INTRODUCTION
The administration of criminal justice in Nigeria, can neither be efficient nor effective where the actors in the ecosystem are not guaranteed their protection. Such actors include defendants in a criminal action, witnesses, judges, legal practitioners etc. The safety of witnesses who are responsible for oral testimony in the prosecution of crimes has hardly received statutory consideration. The overall effect of this lack of protection for witnesses has resulted in the unfortunate striking out of cases involving heinous crimes1 by the Courts, as witnesses often refuse to testify due to the absence of a system designed to cater for their protection by the State. Hence, witnesses and their relatives often lack the confidence to testify in proceedings. To achieve this purpose, President Muhammadu Buhari, on 23rd May 2022, signed the Witness Protection and Management Bill into Law, effectively changing its status to an Act of the National Assembly, the Witness Protection and Management Act, ("the Act"). The objectives of the Act include the establishment of a legal and institutional framework to protect witnesses and related persons, with responsibilities for carrying out all administrative duties relating to witnesses and related persons2, including providing temporary protection and related services; ensuring that the relevant agency takes responsibility for agreeing with the witness on behalf of the State; regulating the procedure and determining how the provisions of the Act are to be carried out; ensuring adequate consideration is given to the rights of witnesses, as well as harmonizing the existing laws and policies on witness protection and management.3
The Act does not apply to the investigation and prosecution of all criminal offences as it only applies to specific offences such as terrorism, money laundering prevention and prohibition, economic and financial crimes, corrupt practices and other related offences, drugs and narcotics and their trafficking.4 Importantly, the Act applies to all institutions and authorities in the justice sector such as courts, law enforcement and security agencies to ensure the protection of witnesses in the course of investigation, detection and prosecution of offences. With this, no institution whether it be the Nigerian Police Force, Nigeria Customs Service, Nigerian Immigration Service etc. is exempted from the application of the Act. It remains to be seen whether sometime in the nearest future, similar protections shall be extended to civil actions which have a more direct impact on individuals and businesses.
WHO QUALIFIES AS A WITNESS UNDER THE ACT?
A witness, under the Act, is a person who has information about the commission of an offence or wrongdoing and has given, or is giving or has agreed to give evidence on behalf of the State in the proceedings for the trial of the offence, or hearings or proceedings relating to the offence or wrongdoing before an authority which is declared by the Attorney-General by an order published in the Federal Gazette to be an authority.5 A witness is also a person if he or she has made a statement to the Inspector-General of Police or a member of the Nigeria Police Office or a law enforcement officer, in relation to an offence in contravention of a law in Nigeria.6 A person will also be considered to be a witness if due to his or her relationship with a witness, such a person requires protection.7
THE ESTABLISHMENT OF THE WITNESS PROTECTION AND MANAGEMENT PROGRAMME
Part II of the Act provides for the establishment of the Witness Protection and Management Programme by a relevant agency. This agency is empowered to take actions as may be reasonable and necessary for the safety and welfare of the witnesses who provide information, evidence or any other form of assistance to the relevant agency.8 The agency is also to establish a procedure to determine the criteria for admission to and removal from the programme,9 as well as a training scheme for Witness Protection Officers.10 The following are the powers of the agency: physical and armed protections, making necessary arrangements to allow the witness to establish a new identity, relocating the witness, providing accommodation for the witness, and providing reasonable financial assistance to the witness.11
To ensure the protection of witnesses in the course of a proceeding, the agency may request the court to hold closed sessions, use pseudonyms, redaction of identity information, and use of video links. All these techniques are to ensure that witnesses and their identities are not unduly exposed and to ensure their safety.12 Also, the Act mandates the relevant agency to protect the witness under the Act and designate a Witness Protection Office at each of its branch offices.13
CRITERIA FOR INCLUSION INTO THE WITNESS PROTECTION PROGRAMME
The Act enumerates the prerequisite for inclusion into the Witness Protection Programme and they include: the seriousness of the offence to which the statement or evidence of the witness relates, the nature and importance of the witness' testimony, the nature of the perceived threat and/or danger to the witness, the nature of the witness' relationship to any other witness being considered for inclusion or who is already in the Programme, the result of any psychological or psychiatric examination or evaluation conducted to determine his suitability for inclusion in the Programme, whether there are viable alternative methods of protecting the witness, whether the witness has a criminal record, particularly in respect of violent crime, which indicates a risk to the public if he is included in the Programme etc.14
APPLICATION, APPROVAL AND TERMINATION OF WITNESS PROTECTION
The process for inclusion into the Witness Protection Programme requires a witness who has reason to believe that his safety or that of any other person is or likely to be threatened by any person or a group or class of person whether known to him or not by reason of his being a witness to report his belief to the appropriate authority which includes the investigating officer in the investigation, a person in charge of a police station or the head of the relevant agency.15 In special circumstances, a report could be made on behalf of the witness by the witness' legal representative or a law enforcement officer.16 A Judge may order or direct the making of a report or an application on behalf of the witness.17
