By Ndungu Wainaina
The confirmation by doctors of the Moi Referral and Teaching Hospital in Eldoret, Kenya that the body found in Tsavo forest is that of Meshack Yebei raises alarming concerns on high risk potential witness face from the suspects bent on destroying or preventing their testimonies from being used against them by the courts of law. As such credible and effective witness protection becomes ever urgent, inevitable and indispensable for the effective prosecution of such crimes and translates into an obligation on the part of the justice actors, which they must enforce.
It is not fully established whether Mr. Yebei was ICC witness or defence witness though ICC Prosecution is on record clarifying he was not its witness but Has offered to assist him with protection. His brutal murder signals determination by someone so scared of his potential disclosure of vital information.
Witnesses should no longer be viewed as mere objects of a trial process but as key subjects and stakeholders in the administration of justice. A fair trial calls for a balancing of fair trial rights of the accused person and ensuring the safety of witnesses.
ICC cases in Kenya Situation have faced tremendous challenge of tampering and disappearance of witnesses. Government of Kenya has shown little or no concern in addressing this grave interference in administration of justice raising suspicion of complicity.
The real and effective protection that the state must provide witnesses is a fundamental element of the fight against crime and corruption, encouraging individuals to cooperate with justice and advance the judicial process.
Witnesses are the cornerstones of successful international and national criminal justice systems. The entire process of investigating and prosecuting offenses depends largely on the information and testimony of witnesses. Prosecutors and defence teams depend upon witnesses who are reliable and whose testimony can be accepted as truthful, accurate and complete. Witness protection is an indispensable tool in the fight against domestic and international crime.
Witness Protection is an effective tool in combating serious crimes. Because of the importance of witnesses, it is good practice for criminal justice systems to provide assistance and support measures to victims and other witnesses, so as to facilitate their ability to fully participate in the criminal justice system and to give the kind of testimony that is required for the maintenance of the rule of law.
The successful prosecution of crimes largely depends on securing reliable evidence, including the testimony of witnesses. When witnesses withdraw from proceedings due to intimidation or actual harm, securing convictions often becomes impossible.
The protection of witnesses remains a foundation to an effective criminal justice system. Witness protection is deeply lacking, and progress towards formalized and functioning witness protection services has been slow and very weak.