Witness Protection in Nigeria

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Taiwo Alabi

By Taiwo Alabi

Elie Wiesel said, ‘what hurts the victim most is not the cruelty of the oppressor, but the silence of the bystander’[1].  Martin Luther King Jr. said that, ‘I became convinced that noncooperation with evil is as much a moral obligation as is cooperation with good’[2].

Literarily, a witness is someone that is present at an event. In the legal sense, witnesses are those that give testimony during trial. Trial may be criminal, civil, corporate, et al. Hence, in such risky adventure, witnesses ought to be given adequate protection.  Lots of prose have been written to address this issue, but, that been said, Nigeria hasn’t put such into reality. This prose seeks to further buttress the concept of witness protection and some of the guiding laws.

Conceptualization and History

Witness protection is a scheme that protects the witnesses and families from being identified by giving them another identity. In fact, it might require that they are taken out of jurisdiction to another jurisdiction with another identity – names, addresses, identification numbers, and language. This is done to guard against reprisal attacks owing to the technicality or sensitivity of the case/matter the witness is involved in.  The United States of America in 1971 established this program called the federal witness security program, with the acronym, WITSEC[3]. It is established to provide witnesses and their families with protective services to their health, safety and security, with stiff punishments meted out to anybody that links any information about such witnesses. This program was administered by the US Marshall Service over federal offences[4]. This program has overseen and protected thousands of witnesses[5]. This program has been accepted by other states that has promulgated their own laws in its regards[6]. This program offers basic living facilities and costs as well as a 24hour security protection at wherever location such witnesses are[7]. Nonetheless, those incarcerated in the prison custody, are kept at the Protective Custody Units (PCUs) inside the federal prisons[8]. In addition, the Canadian Police, through the Royal Canadian Mounted Police (RCMP) runs this program too under the Witness Protection Program Act, which was assented on June 20, 1996[9]. More so, the United Kingdom has the coast-to-coast protection outlay, known as, the UK Protected Persons Service (UKPPS)[10]; the Security Bureau of Hong Kong runs this program in its security outfits, as well as the Israeli, Italian and other European Countries of the world[11].

In fact, Article 24 and 26 of the United Nations Convention against Transnational Organized Crime (General Assembly resolution 55/25, annex I)[12] provides that, states parties are to provide appropriate measures to protect witnesses who give testimony in transnational crime from intimidation and retaliation. Also, parties should participate with law enforcement agents to investigate such crimes and to garner evidence.

With the progressively more rates of the crime in Nigeria, such as kidnapping, banditry, drug and human trafficking, terrorism, to name a few; it is imperative that, to better off-put these crimes by diligent prosecution, those testifying against these should be given adequate protection. Because, the strength of a case, lie not only in the amount of wordings in your statements/pleadings, but also in the truth and accuracy of the witnesses.

Examination of some local laws.

In Nigeria, there is no comprehensive law on witness protection, albeit, the National Assembly has a bill on witness protection in Nigeria, which has not been passed into law since 2017. But, the some laws that curbs crimes in the country has its ways of protecting the witnesses. Let’s take the examination of some laws. The 1999 Constitution of the Federal Republic of Nigeria (as amended), s. 36(4), explains that the court can exclude some people that has no interest in a case because of the sensitivity of the matter or create a special tribunal for such cases[13].

The ICPC and EFCC Acts, provided for the protection of the witnesses that aids the prosecution by giving information that aids it. But did not state how it will be done, neither does it state the modes of protecting the witnesses.

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The National Agency for the Prohibition of Terrorism and Human Trafficking Act, (NAPTIP ACT), provides for the protection of witnesses that aids the prosecution of these crimes of human trafficking by concealing their identity, use of pseudonyms, video link, non-publication of recordings or testimony and counselling of the victims and their rehabilitation in shelters[14].  But this Act did not provide for the provision of security personnel to man those witnesses which is a better form of protection against any form of physical assault should their information leaks[15].

The Administration of Criminal Justice Act, 2015, provided for forms of protecting the witnesses, as similar to that, provided by NAPTIP, including the provision of face/screen masks to shield the face of the witnesses[16]. It also includes the payment of expenses to the witnesses by the prosecution, by virtue of section 251. It further excludes some people from the court room when a minor wants to give testimony.

The Violence against Persons and Property Act, slated some measures to protect victims from sexual offences, mainly[17].

However, these acts did not provide for the provision of security personnel to guard the witnesses or give a change of identity for a longer period after the situation is contained.

More so, in some sexual related matters, some witnesses are protected by the court, especially through the institutionalizing of family courts, and deterring measures by the VAPP Act.

