A whistle blower is a person, usually an employee of a company or a government agency, who discloses information about corruption or fraud in the organization to the public or a higher authority.
Such persons often need protection from mistreatment at the workplace or any other powerful interested parties.
The corruption nightmare
According to a Corruption perception Index put together by Transparency International in 2018, Kenya occupied position 144 out of the 180 countries involved in the study. This was after Kenya scored 27 points out of the possible 100. Speaking at the 2019 Madaraka Day Celebrations in Narok, President Uhuru Kenyatta vowed that he would relent on fighting graft in the public sector.
The main corruption scandals which were exposed by whistle blowers include the Goldenberg, The Anglo-Leasing, the National Youth Service Scandal and the more recent ‘Mara Heist’ which revealed corruption cartels at the Masai Mara University. The whistle blowers in all three corruption scandals have a similar story; threats upon their lives, loss of employment and even exile.
Is the public interest worth it?
David Munyakei, the Goldenberg whistle blower, had to run away from Nairobi to Mombasa. It is reported that it was easier for him to camouflage in the coastal region due to his light complexion. He later died in Narok, allegedly from a Pneumonia infection and -get this- failure to afford medication. His disclosure had revealed the loss of 5.8 billion worth of public money, yet he could not afford medication. John Githongo, the man behind the whistle in the Anglo-leasing scandal, has not been let down easy. He had to flee the country in the false pretense of a business trip to London, during which he resigned from his position as the Permanent Secretary of Ethics and Governance. Recently, in a defamation suit against him by Christopher Murungaru, he was slapped with a 27 Million fine for wrongfully implicating the complainant in the Anglo-leasing Scandal. In the more recent Mara Heist Scandal, the audio recording included a clear threat upon the whistle blower, spencer Sankale. While there have not been any further reports on the well-being of Spencer, there has been a wave of public pity on Spencer as he would be on the losing side in a battle against such powerful officials such as the Vice chancellor.
Current Legal Protection
The Anticorruption and Economic Crimes Act of 2003 seeks to protect assistants, informers, witnesses and investigators. The act however fails to define who an informer is. It is therefore not clear whether whistle blowers are covered under this provision or not. While witnesses could be construed to cover whistle blowers who agree to give witness in court, some whistle blowers do not wish to give evidence in court. Such are not protected under this provision.
The Bribery Act 2010 places a requirement on all government and private companies to have a whistle blower protection policy. While many corporations have taken this up, some have failed to comply, leaving the loophole unresolved.
It is clear that there is need for a law that specifically lays out a mechanism for protection of whistle blowers.
Hence the Whistle blowers Protection Bill 2019. The purpose of this bill is to protect whistle blowers against victimization and any other connected purpose. It seeks to set out procedures for disclosure and set out mechanism for protection. It also reiterates the requirement for public and private bodies to put in place whistle blower policies and procedures. It seeks to protect whistle blowers through: ⦁ Confidentiality measures; ⦁ Immunity from liability; ⦁ Protection against reprisals. ⦁ Reward incentives It seeks to establish a Whistle blower reward fund, which is to be managed by the exchequer. Such fund shall be used to reward a whistle blower who makes a disclosure that leads to an arrest. Where a graft asset is recovered, the bill proposes that the whistle blower is entitled to 10% of its value. With such protection of whistle blowers, it will be easier for citizens to adhere to their duties of patriotism and abiding by the law.
While it may be easier for the president to insist on the role of the public in fighting graft in Kenya, it would be of greater impact if the Whistle blower Protection Bill is passed into law. In addition to this, there is need for the public to see justice done in all corruption scandals that are reported. This will improve public confidence in the government and promote future cooperation.