LETTERS: What BBI report missed on rules of court COURT

The Building Bridges Initiative (BBI) report proposes insightful and detailed recommendations under the Safety and Security pillar among others.

However, one of the solutions recommended to facilitate court procedures that guarantee the protection of informants, whistleblowers and witnesses is to create rules in courts that allow for the presentation of confidential testimony from whistleblowers, informants and witnesses, particularly in regard to terrorism, serious transnational crimes and corruption.

It gives the impression that there are no such rules in place to enable courts address the safety and security challenges posed by serious criminality. That is incorrect, but before getting there, let’s differentiate the three actors at issue.

There is no statutory interpretation of an informant, but in both investigative and intelligence gathering parlance, an informant, and by extension even an informer, is a source of information which is rendered free, or on payment. Mostly, sources are confidential and they would rather not be identified as whistleblowers or witnesses, especially in criminal investigations, or prosecution of such cases in judicial proceedings.

Currently, there are two interpretations of a whistleblower, one under the Bribery Act, 2016 and the other under the proposed Whistleblower Protection Bill, 2017.

Under Section 2 of the Bribery Act, a whistleblower means ‘a person who makes a report to the Commission (EACC), or the law enforcement agencies on acts of bribery, or other forms of bribery’.

In a more elaborate interpretation under Section 2 of the Whistleblower Protection Bill, a whistleblower means ‘any person who has personal knowledge or access to any data, information, fact or event constituting improper conduct and makes a disclosure of that information in accordance with the (Act), or person who assists such an individual.

Under Section 2 of the Witness Protection Act (Revised 2016), a witness means ‘a person who has made a statement or has given or agreed to give evidence in relation to an offence, or criminal proceedings in Kenya or outside Kenya, and requires protection on the basis of an existing threat or risk’. It is important to underscore the fact that a whistleblower could, willingly, turn out to be a witness in a criminal investigation and eventual case prosecution in judicial proceedings.

However, very rarely would an informant, or an informer become a whistleblower, or a witness, but in the event that happens, they should thenceforth be categorised accordingly and afforded right of protection under the respective statute(s).

As a result, anyone testifying in judicial proceedings is invariably identified and recorded as a witness, thus courts are blind to any other terminology.

Rules of court, which provide for what is variably referred to as procedural, or in-court protection measures, are about witnesses and their testimonies, as presented by prosecution and defence parties who constitute, together with trial court, the triangulation of criminal justice system. The rules complement the provisions of the Criminal Procedure Code in the administration of justice, specifically to ensure witnesses who are threatened or intimated, or likely to suffer other forms reprisal, testify freely and without any fear or worry.

Consequently, under Section 36(2) of the Witness Protection Act, the Chief Justice is empowered to make such rules of court as may be necessary or expedient for carrying out or giving effect to the Act in judicial proceedings. Between 2014 and 2015, ‘The Witness Protection Rules’ were developed, validated, and eventually adopted by the National Council on Administration of Justice, chaired by then Chief Justice Willy Mutunga.

Regrettably, and four years later, there is widespread ignorance of the framework by majority of key players along the administration of criminal justice chain. Indeed, the framework should form part of curricula in law enforcement, anti-corruption, public prosecution, law and judicial training institutions, to entrench understanding of witness protection as a fundamental right as enshrined in our Constitution.

Besides, the pending Whistleblower Protection Bill should be enacted to provide a legal framework for non-procedural protection measures such as those executed by the Witness Protection Agency.

Peter Mwangi, law enforcement and security management consultant.