It’s time we protected whistleblowers from reprisals

Thursday, June 24th, 2021 00:00 | By
Anti-Corruption Commission headquarters. PHOTO/Courtesy

Sheila Masinde    

Yesterday, the world celebrated the valiant individuals who risk life and limb to expose corruption, misconduct, illegal activity or other wrongdoings.

But just six days before the annual World Whistleblowing Day, the whistleblower of the ‘Maasai Mara Heist’ of 2019 was dismissed from duty, an action that should bolster our collective resolve to insulate whistleblowers.

The man who whistleblew a scam that saw Maasai Mara University Vice Chancellor and four other varsity officials charged last year with misappropriating funds, underwent what immensely discourages most individuals from reporting graft. 

Many fear victimisation on reporting wrongdoings, and for those that have made disclosures at the workplace, acts of  ‘payback’ may lead to more severe consequences such as the loss of employment.

And it may not end here for the Mara whistleblower case if relevant authorities — Witness Protection Agency, Directorate of Public Prosecutions, Ethics and Anti-Corruption Commission, Commission on Administrative Justice — don’t ensure maximum protection for patriotic Kenyans risk to disclose heinous plunder of public resources. 

Whistleblowers have faced retaliation through harassment, dismissal from employment, threats to lives and violence in Kenya. Recall the story of the whistleblower in the Goldenberg scandal — he lost his job at the Central Bank and died a destitute. 

Transparency International-Kenya reports have shown that most citizens encountering corruption don’t report it for, among others, fear of reprisal.

The Kenya Bribery Index, 2019, shows 87 per cent of Kenyans who witness bribery incidents don’t report, with 20 per cent citing fear of intimidation or reprisal.

This is a clear sign Kenyans lack the much-needed confidence to report corruption — reports that make actions against corruption such as investigation and prosecution, and recovery of stolen assets, easy. 

The Mara case most curiously proffers us a deep moment of reflection on what needs to be done to strengthen witness and whistleblower protection.

Kenya still lacks a comprehensive policy and legislative whistleblower protection framework to ensure brave individuals, who risk lives and those of their families, enjoy robust protection from all forms of retaliation for reporting corruption or bearing witness to ensure perpetrators are convicted and resources lost, recovered. 

The journey towards a comprehensive whistleblower protection policy and legislative framework dates back to 2003 when Kenya ratified the UN Convention on Anti-Corruption, and in 2007 when it signed up to the AU 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. 

Provisions to safeguard whistleblowers are scattered in the Constitution and fragmented in various laws.

Some anti-corruption legislations cover aspects of whistleblower protection such as the Bribery Act (2016) which provides a definition of a whistleblower and the protection of whistleblowers and witnesses, from harassment and intimidation, and proposes for the punishment of individuals that punish whistleblowers.

The Anti-Corruption and Economic Crimes Act provides for the protection of informers while the Public Officer Ethics Act protects persons who are witnesses in relevant cases. 

In 2015, a taskforce on the Review of the Legal, Policy and Institutional Framework for Fighting Corruption recommended enactment of a whistleblower protection law.

This prompted the drafting of the 2017 Whistleblower Protection Bill and a raft of amendments to anti-corruption laws such as Access to Information and Bribery Act.

Once again, the whistleblower protection bill has not made much progress which prompted two MPs to sponsor the bills as private members bills (Whistleblower Protection Bill 2017 and the Protected Disclosures Bill 2019). The bills are on progress. 

The National Ethics and Anti-Corruption Policy, Sessional Paper No. 2 of 2018, lacks an elaborate narration on a framework or mechanism for the protection of whistleblowers but it lists the formulation of a policy and legal framework for whistleblower protection, in a matrix which outlines the key interventions to breathe life into the policy. No timelines are committed for this task assigned to the Department of Justice. 

It is time Kenya ensured comprehensive protection and other measures for safety and well-being of those who expose graft.

It is pertinent that such a law provides protection from harassment, stigma, threats and any other form of retaliatory action, including dismissal, suspension or demotion at the workplace.

Whistleblowers require not punishment, but unequivocal protection against adverse repercussions for sacrificing for the public interest. -  The writer is Executive Director, Transparency International Kenya

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