Submission by the Human Rights Committee of South Africa to the Portfolio Committee on Justice on the Witness Protection and Services Bill [B9-98]

The Human Rights Committee (HRC) is an independent non-governmental organisation which monitors human rights violations and legislation affecting human rights. The HRC wishes to submit comments on the Witness Protection and Services Bill.

The Human Rights committee supports the Department of Justice and the Justice Portfolio Committee in their endeavors to introduce a comprehensive act aimed at establishing proper witness protection facilities to our criminal justice system. We look forward to the repeal of section 185A of the Criminal Procedure Act 51 of 1977.

The bill signals government commitment to protect witnesses against intimidation to their person and their family by providing specific measures to ensure witnesses' protection. Whilst all people have a duty to give sincere testimony as a witness, there should be a greater recognition of the rights of witnesses and their families not to be placed at personal risk. By perpetrators going free because witnesses are effectively discouraged from testifying, the criminal justice system as a whole is seriously undermined.

My name is Mr X. I witnessed the killing of four members of my family by a notorious criminal gang which is active in my area. This gang has been wanted by the police for many years. I can identify three members and the information I have will certainly ensure them being put behind bars for many years. But ... I am afraid and have much to lose. If I testify against the men, my life and that of the rest of my family will be placed in jeopardy. I have a good job which will be hard to match elsewhere. I am torn between doing my duty to my country in ridding our community of this despicable group and knowing that if I was to enter the witness protection programme, it would mean that I would have to give up my life, my job, my friends, my home, and my identity. This is a difficult decision which is tearing me apart.

The establishment of a formal witness protection programme should send out a clear message to people who have knowledge of organised criminal networks that society is prepared to protect them. The HRC is thus in full support of a well structured witness protection programme which would greatly contribute to curbing the crime rate in South Africa.

The first part (A) of this submission contains problems and potential solutions relating to the general structure of the witness protection programme and the issue of secondment. In the second part (B), we go through selected clauses and provide our recommendations thereon.

PART A

1. Structure of the Witness Protection Programme
The Bill establishes an office for witness protection headed by the Director who will be appointed by the Minister of Justice. Other personnel such as a Deputy-Director and Assistant Director may be appointed by the Director-General. At a regional level, the Director is authorized to establish witness protection panels within the area of jurisdiction of each Attorney-General.

Whilst welcoming the idea of the protection of witnesses being a multi-disciplinary task thereby drawing on assistance from other state Departments involved in criminal justice in terms of clause 2 of the bill, we nevertheless foresee structural and practical impediments with the programme as we will demonstrate below. The HRC believes that the witness protection programme requires a distinct structure to work efficiently, effectively, impartially and independently.

1.1 Undefined structure
Clause 2 of the bill establishes an office for Witness Protection within the Department of Justice. Under clause 5 of the bill, the Director is authorised, although not compelled, to establish witness protection panels within the area of jurisdiction of each Attorney General.

The HRC believes that an ad hoc panel which changes from time to time, differs according to regions and circumstances and lastly; one which is composed of individuals working on a part-time basis, would result in inconsistent and superficial evaluations being made. This would greatly prejudice potential witnesses who have virtually altered their lifestyles to fulfill their civic duty in combatting crime and securing a conviction.

1.2 Transparency
Whilst we understand that the bill via the regulations is deliberately left flexible in that it empowers the Director with the discretion to constitute panels in each region, we believe legitimacy and credibility of the unit can only occur where appointment processes of such panels are transparent .

1.3. Practicalities
We are concerned about both the appointment criteria and the practical workings of the panel which are not specified in the bill but left to the Minister via regulations. For instance we are concerned that the bill does not specify the following:

qualification and job descriptions of the panel members;
would the panel working on an ad hoc temporary basis have the requisite expertise, especially in areas of law, to undertake a thorough investigation as to whether the witnesses evidence is sufficient to aid in securing a conviction;
the length of time a panel may take to make its recommendations;
how many people must serve on the panel;
how long must people serve on the panels;
when and how often the panel will come together to evaluate witnesses;
matters relating to the funding of the panel.

