In an administration of the criminal justice system where a witness’ security or identity cannot be safeguarded, many cases involving scandalous crimes will be abysmally struck out for lack of witnesses to testify against defendants.
This is because out of fear of being harmed or even killed for testifying against culprits in court, the culture of silence will have a bush-fire effect amongst witnesses out of fear and consequently enervate the justice system.
An Abuja Division of the Federal High Court on June 16, 2019, permitted the protection of witnesses in a trial of former National Security Adviser (NSA), Sambo Dasuki.
The judge, Ahmed Mohammed, said the witnesses will testify in court, behind a screen protecting them from the public.
Mr. Mohammed said his decision to allow the protection of witnesses was premised on Section 232(4) of the Administration of Criminal Justice Act (ACJA) which allows the use of such screens for prosecution witnesses in cases involving economic and financial crimes.
Accordingly, A federal high court in Cross River state on October 24, 2019 granted anonymity to individuals expected to present evidence against Jalingo, the publisher of the privately owned news website CrossRiverWatch.
The bill
The Nigerian law provides for witness protection under the Witness Protection Program (WPP) established by the Witness Protection Act of 2017.
The Act seeks to encourage and facilitate the giving of vital information by witnesses in criminal proceedings, by providing for their protection, and for other related purposes.
Under the Act, a witness may apply for protection if he or she reasonably believes that there is a threat to their life or safety or that of their family or property as a result of their cooperation with law enforcement agencies.
The Act aims to encourage witnesses to come forward and give evidence without fear of reprisal or harm to themselves or their families.
It also provides for the establishment of a Witness Protection Advisory Committee to oversee the implementation of the program.
Background of the bill
On March 30, 2022,In an effort to ensure an unfettered protection of witnesses in Nigeria, the Senate passed the Witness Protection and Management Bill.
On May 23, 2022, President Muhammadu Buhari assented to the bill and signed it into law
The bill seeks to provide a legal and institutional framework for the security of witnesses and related individuals in respect to revelations made for public interest.
The Bill further seeks to provide support, management and protection of witnesses through public institutions vested with the powers to investigate. and/or prosecute criminal cases.
Applying for witness protection
The WPP is responsible for assessing the application, and if the application is successful, the witness is provided with protection measures such as relocation, change of identity, and security personnel.
Additionally, the Nigerian Criminal Code also contains provisions for the protection of witnesses, which include making it an offense to intimidate, harass, or harm a witness.
The Criminal Code also provides for the use of anonymous evidence and the examination of witnesses through video conferencing to protect their identity.
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The Witness protection Act applies to specific offenses such as terrorism, money laundering prevention and prohibition, economic and financial crimes, corrupt practices and other related offenses, drugs and narcotics and their trafficking.
For institutions, The Act applies to all institutions and authorities in the justice sector such as courts, law enforcement and security agencies to ensure the protection of witnesses in the course of investigation, detection and prosecution of offenses.
Who is a witness?
Witness Protection and Management Act defines witness as someone who has firsthand knowledge of an event or occurrence, validating (or attesting) such happening and has given, or decided to give evidence in the proceedings for the trial of the offense, relating to the crime before an authority which is acknowledged by the Attorney-General of the Federation (AGF) by an order published in the Federal Gazette to be an authority.
The protection of a witness
The act provides that a witness will be given both physical and armed protection to ensure that the fellow assumes a new identity. The individual can also be relocated and accommodation provided as well as provision of necessary financial assistance.
Part 2 of the act makes provision for the creation of the witness protection and management programme by a relevant agency to guarantee the safety and welfare of the witness and additionally provides a procedure to define the standards for admission to and removal from the programme.
To certify that witnesses’ identities are not disproportionately exposed and to confirm their safety, the act mandates the agency to request the court to hold closed sessions, use false names, redaction of identity information, and utilize video links, amongst others.
In a situation where there is a physical or mental harm to witnesses or a loss/damage to their property, the agency is mandated to pay compensation to the witness.
