The Whistleblower Protection Bill, 2023 (National Assembly Bills No. 56)

SPECIALISSUE

Kenya Gazette Supplement No.154 (National Assembly Bills No.56)

REPUBLIC OFKENYA

KENYA GAZETTE SUPPLEMENT

NATIONALASSEMBLYBILLS,2023

NAIROBI,1stSeptember,2023

CONTENT

| Bill for Introduction into the National Assembly- | PAGE | |-----------------------------------------------------|--------| | The WhistleblowerProtection Bill,2023 | 1587 |

THE WHISTLEBLOWERPROTECTIONBILL,

2023

ARRANGEMENT OF CLAUSES PARTI-PRELIMINARY

Clause

1-Short title and commencement.

2-Interpretation.

PARTII-ADMINISTRATION

3-General object of the Act.

4-Purposes of the Act.

5—Implementation of the Act.

6Application of the Act.

7—Responsibilities, powers and functions of the

Commission under this Act.

8-Power of the Commission.

9-Co-operation with other Agencies.

10-Immunity from legalproceedings

PART II-IMPROPER CONDUCT

11—Improper conduct to which this Act applies.

PARTIV-THE DISCLOSURE PROCESS

12-Procedures to manage and investigate disclosures.

13-Information about Act to be communicated.

14-Designated officer.

15-Disclosures protected by law.

16-Information tobe included in disclosure.

17-Disclosure to be in writing.

• 18-Action after receipt of disclosure.
• 19—Submission of a copy of written disclosure to the Commission.
• 20-Anonymous disclosures.

PARTV-REQUIREMENTS OF PUBLIC AND PRIVATE BODIES TO DEVELOP ANDPUT IN PLACE WHISTLEBLOWER POLICIES AND PROCEDURES

• 21—Duty to develop and put in place whistleblower policies and procedures.
• 22-Policies andprocedures to prohibit improper conduct and encourage disclosures.
• 23-Failure to develop and put in place whistleblower
• policies and procedures.

PARTVI-PROTECTION OFWHISTLEBLOWERS

• 24-Whistleblower protection.
• 25-Workplace reprisal.
• 26—Reprisals in relation to contracts.
• 27—Complaints of reprisal.
• 28-Confidential information.
• 29-Orders for relief.
• 30—Revocation of whistleblower'sprotection.
• 31-Reconsideration by Whistleblower Review Committee.

PARTVII-INVESTIGATION OUTCOMES

• 32—Investigation report.
• 33-Report recommendations.

PART VIII-WHISTLEBLOWER REWARD FUND

34-EstablishmentofWhistleblowerReward Fund.

• 35-Sources of Fund.
• 36-Object of the Fund.
• 37-Reward on conviction.
• 38-Reward on recovery.
• 39-Bank account of the Fund.

PARTIX-ENFORECEMENT,OFFENCESAND PENALTIES

• 40-Enforcement of Commission's orders.
• 41-Obstructing an investigation.
• 42-Obligation to make disclosure.
• 43-General penalty.

PARTX-MISCELLANEOUS

• 44Limits of disclosure.
• 45-Other obligations toreport not offered.
• 46-Exemption.
• 47-Annual Report of a public or private body to the
• Commission.
• 48-Annual Report of the Commission.
• 49-Reports at the request of a Committee of Parliament or the Cabinet Secretary.
• 50-Financing of operations.
• 51-Request for advice.
• 52-Power to make regulations.

THEWHISTLEBLOWERPROTECTIONBILL,2023

A Bill for

AN ACT of Parliament to provide for the procedure for the disclosure of information relating to improper conduct in the public and private sectors; to provide for the protection persons who make such disclosure against victimization,and for connected purposes

ENACTED by theParliament of Kenya,asfollows-

PARTI-PRELIMINARY

• 1.This Act may be cited as the Whistleblower Protection Act,2023 and shall come into force on such date as the Cabinet Secretary may,by notice in the Gazette, appoint.
• 2.Inthis Act,unless thecontext otherwise requires-

appropriate authority"in relation to a public body means the individual or body that has authority to institute disciplinary measures against a person found to have engaged in improper conduct under this Act;

"Cabinet Secretary's means the Cabinet Secretary for the time being responsible for matters relating to the administration of justice;

"chief officer"means the chief executive officer of a public or private body or any other prescribed by the regulations;

"classified information"means informationofa

particular security classification, the unauthorised disclosure of which would prejudice national security;

"clear and convincing evidence"means evidence indicating a high likelihood or substantial probability of occurrence of an action to which this Act relates;

"Commission" means the Commission on Administrative Justice established under section 3 of the Commission on the Administration ofJustice Act,2011;

"confidential information"includes- Short title and commencement.

Interpretation.

No.23of2011

• (a) the identity or location of
• i)a whistleblower or any other person who is entitled to protection in accordance with this Act,or
• (ii) a person about whom a whistleblower has
• made a disclosure of improper conduct and who is under investigation by the Commission;
• (b) information which,if disclosed,may compromise the security of a person identified in paragraph (a);

"designated personmeans a person or an institution

authorized to receive a disclosure in accordance with section 10(3) of this Act;

"disclosuremeans any disclosure of information

regarding any improper conduct,made by a person who has reason to believe that the information concerned shows or tends to show that improper conduct has been committed,is being committed oris likely to be committed;

"enforcement agency"includes-

• (a) any Government department,agency or other body set up by the National by or a County government, agency of such Ministry,department,agency or body, conferred with investigative and enforcement functions by any written law or
• including a unit,section,division,department or having investigation and enforcement powers;
• (b)a body established bylaw and conferred with investigative and enforcement functions;or
• ()a unit,section,division,department or agency of a body established by law having investigative and
• enforcement functions;

"Fund"means the Whistleblower Reward Fund established under section 26;

gross mismanagement"means management action or inaction that creates a substantial risk of significant adverse impact upon the ability of an organization,office or unit to carry out its mandate;

"health information" means any jnformation, including genetic information,whether oral or recorded in any form or medium,which-

• (a) is created or received by a health care provider, public health authority,employer,life insurer,or school or university or any other educational institution;and
• (b) relates to the past,present,or future physical or mental health or condition of an individual,the provision of health care to an individual,or the past,present,or future payment for the provision ofhealth care to that individual.

"improper conduct"means any of the activities

referred to in section 1l and any other conduct which adversely affects the public interest;

"individually identifiable health informationmeans information which is part of health information,including demographic information collected from an individual, which identifies the individual or with respect to which there is a reasonable basis to believe the information can be used to identify the individual;

"NationalEnvironment Management tAuthority" means the National Environment Management Authority established by the Environmental Management and Coordination Act,1999;

"National Environmental Complaints Committee" means the National Environmental Complaints Committee established of the Environmental Management and Coordination Act,1999;

"national security" has the meaning assigned to it

under Article 238(1) of the Constitution;

means the National Security Council established by Article 240(1) of the

"National Security Council" Constitution;

"national security organs"means the Kenya Defence Forces,the National Intelligence Service and the National Police Service established under the Constitution;

"personal information"has the meaning assigned to it under section 2 of the Access to Information Act,2016;

private body includes any person, organization, company or other non-state actor which- No.8of1999

No.31 of2016

• (a) is listed on Nairobi Securities Exchange; or
• (b) whose nature of operations affects the public interest;or
• (c) is in possession of information which is of public interest;or
• (d) is engaged in business with the government or
• with any public entity; or
• (e) is a private academic institution of higher learning;
• or
• (f) any other body prescribed by regulation for the purposes of this Act.

