Towards Whistleblower Protection in Kenya: A Journey of Fits and Starts
I pen this article as Kenya continues to mourn Ms Jennifer Wambua, a public officer who lost her life like in a grisly act of murder in March 2021. Jennifer was working in the National Land Commission and was a key state witness in some corruption cases, which is suspected as a motive behind the heinous crime. Her death has proffered a deep moment of reflection on what needs to be done to strengthen witness protection including public awareness and resource support, and related to this whistleblower protection because Kenya still lacks a comprehensive policy and legislative framework in place, even to ensure that brave individuals like Jennifer, who risk their lives and those of their families, enjoy robust protection from all forms of retaliation for coming forth to report corruption or bear witness to ensure perpetrators are convicted and resources lost are recovered.
Whistleblowers in Kenya have historically faced retaliation through harassment, dismissal from employment and even threats and actual violence. Reports published by TI-Kenya, including successive bribery indices, have shown that Kenyans encountering corruption did not report it and reasons given for this include fear of reprisal. According to the Kenya Bribery Index, 2019 https://tikenya.org/kenya-bribery-index-2019/ – 87% of Kenyans that witnessed bribery incidents did not come forth with reports on corruption, with 20% of the respondents citing fear of intimidation or reprisal as the reason for holding back. This is a clear sign that Kenyans lack the much needed confidence in reporting cases of corruption; without these reports, actions against corruption such as investigation and prosecution of corruption cases, and recovery of stolen assets become difficult.
Kenya’s journey towards a comprehensive whistleblower protection policy and legislative framework has been long, going back to 2003 when Kenya ratified the United Nations Convention on Anti-Corruption (UNCAC) in 2003 and 2007, when it signed up to the African Union Convention on Preventing and Combatting Corruption. Both instruments require states to put in place policy and legal mechanisms to protect whistleblowers but Kenya still lacks an overarching law on whistleblower protection although active advocacy for a whistleblower protection law commenced in 2013 when TI-Kenya initiated the drafting of a bill that was then handed to the Office of the Attorney General of Kenya.
Provisions to safeguard persons who disclose information on corruption are scattered in the Constitution and fragmented in various laws. Some existing Kenyan anti-corruption legislations cover aspects of whistleblower protection such as The Bribery Act (2016) which provides a definition of a whistleblower as ‘a person who makes a report to the Commission or the law enforcement agencies on acts of bribery or other forms of bribery’. The law also provides for the protection of whistleblowers and witnesses under the act from harassment and intimidation, and proposes for the punishment of individuals that punish whistleblowers.
Another legislation with a bearing on whistleblower protection is the Anti-Corruption and Economic Crimes Act (2003) which provides for the protection of informers and the Public Officer Ethics Act (2003) which protects persons who are witnesses in relevant cases.
In 2015, a Task Force on the Review of the Legal, Policy and Institutional Framework for Fighting Corruption in Kenya recommended the enactment of the whistleblower protection bill. This prompted the drafting of the 2017 Whistleblower Protection Bill (this later evolved into the Protected Disclosures Bill, 2019), and a raft of legislative amendments to anti-corruption laws such as Access to Information, Bribery Act, and Proceeds of Crime and Anti-Money Laundering Act to include more categories of people as Designated Non-Financial Businesses and Professions (DNFBPs).
These recommendations were in line with the 2015 UNCAC country review which noted the laxity in provision of adequate mechanisms to protect whistleblowers in Kenya and recommended the urgent institution of such measures. The 2018 UNCAC report makes a similar observation. In this UNCAC report Kenya’s Department of Justice under the Office of the Attorney General reports that the Whistleblower Protection Bill had been presented to the Cabinet.
In a bid to respond to the complexity and the ever-changing patterns and manifestations of corruption and consolidate anti-corruption strategies, the Department of Justice, embarked on a journey to draft the National Ethics and Anti-Corruption Policy 2018. While the policy lacks an elaborate narration on a framework or mechanism for the protection of whistleblowers, it lists the formulation of a policy and legal framework for whistle-blower protection, in a matrix which outlines the key interventions. No timelines are assigned for this task assigned to the Department of Justice.
To cut the long story short, Kenya requires a comprehensive policy and legal framework to protect individuals that come forth to disclose information related to corrupt, illegal, fraudulent or hazardous activities. But despite these challenges, the civil society in Kenya and parliamentary caucuses such as the African Parliamentarians’ Network Against Corruption Chapter in Kenya have stayed the course to champion efforts for a robust whistleblower protection mechanism.
It is time for Kenya to put in place appropriate protection and other measures to ensure the safety and well-being of those who bare their all to disclose and expose corruption scandals. It is pertinent that such a law is alive to the principles of whistleblowing and international best practices, giving a clear definition of a whistleblower, the scope of protected persons under the law, a mechanism to objectively assess whether the information is disclosed in good faith, and provides protection from harassment, stigmatization, threats, and any other form of retaliatory action including dismissal, suspension, or demotion or other disciplinary or corrective action. The law should also provide for the protection of identity through anonymous reporting and clearly define the procedures and prescribed channels for facilitating reporting among other key provisions.
To encourage whistleblowers in Kenya to step forward with information, we need an effective whistleblower protection framework comprising robust policies and a law that unequivocally protects whistleblowers against adverse repercussions as a result of coming forward for the public interest.
By Sheila Masinde, Executive Director, Transparency International Kenya.