During the pendency of the application, the law allows the relevant agency to make provision for temporary protection for a witness or a related person for a maximum of twenty-eight (28) days if it deems it necessary. The law makes special provision for a minor by compelling the agency to obtain the consent of the parent or guardian of such a witness.18 However, the consent may not be obtained in certain circumstances as the Attorney-General may specify in the regulation.19 The witness must give his consent before he can be a part of the witness protection programme.20 For the effective performance of its duties, the Act grants the relevant agency the privilege of immediate and full access to any crime docket and statement of a witness and to any evidence given in any proceedings21 and to obtain certified true copies of any statement or evidence or any part of it made in connection to the matter.22
The relevant agency, after the consideration of an application for inclusion in the programme, may make an interim arrangement with the witness or related person relating to his protection,23 approve or refuse such an application. Upon the approval of an application for inclusion, the witness or any related person is placed under protection following the protection agreement entered into by or on behalf of the witness or related person and the relevant agency.24 When it refuses the application, and where applicable, by written notice to the witness, revoke any temporary protection under which he or any related person has been placed under section 5(1) of the Act.25 The witness should be informed of the refusal by the Head of the agency and a review should be applied for by the witness within seven days of being informed of the decision.26 The relevant agency is also to review, confirm, reverse or vary its decision and inform the witness in writing of its decision within seven (7) days of its receipt of the request.27
PROVISION OF A WITNESS PROTECTION AGREEMENT
Section 9 of the Act provides for the Protection Agreement which must be written and entered into by the relevant agency and the witness or each related person or the parent or guardian of a minor.28 The Protection Agreement must list the conditions under which a witness or a related person will be placed under protection. They include obligations on both the relevant agency and the witness. The relevant agency must take reasonable and necessary steps to provide the witness with the protection and related services and not to keep a person under protection in any correctional facility or custody, except agreed upon by the parties.29 The witness is obliged to give evidence as required in the proceedings to which the protection relates, to meet all financial obligations incurred by him that are not payable by the relevant agency, to refrain from any activity that constitutes a criminal offence, to refrain from activities that might endanger his safety or that of any other protected person.30
TERMINATION OF PROTECTION AND THE MANDATORY NATURE OF NOTICES
The Act empowers the relevant agency to terminate the inclusion of a witness or related person through written notice if it believes that the safety of the witness is no longer threatened, satisfactory alternative arrangements have been made for the protection of the witness, the witness has failed to comply with any obligation imposed under the Act or by the Protection Agreement, the witness in applying for inclusion in the programme has willfully furnished false or misleading information, failed to disclose any relevant information in the application, the conduct of the witness has endangered or may endanger the safety of another protected witness, the conduct of the witness is likely to threaten the security or compromise the integrity of the programme, the witness has willfully caused serious damage to the place of safety or any property in or at the place of safety.31 Upon termination of the protection agreement, the relevant agency is mandated to allow the witness or the parent or guardian of a minor to make a written representation to it within twenty-eight (28) days concerning the termination of the protection.32
After the agency considers the representation of the witness or any other appropriate person, as provided in section 11(6), and if it is satisfied that the evidence of a witness is no longer required in the proceedings concerned or the proceedings have been concluded, terminate the participation of the witness through a written notice within twenty-eight (28) days.33 There will be an extension of the protection for a period as the relevant agency deems fit if, after the conclusion of the proceedings, the agency thinks that the witness to be discharged from the programme is still being threatened. However, before an extension of the protection of a minor, a Judge's approval in chambers must be given.34 The effectiveness of a termination decision of an agency starts within a reasonable time which must be after twenty-eight (28) days of the agency notifying the witness.35 In a case where it is impossible to locate the witness, the termination becomes effective at the end of the twenty-eight (28) days after due steps were taken.
AGREEMENT WITH INTERNATIONAL BODIES, INSTITUTIONS, ORGANISATIONS OR FOREIGN COUNTRIES
Section 17 empowers the Attorney-General of the Federation to approve an arrangement between the relevant agency and a foreign State, International body, institution or organisation on any matter relating to cooperation between Nigeria and that other party relating to witness protection.36 Section 17(2) allows for an exchange witness protection programme between a relevant agency and a competent authority in a foreign country. This agreement will allow any relevant Nigerian agency to place a protected person under a witness protection arrangement administered by that country or admit a protected person to a witness protection arrangement under any law applicable in that country. This provision implies that Nigerian agencies can now fly witnesses to other countries with which they have witness protection agreements. Conversely, a Nigerian agency can accommodate witnesses from other countries in Nigeria. However, it is the regulatory framework of the other country's witness protection that will be applied.
