By Shafa’atu A. Abdullahi

Renowned Law Scholar, Professor Muhammed Tawfiq Ladan, has emphasized the crucial role of Trust, Confidence, and Assurance in ensuring effective witness protection and support schemes in criminal justice delivery globally.

Prof. Ladan made this assertion while presenting a paper titled “Formulation and Workability of Witness Protection Schemes or Support Systems Under Criminal Justice System” at a 3-Day Leadership Course in Criminal Law and Civil Justice organized by the Nigerian Police Force in partnership with Peace Building Development Consult (PDBC) in Abuja.

According to Prof. Ladan, Trust, Confidence, and Assurance are the cornerstones of a successful justice system, in Nigeria and anywhere in the world. He stressed that these elements determine the fate of the accused in a competent court of law or justice.

As the subject matter of the presentation is witness or witnesses, Prof. Ladan emphasized how they can be effectively protected and supported by any criminal justice system. He noted that witnesses constitute the cornerstone of a successful investigation, prosecution, and judicial proceedings.

The reason why these three key words are important, according to Prof. Ladan, is that witnesses in any justice system, particularly in the criminal justice system, can only play their strategic roles as a matter of both constitutional obligations and civic duty if they have trust in the criminal justice system.

He further stated that witnesses also need to have confidence to come forward to assist law enforcement and prosecutorial authorities in the discharge of their functions. “And more importantly, witnesses need to be assured by the government and national agencies that they will receive the needed support and necessary protection from intimidation, threats to their lives and families, harassment, potential and perceived harms against them or against their loved ones, family members or friends.”

Prof. Ladan emphasized that this assurance is crucial, as witnesses may face attempts to discourage them from assisting and cooperating with investigators, prosecutors, and judicial officers or punish them for cooperating with law enforcement or judicial authorities.

The workshop aimed to enhance leadership capacity in criminal law and civil justice, bringing together senior police officers, the army, DSS, INEC, anti-corruption agencies etc

Prof. Ladan’s address provided valuable insights into the critical role of Trust, Confidence, and Assurance in justice delivery, sparking discussions among participants on strategies to strengthen the justice system.

Prof. Ladan is a renowned law scholar with extensive experience in justice sector reform and administration. His work has significantly contributed to the development of effective administration of criminal justice in Nigeria and Africa.

 

Full Text of Professor MT Ladan’s Paper on: “FORMULATION AND WORKABILITY OF WITNESS PROTECTION SCHEMES OR SUPPORT SYSTEMS UNDER CRIMINAL JUSTICE SYSTEM”

INTRODUCTION

In the investigation and prosecution of crimes, especially the more complex and serious forms of organized crime, it is essential that witnesses, the cornerstone for successful investigation and prosecution, have trust in criminal justice systems. Witnesses need to have the confidence to come forward to assist law enforcement and prosecutorial authorities. They need to be assured that they will receive support and protection from intimidation, threat or harm that criminal groups may seek to inflict-upon them or their families in attempts to discourage or punish them from cooperating with law enforcement authorities.

In formulating a witness protection and support scheme, the following core issues need to be factored in: – participants and the crime; meeting the threat by providing witness assistance or support scheme and alternative measures; setting up a witness protection programme by addressing needs / wants, legislation / policy basis, programme location, funding , personnel, organisational structure and principles of operation; entering witness protection by determining the application process, decision-making authority, criteria for admission, memorandum of understanding, relocation and identity change and implications of relocation and identity change for the witness. On the other hand, workability of such a protection and support scheme depends largely on the capacity to addressing the challenges in the implementation of the scheme, such as adequate funding, infrastructure development for the scheme, trained personnel across the law enforcement and justice sector institutions and provision of protection and support to witness at all stages: – before, during and after trial.

