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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