Whistle Blower Bill 2023 and its implications
WHISTLEBLOWER BILL: IMPLICATION FOR EMPLOYERS, EMPLOYEES AND MEMBERS OF THE PUBLIC AND PRIVATE SECTOR.
The Whistle-blower Bill was introduced in 2023 in Parliament to set out a procedure for the disclosure of information about improper conduct both in the private and public sectors. The bill further seeks to protect those who expose such misconduct from victimization. Enforcement of the new law will be a preserve of the Commission on Administrative Justice (hereafter referred to as the Commission). The commission will be receiving disclosures and also complaints of reprisal. The Commission will also be ensuring the protection of whistle-blowers. In ensuring that witnesses are protected, the commission will be given the power to refer requests for the protection of the witness to the Witness Protection Agency.? This Article assesses the potential impact and implications of the Bill from the perspective of the employers, employees and members of Public and private bodies.?
Before the bill was introduced, there already were some provisions in place to protect whistle-blowers. The constitution of Kenya, for instance, prohibits the victimization of whistle-blowers in the public sector. However, this protection by the Constitution is limited to public officers as per the provision in Article 236. It prohibits the discrimination, dismissal and removal from office of public officers who perform their functions under the Constitution or any other written law.?
Other written laws that protect whistle-blowers include section 65 of the Anti-Corruption and Economics Crimes Act which protects informers who assist authorities in exposing corruption and economic crimes. The Anti-Corruption and Economics Crimes Act prohibits disciplinary action and acts of retaliation against such informers. The Capital Markets (Whistle-blower) regulations are also other laws in existence that protect and reward whistle-blowers. Under the Capital Markets regulations, whistle-blowers are required to report on offences and acts of non-compliance with the Capital Markets Act. Section 16 of the Access to Information Act also protects whistle-blowers who disclose confidential information for a greater public interest. The scope of these laws was narrow and dealt with sector-specific forms of misconduct.
1.1.1. Conduct
The Whistle-blower Bill provides a more detailed and broader framework for the protection of informers as compared to the existing frameworks. It not only covers the economic and corruption offences but also other Conduct which can be classified as improper conduct. The Bill has jurisdiction over conduct by both private and Public bodies. Conduct that can be exposed as improper according to the Bill includes but is not limited to contraventions of laws of Kenya, acts that endanger life, health, safety or the environment, crimes, embezzlement of funds, violation of human rights, discriminatory actions and many other offences mentioned in the bill.?
1.1.2. Parties under the Bill’s radar in the private sector.
When the bill refers to private entities, it specifically means a body—?
?(a) that is listed on the Nairobi Securities Exchange; or?
(b) whose nature of operations affects the public interest; or?
(c) that has information which is of public interest; or?
(d) that is engaged in business with the government or with any public entity; or '?
(e) that is a private academic institution of higher learning; or?
(f) any other body prescribed by regulation for the purposes of this Act
This Bill will therefore affect even the members of the private sector that fit into the category listed above. The list is not exclusive since provided that there are acts that are in contravention of an act of parliament, a member of any body can disclose information. Employers and employees will be a major focus group of this bill.
According to the Bill, a disclosure, as strictly defined, may be made by an employee or any person or a public or private body if such a person or body has information that they reasonably believe is evidence of improper conduct that has or may have occurred, or is likely to occur. This provision poses a concern about the status of confidential information accessed by an employee during employment.
It is trite law that when there is a Non-disclosure Agreement, confidential information is not supposed to be disclosed to unauthorised parties. However, as per the Access to Information Act, there is an exemption to this general rule. Section 16 of the Act allows a person, (ordinarily an employee) in the interest of the public, to disclose information obtained confidently in the course of business. According to the Access to Information Act, employees who make disclosures which can be proven to be in the public interests are entitled to protection from Acts of reprisal
If the Bill is passed, It will be considered an offence to engage in acts of reprisal against a whistle-blower. The offence is punishable by a fine not exceeding ten million shillings or a term not exceeding fourteen years imprisonment. Acts of reprisal include disciplinary actions in employment that have reasons that are not independent of disclosure by an employee or a member of a body. Employers are required to have policies for protecting informers rather than retaliating. Retaliation only adds more offences aside from the ones arising from the disclosure.?
The Bill further defines acts of reprisal to include discharging, demoting, suspending, transferring, threatening, harassing or acting adversely against a person in the terms and conditions of employment because the person informed against an employer or someone at the workplace. The Kenyan Court in the case of Spencer Sankale Olochike v Maasai Mara University; Transparency International Kenya & 22 others (Interested Parties) [2021] eKLR involved the issue of protection of whistle-blowers. It was, however, decided before the bill was introduced.?