The Nigeria Criminal Justice system has always had some form of victim-witness protection procedure with regard to certain offences and categories of victims-witnesses. For example the provisions of section 36 (4) Proviso of the 1999 Constitution of Nigeria, as amended, provide for proceeding in private of certain matters and under special circumstances, in the public interest or interest of justice , etc.; section 64 of the ICPC Act, 2000, provides that the identity of a person who gives information to the Commission will be protected. The analysis of the legal protection framework for witness protection and support in Nigeria’s criminal justice system has been provided below.

This presentation therefore aims at enhancing understanding of the issues and challenges surrounding witness protection in our criminal Justice system.

1.0 WHO IS A WITNESS?

A witness is any person “who gives evidence in a case before a Court and in its general sense includes all persons from whose lips testimony is extracted in any judicial proceeding.’1 A witness can also be defined as someone with crucial information who has given or agreed to give such information during a judicial proceeding. The term’s broad definition allows it to cover several categories of persons, such as judicial collaborators, experts, victim witnesses, and a person present in court who is compelled to give evidence. The presumption of innocence, enshrined in Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999 (1999 Constitution) as a fundamental principle in the criminal law system, places the burden on the prosecution to prove the guilt of the accused beyond a reasonable doubt. Testimonial evidence from witnesses in court can be used to discharge this burden of proof partially or wholly. It is possible to secure a conviction on the singular testimony of a (credible) witness.2 Concerning organised crimes, including corruption, the testimony of witnesses is particularly valuable. Corruption offences are characteristically covert and are of low reportability. Furthermore, most major corruption cases have no direct victims, especially within the public sphere. These characteristics impede the success of traditional methods of investigation. Witnesses with personal knowledge of corruption-related crimes provide statements that help to identify the crime’s organisers and beneficiaries and decipher how the crime was committed.

Unfortunately, witnesses may be reluctant to give evidence because of perceived or actual intimidation or threats against them or family members. Using the resources and power at their disposal, suspects and defendants may threaten to harm witnesses and their close associates. Justice Rodger in Ackerman J.S vs. Leepile, highlighting the challenge of witness intimidation, stated that:

The intimidation of witnesses is an age-old and worldwide problem. When Cicero was intent on prosecuting Verres for his reign of terror in Sicily, highly placed henchmen of Verres threatened the fearful and oppressed Sicilian witnesses with dire consequences if they gave evidence against him.3

Since the failure to call a witness whose testimony may determine a case is fatal to the prosecution’s case, the actual or perceived fear of intimidation by a witness negatively impacts the criminal justice administration.4

2.0 WITNESS PROTECTION AND ITS RELEVANCE

Witness protection refers to the collective mechanisms in or outside courts that prevent or minimise the risk of harm or threats to a witness. Witness protection can be defined as the “methods of providing security to witnesses, ensuring their safety and those of their families, including everything that they are entitled to have by law, in exchange for the witnesses’ testimony.”5 The primary purposes of witness protection are to

….…give practical effect to the rule of law by, as far as reasonably possible, protecting those who are exposed to risk of injury or death because of their participation in or co-operation with the criminal justice system…….……[And] advance the public interest in the efficacy and integrity of the criminal justice system through the provision of protective support to those who are at risk due to their cooperation in its functioning.6

The reasoning behind these mechanisms is that if society relies on witness testimonies to prosecute criminals, witnesses are put at risk and their well-being is jeopardised. Therefore, it is the State’s responsibility to provide sufficient protection to counter this threat.

In fulfilling its purpose, witness protection aids crime control efforts in society and discourages impunity. Unsuccessful convictions can lead to higher crime rates. Once witness intimidation is curbed through an effective witness protection regime, it eliminates the challenges faced by criminal justice stakeholders in holding criminals accountable for the crimes which they are accused of committing.7

