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The Senate at its plenary session on Thursday 8th June, 2017 passed the Witness Protection Programme Bill into an Act to provide for the establishment and operation or a program to enable certain persons to receive protection in relation to certain inquiries, investigations or prosecutions. The bill, sponsored by late Sen. Isiaka Adeleke was harmonized with the Whistleblower Protection Bill sponsored by Senator Biodun Olujimi and was passed after consideration of the Committee on Judiciary, Human Rights and Legal Matters’ report on it.
The bill is geared at encouraging witnesses of crimes, especially organized crimes like financial crimes, terrorism or other crimes to come forward and assist government and its agencies by offering protection to witnesses willing to provide information and evidence for the purpose of ensuring proper prosecution of the perpetrators. It is to ensure that witnesses, whose lives may be otherwise threatened as a result of their testimonies or volunteer of information, are adequately protected.
The bill, when it eventually becomes an Act, will provide an enabling environment and give effect to government’s policies that seek to enhance the administration of criminal justice and promote the fight against corruption. It is hoped that this Bill will go a long way in enhancing the issue of delivery of justice and ensuring that the judicial system is not encumbered in any way, especially in procurement of witnesses and whistleblowers. The bill has now been sent to the House of Representatives for concurrence before it can be sent to the President for assent.
The bill as it is
The bill has 17 sections altogether. We shall attempt a wholistic evaluation of the Bill.
- What is the purpose of the bill?
The purpose of the Bill is to promote law enforcement by facilitating the protection of persons who are involved directly or indirectly in providing assistance in law enforcement matters in relation to activities conducted by the Force; or activities conducted by any law enforcement agency or international criminal court or tribunal. It is to enable certain persons receive protection in relation to certain information, evidence or other assistance rendered to law enforcement agencies during enquiries, investigation or prosecution. The inclusion of whistleblowers in the protection programme has become imperative due to instances of victimization of whistleblowers in public and private organizations.
- Establishment of the Witness Protection Programme
The bill, by its Section 2 established a program called “the Witness Protection Programme” to facilitate the protection of witnesses and the Programme is to be administered by the Attorney General. Flowing from this, a lot of responsibilities in relation to this bill rests on the Attorney General.
- Conditions precedent to admission into the programme
Generally, to be eligible to be admitted as a protectee, there must have been a recommendation by a law enforcement agency or an international criminal court or tribunal that the witness be so admitted; the witness must have provided the Attorney General with such information concerning his/her personal history in accordance with any regulations made for the purpose and an agreement has been entered into by or on behalf of the witness with the Attorney General setting out the obligations of both parties. However, in case of emergency, the law allows the Attorney General to provide protection to a person who has not entered into a protection agreement, such protection not being for more than ninety days.
- Upon meeting the conditions precedent, is admission into the programme automatic?
No, admission is not automatic. The Attorney General, being the administrator of the Witness Protection Programme, is empowered by the Bill to determine whether or not a witness should be admitted to the Programme as well as the type of protection to be provided to any protectee in the Programme.
In determining whether a witness should be admitted to the Programme, the Bill charges the Attorney General to consider the nature of the risk to the security of the witness; the danger to the community if the witness is admitted to the Programme; the nature of the inquiry, investigation or prosecution involving the witness and the importance of the witness in the matter; the value of the information or evidence given or agreed to be given or of the participation by the witness; the likelihood of the witness being able to adjust to the Programme, having regard to the witness’s maturity, judgment and other personal characteristics and the family relationships of the witness; the cost of maintaining the witness in the Programme; alternate methods of protecting the witness without admitting the witness to the Programme; and such other factors as the Attorney General deems relevant.
If upon consideration of these factors, or for some other reasons the Attorney General refuses to admit a witness to the Programme, he is to provide the party that recommended the admission as well as the witness, written reasons on the basis for the refusal. Where on the other hand the Attorney General deems a person fit for the programme, he will enter into a protection agreement with him.