The Witness Protection Program Bill, 2017 of Nigeria is currently in the legislative house, yet to be passed into law[18]. The effectiveness of the bill rests mainly on the Attorney General, when it comes into law. The scope of the bill covers persons indirectly or directly affected in the prosecution of a case, upon the recommendation of the law enforcement agencies, International Criminal Court or Tribunals. It covers witnesses of organized crimes, such as financial crimes, terrorism and the likes.  Such persons must have provided his/her personal information to the Attorney General for a Protection Agreement to be made. However, persons that haven’t entered into such agreement initially but out of emergency needs to be covered can be protected at the instance of the Attorney General, which is not more than 90 days[19].

Qualifications[20]

More so, admission into this program is not automatic, there are some factors that needs to be considered, such as; the risk involved, the expenses involved, the danger of keeping such witness in a community, the maturity of the witness, the judgment involved in the matter, the personal characteristics of the witness, the family, the value of the information given by the witness, the importance of the witness, and many more. If any that qualifies for the program is rejected, the Attorney General will give his reasons in a letter to that person.

Protection Agreement[21]

The Protection Agreement has some terms which are fundamental, such as the terms as to the financial responsibility of the protected when such is not provided for in the law, to give information that are necessary to the inquiry, to abide by the terms and not do any act that is inconsistent with investigation of the matter. Although the Attorney General has the prerogative to do anything that is not slated in the terms in furtherance of the terms. This Agreement is made with the relevant law enforcement agencies, the International Criminal Courts, in order to provide for the protection of whatever witnesses involved in other countries, but with the consent of the minister of interior, same as other foreign courts or tribunals[22]. More so, the witnesses and the law enforcement agencies have a duty of non-disclosure, save the Attorney General that can disclose the whereabouts of the witness on exceptional occasions, where it is necessary for the prosecution of the matter. Should any contravene the provisions of the act, such is liable for conviction of an offence, for a term of 2 years or ₦500, 000 or both. Since the law, is an Act of the National Assembly, it is the Attorney General of the Federation that has the duty to act in these capacities.

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Examination of some case laws

Moreover, a look at some case laws evinced that this scheme has been effective in Nigeria to some extent. In the case of FRN v Dasuki[23], the court granted the prosecution’s motion with the grounds that the witnesses should be protected with the protective mechanism stated above, being a corruption and terrorism case, as well as in FRN V Karibu Umar[24]; but in FRN V Nnamdi Kanu, the court did not grant the prosecution’s claim for protecting the witnesses, especially with the use of masks, but the court granted that the witnesses should be put in a special room and they would not be accessed by the public[25].

The limitation that the expression of this program has currently in the laws of Nigeria is that the definition section of those laws does not explicitly state that the offences would enjoy such protection in case witnesses testify.

Means of protecting witnesses

  1. Pseudonyms
  2. Change of identity
  3. Change of location
  4. Use of screen/face masks
  5. Well secured environment
  6. Use of Pretrial statements.
  7. Removal of the Defendant from court room and in camera sessions.
  8. Relocation
  9. Accompanying persons.
  10. Anonymous witness.

These and many more are the means of protecting witnesses.

Financial Obligations.

The expenses to cover for this program is provided by the government in its budget, as it applies in other jurisdictions, therefore, in Nigeria, the federal budget will increase by reflecting the financial expenses for protecting witnesses in the country.

In other jurisdictions, the witnesses are guarded against attacks, even against bomb blasts, they are given financial support up to a million dollars, depending on the severity of the crime, for some time before they got themselves jobs in their new area, they are given new identity including their children, and proper medical care for those that needs medical help to conceal their identity[26]. But, research holds it that some of those protected also get involved in another crime, such as debts in their new location and most of those protected committed or are involved in crimes[27]. Should any wants to leave, he is free to leave but with serious caution[28].

Duration

The length of time for witnesses to benefit from this program depends on the longevity in the prosecution of the case. When the matter has been concluded, the witnesses should be protected for a period of time until the whole situation is contained that the person will not subsequently be affected as it obtains in other jurisdictions.

Therefore, from the rundown of the bill at the National Assembly, it covers whistle blowers, which made it wide in its scope. Therefore, with the promulgation of this bill, it will synchronize other laws highlighted above in its effectiveness, in as much as those laws are federal laws, which will aid the diligent prosecution of matters in Nigeria. The means of protecting the witnesses are what have been highlighted in some laws aforementioned, especially the change of location and identity.

In summary, witness protection program covers the witnesses testifying in a matter. This program can enhance the investigation of the prosecution and encourage the adjudication of matters.

