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The Witness Protection Rules

Legal Notice 225 of 2015

This is the latest version of this Legal Notice.
The Witness Protection Rules
Citation
Legal Notice 225 of 2015
Primary work
Witness Protection Act
Date
31 December 2022
Language
English
Type
Legal Notice
Original enactment
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LAWS OF KENYA

WITNESS PROTECTION ACT

THE WITNESS PROTECTION RULES

LEGAL NOTICE 225 OF 2015

  • Published in Kenya Gazette Vol. XCVII—No. 117 on 30 October 2015
  • Commenced on 30 October 2015
  1. [Revised by 24th Annual Supplement (Legal Notice 221 of 2023) on 31 December 2022]

1. Short title and commencement

These rules may be cited as the Witness Protection Rules and shall come into operation thirty (30) days after publication in the Gazette.

2. Interpretation

In these rules, unless otherwise the context requires—"Act" means the Witness Protection Act;"Agency" means the Witness Protection Agency established by Section 3A of the Witness Protection Act (Cap. 79);"appropriate person" means any court official or any other person at the court point and the remote point who is required to be, or may be, present at the proceedings, including the presiding officer, the prosecutor, the accused, the accused's advocate, technical assistance, police officer, court clerk, any witness and members of the public who are entitled to be present;"audio-link" means a live telephone link between the court point and the remote point which are both equipped with facilities which will enable audio communication between all appropriate persons at the court point and the remote point;"audio-visual link" means a live television link between the court point and the remote point which are both equipped with facilities which will enable all appropriate persons at the court point and the remote point to follow the proceedings and see and hear all the appropriate persons;"child" means a person who has not attained the age of eighteen years;"Court" means a court of competent jurisdiction;"court point" means the court room, or other place where the court having jurisdiction is sitting;"intermediary" means a person appointed by the Court on account of their experience or expertise to assist the witness or vulnerable witness to give their evidence in Court and may include a parent, relative, doctor, psychologist, counselor, guardian, children officer, probation officer or social worker;"intimidated witness" means anyone suffering from fear or distress in relation to testifying in a case before Court, or commission or Tribunal, or anyone whose quality of testimony is likely to be diminished by fear or distress in connection with testifying;"police officer" has the same meaning assigned to it under the National Police Service Act (Cap. 84);"protection officer" means a person appointed as such under section 3N (1) of the Witness Protection Act (Cap. 79);"publication" has the same meaning assigned to it under the Interpretation and General Provisions Act (Cap. 2);"redaction" means the removal of any identifying information from a document;"Registrar" means a registrar of the relevant court;"remote point" means the room or place at the designated place where the accused person or the witness, appearing through audio-visual link is located;"Rules" means the Witness Protection Rules;"threatened witness" means a witness who fears that a threat which is express or implied of an intention to inflict harm, pain or misery will be carried out in circumstances in which a reasonable person would fear that the threat would be carried out;"Tribunal" means the Witness Protection Appeals Tribunal established under section 3U of the Witness Protection Act, or other tribunal of competent jurisdiction;"vulnerable witness" includes a child, person with mental disability or learning disability, physical disorder or disability, people likely to suffer fear or distress in giving evidence because of their own circumstances or those relating to the case and persons who are vulnerable depending on the nature of the crime; and"protection order" means an order of the Court directing protection of a witness.

3. Application of Rules

These Rules shall apply to the proceedings with respect to a protected witness in accordance with section 36(2) of the Witness Protection Act (Cap. 79).

4. Protection of witnesses

(1)The Court shall take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of witnesses by having regard to all relevant factors, including age, gender, health and nature of the crime.
(2)The Court shall, on its own motion or upon application made by the Agency or the prosecution make appropriate orders for the protection of a witness.
(3)The Court may make a protection order if it is satisfied that—
(a)the person before the Court or named in the application is a witness;
(b)the person was a witness to, or has knowledge of an offence and is, or has been a witness in criminal proceedings relating to the offence;
(c)the person was or is a witness in any other proceeding;
(d)the person is a person who, because of their relationship to, or association with, a person to whom subparagraph (a), (b) and (c) applies, may require protection or other assistance;
(e)the life or safety of the person may be endangered as a result of being a witness;
(f)the protection measures alone or in combination shall most likely maximize and improve the quality of the eligible witness's evidence in the circumstance of the case;
(g)a memorandum of understanding has been entered into by the witness in accordance with section 7 of the Act.
(4)In determining whether the protection order should be granted, the Court shall take into account all the circumstances of the case, the eligibility criteria set out in this rule, and whether or not the protection order in question is likely to inhibit the evidence being effectively tested by any party to the proceedings or is not contrary to the interest of justice.
(5)The Court shall hold in camera proceedings to determine whether to make the protection order.
(6)Where the Court refuses to give an order for the protection of a witness, it shall record its reasoning for the refusal.