Furthermore the Bill does not:-
(a)Set out factors which a panel may take into account in respect of an application for protection. S6(5) only sets out factors a director must take into account. This is extremely concerning and problematic as panels form the thrust of the present Bill.

(b)In terms of clause 6(6), a Director may be afforded access to any police docket, statement of a potential witness and to any testimony given in any proceedings. The bill does not specify whether members of the panel will have access to such documents. The question must then be asked whether the panel can make a proper evaluation without access to such dockets and on the other hand whether the fluctuating members of the panel should be allowed access to such documents. The HRC is concerned that if the panel does have access to these confidential documents, it is imperative that a comprehensive screening process of panel members takes place.

1.4 Temporary Protection
Section 6(3) specifies that only the Director may grant an applicant temporary protection. The Director will then submit the applicant's form for evaluation to a panel and thereafter make a final decision.
The HRC believes this poses a problem because:
the Director may not be in the geographical area of the applicant and is thus not always easily accessible;
the Director may not have the time to familiarise himself/herself with the case due to the numerous tasks allocated to him/her;
it is easier for a Director who is a part of a region to be aware of the specific dynamics and history regarding organised crime and political violence in the region to enable him or her to make a decision as to whether temporary protection should be granted as a matter of urgency.

For all the above reasons we have concerns with regards to the reliance on panels as we believe them to be too loosely structured, not transparent and impractical. The aim behind this bill is to establish a comprehensive witness protection programme aimed at securing convictions. The HRC is of the opinion that this aspect of the bill would hamper the state in achieving its aim.

The system which we would like to propose, is largely based and drawn from the view put forward by Chris McAdam, Head of the Witness Protection Unit of the Truth and Reconciliation Commission. We propose a system that should strive for independence; one in which potential witnesses and/or their families would feel safe and secure. The witness protection programme must be seen by the public to be an independent tightly knit institution able to perform its function effectively and without interference from other sectors.
We would like to make the following recommendations on the structure of the witness protection programme.

2. Proposed structure
In terms of section 2 regarding the establishment of the office for witness protection, a clause similar to a clause in the South African Police Services Act, in its establishment of the Independent Complaints Directorate, should be inserted reaffirming the complete independence of the witness protection unit. It should contain the following:-

the unit shall function independently from the police service;
no organ of state and no member or employee of an organ of state nor any other person shall interfere with the functioning of the protection unit in the exercise and performance of its powers and functions;
all organs of state shall accord such assistance as may reasonably be required for the protection of the independence, impartiality, dignity and effectiveness of the unit in the exercise and performance of its powers and functions.

2.1 Legal Officers
We propose the appointment of Legal Officers who are efficient, well-known and accessible, instead of a panel. The legal officers would be placed in various key centres throughout the Republic and their jurisdiction would be fixed by the Minister in consultation with the Director.

They would be appointed by the Director, and the Bill would prescribe criteria to ensure that such officers are sufficiently qualified to fulfill the tasks entrusted to them. They could for example, be appointed from the ranks of State Advocates, Public Prosecutors and Magistrates.

2.1.1 The primary functions of the legal officers would be as follows:
To examine and evaluate the veracity of the witnesses evidence
It is imperative that legal officers have and develop the expertise in law to determine whether the evidence of a witness is strong and vital enough to aid in securing a conviction. The decision to admit a witness into the programme is in itself a specialized task needing highly skilled and trained staff with the requisite legal background to go into the merits of each case. It is at this stage that a thorough evaluation and strict screening of witnesses should take place so as to ensure that only suitable candidates are admitted to the programme.

They may consult other bodies having an interest in witness protection
The panel as envisaged by the Bill could fall into this level. However, the evaluation of a potential witness would not have to depend on a formal sitting of a panel, as the present Bill states, but instead should empower Legal officers to draw on independent advice which would assist them in their evaluation. In this way one would garner the benefits of a panel while avoiding the difficulties as outlined above.

To seek advice from a select group of experts as may be necessary
It is extremely important that an assessment be made based on psychological well-being as well as the physical and other aspects of the person who is to be protected. For example, a social worker or psychologist should be consulted to determine whether a particular witness will adjust to the protection programme or be able to deal with the stress of a removal from one's community and/or family. A thorough screening of applicants should take place at this stage, with the advice of the experts, to ensure that only necessary witnesses are admitted to the programme, thus curtailing unnecessary expenditure and potential abuse of the programme to the detriment of "true" witnesses.