Articles 32 and 33 of the United Nations Convention against Corruption (UNCAC) call for state parties to undertake appropriate measures to protect witnesses against retaliation or intimidation for their testimony. A similar obligation for witness protection is placed on state parties by article 13 of the United Nations Convention Against Torture and article 24 of the United Nations Convention against Transnational Organized Crime (UNTOC) respectively. Presently, witness protection is viewed as a crucial tool in combating crime. Many countries worldwide have enacted laws addressing witness protection either as protective measures during some or all the various phases of the criminal justice administration proceedings or a holistic witness protection programme which extends to after the proceedings are over. Examples of witness protection measures include physical protection of witnesses or members of their families; anonymous testimony, payment of witness expenses and concealing the identity of witnesses through image and voice distortion, videoconferencing and use of pseudonyms while giving testimony. The mechanisms could also include extreme measures such as temporary or permanent relocation, changing of identity, and cosmetic surgery to change the physical appearance of the witness.8

3.0 LEGAL FRAMEWORK FOR WITNESS PROTECTION IN NIGERIA’S CRIMINAL JUSTICE SYSTEM

The framework for witness protection is relatively new under Nigerian laws and only apply to protective measures during criminal trials. It does not apply before or after trial. Until the year 2022, Nigeria never had a single stand-alone legislation on witness protection scheme. Hence the following legislations are discussed.

Administration of Criminal Justice Act (ACJA) 2015

In recognition of the risk of intimidation of witnesses and victims or retaliation against them, the ACJA provides protective measures for witnesses and such measures include limiting public disclosure of the witness’ or victim’s identity,9 delaying the disclosure of the witness or victim’s identity to the accused, or in exceptional cases,10 completely denying the accused the benefit of knowing the identity of the witness against him. Section 232 provides a wide range of possible scenarios where witnesses and victims should be protected during trial. It is important to note that this section applies only to trials for rape, defilement, incest, unnatural or indecent offences against a persons;11 offences under the Terrorism (Prevention) (Amendment) Act; offences relating to Economic and Financial Crimes; trafficking in Persons and related offences and; any other offence in respect of which an Act of the National Assembly permits the use of such protective measures or as the Judge may consider appropriate in the circumstances.12

Furthermore, trial of offences referred to here may not, where the court so determines, be held in open court.13 The names, addresses, telephone numbers and identity of the victims of such offences or witnesses shall not be disclosed in any record or report of the proceedings and it shall be sufficient to designate the names of the victims or witnesses with a combination of alphabets.14 Section 232(3) provides measures where the court in any proceeding may deem it necessary to protect the identity of the victim or a witness as thus: receive evidence by video link;15 permit the witness to be screened or masked; receive written deposition of expert evidence and; any other measures that the court considers appropriate in the circumstance. Any contravention of the provisions of section 232(2), that is the non disclosure of names, addresses, telephone numbers and identity of victims and witnesses, shall be an offence and liable on conviction to a minimum term of one year imprisonment.

Anti – Torture Act 2017

This law provides for the protection of the victim, witnesses and persons reporting torture. Section 17 provides that it is the responsibility of the State to ensure that any person including the complainant; witnesses; or person making a complaint, whether the victim or not, is protected against all manner of ill treatment or intimidation as a consequence of his or her complaint or any evidence given.

An Overview of The Witness Protection and Management Act 2022

The administration of criminal justice in Nigeria, can neither be efficient nor effective where the actors in the ecosystem are not guaranteed their protection. Such actors include defendants in a criminal action, witnesses, judges, legal practitioners etc. The safety of witnesses who are responsible for oral testimony in the prosecution of crimes has hardly received statutory consideration. The overall effect of this lack of protection for witnesses has resulted in the unfortunate striking out of cases involving heinous crimes16 by the Courts, as witnesses often refuse to testify due to the absence of a system designed to cater for their protection by the State. Hence, witnesses and their relatives often lack the confidence to testify in proceedings. To achieve this purpose, President Muhammadu Buhari, on 23rd May 2022, signed the Witness Protection and Management Bill into Law, effectively changing its status to an Act of the National Assembly, the Witness Protection and Management Act, (“the Act”). The objectives of the Act include the establishment of a legal and institutional framework to protect witnesses and related persons, with responsibilities for carrying out all administrative duties relating to witnesses and related persons17, including providing temporary protection and related services; ensuring that the relevant agency takes responsibility for agreeing with the witness on behalf of the State; regulating the procedure and determining how the provisions of the Act are to be carried out; ensuring adequate consideration is given to the rights of witnesses, as well as harmonizing the existing laws and policies on witness protection and management.18