5. Protection measures

(1)The Court may make a protection order for any or a combination of the following appropriate measures to facilitate the testimony of a protected witness—
(a)measures to prevent disclosure to the public or media of the identity or whereabouts of a witness, or of persons related to or associated with a witness by such means, including—
(i)expunging identifying information from the Court's public records;
(ii)redacting identifying information from the materials, statements and information disclosed to the accused or their advocate;
(iii)giving testimony through image or voice distortion or alteration devices or behind a screen;
(iv)assigning a pseudonym;
(v)closed session in accordance with rules on closed sessions;
(vi)prohibiting any party in the proceedings from disclosing any information to a third party of the protected witness; or
(vii)assigning a separate waiting room for a witness.
(b)measures to allow production of evidence in the physical absence of the witnesses, including—
(i)using audio-visual technology, in particular, video conferencing and closed circuit television;
(ii)video recording evidence-in-chief and interviews; or
(iii)using the sound media or a live link;
(c)measures that aid in the giving of evidence, including—
(i)using communication aids;
(ii)giving evidence through an intermediary;
(iii)changing the trial venue, or hearing date:
(iv)hearing a case on a day to day basis until completion; or
(v)permitting the expedited testimony of a protected witness where it is necessary in circumstance of the case to meet the ends of justice.
(2)Any measure allowed by the Court for the protection of a witness shall not prejudice the rights of an accused person to fair trial.
(3)The Registrar shall make available facilities and equipment to protect the safety, physical and psychological well-being, dignity and privacy of witnesses as ordered by the Court.

6. Duration of protective measure

A measure ordered by the Court in respect of a witness in any proceedings before the trial Court shall last throughout the trial, or such period as maybe determined by the Court.

7. Variation of a protective order

(1)The Court may on its own motion, or on application by either party, apply for the protection order to be varied or discharged.
(2)Before the Court makes an order under subrule (1), a party shall show that there has been a significant change of circumstances of the witness since—
(a)the Court made the order; or
(b)an application for it to be varied was last made.
(3)The Court shall state, in open court, its reasons for giving, varying or discharging a protection order or rejecting such an application.

8. Public hearing

A hearing shall be held in open court in the presence of the accused, or the accused's advocate and the public unless otherwise provided for in these rules.

9. Closed or in-camera hearing

(1)The Court may exclude a person, the press or public from all, or part of proceedings and order the proceedings to be held in camera for the following reasons—
(a)protecting the rights of the accused or a witness;
(b)public order or morality;
(c)safety, security, privacy or non-disclosure of the identity of a witness as provided for in rule 4;
(d)maintaining the dignity and decorum of the proceedings;
(e)protecting the interests of justice; or
(f)security of the State.
(2)In any proceedings pending before the Court, the Court may, at the request of the Agency, or the prosecutor direct that any person whose presence is not necessary at the proceedings, or any person, or class of persons mentioned in the request shall not be present at the proceedings.
(3)Despite subrule (2), judgment shall be delivered and sentence passed in open court if the Court is of the opinion that the identity of the person concerned shall not be revealed.
(4)Where a witness before the Court is a child, the Court may on its own motion, direct that no person, other than a parent, or guardian or a person in loco parentis shall be present at the proceedings unless the person's presence is necessary in connection with the proceedings, or is authorized by the Court.
(5)An application under this subrule may be made orally, or in writing and shall be heard in camera.
(6)The Court shall make public the reasons for its orders.

