Introduction
The judiciary is the third arm of government charged with the responsibility (inter alia) of interpreting the laws and punish law breakers. One way in which it accomplishes these responsibilities is by way of adjudicating case, during which both the prosecution and the defence proffer tenable evidences to prove or disprove their case. Furthermore, both the prosecution and defence may often require credible witnesses to testify on their behalf. The centrality of witnesses in trials lends credence to the degree of support and protection they need, since witnesses can only testify freely when they are confidence that they will not be intimidated thereafter. This piece of writing, therefore, articulates the need for establishing a witness and victim support unit in the Sierra Leone judicial system. It specifically illustrates how giving support and protection to witnesses before, during and after trials enhance the dispensation of the rule of law, particularly in the face of the current reform efforts going on in the justice sector.
Witness Protection
Witness protection is basically the provision of security for a witness who testifies in a criminal trial. It may be in the form of assigning new identity and relocating the individual to another place for the primary purpose of avoiding revenge of persons affected by the testimony given. Generally, witness protection can be done before, during and after trials. Before trials, protected witnesses can be relocated for the purpose of ensuring that they are not harm. During trials, the identities of protected witnesses are shielded from the public. This is done by using mechanisms such as testifying behind a shield, voice distortion, video link, closed sessions, and the use of code names. After the trials, witnesses can also be relocated. Sometimes, the protection mechanisms need to include further guarantee of the security and support to others such as the dependants of the witness, who stand to be at risk of the testimony.
Witness protection is not a new concept, although formal establishments started in the 1960s when the Organized Crime and Racketeering Section of the United States Department for Justice investigated crimes. During that period, it was treated on a case by case basis. However, in 1970, the United States Federal Witness Protection Program was established by virtue of the Organized Crime Control Act. The Act granted the Attorney General the power to provide maximum protection for any witness who stands to be at risk by virtue of his/her testimony. (Kevin Bonsor:”How witness protection works”) Fourteen years later, the responsibility of the Attorney General with respect to witness protection was expanded by the Comprehensive Crime Control Act of 1984. This Act made provision for the protection of friends and relatives of witnesses who stand to be at risk prior to giving testimony. With the provision of the witness security in the mentioned Act, many cases were safely prosecuted in the United States, with little or no intimidation of victims and witnesses.
Witness and victim support system recently gained further prominence with the proliferation of international criminal tribunals. The International Criminal Tribunals for Rwanda and Yugoslavia (ICTR/ICTY) implemented specific measures in order to protect their victims/witnesses. Despite these measures were not part of their Statute, they were applicable by mutual consent to both Defence and Prosecuting witnesses. The lack of the incorporation of this support system in the ICTR/ICTY’s Statute was, however, corrected in the establishment of the Special Court for Sierra Leone (SCSL).
The SCSL Registry established a Victims and Witness Support Unit (VWSU) pursuant to Rule 34 of the Rules of Procedure and Evidence (The Rules). The VWSU is responsible for ensuring that protective security measures are put in place so that witnesses and victims testify securely before the court. To this end, the Court normally institute protective measures when it is required.
The Case of the Sierra Leone Judiciary
However, there is no established programme supporting witnesses and victims under the Sierra Leone Judiciary. Lawyers in the national court practice ad hoc system in managing their witnesses. Consequently, some counsel come to court without even knowing the whereabouts of their witnesses, thereby causing undue delays to the trial process.
Moreover, the absence of evidence to prosecute accused persons in criminal cases may lead to prolonged pretrial detentions. The judges depend on evidence tendered in court in order to administer justice. If the source or the evidence itself is lacking, the court might not be able to adjudicate properly as required by law. Where evidence is lacking in criminal trials, or little or no effort is made to protect the source of that evidence, the pretrial detention of the defendant may be prolonged. The reason for this is that, the decision for such cases solely depends upon the authenticity of the evidence on behalf of the prosecution. Since there is no support system to protect witnesses alleged criminals would always faced prolong pretrial detentions. Consequently, when evidence is lacking, a ‘no case’ submission may be tendered on behalf of the defendant. Ultimately, the availability of evidence to prosecute a crime requires the willing participation of witnesses and victims to testify or give accurate account of the event. As earlier mentioned, this willingness can be hampered by fear of being intimidated or victimized by the adversarial party or some members of the public. When fear is imminent, accurate evidence cannot be collected from such witnesses. To allay such fears, the witness or victim should be provided with certain rights and protective measures and the court should also ensure that these rights and protections are respected.
The need for a support system
Witness protection in practice, gives psychological confidence and security to witnesses and victims. It may even extend to others who stand to be at risk by virtue of the testimony and evidence given in courts. Since Sierra Leone is currently undergoing its post war reconstruction there is a need for a witness and victim support system which would protect vulnerable witnesses and victims.
The national courts are usually faced with sensitive issues such as rape or sexual violence, cases involving minors and people with disabilities. In cases of sexual violence or rape, victims are usually ashamed to testify or even help in the prosecution of such offences. They are afraid of testifying in court because of the dangers of ostracisation. More so, the sight of the perpetrators/accused might induce some element of fear, shock or hatred in the mind of the victim. Subsequently, this will hamper the ability of the witness to give full and correct details of what happened. This might result to a miscarriage of justice as the victim would not be able to give proper account of the evidence. If a support system is however established, witnesses/victims would be provided with legal advice and assistance that would encouraged them to testify freely in court
In criminal trials, the names and identity of witnesses and victims should be kept secret in order to facilitate the anonymity of the victim or witness. In rape cases, the anonymity of the victim should be kept secret to avoid further embarrassment and stigmatization. The presence of the general public often militate against the ability of the victim to testify freely. If there is a support system mechanism, such as voice distortion and protection of identity; this may help the victim to testify comfortably. This is important as the quality of the evidence will assist the court in making a just verdict.
In cases involving children, a child victim/witness may also not be comfortable to testify in the presence of the defendant/accused. Such victim/witness should be given the opportunity to testify in an atmosphere that is free from intimidation and other forms of fright. Therefore, arrangements should be made for a support system that would ensure that the victim/witness undergoes counseling before testifying. The support system is also needed for cases involving witnesses with disabilities. This will help combat the strains involved in accessing the courtroom, and the rigors of possible adjournments.
Conclusion
Witness protection should be done in a manner that is not inconsistent with the rights of the accused. In some cases, the ability to rebut testimony of witnesses can sometimes depend on the identity and background of the witness. Without such knowledge, the defence would not be able to conduct an effective cross-examination. In establishing a witness and victim support mechanism to protect witnesses and victims, the defence should be given the opportunity to test the credibility and/or reliability of a witness/victim. This is premised on the fact that, the laws of Sierra Leone guarantee presumption of innocence in trials until proven guilty. Therefore, the accused must be accorded fair hearing which may include the right to examine witnesses. However, in exercising this right may sometimes undermine the security guarantee of the witnesses. In that instance, the court should only employ a means, such as shielding the identity of the witness from public or having a closed session. In this way, the court would have stroke a balance between the interests of both parties to the conflict.
One important benefit the establishment of WVSU may bring to the Sierra Leone judicial system, is enhancing witness management system. Once a WVSU system is established, this will help the prosecution or defence to be able to know the whereabouts of their witnesses. Like it happens currently, most lawyers go to court without being sure whether their witness will be present or not. The establishment of WVSU will therefore, only enhance the dispensation of the rule of law in post conflict Sierra Leone.