The Act does not apply to the investigation and prosecution of all criminal offences as it only applies to specific offences such as terrorism, money laundering prevention and prohibition, economic and financial crimes, corrupt practices and other related offences, drugs and narcotics and their trafficking.19 Importantly, 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 offences. With this, no institution whether it be the Nigerian Police Force, Nigeria Customs Service, Nigerian Immigration Service etc. is exempted from the application of the Act. It remains to be seen whether sometime in the nearest future, similar protections shall be extended to civil actions which have a more direct impact on individuals and businesses.

WHO QUALIFIES AS A WITNESS UNDER THE ACT?

A witness, under the Act, is a person who has information about the commission of an offence or wrongdoing and has given, or is giving or has agreed to give evidence on behalf of the State in the proceedings for the trial of the offence, or hearings or proceedings relating to the offence or wrongdoing before an authority which is declared by the Attorney-General by an order published in the Federal Gazette to be an authority.20 A witness is also a person if he or she has made a statement to the Inspector-General of Police or a member of the Nigeria Police Office or a law enforcement officer, in relation to an offence in contravention of a law in Nigeria.21 A person will also be considered to be a witness if due to his or her relationship with a witness, such a person requires protection.22

THE ESTABLISHMENT OF THE WITNESS PROTECTION AND MANAGEMENT PROGRAMME

Part II of the Act provides for the establishment of the Witness Protection and Management Programme by a relevant agency. This agency is empowered to take actions as may be reasonable and necessary for the safety and welfare of the witnesses who provide information, evidence or any other form of assistance to the relevant agency.23 The agency is also to establish a procedure to determine the criteria for admission to and removal from the programme,24 as well as a training scheme for Witness Protection Officers.25 The following are the powers of the agency: physical and armed protections, making necessary arrangements to allow the witness to establish a new identity, relocating the witness, providing accommodation for the witness, and providing reasonable financial assistance to the witness.26

To ensure the protection of witnesses in the course of a proceeding, the agency may request the court to hold closed sessions, use pseudonyms, redaction of identity information, and use of video links. All these techniques are to ensure that witnesses and their identities are not unduly exposed and to ensure their safety.27 Also, the Act mandates the relevant agency to protect the witness under the Act and designate a Witness Protection Office at each of its branch offices.28

CRITERIA FOR INCLUSION INTO THE WITNESS PROTECTION PROGRAMME

The Act enumerates the prerequisite for inclusion into the Witness Protection Programme and they include: the seriousness of the offence to which the statement or evidence of the witness relates, the nature and importance of the witness’ testimony, the nature of the perceived threat and/or danger to the witness, the nature of the witness’ relationship to any other witness being considered for inclusion or who is already in the Programme, the result of any psychological or psychiatric examination or evaluation conducted to determine his suitability for inclusion in the Programme, whether there are viable alternative methods of protecting the witness, whether the witness has a criminal record, particularly in respect of violent crime, which indicates a risk to the public if he is included in the Programme etc.29

APPLICATION, APPROVAL AND TERMINATION OF WITNESS PROTECTION

The process for inclusion into the Witness Protection Programme requires a witness who has reason to believe that his safety or that of any other person is or likely to be threatened by any person or a group or class of person whether known to him or not by reason of his being a witness to report his belief to the appropriate authority which includes the investigating officer in the investigation, a person in charge of a police station or the head of the relevant agency.30 In special circumstances, a report could be made on behalf of the witness by the witness’ legal representative or a law enforcement officer.31 A Judge may order or direct the making of a report or an application on behalf of the witness.32