10. Testimony by means of audio or video link technology

(1)Where it is in the interest of justice to do so, a trial court may, by an order on application of the Agency or the prosecution, dispense with the attendance of a witness whether resident in Kenya or outside the country, whose evidence is necessary but whose attendance cannot be secured without undue delay, expense or convenience.
(2)The evidence referred to in subrule (1) may be given through video-link.
(3)An application for the taking of such evidence through video-link technology shall be heard in camera and shall indicate—
(a)the whereabouts of that person whose evidence is sought;
(b)the date and place at which the evidence is to be taken;
(c)a statement of the matter on which the person is to be examined; and
(d)the circumstances justifying the taking or the giving of such evidence through video link.
(4)The Court may allow a witness to give oral evidence by means of audio or video technology.
(5)Despite subrule (3), the technology shall permit the witness to be examined by the prosecutor, the defence, or by the Court, at the time that witness testifies.
(6)The Registrar shall ensure that the venue chosen for the conduct of the audio or video link testimony is conducive to—
(a)the giving of evidence;
(b)the safety, physical and psychological well-being of the witness; and
(c)the dignity and privacy of the witnesses.
(7)For evidence given under this rule to be admissible, it must satisfy the provisions of rule 11.

11. Qualifications for evidence of audio and video recorded interview

(1)The Court shall ensure that audio and video recording meet the technical requirements set out in subrule (2) for purposes of proceedings by way of audio-visual link.
(2)The court point and the remote point must be equipped with facilities that enable appropriate persons—
(a)at the court point to see and hear a person appearing before the court or making submissions, or any other appropriate person at the remote point and to follow the proceedings; and
(b)at the remote point to see and hear all appropriate persons at the court point and to follow the proceedings.
(3)The Court may, subject to subrule (4) below, direct that a matter is adjourned to the next court day in the event of—
(a)an interruption of an audio-visual link;
(b)an audio-visual link being of poor quality which, in the Court's opinion, is not in the interest of justice to continue the proceedings by way of audio-visual link; or
(c)any equipment malfunctioning.
(4)The Court may, in order to ensure a fair trial, give directions in any case as it may deem necessary.
(5)The directions referred to in subrule (4) shall not be inconsistent with these Rules.

12. Video recorded evidence-in-chief

(1)The prosecution or the defence may apply to the Court for leave to admit into evidence video recorded evidence-in-chief.
(2)The Court may allow the introduction of previously recorded audio or video evidence of a witness, or the transcript or other documented evidence of such testimony—
(a)if the witness who gave the previously recorded evidence is not present before the Court, both the prosecution and the defence had the opportunity to examine the witness during the recording; or
(b)if the witness who gave the previously recorded testimony is present before the Court, does not object to the submission of the previously recorded testimony and the prosecution, the defence and the Court have the opportunity to examine the witness during the proceedings.

13. Evidence through an intermediary

(1)Whenever proceedings are pending before any Court and it appears to the Court that it would expose any witness to undue mental stress, or suffering if the witness testifies at the proceedings, the Court shall, on its own motion or upon an application and subject to subrule (4), appoint a competent person as an intermediary in order to enable the witness give evidence through that intermediary.
(2)No examination, cross examination or re-examination of any witness in respect of whom a Court has appointed an intermediary under subsection (1), except examination by the Court, shall take place in any manner other than through the intermediary.
(3)An intermediary shall, if the Court so directs, convey the general purport of any question to the relevant witness.
(4)An intermediary shall accompany a witness when that witness is testifying in Court.
(5)When an intermediary accompanies a witness who is testifying in Court, the intermediary shall remain visible to the Court except when the Court makes an order that prevents the intermediary from being visible to the Court, or any other person present before the Court.
(6)An intermediary shall swear or affirm to the Court that the intermediary shall—
(a)assist the witness to the best of the intermediary's ability; and
(b)not interfere with the witnesses, or the evidence of the witness.
(7)In performing the functions of an intermediary, an intermediary may—
(a)accompany, stand or sit near the witness;
(b)give the witness the physical or psychological support that the witness may require;
(c)stand, or sit in the full view of the witness; or
(d)draw the attention of the Court if the witness is in distress.
(8)An intermediary shall not instruct a witness regarding the giving of evidence.
(9)In the interest of justice and for the protection of a witness, the Court may direct that an intermediary—
(a)shall not do any act in relation to a witness; or
(b)shall take such action in relation to a witness as the Court may require.
(10)Where the Court appoints an intermediary for a witness, it shall inform an accused person, in writing, and shall give the accused person an opportunity to be heard regarding the appointment of the intermediary.
(11)If a Court appoints an intermediary under subrule (1), the Court may direct that the relevant witness shall give evidence at any place—
(a)that is informally arranged to set the witness at ease;
(b)which is so situated that any person whose presence may upset that witness, is outside the sight and hearing of that witness; and
(c)which enables the Court and any person whose presence is necessary at the relevant proceedings to see and hear, either directly or through electronic or other media, that intermediary as well as that witness during their testimony.
(12)The Court shall provide reasons for refusing any application, or request by the prosecution for the appointment of an intermediary.
(13)An intermediary appointed by the Court in terms of subrule (1) shall be summoned to appear in Court on a specified date and at a specified place and time to act as an intermediary.
(14)If, at the commencement of, or at any stage before the completion of the proceedings concerned, an intermediary appointed by the Court—
(a)is for any reason absent;
(b)becomes unable to act as an intermediary in the opinion of the Court; or
(c)dies,
the Court may, in the interest of justice and after due consideration of the arguments put forward by the accused or the accused's advocate and the prosecution—
(a)postpone the proceedings in order to obtain intermediary's presence;
(b)summon the intermediary to appear before the Court to provide a reason for being absent;
(c)revoke the appointment of the intermediary and appoint another intermediary; or
(d)revoke the appointment of the intermediary and order that the proceedings continue in the absence of an intermediary.
(15)The Court shall immediately give reasons for any direction, or order referred to in subrule 14 (d) which reasons shall be entered into the record of the proceedings.

