AS Kenyans were glued to television sets yesterday to catch a glimpse of the International Criminal Court proceedings, most were surprised, the identity of witnesses lined up by the prosecution team would remain hidden. This became evident as the first witness only identified as “Witness 536” took the dock, to give evidence in the cases against Deputy President William Ruto and former radio journalist Joshua arap Sang.
Unknown to many Kenyans however, it is the practice of the ICC to take meticulous effort to protect witnesses before, during and after any trial. Through its Victims and Witnesses Unit (VWU) the Court is mandated to provide “protection, support and other appropriate assistance” to witnesses and victims who appear before it.
It explains on its website, that the ICC Prosecutor and the Trial Chamber are required by its regulations to protect the interests and personal circumstances of victims and witnesses. Consequently, necessary measures are taken, in order to ensure the protection of any witness before the Court. Like yesterday when the female witness, identified only as “536” took to the stand, the Trial Chamber can choose to deviate from the principle of public hearings as applies in Kenyan courts.
And, therefore, as happened severally yesterday, the delayed transmission was intermittently interrupted, as the Trial Chamber, opted to hold proceedings in camera or permit evidence to be presented by electronic means. Electronic evidence refers to testimony where the witness testifies by video and cannot see the alleged perpetrator.
Hearings at the ICC may be held in one of three ways, as an open session, a private session and a closed session. An open session means the hearing is open to the public and there is an audiovisual stream broadcast outside the Court with a 30 minute delay. A private session on the other hand means, hearing is not open to the public and there is no audiovisual stream broadcast outside the Court.
Finally, there is the option of a closed session where hearing is held in camera. Other procedural in-court measures for ensuring the protection of witnesses and victims may include face and voice distortion or the use of a curtain (as was the case yesterday) to shield the witness. Another measure involves the removal of information which could identify a witness from public documents.
Types of physical protection that are considered on the basis of individual circumstances are police escorts from and to court, security in the hotels they stay, keeping the victim informed of proceedings as well as protection for the witness’s family. More intensive pre- and post trial measures include domestic or foreign relocation of witnesses or changing the identity of a witness. This is why the location of most witnesses is unknown to many.
There is also the psychological aspect of protection. This takes the form of stabilisation of the victim’s psychological situation and the avoidance of further stress such as through revictimisation or relapse into trauma, as a con- sequence of legal proceedings. Types of psychological protection that are considered are keeping the witness fully informed of what to expect in the courtroom and allowing expert counsellors to accompany the witness to court.
Concealing the identity of witnesses as a form of protection however has not been without critics. Some legal observers argue that the right to cross-examine witnesses by defence lawyers cannot be effectively conducted without the knowledge of the identity of the witness.
Others argue that allowing anonymous testimony may give the appearance of guilt on the part of the accused, instead of affording them presumption of innocence. Article 68 of the Rome Statute, however, maintains that protection measures must not be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. - By BRIAN NGUGI