WITNESS PROTECTION AND VICTIM SUPPORT MEASURES IN UGANDA:

A WITNESS: According to Gert, awitness can be also be defined as:

..a person, other than the defendant, having knowledge of a fact

(possessing information) to be ascertained in criminal proceedings
or summoned by the judical authority to provide testimony on that
fact.1
VICTIMS: Rule 85 (a) of The International Criminal Court defines

victims as any natrual persons who have sufferred harm as aresult of the
commission of any crime within the jurisdiction of the court; including
institutions or organisations2
Uganda considers the idea of witness protection even though it has been
amatter for the International Criminal Tribunals, including the ICC, ICTR and
SCSL
Witnesses who testify in trials involving serious crimes some of whom are
likely to be direct victims can face serious risks to their security and stability
before, during, and after giving testimony. They may confront direct threats
to the safety of their families and be in need of ongoing psychosocial support
in the aftermath of testifying about deeply traumatic events.
IMPORTANCE OF WITNESS PROTECTION:
Witness protection has been recognised as key to achieving successful
investigations and prosecutions of offenders of all forms of serious and
organised crimes. Witness protection and support is therefore asignificant
issue to be considered in the judicial system in Uganda.
Justice Navanethem Pillay while presenting a paper on the importance of witness
protection stated that;
we know that most witnesses involved in investigations and
prosecutions have good reasons to fear retaliation where their human
rights could be violated. Absent appropriate saftey nets for the

1 Gert Vermeulen, protecting Witnesses of serious crime: Training manual for law
enforcement and judiciary, Brussels: Council of Europe Publishing, September
2006,204
2 International Criminal Court, Rules of Procedure, Rule 85(a)
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protectionof witnesses, their physical and psychological integrity, privacy,

diginity, their reputation and even lives may be at risk 3

If witnesses feel insecure or threatened by the experience of giving evidence,

they will be unwilling to testify or threatened by their testimonies. It is
therefore in the interest of justice that they testify in a secure and asafe
atmosphere in which their lives and those of their families are not put at risk.
This is an important element for the dispensation of justice in the criminal
justice systems.
UGANDAS INITIATIVE ON WITNESS PROTECTION:
Currently in Uganda there is no enacted law that provides the legal
framework for the protection of witnesses that are called upon to testify in
court.
In practice, the concept of witness protection in Uganda is relatively new with
mostly ad hoc measures put in place by police and Judges to respond to the
protection needs of witnesses during investigation and trial process therefore
the measures are informal ,limited and there is no legal regime for witness
protection.
PROVISIONS IN THE LAWS OF UGANDA THAT REMOTELY PROVIDE
FOR WITNESS PROCTECTION:
As earlier stated, there is no specific law that deals with the protection of witnesses
in Uganda. There are however some provisions in some of our laws that can
remotely be linked to witness protection.
1) THE INTERNATIONAL CRIMINAL COURT ACT N0.11 OF 2010
Section 46 of the domesticated ICC Act is on the protection of witnesses. It states
that;
(1) The applicable law with respect to compelling a person to appear before a
Registrar under S.44 or Section 45 and to give evidence or answer questions, or to
produce documents ; or other articles, is the law specified in Subsection (2); and
that law applies with necessary modifications
3 Paper presented at OHCHR expert meeting on witness protection for successful
investigation and prosecution of gross human violations and international crimes in
Geneva, 29th September 2009 at page 1
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Subsection (2) States that;

For puposes of subsection (1), the applicable law is the law of Uganda that applies
to the giving of evidence or the answering of questions or the production
ofdocuments or other articles on the hearing of acharge against a person for an
offence against the laws of Uganda.
Section 58 provides for the protection of victims and witnesses and preserving
evidence.
Its to the effect that;
where the ICC requests; assistance under article 93(1)(j) of the statute in
protecting victims and witnesses or preserving evidence;
assistance under article 19(8); or Paragraphs (2) or (3) of article 56, in preserving
evidence, the minister shall give authority for the request to proceed and transmit
the request to the appropriate Ugandan agency if the Minister has reasonable
grounds to believe that the assistance requested is not prohibited by Ugandan law.
2) THE WHISTLE BLOWERS PROTECTION ACT, 2010
Section 10 on Protection against court, states that;
Awhistleblower shall not be liable to civil or criminal proceedings in respect of
disclousre that contravenes any duty of confidentiality or official secrecy law where
the whistleblower acts in goodfaith.
Section 11 on State protection, provides that;
A whistleblower who makes a disclosure and who has reasonable cause to believe
that:a) his or her life or property; or
b) the life or property of amember of the whistleblowers family is endagered or
likely to be endangered as aresult of the dislosure, may request state
protection and the state shall provide the protection considered adequate.
3) THE ACCES TO INFORMATION ACT N0 6 OF 2005
Provides for the protection of saftety Persons and property
Section 29 is to the effect that;
An information officera) shall refuse arequest for access if the disclosure of the record could
reasonably be expected to endanger the life or physical saftey of aperson;or