Witness protection contract
Section 9 of the Act affords for a written agreement to be signed by the agency and the witness or each related person or the parent or guardian of a minor. In the agreement, conditions under which a witness will be placed under protection will be agreed upon.
The Protection Agreement must list the conditions under which a witness or a related person will be placed under protection. They include obligations on both the relevant agency and the witness.
This contract however, can be terminated through written notice under the following circumstances;
● If the agency is certain that the safety of the witness is no longer endangered.
● If the witness fails to conform with any requirement enacted under the Act or the Protection Agreement.
● When discovered the witness willfully presented fabricated or distorted information.
● If the witness fails to divulge any significant information in the application.
● If the behavior of the witness compromises or may threaten the safety of another protected witness.
As provided in section 11(6),If the agency considers that the evidence of a witness is not needed in proceeding, it can within 28 days, terminate the contract, after the agency has considered the representation of the witness.
Contract with other countries or foreign institutions
Under section 17 of the act, the AGF has the prerogative to consent to an arrangement between a foreign country or institution on a case that relates to the country or the witness, vice versa.
What this means is that Nigeria can fly witness to a country that has a witness protection agreement with Nigeria and can equally admit a protected person in Nigeria in a situation where a foreign witness is needed to testify in court.
However, it is pertinent to note that it is the regulatory framework of the other country’s witness protection that will be applied.
Setting up a witness protection unit in agencies such as the Economic and Financial Crimes Commission (EFCC), Nigerian Police Force (NPF), National Agency for the Prohibition of Trafficking in Person (NAPTIP) amongst others, will necessitate formal training before such is established.
Lawyers speak on the laws enforcement and its reality
Yahaya Yusuf, a Lawyer noted that before 2015, there was little or no law that provided for the protection of witnesses before, during and after trial.
He said the law establishing law enforcement agencies and regulations that they work with, gives them the opportunity latitude to protect their witnesses/whistle blowers.
He stated that the scope of the protection was very limited as the courts in some cases heard witnesses in Camera and not in the open courts where they find the need to, although the coming of ACJA 2015, provided for a widened protection of witnesses.
“A witness can give evidence or the court can receive evidence by video link. A witness is permitted to be screened or masked, receive written deposition of expert evidence or any other measure that the court considers appropriate in the circumstance.
“However, the scope of the protection is only to the mode of how the evidence of a witness can be protected. There is no protection as to his safety, wellbeing or even that of family members.
“There was a bill in 2019 on witness protection and management to provide for protection of witnesses and whistleblowers. It was passed in 2022 but yet to be assented to by the president.
“On the whole, there is no single legislation prior to 2022 that provides for protection of witnesses. There was no support of any sort by the government. They only run to seek protection orders in the court after testifying.” Mr. Yusuf explained.
He added that issues of insider connivance have overtime thwarted the protection of witnesses under the care of agencies under their care.
“There have been instances where individuals with interest in some cases have revealed the identity of witnesses under care of the agency to the defendant.
“This has ultimately led to the discouragement of some witnesses because they receive threats. It is essential for the rightful authorities to protect secret documents and make those who frustrate witnesses’ effort face the wrath of the law.” He said.
Barrister Dele Olaniyan, a legal practitioner agrees with Yahaya Yusuf on the reality of witness protection. He told TheJurist Newspaper that there has never been a time he experienced witnesses being protected for the past 37 years, since he commenced the legal practice.
He stated that although the witness protection act has been passed, the reality is different, as oftentimes parties have to make arrangements for basic necessities to care for witnesses.
“I haven’t seen any witness protection operate in reality or experienced any instance where a witness was given an allowance to appear in court or even pay for travel expenses from one state to another.
“In other countries, witness protection is guaranteed but in Nigeria, it just exists in the books. What can be done to make witness protection actualized in the country, is for the court to make an order, compelling the protection of witnesses and their welfare in cases where witnesses are needed.” He said.