Is it not surprising that Nigeria does not yet have a witness protection law? And has anyone averted his/her mind to why the whistleblower policy of the Federal Government, aimed at encouraging citizens to snitch on public officers suspected to have abused their office, failed? Introduction of the policy came with some public frenzy.

But risks associated with it, including threat to life of whistleblower (witness), harm, exposure to ridicule and public ostracism as well as public trust damage, were such that no one ever wanted to become a whistleblower anymore.

This, as most people had attested, is one of the major setbacks of crime control in Nigeria, and perhaps many other jurisdictions on the continent. Gradually, people become wary of giving intel to crime fighting agencies because of the understanding that, somehow, their identities would be disclosed, which put them in the line of danger.

This also has been part of the issues with the prosecution of some criminal cases in court, especially those that dwell with terrorism, murder, armed robbery and even abuse of office. Quite often, people shy away from appearing publicly as witnesses in cases whose punishments are of the capital nature.

As a reporter covering the courts, I observed, during some celebrated murder trials, how difficult it was for the prosecution to present witnesses in open court for fear of exposing them to danger. This has also been the situation with the trial of some persons facing treasonable charges. The fear has always been that bringing witnesses in open court is exposing them to danger, which could be fatal. The trials of some former officials, state governors, ministers, etcetera, suffer the same fate. I guess this is why prosecution often apply to the court to allow it present witnesses in hoods to cover their faces or, take witness testimony off camera. The basic logic here is that once witnesses are successfully intimidated off the witness box, or bought off the witness box, the prosecution’s case would ultimately collapse.

According to the United Nations Office on Drugs and Crime (UNODC), “most cases of witness intimidation resulting in witness protection were caused by individuals linked to criminal organizations.” It says that “majority of protected witnesses were criminally-involved police informants or criminal associates of defendants.”

It adds that the “protection of non-criminal witnesses or victims was very rare; and, most witness protection programmes are managed by national or regional police forces, and most programmes are legislatively based.”

There is, so far, no law backing witness protection in Nigeria. However, action is now being taken to fill the vacuum, courtesy of Senator Suleiman Abdu Kwari (APC, Kaduna), who introduced a “Witness Protection and Management Bill, 2020.”

The bill was on January 26, 2022, read for a second time and passed on to the Senate committees on Judiciary, Human Rights and Legal Matters, and Anti-corruption and Financial Crimes for immediate further action.

Leading debate on the floor of the Senate, Sen. Kwari said the bill would provide the legal and institutional framework for the protection of witnesses who make disclosures that are of public interest.

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When passed and signed into law, the law would provide institutional support and management of witnesses, to be observed by all public institutions that deal with public prosecution. This conforms with the provision of Article 24 of the Organized Crime Convention, which dwells on witness protection.

The Kwari bill provides for the witness to sign a protection agreement as well as makes provision for the protection of a minor and, also, the termination of protection agreement with penalties spelt out for false or misleading disclosure, prohibition of false representation, offences in connection with employees of the relevant agency, obstruction of employees of the relevant agency, prohibition of access to premises of the relevant agency, unauthorized access to a witness and many more. It is about confidentiality and confidence-building.

Focus of the bill, however, relates to investigation and prosecution of offences relating to terrorism, money laundering prevention and prohibition, economic and financial crimes, corrupt practices, drugs and narcotics and their trafficking, trafficking in persons, criminal and penal code offences, customs and excise management and any legislation dealing with proceeds of crime, confiscation and forfeiture of assets. It will also affect any other offence(s) as may be contained in enactments by the National Assembly and published in the Federal Gazette.

The crimes listed above are of serious nature and their outcomes are bound to be very painful on the accused. It thus means that witnesses to any of these crimes would need the protection of state by way of non-disclosure of their identities and residential address.

These are factors relevant, and necessary, to successful prosecution. Doing otherwise, would amount to jeopardizing the safety of witnesses in these crimes and, possibly, miscarriage of justice. The wider implication is that persons facing trial for any of these crimes may escape justice and eventually target witnesses for punishment. And that is what this bill seeks to prevent.

The UNODC says on its manual on witness protection crime that: “The reason for specific procedures for witness protection is to permit a witness to give testimony in a judicial setting, or to cooperate with law enforcement investigations, without fear or threat of intimidation or reprisal. Such protection is essential to maintaining the rule of law.”

The bill, therefore, outlaws the disclosure of home addresses of witnesses and seeks to make the office address of the institutional framework for management of such witnesses the operation address of witnesses. It provides that “the address of the relevant agency shall, for all purposes of service of processes on a witness, serve as the residential address of the witness and notice of that address shall be given in writing by the head of the relevant agency and delivered by hand or sent by registered mail by him to all other parties or their legal representatives.” It further prohibited the publication of information about any witness protected by law.

Pushing the bill through and signing it into law would be a proactive demonstration of the readiness of the Nigerian government to go beyond rhetoric in the fight against crime and practically demonstrate that crime and criminality have not actually been liberalized in the country. As it is now, the conclusion that many people draw from the way anti-corruption and terrorism trials are conducted is that crime is liberalized and that criminals are free to operate on government’s lethargy. 

Therefore, creating a system that protects witnesses to crime would come as an insurance to ensure the integrity of the witness process and collection of evidence for prosecution. My fear is that, if we fail to take advantage of the opportunity presented by this bill, the first of its kind before the senate, we may only have pushed back some level of progress in this regard.

Ultimately, I have a feeling that this bill, when passed into law, will have a radicalizing effect on the Evidence Act, which will cause a whole lot of progressive changes in the justice administration system of the country.