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b) may refuse a request for access to arecord of the body if the disclosure of the
record is likely to prejudice or impair:(ii)
methods, systems, plans or procedures for the protection of;
(aa) aperson in accordance with awitness protection scheme.
Section 40 Disclosure of records by court:
Section 40(2) The court maynot disclose to any person including the parties to the
proceedings concerned , other than the public body referred to in subsection (1):-...
a) any record of public body which, on arequest for access, may have been
refused under this Act;
b) if the information officer of a public body or the Inspector Genaral of
Government in refusing to grant acces to arecord,refused to confirm or deny
the existence or non-existance of the record, any information as to whether
the record exists.
S. 40(3) The Court under subsection (1) maya) receive representation exparte;
b) conduct hearings in camera;and
c) prohibit the publication of such information in ralation to the proceedings as
the court determines, including information in ralation to the parties to the
proceedings and the contents or orders madde by the court in the
proceedings.
4) THE INSPECTORATE OF GOVERNMENT ACT 2002
S. 34(1) on the protection of informers and witnesses, states;
aperson who provides information to the Inspectorate shall be protected and his
or her identity shall be disclosed and may be rewarded for his or her information
and paid an amount of five percent of the money recovered consequent upon his or
her nformation to the inspectorate.

5) THE EVIDENCE ACT CAP 6.

Section 150 empowers courts to forbid indecent or scandalous
questions to witnesses.
It states that;
The court may forbid any question or inquiries which it regards as indecent
or scandalous, although the questions or inquiries may have some bearing
on the questions before the court, unless they relate to facts in issue, or to

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matters necessary to be known in order to determine whether or not the

facts in issue existed.
Section 151 on questions intended to insult or annoy
It states;
The court shall forbid any question which appears to it to be inteded to
insult or annoy, or which, though proper in itself, appears to be court
needlessly offensive in form
Under S.124, Magistrates or police officers may not be compelled to
disclose some sources of their information. It states;
No magistrate or police officer shall be compelled to say from where he or
she got any information as to the commission of any offence.
However under S. 131, a witness is not excused from answering any
question on the ground that the answer will incriminate him/her.
The MCA and TIA provide for trals in camera. These provisions may protect
the indentity of witnesses but the record of proceedings becomes a public
document to be accessed by all.
6) WITNESS PROTECTION BILL OF 2012:
In 2012 the Uganda Law Reform Commission finalised the draft Bill on the
protection of witnesses in courts. The Bill focuses on, majotity the following
areas;
1. Assessment of witnesses who need protection
Section 1(1) of the Bill states;
Aperson who needs protection from a threat or risk which exists on account
of his being a crucial witness, who
(a) Has given or agreed to give, evidence on behalf of the state
Proceedings for an offence; or
Hearings or proceedings before an outhority
(b)Has given or agreed to give evidence(a), in relation to the
comission or possible commission of an offence against the laws of
Uganda;
(c) Has made a statement to:- (i) the Inspector General of Police or a
member of police Force
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(d) Is required to give evidence in aprosecution or inquiry held before a

Court, Commision or tribunal outside Uganda(2) Aperson shall be a protected person for the purpose of this Act if that
person qualifies for protectioa) by virtue of being related to a witness; or
b) on account of a testimony given by a witness; or
c) for any reason which the Director may consider sufficient.
Section 22(3) provides that;
A child witness shall be treated in a caring and sentive manner that is
respectful of his or her dignity throughout the legal proceedings, taking into
account his or her personal situation and immediate and special needs, age,
gender, disabilities if any and level of maturity.
2. The circumstances under which protection should be offered.
Section 19 provides for the admission into witness protection
programme. It states;
(1) The Directorate shall, by regulations state the criteria for
admission into the programme.
(2) The Director shall, in determining the criteria take into
considerations:a) The seriousness of the offence;
b) The nature and relevance of the evidence;
c) The nature of the apparent danger;
d) The public interest in the prosecution of the case;
e) Importance of the witness testimony; and
f) Ability of the person to adapt to the programme and its
measures.
3. The form and extent of protection which should be offered/
protective Action.
1) The Agency shall establish and maintain a witness protection
programme and shall take such action as may be necessary and
reasonable to protect the safety and welfare of the protected persons.
2) Without prejudice to the generality of subsection(1), the action taken
under subsection (1) may include but not limited toa) Pysical and armed protection;
b) Relocation;
c) Change of indentity; or

