HTTP 200 OK
Allow: GET, PUT, PATCH, DELETE, HEAD, OPTIONS
Content-Type: application/json
Vary: Accept
{
"id": 244857,
"url": "https://info.mzalendo.com/api/v0.1/hansard/entries/244857/?format=api",
"text_counter": 219,
"type": "speech",
"speaker_name": "Mr. Wako",
"speaker_title": "The Attorney-General",
"speaker": {
"id": 208,
"legal_name": "Sylvester Wakoli Bifwoli",
"slug": "wakoli-bifwoli"
},
"content": " Mr. Temporary Deputy Speaker, Sir, I beg to move that the Witness Protection Bill be now read a Second Time. 1878 PARLIAMENTARY DEBATES July 5, 2005 This is a very important Bill, particularly in our war against corruption. It is a good coincidence that I am moving this Bill when this morning, the National Action Plan against corruption was launched. The issue of witness protection is very important in the administration of the criminal justice system and, in particular, as I stated earlier, it aims at unravelling and successfully investigating and prosecuting corruption. Mr. Temporary Deputy Speaker, Sir, this is Bill has been baptized \"The Whistle-Blower's Bill\" to protect the whistle blower. It is only this morning that the workers' representative stated at the launch of the National Action Plan that many workers in this country have been dismissed from their places of work merely because they have reported instances of corruption against their bosses. We know and we receive many letters from retired civil servants who were dismissed sometime ago and most of the allegations they make is that they were dismissed or their services were terminated because they reported instances of corruption in their work places. We also know that many people are even afraid to report to the police instances, not just of corruption, but of any crime. They fear that if they do so and are known by the perpetrators of the crime to have done so, their lives will be in danger. We have seen that when independent commissions of inquiry are appointed, people who hitherto had not bothered to report to the police because of their fear, somehow feel confident that they can now give their evidence there. Mr. Temporary Deputy Speaker, Sir, I will be very brief when moving this Bill. This is a very important Bill dealing with the protection of whistle blowers. Of course, Clause 2 is the definition clause, and Clause 3 deals with who is a witness. In that definition, you will notice that the witness is not just a person who has given or has agreed to give evidence before criminal proceedings in court, or before any hearings or proceedings under any authority, or before commissions of inquiry; no, it goes and embraces a wider circle. Even if a person is not going to formally give evidence in court, he can qualify as a witness if, under Clause 3 (c), he has blown the whistle by just reporting what is going on to the Commissioner of Police or to any law enforcement agency. Mr. Temporary Deputy Speaker, Sir, even though a person may not give evidence, the definition is wide enough to include any person who may be related to him family-wise, or who may be somehow related to him and whose life may be in danger because of that connection. I recollect that at the time I used to do some work for the United Nations in Colombia, I was mainly concerned with the families of witnesses who had reported crime to the law enforcement agencies and left the country because they knew that if they stayed, they would be killed. However, their fleeing the country did not spare their families and friends from being injured by the drug barons. Therefore, the definition of a \"witness\" in this Bill, is wider than just a person who will give evidence in court. It includes people who may just give a statement to the police, which will trigger criminal investigations that may result in a conviction. It also includes the family members and other relatives who may, because of that action, be also in similar danger. That is provided under Clause 3(2). Mr. Temporary Deputy Speaker, Sir, these people are also protected from civil proceedings under Clause 33, which provides as follows:- \"No action or proceedings, including disciplinary action, may be instituted or maintained against a witness in respect of- (a) any assistance given by the witness to the court and to the law enforcement agency; and, (b) a disclosure of any information made by the witness to the court or to a law enforcement agency.