Kitui Woman Rep Irene Kasalu addressing journalists in Nairobi at a past event. She is the sponsor of a Bill that aims to protect whistleblowers.
Heads of public and private organisations risk punitive fines of up to Sh5 million or seven years in jail if they fail to establish informer safety units as Parliament moves to enact the long overdue whistleblower protection law.
The Whistleblower Protection Bill 2023 by Kitui County Woman Rep Irene Muthoni Kasalu provides for the protection of persons who disclose information relating to improper conduct in the public and private sectors against victimisation.
The lack of a whistleblower law has seen potential informers shy away from providing information that would lead to the arrest of suspects involved in corruption, fraud and other crimes.
To encourage these disclosures, the Bill before the National Assembly proposes to establish the whistleblower reward fund from which monies appropriated by Parliament, among others sources, shall be used to pay monetary rewards to whistleblowers.
However, the Bill notes that a disclosure shall not qualify for protection if the person commits an offence “by making it”. The law, if enacted, will be administered by the Commission on Administrative Justice, popularly known as Ombudsman.
In doing this, CAJ shall establish a Whistleblower Review Committee, whose function shall be to receive and determine requests for reconsideration of a decision to revoke whistleblower protection.
“It shall be an offence for a public or private body to fail to develop and put in place whistleblowers policies and procedures,” the Bill states.
The Bill proposes that a whistleblower shall be entitled to confidentiality of the information given, immunity from civil or criminal liability in relation to the disclosure and protection against reprisal. Protection shall also be extended to a person related to the whistleblower.
According to the Bill, all disclosures made shall be in writing and where they are made orally, the person to whom they are made shall cause them to be written.
It further provides that a disclosure may be made to the commission, presidency, Parliament, Judiciary, Ethics and Anti-Corruption Commission, Auditor-General, Controller of Budget, Cabinet secretary, Attorney-General or the Director of Public Prosecutions.
The disclosure may also be made to a county governor, MP, member of county assembly, National Intelligence Service, police or military officer, Kenya Revenue Authority or an employer of a whistleblower, among others.
“A disclosure may be made by an employee or any person or a public or private body if they have information that they reasonably believe is evidence of improper conduct that has or may have occurred or is likely to occur,” the Bill reads.
The Bill further notes that, “any person who has knowledge that improper conduct has occurred or is likely to occur and who does not make a disclosure within two days, commits an offence”.
It provides that a whistleblower who makes a disclosure that leads to the arrest and conviction of an accused person shall be rewarded with money from the reward fund.
A whistleblower whose disclosure results in the recovery of money or asset shall be paid 10 per cent of the amount recovered. In the case of recovery of an asset, the whistleblower shall be paid 10 per cent of the value of the asset recovered and any other amount the commission may determine.
In making a determination that a person’s conduct amounts to gross mismanagement, the commission or other person making the determination shall have regard to the deliberate nature and frequency of the conduct, the Bill says.
The impact on the welfare of other persons in the public or private bodies, impact on the ability of the bodies to carry out their mandate and impact of the conduct on the public interest and trust in the public or private body shall be considered.
The Bill states that a disclosure made by an individual, shall contain “as far as practicable”, the full name and contact information of the whistleblower unless the disclosure is made anonymously.
The disclosure shall also include the nature of the improper conduct, identifying details of the person alleged to have engaged in improper conduct, including the name and contact information if known.
The time and location where the alleged improper conduct took place or is likely to take place is also critical as is providing details of any other person who may have witnessed or have information.
A person to whom disclosure is made shall make a record of the time and place where it was made, provide to the whistleblower an acknowledgment of receipt of the disclosure in writing and keep the statement received confidential and in safe custody “pending investigation”.
“No employer or any other person may discharge, demote, suspend, transfer, threaten or harass, directly or indirectly or in other manner, act adversely against a person in the terms and conditions of employment because the person provided information,” the Bill says.
The Bill also states that no person acting on behalf of a public or private body shall terminate a contract or withhold a payment or refuse to enter into contract because a party is a whistleblower.
