Fast-track whistleblower's Bill to boost fight against corruption

In March, Kenyans watched with dismay a documentary dubbed 'Fertile Deception' - exposing how unethical businessmen exploited the fertiliser subsidy programme by selling sand disguised as organic fertiliser to unsuspecting farmers. The story was triggered by a whistleblower who was privy to what was happening at a diatomite mining plant in Kariandusi, Nakuru County.

The whistleblower remains anonymous, presumably for fear of repression due to the absence of a comprehensive whistleblower protection framework which has left courageous individuals vulnerable to the horrendous acts of retaliation when they speak up against corruption.

The Ethics and Anti-Corruption Survey Report 2023 established that 57.3 per cent of Kenyans perceived corruption to be high and a further 86 per cent of the respondents feared reporting corruption cases due to potential harassment, reprisal and fear of victimisation. The effect of this is that the majority of cases remain unreported creating more room for corruption to thrive. 

Besides, we are alive to the suffering of Spencer Sankale – one of the whistleblowers of the ‘Maasai Mara Heist’ that came to light in 2019 and his dismissal from duty in 2021; he was jobless for almost two years until May 2023 when he was appointed to the Tax Appeal Tribunal as a member.

We will never forget the late David Munyakei, the whistleblower in the Goldenberg scandal who lost his job at the Central Bank of Kenya more than 30 years ago and died a destitute. In 2021, Jennifer Wambua, who was the then deputy communications director at the National Land Commission was found dead at a time when she was a State witness in a Sh122.3 million fraud case in which 18 people, including public officials, were charged.

Their sad stories and those of many Kenyans who cannot come forward to report acts of corruption necessitate the urgent need for Kenya to establish a comprehensive whistleblower protection policy, legislative and institutional framework. 

Kenya’s commitments towards the fight against corruption remain shaky in the absence of comprehensive whistleblower protection legislation. Whereas the country has ratified the United Nations Convention on Anti-Corruption (UNCAC 2003) and the African Union Convention on Preventing and Combating Corruption (AUCPCC 2007) that provide a base for the protection of whistleblowers, the country is yet to put in place a comprehensive whistleblower protection law. Further, existing laws that have a bearing on whistleblower protection are not adequate and comprehensive enough to give full protection to whistleblowers. Ironically, the Anti-Corruption and Economic Crimes Act 2003 is the main anti-corruption legislation but it does not explicitly provide for the role and protection of whistleblowers.

The introduction of the Whistleblower Protection Bill 2023 last year, after 10 years of pushing the draft bill, was a positive step towards the realisation of advocacy efforts to have in place a proper mechanism for the protection of whistleblowers. The Bill recognises the adverse effects of corruption and the need to protect whistleblowers owing to their critical role in the fight against corruption.

Key provisions under the Bill include the obligation on individuals to disclose information in situations where they know that improper conduct has occurred or is likely to occur; and a penalty for individuals who fail to do so; an elaborate mechanism for disclosure for both public and private entities; confidentiality of information provided by whistleblowers, immunity from civil or criminal liability in relation to disclosure and protection against reprisal. The Bill is currently under review by the Office of the Attorney General and is yet to be opened for public participation and Cabinet approval before being submitted to Parliament for consideration.

The Attorney General and Parliament should fast-track the adoption of the Whistleblower Protection Bill 2023. This Bill represents a significant step in bolstering anti-corruption efforts by ensuring the protection and empowerment of those who dare to speak out against wrongdoing. By safeguarding whistleblowers, we can foster a culture of transparency and accountability, paving the way for a more just and equitable society. Honouring the bravery of past and present whistleblowers by turning their sacrifices into meaningful and lasting change is imperative.

-Ms Masinde is the Executive Director, Transparency International Kenya. smasinde@tikenya.org