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d) Any other measure necessary to ensure the safety of a

protected person.
3) The Agency may request the courts, in support of the programme, to
implement protection measures during court proceedings which
measures may include but not limited toa) Holding in camera or closed sessions;
b) The use of pseudonyms;
c) The reduction of indentifying information;
d) The use of video link;or
e) Employing measures to obscure or distort the identity of the
witnesses.

a) Who should offer protection and punishment for failure to offer such
protection
b) The duration of such protection
c) Handling of court proceedings involving witness protection
d) Protection of witnesses testifying against the government or their
employers
e) Protection of prosecutors and investigators.
Section 23 provides for protective measures;
(1)Aprotected witness shall not be exposed in the press.
(2)It shall be an offence to disclose the identity of aprotected witness in
anyform.
4. Duration of such protection:
Section 24(1) A person admitted into the programme shall be
protected for as long as that danger or risk to their safety or security
persists
7) THE RULES OF PROCEDURE AND EVIDENCE FOR THE
INTERNATIONAL CRIMES DIVISION OF THE HIGH COURT OF
UGANDA:
In 2013, the ICD began developing the ICD Rules of evidence and procedure
to address the gaps in existing domestic criminal leglation in relation to the
prosecution of serious crimes.
The ICD draft Rules of Procedure and Evidence that are a waiting approval by
the Rules Committee provide for procedural protection measures such as in

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camera proceedings, use of pseudonyms and redaction of vulnerable

witnesses identities from court records during trial.
Rule 30(1) recommends the exclusion of witness and substitute it with any
other suitable for the trial and limitation of disclosure period. Limiting the
time when the prosecution or defence can have access to the identities of
the witnesses can limit the circulation of sensitive material.
Rule 30(2) recommends that disclosure should not include the names of
witnesses.
Rule 30(6) provides for international witness protection measures and
standards
Rules 46-51 deals with handling of prior recorded evidence, admissibility of
facts agreed to by the parties and victims and witness protection measures
at trial stage.
Rules 61-65 deals with the protective measures for those victims and
witnesses that might feel threatened as a result of their giving evidence
before the court.
5. MEASURES ADOPTED BY INVESTIGATORS AND PROSECUTORS
The police have undertaken adhoc protective measures upon request of
investigative agencies. Measures have included regular patrolling of a
witness; residence, advising and assisting temporay relocation, monitoring of
the accused, and informing the accused that any intimidation would be
prosecuted.
They have also taken an initiative to hire a psychologist who offers
couynseling to traumatised witnesses during investigations.
6. SENSTIZATION/TRAINING WORKSHOPS WITH VARIOUS
TAKEHOLDERS:
In 2010, the Justice and Order Sector (JLOS) through the Uganda
Reform Commission launched a study on witness protection in order to
identify the need for policy and legislative framework for protection of
witnesses for the establishment of a National witness protection
programme, measures for the protection and safety of witnesses to
testify and give evidence in criminal proceedings.
2013 the Uganda Law Reform Commission with the UN office of the
High Commissioner for Human Rights sought to engage anational
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consultant, who will work with an international specialist on witness

protection, to conduct capacity analysis of existing services and
structures for witness protection within the Justice Sector in Uganda
with aview to indentify the resource needs and recommend an action
plan for establishing a permanent structure for witness protection in
Uganda.
In order to improve institutional capacity in facilitating the participation
of vulnerable victims and witness, the Justice Law and Order Sector
and the judicial studies institute of Uganda and the office of the High
Commissionor for Human rights in Uganda jointly organised a judicial
workshop on victim and witness protection which took place in Gulu
Uganda on 1st -3rd August 2011. The workshop was attended by Judges,
prosecutors, Registrars, Defence counsel, Interpreters, Legal assistant
and investigating officers of the International Crimes Division of the
High Court.
One of the objectives of the judicial workshop was to enhance knowledge on
applicable legal standards and good practices on victim and witness
protection in investigation and court proceedings and how they can be
applied in the national context of Uganda. The workshop dealt with key
aspects of victims and witness protection particularly the adverse protection
needs to vulnerable witnesses such as children, formerly abducted.
On the 2nd and 3rd October 2014, the four Judges and the former
Deputy Registrar (Ms. Harriet Ssali Lule)participated in a High level
conference, that took place at the Lake Victoria Serena Hotel
Lweza,organised by the ICTJ,on the theme; Towards the effective
operationalisation of the National Transitional Justice policy
The ICTJ proposed to support the ICD to develop guidelines for the
Protection and support of victims and witnesses of sexual crimes at
ICD. The guidelines are inteded to compliment the Rules of procedure
and evidence and to ensure the effective implementation of
innovative, appropriate gender-sensitive and context specific
protective measures.
CHALLENGES AND RECOMMEDATIONS:
1. DELAYED ENACTMENT OF THE WITNESS PROTECTION BILL OF
2012;

