Being a whistleblower in Kenya is a risky business. John Githongo and David Munyakei might be exhibits 1 and 1a in supporting that assertion. More recently, blogger David Mutai was arrested and had his blogs and Twitter account shutdown after exposing corruption at a public agency and in some county governments. More generally, according to Transparency International’s 2014 East Africa Bribery Index, Kenyans reported just 6% of the bribes they were aware of, and a common reason (noted by 10% of respondents) was fear of adverse consequences.
Against this backdrop, earlier this year Kenyan Attorney General Githu Muigai formed the Task Force on Review of Legal, Policy and Institutional Framework for Fighting Corruption. It is not clear how much work the Task Force has done or is doing (you can read the opening address from the June 2015 “Technical Retreat for Development of a Draft Report” here), but it was reported over the summer that the Task Force plans to propose a whistleblower reward system similar to Dodd-Frank’s whistleblower incentive provisions (which have been discussed previously on this blog here, here, and here). Specifically, the reported Kenyan proposal would reward “a person who reports corruption [with] at least 10 per cent of the value of any property recovered after investigations and conclusion of the matter through judicial or other dispute-resolution mechanisms.”
If the Task Force is still looking for ideas (as far as I can tell it has not released any draft legislation or white papers, and the latest news story I could find that mentioned the Task Force is this one from August), I have a few for how to make sure its whistleblower reward program is effective.
There are three main areas the Task Force should focus on to increase the likelihood that the whistleblower reward program will succeed.
- First, a whistleblower reward program is unlikely to be effective without strong protections for whistleblowers. Indeed, the Dodd-Frank provision that the Kenyan proposal may be modeled on addresses whistleblower protections in the very same section. Dodd-Frank § 922(h) provides protections for whistleblowers against retaliation (which may not apply to foreign whistleblowers), although the exact scope is the subject of ongoing litigation, including this recent victory for whistleblowers in the Second Circuit. Without whistleblower protections, the reward system essentially asks citizens to weigh the odds of recovery against large economic or physical costs. In this context, it is important to remember that the risks most Dodd-Frank whistleblowers face—loss of a job, for example—might pale in comparison to the risks a Kenyan could face for reporting grand corruption. For that reason, an effective whistleblower protection program in Kenya must go beyond the protections in Dodd-Frank if the whistleblower reward program is to have any hope of having its intended effect. Kenyan law does already have some whistleblower protections (Section65 of the Kenya Anti-Corruption and Economic Crimes Act, and the Witness Protection Act are examples). But, as this Transparency International Kenya blog post describes, there is much more work to do before the protective provisions could be considered sufficient to make the potential monetary rewards of blowing the whistle outweigh the risk of catastrophic human costs. Fortunately, the Kenyan task force has a wealth of potential sources for best practices, including: Transparency International’s report, “Whistleblower Protection And The UN Convention Against Corruption”, this G-20 compendium of best practices, and this Transparency International’s International Principles for Whistleblower Legislation.
- Second, investigating and prosecuting corruption in Kenya takes time. Of course, the Goldenberg Scandal is an outlier in terms of its size, political connections, and complexity, but the fact that investigations and prosecutions proceeded in a stop and start fashion for well over a decade gives some sense of the delay a whistleblower may need to wait out before she receives any reward under the leaked Task Force proposal. Earlier this year, the Kenyan Ethics and Anti-Corruption Commission (EACC) set an ambitious deadline for investigating prosecuting nearly 200 reportedly corrupt officials, but later extended the deadline, noting the complexity of the cases in multiple jurisdictions. Delays in investigation and prosecution may create a “chicken and egg” problem for anticorruption authorities in Kenya: As the risks facing whistleblowers are unlikely to decrease over the period of an ongoing investigation, the benefits associated with a potential monetary reward lose their value; so, for the incentives to have their intended effect, Kenyan authorities must show a willingness and ability to investigate and prosecute reported corruption expeditiously. Until that happens, Kenyan citizens are unlikely to see great incentive in reporting corruption when any monetary reward they might receive will only arrive far in the future. One potential place to start would be simplifying the legal framework the EACC cited this summer as requiring an extension of its self-imposed deadline. Another way to address the concern about delay might be to provide some form of “up-front” reward for simply reporting, or for reporting that leads an investigation to a certain stage. This, however, this is a technically and ethically complicated proposition, and one I may explore in greater depth in a future post.
- Third, the whistleblower reward provisions must discretely establish what type of information or assistance qualifies a whistleblower for a reward. Failure to clarify what constitutes qualifying behavior is one criticism of the Dodd-Frank § 922 whistleblower reward program. If citizens are unsure whether the information they report will qualify them for a whistleblower reward, it decreases the likelihood they will report. It might not be possible to craft a reward provision that is crystal clear on what information qualifies for rewards and what does not. Indeed, entirely clear qualification provisions might create perverse incentives for officials to receive information/assistance only to the extent it does not qualify for a reward, even when enough information/assistance to qualify for a reward might be available. But given the risks associated with blowing the whistle in Kenya, the proposed incentive structure is unlikely to encourage citizen reporting unless any ambiguity in the eligibility language is read in favor of the reporter. In other words, Kenyan authorities should adopt a presumption in favor of interpreting its whistleblower reward provisions akin to construing ambiguous contract provisions against the drafter—the government in this context.
There is reason to be hopeful that the Task Force is or will consider these issues when crafting its recommendations. In addition, the Task Force may want to consider a list of anticorruption priorities Kenyan civil society groups released for the Task Force this summer. Hopefully, the Task Force members will take the suggestions in that list and given in this post (and in your comments!) seriously, and remember that although monetary rewards for whistleblowers can play a role in an effective anticorruption program, they are most effective within a well-designed anticorruption framework.