The Whistleblower Protection Bill, 2023

Background

The Whistleblower Protection Bill, 2023 is a legislative proposal designed to facilitate the disclosure and investigation of improper conduct within public and private organizations. By establishing robust protection mechanisms, the bill aims to enhance ethics, integrity, and transparency while protecting persons who make disclosures in good faith from victimization, discrimination, and workplace reprisal.

Key Mechanisms

• Administration: The Commission on Administrative Justice (established under Section 3 of the Commission on Administrative Justice Act, 2011) is tasked with enforcing the Act, investigating disclosures, and reviewing complaints of reprisal.
• The Whistleblower Review Committee: Established under Section 7(2) to receive and determine requests for reconsideration of decisions regarding the revocation of whistleblower protection.
• The Whistleblower Reward Fund: Created under Section 34, this fund provides monetary rewards to whistleblowers. Under Section 38, individuals whose disclosures result in the recovery of money or assets are entitled to receive 10% of the total amount or value recovered.

New Obligations

• Internal Procedures: Every public and private body must establish and maintain written procedures for managing, reviewing, and investigating disclosures by employees (Section 12). These procedures must include measures to protect the identity and confidentiality of the whistleblower.
• Reporting Obligations: Public and private entities must submit an annual report to the Commission detailing the number and nature of disclosures received, investigations commenced, and any corrective actions taken (Section 47).
• Duty to Disclose: Section 42 obligates any person with knowledge that improper conduct has occurred or is likely to occur to make a disclosure within two days.

Penalties

• Acts of Reprisal: Any person who retaliates against a whistleblower (demotion, suspension, harassment, contract termination) commits an offence and is liable to a fine not exceeding KSh 10 million, imprisonment for up to 14 years, or both (Section 27(4)).
• Deliberate False Disclosures: Knowingly providing false or misleading information in a disclosure is punishable by a fine of up to KSh 10 million, up to 14 years in prison, or both (Section 15(7)).
• Breach of Confidentiality: Failing to keep whistleblower disclosures confidential is an offence carrying a fine of up to KSh 10 million, up to 14 years in prison, or both (Section 18(4)).
• Obstructing Investigations: Hindering, deceiving, or misleading the Commission during an investigation carries a general offence liability (Section 41).
• General Penalty: For any offence under the Act where no specific penalty is provided, the offender is liable to a fine of up to KSh 5 million, imprisonment for up to 7 years, or both (Section 43).