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The enactment of the witness protection bill that is inteded to empower and
protect witnesses and facilitate criminal prosecutions has delayed since
2012.
I therefore recommend the government of Uganda to expedite the
enactment of witness protection legislation. This will extend protection
to vulnerable witnesses and victims who face security, psychological
and physical risks for participating in criminal proceedings.
2. LACK OF VICTIM PARTICIPATION IN THE PROCEEDINGS IN THEIR
OWN STANDING:
Uganda crminal Justice System doesnot provide for independent appearance
of victims, rather, the DPP appears on their behalf. Similarly, the ICC Act
2010 doesnt specifically provide for the participation of victims in criminal
proceeding nor does it make provision for victim reperationbs. There is also
no mention of the establishment of victims Trust Fund, which is a feature of
the Rome Statute.
RESPONSE TO LACK OF VICTIMS PARTICIPATION
Whether or not victims will appear independently in proceedings before the
ICD is policy issue to be decided by the Administrators at the High Court.
Through complementarity, the ICD can incorporate and adopt ICC measures
to create a specialised unit for victims and witnesses, such as the victim and
witness Unit within the ICC and support victims needs such as physical or
psychosocial protection or material support. The discussion of the witness
and Victims Protection Unit, it could be located at the Attorney Generals
office, the ICD, or be kept as separate entity run by a Secretariat.
3. LACK OF THE WITNESS PROTECTION AND SUPPORT UNIT IN
THE ICD REGISTRY:
The International Crimes Division is lacking awitness protection and victim
support unit. The support staffs lack expertise in that field. The Unit which is
setup by the Registrar is supposed to provide for protective measures,
security arrangements, counseling and other appropriate assistance for
witnesses.4
The International Crimes Division of the High Court should establish a
fully staffed and well-resourced witness and victims support unit
4 Article 43(6) of the Rome Statute
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within its Registry. This Unit should provide appropriate support and
protection to victims and witnesses who face security, Psychological
and physical challenges due to their participation in criminal
proceedings.
4. NON-DISCLOSURE OF WITNESS IDENTITY IN COURT:
The measure of non-disclosure of awitness information regarding himself /
herself and any of his / her family members is done in two phases that is,
from the public and the defense. The witnesss identity is concealed using a
pseudonym, voice and facial distortion. This is still lacking in the Ugandas
judicial system.5
The ICD Registry should make sure that all information relating to
witnesses is kept in a secure electronic database that can be accessed
only by designated registry staff.
The judicial officer can also make orders prohibiting any publication of
information which may affect the security of the witnesses, such as
information about where the witness is staying. Furthermore, no
witness can be forced to give information which will affect his or her
security, such as providing details of the place of safety.
Court can also implement anumber of protective measures to ensure
witnesses are able to testify in court. These protective measures are
Apseudonym, facial distortion, voice distortion, closes session,
dislousure limitations.
Other protective measures pertaining to psychologically vulnerable
witnesses might be allowed to provide testimony in a closed session or
via video link from the waiting room6.
5. RIGHT TO AN OPEN TRIAL UNDERMINED:
Although witness safty is paramount, witness protection measures provide a
significant risk that right to an open trial will be undermined like the
protection of anonymous witnesses. Public non-disclosure impinges on the
right to afair trial by removing over 50 percent of the trial when face and
voice distortion and pseudonyms are used.
6. SAFETY OF WITNESSES AND VICTIMS IN NORTHERN UGANDA:
5 Rule 81(4) of the International Criminal Court, Rules of Procedure and evidence
6 See also Rule 75 of the Special Court for Sierra Leone Rules of Procedure and
Evidence; the Family Division has already started implementing this mechanism.
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Although in march 2011, an independent report by international experts

commissioned by Ugandas Justice Law and Order Sector, JLOS, advised the
government on judicial matters, and recommended that a comprehensive
witness protection programme be put in place for the ICD. Currently in
northern Uganda, many victims and witnesses live alongside alleged
perpetrators of serious crimes raising concerns over their safety.
7. RULES OF PROCEDURE AND EVIDENCE OF ICD TO BE ADOPTED
The Rules of Procedure and Evidende of (ICD) Rules for the International
Crimes Divison of the High Court should be adopted. This will enable the ICD
to conduct trials of serious crimes in accordance with established
International standards and best practices.
Judiciary and the government should facilitate the carrying out of swift
criminal trials by implementing security and support measures for
victims who are willing to come forward and testify in court, including
victims preperation for testimony, and medical and psychosocial
assistance before, during and after the testimony.
Protecting victims and witnesses should remain on the courts agenda as
victims and witnesses cooperation is essential to ensure fair and successful
prosecutions.

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