In the aforementioned case, Mr. Spencer, the petitioner, was an employee of Maasai Mara University, the respondent. He was summarily dismissed from his employment. He averred(state or assert to be the case) that the dismissal was a result of his whistleblowing of corruption in Maasai Mara University dubbed the “-Mara Heist.” The court took the view that dismissing him summarily was intended to silence him from whistleblowing at the university. He was then awarded Kshs. 3,100,716/= as damages for unfair termination. During this period, the Bill was not yet introduced. The Court relied on the United Nations Convention on Corruption (2003), Anti-corruption and Economic Crimes Act (Section 65) and the Bribery Act (section 21) to come up with a finding that Spencer, as a Whistle-blower was to be protected by the respondent instead of the reprisal actions.
In their defence, The Maasai Mara University council included assertions that the evidence was obtained illegally since it was confidential information. The University Council even went further to state that the summary dismissal was not due to whistle-blowing but due to illegally obtaining confidential reports and sharing the same with the public using disparaging terms to describe the council members. The court, however, still found in favour of Mr. Spencer that there was unfair termination. The court was convinced that the disclosure was in the public interest since it helped expose corruption schemes.?
In this case, the improper conduct was corruption. From the definition of disclosure in the Bill, provided that an employee or a member of the body has “reason to believe” that the information concerned shows or tends to show that improper conduct has been committed, is being committed or is likely to be committed, he or she can disclose such information for purposes of delivery of justice. Provided that the public interest guaranteed by disclosure outweighs the interest protected by confidentiality agreements, a disclosure may be deemed legal.?
Public or private bodies will also be required to establish Procedures in written form including periods, for managing and investigating disclosures by employees or persons the public or private body is responsible for. Several cases have been brought against employers for abusing the right to a fair hearing during the investigation of allegations by whistle-blowers. There is therefore a need to have policies that not only protect the whistle-blower but also accord the accused person a fair hearing internally. Employers will achieve these requirements by having written policies that connote (especially procedures in bold):
If such policies are missing, then an informer/whistle-blower is at liberty to report directly to the commission. A person will only be allowed to make a disclosure directly to the commission if there are no procedures put in place for the protection of such employees. It is crucial to have such procedures to ensure that internal matters are handled internally. This helps avoid internal affairs being resolved by third parties. The employees or members of the body have to be made aware by those in charge that such procedures and policies are available should they want to disclose some information in the future.
Having such policies and procedures will still not guarantee privacy of the internal affairs as public and private bodies will still be required to file reports (annually at the beginning of each year) with the commission. The report has to contain the particulars of the disclosures made to that private or public body in the preceding year. It has to contain information on how investigations were done, the status of the investigations, the number of disclosures acted upon and not acted upon and other relevant details specified in the bill. Additionally, when the commission itself investigates a matter upon disclosure, it may publish such a report where it is in the public interest to do so.?
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In as much as an employer or a private body may have implemented such policies and procedures, the decision to choose whom to disclose the information to rests on the Whistle-blower. According to the bill, in determining the person or body to whom a disclosure may be made, a whistle-blower shall take into account —?
(a) whether there is a reasonable belief or fear on the part of the whistle-blower that the whistle-blower may be subjected to dismissal, suspension, harassment, discrimination or intimidation in the place of employment;?
(b) whether there is a reasonable belief or fear that evidence relevant to the improper conduct may be concealed or destroyed;?
c) whether the person to whom the disclosure is made is likely to frustrate the objective among other factors.
It will therefore crucial to have policies that promote confidence in the system so that the whistle-blower can opt for internal disclosure as opposed to external authorities.??
While setting up internal frameworks that promote whistle-blowing, a body or employer should also strive to ensure that accused persons are accorded a fair hearing. Putting more focus on protecting a whistle-blower and disregarding the right to a fair hearing of the accused person has landed many employers in trouble in court. An example is the case of Ojuok v Tourism Promotion Services (Kenya) Limited t/a Serena Hotels [2023]?KEELRC?2441?(KLR).?
In this case, Mr Ojuok, the claimant, was dismissed for misconduct which was reported by a whistle-blower in the company.? Mr Ojuok averred that during the disciplinary session, he was denied critical material in respect of the case. He averred that he was not given the sworn statements by the whistle-blower and the internal audit report on the matter. He further stated that he was not allowed to cross-examine his accuser. Serena Hotels, the sued Company, stated that it was entitled to protect its whistle-blower from exposure by protecting his or her identity. It is for this reason that the Serena Hotels decided not to share the investigation report with the accused person.
