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Fighting Boko Haram: why Nigeria needs a cohesive witness protection programme
5 May 2015

Militant Islamist group Boko Haram shows no mercy to any target that features on its jihadist radar; especially those who are believed to have betrayed or conspired against them. In March this year, the group released a video titled Harvest of Spies, which shows the apparent beheading of two men who were allegedly hired by the authorities to spy on them.

The authenticity of the video has not been confirmed, but its message is chilling: anyone who is seen to assist the authorities will be severely punished. These terror tactics are designed to intimidate potential witnesses, prevent any form of co-operation with the criminal justice system and significantly undermine efforts to implement criminal justice responses to terrorism in Nigeria.

Reliable witness testimonies play a crucial role in the prosecution of all crimes; and witness testimony is of high evidentiary value if it conclusively proves the accused’s involvement and supports the prosecution’s argument in a fair and transparent manner. When a trial is open to the public, it can further provide a valuable platform for ordinary citizens to observe justice and scrutinise witness testimony.

Investigators, prosecutors and members of the judiciary also need protection

A fair trial is especially important because it promotes respect for human rights – the absence of which could jeopardise a trial’s outcome. Given the seriousness of terrorist attacks and the need for a human rights-based response, obtaining accurate witness testimony is critical.

Protecting witnesses to serious or organised crimes, and crimes involving influential or high-profile persons is essential and should be approached in a cohesive manner. The threat that Boko Haram poses to potential witnesses points to the need for a robust witness protection programme to be established in Nigeria; one that extends beyond facilitating the prosecution of terrorism. Nigeria’s draft Witness Protection Programme Bill of 2012 provides for such a programme to be established, but has yet to be adopted into law.

The lack of a witness protection programme has meant that Boko Haram-related cases have been inconsistent and produced mixed results. During the trial of Kabiru Sokoto, a high-profile member of the radical group, the court employed identity-protecting measures including the use of masks and pseudonyms to refer to witnesses, and also excluded the public from court. Sokoto was convicted of terrorism and handed a life sentence.

In contrast, in the case of Nyanya bombing suspect, Aminu Ogwuche, the judge did not allow witnesses to wear masks due to opposition from the defence. Prosecutors were instead allowed to make use of pseudonyms and camera testimony. This trial is yet to be concluded.

It is crucial that Buhari’s administration prioritises proper and visible witness protection

In April last year, a witness in the prosecution of Mohammed Nazeef Yunus, an alleged member of Boko Haram, reportedly refused to testify given the judge’s ruling against wearing masks during trial. The judge in this case also ruled against excluding the public from court, opting for cubicles to be used to shield the witness from public viewing. As a result, the trial had to be postponed and is still pending.

Despite these inconsistencies, Nigeria has demonstrated recognition of the importance of witness protection. The country cooperated extensively with South Africa before and during the 2013 Henry Okah terrorism trial. Nigeria ensured the protection of witnesses while in Nigeria, and facilitated their safe travel to South Africa, where they testified. The witnesses’ testimony contributed significantly to Okah’s conviction and ultimately promoted a criminal justice response to terrorism.

Effective witness protection requires legislation that is both comprehensive and flexible enough to meet the different needs of various types of cases. Protection measures should apply prior to, during and after trial: including the concealment of witnesses’ identity (especially in public trials) and allowing witnesses to relocate within and outside of Nigeria.

In Boko Haram cases, witnesses may be exposed to violence, intimidation or even death. This is because they could potentially expose the perpetrators of violence and establish links to others involved in terror activities: including individuals in leadership positions. A comprehensive approach to witness protection would also accommodate victims of the group’s violence, as well as relatives of the victim. It would also cater for the special needs and vulnerabilities of former members or collaborators of Boko Haram who may have turned state witness. Lastly, witnesses with expertise in a particular field should also be taken into consideration, since their knowledge adds depth to a case.

Visible witness protection engenders a culture of public confidence in the protection measures

Witness protection initiatives must also provide for vulnerable witnesses like children and the elderly. Boko Haram’s infamous abduction of more than 200 girls from Chibok in April last year is an example of an attack involving children. The rescue of nearly 300 women and girls from the Sambisa forest in April this year is another such example. The prosecution of these particular crimes would rely on crucial testimonies from witnesses who would need comprehensive protection mechanisms, such as one-way mirrors and video testimony. Without sufficient measures in place, children may not be willing or allowed to testify.

It is must be noted that not only witnesses and victims need protection, but also investigators, prosecutors and members of the judiciary. The March 2015 assassination of Joan Kagezi, Uganda’s lead prosecutor in the 2010 al-Shabaab terrorism case, highlights the risks faced by criminal justice officials handling grievous crimes. The possibility of this type of attack taking place in Nigeria should be viewed seriously and measures should be implemented swiftly.

Given the forthcoming change in government, it is crucial that President-elect Muhammadu Buhari’s administration prioritises proper and visible witness protection in his strategy against Boko Haram. This would show substantial commitment to a criminal justice response to terrorism in Nigeria, and will instil confidence and strengthen a rule-of-law-based response.

It would also intensify the investigation and prosecution of Boko Haram-related cases, while strengthening the protection of human rights in Nigeria’s counter-terrorism measures. While proper witness protection accommodates the various needs of witnesses and takes necessary steps to ensure their safety, visible witness protection engenders a culture of public confidence in the protection measures, which will increase the number of witnesses likely to come forward.

Uyo Salifu, Researcher, Transnational Threats and International Crime Division, ISS Pretoria

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