Witness Protection cover 5/5/10 1:57 PM Page 1 ISS Head Office THE JUSTICE SEC Block D, Brooklyn Court, 361 Veale Street New Muckleneuk, Pretoria The justice sector Tel: (27-12) 346 9500 Fax: (27-12) 346 9570 E-mail: [email protected] afterthought: ISS Addis Ababa Office First Floor, Ki-Ab Building, T Alexander Pushkin Street, OR AFTERTHOUGHT Protection of African witnesses has yet to receive serious Pushkin Square, Addis Ababa academic examination. The justice sector afterthought: Tel: (251-11) 372 1154/5/6 Fax: (251-11) 372 5954 Witness protection in Africa Witness protection in Africa constitutes a first attempt to E-mail: [email protected] address this gap in the literature. The book examines a critical component of both ISS Cape Town Office international and domestic criminal justice processes. 2nd Floor, The Armoury, Buchanan Square Where international criminal tribunals have been 160 Sir Lowry Road, Woodstock, Cape Town established to address genocide, war crimes and crimes Tel: (27-21) 461 7211 Fax: (27-21) 461 7213 : against humanity, witness testimony – and therefore E-mail: [email protected] IN AFRICA WITNESS PROTECTION CHRIS MAHON witness protection – has been vital to successful prosecutions. Whether it is the dramatic death of almost ISS Nairobi Office 100 witnesses in the formative years of the International Braeside Gardens, Lavington, Criminal Tribunal for Rwanda, the disproportionate Gitanga off Muthangari Road, Nairobi power of the prosecution to provide material benefit to Tel: (254 -20) 386 1625 Fax: (254-20) 386 1639 witnesses at the Special Court for Sierra Leone, or the E-mail: [email protected] International Criminal Court's enormous task of protecting witnesses in multiple conflicts at any given ISS Pretoria Office time, The justice sector afterthought provides the first Block C, Brooklyn Court, 3611 Veale Street description of formerly off-limits processes. The author of an EU-funded design of a Sierra New Muckleneuk, Pretoria Leonean national protection programme, Chris Mahony Tel: (27-12) 346 9500 Fax: (27-12) 460 0998 also examines African witness protection at the national E-mail: [email protected] level, including South Africa's programme and progress towards protection programmes in Kenya, Uganda and www.issafrica.org Sierra Leone. This largely descriptive narrative considers the feasibility of conducting witness protection with limited resources despite witness threats emanating from sophisticated criminal enterprises and, in some cases, elements of the state itself. For policymakers, donors, practitioners and justice sector observers in Africa, this book exposes a critically important cog in the African justice wheel. It is time to begin considering in earnest the many pressing questions this important function poses for contemporary justice sector reform and prosecution of serious criminality in Africa. Y This publication is funded by the Governments of the Netherlands and Norway. Chris Mahony Witness Protection text pages 5/5/10 2:00 PM Page 2 The justice sector afterthought: Witness protection in Africa Chris Mahony Witness Protection text pages 5/5/10 2:00 PM Page 4 Contents About the author . .iii Acknowledgements . .iv Acronyms and abbreviations . .vi Executive summary . .viii Chapter 1 Protecting those most vulnerable: Overview of the key issues . .1 Chapter 2 International Criminal Court's Victims and Witnesses Unit: A mandate to protect all? . .15 Chapter 3 International Criminal Tribunal for Rwanda: A lesson in ensuring protection from the outset . .59 Chapter 4 Special Court for Sierra Leone: A new model for African witness protection? . .77 Chapter 5 South Africa's witness protection unit: Africa's first domestic protection mechanism . .95 Chapter 6 Kenya's new protection programme: Can high expectations be matched by political will? . .111 Chapter 7 Uganda: Conflating witness protection and protection of informants . .139 THE JUSTICE SECTOR AFTERTHOUGHT: WITNESS PROTECTION IN AFRICA i Witness Protection text pages 5/5/10 2:00 PM Page 6 Chapter 8 Sierra Leone: Domestic protection conceptualised by an international tribunal . .151 Chapter 9 About the author Towards an African right to protection: Conclusions and recommendations . .163 Chris Mahony is a justice sector consultant based at the University of Oxford Notes . .177 where he is a candidate for a DPhil in Politics and treasurer of Oxford Transitional Justice Research. He holds Bachelor of Commerce (BCom) and Bachelor of Laws Bibliography . .210 (LLB) degrees from the University of Otago and a master’s degree in African Studies (MSc) from the University of Oxford. Chris was admitted to the bar of the High Court of New Zealand in 2006 where he appeared for the crown in criminal and refugee matters. He