'public body"includes-

• (a) the Government,including the national or county government or any department, State organ, Agency,service or undertaking of the national or county government;
• (b) the National Assembly,a County Assembly or the Parliamentary Service Commission;
• (c) any corporation,council,board,commission,
• committee or otherbody whichhaspower to act relating to the national government or a county government,public health or undertakingsoof public utility or otherwise to administer funds belonging to or granted by the government or pursuance of any such law;
• (d) a public educational institution;or
• (e) any other body prescribed by regulations for the
• purposes of this Act;

"public interest"means the collective interest of governance as set out in Article 10(2) of the Constitution of Kenya, 2010;

"reprisal"means-

• (a) any action causing injury,loss or damage;

• (b) intimidation,harassment or bullying;
• (c) interferencewiththelawful employment, livelihood or freedom of any person,including by discrimination, demotion, suspension, disadvantage,terminationorother adverse treatment in relation to a person's employment, career,profession,trade or business or the taking of disciplinary action,or any other discriminatory action that would adversely affect the exercise of rights protected by this Act,and includes a threat to take any of the actions referred to in paragraphs (a),(b) (c) by any person,whether acting on their own or at the direction of any other person;

"whistleblower" means any person who has personal

knowledge of or access to any data,information,fact or event constituting improper conduct and who makes a disclosure of that information in accordance with this Act, person who assists such individual;

"whistleblowing"means making a disclosureof

improper conduct under this Act;

"whistleblower protection"means protection given to

a whistleblower or other person under this Act.

"Witness Protection Agency"means the Witness Protection Agency established in accordance with the provisions of section 3A of the Witness Protection Act, 2006.

PARTII-ADMINISTRATION

• 3.The object of this Act is to promote the public interest upholding the national values and principles of governance byprotecting whistleblowers.
• 4.The purposes of this Act are-
• (a) to facilitate the disclosure and investigation of significant and serious matters in or relating to public or private bodies, which an employee or any other person believes may be unlawful, dangerous to thepublic orprejudicial to thepublic interest;
• (b) to enhance ethics and integrity in public and private bodies,and among State officers and public officers in the case of public bodies;

No.16of2006

General object of the Act.

Purposes of the

Act.

• (c) to protect all persons who make disclosures under
• this Act;
• (d) to
• manage, investigate and make recommendationsrespecting disclosure of improper conduct and reprisals;
• (e) to promote public confidence in the administration ofpublic andprivate bodies;
• (f) to enhance the procedures and mechanisms for
• promoting the administration of justice;
• (g) to provide a framework for publicparticipation in preventing and combating improper conduct;
• (h) to reward persons who contribute to preventing and combating improper conduct;and
• the regulations.
• 5.(1) The Commission shall be responsible for the enforcement of this the Act.
• (2) In exercising any powers conferred under this Act or in implementing the provisions of this Act,the Commission shall be guided by the national values and principlesprovided forunderArticle10ofthe Constitution.
• 6.(1) This Act shall apply to all public bodies,and to such private bodies as may be determined by the Commission.
• (2) For purposes of determining the private entities to which the Act shall apply in sub-section (1),the Commission shall develop and issue guidelines on the extent to which the Act shall apply to various private bodies,regard being had to the nature,size,operations and the public interest involved in the operations of such
• bodies.
• 7.The Commission shall-
• (a) assist public and private bodies in meeting their obligations under this Act in general and under section 21 in particular;
• (b) developmodel policiesand procedures for consideration and adoption bypublic and private
• bodies,with the necessary modifications,for

Implementation of the Act.

Application of the

Act.

Responsibilities, powers and functions of the Commission under this Act.

• purposes of complying with the requirements of
• section 21;
• (c) receive and investigate disclosures of improper
• conduct;
• (d) receive and investigate complaints of reprisal;and
• (e) ensure theprotection for whistleblowers as provided in this Act
• (2) For the purpose of subsection (1) the Commission shall establish a Whistleblower Review Committeein accordance with section 18 of the Commission on Administrative Justice Act,2011,whose function shall be to receive and determine requests for reconsideration ofa decision to revoke whistleblower protection.
• (3) The Whistleblower Review Committee under
• subsection (2) shall consist of
• (i) one member of the Commission;
• (ii) one senior official of the Commission appointed by the chairperson of the Commission;and
• (iii) one senior public officer,being a person eligible
• for appointment as a judge of the High Court of Kenya,appointed by the Attorney-General.
• 8.(1)The Commission shall have power to do all
• things expedient or reasonably necessary for,or incidental to,the exercise of its general powers under this Act.
• (2) Without prejudice to the generality of subsection (1),the Commission shall havepower to-
• (a) supervise, monitor and co-ordinate all efforts related to theimplementationand enforcement of
• this Act;
• (b) subject to subsection (3), below,investigate all disclosures and complaints of reprisal made under this Act,and recommend appropriate action including prosecution if the improper conduct constitutes an offence under this or any other Act;
• (c) determinewhether a whistleblower is entitled to protection as provided in this Act,or the Witness
• Protection Act,2006;

Powers ofthe Commission.

No.16of2006.

• (d) refer requests for protection to the Witness
• Protection Agency;
• (e)undertake,in coordination and co-operation with the private and public sectors,a public awareness campaign on the provisions and benefits of this
• Act;
• (f) develop guidelines for public and private agencies to develop whistleblower mechanisms, policies and procedures in accordance with section 22;
• (g)approvewhistleblower mechanisms,policies procedures developed by public and private agencies pursuant to the provisions of section 22, and
• (h) develop and implement incentive programs to encourage whistleblowing,including making orders formonetary awards in accordance with the provisions of this Act.
• (3) The Commission may refuse to investigate a disclosure or complaint of reprisal if it determines that the allegation is frivolous orvexatious ormade in bad faith:

Provided that the Commission shall communicate its decision under this subsection to the person making the disclosure or the complaint,giving reasons for the refusal.

• (4) The Commission may develop procedures on the management and investigation of disclosures made by its members or staff or other persons.

2. (5) The powers conferred on the Commission under this Act are in addition to the powers of the Commission 3. under the Commission on Administrative Justice Act, 2011. 4. 9.(1) In the exercise of its investigative powers under this Act,the Commission may work in co-operation with any other enforcement agency or such other person as it may deems appropriate.

• (2) If the Commission shares information with any that enforcement agency or person shaii bc subject to the provisions of this Act relating to protection of confidential

6. information.

No.23of2011.

Co-operation with

other agencies.

• (3) Any person or enforcement agency to whom a

2. request for cooperation is made by the Commission shall the Commission,including undertaking an investigation conduct falls within the expertise or mandate of thatperson or enforcement agency. 3. (4)Where any person or enforcement agency 4. accordance with subsection (3),that person or enforcement agency shall prepare a report as required in section 32 of thisAct and forward it to the Commission for further action and guidance in accordance with section 33. 5. 10.No person shall be liable to any action,claim,suit or demand,whether criminal or civil,in respect of any disclosure made or anything done or omitted to be done by him in good faith in the exercise or purported exercise of a function conferred by or under this Act.

