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February/March 2015 Issue 150 Adili Whistleblowers needs them for the war against corruption to succeed

By Samuel Kimeu that a whistleblower rather than being embraced by the official system should A disturbing trend is taking root in be harassed and vilified for playing a Kenya. A culture of intolerance largely most critical role of calling attention In this issue... targeting individuals that expose to wrongdoing. wrongdoings by public officers is mounting. This is inconsistent with the oft stated commitment to the fight against On January 17th 2015, blogger corruption and crime generally. Why Kenya needs a whistleblowers’ policy Abraham Mutai was arrested in It is worth noting that for every and law...... Page 5 Mombasa and carted off to investigation or prosecution that where he was detained for close to 24 is carried out, there is inevitably Whistleblowing: TI-Kenya’s efforts to break hours and then released. The arrest a whistleblower involved. It is the silence on corruption...... Page 6 was closely followed by the temporary becoming clear by the day that in suspension of his Twitter account our present environment, blowing and blogs. Mr. Mutai had published the whistle carries a high personal TI-Kenya’s ‘Uwajibikaji Pamoja’ helps bridge information, backed by documentary risk – particularly when there is little the information gap in Turkana County evidence, of alleged corruption in legal protection against dismissal, ...... Page 9 a public agency and some county humiliation or even physical abuse. governments on his online platforms. Just as it was for David Munyakei in the and John It is as surprising as it is disturbing Githongo in the Anglo-Leasing

Page 2 Kenya needs whistleblowers for the war against corruption to succeed the Government embraces good faith whistleblowing; and the whistleblower will suffer no adverse repercussions as a result of bringing an issue to the attention of those in authority or the public.

We recognise the effort that various stakeholders have invested so far in realising a whistleblower policy and law. The Department of Justice has been spearheading this process, which Transparency International Kenya supports. A good whistleblower protection policy and law will go a long way in protecting people like Mr. Mutai, who come forth with reports of corruption and attract reprisals for their actions.

Mr. Mutai’s experience ought to add impetus to the process. The Office of the Attorney General, under which the Department of Justice falls, should expedite the finalisation of the legislation for tabling in Parliament, and eventual enactment.

As stakeholders focus on getting this scandal in the 1990s and 2000s effective ways of detecting fraud important policy and legislation in respectively, whistleblowers in and wrongdoing and facilitating place, public awareness is critical 2015 face retaliation in the form measures to minimise or prevent to de-stigmatise whistleblowing. of harassment, dismissal from further losses. One would therefore Through public education, citizens employment, blacklisting, threats expect the relevant authorities can better understand how disclosing and even physical violence, and their to act on information provided wrongdoing benefits the public good. disclosures are routinely ignored. by whistleblowers by conducting further investigations on the alleged When witnesses of corruption are One of the biggest challenges in corruption incidents, rather than confident about their ability to report preventing and fighting corruption oppress whistleblowers. Individuals it, corrupt individuals cannot hide lies in detecting and exposing bribery, that come forward to disclose behind the wall of silence. In the fraud, theft of public funds and other wrongdoing should be embraced case of Mr. Mutai, he should pursue acts of wrongdoing. This is especially and protected, not harassed and the highlighted corruption cases true in Kenya as a vast majority of ostracized. with the Ethics and Anti-Corruption Kenyans will not report corruption Commission so that full investigations when they encounter it. The East In order to encourage whistleblowers can be conducted and culprits African Bribery Index 2014 published in Kenya to step forward with brought to book. We at Transparency by Transparency International Kenya information, we need to minimise International Kenya will very keenly shows that nine out of 10 Kenyans the risks such whistleblowers face watch how this matter unfolds. who encountered bribery while as a result of disclosure. An effective seeking public services did not report whistleblower management and The writer is the Executive Director, the incident. Varied reasons were protection system begins and ends Transparency International Kenya given for non-reporting, among them with strong policies that clearly and the fear of reprisal or intimidation. emphatically send a two-fold message that: Whistleblowing is one of the most Page 3 Page 3 Whistleblower A person who exposes misconduct, dishonest or illegal activity occurring in an organisation / government.

Whistleblowers expose: Violations of a law, rule, regulation.

Direct threat to public interest, such as fraud, health and safety violations, and corruption.

Whistleblowers take risks Barriers that whistleblowers face Particularly when there is little legal protection against dismissal, humiliation or even physical abuse.

Controls on access to information.

Libel and defamation laws,

Inadequate investigation of whistleblowers’ claims.

Whistleblower: An infograph

IMAGE: Collins Baswony /TI-Kenya Page 4

Notable Kenyan whistleblowers

David Munyakei Blew the whistle on the Goldenberg scandal of the 1990s.