drafted the recommendations on governance for the Sierra Leone Truth and Reconciliation Commission, and assisted with the compilation of the 'Historical antecedents to the conflict' chapter. In 2008 Chris directed the Witness Evaluation Legacy Project at the Special Court for Sierra Leone. It designed a proposed witness protection programme for Sierra Leone's domestic justice system. He is also a professional rugby player who has represented Auckland and has won four Oxford blues. Chris's research interests include transitional justice, international criminal law, international human rights and humanitarian law, and African history and politics. ii INSTITUTE FOR SECURITY STUDIES THE JUSTICE SECTOR AFTERTHOUGHT: WITNESS PROTECTION IN AFRICA iii Witness Protection text pages 5/5/10 2:00 PM Page 8 CHRIS MAHONY Disclaimer In representing and commenting on views about the work of the ICC, the ICTR, the SCSL, the South African, Kenyan, Ugandan and Sierra Leonean states and their Acknowledgements protection efforts, the author has sought to be critically constructive in discussing various aspects of the protection of witnesses. The views expressed in this book in Many of those I wish to thank prefer anonymity due to the sensitive nature of their no way bind the individuals or institutions listed above; neither do they necessarily work. To those who have assisted me under such circumstances, I remain truly reflect the views of the ISS or its donors. Any inaccuracy or perceived grateful. I would like to thank individuals who went out of their way to assist my misrepresentation in this book is the responsibility of the author alone. research on both Kenya and South Africa. These include Gerhard van Rooyen, former ICC protection officer and now UN Office on Drugs and Crime resident adviser in Kenya, and Professor David Anderson of the University of Oxford. I would like to specially thank Saleem Vahidy for his assistance while conducting research in The Hague and his father-like guidance at the Special Court for Sierra Leone. At the ICC, my thanks go to Simo Vaaitanen, Chris O'Brien from the Registry as well as Beatrice Le Fraper du Hellen and Michel de Smedt from the Office of the Prosecutor and Karim Khan from the defence. At the Special Court for Sierra Leone, sincere thanks are due to Stephen Rapp, Harri Moilanen and Wayne Jordash. In Oxford, I am indebted to my colleagues at Oxford Transitional Justice Research, particularly Phil Clark, Lydiah Bosire and Nicola Palmer for their patience and assistance during this project. Special thanks are due to Alexandra Chaffin of the London School of Economics for her unwavering support in editing and compiling the first draft of this book. To Bruce Baker for his insightful peer review of the initial draft and Antoinette Louw from the ISS and Lomin Saayman for editing the final product. For his patience, support and enthusiasm for the neglected issue of witness protection in Africa, I am truly indebted to Anton du Plessis, head of the International Crime in Africa Programme at the ISS, who made this project possible. Finally, I would like to thank my parents, Diane and Dennis, for providing the educational opportunities which allowed me to focus on the issues that interest me most. The ISS would like to thank the Governments of the Netherlands and Norway for supporting the study and the publication of this book. iv INSTITUTE FOR SECURITY STUDIES THE JUSTICE SECTOR AFTERTHOUGHT: WITNESS PROTECTION IN AFRICA v Witness Protection text pages 5/5/10 2:00 PM Page 10 CHRIS MAHONY MLC Movement for the Liberation of the Congo MONUC United Nations Mission in the DRC MOU Memorandum of Understanding NPA National Prosecuting Authority (South Africa) Acronyms and abbreviations NPFL National Patriotic Front of Liberia OEO United States Office of Enforcement Operations AFDL Alliance of Democratic Forces for the Liberation of Congo OHCHR Office of the UN High Commissioner for Human Rights AFRC Armed Forces Revolutionary Council PAGAD People against Gangs and Drugs ANC African National Congress RCD Rally for Congolese Democracy AU African Union RPF Rwandan Patriotic Front CAR Central African Republic RUF Revolutionary United Front (Sierra Leone) CDF Civil Defence Force (Sierra Leone) SAPS South African Police Service SCSL Special Court for Sierra Leone CID Criminal Investigations Department SLDF Sabaot Land Defence Force CIPEV Commission of Inquiry into Post-Election Violence TRC South African Truth and Reconciliation Commission CNDP National Congress for the Defence of the People UNHCR United Nations High Commissioner for Refugees DFID British Department for International Development UNODC United Nations Office on Drugs and Crime DPP Directorate of Public Prosecutions UPDF Ugandan People's