PARTIII-IMPROPER CONDUCT

• 11.The provisions of this Act shall apply in respect of the towhich this Act following forms ofimproper conduct in public or private bodies-
• (a)a contravention of an Act of Parliament or of a County Assembly,or a regulation made pursuant thereto;
• (b)an act or omission which creates a substantial and specific danger to the life,health or safety of persons,or to the environment;
• (c) gross mismanagement of public funds or a
• public asset;
• (d) bribery,corruption or economic crimes as defined in the Anti-Corruption and Economic Crimes Act, 2003 or any other written law;
• (e) misuse of public funds;
• (f)a criminal offence;
• (g)a violation of human rights and fundamental freedoms as set out in Chapter Four of the Constitution;

Immunityfrom legal proceedings.

Improperconduct

towhich this Act applies.

• (h) offer, solicitation or acceptance of any gift or other advantagewhich mightreasonably be seen toinfluence the exercise of official duties or responsibilities;
• (i) failure by a person to comply with any legal
• obligation towhich thatperson is subject;
• (j)unfair discrimination contrary to Article 27 of the Constitutionoranylawmadepursuant
• thereto;
• (k) deliberately concealing the fact that any of the above has occurred;or
• (1)knowingly directing or counselling an individual to commit improper conduct mentioned in subsections (a) to (k).
• (2)In making a determination that a person's conduct amounts to grossmismanagement under sub-section (1)(c), the Commission or other personmaking the determination shallhaveregard to-
• (a) the deliberatenature and frequencyofthe
• conduct;
• (b) the impact on the welfare of other persons in the public or private body,or department or division thereof;
• (c) the impact on the ability of the public or private body,or department or division thereof,to carry outitsmandate;and
• (d) the impact of the conduct on the public interest and trust in thepublic orprivatebody

PARTIV-PROCESS OFDISCLOSURE

• 12.(1) Every public or private body shall establish
• and maintain,in accordance with this Act,written procedures,including time periods,for managing and investigating disclosures by employees or persons the public or private body is responsible for.
• (2) The procedures established under subsection (1)
• shall include,at a minimum,the following-
• (a)proceduresforreceiving and reviewing disclosures,including setting time periods for

Proceduresto

manage and investigate disclosures.

• making recommendations to the concerned public or private body or any other person on any corrective measures that should be taken;
• (b)procedures forreferringa disclosure toan appropriate public body if the disclosure would more appropriately be dealt with;
• (c)procedures for referring a disclosuretothe Commission as soon as reasonably practicable if the designated officer reasonably believes that the matter to which the disclosure relates constitutes an imminent risk of a substantial or specific danger to the life,health or safety of individuals, or to theenvironment;
• (d)proceduresforreviewingand investigating disclosures in accordance with the principles of procedural fairness and natural justice;
• (e) procedures for investigating other forms of improper conduct if,during the investigation of a disclosure,the designated officer has reason to believe that another form ofwrongdoing has been committed ormay be committed;
• (f) procedures for reporting an alleged offence if, during an investigation of a disclosure, the designated officer has reason to believe that an offence has been committed under an Act of Parliament or of a County Assembly;
• (g)proceduresrespectingtheconfidentialityof and specific danger to the life,health or safety of
• information collected inrelation to disclosures and investigations, which procedures would apply unless there is an imminent risk of a substantial individuals,or to the environment;
• (h) proceduresfor protectingtheidentityof including an employee or a person making the
• individuals involved in the disclosure process, disclosure,individuals alleged to have committed the improper conduct and witnesses,subject to any other Act or regulation and to the principles of procedural fairness and natural justice;

• (i)procedures forreporting theoutcomes,ofnO(8)
• investigationsof disclosures;)nonoeaduzbroiemmo
• disciplinary action or corrective measures taken orlle Jedi bos directed pursuant to this Act;andeni bdnoob 2sneiemuo

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• (k)procedures respecting any other matter specified
• in the regulations.
• md02
• (3)The Commission may request the head of a public or private body to provide a copy of the procedures

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• (4) The Commission shall review the procedures concerned public or private body under subsection (l) to
• ensure thereis compliance with this Act and the regulations.
• on(5) If the Commission determines that theprocedures thecriteria setoutin subsections(1) and(2),the Fou bsdaiidata Commission shall notify the concerned public or private to esovoiqte body accordingly and direct that any future disclosures shall be made directly to the Commission until newlosl ) procedures are establishedby-theconcernedpublicor2subsoo private body and approved by the Commission. gainmoe oiidug
• (6)If the Commission determines that no procedures(l) Commission shall-
• (a)notify the head of the concerned public or privateon i1 () body thatsuch procedures must be establishedronotot A2dloroougo0o
• and
• (b)notify the employees for whom the chief officer is() responsible that any future disclosures should beoiqn ns yd made directly to the Commission until proceduresoyolame tut have been establishedby the concerned public notauoiu
• (7) Any procedures required to be established by the
• concerned public or private body pursuant to subsection (5)b A () Commission.

• Commission under subsection (7), the Commission shalloi notify the concerned public or private body of the approvaloonq () and thatallfuturedisclosures,otherthanintheieib circumstances described in section 15(1) (b) to (i),should 3onib be made to the designated officer in accordance with the approved procedures. snoisngoodn
• compliancewith thisActand theregulations.
• (9)Apublic or private body may submit the odT(8) proceduresrequired to beestablished under thissectionto houozdua1sbau bsilzildsiao
• (10)The Commisson shallinits capacity as a publcdT()
• bodydevelop proceduresonthemanagementand 1oibonimua investigation of disclosuresmadeby itsmembersor staff oduq bonsorioo otherpersons and submit the said'procedures to the Cabinet Secretary for approval. 165091002
• 13.(1) Eachhead of a publicor privatebody shalplnformation about

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the Act be communicated.

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• ensure that information about this Act and theprocedures established under section 12arewidelycommunicated to the employees oftheconcernedpublic orprivatebody.

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• procedures establishedunder section,12 are available for noizaimmoO sh yd boyorggsbneybedotevng
• (2)Each publicor private body shall ensure that the public scrutiny.

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• 14.(1) A public or private body may designate a senior Designated official tobe the designated officer for the purpose of officer. managing and investigating disclosures. 160280220
• (2)If no designation is made under subsection (1),the chief officer of the body concerned is the designatedofficer

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• for the purposes of this Act.
• 15.(1) A disclosure as defined in this Act may be made that employeeor person or public or private body has information thatthey reasonablybelieveis evidenceof improper conduct that has or may have occurred,or is likely to occur.

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• protection if the person making the disclosure commits an liero)o offence by making it.