During the pendency of the application, the law allows the relevant agency to make provision for temporary protection for a witness or a related person for a maximum of twenty-eight (28) days if it deems it necessary. The law makes special provision for a minor by compelling the agency to obtain the consent of the parent or guardian of such a witness.33 However, the consent may not be obtained in certain circumstances as the Attorney-General may specify in the regulation.34 The witness must give his consent before he can be a part of the witness protection programme.35 For the effective performance of its duties, the Act grants the relevant agency the privilege of immediate and full access to any crime docket and statement of a witness and to any evidence given in any proceedings36 and to obtain certified true copies of any statement or evidence or any part of it made in connection to the matter.37

The relevant agency, after the consideration of an application for inclusion in the programme, may make an interim arrangement with the witness or related person relating to his protection,38 approve or refuse such an application. Upon the approval of an application for inclusion, the witness or any related person is placed under protection following the protection agreement entered into by or on behalf of the witness or related person and the relevant agency.39 When it refuses the application, and where applicable, by written notice to the witness, revoke any temporary protection under which he or any related person has been placed under section 5(1) of the Act.40 The witness should be informed of the refusal by the Head of the agency and a review should be applied for by the witness within seven days of being informed of the decision.41 The relevant agency is also to review, confirm, reverse or vary its decision and inform the witness in writing of its decision within seven (7) days of its receipt of the request.42

 

PROVISION OF A WITNESS PROTECTION AGREEMENT

Section 9 of the Act provides for the Protection Agreement which must be written and entered into by the relevant agency and the witness or each related person or the parent or guardian of a minor.43 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. The relevant agency must take reasonable and necessary steps to provide the witness with the protection and related services and not to keep a person under protection in any correctional facility or custody, except agreed upon by the parties.44 The witness is obliged to give evidence as required in the proceedings to which the protection relates, to meet all financial obligations incurred by him that are not payable by the relevant agency, to refrain from any activity that constitutes a criminal offence, to refrain from activities that might endanger his safety or that of any other protected person.45

TERMINATION OF PROTECTION AND THE MANDATORY NATURE OF NOTICES

The Act empowers the relevant agency to terminate the inclusion of a witness or related person through written notice if it believes that the safety of the witness is no longer threatened, satisfactory alternative arrangements have been made for the protection of the witness, the witness has failed to comply with any obligation imposed under the Act or by the Protection Agreement, the witness in applying for inclusion in the programme has willfully furnished false or misleading information, failed to disclose any relevant information in the application, the conduct of the witness has endangered or may endanger the safety of another protected witness, the conduct of the witness is likely to threaten the security or compromise the integrity of the programme, the witness has willfully caused serious damage to the place of safety or any property in or at the place of safety.46 Upon termination of the protection agreement, the relevant agency is mandated to allow the witness or the parent or guardian of a minor to make a written representation to it within twenty-eight (28) days concerning the termination of the protection.47

After the agency considers the representation of the witness or any other appropriate person, as provided in section 11(6), and if it is satisfied that the evidence of a witness is no longer required in the proceedings concerned or the proceedings have been concluded, terminate the participation of the witness through a written notice within twenty-eight (28) days.48 There will be an extension of the protection for a period as the relevant agency deems fit if, after the conclusion of the proceedings, the agency thinks that the witness to be discharged from the programme is still being threatened. However, before an extension of the protection of a minor, a Judge’s approval in chambers must be given.49 The effectiveness of a termination decision of an agency starts within a reasonable time which must be after twenty-eight (28) days of the agency notifying the witness.50 In a case where it is impossible to locate the witness, the termination becomes effective at the end of the twenty-eight (28) days after due steps were taken.

