Emmanuel Ayoola joins JiC for this guest-post on the importance of witnesses protection n the field of transitional justice, and how to bolster its use in African contexts. Emmanuel is a human rights lawyer and a transitional justice practitioner. He was previously an Activism Officer with Amnesty International. He currently works with the Africa Transitional Justice Legacy Fund as a Grant and Programs Officer.

Witnesses are critical to justice-seeking mechanisms under transitional justice processes. What happens then if those witnesses are not protected? Needless to say, justice suffers. Justice continues to suffer in Africa as a result of weak or non-existent witness protection systems. To ensure justice for victims of conflict and mass atrocities, Africa must first safeguard the protection of witnesses. 

The development of transitional justice processes can be likened to the process of building a house – a house with several structural columns. Just like a house, transitional justice has pillars. The United Nations identifies the pillars as truth, justice, reparation, memorialization, and guarantees of non-recurrence. These pillars which are interrelated, work together for the sustainability of transitional justice processes. 

Just as a house cannot stand without pillars or other forms of structural support, in the same vein, it is impossible for transitional justice to thrive without all of its pillars; if one is absent or weak, the others are weakened as a result. However, for a long time, several attempts have been made to build transitional justice processes in Africa without all of its pillars. The results have been predictable – collapsing disappointments. 

Effective witness protection has often been a missing link. Truth and justice are key for transitional justice that cannot be built without robust witness protection systems. At the very core of truth-seeking processes and justice-seeking mechanisms lies the indispensable ingredient of witness testimony. The judicial mechanisms of transitional justice processes require witness testimony in the pursuit of justice. Witnesses provide evidence that will assist in holding perpetrators of human rights violations and atrocities accountable. In fact, survivors’ testimonies have been referred to as the backbone of transitional justice processes. It is essential and arguably indispensable even where other forms of evidence are available. Therefore where witnesses are not protected, they may be discouraged from giving evidence and thereby justice becomes far-fetched.

As a whole, Africa grapples with the absence of robust witness protection programs. In many countries in the region, there are no frameworks that guarantee the protection of witnesses and in the few countries where they do exist, witness protection programmes lack in implementation. As of November 2022, there are only twofully operational witness protection agencies in Africa, the Victim Protection Board (VPB) in Kenya and South Africa’s Office of Witness Protection (OWP). The absence of these frameworks results in situations where witnesses, survivors, and victims involved in transitional justice processes are faced with threats, attacks, and intimidation from accused persons and their agents.

The situation is not any different when international courts and tribunals investigate cases on the African continent. The absence of national witness protection systems creates a climate of danger for witnesses. As far back as 1996, in Rwanda, a total of 99 witnesses were murdered by Hutu extremists because they cooperated with the International Criminal Tribunal for Rwanda. Similar attacks were experienced with the local Gacaca courts in Rwanda. There were reports of acts of violence like poisoning, assault, rape, arson, and even murder carried out against witnesses. With effective witness protection systems, some of these incidents may have been abated. 

It is not just witnesses who come under these attacks and threats. Their family members and loved ones are often targeted as well. One example is the post-election violence that followed the 2007 elections in Kenya. The International Criminal Court (ICC) admitted that family members of witnesses in its cases against perpetrators of the violence faced threats of attacks. 

The spate of these threats will continue to rise in the face of weak or non-existent witness protection programs. This will result in dwindling witness confidence in judicial processes. For example, in the April 2014 trial of an alleged Boko Haram Member in Nigeria, a key witness refused to testify because the judge did not allow him to use a face mask to conceal his identity. The Judge ordered the use of a cubicle instead to maintain an open court. These unfortunate realities discourage a lot of otherwise credible witnesses from participating in transitional justice processes. 

There is also a gender dimension to witness protection in Africa that is worthy of consideration. Women and girls face peculiar challenges associated with discrimination and stigmatization. In cases of human rights violations and atrocities that involve crimes like rape and sexual slavery, survivors do not often get witness protection during trials nor adequate psychosocial support during and after the trial.

It is abundantly clear that as a matter of urgency, Africa needs to begin the process of prioritizing effective witness protection systems in its transitional justice processes. Amnesty International’s checklist for the establishment of truth commissions makes three key recommendations to ensure proper protection for witnesses: (1) treating victims with dignity and humanity, (2) establishing effective long-term witness protection programs, and (3) assisting witnesses in presenting their views, concerns, and cases. All must be fulfilled if witnesses are to be adequately protected and, by extension, if transitional justice is to be successfully pursued.

In a nutshell, transitional justice mechanisms in Africa will continue to suffer setbacks and create barriers for witnesses and survivors if proactive witness protection programs are not incorporated into transitional justice initiatives. It is therefore critical that the African Union, the Regional Economic Communities, and African States create and implement frameworks for robust witness protection programs. Future transitional justice processes and the very people who take the greatest risks in the name of pursuing justice and accountability depend on it.