Witness Protection Act

The Act may be cited as the Witness Protection Act.

Contains the text: "a register maintained under any Act in which marriages are registered or recorded; or"

Section 3 lists categories and circumstances to which the section applies, including "a witness in criminal proceedings", purposes related to treaties or agreements to which Kenya is a party, circumstances prescribed by Regulations, and reasons related to witnesses or testimony that the Director may consider sufficient.

Establishes an Agency called the Witness Protection Agency.

The Agency must provide procedures to give special protection to persons with important information and has the power to acquire and control firearms, ammunition and necessary equipment despite other laws.

The Agency must establish and maintain a witness protection programme.

The Agency has a range of powers (control/supervise staff; manage funds; receive and disburse grants; associate with persons/organizations; enter confidential agreements for relocations; open bank accounts; handle witness protection information; instruct protected persons; search and seize; summon persons; invest surplus funds). Failure to comply with certain Agency directions or summonses is an offence punishable by fines or imprisonment.

Establishes the Director of the Agency.

Section 3F authorizes the Agency to appoint staff, defines possible staff categories, permits transfer or secondment of public officers to the Agency and treats transferred public officers as Agency staff; it allows differing remuneration and requires the Agency to establish a social security scheme with finance approval.

The Agency has the powers needed to perform its functions without interference and must report to the Attorney-General on fulfilment of its purpose and performance of its functions for accountability.

The Agency must not accept any grant, gift, donation or bequest that is conditional on it performing functions or discharging duties beyond those under this Act.

Establishes the Victims Compensation Fund vested in and operated by the Agency and lists its sources, uses and administration powers.

The Agency must prepare annual estimates of expenditure in accordance with public finance law, and the Agency must not incur expenditure except under those estimates or with an authorization from the advisory Board and prior written approval of the Cabinet Secretary responsible for finance.

The Agency must keep proper accounting records classified under its information security policy and prepare, audit and report annual accounts under the Public Audit Act, with national security auditing and classified procurement rules applying mutatis mutandis.

The Agency must make an annual report within four months after each financial year to the Board; the Board must send that report to the Attorney-General within fourteen days; the Attorney-General must send it to the President within fourteen days of receipt.

For their functions under the Act, the Director, assistant directors and protection officers have the powers, privileges and immunities of a police officer.

The Director must issue every Agency staff member, on appointment, a certificate of identity and appointment; a staff member with that certificate has authority to carry concealed official firearms and ammunition.

On commencement this Part dissolves the Witness Protection Unit; the former Head becomes Acting Director until a Director is appointed; pre-existing contracts remain in force if consistent with the Act; property, rights and liabilities vest in the Agency.

Creates the Witness Protection Advisory Board, lists its members, makes the Director the Board secretary, and allows members to designate a representative officer in writing.

Section 3Q(2) authorizes the Board to establish committees of Board members to carry out any of its functions.

Members of the Board are entitled to be paid allowances determined by the Cabinet Secretary responsible for finance in consultation with the Commission.

Sets meeting frequency and intervals for the Board; establishes quorum; assigns who convenes and presides at meetings; decisions by majority and a casting vote for the presiding person.

Members and persons present at Agency meetings who have an interest in a matter must disclose that interest in writing and are disqualified from participating in deliberations unless the Board or Agency decides otherwise; members, the Director, and staff must not transact business with the Agency; contravention is an offence punishable by a fine up to five hundred thousand shillings or imprisonment up to three years or both.

The Attorney-General appoints the chairperson and members of the Witness Protection Complaints Committee; they serve part-time and hold office for a non-renewable six-year term.

The Committee handles appeals from the Director and complaints against Agency staff; an aggrieved person may appeal to the High Court within thirty days.

The Director must terminate a participant's protection and assistance if the participant requests termination in writing, or if the participant breaches programme terms, threatens security or integrity of the programme (in the Director's opinion), or if the circumstances giving rise to protection have ceased.

The Director may suspend a participant's protection and assistance for a reasonable period if satisfied the participant has acted or intends to act in a way that limits the Director's ability to provide adequate protection.

When a participant's protection or assistance under the programme is terminated or suspended under section 10 or 11, the Director must notify any law enforcement agency that is interested in the decision.

The Agency must establish and maintain a witness protection programme and take necessary and reasonable actions to protect the safety and welfare of protected persons; the Agency must also put in place support measures to help integrate protected persons.

The Director is responsible for decisions to admit or exclude persons from the witness protection programme; the Agency must process requests without undue delay and may require certain witnesses to sign memoranda of understanding.

The Director must not include a witness in the programme if, in the Director's opinion, there is not enough information to assess the matters in this section in relation to that witness.

The memorandum must be signed by or on behalf of the witness in the presence of the Director or designated staff; the Director must notify the participant as soon as practicable after signing; a witness is included in the programme when the Director or designated staff signs the memorandum.

A memorandum of understanding may be varied with the consent of the participant and the Director.

The Director may temporarily include a witness in the programme if in urgent need of protection, and may require an interim memorandum of understanding to be signed by or for the witness.