- Essential contents of a protection agreement
A protection agreement is deemed to include an obligation on the part of the Attorney General, to take such reasonable steps as are necessary to provide the protection referred to in the agreement to the protectee; and on the part of the protectee, to give the information or evidence or participate as required in relation to the inquiry, investigation or prosecution to which the protection provided under the agreement relates; to meet all financial obligations incurred by the protectee that are not by the terms of the agreement payable by the Attorney General; to meet all legal obligations incurred by the protectee; to refrain from activities that constitute an offence against an Act of the National Assembly or that might compromise the security of the protectee, another protectee or the Programme; and to accept and give effect to reasonable requests and directions made by the Attorney General in relation to the protection provided to the protectee and the obligations of the protectee.
- Parties to a Protection Agreement
The law empowers the Attorney General to enter into an agreement with:
- A law enforcement agency to enable a witness who is involved in activities of the law enforcement agency to be admitted to the Programme; with any state or local Government authority in order to obtain documents and other information that may be required for the protection of a protectee.
- The government of a foreign jurisdiction to enable a witness who is involved in activities of a law enforcement agency in that jurisdiction to be admitted to the Programme, but no such person may be admitted to Nigeria pursuant to any such arrangement without the consent of the Minister of Interior.
- An international criminal court or tribunal to enable a witness who is involved in activities of that court or tribunal to be admitted to the Programme, but no such person may be admitted to Nigeria pursuant to any such arrangement without the consent of the Minister of interior.
- Grounds for termination of protection
The Attorney General may terminate the protection provided to a protectee if he has evidence that there has been a material misrepresentation or a failure to disclose information relevant to the admission of the protectee to the Programme; or a deliberate and material contravention of the obligations of the protectee under the protection agreement.
The Attorney General shall, before terminating the protection provided to a protectee, take reasonable steps to notify the protectee and allow the protectee to make representations concerning the matter. Should the Attorney General decide to terminate protection without the consent of a protectee, he is required to provide the protectee with written reasons as to the basis for the decision.
- Further protection(s) for protectee
Apart from the actual protection afforded the protectee under the programme, the bill prohibits persons from disclosing, directly or indirectly, information about the location or a change of identity of a protectee or former protectee. However, the Attorney General is given the prerogative to disclose information about the location of a protectee or former protectee if the protectee or former protectee so consents or if the protectee or former protectee has previously disclosed the information or if the disclosure is essential in the public interest or where the disclosure is essential to establish the innocence of a protectee.
Even where such disclosure is to be made, the Attorney General must take reasonable steps to notify the person and allow the person to make representations concerning the matter except where notifying the person would impede the investigation of an offence. Section 9 (4) of the bill further provides that even where a disclosure is made to a person, that person is prohibited from disclosing the information to anyone else. In determining whether information about a protectee should be disclosed, the bill provides that factors such as the reason(s) for the disclosure; the danger or adverse consequences of the disclosure in relation to the person and the integrity of the Programme; the likelihood that the information will be used solely for the purpose for which the disclosure is made; whether the need for the disclosure can be effectively met by another means; and whether there are effective means available to prevent further disclosure of the information should be considered.
- Other responsibilities of the Attorney General
The powers conferred on the Attorney General in this Bill may be exercised on his behalf by any staff authorized to do so and is expected, not later than 30th of June each year, submit to the National Assembly a report on the operation of the programme. He also has the responsibility of making regulations for the purpose of ensuring proper implementation of the Bill.
- Offence and punishment
Should anyone contravene the provisions of the bill, such person is guilty of an offence and liable on conviction to a fine not exceeding N500,000 or to imprisonment for a term not exceeding two years, or to both. Section 16 is the interpretation section while section 17 is the citation section.
If the bill is concurred to at the House of Representatives and assented to by the President, Nigeria will be joining other countries like the United States, Hong Kong, Thailand and Italy and other prominent Countries with witness protection programs and what is more? Ours will even be a bit robust than what they have in place in those other Countries because Nigeria’s version of witness protection extends protection beyond trials against organized crimes to protecting whistleblowers.
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