Policy brief no 3 2015 an effective system to encourage and facilitate whistleblowing by providing e

Policy brief | 3

An effective system to encourage and facilitate whistleblowing by providing effective legal protection to whistleblowers.

July 2015

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Situational Analysis Whistleblower

is

An effective system of encouraging

increasingly being recognised as

and facilitating whistleblowing, by

a strategy to promote a culture of

providing effective legal protection

public accountability and integrity.

to persons who make disclosures

More

protection

Policy Statement

countries

are

adopting

whistleblower protection laws to protect whistleblowers from both the private and public sector from occupational detriment as a result of whistleblowing. Such laws protect whistleblowers

from

dismissal,

on illegal, unlawful and unethical conduct in the public service.

Policy Objective The policy aims to: i. Make provisions for the protection

suspension, demotion, forced or

of

refused transfers, ostracism, reprisals,

sector who disclose information

threats, or petty harassment.

of unlawful or corrupt conduct

Such laws

whistleblower also

provide

protection guidance

to

whistleblowers on how they may

employees

in

the

public

by their employers or fellow employees. ii. Provide protection from reprisal

regarding

for the whistleblower as a direct

unlawful or unethical conduct in

consequence of making such

public service.

disclosure.

disclose

information

Policy Issues There is no legal protection for whistleblowers in Kenya through which they may disclose information regarding

unlawful

or

unethical

conduct in the public service.

iii. Safeguard the whistleblower’s identity. iv. Provide a scheme/body for the enforcement of whistleblower protection.

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Policy Intervention

disciplinary

proceedings

and

liability under criminal, civil and

Protection

administrative

laws,

including

libel, slander laws and (official) i. Protection of identity – the law shall ensure that the identity of the whistleblower may not be disclosed without the individual’s consent, and shall provide for anonymous disclosure. ii. Protection against reprisal – the law shall protect the whistleblower against any disadvantage suffered as a result of whistleblowing. This shall extend to all types of harm, including dismissal, job sanctions, punitive

secrets acts. v. No

sanctions

for

misguided

reporting – the law shall protect any disclosure that is made in honest error. vi. Right to refuse – the law shall allow

the

whistleblower

to

decline participation in suspected wrongdoing without any sanction or disadvantage as a result. vii. No circumvention – the law

transfers, harassment, loss of status

shall

and benefits, among others.

rule or agreement to the extent

iii. Reversed burden of proof – it shall be up to the employer to establish that any measures taken to the detriment of a whistleblower were motivated by reasons other than the latter’s disclosure. This onus may revert after a sufficient period of time has elapsed. iv. Waiver of liability – any disclosure

invalidate

any

private

that it obstructs the effects of whistleblower legislation.

Enforcement i. Whistleblower

complaints

authority – The law should create an independent body (or appoint an and

existing

one)

investigate

to

receive

complaints

made within the scope of the

of retaliation and/or improper

law shall enjoy immunity from

investigation. This may include

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binding

status, mediation and reasonable

recommendations of first instance

attorney fees. The law shall also

and, where appropriate, to pass

consider

on the information to relevant

for compensation in cases of

prosecutorial

respondent insolvency.

the

power

to

issue

and

regulatory

authorities.

iv. Penalty

ii. Genuine day in court – Any

establishing

for

interference

a

retaliation –

Any

act

fund

and of

whistleblower who believes he or

reprisal or interference with the

she has suffered injury to his or

whistleblower’s disclosure shall

her rights shall be entitled to a fair

be considered as misconduct

hearing before an impartial forum

and be subject to discipline and

with full right of appeal. There

personal liability.

shall be due process for all parties with the availability of advocate fees to enforce determinations of corruption brought to light by whistleblowers. Penalties shall also be levied for retaliation against whistleblowers.

shall provide for a full range of remedies with focus on recovery losses

and

restoring

the

whistleblower to their previously held

state.

Among

- Any disclosure made within the scope of the law shall enjoy immunity

from

disciplinary

proceedings and liability under criminal, civil and administrative laws, including libel, slander laws

iii. Full range of remedies – The law

of

v. Waiver of liability for reporting

others,

this shall include interim and injunctive relief, compensation for any pain and suffering incurred, compensation for loss of past, present and future earnings and

and (official) secrets acts. vi. Absence of sanctions – There shall be an absence of sanctions even in cases of false claims if the whistleblower has made the report in good faith upon reasonable belief of wrongdoing.

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REFERENCES i. OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, Recommendation for Further Combating Bribery of Foreign Public Officials in International Business Transactions, Recommendation IX. ii. United Nations Convention against Corruption (UNCAC) (2005), Article 33. iii. Council of Europe Civil Law Convention on Corruption (1999), Article 9. iv. OECD Guidelines for Managing Conflict of Interest in the Public Service (2003)107, 28 May 2003. v. OECD, Commentary on the OECD Guidelines for Multinational Enterprises http://www.oecd.org/dataoecd/56/36/1922428.pdf. vi. Whistleblowing International Standards and Developments* David Banisar.

May 2006 Revised February 2009. Paper presented at the Primera Conferencia Internacional sobreCorrupci贸n y Transparencia: Debatiendo las Fronteras entre Estado, Mercado y Sociedad, Mexico City, 23-25 March 2006.

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correct as of July 2015.

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