In an effort to encourage exposing corruption, a Bill proposes whistleblowers to be rewarded with 10 per cent of the value of ill-gotten wealth they help authorities seize.
The proposal, contained in the Whistleblower Protection Bill 2023 sponsored by Kitui Woman Representative Irene Kasalu, seeks to provide rewards to whistleblowers where a disclosure leads to recovery of money or an asset, as well as arrest and conviction of an accused person.
The proposed legislation before the National Assembly is rooting for the establishment of a Whistleblower Reward Fund to provide money for monetary rewards to whistleblowers. The Fund will be administered by the Commission on Administrative Justice, popularly known as the Ombudsman once the proposed legislation is passed by Parliament.
To fund the reward scheme, the Fund will draw its financial chest from monies appropriated by the National Assembly or those received by the Fund as grants, donations or gifts from non-governmental or non-public sources. Further, the Fund will be boosted by income generated by investments made by the Board of Trustees, interest accruing from the Fund and any other monies from any other source donated or lent to the Fund. The Bill provides for the protection of whistleblowers by providing for confidentiality of information, immunity from liability and protection against reprisals of any form as a result of the disclosure.
In addition, it enjoins whistleblowers and those to whom disclosures are made to observe confidentiality, going ahead to require that confidentiality be observed where information received from a whistleblower is presented as evidence in a court case.
The Bill proposes that whistleblowers be immune from legal proceedings as it states that no person shall be liable to any action, claim, suit or demand, whether criminal or civil, in respect of any disclosure made or anything done or omitted to be done by him in good faith in the exercise or purported exercise of a function conferred by or under this Act.
On the flipside, the Bill prescribes penalties for offences against the Act, including making of false disclosures, misleading the Commission, or failing to make a disclosure while being aware that improper conduct has occurred or is likely to occur.
Ms Kasalu argues that the object of the Bill is to facilitate the disclosure and investigation of significant and serious matters in or relating to public or private bodies, which an employee or any other person believes may be unlawful, dangerous to the public or prejudicial to the public interest. This is in addition to enhancing ethics and integrity in public and private bodies, and among State officers and public officers in the case of public bodies.
“The object of this Bill is to set out the procedures for the disclosure of information on improper conduct within the public or private sectors, and to provide for the protection of the people making such disclosures (whistleblowers),” said Ms Kasalu.
The Bill sets out the bodies and offices to which disclosures may be made, going ahead to specify what information should be put in the disclosure. The Ombudsman shall be responsible for the enforcement of the Act and in carrying out its function, the Commission shall receive and investigate disclosures of improper conduct as well as complaints of reprisal and ensure the protection for whistleblowers as provided in this Act, among other functions.
Additionally, it will also have the power to develop and approve guidelines for public and private agencies to develop whistleblower mechanisms, policies and procedures. The Bill defines improper conduct as an act or omission which creates a substantial and specific danger to the life, health or safety of persons, or to the environment; gross mismanagement of public funds or a public asset and bribery, corruption or economic crimes as defined in the Anti-Corruption and Economic Crimes Act, 2003 or any other written law.
This is in addition to misuse of public funds, criminal offence and violation of human rights and fundamental freedoms as set out in Chapter Four of the Constitution.
The proposed legislation says that if the investigations by the Commission finds that the improper conduct constitutes a criminal offence, the Commission shall refer the matter to the Director of Public Prosecutions for review either for prosecution or otherwise.
The Bill goes ahead to state that any person who has knowledge that improper conduct has occurred or is likely to occur and does not make a disclosure within two days, commits an offence. The offence, according to the proposed legislation, shall on conviction attract a fine not exceeding Sh5 million or to imprisonment for a term not exceeding seven years or to both.
In addition, it requires every private or public body to establish and maintain written procedures for the investigation of disclosures of improper conduct made by employees or other persons.
However, the Bill provides limits on disclosure limiting authorisation of disclosure of information relating to national security, classified information under specified law, or personal health information except in certain circumstances.
National security organs, according to the Bill, means the Kenya Defence Forces, the National Intelligence Service and the National Police Service established under the Constitution.
“This part also empowers the Cabinet Secretary to exempt classes of persons, public entities, and any information or record from the application of the provisions of the Act, with reasons for the exemption which shall be given to the public,” reads the Bill in part.
For enforcement of the Commission’s orders, the Commission or any other person may apply to the High Court for enforcement of any order made by the Commission, including an order of the Whistleblower Review Committee.