\" This clause is similar to the clause we have given under the Anti-Corruption and Economic Crimes Act. So, the \"witness\" has a wider definition and encompasses every person. However, not July 5, 2006 PARLIAMENTARY DEBATES 1879 every witness will be allowed to benefit from this definition. First of all, what is a \"Witness Protection Programme\"? Mr. Temporary Deputy Speaker, Sir, Part II of the Bill puts in place the Witness Protection Programme, which will be under the control of the Attorney-General. Under this programme, certain action may be taken, such as allowing witnesses to establish a new identity as well as relocate to another place; to provide accommodation and reasonable financial assistance to the witness, as well as counselling and vocational training services. Why provide counselling for a witness? If you are going to change somebody's identity by name and everything else, some people might react psychologically differently. So, there is need for some counselling to see whether this person can, really, be fit for the Witness Protection Programme. It is the Attorney-General who will decide on who qualifies for this programme. Mr. Temporary Deputy Speaker, Sir, the considerations that the Attorney-General takes into account are clearly spelt out in Clause 6 of the Bill at page 610. In other words, the Attorney- General does not just act arbitrarily in deciding who should benefit. The Attorney-General shall not, for instance, facilitate a friend of his to benefit from the programme by qualifying and providing him with financial assistance so that he can lead a good life. There are considerations that the Attorney-General must weigh in while taking such a decision. One of such considerations include the seriousness of the offence to which the relevant evidence and statement relate. This is a very important aspect because, if this programme is to be very generous in terms of who qualifies to benefit from it, then the coffers of the State may not be able to sustain it. The first consideration should be how serious the crime is. We should consider if it is a crime that involves injury and can put somebody's life in danger. In this, we are talking about organised crime like terrorism, drug trafficking, corruption and international crime. In other words, crimes which are so serious that the perpetrators can have the intention to cover their crime by injuring the whistle-blowers or potential witnesses who give evidence against them. We are all aware that these things are now possible, even in the Republic of Kenya. The other consideration is the nature and importance of any relevant evidence, nature of perceived danger to the witness and the witness's relationship to other witnesses, and other factors as outlined in Clause 6. So, those are the factors to be considered by the Attorney-General. Once he has done that, he has to enter into a memorandum of understanding with the person who agrees to participate in the Witness Protection Programme. There are a number of legal issues which may arise if one is changing identity. What happens to the legal outstanding obligations of that person who was known as \"X\" and will now be known as \"Z\"? What happens if he or she has other cases pending in court, because going there under the old name would disclose their identity? Of course, there is a provision within the Act that the records of someone's former identity must be kept by the Attorney-General. What happens to his passport or identity card, and many other issues of that nature? What about if there is a case against him or his properties have been attached under his old name? The Bill has taken care of different kinds of situations, difficulties and challenges which would arise if someone changed identity. The Bill also provides that the Attorney-General can also grant the disclosure of identity on temporary basis. Clause 10(3) deals mainly with the provisions of protecting the witnesses from identification. It provides penalties of people who might disclose the true identity of the witness who has been protected. That becomes an offence. It provides that the Registrar of Persons can have a new entry in the registration of births and deaths. It also provides for the fact that all the orders that are required to be carried out under the Act will be carried out at the High Court level, owing to the importance of the matter. The proceedings relating to the issues will also be heard at the High Court, in camera, so that we do not have the cases being reported in the Press, or people 1880 PARLIAMENTARY DEBATES July 5, 2005 coming into the courtroom and knowing who the witness is, although he may be referring to himself as \"X\". The powers of the High Court to issue requisite orders have all been set out in the Bill. There are also provisions for cancellation of the programme and the person reverting back to his former identity. It also shows what can happen in all those circumstances. All that has been set out in the Bill. Mr. Temporary Deputy Speaker, Sir, I can just mention one offence - information not to be disclosed. The information regarding that matter should not be disclosed. If any person discloses such information, he is guilty of an offence and liable, on conviction, to a fine not exceeding Kshs500,000, or to imprisonment for a term not exceeding three years, or both. All the consequential amendments have been properly taken care of in the Bill. This Bill is long overdue and I urge this House to pass it as quickly as possible. I had asked Prof. Maathai, who is a layman, to second the Bill. I thought that this Bill would be supported by a non-lawyer because the issues related to this Bill are quite high. With those few remarks, I beg to move and request Prof. Maathai to second the Bill."
}