The value of legal protection for whistle-blowers was highlighted recently when Kenyan MP and anti-corruption campaigner John Githongo fled to Britain in fear of his life after going public with allegations that Kenyan ministers colluded in a $600-million corruption scam. Not only does Kenya not provide legal protection of whistle-blowers, but it has no legislative framework on freedom of or access to information.
Githongo is not the only Kenyan being victimised. In 1993, David Munyakei, then a clerk at the Central Bank of Kenya, helped to expose the Goldenberg scandal, one of the largest and most complex financial scandals in the country’s history. Munyakei provided two opposition MPs with documents revealing illegal trans-actions with Kenyan company Goldenberg International, which he noticed was receiving unusually large sums of money for the alleged export of gold and diamonds. The documents revealed illegal transactions between the Central Bank and Goldenberg.
Githongo was arrested and subsequently lost his job in September 2003. Although his letter of termination did not give a specific reason, there is little doubt it was as a direct result of the disclosure.
Munyakei wants his job back and the matter is awaiting trial. His hopes are pinned on the Kenyan courts’ interpretation of the Constitution, which guarantees the right to freedom of expression, although this right is not absolute.
In Munyakei’s favour is the fact that Kenya is a signatory and party to various international instruments, including the International Covenant on Civil and Political Rights and the African Declaration on Human and People’s Rights. As such it has a legal duty to respect and implement the ideals contained in these documents, including public access to information. Furthermore, African nations, through the African Union, have participated in the development of the international consensus on access to information.
While South Africa is the first on the continent to successfully pass an access-to-information law, several other African countries have taken strides towards such legislation.
As a member of the AU and a state party to the African Commission on Human and People’s Rights, Kenya is bound to respect the principles articulated by these bodies, which provide a blueprint for drafts and legislation that will recognise the need to protect the public’s right to know.
Of particular note is the ”protection” clause, which states that ”no one shall be subject to any sanction for releasing in good faith information on wrongdoing”. The clause establishes the important principle of disclosure in the public interest and the need to protect those who make such disclosures.
Over the past decade, the link between access to information and the vitality of the democratic process has become more clearly established. A decade ago, only a very small number of countries had passed access-to- information legislation. In many countries, information was considered government property, to be disbursed only when absolutely necessary. The only countries with an open-information policy were longstanding Western democracies such as Sweden.
Today, countries as diverse as Jamaica and Bulgaria have instituted access-to-information policies, with 45 countries having already passed laws. While very few of these countries are African, a large and growing number of African countries are moving towards open information.
South Africa’s Protected Disclosures Act 2000 provides protection against employment-related sanctions for disclosures that reveal wrongdoing or risks of harm. Disclosures are protected if they are made to legal practitioners, via formal employment complaints procedures or to various high-level officials, such as ministers. Disclosures are also generally protected, including those made to the media, where they are made in good faith, in the reasonable belief of truth and where one of the following conditions is met:
- The employee has reason to believe he or she will be sanctioned for making the disclosure;
- There is no complaints procedure and the employee has reason to believe the wrongdoing or harm will be concealed;
- A similar disclosure has already been made to no effect; or
- The risk is of exceptionally serious wrongdoing or harm.
We will have to wait and see whether Munyakei will be successful in his constitutional challenge, but what this case illustrates is the urgent need in Kenya for specific legislation to ensure that whistle-blowers receive the full protection of the law. It must recognise that freedom of information does not only relate to those imparting information, but also to the right of the public to be adequately informed.
Whistle-blowing tends to attract retribution and so must be robust. Even in South Africa where the requisite legislation is in place, all is not well. Witness the recent dismissals of Harry Charlton, the Travelgate whistle-blower, and Grootvlei prison boss Tatolo Setlai. Our next step is to ensure that our Whistle-blowing Act has teeth and practical effect. We have some way to go. Kenya has even further.
Teboho Makhalemele is an attorney at the Open Democracy Advice Centre, a civil society organisation aimed at promoting an open and transparent democracy and fostering a culture of corporate and government accountability