The court did not agree with the Serena Hotel’s initiative. In as much as the whistle-blower’s identity has to be protected, the court posited that this did not entitle the respondent to withhold the results of the investigations from the claimant. According to the court, to protect the identity of the whistle-blower, Serena Hotel was entitled only to redact the name of the said whistle-blower from the report. The failure to share this report with the Claimant compromised his right to a fair hearing.?
The right to fair hearing was also found to have been infringed in the case of Ouma v Faulu Microfinance Bank Limited (Cause E015 of 2022). Ouma, the claimant, was fired after a report was made by a whistle-blower over his misconduct. Ouma claimed that he was not provided with the Investigation report that bore the allegations against him and neither did the witnesses appear before the hearing for him to cross-examine them. Faulu, the respondent stated that in line with Clause 16 of its Policy, it balanced the Claimant’s rights to access documents before the hearing, with the right to protect the whistle-blower, who the investigations revealed could have been the Respondent’s employee whom the claimant exercised supervisory powers over and in the interest of maintaining confidentiality.?
The Court however held that the Respondent had the responsibility of providing the Claimant with the evidence that was against him for him to defend himself. It was through this that the claimant could have been accorded a right to a fair hearing. What is not yet clear is how a whistle-blower can be presented for cross-examination without their identity being disclosed or compromised.
According to the Bill, by dint of Clause 28 (2)(b), confidential information (e.g information identifying the whistle-blower) that may be part of the documents presented ought to be redacted. This way the accused person can be presented with the evidence against them without compromising the safety and protection accorded to a whistle-blower. It is worth noting that it is a punishable offence under the bill when a person to whom a disclosure is made fails to keep the disclosure confidential. The offence is punishable by a fine of Kenya shillings ten million or imprisonment to a term of not more than fourteen years or both.
In another case of Maiko v Teachers Service Commission (Cause E022 of 2022), Mr. Maiko, the claimant testified that a copy of the whistle-blower complaint was not given to him during the investigations or the disciplinary hearing. The Court found fault with the respondent (TSC) for not according the Claimant the protections assured him of presenting witnesses and being accompanied during the hearing.?
Not all disclosures are eligible for protection. This is especially so if such a disclosure is limited by an existing law or policy. The bill provides for situations where disclosures may not be protected or investigated.
According to the bill, The following information cannot be disclosed by a whistle-blower:
The Commission will also have power to revoke the protection granted to the whistle-blower if it is determined that:
Sometimes, if evidence is not properly obtained, courts may be reluctant to admit it despite the good intention behind the production of such evidence. In the case of OKIYA OMTATA AND 2 OTHERS VERSUS ATTORNEY GENERAL [2020] Eklr, The court declined to accept evidence from whistle-blowers that was illegally obtained. It stated expressly as follows:
“…. However well-intentioned “conscientious citizens” or “whistle-blowers” might be in checking public officers, there can be no justification, as pointed out by the Supreme Court, for not following proper procedures in the procurement of evidence. We do not have any basis for interfering with the decision of the High Court to expunge the documents in question.”
The Bill has not established a balance on what ought to be done when evidence is obtained illegally by a whistle-blower. However, it is worth noting that under the bill, even a whistle-blower can commit an offence by the disclosure itself. This is especially so if the information disclosed is categorized under the Limits on disclosure. This is by dint of Clause 44(4) of the Bill.??
It will be regarded as an offence to deliberately and voluntarily give false or misleading information in connection with a disclosure of improper conduct.? The offence will be punishable by imprisonment for a term not exceeding fourteen years or a fine not exceeding ten million shillings or both. However, if the disclosure is done in good faith, the whistle-blower will be entitled to immunity from civil or criminal liability in relation to the disclosure. If a person has knowledge and information on the occurrence of improper conduct and does not make a disclosure to the relevant authority within two days thereof commits an offence. ?
There shall also be a general penalty of a fine not exceeding five million shillings or imprisonment for a term not exceeding seven years or to both for any person who commits an offence under the proposed law for which no penalty is expressly provided,??
Conclusion
The bill seeks to ensure that the administration of justice is efficient in the country. By protecting and rewarding whistle-blowers, the bill will incentivise the cooperation between whistle-blowers and relevant authorities. The concern, however, will be establishing a balance between recognising confidential information and promoting the greater public interest. Once the bill becomes law, organisations and bodies will have to restructure their policies to promote whistleblowing. It will be crucial to be aware of the legal aspects when coming up with the policies.?