Munyakei, then a clerk at the (CBK), noticed that a company called Goldenberg International was receiving unusually large sums of money for the alleged export of gold and diamonds.

He blew the whistle on the Goldenberg scandal by providing CBK documents to opposition members of parliament. These documents revealed illegal transactions between the Central Bank and Goldenberg International.

Munyakei was arrested and sacked following his whistleblowing activities. David Munyakei PHOTO/Wikipedia

John Githongo

Blew the whistle on the Anglo-leasing scandal

A former Kenyan journalist, Githongo investigated bribery and fraud in Kenya and later, under the presidency of , took on an official government position to fight corruption.

In 2005 he left that position, later accusing top ministers of large-scale fraud.

John Githongo moved to the UK to live in exile after claiming that there have been threats to his life.

John Githongo PHOTO/TI-Kenya Notable Kenyan Whistleblowers: An infograph

IMAGE: Collins Baswony /TI-Kenya Page 5 Why Kenya needs a whistleblowers’ policy and law

By Elijah Ambasa

Objectives It is evident that for the fight against 1. Every person whether in the corruption to be successful in The main objectives of the Policy are: public sector or in the private any jurisdiction, a whistleblower sector has an ethical responsibility protection policy and law should 1. To provide avenues for employees to report suspected misconduct, be enacted to facilitate the anti- of both public and private maladministration, wastage of corruption crusade. institutions to raise concerns public funds, substantial and and define a way to handle these specific danger to public health concerns. and safety, the environment or 2. To enable senior level Public a person with a disability, and Officers (and employees of private reprisal action. “A whistleblower entities) to be informed at an early 2. The principle of natural justice stage about acts of misconduct. (procedural fairness) will apply protection policy 3. To reassure civil servants (and to all investigations of matters and law should be employees of private entities) on the subject of whistleblower that they will be protected from protection. The department enacted to punishment or unfair treatment is committed to treating the for disclosing concerns in good whistleblower appropriately and facilitate the faith in accordance with this making the process fair for both anti-corruption procedure. the discloser and the person who 4. To help develop a culture of is subject to the disclosure. crusade.” openness, accountability and 3. The rights of any person who integrity. is subject to, or is in some way associated with, a disclosure will be safeguarded. Policy principles 4. The principle of good governance, integrity, transparency and The writer is the Programme The following shall be guiding the accountability; and the principle Officer, Governance and Policy, Principles for the Policy- and values of equality, human Transparency International Kenya rights and non-discrimination Page 6 Whistleblowing: TI-Kenya’s efforts to break the silence on corruption

Transparency International Kenya’s it was John Githongo. Life was nev- confidentiality to the employer hin- East African Bribery Index 2014 re- er the same for these individuals af- der whistleblowing as public servants port indicates that 94% of Kenyans ter making these scandals public. Mr commit to confidentiality clauses in did not report bribery incidents en- Munyakei was fired as a Central Bank their employment agreements. There- countered. of Kenya clerk and died jobless, in fore, for fear of breaching their con- deep poverty. Mr Githongo, a former tracts and facing legal consequences, The same study showed that 20% of Permanent Secretary for Governance public servants will shy away from Kenyans did not report corruption be- and Ethics went into exile for two disclosing information that may be cause they felt that nothing would be years after receiving threats to his life. interpreted as a breach of confidence. done even if they reported. The report To curb these fears and other barriers, further highlights that one of the rea- Research has shown that whistleblow- Kenya needs a whistleblower protec- sons Kenyans do not report corrup- ing is one of the most effective ways tion policy and law. tion is the fear of self-incrimination as to detect fraud and wrongdoings in well as intimidation or reprisal. These any country and facilitate measures to Transparency International Kenya has trends are worrying to our economic minimise or to prevent further losses. succeeded in setting an agenda for a growth as a nation. Whistleblowing promotes account- Whistleblower Protection Policy and ability by allowing an individual to Law. This has been done through con- Whistleblowers have been instrumen- disclose information on misconduct tinuous engagement with the Depart- tal in uncovering all mega corruption while protecting the person against ment of Justice of the State Law Office scandals in Kenya. For the Golden- sanctions of all forms. in partnership with the Kenya Law 1 berg Scandal it was David Munyakei Reform Commission (KLRC). A visit 2 while in the Anglo Leasing Scandal The Government enacted the An- to the Attorney General’s office in Feb- ti-Corruption and Economic Crimes ruary 2014, by the then Chair of the Act to criminalise corrupt practices. Board of Directors, Transparency In- It also enacted the Public Officer Eth- 1 The Goldenberg Scandal involved ternational, Dr Huguette Labelle add- the payment of millions of shillings for ics Act, which requires public institu- ed impetus to the push for a Whistle non-existent exports of gold and diamonds to tions to develop codes of conduct for blower Protection Policy and Law. Goldenberg International in the early 1990s. their employees. However these are Officials who served in former president not sufficiently adequate in address- The Department of Justice later con- ’s administration are among ing the vice. Whistleblowing in Kenya vened a drafting session for the Bill those accused of operating the scheme, which became the focus of Kenya’s biggest-ever has been faced with several challenges and policy together with TI-Kenya corruption investigation. thus most people lack sufficient cour- as a primary stakeholder. During this age to disclose information that would session, TI-Kenya’s draft Whistleblow- 2 The Anglo Leasing scandal involved 18 contracts for the financing and be of public interest and stop the com- er Protection Policy and Bill was used implementation of security related projects mission of an illegal act. as a primary reference point in draft- signed with shadowy firms on various dates ing the Bill. between 1997 and 2003. The project contracts There are significant legal barriers to were also accompanied by credit totaling Ksh unauthorised disclosure of informa- 56.3 billion in form of irrevocable promissory tion in Kenya. Duty of loyalty and notes. Page 7