Disclosures by

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• (3) A disclosure may,be made t9sllo ylimst sr lo odmer s (v)

• (a) the Commission;

• nowoldohteidw s tooyolqme rs()

• (b) the Presidency; 1obssl20oigilo16(66)

• (c)Parliament; 0nooiba inobesnelo bsod si (dd)

(d) the Judiciaryauger yd bsdir ybod o riozoq orloas (oo)

• a Commissionor Independent Office established ysm su2olozib

• under Chapter 15 of the Constitution;

• (f)a Cabinet Secretary;the Attorney Generali srori orbrtw(6)

• g) theDirector of PublicProsecutionsoldsliaidwsrlttonsq

• moianogauz lsz2ieibo1botojdueodyem

• (i) a Member of Parliament; Jnemyoigmo1ooslg

• (j)amemberof oCounty Executive on Countydoriv(d)

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• (k) an officer of the National Intelligence Service;

• (l)a police officer;

• (n) theNationalAuthorityforCampaignAgainstuor92 Alcohol jiivlsobonoe

• (o)and DrugAbuseio gilivsq di bie idvosiq o(e)

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• (p) the Kenya Revenue Authority;

• (q) the National Environment Management Authority; luzolsaib

• (r) theNational Environmental ComplaintsCommittee;sue2

• (s)the Chief Executive Officerofapublic body;2eoquq o (2)

• of Parliament;

• (v) the Media Council of Kenya: oloeib6obsmear co2ioqsli (d)

• (w)a registered newspaper or media house;i25auboooiq an

• (x) the head ofa publicor a privatebody or aociviizsvni society organization; peeucowbeico

• (y)a member of the family of the whistleblower;
• (z) an employer of a whistleblower;
• (aa) a religious leader;
• (bb) the head of an academic institution,or,
• (cc) any other person or body prescribed by regulation.
• (4)Indeterminingthe person or bodytowhoma disclosure may bemade,a whistleblower shall take intoo account10bou
• (a) whether there is a reasonable belief or fear on theides(t) may besubjected to dismissal,suspension, harassment,discrimination or intimidation in the place ofemployment; lnYio#odmsMs 0
• (b) whether there is a reasonable belief or fear thatr s1) evidence relevant to the improper conduct may ben2A concealed or destroyed;
• tonl isnom
• (c)whether the person to whom the disclosure is made is likely to frustrate the objective;
• (d) whether the impropriety is of an exceptionally
• seriousnature so that expeditious action should be taken to deal with it; 1OHOSA
• (e) the place where and the prevailing circumstances bns (o) under which thewhistleblower lives;and
• (f) the security clearance of the person receiving the disclosure,if the intended disclosure touches on an issueofnationalsecurityootmnm
• (5) For purposes of this section,a person may make a
• disclosure directly to the Commission only-
• (a) if no procedures have been established by the Commission or thepublic orprivate bodyin which the person is employed;
• (b) if a person has made a disclosure in accordance with the procedures established under section 12 and an investigation in respect of the disclosure has not been completed dinaccordancewiththose procedures;

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100

• (c) if the person has made a disclosure in accordance with the procedures established under section 12 and thematter hasnotbeen resolved within the time periods established under those procedures or the Commission has determined that those procedures do not meet the criteria set out in section 16 and 47;
• (d) if the person is dissatisfied with the final decision issued following a disclosure madepreviously;
• (e) if the subject-matter of the disclosure involves the supervisor or the chief executive or head of the public or private entity where the person works;
• (f) if the person reasonably believes that a matter presents an imminent risk of a substantial and specific danger to the life,health or safety of individuals,or to the environment,such that there is insufficient time to make a disclosure to another body or person;
• (g) if the person has made a disclosure in accordance with the procedures established under section 12 and is unable to complete the procedures because a reprisal has been taken or directed against the person;
• (h) if the person reasonably believes that a reprisal is likely to be taken or directed against them if the disclosure is made to any other person or body; or
• (i) in such other circumstances as may be prescribed in the regulations.
• (6) With respect to a disclosure made under the procedures described in section 12(2) (c) or subsection (5) (f),if in the opinion of the Commission there is an imminent risk of a substantial and specific danger to the life,health or safety of individuals or to the environment,the Commission shall investigate thematter or refer the matter for has a legal mandate to investigate and conclude the matter.

Provided that where the disclosure contains classiffied for handling such information, the procedure prescribed information shall be complicdwith

• (7) Any person who deliberately and voluntarily gives false or misleading information in connection witii a

disclosure of improper conduct commits of an offence and is

liable on conviction to imprisonment for a term not exceeding fourteen years or a fine not exceeding ten million shillings or both.

• 16.(1) A disclosure made under this Act shall contain as far as practicable-
• (a) the full name and contact informationof the whistleblower,unless the disclosure is made anonymously;
• (b) the nature of the improper conduct in respect of which the disclosure is being made;
• (c) identifying details of the person alleged to have engaged in improper conduct,including the name and contact information if known;
• (d) the time and location where the alleged improper
• conduct is taking place,took place or is likely to take place;
• (e) identifying details of any other person who may have witnessed or have information regarding the improper conduct,including the name and contact information if available;and
• (f)if the disclosure is related to the whistleblower's
• employment,whether the whistleblower remains in that same employment.
• (2)TheCommissionmayrequestsuch further information or particulars from the person making the disclosure as may be required for investigation.
• 17.(1) All disclosure made under this Act shall far as possible be in writing,and where a whistleblower makes a disclosure orally,the person to whom the disclosure is made shall cause the disclosure to be reduced into a written statement containing the particulars specified in section 16.
• 2)The written statement made under subsection (1) shall be read over,interpreted and explained to the whistleblower in a language the whistleblowerunderstands, and the whistleblowershall affirm that the information contained in the statement is true to the best of their knowledge,information and belief,before appending their signature ormark on it.

Information tobe included in disclosure.

Disclosure tobe

in writing.(1)

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nbned Actionafter receipt of disclosure.

• 18.(1) When a disclosure is made under section 15(3),
• the person to whom it is made shall-
• (a) make a record of the time and place where the disclosure is'made;
• (b) give to the whistleblower an acknowledgment of receipt of the disclosure in writing; and
• (c)keep the statement received confidential and in safe custody pending investigation of the disclosure.
• (2) Where the disclosure ismade to a person or body thatisnotmandated to carry out theinvestigation,thatperson or body may instead ofrecording the disclosure as required under subsection (l) assist the whistleblower to make the disclosure to the Commission or any other appropriate authority.
• (3) Where a disclosure touching on a public officer is made directly to the Commission pursuant to the provisions ofsection 15(5),the Commission shall
• (a) unless the disclosure implicates the chief officer of the publicbody complained against,refer the matter to the chief officer of the concerned public body seeking a written response on the matter within a period of thirty days of the notification;
• (b) if upon the expiry of the thirty days'notice issued under paragraph (a),theconcernedpublic body shall not have responded,or if the Commission is dissatisfiedwiththeresponseprovided,the Commission shall proceed toinvestigate the disclosure and conclude the matter as appropriate.
• (4) Any person to whom a disclosure is made and who fails to keep the disclosure confidential,commits an offence and is liable on conviction to a fine not exceeding tenmillion shillings or to imprisonment for a term not exceeding fourteen years or both.
• 19.Where a disclosure is made to a person specified under section 15,other than the Commission,the person receiving it shall submit a copy of the written disclosure to the Commissionwithinsevenworking days afterreceipt
• 20.(1) A disclosure maybemade anonymously,but the
• requirement for particulars in writing and a mark affirming

Submission of a copy ofwritten disclosuretothe

Commission.

Anonymous

disclosures.

the person's honest belief in thetruth of the information shall

equally apply to such disclosures.

• (2) The Commission,or other enforcement agency.or person as the case may be,shall investigate an.anonymous disclosure to the best of its ability given the information provided.

