Akobella Tommy Joshua (Ms)
Research Fellow, NIALS
One major difficulty militating against the efficient investigation and prosecution of criminal offences in most parts of the world is the unwillingness of victims and witnesses of crimes to provide information to law enforcement agencies and the courts. Oftentimes, the reluctance of victims and witnesses to testify is caused by fear of immediate and future acts of reprisals by the defendants and their associates. It therefore becomes necessary for the state to assure such vulnerable witnesses of their safety at the cost of the state, hence, the introduction and management of witness protection programs by several jurisdictions around the world.
The Nigerian criminal justice system has always had some form of victim and witness protection procedure with regards to certain offences and categories of victims. For example, the provisions of S.36 (4) of the Constitution of the Federal Republic of Nigeria (1999) provides for proceedings in camera in respect of certain matters and under special circumstances, in public interest. Also ss. 203 and 204 of the Criminal Procedure Act (CAP. C41 LFN 2004) permits a court to hold certain proceedings in private on grounds of public policy, decency and expediency. Other sector specific provisions are to be found in some enactments like the Economic and Financial Crimes Commission (Establishment) Act 2004, Trafficking in Persons (Prohibition), Enforcement and Administration Act, Independent Corrupt Practices and other Related Offences Commission Act, Violence against Persons Act, etc.
The Administration of Criminal Justice Act (ACJA) in 2015 made elaborate provisions for the protection of witnesses in specified proceedings. However, these provisions under ACJA on witness protection are limited to court room proceedings, as they do not take into consideration the aftermath of the proceedings. This deficiency is now remedied by the Witness Protection and Management Act 2022 (“WPMA”). The WPMA provides for a comprehensive witness protection system coordinated by the Office of the Attorney General of the Federation. The WPMA together with the existing enactments especially the ACJA, now forms the legal framework for witness protection in Nigeria.
ACJA provisions on witness protection
The ACJA in S.232 (4) has created five categories of offences that the provisions on witness protection are applicable to. These are sexual offences under S. 231; terrorism, economic and financial crimes, human trafficking and other related offences which are made the subject of witness protection by an Act of the National Assembly. The meaning of the proviso of S. 234 (4) ACJA is that the classes of cases that may be eligible for witness protection can increase in the future at the discretion of the National Assembly.
In addition to specifying the classes of cases to which witness protection protocols may apply, the ACJA in S. 232 (1) and (2) provides that where witness protection is applicable, proceedings may not be held in open court and the names, addresses, telephone numbers and identity of the victims and witnesses must not be disclosed in any report of the proceedings. In such situations, a combination of alphabets may be used to designate the witnesses. Where witness protection is granted, a court may adopt any of the following procedures to protect the identity of the victim or witness from hostile parties: receive evidence by video link, permit the witness to be screened or masked, receive written deposition of expert evidence and any other measure that the court deems appropriate.
Witness protection under the Witness Protection and Management Act, 2022
The major provisions in the WPMA focus on the establishment and management of a witness protection programme. Like the ACJA, the WPMA applies to specific offences like terrorism, economic and financial crimes, money laundering, corrupt practices and related offences, drugs and narcotics trafficking (S. 2). The innovative provisions of the WPMA include the definition of a witness which is extended beyond a person who actually gives evidence or information on behalf of the state (S.3 (a)) to include a person who because of his relationship with an active witness requires protection (S.3 (2)). Thus in appropriate circumstances dependents of an active witness may be eligible for witness protection.
Another innovation in the WPMA is the provision for redaction of the records of a witness and his dependents by a relevant agency and the powers of the relevant agency vis-à-vis to a protected witness. (s.4(2)(a)-(h)). Also, the WPMA empowers the government through the Attorney-General to enter into arrangements and agreements with other governments for the purpose of relocating protected witnesses to their countries as well as the hosting of their protected witnesses in Nigeria.
The witness protection programme in Nigeria is a multi-service scheme i.e. every agency in law enforcement and justice delivery sector is empowered to implement the provisions of the WPMA. The relevant agency is mandated to set up and train its witness protection unit and their personnel. The enactment of the WPMA is a major milestone in Nigeria’s justice delivery effort. However, the decentralization of the witness protection programme increases the risk of leakage. It is recommended that the programme be domiciled in a single agency as is the case in the USA where the US Marshall Service is in charge of witness protection. The centralization of witness protection in a single agency will promote efficiency, secrecy and specialization in the practice of witness protection in Nigeria.
Furthermore, centralizing the management of witness protection in a dedicated agency would make it easier for adequate funding of the programme. Witness protection is capital intensive. It is also an aspect of national security which does not admit of the usual red tapes associated with budgetary allocation and disbursement of funds through the usual sluggish channels. It is necessary for the National Assembly to place the budget of the witness protection programme on the first line charge thereby making the disbursement of the budgetary allocation to witness protection a top priority in the national budget.