Programme Director
The National Director of Public Prosecutions
Director of the Office of Witness Protection, Mr Dawood Adam
Representatives from the National Prosecuting Authority
Representatives from the African Prosecutors’ Association
Representatives of the Institute for Security Studies
Prosecutors and stakeholders
Colleagues and friends
Karen Kramer of the United Nations (UN) Office on Drugs and Crime said that “witnesses are the cornerstones of successful national criminal justice systems.”
She argues, correctly, that the entire process of investigating and prosecuting offenses depends largely on the information and testimony of witnesses. Prosecutors 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. 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.
We are seeing the world of crime evolve. Those of you who attended the 8th Annual Conference of the APA in Praia, Cape Verde, in October last year will recall that the Praia declaration provides that transnational and international crimes such as terrorism, drug trafficking, human trafficking, money laundering and environmental crime are becoming increasingly complex.
These crimes are having an increasingly corrosive effect on economic development and governance in Africa. Criminal enterprises and terror organisations are becoming progressively sophisticated, particularly in the utilisation of communications technology in conducting their activities, and the concealment and movement of finances for criminal acts.
In the face of these challenges, Africa cannot allow itself to become a safe haven for criminals. Responding to these threats, in terms of investigation and prosecution, demands much from African states, namely, greater collaboration, cooperation and networking; building and increasing knowledge and learning about the nature of these offences and how best to investigate and prosecute them. It particularly involves strengthening the capacity of investigators and prosecutors to do so.
The declaration expressly commits us to the protection of witnesses. It provides that the protection of witnesses is central to successful prosecutions and is therefore an important area for further development across African states.
What are the elements of a successful witness protection programme and how do we achieve this? Often when people think of witness protection, they assume that it’s only physical protection. However, physical protection is but one facet of a successful witness protection programme.
Physical protection is the most obvious form of protection and, as the UN Office on Drugs and Crime states, it can range from simple and affordable measures, such as providing a witnesses with a mobile phone, to more complicated resource-intensive measures, such as domestic or foreign relocation or a change of identity. It will generally also include measures such as police escort to and from court, courtroom security and keeping the victim informed of proceedings, especially in instances where the accused is released from custody.
A successful witness protection program will also ensure emotional or psychological protection of witnesses. This includes the avoidance of any secondary trauma. Types of psychological protection can include measures such as preparing the witness for legal proceedings and providing ongoing support, it could also allow for pre- and post-counselling, the provision of a separate rooms for witnesses at courtrooms to avoid the witness being confronted by the accused or the use of intermediaries, particularly when the witness is a child.
Witness protection is a crucial element of a successful prosecution, and all the more so in cases of international or transnational crimes. An example of successful cooperation in the prosecution of a transnational crime is the case of Henry Okah. Many of you are, no doubt, familiar with the case. The Okah prosecution has been hailed as one of the best practice cases of international cooperation, in this case between South Africa and Nigeria. Henry Okah, a 46 year old Nigerian national, was convicted on 13 terrorist-related charges by the South Gauteng High Court, Johannesburg, in January this year, in contravention of our Protection of Constitutional Democracy against Terrorist and Related Activities Act. Okah is the leader of the Movement for the Emancipation of the Niger Delta (“MEND”), a rebel militant organisation from the oil-rich Niger Delta region.
The charges related to two car bombs in Abuja, Nigeria, in which 12 people were killed and 36 injured in October 2010, the anniversary of the country's independence. The second bombing took place in Warri on 15 March 2010 at a post amnesty dialogue meeting. One person was killed and 11 seriously injured. In both bombings, two car bombs went off minutes apart from each other.
The decision to indict and prosecute Okah in South Africa was based on the following considerations: Section 15(2) of South Africa’s Protection of Constitutional Democracy Against Terrorist and Related Activities Act, which establishes extra-territorial jurisdiction for a court in South Africa to try offences of terrorism where the alleged perpetrator is found in South Africa, although the crimes were committed outside the territorial jurisdiction of the Republic. Furthermore, Okah was not extradited and in this regard, there was no application for the accused’s extradition. A further consideration was the international requirement of aut dedere aut judicare (i.e. extradite or prosecute) expounded in United Nations’ Security Council Resolution 1373/2001, which is binding on all Member States and in the International Convention for the Suppression of Terrorist Bombings.
A letter of request for mutual legal assistance was submitted to the Central Authority of the Federal Republic of Nigeria, in which key evidence was requested. The request was duly executed and the evidence provided.
The trial commenced on 1 October 2012. Although 261 witnesses were listed in the indictment, the prosecution only called 33 witnesses, of whom 27 came from the Federal Republic of Nigeria and the remaining witnesses from South Africa. The Nigerian witnesses included the Minister for the Niger Delta, rehabilitated former Niger Delta militant commanders and militants, doctors, businessman, co-perpetrators and/or co-conspirators and senior Nigerian law enforcement and government officials.