PARTV-REOUIREMENTS OF PUBLIC AND PUBLICBODIES TO DEVELOP ANDPUTINPLACE WHISTLEBLOWERPOLICIESANDPROCEDURES

• 21.(1) A public or private body shall develop and put in place put in place whistleblower policies and procedures appropriate to its size and whistleblower the scale and to the nature of its operationspoliciesand procedures.
• (2) The Commission shall assist public and private bodies,and any other interested person,to develop and put in place appropriatewhistleblowerpoliciesandprocedures.
• 22.(1) Within six months of the coming into force of
• this Act,the Commission shall issue guidelines to public and private bodies on requirements to be put in place to give effect to this Act.
• (2) The guidelines issued in sub-section (1) above
• may-
• (a) include a procedure for confidential disclosures to be made to the Commission or a person other than the designated person,if the designated person is implicated in the improper conduct;
• (b)provide guidance on the determination of the status,qualifications,duties and responsibilities of a designated officer forpurposes of thisAct;
• (c) describe procedure for receipt of disclosures and
• referral
• (d) to the Commission as required in sub-section (3);
• (e) state that information received about improper conduct,including identifying information about any individuals involved,shall not be disclosed to any person other than the Commission for the purposes of investigating the disclosure,or as may otherwiseberequired by law;

Duty todevelop andput inplace whistleblower

policies and procedures.

Policies and proceduresto prohibitimproper conduct and encourage disclosures.

• (f state thatthe personwho hasmadea disclosurerrid) will be informed of the results of the investigation and oi any action that has been taken or thatwill (bxoecnous be taken as a result of the investigation;
• 020TWO (g) clarify the size and the scale and the nature of operations of public and private bodies whichmay be required to have in place the whistleblower policies and proceduresrequired in section12 andniv 21;

OL

• (h) include the definition of reprisal in section 2 of thisAct and theprotections for whistleblowers setoi out in Part VI of this Act;
• associated penalties set out in this Actsile o biuil sd o licr
• (j) the reports which public and private bodies may be required to submit to the Commission,under section 47 or any other provisionor law,to demonstrate complianceor otherwisewith the requirements of this Act;and
• (k) includeany other elementsprescribedby regulation.
• (3) The guidelines issued by the Commission under this section shall be binding on public and private bodies.
• guidelines issued under this section to develop their own Commission.
• 23.(1) It shall an offence for a public or private body to fail to develop and put in place whistleblowers policies and procedures as required in Section 12 and 21.
• (2)Notwithstanding subsection (1),it shall be a defence for a public or private body to prove that it had in
• place adequate procedures designedto facilitate whistleblowing and to prevent improper conduct.

PARTVI-PROTECTION OF WHISTLEBLOWERS

• 24.(1) A whistleblower shall be entitled to-
• (a) confidentiality of the information given;

Failure to develop whistleblower

and put in place policies and procedures.

Whistleblower protection.

• (b) immunity from civil or criminal liability in relation isi()

d sd eli onsynbs

• 1otboiiups od
• to the disclosure;and opnz1d1oboimotmoi
• (c) protection against reprisal.
• msh tonoeotre (2) For the purpose of subparagraphs (1)(a) and (c), protection shall be extended to any person who may be in need ofprotectionODGLoIOD2
• (b) on account of evidence given by the whistleblower; or
• nonulsbcd sbulo (c) for any other reason which the Commission mayir consider sufficient.
• (3) Subject to section 29,the protection in this section shall not be limited or affected in the event that the disclosure doesnot lead to disciplinary action or prosecution of a person against whom the disclosure has been made.

1028

• (4) Subject to section 29,the motive or intention of a whistleblower in making a disclosure is not a consideration in whether thewhistleblower or any other person is entitled to protection in accordance with this section.
• (5) Upon determination by the Commission thata whistleblower hasreasonable cause to believe thathis orher life or property or the life or property of a member of his orT) her family is endangered or likely to be endangered as a.de noioa irl result of the disclosure,the Commission may refer the matter
• 2790 25.(1) No employer,person acting on behalf of an

jilebt02 Workplace reprisal.tizinw

oremmoo

• to the Witness Protection Agency.
• employer,or any other person may discharge,demote, suspendtransfer,threatenorharass,directlyrindirectly,r terms and conditions of employment because the person provided information in accordance with this Act.
• (2) Subsection (1) shall apply in respect of any person
• (a) by virtue of being related to a whistleblower; or givroldohzidv

BVBLAI-IC

1009(6

• (b) because the person,being an employee,refuses to follow ordersfrom senior employer orother person gwoldsi acting on behalf of an employer,which would cause the employee to violate this Act;or ri

• (c) for any other reason which the Commission may (1).8S consider sufficient. 200190911029X6100(8)
• (3) For the avoidance of doubt,a person who is an applicant for employment ora former employee shall be entitledtoprotectionfromworkplacereprisal.

sldod

26. No person acting or purporting to act on behalf ofReprisal inrelation tocontracts. any public or private body shall- 2. (a) terminate a contract; 3. (b) withhold a payment that is due and payable under a contract;or

refuse to enter into a subsequent contract,because a party to the contract,or an employee of orperson related to a party to the contract,is or has been or is found tobe a whistleblower

• 27.(1) A whistleblower may make a complaint to the against the whistleblower or against any person entitled to protection in accordance with this Act.
• (2) A person is deemed to commit acts of reprisal if
• (a) the person takes or threatens to take such acts
• because-
• (i)a whistleblower has made a disclosure of improper conduct;or
• (ii) the person believes that a whistleblower has madeor intends tomakea disclosureof improper conduct;or
• (b) the person incites,instructs or permits another person to take or threaten to commit such acts for any reason under subparagraph (a)(i) or (i)
• (3) A person who commits acts of reprisal commits an offence unless the person demonstrates by clear and convincing evidence that they would have reasonably taken the same action in the absence of the actual or perceived
• disclosure.
• (4) Any person who is determined to have engaged in acts of reprisal commits an offence and shall be liable,on conviction,to a fine not exceeding ten million shillings or to imprisonment for a term not exceeding fourteen years or
• to both.

ennsbttaoo

sdvhiodu

raolnt

Complaints of reprisal,

• 28.(1) Apersonwhocaddidwozsodo
• (a) makes or receives a disclosure; or

Jnsiomue1 biuloo

• (b) obtains confidential information in the course of investigation
• intosuchdisclosure,shallnot disclose the confidential information or any part thereoftoany otherperson.hogugogeo
• (2) If any evidence in any civil,criminal or other proceedings in relation to this Act contains or relates to confidential information,the court,tribunal or other authority before which the proceedings are being held shall, unless it considers that the interests of justice require
• otherwise-
• (a) hold that part of the proceedings which relates 'to
• confidential information in private;and,
• (b)make such order to suppress the publication of evidence given before the court,tribunal or other
• authority as,in its opinion,shall ensure that the confidential information is not disclosed,which may includebutnot be limited to-
• (i) that the confidential information be redacted from any documentary evidence that forms partof the public record;
• that no witness in the proceedings,including 11 a whistleblower,shall be required to answer a question,give any evidence,or provide any information,which may lead tothedisclosure
• ofconfidential information;and,i
• (ii) that no person involved in the proceedings or make a statement which discloses or could
• shall,during the proceedings,ask a question disclose confidential information.2
• (3) Any term of any settlement arising from a claim obligation of confidentiality on any party to the settlement
• under this section,insofar as it purports to impose an in respect of information which is accurate and which was or was proposed to be disclosed, shall be unenforceable.
• (4)Inanyproceedingsfor anoffence for

Confidential information.