Allows a witness to establish a new identity.

The Agency must provide to the High Court the evidence the Court may require to satisfy itself about the matters specified in section 16.

All business of the High Court under this Part shall be conducted in camera.

The High Court has the power to make an order in respect of a person who was a witness to, or has knowledge of, an offence and is or has been a witness in criminal proceedings relating to that offence.

A person authorised by the witness protection order may make entries in birth, death or marriage registers to implement the order.

Entries made under this Act in registers of births, deaths or marriages are to be treated as valid entries; cancellation of such an entry can only be done by the Registrar‑General or an appropriate registrar after a High Court order made on the Agency's application stating the witness is no longer in the programme.

Participants must give the Agency specified evidence (identity and marriageable age; if previously married, evidence marriage is lawful; a statutory declaration of no legal impediment). Contravention is an offence punishable by fine up to fifty thousand shillings or imprisonment up to six months, or both.

The Agency must take reasonable steps to notify former participants of decisions under subsection (1); a person who fails to comply with subsection (3) commits an offence punishable by a fine up to fifty thousand shillings or imprisonment up to six months.

A person named in a birth, death or marriage entry who uses or obtains a document issued by the registrar based on that entry commits an offence and is liable on conviction to a fine up to fifty thousand shillings or imprisonment up to six months, or both.

The Agency may disclose a participant's or former participant's former identity to obtain documents about their new identity (notwithstanding subsection (1)).

Participants given permission not to disclose their former identity may lawfully claim their new identity as their only identity; persons associated with administering the programme must not disclose or publish programme information except as authorised by the Director.

The section protects participants given new identities from being identified in proceedings: courts may sit in camera, and questions, answers or statements that could disclose a protected identity or place of abode are barred.

Section 25: Documentation restrictions.

The Agency may make commercial arrangements with a person that let a participant obtain a benefit under a contract or arrangement without revealing the participant's former identity.

Section 27 requires the person to comply with restrictions in subsection (1)(b) and provides that the Agency will accept process on behalf of the participant (subsection (2)(b)).

Section 28 concerns participants avoiding pre-existing obligations or restrictions after obtaining a new identity and the Director's power/duty to act if the participant does not satisfy the Director that those obligations or restrictions will be lawfully dealt with or complied with.

The Director may, at his discretion, certify in writing that whole or part of an amount held by a participant represents payments made to the participant under the programme.

Allows reciprocal admission of qualifying foreign witnesses into Kenya's witness protection programme and reciprocal protection of Kenyan witnesses under a foreign country's witness protection regime.

The Director must assess and decide on admitting a foreign witness after consulting the Attorney-General; if admitted the Director must liaise with the Cabinet Secretary for immigration permits; the Agency may make Regulations to implement this Part.

The Director may, subject to any other law, admit any witness to the programme at the request of an international court, tribunal, commission, institution or organisation to which Kenya is a party, after consultations with the Attorney-General.

Requires disclosures about the identity or location of a person who is or has been a witness or participant.

A person must not, without the Agency's prior written approval and in connection with an activity carried on by them, use or publish a name, description, title or symbol that suggests the activity is carried out under this Act or on behalf of the Agency; doing so is an offence punishable by a fine not exceeding five hundred thousand shillings or imprisonment for up to three years or both.

A person who is not the Director or a member of staff of the Agency must not, by words, conduct or demeanour, falsely represent himself to be the Director or a member of staff of the Agency.

Obstructing staff of the Agency is an offence punishable on a first offence by a fine not exceeding one million shillings.

The Cabinet Secretary may prohibit or restrict access to Agency land or premises on the Director's request; the Agency may take security measures and publish notices; unauthorised entry is an offence punishable by a fine of at least five hundred thousand shillings, or up to three years' imprisonment, or both.

Persons must not disclose or publish non-public Agency documents, communications or information without the Agency's written consent; Director or staff may disclose criminal activity; breach is an offence liable to at least ten years' imprisonment.

People must not intimidate, harass, obstruct, threaten, hinder or prevent a witness with intent to subvert justice.

Section 31 lists categories of information related to participants, family members, memoranda of understanding, actions by the Director or officers, and witnesses that are addressed for disclosure, and it lists Agency authorization, investigatory determination, and High Court orders as conditions for disclosure.

People who gain information through association, duty or service with the programme or the Agency cannot be compelled in court, tribunal or commission of inquiry to produce documents or disclose matters related to the Agency's functions or protection of programme witnesses, except where the High Court orders otherwise.

Witnesses who assisted or disclosed information to the court or law enforcement agency are entitled not to be identified or to have identifying information disclosed; the court must remove or conceal identifying information from documents in proceedings; the court may permit identification where necessary to ensure justice.

Persons are exempt from liability for acts or omissions done in good faith when exercising or purportedly exercising a function conferred by or under this Act.

Section 35 has been repealed.

The Attorney-General may make regulations under the Act; the Chief Justice may, in consultation with the Director, make rules of court required or permitted by the Act, subject to specified constraints.