In spring 2015, at the behest of Kenyan President Uhuru Kenyatta, Kenyan Attorney General Githu Muiagai formed the Task Force on Review of Legal, Policy and Institutional Framework for Fighting Corruption. The group’s goal was to assess the existing framework for combatting corruption in Kenya and to recommend reforms that would promote ethics and integrity while making it easier to fight corruption going forward. Yet for months, very little seemed to be happening, aside from meetings, a speech by President Obama to the Kenyan people on the subject, and some discussion of purported proposals in the press. (I examined one such proposal related to whistleblowers in an earlier post.)
The Task Force released its final report in October 2015 and President Kenyatta received the report the following month, the same week seventy-two government officials were arraigned on corruption charges. In general, the Task Force found (not surprisingly) a high correlation between discretionary power exercised by state actors and corruption. The Task Force said the fight against corruption was more about increasing enforcement of existing laws (although it did not recommend combining the investigative and prosecutorial roles as proposed legislation discussed in Rick’s earlier post would). But the report also proposed three major new legal frameworks, which mirror provisions in U.S. law, that the Taskforce report said would help reduce corruption in the country:
- First, the Task Force proposed that Kenya adopt a form of qui tam cause of action similar to the False Claims Act in the United States. (Qui tam actions under the False Claims Act have helped the United States recover billions of dollars, including $3.5 billion in fiscal year 2015.) This is not the first time Kenyan government agencies have considered or proposed qui tam actions—the first such proposal came over a decade ago, according to the Task Force report. But for qui tam actions to effectively promote Kenya’s interests there needs to be a robust plaintiff’s attorney bar so that citizens can zealously bring claims on behalf of the state. In the United States, most qui tam plaintiff’s attorneys work on a contingency fee basis. But contingency fees are prohibited under Section 46 of the Advocates Act in Kenya (although some report the practice is common regardless). Unless Kenya can develop a means to reduce the cost of bringing a qui tam action, underutilization may render False Claims Act-style legislation ineffective.
- Second, the Task Force proposed that Kenya adopt a freedom of information statute. The Parliament has the benefit of legislating against a background constitutional citizen right to information embodied in Article 35. Despite the background principle, access to information lags for Kenyan citizens. Kenyans will benefit from a strong freedom of information statute that utilizes technology to ensure fast, low-cost access to information. However, Kenya should make sure to acknowledge and recognize the value of certain exemptions to the disclosure presumption embodied in the U.S. Freedom of Information Act and the case law interpreting those exemptions. Although exemptions should be narrow, Kenya should recognize the value of protecting certain information. As the D.C. Circuit asserted in Critical Mass Energy Project v. Nuclear Regulatory Commission, there are times where requiring disclosure will just make the information disclosed by a regulated entity less complete and forthright than it would be in the absence of disclosure. Of course, the United States has had almost fifty years to work on striking the proper balance between disclosure and confidentiality. Kenya may want to err on the side of disclosure and allow experience to dictate where the interests promoted by non-disclosure outweigh the presumption for disclosure.
- Third, the Task Force recommended that Kenya adopt a whistleblower protection law modeled on a draft Whistleblower Protection Bill first proposed by the Attorney General and Ministry of Justice in 2014. That draft is currently undergoing review by the Kenya Law Reform Commission. Unfortunately, there is reason to be skeptical of the proposed bill, both because no draft is available online, and because after the Attorney General proposed the bill, whistleblowers such as Abraham Mutai were still being arrested for publicizing corruption. As I discussed in my earlier post, it is imperative that the statute have strong protections for whistleblowers, but protections alone are not enough: There may be a need to provide rewards to whistleblowers for qualifying information. If Kenya goes that route, it must ensure that the statue is precise about both what information qualifies for rewards, and at which stage of an investigation and/or prosecution an award will be disbursed.
Unfortunately, the pace of progress on anticorruption efforts in Kenya is slow. Even after the Task Force report, many Kenyans have doubts and are not holding their breath for progress. The Kenyan Parliament has apparently not yet considered any legislation related to the three general proposals, nor does any appear to be “priority business” for the National Assembly. In March, whistling MPs (whistleblowers, one could say), frustrated with inaction on corruption among other issues, interrupted President Kenyatta’s state-of-the-nation address. Still, if and when the time comes for the Parliament to consider legislation in those areas, hopefully the concerns outlined above will have been addressed. Given how much ink the Task Force’s report spilt on how existing law implementation must be improved, Kenya certainly does not need any more ineffective anticorruption laws on its books.