Kenya’s need to develop a comprehensive whistleblower protection framework has been a prolonged process, spanning over two decades. This journey began in 2003 with the ratification of the United Nations Convention against Corruption (UNCAC), followed by a further commitment through the signing of the African Union Convention on Preventing and Combatting Corruption in 2007. Both these international instruments highlight the crucial role of whistleblower protection measures for states. Introduction of the Whistleblower Protection Bill, 2023 (hereinafter referred to as “the Bill”), when assented to law, seeks to promote the public interest, upholding the national values and principles of governance by protecting whistleblowers.
The Bill provides an elaborate process of disclosure. To begin with, both public and private bodies are required to establish and maintain an avenue that serves to manage and investigate disclosures by employees or persons the public or private body is responsible for. This, too, extends to the Commission on Administrative Justice (known as “the Commission”), which is the body in charge of the enforcement of whistleblower protection. They are required, in their capacity as a public body, to develop procedures for the management and investigation of disclosures made by its members or staff. Disclosure is not limited to the established procedures – it may be made to the Presidency, the Parliament, the Judiciary, a Member of Parliament, and other public offices.
The Bill has provided protection to whistleblowers, whose safety and reputation may be implicated should they be known to be a whistleblower. The Bill mentions that whistleblowers are entitled to confidentiality of the information given, immunity from civil or criminal liability in relation to the disclosure, and protection against reprisal. Employers, people acting on behalf of an employer, or any other persons are barred from conducting any form of reprisal against a person who has provided information in accordance with the Bill. If such reprisals happen, a whistleblower may complain to the Commission against the individual responsible for perpetuating the reprisal.
Upon completion of investigations into a disclosure or a complaint of reprisal, the Commission has been tasked with preparing a report outlining the findings of the investigation as well as the recommendations for further steps, if any, to be taken based on the investigation findings. To encourage a whistleblowing culture that promotes transparency and accountability, the Bill has set up a Whistleblower Reward Fund, which shall be used to incentivize (in monetary form) whistleblowers. Finally, the bill obligates individuals to disclose information in situations where they know that improper conduct has occurred or is likely to occur. Failure to do so within two days of acquiring such knowledge imposes liability on the individual in question.
Overall, this Bill represents a significant step forward in strengthening Kenya’s anti-corruption efforts. Its effective implementation, coupled with public awareness campaigns, will be crucial in unraveling the full potential of whistleblower protection for good governance and public well-being.
