Section 31 of Sexual Offences Act: Vulnerable witnesses

(1) A court, in criminal proceedings involving the alleged commission of a sexual offence, may declare a witness, other than the accused, who is to give evidence in those proceedings a vulnerable witness if such witness is— (a) the alleged victim in the proceedings pending before the court;
(b) a child; or
(c) a person with mental disabilities.
(2) The court may, on its own initiative or on request of the prosecution or any witness other than a witness referred to in subsection (1) who is to give evidence in proceedings referred to in subsection (1), declare any such witness, other than the accused, a vulnerable witness if in the court’s opinion he or she is likely to be vulnerable on account of—
(a) age;
(b) intellectual, psychological or physical impairment;
(c) trauma;
(d) cultural differences;
(e) the possibility of intimidation;
(f) race;
(g) religion;
(h) language;
(i) the relationship of the witness to any party to the proceedings; (j) the nature of the subject matter of the evidence; or (k) any other factor the court considers relevant.
(3) The court may, if it is in doubt as to whether a witness should be declared a vulnerable witness in terms of subsection (2), summon an intermediary to appear before the court and advise the court on the vulnerability of such witness.
(4) Upon declaration of a witness as a vulnerable witness in terms of this section, the court shall, subject to the provisions of subsection (5), direct that such witness be protected by one or more of the following measures—
(a) allowing such witness to give evidence under the protective cover of a witness protection box;
(b) directing that the witness shall give evidence through an
intermediary;
(c) directing that the proceedings may not take place in open court;
(d) prohibiting the publication of the identity of the complainant or of the complainant’s family, including the publication of information that may lead to the identification of the complainant or the complainant’s family; or
(e) any other measure which the court deems just and appropriate.
(5) Once a court declares any person a vulnerable witness, the court shall direct that an intermediary referred to in subsection (3), be appointed in respect of such witness unless the interests of justice justify the non-appointment of an intermediary, in which case the court shall record the reasons for not appointing an intermediary.
(6) An intermediary referred to in subsection (3) shall be summoned to appear in court on a specified date, place and time to act as an intermediary and shall, upon failure to appear as directed, appear before the court to advance reasons for such failure, upon which the court may act as it deems fit.
(7) If a court directs that a vulnerable witness be allowed to give evidence through an intermediary, such intermediary may—
(a) convey the general purport of any question to the relevant witness;
(b) inform the court at any time that the witness is fatigued or stressed; and
(c) request the court for a recess.
(8) In determining which of the protective measures referred to in subsection (4) should be applied to a witness, the court shall have regard to all the circumstances of the case, including—
(a) any views expressed by the witness, but the court shall accord such
views the weight it considers appropriate in view of the witness’s age and maturity;
(b) any views expressed by a knowledgeable person who is acquainted with or has dealt with the witness;
(c) the need to protect the witness’s dignity and safety and protect the witness from trauma; and
(d) the question whether the protective measures are likely to prevent the evidence given by the witness from being effectively tested by a party to the proceedings.
(9) The court may, on its own initiative or upon the request of the prosecution, at any time revoke or vary a direction given in terms of subsection (4), and the court shall, if such revocation or variation has been made on its own initiative, furnish reasons therefor at the time of the revocation or variation.
(10) A court shall not convict an accused person charged with an offence under this Act solely on the uncorroborated evidence of an intermediary.
(11) Any person, including a juristic person, who publishes any information in contravention of this section or contrary to any direction or authority under this section or who in any manner whatsoever reveals the identity of a witness in contravention of a direction under this section, is guilty of an offence and liable on conviction to imprisonment for a term of not less than three years or to a fine of not less than fifty thousand shillings or to both if the person in respect of whom the publication or revelation of identity was done is under the age of eighteen years and in any other case to imprisonment for a term of not less three years or to a fine of not less than two hundred thousand shillings or to both.
(12) Any juristic person convicted of any offence under this section shall be liable to a fine of one million shillings.
(13) An accused person in criminal proceedings involving the alleged commission of a sexual offence who has no legal representation shall put any questions to a vulnerable witness by stating the questions to the court and the court shall repeat the questions accurately to the witness.