A

m

COUARG

hod.o the disclosure of information,it shall be a defence to show that-

• (a) in the circumstances,the disclosure was in the public interest;and
• (b)where the offence is alleged to have been committed by a publicofficer or a Government contractor andinvolvesthedisclosureof information obtained by the person in the person's position as such,the defendant had reasonable grounds to believe that the information was true before making the disclosure.
• (5)Any person who,without lawful excuse, liable on,conviction,to a fine not exceedingten million
• contravenes subsection (1) commits an offence and shall be shillings or to imprisonment for a term not exceeding fourteen years or to both.
• 29.(l)The Commissionmay uponreceiptof information under this Act order the following interim and final reliefs necessary to remedy a violation of this Act-
• (a)referral of a whistleblower or any other person entitled to protection in accordance with this Act to theWitness Protection Agency,if the circumstances prescribed bysection 3of the Witness Protection Act apply;
• (b) reinstatement to a position lost as aresult of
• workplace reprisal;
• (c) compensation for loss of income;
• (d) specific performance of contractual obligations; or
• (e) that any person specified in such order desist from contacting the whistleblower or any other person entitled to protection under this Act for such specified period as may be necessary in the circumstances.
• (2) The Commission may apply to the High Court for any other order that may be reasonably necessary to remedy a violation of this Act.
• 30.(1) The Commission may revoke the protection
• conferred accorded to a whistleblowerunder this Actif it is determined that-

Ordersforrelief.

119190

Revocation of

whistleblower's protection.

• (a) the whistleblower participated in the improper conduct complained about;
• (b) inthedisclosureofimproperconductthe whistleblowermade a material statementwhich he
• or she knew or believed to be false;
• (c) the information disclosed is frivolous or vexatious,
• or
• (d) the disclosure principally involves questioning the merits ofpolicy,except that protection may exist for disclosing the probable adverse consequences
• ofa policy on the public interest.
• (2) Where whistleblower protection is revoked, the
• Commission shall give the whistleblower written notice to that effect and the reasons therefor,and shall advise the

31. (l) Any person aggrieved by a decision of the Commission to deny a request for interim or final relief,or revoking whistleblowerprotection, may request reconsideration of the decision within thirty days of the decision.

• (2)A request for reconsideration shall be submitted in writing to theWhistleblower Review Committee and shall
• indicate-
• (a) the basis upon which the request is made;
• (b) submissions in support of the request;
• (c) materials, if any,in support of the request; and
• (d) the relief or protection measure being sought.
• (3) A request for reconsideration shall only be granted where the Whistleblower Review Committee is satisfied
• that-
• (a) there are new facts or evidence that could not reasonably have been provided earlier;or
• (b) the person seeking reconsideration was not afforded adequate opportunity to disclose information that could have affected the Commission's decision.
• (4) Where theWhistleblower ReviewCommittee refuses to grant the request for reconsideration,it shall

Reconsideration

bywhistleblower Review Committee.

• communicate the refusal and reasons therefor in writing to the person making the request within fourteen days of the decision.
• (5) In reconsidering a decision to deny relief or revoke whistleblower protection,the Whistleblower Review Committeemay-
• (a) make a decision on the substance of the request without further information;or
• (b) investigate the matter further,including speaking again to any person who had previously been interviewed,or conducting an interview with any other person.
• (6) A final decision on the substance of the request for reconsideration,the reasons therefor, andsuch consequential orders as may be necessary to give effect to the decision shall be communicated in writing by the Whistleblower Review Committee to the person who has requested reconsideration within sixty days of receiving the request.
• (7) Any person aggrieved by the decision of the Whistleblower Review Committee may appeal to the High Court.
• (8) The High Court may make an interim or final order with respect to the request made,and may also make such consequential orders as necessary to give effect to the order.

PART VII-OUTCOMES OFINVESTIGATION

• 32.(1) Upon concluding an investigation into a
• disclosure or complaint of reprisal under this Act, the Commission shall prepare a report which shall contain-
• (a) the findings of the investigation; and
• (b) recommendations for further steps if any,to be
• taken,based on the findings of the investigation.
• (2) If a finding is made that improper conduct has occurred,the report in (1),including the identity of the wrongdoer,shall bepublicly disclosed by the Commission.
• 33.(1) If the investigation finds that-—

Investigation report.

Report on recommendations.

• (a) the disclosure is not substantiated,the Commission
• shall inform the whistleblower in a preliminary determination and seek comments before finalizing the matter;or
• (b) the improper conduct constitutes a criminal offence, the Commission shall refer the matter to the Director of Public Prosecutions,and in the case
• where-
• (i) the Director of Public Prosecutions decides to prosecute; the Director of Public Prosecutions shall report periodically to the Commission on the status of the prosecution until the matter has been finally disposed of;or
• (ii) the Director of Public Prosecutions decides not
• to prosecute;the Director of Public Prosecutions shall furnish the Committee with reasons in writing for that decision.
• (2) If after considering any information provided by the appropriate authority it appears to the Commission that insufficient steps or no action hasbeen taken to give effect to the finding or recommendation as required under subsection (1) (b), the Commission may submit a report to the Cabinet Secretary responsible for that public body,on the investigation,findings,recommendation and theresponseby the appropriate authority.
• (3) The Commission shall inform the whistleblower of the result of the investigation and or other action taken pursuant to subsection (l) (b) above.

PARTVIII-WHISTLEBLOWER REWARDFUND

• 34.There is established by this Act a Whistleblower Reward Fund.
• 35.The Fund shall consist of-
• (a) monies appropriated by the National Assembly;
• (b) monies received by the Fund as grants, donations or gifts from nongovernmental or non-public
• sources;
• (c) income generated by investments made by the
• Board of Trustees;

Establishment of the Whistleblower Reward Fund.

Sources of the

Fund.

• (d) interest accruing from the Fund;
• or lent to the Fund.
• 36.The object of the Fund is to provide funds for
• payment ofmonetary rewards to whistleblowers.
• 37.A whistleblower who makes a disclosure which leads to the arrest and conviction of an accused person shall be rewarded with money from the Fund.
• 38.(l)A whistleblower whose disclosure results in the recovery of an amount ofmoney or asset shall be rewarded from the Fund-
• (a) where the money is recovered,with ten percent of the amount ofmoney recovered,or
• (b) in the case of the recovery of an asset,with ten percent of the value of asset recovered,or
• (c) such other amount of money as the Commission may determine.
• (2) Notwithstanding subsection (1),the Commission may in cases where it is just to do so, grant monetary reward to a whistleblower whose disclosure does not fall within sub-section (1)(a) or (b).
• 39.Moneys for the Fund shall be paid into a bank account opened by the Commission with the approval of the Cabinet Secretary responsible for financial matters.

PARTIX-ENFORCEMENT,OFFENCESAND

PENALTIES

• 40.The Commission or any other person may apply to the High Court for enforcement of any order made by the Commission in accordance with this Act,including an order of theWhistleblowerReview Committee.
• 41.Any person who-
• (a) without justification or lawful excuse,obstructs, hinders,assaults or threatens a person acting under
• this Act;
• (b) deceives or knowingly misleads the Commission or a person acting under this Act, including by creating any false record or other evidence;

Object of the

Fund.