THE ESTABLISHMENT OF THE WITNESS PROTECTION FUND
The Act establishes a Witness Protection Fund, the management and control of which shall be the responsibility of the relevant agency.37 The following are the sources of the Protection Fund: money appropriated by the National Assembly which is to be at least fifty per cent of the total estimated expenditure of the Protection Fund; sums of money as may be approved by the President for the protection of witness under the Witness Protection Programme and the protection and making rewards and compensation to the person making public interest disclosures; sums of money accruing to the Protection Fund from any fund or account established in any Act of the National Assembly for the lodgment of proceeds of confiscation and forfeiture of assets in Nigeria.38
The money in the Protection Fund is to be used for; the support of witnesses and related persons in the Programme, giving effect to the operation of the Programme, and the payment of rewards to persons who make public disclosures under the provisions of the Act where the information provided by the person contributes directly to the recovery of stolen or concealed public funds or assets.39 The Act restricts the expenditure from the Protection Fund, except the Council approves such expenditure.40 The purpose of the expenditure must also be in line with the purpose of the Fund. The money from the Fund may also be invested by the relevant agency as the Council may deem fit.41 The Act saddles the relevant agency with the preparation of the estimates and to cause proper books of accounts and other records to be kept in connection with the Protection Fund.42
Other provisions of the Act include the protection of witnesses from identification,43 mode of application by the relevant agency for court orders for certain acts such as making a new entry in a register of birth, marriages or death in respect of a witness or a relative and the issuance of a new identity to a witness,44 restoration of the identity of a witness.45The court is to grant such orders to protect the identity of the witness if it is satisfied that the life or safety of such witness is endangered.46 The Act also prohibits the disclosure of information or publication of documents on the witness protection programme47 as well as the identity of the witness in legal proceedings.48 It also provides for offences and penalties for the contravention of its provisions.
CONCLUSION
The Act, like every other statutory enactment, is not without loopholes; such loopholes include but are not limited to the effect of the use of pseudonyms in witness depositions when the Oaths Act prescribes disclosure of the full name and other personal data49. Moreso, the Act was not granted an overriding effect over the Evidence Act. Furthermore, relevant agencies such as the Nigeria Police Force, Economic and Financial Crimes Commission (EFCC), National Drug Law Enforcement Agency (NDLEA), National Agency for the Prohibition of Trafficking in Person (NAPTIP) etc. are likely to require formal training in setting up Witness Protection Units. Dispute Resolution-specialized law firms as Famsville, have a lot to offer in this regard in terms of sensitization of the general public, relevant agencies and capacity building. In all, the Act marks a welcome development for the administration of criminal justice in Nigeria as vital witnesses who before now, have expressed legitimate apprehensions against oral testimony in the Courts are now granted protection under the Act. Law enforcement agencies are now likely to secure convictions in court against defendants charged with crimes as the Act would encourage witnesses to testify in criminal trials.
Footnotes
1. Rape, Terrorism, Kidnapping etc.
2. Section 7(1)
3. Section 1
4. Section 2
5. Section 3(a)
6. Section 3(c)
7. Section 3(2)
8. Section 4(1)
9. Section 4(1)(c)
10. Section 4(1)(d)
11. Section 4(2)(a)-(h)
12. Section 4(3)
13. Section 32
14. Section 7(2)
15. Section 5(1)(a)
16. Section 5(3)
17. Section 5(4)
18. Section 6(3)
19. Sections 5(5) and 6(3)(b)
20. Section 7(4)
21. Section 7(3)(a)
22. Section 7(3)(b)
23. Section 8(1)(a)
24. Section 8(1)(b)
25. Section 8(1)(c)
26. Section 8(2)
27. Section 8(2)
28. Section 9(1)
29. Section 9(4)(a)
30. Section 9(4)(b)
31. Section 11(1)(a)-(g)
32. Section 11(6)
33. Section 11(2)
34. Section 11(4)
35. Section 11(10)(a)
36. Section 17(1)
37. Section 40
38. Section 41
39. Section 42-
40. Section 43
41. Section 46
42. Section 45
43. Section 18
44. Section 19(1)
45. Section 25
46. Section 20
47. Section 29
48. Section 30
49. Oaths Acts
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