Due to security concerns, the South African Office for Witness Protection, accommodated some of the witnesses at the commencement of the trail, as well as a number of witnesses who were, at a later stage, taken into the Witness Protection Programme immediately upon their arrival in South Africa. The case was successfully prosecuted due to the cooperation between South Africa and Nigeria, and the assistance of the Central Authority of Nigeria and the South African National Prosecuting Authority and Office for Witness Protection.
For a witness protection programme to be successful, good national legislation is crucial. Witness protection in South Africa has come a long way and the system looked very different before the dawn of our democracy.
In the past, the protection of witnesses was previously governed by Section 185A of the Criminal Procedure Act. Section 185A was repressive and restrictive in nature and often used by the apartheid government to coerce witnesses to give evidence in political trials. Furthermore, witnesses were often involuntary held in custody. Generally speaking, the management of, and support and related services given to, witnesses were based on race.
In 1995, after the dawn of our constitutional democracy in 1994, witness protection was in dire need of restructuring. Our National Crime Prevention Strategy identified the lack of a proper witness protection programme as a weak link in the criminal justice system. There was also a need for witness protection to be aligned to Government’s priorities and international compliance requirements. In 1996 a national programme was put in place in line with other justice sector reform initiatives. In 2000 the programme was restructured and enshrined in law with the passing of the Witness Protection Act 1998, which came into effect in March 2000.
We are proud to say that our Witness Protection Act is an internationally acclaimed piece of legislation. A witness is defined as any person who is or may be required to give evidence, or who has given evidence in any proceedings. This definition therefore permits the provision of temporary protection for whistle blowers, as they are potential witnesses. The Office of Witness Protection is an independent covert unit.
Witness Protection is an effective tool in combating serious crimes, and by serious crimes, we include organised crime, environmental crime, trafficking in persons, corruption, violence against women and children, war crimes, economic crime, genocide, crimes against humanity, cybercrime and money-laundering, to name but a few. And we are seeing new types of crime emerging, crimes like counterfeiting of food, counterfeiting of medicine and counterfeiting of goods. With this brings the realisation that the profile of witnesses will change when we deal with new types of crime.
It is important to stress that witnesses must voluntarily agree to be admitted to the programme. Witnesses may, furthermore, not be held under protection in any prison or police cell. And witness protection is not limited to criminal proceedings, but can also include proceedings before a commission or tribunal or proceedings under the Inquest Act. It can also include proceedings relating to investigations by Independent Police Investigative Directorate (IPID), our Independent Police Investigative Directorate, which is responsible for independent oversight over our police service.
We are proud to say that no witness or related person killed or harmed on the programme in the last 14 years. With regards to law enforcement, witness protection has assisted in sentences such as a cumulative 789 years in prison and 23 life terms. We currently have 322 witnesses on the Witness Protection Programme and a total of 339 related persons.
On average, 300 people are protected in the programme each year and on average only 6 people abandon the programme, mainly due to the failure to adjust to the stringent rules and protection agreement. These stringent rules are necessary to ensure the safety of the witness and related persons. We are also proud the programme complies with international standards and had been chosen as a case study by the UN's Office on Drugs and Crime to develop a code of best practice. Our Office for Witness Protection is currently ranked in the top 5 in the world.
This does not mean, however, that we do not still have challenges that we have to face. For example, one challenge is the need for more protectors so as to comply with international best practice of having a ratio of one protector to every one witness.
Programme Director,
In addition to effective domestic legislation, regional and international instruments are also of vital importance in the fight against crime.
The AU Model Law on Universal Jurisdiction over International Crimes is aimed at providing guidance to African countries in their endeavour to combat impunity, to prevent and punish crimes such as murder, extermination, forced displacement, all forms of violation of fundamental human rights, degrading treatments, sexual violence and so forth.
Ministers of Justice and Attorneys General of the AU Members States adopted the Model Law in May 2012 during their annual meeting in Addis Ababa. The model law encourages Member States to expeditiously enact or strengthen the national legislation so as to effectively prosecute those accused of International Crimes. The Model Law provides that witness protection is fundamental to an effective criminal justice system.
In addition other instruments such as, for example, the UN Convention against Transnational Organised Crime provides, in article 24 and 25, that State parties shall take appropriate measures within their means to provide effective protection as well as assistance to victims and witnesses of crime. Such measures may include inter alia establishing procedures to safeguard the physical integrity of people who give testimony in criminal proceedings from threats against their life and intimidation.
Programme Director, ladies and gentlemen,
On a lighter note, Charles Dickens once wrote that - “Lawyers hold that there are two kinds of particularly bad witnesses--a reluctant witness, and a too-willing witness.”
I would argue that regardless of whether the witness is a good witness or a “not-so-good” witness, the safety and wellbeing of each and every witness is paramount.
The crux of the matter really is that without a witness this is no case, no prosecution, no conviction and, importantly, no justice and closure for the victim. That’s how important a witness is.
Let me take this opportunity to welcome you to our country, may you experience true South African hospitality and I wish you all a very successful conference. This workshop really brings together experts from across Africa and the international arena and we are confident that it will capacitate countries in the development and implementation of witness protection legislation and programmes. And, in so doing, we can build and contribute to a safe and prosperous Africa.
I thank you.