14. Protecting the identity of a witness

(1)The Agency may apply to the High Court ex parte for an order for any document necessary—
(a)to allow a witness to establish a new identity; or
(b)to restore a protected person's former identity.
(2)The application shall be made in writing and shall be heard in camera.
(3)The Court shall make the order upon the Agency satisfying the requirements of rule 4 of these rules.
(4)The Court may make an order authorizing a specified person to—
(a)make a new entry in the register of births or register of marriages in respect of the witness;
(b)make a new entry in a register of deaths in respect of the witness, or a relative by blood or marriage of the witness; or
(c)issue in the witness's new identity a document of a kind previously issued to the witness.

15. Record of proceedings and record of evidence

(1)The Registrar shall cause to be made and preserved a full and accurate record of evidence of all proceedings, including audio recordings, transcripts and, when required by the Court, video recordings.
(2)The Court, after giving due considerations to any matter relating to witness protection, may order the disclosure of all, or part of the record of closed proceedings when the reasons for ordering its non-disclosure no longer exist.
(3)The Registrar shall retain and preserve all physical evidence produced during the proceedings subject to any practice direction, or any other order which a court may at any time make with respect to the control or disposition of physical evidence offered during the proceedings before the Court.
(4)Photography, video recording or audio recording of the trial, otherwise than by the Registrar may be authorized by the Court.

16. Prohibition of publication of certain information relating to the proceedings

(1)Where the Court under these Rules or on any ground referred to in rule 9 directs that the public, the press or any class of persons shall not be present at any proceedings, or part of the proceedings, the Court may direct that no information relating to the proceedings, or part of the proceedings held behind closed doors shall be published in any manner.
(2)A direction by the Court under subrule (1) shall not prevent—
(a)the publication of information of the name and personal particulars of the accused;
(b)the charge preferred;
(c)the plea;
(d)the verdict; and
(e)the sentence, unless the Court is of the opinion that the publication of any part of such information might defeat the object of its direction under rule 4 in which event the Court may direct that such information shall not be published.
(3)No person shall publish any information which reveals, or may reveal the identity of an accused person under the age of eighteen years.
(4)Despite subrule (3), the Court, or the Registrar may authorize the publication of information as the Court or the Registrar may find necessary if the publication would in their opinion be just and equitable in the interest of any particular person.
(5)No prohibition or direction under this rule shall apply with reference to the publication in the form of a bona fide law report of—
(a)information for the purpose of reporting any question of law relating to the proceedings in question; or
(b)a decision or ruling given by a Court on such question if the report does not mention—
(i)the name of the person charged;
(ii)the person against whom, or in connection with whom the offence in question was alleged to have been committed;
(iii)any witness at the proceedings; or
(iv)the place where the offence in question was alleged to have been committed.

17. Application to Court

(1)An application to Court under these Rules shall be made by the Agency, the prosecution, the investigating officer or any other investigative agency in the proceedings.
(2)An application to Court may be made orally or in writing at the discretion of the Court.
(3)An application may be made to the Court at any time during the trial.
(4)A written application under these Rules shall be made by notice of motion.
(5)An application under these Rules shall specify the special measure sought and the reasons for the application.
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History of this document

31 December 2022 this version
30 October 2015
Commenced