2.1.2 Other Functions of the Legal Officer:
To discharge witnesses from protection as provided by the Act and the Regulations;
To supervise and co-ordinate the activities of security officers placed under their control;
To grant protection and enter into agreements with witness's as provided for in this act and the regulations;
In consultation with the Director, to promote the aims and objectives of the witness protection programme within his or her area of jurisdiction;
To authorize and provide support services for witnesses as provided for by this Act and the Regulations;
To select premises in consultation with the Director as places of safety for the accommodation of witnesses and shall, for this purpose be entitled to enter into an agreement with any person, body or the state;
To authorize the transfer of witnesses from one place to another.

Note: a reporting procedure to the Director, a monitoring formula and control of expenditure should be specified in the Regulations.

2.2 Appointment and functions of Security officers
Security Officers would be appointed by the Director. The functions of the Security Officers would be as follows:-

to grant temporary protection pending evaluation by a legal officer as provided for by this Act and to be provided by the Regulations. This is a very practical method of dealing with urgent applications as security officers would be familiar with the region and cases, regarding organized syndicates and political violence;

to be responsible for investigations to enable the legal officers/Director to make their evaluations.

The security officers functions include the protection ( both physical and mental needs), the general care and well-being of the witnesses. Grievance procedures should be specified in the regulations to be promulgated by the Minister.

3. Secondment
The HRC believes the issue of secondment in clause 2(7) needs to be carefully considered. In practice secondment has led to a number of problems:-
witness protection will be seen to be of secondary importance - the department from where secondees are taken will be concerned first and foremost with their own daily tasks;
certain staff are not always available when needed ;
staff could become confused as to whom they are accountable to;
the appointment of temporary or ad hoc staff could result in a lack of commitment by such staff to the witness protection programme;
insufficient screening of staff could lead to a breaching of security (this is particularly important in consideration of the historical conflicts between the police and the community).

The HRC believes the witness protection programme requires staff who are:-
specifically skilled and trained in the needs of the programme;
sensitive to the needs of witnesses and protected persons;
available on a permanent basis;
are carefully screened to ensure that they are impartial - the director should have the authority to appoint staff, to request specific individuals and should not have to rely on potential incompetent secondments from other departments;
neutral and perceived to be neutral

PART TWO
The second part of this submission looks at specific clauses in the bill and suggests amendments.

1. Definitions -Clause 1
To enable the bill to effectively achieve its objective, the following terms should be clearly expressed within the definitions clause of the bill.

1.1 "witness"
The word "witness" should be specifically addressed within the definition section of the bill. A witness admitted into the programme should be one, upon whose evidence substantial reliability may be placed and whose evidence is necessary to aid in securing the conviction of the accused.
Furthermore, clause 6 of the bill seems to limit a witness to "a person who has given evidence or is required to give evidence". Since the programme envisages including family members and associates of the witness who may also be endangered, we believe that the definition of a witness should reflect this and not be limited to "a witness giving evidence", but should be extended to incorporate and include any member of the witness's family or household. It should not preclude a family member applying independently of the witness for protection. We therefore recommend the deletion of the word "witness" and the insertion of the word "protected person".
The definition must also clarify whether applicants may be both state or defence witnesses.

1.2 "Relocation"
We suggest that a definition of "relocation" should be specified in the Bill, as the public sometimes get confused by the meaning and implication of this term.

1.3 "Resettlement"
We suggest that a definition of resettlement should also be stipulated in the bill. See page 15 for
discussion.

2. Application for protection-Clause 6
In terms of S6(1)(aa)(iii) prosecutors, prison officials or police have a positive duty to assist a potential witness in his/her application. They will be required to notify the witness protection authorities who evaluate the matter. The HRC believes this process could be problematic in the prisons due to the historical conflictual relationship between prison officials and prisoners. We believe prisoners should have an alternative stipulated in the bill to apply for protection via social workers at the prison. Social workers at the prison are more accessible to the prisoners and the Act should place a duty on social workers to assist the prisoner/potential witness to gain admission into the programme.

