Big Questions About Witness Protection in Kenya

The case of a woman who was killed along with her three daughters after she gave evidence in a criminal trial in Kenya has raised the alarm about the procedures used to protect witnesses.

The attack happened last month after the 45-year-old woman, Agneta Imbaya, and one of her daughters testified against a man at a court in the town of Bungoma in western Kenya.

The man was on trial for a violent robbery carried out in Imbaya’s home village last year, and he had openly threatened her and her daughter in the courtroom. He warned them that if they did not withdraw their testimony, he would exact revenge.

The suspect was in custody during the trial, but was released after the case collapsed. Police believe that days later he went to Imbaya’s house and murdered her and her three daughters, and say he is now on the run.

Despite the threats made against Imbaya in court, her family were not included in the national witness protection programme.

The police commissioner for Bungoma County, Maalim Mohammed, defended his officers’ actions. He told local media that his force had not received a report that the suspect had been released from custody, or that he posed a threat.

Kenya’s deputy director of public prosecutions, Kioko Kamula, told IWPR that current legislation sets out clear procedures for handling such matters.

"There is a witness protection law in place and a Witness Protection Agency that administers it,” he said. “The said law clearly states the persons who qualify for witness protection and how such protection can be invoked. The office of DPP [Director of Public Prosecutions] works closely with the [Witness Protection Agency] where threats to witnesses come to its knowledge in the course of prosecution."

Under the Witness Protection Amendment Act 2010, witnesses themselves, a law enforcement agency, a public prosecutor or a legal representative can request protective measures.

The tragedy has led to wider concerns about how the Kenyan authorities protect witnesses. Local legislators have called for a full investigation into the way Imbaya’s case was handled.

Alice Ondiek, director of the national Witness Protection Agency (WPA), criticised the Bungoma court for not alerting her office to the threat made against Imbaya and her daughter.

Ondiek told IWPR that courts generally do not pay enough attention to witness safety. In this instance, the suspect was released after the trial collapsed. But Ondiek notes that criminal suspects are often not remanded in custody during proceedings even if they may pose a threat to society, or are liable to abscond.

The long duration of trials which often drag on for years also works against efforts to protect a witness over a sustained period of time.

Ondiek wants the courts to keep a tighter rein on dangerous suspects by denying them bail, and assigning priority to sensitive cases so that they are processed and concluded quickly.

“Criminals have disappeared when out on bond, and others threatened the safety of witnesses when out on bail,” she said.

LACK OF WITNESS PROTECTION FUNDING

As well as the problems Ondiek identified in the court system, it has also emerged that the WPA is seriously underfunded. Scarce resources mean that witnesses are often asked to take their own steps to protect themselves. This is naturally much less effective than the security the WPA can offer.

According to Ondiek, for this financial year, the agency received only 196 million Kenyan shillings (2.2 million US dollars) of the 500 million (six million dollars) that it asked for.

“This is barely enough to cater for the 50 high-level witnesses currently under the agency’s protection,” she said.

In the last year, the agency has received more than 300 applications from witnesses seeking protection, and it does not have the funds to help them all. It is not just witnesses who need protection, but also their families, meaning that the total figures for individuals needing help are far higher.

The highest costs come from relocating witnesses and providing them with compensation for the disruption to their lives. They also receive an allowance for daily expenses.

“The law requires that a witness’s lifestyle prior to being placed under protection be maintained while the witness is under protection,” Ondiek said.

Where funding has fallen short, the WPA has had to devise alternative ways of protecting some witnesses. In such instances, it may advise them to change their name, get a new mobile phone number, and keep a low profile.

When witnesses are asked to bear the cost and inconvenience of protective measures, they often fail to do so.

“We are forced to play an advisory role, telling witnesses how to behave, to keep a low profile, to cut down our expenses,” Ondiek explained. “Protecting the witness is the work of WPA. The witness should not have to worry about their safety.”

WITNESS PROTECTION NOT A GOVERNMENT PRIORITY

Some legal experts in Kenya say the shortfall in funding reflects an unwillingness within government to support witness protection.

Njonjo Mue, vice-chairman of the Kenyan branch of the International Commission of Jurists, told IWPR that the government had been “reluctant to fund the agency”.

He argues that this stems from the cases against Kenya’s leaders which are currently before the International Criminal Court (ICC), which the country’s lawmakers and politicians have vehemently opposed.

