Witnesses who testify in person in criminal trials often face serious challenges, especially when some are victims of the atrocities perpetrated. Sometimes, testifying in court invokes the horrors they have gone through. In other instances, they fear reprisal from the accused, his family or friends and even the communities they come from. This fear often dissuades them from coming forth to testify.
At the Special Court for Sierra Leone (SCSL), some witnesses come to court under protective shields to testify. Rule 69(A) of the Rules of Procedure and Evidence of the SCSL (the Rules) ensures that “either of the parties to the trials may apply to a Judge of the Trial Chamber or Trial Chamber to order the non-disclosure of a victim or witness who may be in danger or at risk, until the Judge or Chamber decides otherwise.” That notwithstanding, Article 17(4)e of the Statute of SCSL gives the accused the right to “examine the witnesses against him/her and to obtain the attendance and examination of witnesses on his/her behalf under the same conditions as witnesses against him/her.” Where do both interests meet? Which of the two interests should have primacy over the other? To uphold the right of the accused to fair trial and public hearing, or to prevent intimidation of and reprisal against the witness at the expense of the right of the accused? This article therefore attempts to answer these questions by examining witness protection at the SCSL, the safety and security of the witnesses before, during and after trials and how best to achieve such goals without inhibiting the rights of the accused to a fair and public trial. The article ends by exploring possible ways of replicating similar programmes in our municipal courts.
Witness Protection at the Special Court for Sierra Leone
From its inception, the SCSL established a Victim and Witness Unit (VWU) pursuant to Rule 34(A) of the
Rules, commonly referred to as Victims and Witness Support Unit (VWSU). Their task is to protect victims and witnesses who will testify before the Court, “…and others who are at risk on account of testimony given by such witnesses, in accordance with their particular needs and circumstances”. Unlike other international criminal tribunals, the establishment of the VWSU is by virtue of the SCSL Statute. The inclusion of this Unit in the Statute signifies its cardinal importance to the whole trial process. The Unit is larger and has more staff compared to the International Criminal Tribunals for Rwanda/Yugoslavia (ICTR/ICTY). The Unit provides both physical security and psychosocial support. It extends similar programmes to family members of a witness whose testimony is likely to jeopardise their lives.
As aforementioned, witness protection normally assumes three dimensions: protection before, during and after trials. Whilst the SLCMP acknowledges the importance of all three stages, this article focuses mainly on the trial stage, as it concerns the rights of the accused.
During trial stage, the VWSU gives courtroom orientation to witnesses to help them overcome fright and enhance confidence. A witness that does not require special protection normally gives testimony in the full view of all sides to the trial including the public gallery. However, in the case of a protected witness, he comes to court with a pseudonym and sits in a shield to protect his identity at least from the public. In addition, the court sometimes distorts his voice so that the public gallery would not identify the witness speaking. If the witness is a minor or a child below 18 years, the video-link method is used. The Unit will show the screen only to members of the internal Courtroom and not to the public gallery. Furthermore, if the witness testifying is likely to say certain names that will eventually disclose his identity or the testimony is sensitive to national security, the Court will go into “Closed Session”.
This to some extent infringes on the rights of the accused to a fair and public hearing. As already stated, Article 17(4)e of the Statute of SCSL affirms the rights of the accused which states that the witness needs to give testimony in person so that the accused shall be able to cross-examine him. The SCSL therefore bears the responsibility for ensuring that both interests are satisfied. Even though Hinga Norman had commented that the continuous hearing of testimony in closed sessions undermines the rights of the accused to fair and public trials, the concession both sides have made has collectively helped find a middle ground. As it is stated in Rule 75(A) of the Rules, protective measures should only be applied “…provided that the measures are consistent with the rights of the accused.” Therefore, balancing of witness protection against that of the rights of the accused to a fair and public trial has been a point of contention in the CDF Trials at the SCSL.
Furthermore, there have been occasions in which the people have tried to disclose the identity of the witnesses. For instance during a Cross-Examination, Hinga Norman called an undisclosed witness ‘my son’. This may send signals to the public that such a witness was a beneficiary to the accused. Also in March 2005, the Court charged four women for contempt of court, following their attack on one witness. They were relatives of the indicted AFRC members (Gullit, Bazzy and 55). Although the Court at the end of their trials, tempered justice with mercy by giving them suspended sentences when they pleaded guilty, it was able to send a strong warning to the public that any attempt at disclosing the identity of witnesses will be punishable by law.
The Situation Before the National Courts
Public hearing is a hallmark in the justice system of Sierra Leone. However, the national courts do not have any proper form of witness protection in criminal proceedings. In the 1980s, the court attempted some form of witness protection, albeit on ad hoc basis in high profile criminal trials. For instance, during the treason trials of G.M.T Kaikai, Francis Minah and
Others, in 1987, the prosecution ensured protection for its ‘principal witnesses’. Since then, no programme has been instituted to effect any form of witness protection, though some witnesses during the 1998 AFRC Court requested for it. Instead, the courts have been relying on the citation – ‘contempt of court’ to ward off any threat against witnesses.
There has indeed been some wariness among the general population as to the witness protection measures before the SCSL. The fear that potential witnesses will not come forward and openly present their names to the public may make people feel that they are hiding something, and that they are not telling the truth. According to this argument, if they were telling the truth they would have no problem with openly disclosing their names. This argument is based on false presumptions and fails to take into account a justified fear of reprisal, as has been borne out in the experience of the SCSL, where it has been suggested that witnesses have indeed been approached and threatened.
Why then should there not be a Witness Protection Unit in our municipal courts? As we are in a transition process yearning for a rapid advancement towards a proper judicial system, there is a dire need for the government to see how best to institute a unit for the protection of witnesses in criminal trials. Given that the SCSL is still around, and the Sierra Leone Judiciary has given verdict on the constitutionality of the Special Court , the SLCMP suggests that both institutions should take advantage of the situation to collaborate and exchange ideas. In fact, the SLCMP suggest that the VWSU should not be an exception to the legacies the SCSL will leave with the people of Sierra Leone, and that steps should be taken to ensure that such a Unit is established forthwith.