In addition to this, we recommend that a clause be added empowering the Director to request the Minister of Correctional services or the person designated by him, to make internal custodial arrangements for the protection of witnesses who are serving sentences of imprisonment or those who are awaiting trial.

3. Civil Proceedings against a protected person-Clause 93. Civil Proceedings against a protected person-Clause 9
Clause 9 of the Bill provides that civil proceedings which are pending against a person under protection may be suspended by a judge on an ex parte application, if it appears to the judge that the safety of the person may be jeopardised by the prosecution of the proceedings.

The HRC, while recognising that clause 9 of the bill is geared towards the protection of a witnesses' identity, we nevertheless have certain reservations regarding this clause. If the witness is a defendant, this clause can be seen as a limitation of the right of access for a third party to court as expressed in S34 of the Constitution. It may result in a failure to prosecute the case and cases may even be dismissed. It entitles the state in effect to become party to a process frustrating the claims of a third party. We recommend that a safeguard be built into the bill to protect such a third party. For example a clause stating that a judge in making his/her decision must take into account prejudice that a third party will suffer. A qualifying clause would render it a reasonable and justifiable limit per S36 of the Constitution.

Furthermore, in the agreement between the witness and the witness protection unit, the witness must disclose and nominate the address of the directorate to receive any court processes to be served upon him/her and shall also disclose any proceedings which may be against him/her.

4. Publication of information concerning protected person-Clause 11
HRC agrees with the requirements put forward in clause 11 of the bill. However, we recommend that the clause should be amended to expressly state that "any information" includes any photographs, sketches or audio-visual footage or other material which may reveal either the identity or location of a protected person.

5. Memorandum of Understanding-Clause7(1)(a)
The bill in clause 7(1)(a) mentions a "memorandum of understanding" to be agreed upon between the Director and the applicant. It is of extreme concern that firstly, the name of the document is not accessible to the general public and secondly that the bill does not stipulate the contents of such an agreement.

We therefore recommend the following:-

5.1 There is a need for a "Plain Language Provision"
The title of the agreement between the applicant and the Director namely the term "Memorandum of Understanding" in terms of S7(1)(a), is itself too complicated for an agreement where one party is generally a lay person. A simple term such as agreement" would suffice. (Hereinafter referred to as "the agreement")
The agreement between the witness and the Director must be written in clear plain language.
The agreement must be in a language which is understandable to the witness.

5.2 A comprehensive written agreement
The HRC submits an additional proposal on the agreement between the witness and the Director, based on the fact that witnesses may be discharged from protection if they contravene any provision of such agreement.

The agreement between the witness and the Director must contain information necessary to enable the witness to understand all aspects relating to his/her protection. The agreement must contain a clear stipulation of his/her rights and must set out the following:

the basis on which the witness is to be included in the programme;
full details of the witness;
the type of protection they can expect;
the type of assistance that is to be provided including accommodation, financial compensation, medical care and social services that they are entitled to;
[In practice there have been numerous reports of false expectations as to what the witness is entitled to (e.g witnesses expecting a luxurious house and witnesses believing that they are being paid for their testimony).]
penalties relating to disclosure of the whereabouts or identities of witnesses themselves, other witnesses and/or places of safety;
routes available to deal with grievances;
inform the witness of his/her right to review with regard to their discharge from the programme and how to initiate the review process (e.g contact names, numbers and addresses)
factors to be taken into account in determining when the applicant will be discharged from protection;
a provision to the effect that protection and assistance under the programme may be terminated if the witness breaches the agreement;
a sworn statement of all outstanding legal obligations, including obligations concerning child custody, visitation and maintenance and an obligation to designate the office of the witness protection unit for the service of such process;
the parties required to sign such an agreement ( We would suggest a clause with similar wording as the Victoria Amendment Witness Protection Bill).
The agreement must be signed by:
(a) the witness
(b) if the witness is under the age of 18, by a parent or guardian of the witness or a curator to be appointed by the court;
(c) if the witness lacks legal capacity to sign, by a guardian or other legal representative of the witness

If a parent or guardian has signed the agreement because the witness is under the age of eighteen, and the agreement is still operating after the witness turns eighteen, the Director may request that the witness sign the agreement themselves.

