Witness protection may not be facilitated by the ordinary way of testifying in court. Traditionally, witnesses testify in open court. At the mercy of the judge’s conduct, they may testify courageously. Sometimes, they are afraid to reveal some information because they testify in front of their alleged tormentors. Adverse reactions from court attendees may also scare them from revealing facts relevant to the case. This is why some cases fail even though they are inside the walls of justice.
Imagine the trauma of recounting the events of a violent crime, a sexual assault or maim before your tormentor and the public in open court. Our communal outlook of matters also dictates that some ‘shameful’ aspects of life may be hidden or unspoken.
Topics like sex, rape, defilement, ‘sodomy’, so to speak are sensitive per se. So, the public has assumed that they ought not to be discussed in public, leave alone made known in detail to court. Where the law directs that all facts relevant to a case be exposed so as to draw fair conclusions, it occasionally forgets the audience who may be offended. The victim, therefore, suffers shame during and after the offence.
In the maiden case of 16 year old Purity Atim, a sexual assault victim, Uganda opened doors for technology advancement in giving evidence (testimony) in court. After several requests to protect the identities of some key witnesses in fragile cases, courts can now hold audio-visual testimonies.
The United States of America accepts audio-visual link testimonies. The country, though developed, offers witness protection.
Uganda’s Chief Justice Bart Katureebe launched the Audio-Visual Rules No.26 of 2016, which he applauded as a positive step in ensuring witness privacy while testifying. Since our judicial system had not defined proper systems for audio-visual link technology to be implemented in the judicial process, often victims’ testimonies lacked some facts, especially those facts that threatened witnesses’ lives. Although necessary for sensitive matters, the judiciary suggested that the opportunity be given to cases of;
- Sexual and gender based violence,
- Security and other security reasons that may affect witnesses,
- Witnesses living outside Uganda and cannot physically appear to testify,
- Open court testimonies that may inconvenience the witness,
- Safety of the witness,
- Economic, health and other reasons court deems appropriate to effect audio-visual link technology.
Delays, costs of hearing cases, adjournments, handling vulnerable witnesses like children, the elderly and whistle blowers require court to exploit alternative means of acquiring evidence. Like in developed legal systems, closed circuit cameras connected to television monitors ease the process of testifying comfortably without physically appearing in court.
The importance of witness protection in ordinary courts
A court case is not a fete. It is a conflict, involving real people, real issues and real disagreements. The bearing of such cases is borne by witnesses. Every case is judged on the evidence adduced in court. How it is obtained is usually not for court to query but verify its admissibility and reliability.
Section 58 of Uganda’s Evidence Act, cap 6 provides for ‘proof of facts by oral evidence’. It says,
‘All facts, except the contents of documents, may be proved by oral evidence.’
Because evidence is backed by witnesses, it poses danger to the witness if it is a ‘life and death’ case. Trials call for witnesses to testify in open court. Accused persons, accomplices or interested parties attend trials. Their presence intimidates, threatens and blackmails witnesses. When they wobble, they do not testify. The cases are dismissed. Justice is denied.
War crimes, violent crimes, sexual crimes, human trafficking, genocide and covert cases pose more threat to witnesses. In developed countries, witness protection programs cover the identity of witnesses. The protection is assurance that the testimony will be delivered in court and the offender pinned for the offence he/she committed.
Family courts and audio-visual link technologies
It is no secret that cases handled by family courts touch on sensitive matters. They involve children, spouses, intimate secrets between parties, contentious settlements, etc.
‘Exposing one’s laundry’ is not court’s intention. Unfortunately, where human beings are in search of justice, there are experiences that may call for family court to intervene.
Audio-visual link technology limits the embarrassment that comes along with family court drama. The judicial system will not waste resources by implementing this technology. It will mostly encourage witnesses to disclose evidence that will aid courts conclude cases in time. Adjourning matters of family court prolong animosity.
Kenya preceded her East African counterparts. She allowed installation of video conferencing in courts in October 2010 where taking evidence in a criminal trial and other matters eased testimonies.
In the case of Livingstone Maina Ngare vs Republic  eKLR, High Court of Kenya at Nairobi, Criminal Revision No.88 of 2011, Hon. Mr. Justice Fred A. Ochieng allowed taking evidence in a criminal trial. Therein, two witnesses resident in the United State of America who could not easily travel to Kenya gave their evidence through videoconferencing terminals in Kenyan embassy in the USA. It was received by Nairobi Law Courts.
Is audio-visual link technology necessary?
To some, this may look like a long shot given our community and suspicious mindset towards technology. We must, however, consider the many bottlenecks it will eliminate. Giving evidence at one’s convenience will eventually help reduce cases of abusing subpoenas, occurrences of contempt of court and ‘secondary victimization’ of victims of violent crimes. Business communities and security agencies will give proper protection to witnesses in cases involving security concerns.
On a lighter note, the Anti-corruption court, which is hard hit by elusive witnesses, may also see increased results in pinning corrupt officers.
Let’s give the ICT advancement more publicity to garner support in reducing the tedious work and backlog of the judicial system.
BY ATUHAIRWE AGRACE
This article appears in our weekly digital law magazine, The Deuteronomy Vol 2, Issue 3 of February 17th 2017
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