to Justice;
(c) the Minister responsible for matters relating to Finance;
(d) the Director-General, National Security Intelligence Service;
(e) the Commissioner of Police;
(f) the Commissioner of Prisons;
(g) the Director of Public Prosecutions; and
(h) the Chairperson on the Kenya National Commission on Human Rights.
The said Board shall (Article 3Q-1):
i. Advise on the formulation of witness protection policies in accordance with the current law and international best practices;
ii. Have general oversight on the administration of the Agency;
iii. Approve the budgetary estimates of the Agency.
Protection Regulations:
Witness Protection Regulations were gazetted (Gazette Notice No.10/2009) on 29th January 2009 by the Attorney General as provided for under Article 36 of the Act.
These Regulations focus on;
• Ensuring measures are in place to protect the witnesses
• Assisting witnesses to testify
• Maintain confidentiality
• Act impartially when working with other parties
The Constitution:
Chapter 8 Article 118(1) guarantees public participation and involvement in the legislative and other business of Parliament and its committees.
In addition, Article 119 (1) in the same chapter secures the right of every person to petition parliament to consider any matter within its authority.
The constitution further empowers the judiciary to speedily dispense of justice {Chapter 10 Article 159(2)} as guided by the national principle and values of governance stipulated in Chapter 2, Article 10 of the constitution
Parliamentary Standing Orders
The constitution through Chapter 10 {Article 109(1) and Article 124} empowers parliament to pursue its mandate by its own procedures (read Standing Orders).
The Standing Orders of Parliament (2008), Section 196 provides for the establishment of a Parliamentary Committee on Implementation whose mandate among others include;
• Scrutinise the resolutions of the House (including adopted committeereports), petitions and the undertakings given by the Government on the floor of the House.
• Examine whether or not such decisions and undertakings have been implemented and where implemented, the extent to which they have been implemented;
• Ensure such implementation has taken place within the minimum time necessary;
• Establish whether or not legislation passed by the House has been operationalised and where operationalised, the extent to which such operationalisation has taken place within the minimum time necessary.
• The Committee may propose sanctions to the House on any Minister who fails to implement resolutions of the House.
The Status:
1. The Witness Protection Agency has not yet been established 5 years after being passed by parliament, almost 3 years after being gazette.
2. Parliament is not willing or able to effect the Agency’s establishment. No effort has been made to follow up, especially by the Committee on Implementation as empowered by the Standing Orders (N.196)
3. The Advisory Board if constituted with the current office bearers of constituting the Board will largely destroy credibility and confidence in the agency and its capacity to realize its mandate especially with regard to Post Election Violence and Economic Crimes. The envisioned members would thus include the Minister for Internal Security, Police Commsiioner and Mr. Uhuru Kenyatta the Minister for Finance! All these office bearers have adversely been mentioned in regard to the Post Election Violence of 2007/8 by the Waki Report, KNHRC Report and the ICC Prosecutor.
I Suggested the following redresses:
1. Seek judicial compulsion for the government and parliament to execute their mandate and ensure that the Agency is set up as envisioned and established by law
2. Compel the government, through the court and the relevant parliamentary committee, to make the necessary changes in the office bearers of composite membership of the Advisory Board to eliminate any risk of conflict of interest.
Conclusion:
If so redressed, the following will be realized;
• Institutions of government, more so parliament and the executive will be compelled to execute their mandate
• Witness protection will be secured for local and international use
• The public will be mobilized and energized to participate in the implementation of laws and the constitution.