Reward on

conviction.

Reward on

recovery.

Bank account of

the Fund.

Enforcement of Commission's

orders.

Obstructing an investigation.

• (c) destroys,alters,conceals or removes documents, records or evidence that the person believes,or has grounds tobelieve,may be relevant toan
• investigation or proceeding under this Act;
• (d) makes false accusations to the Commission or a
• person acting under this Act;or
• (e) directs,counsels or causes, in any manner,a person to do anything mentioned in paragraphs (a) to (d),

commits an offence.

• 42.Any person who has knowledge that improper conduct has occurred or is likely to occur and who does not make a disclosure under this Act within two days thereof, commits an offence.
• 43.Any person who commits an offence under this Act for which no penalty is expressly provided,shall on conviction be liable to a fine not exceeding five million shillings or to imprisonment for a term not exceeding seven years or to both.

PARTX-MISCELLANEOUSPROVISIONS

• 44.(l) Nothing in this Act authorises the disclosure of-
• (a) information or documents that would disclose the deliberations of the Cabinet or a committee of the Cabinet or the National Security Council or a Committee of the Council,or the proceedings of any of them;
• (b) information that is protected by advocate-client
• privilege;
• (c) in the case of a disclosure under section 15(5)(f)-
• classified information,within the meaning of the laws set out in the Schedule,or any other informationwhichissubjectto any restriction created by or under any other written law,or
• ii any personal information or individually
• identifying health information,or

Obligation to make disclosure.

General penalty

Limits on

disclosure.

• (iii) any information,document or matter or any class of information,documents or matters prescribed in the regulations.
• (2) The Cabinet Secretary may by order in the Gazette amend the Schedule.
• (3) Nothing in this Act authorizes the Commission or a public or private body or a designated person to publicly disclose personal information or individually identifying health informationunless,intheopinionofthe Commission or a public or private body or a designated person,it is necessary to disclose that information in order to carry out his or her duties and functions under this Act.
• (4) Any person who knowingly discloses information whose disclosure is limited under this section,commits and offence and is liable,on conviction,to a fine not exceeding five million shillings,or to imprisonment for a term not exceeding sixyears or both.
• (5) It shall be a defence to a charge under subsection (4) that the disclosed information limited under sub-section (1) was already in the public domain at the time of the disclosure.
• (6) The Cabinet Secretary shall,in consultation with the Commission and the national security organs,make regulations respecting the procedures and mechanisms for the handling of classified information and the management and investigation of disclosures which would have been made and concluded,but for the limitations provided for under this Section.
• 45.Nothing in this Act relating to the making of a disclosure shall be construed as affecting the obligation of regulation to disclose,report or otherwise give notice of any matter.
• 46.(1) The Cabinet Secretary may,by notice in the Gazette,exempt any person,class of persons,public entity, information,record or thing from the application of all or any portion of this Act or the regulations,subject to such conditions as the Cabinet Secretary may deem fit.
• (2) The Cabinet Secretary shall provide reasons for giving an exemption under this section and shall ensure that

Other obligations toreportnot affected.

Exemption.

the exemption, including any terms or conditions are made

available to the public.

47. (1) Subject to any limitations provided 1or under this Act or regulations,every public or private body shall at the beginning of each year prepare and submit to the Commission a report on all disclosures made to it in the preceding year.

• (2) The report under subsection (1) shall include the followinginformation-

3. (a) the number and nature of disclosures received by the publicor private body,the numberof disclosures acted on and the number of disclosures not acted on by the public or private body; 4. (b) the number of investigations commenced by the public orprivate body as a result of such disclosures; 5. (c) the status of investigations into the disclosures taken up for investigations; 6. (d) in the case of an investigation that results in a finding of improper conduct,a description of the improper conduct and anyrecommendationsmade or corrective measures taken in relation to the improper conduct or the reasons as to why no 7. corrective measure was taken; 8. (e) the average number of days taken by the public or private body to determine the appropriate mode of 9. disposal of disclosures received by it;and 10. (f) the number of full-time staff of the public or private body devoted to handling disclosures and the total amount of funds expended by the body for processing such disclosures.

• (3) The report under subsection (1) shall be included in the annual report of the public or private entity if the annual report is made available to the public,and where it is not, the chief executive officer of the public or private body shall make the report under subsection (l) available to the public on request.

12. 48.(1)The Commission shall report annually to the 13. National the Assembly on the exercise and performance of

Annual report of a

public or private body to the Commission.

Annual Report of

the Commission.

• the functions and duties of the Commission under this Act, setting out-
• (a) the number of general inquiries made to the Commission relating to this Act;
• (b) the number of disclosures received by the Commission under this Act,the number of disclosures acted on and the number of disclosures not acted on by the Commission or by a public or private body;
• (c) the number of investigations commenced by the Commission or a public or private body under this
• Act;
• (d) the number of recommendations the Commission has made and whether the public or private bodies towhich the recommendations relatehave complied with the recommendations;
• (e) the number of complaints of reprisals received by the Commission or a public orprivate body under this Act,the number of complaints of reprisals acted on and the number of complaints ofreprisals not acted on by the Commission or by a public or private body;
• (f) whether,in the opinion of the Commission,there are any systemic problems that may give rise to or have given rise to improper conduct;
• (g)a summary of the reports of public and private bodies on the disclosures received and action taken, including action taken in response to reprisals;
• (h) an assessment of the compliance of public and private bodies with the provisions of this Act or its regulations;and
• (i) any recommendations for improvement that the
• Commission considers appropriate.
• (2) The report under subsection (1) shall be given to the Speaker of the National Assembly,who shall table a copy of it in the National Assembly within two months after receiving it if the National Assembly is then sitting or,

if it is not, within one month after the start of the next sitting.

• (3) Where it is in the public interest to do so,the Commission may publish a special report relating to any matterwithin thescope Commission's to and commenting on any particular matter investigated by
• responsibilities under this Act,including a report referring the Commission.
• (4) The Commission shall make its report under sub-
• section(l) available to thepublic
• 49.(1) A committee of Parliament may,at any time, refer to the Commission for investigation and report any petition or matter that isbefore the committee for consideration thatmay relate to improper conduct to which this Act applies.
• (2) The Commission shall pursuant to subsection (1)
• (a) subject to any special directions of the committee. investigate the petition or matter referred to the Commission insofar as it is within the scope of the Commission's mandate pursuant to this Act,and
• (b)make any report to the Committee that the
• Commission thinks fit
• (3) The Cabinet Secretary may,at any time,refer to
• the Commission for investigation andreport any matter that is within the scope of the mandate of the Commission pursuant to this Act.
• (4) Where the Cabinet Secretary makes a request
• under sub-section (3),the Commission shall-
• (a) subject to any special directions of the Cabinet Secretary,investigate the petition or matter referred to the Commission insofar as it is within the scope of the Commission's mandate pursuant to this Act,and
• (b) make any report to the Cabinet Secretary that the
• Commission deemsfit.
• (5) Where a reference is made to the Commission
• under sub-section (1) or (3) and the Commission concludes

Reports at request ofa Committeeof Parliament or the

Cabinet Secretary.

that it does not have a mandate over the matter,it shall refer the matter,to the body that is mandated by law to act on the matter and the body to which the matter is referred shall act on the request and provide a report to the Commission or the National Assembly,as the case may be.