President Uhuru Kenyatta and his deputy William Ruto are facing trial in The Hague on charges of orchestrating post-election violence that killed more than 1,100 people and injured more than 3,000 others six years ago. A former broadcaster, Joshua Arap Sang, is on trial in the same case as Ruto.

Kenyan diplomats have repeatedly asked for the two cases to be delayed or terminated completely. Last September, both houses of parliament voted to withdraw from the ICC altogether.

The ICC has a number of witnesses in its cases against the officials. Many are based in Kenya and have remained there since investigations began. Others have been relocated outside the country.

The WPA is only 18 months old, and was established at the same time as some of the witnesses due to testify in The Hague were coming under threat.

Mue argues that politicians have linked the need for witness protection in Kenya generally with the trials at the ICC, meaning there is little appetite for prioritising it.

“Witness protection has lacked the political support necessary to make it effective because it is viewed in light of the ICC and the post-election violence cases involving top government officials,” he said.

While the Kenyan authorities are expected to support the ICC and cooperate with The Hague in protecting these witnesses, it is the ICC and not the Kenyan government that has overall responsibility for their safety.

ICC witnesses can approach the WPA for support but the day-to-day protection provided by the WPA relates mainly to witnesses who give evidence in domestic trials in Kenya.

Experts like Mue have called on the government to increase its support for the WPA. He argues that it should see witness protection and a robust justice system in much broader terms than any individual case. He believes better witness protection would strengthen the rule of law and serve as a foundation for a safer society. This in turn would attract greater international investment.

“There is a need to make the government aware that Kenya’s economic aspirations cannot be realised when citizens feel insecure,” he said. “It is therefore in the best interest of the government to strengthen witness protection, which is a key pillar of the judicial system.”

Ondiek defended the government and denied the assertion that it was less than supportive. She pointed out the WPA was a very young institution that had not yet fully developed its operational capacity. She is confident that given more time, it will have the autonomy to work more effectively.

She insisted that when the agency needed additional funds, the government had been willing to provide them. As an example, she said she was expecting to receive supplementary budget funding of 52 million shillings this month.

WITNESS AGENCY LACKS INDEPENDENCE

Another problem for the WPA is the way it is perceived by witnesses themselves. Christopher Gitari, director of the International Centre for Transitional Justice (ICTJ) in Nairobi, told IWPR that many people were reluctant to approach the agency because it was under the umbrella of government.

The board of the WPA includes senior officials including the attorney general, the head of the police force and the head of the National Intelligence Service.

With Kenyan officials charged in The Hague, Gitari says some witnesses – particularly if they are giving evidence in a case that involves the government – fear that rather than protecting them, the agency might further jeopardise their safety.

As well as government figures, hundreds of serving police officers have been implicated in the mass crimes committed in late 2007 and early 2008.

“Witnesses don’t feel confident enough to approach the agency for protection,” Gitari said.
“We have heard people say, ‘How can I go to a government agency for protection against the same government?’ All these people [on the WPA board] work for the executive; they capitulate to the state. If you have a case against the president, for instance, the agency may not be able to protect you.”

Gitari said the WPA needed to inspire public confidence by demonstrating its independence from the executive.

Ondiek, however, denies that the WPA’s links with government have made the public lose confidence in it. She points to the 300 applications for help made in the last year as a sign of public trust.

She said the board only had an advisory role and gave no input on individual cases.

“The board has no control over the running of the agency,” she said. “They don’t even know the witnesses we protect. Our independence is protected by law.”

Despite this, Ondiek did acknowledge that the WPA had a public relations problem, since the covert nature of its work makes it difficult to demonstrate its methods and win public support.

To counter this problem, the WPA conducted a media awareness campaign last year and has a toll-free hotline which witnesses can use if they need protection. She says this helps mitigate anxieties among members of the public about contacting the police when they feel vulnerable.

“If a person feels threatened, the first step is to report to the police who then refer the matter to us. But where the police are the culprits, the person can come to us directly,” she explained. “We have liaison offices all over the country and are able to reach a witness within two hours of a report being made.”

[Correction: The original version of this article misrepresented the position of the Office of the Director of Public Prosecutions (DPP) with regard to events surrounding the Bungoma trial. IWPR would like to make it clear that Deputy DPP Kioko Kamula did not acknowledge any failure on the part of the Office of the DPP to fulfill its duties in relation to witness protection in the Bungoma case. IWPR apologises for the error.]

Wanja Gathu is a freelance reporter in Nairobi.

This article was produced as part of a media development programme implemented by IWPR and Wayamo Communication Foundation.