AGREEMENT WITH INTERNATIONAL BODIES, INSTITUTIONS, ORGANISATIONS OR FOREIGN COUNTRIES

Section 17 empowers the Attorney-General of the Federation to approve an arrangement between the relevant agency and a foreign State, International body, institution or organisation on any matter relating to cooperation between Nigeria and that other party relating to witness protection.51 Section 17(2) allows for an exchange witness protection programme between a relevant agency and a competent authority in a foreign country. This agreement will allow any relevant Nigerian agency to place a protected person under a witness protection arrangement administered by that country or admit a protected person to a witness protection arrangement under any law applicable in that country. This provision implies that Nigerian agencies can now fly witnesses to other countries with which they have witness protection agreements. Conversely, a Nigerian agency can accommodate witnesses from other countries in Nigeria. However, it is the regulatory framework of the other country’s witness protection that will be applied.

THE ESTABLISHMENT OF THE WITNESS PROTECTION FUND

The Act establishes a Witness Protection Fund, the management and control of which shall be the responsibility of the relevant agency.52 The following are the sources of the Protection Fund: money appropriated by the National Assembly which is to be at least fifty per cent of the total estimated expenditure of the Protection Fund; sums of money as may be approved by the President for the protection of witness under the Witness Protection Programme and the protection and making rewards and compensation to the person making public interest disclosures; sums of money accruing to the Protection Fund from any fund or account established in any Act of the National Assembly for the lodgment of proceeds of confiscation and forfeiture of assets in Nigeria.53

The money in the Protection Fund is to be used for; the support of witnesses and related persons in the Programme, giving effect to the operation of the Programme, and the payment of rewards to persons who make public disclosures under the provisions of the Act where the information provided by the person contributes directly to the recovery of stolen or concealed public funds or assets.54 The Act restricts the expenditure from the Protection Fund, except the Council approves such expenditure.55 The purpose of the expenditure must also be in line with the purpose of the Fund. The money from the Fund may also be invested by the relevant agency as the Council may deem fit.56 The Act saddles the relevant agency with the preparation of the estimates and to cause proper books of accounts and other records to be kept in connection with the Protection Fund.57

Other provisions of the Act include the protection of witnesses from identification,58 mode of application by the relevant agency for court orders for certain acts such as making a new entry in a register of birth, marriages or death in respect of a witness or a relative and the issuance of a new identity to a witness,59 restoration of the identity of a witness.60 The court is to grant such orders to protect the identity of the witness if it is satisfied that the life or safety of such witness is endangered.61 The Act also prohibits the disclosure of information or publication of documents on the witness protection programme62 as well as the identity of the witness in legal proceedings.63 It also provides for offences and penalties for the contravention of its provisions.

4.0 CONCLUSION

It is evident from the above analysis, that the scheme for witness protection and support is a complex and capital intensive system, necessary for upholding the rule of law and administration of justice without fear or favour. Witness protection is no doubt an essential tool in the fight against crime and for effective administration of criminal justice in Nigeria. hence budgetary and programmatic measures need to be put in place to implement effectively the provisions of the legal framework in Nigeria.

The Act, like every other statutory enactment, is not without loopholes; such loopholes include but are not limited to the effect of the use of pseudonyms in witness depositions when the Oaths Act prescribes disclosure of the full name and other personal data64. Moreso, the Act was not granted an overriding effect over the Evidence Act. Furthermore, relevant agencies such as the Nigeria Police Force, Economic and Financial Crimes Commission (EFCC), National Drug Law Enforcement Agency (NDLEA), National Agency for the Prohibition of Trafficking in Person (NAPTIP) etc. are likely to require formal training in setting up Witness Protection Units. Dispute Resolution-specialized law firms as Famsville, have a lot to offer in this regard in terms of sensitization of the general public, relevant agencies and capacity building. In all, the Act marks a welcome development for the administration of criminal justice in Nigeria as vital witnesses who before now, have expressed legitimate apprehensions against oral testimony in the Courts are now granted protection under the Act. Law enforcement agencies are now likely to secure convictions in court against defendants charged with crimes as the Act would encourage witnesses to testify in criminal trials.

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