50. The expenses incurred in the implementation of this Act or the regulations shall be borne by the Commission. 51. Any person or public or private body may seek advice from the commission on the implementation of this Act or a particular provision thereof. 3. 52.(1) The Cabinet Secretary may make regulations for the better carrying out of the provisions of this Act. 4. (2)Without prejudice to the generality of the subsection (1),the Cabinet Secretary may make regulations relating to- 5. (a) the procedures to be followed by a public or 6. private body or designated persons or by the Commission in managing andinvestigating disclosures and reporting theoutcomeof investigations,including setting time periods for action; 7. (b) disclosures to the Commission,including when a person may make a disclosure directly to the Commission,and the circumstances and procedure generally for making a disclosure; 8. (c) instructions by the Commission for a public body to investigate a disclosure which has been made directly to the Commission pursuant to the provisions of section 17(3); 9. (d) disclosures by the employees of the Commission, including when an employeemay makea disclosure directly to the Chairperson or the Secretary of the Commission,or an external agency,and the circumstances and procedure generally for making such a disclosure; 10. (e)prescribing the procedure for referring a matter that constitutes a threat to national security or an imminent risk of a substantial or specific danger to

Financing of operations.

Request for

advice.

Power to make regulations.

• life,health or safety of individuals or to the

environment,including persons to whom the matter may be referred and the time period for referring those matters;

• (f) designating persons or institutions which may
• receive disclosures under this Act;
• (g)prescribing other information to be included in a
• disclosure;
• (h) prescribing circumstances in which the Commission is not required to investigate a disclosure;
• prescribing the time periods for an investigation into the allegations raised in a disclosure by the Commission or any other person or entity;
• (j) for the exemption of any person,class of persons,
• public entity,information,record or thing from the application of all or any part or provision of this Act;
• (k)prescribing the forms for making complaints respecting reprisals;
• prescribing the circumstances in Commission may investigate a respecting a reprisal;
• which the complaint
• (m)prescribing any information,document,matter or classes of information,documents or matters which should not be included in a disclosure under
• this Act;
• (n) respecting the collection,use and disclosure of information,including personal information and individually identifying health information,for the
• purposes of this Act;
• (o) prescribing forms for any request,notice, order, declaration or other matter under this Act;
• (p) providing for the service or delivery of any request,notice,order,direction,instruction, requirement or other thing lawfully done under this Act;
• (q) prescribing elements to be included in a procedure established in accordance with section 13 of this
• Act;

• requirements,criteria orother elements to be included in the Whistleblower reward program,including the payment of awards from the Fund,as provided for in Part VIll of this
• (r)prescribing Act;
• (s)public education on whistleblowing;and
• (t) any other matter incidental to the foregoing.

SCHEDULE

(S.44(1)(c)

LAWS RELATINGTO CLASSIFIED INFORMATION

• 1.The National Security Council Act,2012 (No.23
• of2012).
• 2.The National Intelligence Service Act,2012 (No.
• 28of2012).
• 3.The Kenya Defence Forces Act,2012 (No.25 of
• 2012).
• 4.The Access to Information Act,2016 (No.31 of
• 2016).

MEMORANDUMAND OBJECTS OF REASONS

The object of this Bill is to set out the procedures for the disclosure of information on improper conduct within the public or private sectors,and to provide for the protection of the people making such disclosures (whistleblowers).

Part I of the Bill has preliminary provisions which include definitions of terms."Improper conduct" is defined to include among other things,contravention of the law,acts which may endanger the life,health or safety of the members of the public,mismanagement of public funds, bribery and corruption,and acts which violate the Constitution.

Part II of the Bill provides for the administration of the Act.The Act when passed by Parliamentwill be administered by the Commission on Administrative Justice established under the Commission on Administration of Justice Act, 201l,which shall co-operate with other appropriate agencies in this process. The Act provides immunity from legal proceedings for a person making any disclosure under the Act.

• Part Ill of the Act sets out the forms of improper conduct and gross misconduct to which the Actrelates.
• Part IV of the Act requires every private or public body to establish and maintain written procedures for the investigation of disclosures of improper conduct made by employees or other persons. Clause 15 in this part sets out the bodies and offices to which disclosures may be made. Clause 16 specifies what information should be put in the disclosure.

Clauses 18 and 19 set out the procedure for forwarding information to the Commission. Clause 20 provides that disclosures may be made anonymously.

• Part V of the Bill requires public and private bodies to put in place whistleblower policies and procedures according to their size,in line with guidelines to be issued by the Commission.

Part VI of the Bill provides for the protection of whistleblowers. It provides for confidentiality of information,immunity from liability and protection against reprisals of any form as a result of the disclosure.

Clause 28 enjoins whistleblowers and those to whom disclosures are made to observe confidentiality.In addition,the Clause requires that confidentiality beobserved where informationreceived froma whistleblower is presented as evidence in a court case. Clause 29 of the Bill sets out the interim orders the Commission may make upon receipt of a complaint. These include reference to the Witness Protection Agency, reinstatement to a position lost as a result of workplace reprisal,and compensation for loss of income among others.

Part Vll of the Bill provides for the outcomes of an investigation by the Commission,The report of the Commission may recommend prosecution where appropriate or call upon the body in respect of which a complaint is made to take the necessary action.

Part Vill of the Bill provides for the establishment of a Whistleblower Reward Fund to be operated by the Commission to provide rewards to whistleblowers where a disclosure leads to recovery of money

oran asset.

Part IX of the Bill prescribes penalties for offences against the Act, including making of false disclosures,misleading the Commission,or failing to make a disclosure while being aware that improper conduct has occurred or is likely to occur.

Part X of the Bill provides limits on disclosure under the Act. The Bill shall not authorize the disclosure of information relating to national security,classified information under specified law,or personal health information except in certain circumstances. This part also empowers the Cabinet Secretary to exempt classes of persons,public entities,and any information or record from the application of the provisions of the Act, with reasons for the exemption which shall be given to thepublic,

Annual reports under the Act are to be made-

• (a) by public and private bodies to the Commission on all disclosures
• made to them during the preceding year;and
• (b) by the Commission to the National Assembly, detailing,among others things, the number if disclosures made in the preceding year,the investigation conducted and the outcomes.In addition to the above a Committee of Parliamentmay refer a matter to the Commission for investigation and report.

Statement on the delegation of legislative powers and limitation of fundamental rightsand freedoms

Clause 52 of the Bill provides that the Cabinet Secretary may make Regulations. The Bill therefore delegates legislative powers to the Cabinet Secretary. The Bill however does not limit fundamental rights and freedoms.

Statement that the Bill does not concern County Governments

The Bill does not concern County Governments in terms of Article 110(1)(a) of the Constitution as it does not contain provisions affecting the functions and powers of County Governments recognized in the Fourth Schedule to the Constitution.

Statement that the Bill is a money Bill within the meaning of Article 114 of the Constitution

The enactment of this Bill shall occasion additional expenditure of public funds,to be provided through the estimates.

Dated the 22nd August,2023.

IRENEMUTHONIKASALU, Member ofParliament.