Kaa chonjo! Pamoja tuhakikishe usimamizi bora wa rasilimali zetu

Building civilian oversight in devolved governments in Nairobi and Uasin Gishu Counties

Supported by:

MINISTRY FOR FOREIGN AFFAIRS OF FINLAND Page 8 Corruption complaints at police station cause a transfer

The residents of Kangundo Sub- Nairobi held a forum in Kangundo County in Machakos County had to educate the citizens on strategies continuously complained about the of fighting corruption including management of the Kangundo Police reporting complaints to relevant Station. Corruption was reported as authorities for action. This complaint one of the key concerns especially of corruption at the station was raised bribery demands targeting public at the forum. service vehicles using the murram roads. ALAC Nairobi took it up and brought it to the attention of the Internal There were also allegations of tribalism Affairs Unit of the Kenya National within the police station with some Police Service through a letter. The of the officers grouping themselves unit took up the matter and conducted according to ethnicity. This caused investigations. discrimination and victimisation of some officers who ‘did not belong’. It The officer in charge of the Kangundo was further alleged that some of the Police Station was transferred to officers in charge of that station had another station in a different county. worked there for over seven years thus compounding the problem. This story was written by the Nairobi Advocacy and Legal Advisory Advocacy and Legal Advisory Centre, Centre team

An ALAC Officer at a public forum at Sabaki area in Kilifi county.

PHOTO: Eucabeth Omwenga TI-Kenya

Setting the land record straight in Mwakirunge

Sidi Pojo walked into the Advocacy and asked him to respond to the committee. Sidi was happy with the and Legal Advisory Centre (ALAC) allegations, which he did within a decision and is now enjoying peaceful Mombasa office and complained that week. possession of his land. the area chief had sold his land in The said chief indicated that there Mwakirunge in cahoots with the local was a misunderstanding and that This story was written by the land committee. the land was returned to the rightful Mombasa Advocacy and Legal ALAC wrote a letter to the chief owner after a meeting of the local land Advisory Centre team All names in these stories have been changed to protect the identity of the complainants Page 9 TI-Kenya’s ‘Uwajibikaji Pamoja’ helps bridge the information gap in Turkana County

The relationship between Oxfam and complaints portal by a community and the beneficiaries was restored. a community is looking up thanks member, reading: “Lack of clear to the ‘Uwajibikaji Pamoja’ initiative communication about the programme About Uwajibikaji Pamoja coordinated by Transparency in most of the communities and delays ‘Uwajibikaji Pamoja’ is an Integrated International Kenya in Turkana due to lack of clear communication Complaint Referral Mechanism that County. has caused mistrust. Why haven’t we was set up to improve service delivery received the Ksh 750,000 funding to the residents of Turkana County Oxfam has been implementing a even after writing a proposal for the and facilitate the referral of complaints programme in Karebur-Lokitaung same just as the other communities from one service provider to another. in Turkana County, targeting had?” community groups to stimulate The service enables members of livelihoods and markets. In the Once received the complaint was the public to submit complaints or course of implementing this program referred to Oxfam. The organisation feedback concerning aid and service there were rumuors of favouritism saw this as an opportunity to positively delivery through three channels: a surrounding the allocation of funds to engage the community in a conducive toll-free SMS line, a web-based portal, community groups. environment to address issues that or by filling out paper forms. People were associated with the programme. with no access to a mobile phone or In November 2014 a joint field The focal person in the Oxfam Turkana internet can visit the nearest office of outreach visit by the convener of office together with the project staff a participating organisation to lodge Uwajibikaji Pamoja and Oxfam organised a public meeting at Karebur their complaints. The walk-in option was conducted in Karebur, and the to clarify any information concerning also allows people who cannot read or community members sensitized about the programme. write to report their cases. their rights and how to complain against poor services from service This helped the community to ‘Uwajibikaji Pamoja’ is currently being providers through a toll free SMS understand the objective of the implemented in Wajir, Turkana and service. project and Oxfam operations much West Pokot Counties. better. Within one month, this issue Following this sensitisation visit, had been fully addressed and a good By the Humanitarian Aid Integrity a complaint was lodged into the relationship between the organisation Programme team Page 10 TI-Kenya, partners conduct public awareness drive in Nyeri

