Chief executives of public and private companies face a Sh3 million fine and up to 24 months in prison for failing to set up a whistleblower system, the attorney general’s office said in a draft bill, as the government makes fresh efforts to curb fraud and loss of public funds.
Under the proposed law, CEOs would be required to create a framework to protect employers who disclose information of public interest, including misappropriation of public funds or assets, bribery, corruption, or economic crime.
CEOs will have the option of developing their own policies to assist with whistleblowing or adopting the standard procedures set out in the bill to avoid the accompanying public penalty.
The State Law Office notes in the Whistleblower Protection Bill 2024 that “any person who commits an offence under this Act for which no penalty is expressly provided shall, on conviction, be liable to a fine not exceeding 3 million shillings or to imprisonment for a term not exceeding two years or to both.”
Other penalties include fines of Sh1 million or imprisonment of up to one year for violations such as obstructing an investigation, engaging in retaliation or providing false or misleading information.
Executive officials will have two years from the date of adoption of the bill to develop procedures and submit proposals to the Administrative Justice Committee, which is tasked with implementing the bill.
The whistleblowing system is expected to encourage employees or other relevant stakeholders to report information regarding inappropriate behaviour, while protecting whistleblowers.
The specific objectives of these measures include promoting a culture of transparency, accountability and integrity, providing avenues for anyone to report inappropriate behaviour, and protecting those who report it.
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For example, persons who disclose information of public interest should be protected from retaliation, unfair treatment, or other adverse action as a result of their disclosures.
The bill adds: “The purpose of this law is to provide procedures for the disclosure of information of public interest in public and private entities. The bill seeks to encourage the disclosure of information of public interest by providing a framework for the protection of persons who make such disclosures.”
The Administrative Justice Committee will have powers to investigate disclosures of public interest and complaints of inappropriate conduct and recommend appropriate action, including prosecution.
Public and private entities may offer rewards to encourage disclosure, and the Commission is expected to issue guidance on the application of the rewards.
Kenya has lacked a comprehensive whistleblower protection law, despite previous proposals including the Whistleblower Protection Bill 2024 and the Whistleblower Protection Bill 2023.
The Anti-Corruption and Ethics Commission had earlier urged parliament to pass a law to protect whistleblowers to curb the theft of public resources.
Some have blamed the lack of a comprehensive framework to protect whistleblowers for the misappropriation of public funds and assets in both private and public entities.
In an earlier note, Sheila Masinde, Executive Director of Transparency International Kenya, said that “the absence of a comprehensive whistleblower protection law not only discourages potential whistleblowers from coming forward, but also perpetuates a culture of silence and impunity,” linking the lack of whistleblower protection legislation to the threats and intimidation faced by those who do make disclosures.
Other behaviours that form part of whistleblower disclosures include violations of human rights and fundamental freedoms, solicitation of bribes, unfair discrimination and incitement to inappropriate behaviour.
The bill describes disclosures in the public interest as any disclosure of information about improper conduct that is relevant or pertinent to the welfare of the public, by a person who believes the information shared is relevant.
Under the draft law, the Attorney General has the right to issue the necessary regulations to better implement the law in cooperation with the Administrative Justice Committee.
The whistleblower protection mechanism provides for confidentiality of information, immunity from liability and protection from reprisals of any kind for disclosing it.
Private and public entities should maintain written procedures for investigating instances of detection of inappropriate behavior by employees or other persons.