Recommendations

Crimes can be contained and prosecution can be finely tuned when witnesses are given the good platform to testify just to aid the case of the prosecution. The prosecution has the ability to expand its investigation tactics, when they are encouraged by the disposition of the witnesses.

In Nigeria, proper security apparatus should be available for the success of this program. If the program comes into existence in Nigeria, but with inadequate security apparatus, the essence of the program will be jeopardized. More so, witnesses of financial and organized crimes should be given new identities as evinced in the essay, as well as their families, because, if the perpetrators of the crime cannot reach the witnesses, the families could be taken.

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Laws in Nigeria that embraces the program such as those which have been highlighted above should give adequate description of how the witnesses should be protected.

Where corruption stops in a sector, that sector has the tendency of increase. Should corruption stay out of the program, the safety of the witnesses is assured.

In addition, experts in criminology, psychology and other relevant fields should be brought into the establishment of the body that oversees the program. In establishing the program, expatriates should be contacted on the technological know-how of the scheme for it to achieve great success.

In as much as some of the witnesses are involved in the crime, they should be provided a rehabilitation mechanism where they would be rehabilitated into the general society, without a link to their former crime clan.

Also, states should have the program of theirs, mirroring that of the federals’ but with distinctions as are peculiar to the state in order to protect the witnesses of the state, because most of the crimes are state offences as well as witnesses that wants to testify against federal offences. Although, most offences in the state laws are not federal offences, this will hinder the enforceability in the states, but the state can practice theirs too, by promulgating their laws that governs witness protection in the state, as we have it at other jurisdictions such as the United States of America, where states has their witness protection programs.  So, in a country as Nigeria, where the federal government gives allocations to the states, the state would have to support the scheme in order for it to have great impact in the state.

Conclusion

Through the assent of the president or the votes of the house on the bill, as well as support from the executive arm of government, many crimes that threaten Nigeria will be greatly abated. Corruption would be significantly reduced and the courts will have the honour it deserves as well as the adequate trust of the people in it. Many do not want to testify because of the safety of their families. If their families are not safe because of a testimony, they would rather not testify or give a false testimony in exchange for some money. Therefore, the bill that was sponsored by some eminent members of the house of assembly is a great feat towards stardom.

Taiwo is an Associate at Abegunde and Abegunde’s Chambers, Abuja Quarters, Ado Ekiti, Ekiti State. He has interest in Tax, Arbitration, Corporate and Commercial matters as well as general legal practice. He can be reached via  taiwoalabi06@gmail.com 07061115452 – WhatsApp.

References

  1. https://www.goodreads.com
  2. https://www.mentalfloss.com
  3. wathi.org
  4. https://en.m.wikipedia.org
  5. https://www.criminaldefenselawyer.com
  6. United Nations Office on Drugs and Crime, Vienna; Good practice for the protection of witnesses in criminal proceedings involving organized crime. UNITED NATIONS, NEW YORK, 2008.
  7. Suzzie Onyeka Oyakhire, d Thesis, Legal framework of witness protection measures during criminal trial in Nigeria, University of Cape Town, South Africa. Pp. 13-34.

[1] https://www.goodreads.com accessed on May 11, 2021.

[2] Ibid.

[3] https://www.criminaldefenselawyer.com accessed on May 11, 2021.

[4] Ibid.

[5] Ibid.

[6] Ibid.

[7] Ibid.

[8] Ibid.

[9] https://en.m.wikipedia.org accessed on May 11, 2021.

[10] Ibid.

[11] Ibid.

[12] United Nations Office on Drugs and Crime, Vienna; Good practice for the protection of witnesses in criminal proceedings involving organized crime. UNITED NATIONS, NEW YORK, 2008.

[13] Suzzie Onyeka Oyakhire, Ph.d Thesis, Legal framework of witness protection measures during criminal trial in Nigeria, University of Cape Town, South Africa.  Pp. 13-34.

[14] Ibid.

[15] Ibid.

[16] Ibid.

[17] Ibid.

[18] www.wathi.org accessed on May 11, 2021.

[19] Ibid.

[20] Ibid.

[21] Ibid.

[22] Ibid.

[23] Charge No FHC/ABJ/CR/319/2015.

[24] Charge No FHC/ABJ/CR/38/13

[25] Suzzie Onyeka Oyakhire, Ph.d Thesis, Legal framework of witness protection measures during criminal trial in Nigeria, University of Cape Town, South Africa.  Pp. 13-34.

[26] https://www.mentalfloss.com accessed May 11, 2021.

[27] Ibid.

[28] Ibid.

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