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1 Participants register for the stakeholders’ breakfast meeting held in Nyeri town. 5 Stakeholders at the stakeholders’ breakfast meeting. The 2 breakfast meeting was held to inform county based stakeholders about the Sema! Piga Ripoti service and to win their support in promoting usage of the service

A Sema! Piga Ripoti Officer records performance of the theatre 3 group on her mobile phone. The caravan employed the use of art to pass across key messages

A Sema! Piga Ripoti Officer explains the service to a member of 4 the public.

A member of the public records the Sema! Piga Ripoti number 5 on her mobile phone.

Transparency International Kenya in hate speech, administrative injustice, and Integration Commission (NCIC), partnership with five state agencies and human rights violations by visiting the Commission on Administrative visited Nyeri County between 26th any of the agencies offices, emailing or Justice (Ombudsman), the National February - 1st March 2015 to inform calling in. The complaints’ desks have Anti-Corruption Campaign residents about Sema! Piga Ripoti, been operational in Nyeri, Kisumu, Steering Committee (NACCSC) and hosted at at the Ethics And Anti- Kitale, Wajir and Garissa towns. Transparency International Kenya. Corruption Commission Offices in Nyeri town It is an initiative of the Ethics and Anti-Corruption Commission Sema! Piga Ripoti is a service that (EACC), the Kenya National The initiative is supported by the enables you to register your complaints Commission on Human Rights German Development Corporation, on corruption, discrimination and (KNCHR), the National Cohesion GIZ. Page 11 Anti-corruption and oversight institutions must be above reproach

Transparency International Kenya institutions such as the National taken to salvage the reputation of the notes with great concern reports Assembly where there have been house. Important also is the need to emerging in the media in the recent allegations of corruption in various communicate the outcomes of any past calling into question the integrity committees; and the Ethics and Anti- accountability processes instituted. of important institutions and public Corruption Commission (EACC), officials involved in the fight against where some high level officials Suspension of the PAC is a good corruption. have been accused of impropriety, first step, but it is important that remain above reproach to maintain thorough investigations are carried No significant progress has been public confidence in the fight against out and those found c­ulpable held made in the war against corruption. corruption. to account. The leadership of the Few corruption cases have been National Assembly must resist the successfully prosecuted, public officers Corruption allegations must be urge to sweep corruption allegations accused of corruption continue to investigated against Parliamentarians and serve in their positions and only few Parliamentary Committees under the resources lost through corruption EACC must cooperate with the Office carpet as has happened in the past have been recovered. of the Ombudsman to weed out any and communicate the outcome of its allegations of impropriety among its processes to the public. Kenya continues to be seen as a officers. Any officers of the EACC country with a major corruption issue. found culpable should face the full We welcome the proposal to institute The 2014 Corruption Perception force of the law. The suspension an Internal Standards Unit to facilitate Index published by the Transparency of EACC’s Deputy CEO Michael the reporting of corruption by International movement ranks Kenya Mubea this morning to pave way whistleblowers, and the development poorly. Kenya scored 25 on a scale of for investigation into allegations of and adoption of a code of conduct for zero to 100 (with zero perceived to be office malpractice is a step in the right legislators. Transparency International highly corrupt, and 100 very clean) direction. Kenya is ready to offer technical and sits at position 145 out of 174 support towards these processes countries and territories ranked. Concerning the corruption in aimed at instituting integrity in the Parliamentary Committees, including August House. Considering the flood of reports the Parliamentary Accounts of high level corruption in various Committee (PAC), it is vital that the This statement was issued by institutions, Kenya’s position among Speaker of the National Assembly Transparency International Kenya the community of nations could suffer ensures that these allegations are on 10th March 2015 even further. It is important that key investigated, and the necessary action Connect with us:

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‘Adili’ is a news letter produced by TI-Kenya’s Communications Programme. The views and opinions expressed in this issue are not necessarily those of TI-Kenya. The editor welcomes contributions, suggestions and feedback from readers. Transparency International, 3rd Floor, Wing D, ACK Garden House, 1st Ngong Avenue. PO Box 198-00200, City Square, Nairobi, Kenya. Tel.: 254-020-2727763/5, 0733-834659, 0722-296589; Fax: 254-020-2729530. [email protected]