6. Regulations
The HRC urges the committee to set in motion a consultative process in the drafting of regulations by the Minister.

We suggest the insertion of the following clause:-

(6.1) The Minister must before making regulations under this act:
(a) publish the draft Regulations in the Gazette for public comment within a specified time;
(b) send copies and invite comment on the draft Regulations from-
(i ) any relevant Ministry;
(ii) any relevant organisation.
(c) consider all comments timeously received; and
(d) on request, report on the extent to which a specific comment or comments have been taken into account or if a comment was not taken into account, provide reasons therefore.

(6.2) The Minister must, within 30 days after making a regulation under this Act, table it in parliament for consideration.

7. Discharge-Clause 7(4)and 8
The HRC agrees with clause 7 of the bill. We believe that such witnesses who were willing to testify in the first instance can not suddenly be discharged from the programme when they are no longer needed. We welcome the insertion in the tabled bill that section 7(5) is now "subject to subsection 2" thereby protecting a witness. A witness justly should still be entitled to a protection for a limited period to enable him/ her to once again be self sufficient.

With regard to clause 8, we strongly recommend the following:
that the notice of discharge must state that the protected person is entitled to take the matter on review within seven days of receipt of such notice;
the method of service of such notice must also be considered and stipulated in the bill;
The Minister must give the protected person a reasonable opportunity to state his or her case and after the review must confirm or set aside the decision of the Director. The Minister may give such direction with regard to the protection of the applicant or any member of his or her family or household as he or she may deem appropriate.

8. Resettlement
The HRC notes with concern that the bill does not address, nor mention, the issue of permanent resettlement. In certain instances it may be justifiable and necessary to permanently resettle a witness and/or his or her family. There are times when witnesses are displaced and can never return to their original homes and lifestyle after the trial has been completed and are still endangered, for example, due to the accused being part of a crime network. It is therefore imperative that because such citizens have surrendered their lives and their employment in order to fulfill their civic duty to society, that their safety should be secured on a long-term basis. Where witnesses are prepared to give evidence against alleged ruthless criminals, society must act to protect these witnesses - indefinitely if that is what is required. Having due regard to budgetary constraints, very strict factors and requirements must be taken into account before a witness is entitled to resettlement.

The HRC proposes the following:
that an independent group be specifically tasked to deal with the whole issue of resettlement
one of the criteria should be that the witness must have been found to be an honest and reliable witness whose evidence contributed to the finding handed down
other factors to be considered are civil obligations of the witness, insurance policies, career qualifications etc.
if a new identity is required to conceal the identity of the witness then the relevant home affairs legislation needs to be amended to incorporate such a change as a matter of urgency.

A witness can not be placed in a better position as s/he would ordinarily have been prior to his/her resettlement. It would undermine the programme as it could be construed as an inducement to testify. Care must be taken to ensure that a witness is not seeking protection to "disappear" from society for other reasons (e.g civil litigation or obligations, criminal prosecutions etc.)

9. Refusal of request for protection - Clause 5(6)
According to Section 5(6), once a panel recommends that protection should be refused, it must inform the Director and the applicant of the reasons for such a decision. We strongly recommend that such refusal must be "in writing" to enable it to be used in review proceedings at a later stage.

10. Minors - Clause 6(4)
In terms of this clause a Director may place a minor under protection without the consent of his or her parent or guardian if it is his or her opinion necessary to do so for the sake of safety of the said minor. Consideration should be given at this phase for a curator to be appointed by the Supreme Court who is the upper guardian of a minor child.

Conclusion
The Human Rights Committee would like to thank the Justice committee for giving us an opportunity to submit our comments on this bill. We as a human rights organisation would like to contribute towards the formation and sustaining of an effective witness protection programme embracing the principles of independence and transparency. We would like to emphasize the urgent passage and implementation of adequate witness protection legislation which will contribute towards the creation of an effective criminal justice system.

For more information, please contact Shenaaz Meer at (031) 260-1587/1553.