The Whistleblower Protection Bill, 2023

Background

Kenya faces a significant challenge in reporting corruption and other serious misdeeds due to the lack of a comprehensive legal framework to protect citizens who report wrongdoing. The Whistleblower Protection Bill, 2023 aims to resolve this gap by establishing a solid legal structure that extends robust, witness-protection-style safeguards to whistleblowers. This framework is designed to promote transparency, ethics, public participation, and accountability in both public and private administrations.

Key Provisions

• Administrative Authority: Under Clause 4, the Ethics and Anti-Corruption Commission (EACC) is responsible for enforcing the Act, including receiving, investigating, and managing disclosures of improper conduct and complaints of reprisal.
• Protected Disclosures: Disclosures are protected under Clause 10 if made in good faith, based on a reasonable belief of truth, and not made for personal gain (excluding statutory rewards). Improper conduct covers laws contraventions, environmental dangers, threats to public health and safety, gross asset mismanagement, and human rights violations.
• Anonymity Safeguards: Clause 17 permits anonymous disclosures, securing the same level of legal protection for anonymous whistleblowers as identified ones.
• Witness Protection Referral: Under Clause 19(5), if the EACC determines that a whistleblower's life or property is in danger, it may refer them directly to the Witness Protection Agency.
• Monetary Awards: Clause 29 provides for a financial incentive, awarding whistleblowers up to 10% of the value of recovered public assets or money resulting from their disclosure.

New Obligations

• Formulation of Internal Policies: Every public entity must implement internal whistleblower policies and procedures within six months of the Commission prescribing the standard guidelines (Clause 18).
• Referrals and Sharing of Disclosures: Any person or institution authorized to receive disclosures must submit a written copy to the Commission within seven days of receipt (Clause 16).
• Strict Confidentiality: Recipients of disclosures must keep all received information confidential and in safe custody pending investigations (Clause 15). Unauthorized disclosure of a whistleblower's identity is strictly prohibited under Clause 23.
• Annual Reporting: Public entities must submit an annual report to the Commission within three months of the end of each calendar year, detailing the number of disclosures received, investigations commenced, and any corrective actions taken (Clause 36).

Penalties

• Workplace or Contractual Reprisals: Acting or threatening to act in reprisal against a whistleblower is a major offence punishable by a fine of up to KSh 10 million, imprisonment for up to 14 years, or both (Clause 22(3)). Additionally, the Commission may impose administrative fines of up to KSh 10 million on entities violating their obligations (Clause 24(1)(c)).
• Breach of Confidentiality: Disclosing a whistleblower's identity or related confidential information carries a fine of up to KSh 10 million, imprisonment for up to 14 years, or both (Clause 23(6)).
• False Disclosures: Knowingly presenting false or misleading information is penalized with a fine of up to KSh 10 million, imprisonment for up to 14 years, or both (Clause 12).
• Failure to Implement Policies: Any accounting officer of a public entity failing to establish internal whistleblower mechanisms is liable to a fine of up to KSh 500,000, imprisonment for up to one year, or both (Clause 18(3)).
• General Penalty: Any other offence under the Act for which no specific penalty is provided is liable to a fine of up to KSh 5 million, imprisonment for up to seven years, or both (Clause 32).