The threshold for whistleblowing was taken a notch higher after courts slapped former PS Governance and ethics John Githongo with a hefty Sh27 million fine for failure to adduce ironclad evidence on the Anglo leasing case.
The setback that befell the former anti-corruption czar has put the spotlight on the whistle-blowers who have been volunteering information on the war against graft.
In a stroke of pen, the High Court ruling gave caution to informers including the opportunists something to ponder about.
With reports that some unscrupulous characters could have connived to use the graft war to wage political war and ruin careers and reputations.
Former Internal Security Minister Chris Murungaru had gone to court claiming that the dossier by the former PS in President Mwai Kibaki’s government tarnished his good reputation.
He told the court that a parliamentary watchdog committee had cleared him of all claims related to the Anglo Leasing scandal.
While making the ruling, Justice Joseph Sergon ordered Githongo to pay the amount in full, failure to which it will attract interest at the court’s rates.
The case arose from the Anglo Leasing scandal in which the Government paid billions of shillings in ghost security printing contracts in a case that has lasted 13 years, the court found that Githongo defamed the former Internal Security minister in a dossier on Anglo Leasing.
Questions have been raised on whether the Githongo Dossier on Anglo Leasing of 2005 was still a privileged document when he fled from his office and job at State House, Nairobi, but leaked it to selected British and Kenyan media.
"Secondly, one cannot hide behind privilege if the information being peddled is incorrect and untrue. Civil servants, even State House-based PSs who interact with the President daily, do not have the privilege. In this country, this is only reserved for lawyers, doctors and legislators on the floor of both houses of Parliament," said lawyer and political analyst Javas Bigambo.
He said most Government of Kenya's documents are public and accessible by the public and all researchers.
"Furthermore, John Githongo is by no means a trained investigator and his tapes of the Anglo Leasing suspects he created by profiling and then stalking endlessly are fatally defective – they are inaudible – and therefore inadmissible in court," said Bigambo.
United States Government has been pursuing Wikileaks boss Julian Assange over shared privileged information way beyond his capacity given that he was not an investigator
Pundits have argued that Githongo cannot posit that Murungaru sued him over a privileged document.
Indeed, in his Defendant’s Witness Statement in Civil Suit No. 446 of 2006, brought against him by Murungaru, Githongo declared: “I argue Murungaru had NO reputation by 2004 to be labelled as evidenced by the widespread media attention connecting him to graft that he did not respond as robustly to as he did to my claims.
"I would argue that you cannot libel a prostitute by calling her immoral when the widespread and accepted public perception is that prostitution is an immoral profession intrinsically. This is the heart of my argument about Murungaru,” Githongo had argued.
Questions have been asked about privileged documents and his position as a senior civil servants
"The PS acted outside his mandate of advising the president," said the courts.
Murungaru in his defence claimed that that the Kenya Anti-Corruption Commission had cleared him when they found in a 2006 inquiry into the Githongo Tapes “the recorded conversations which formed the basis of the main allegations of interference were largely unintelligible”.
The KACC also reported that Githongo “refused to record a formal statement that would be used for purposes of any prosecution and that would explain the many unexplained gaps in the recorded conversation”.
Sergon said that the defendant was of the submission that the plaintiff had no reputation to protect in Kenya because he was already tainted.
"It is unfortunate that the defendant failed to tender evidence nor summon witnesses to establish that the plaintiff had no reputation to protect.”
He added; “It is apparent from the evidence presented before this court that the defendant intended to have the publication to be extensive, global in nature and with intensity. It would appear the defendant wanted to inflict maximum damage on the plaintiff."
The first biggest whistleblowing had happened in 1993 when the Goldenberg scandal first surfaced when Opposition MPs Anyang’ Nyong’o and Paul Muite revealed in Parliament what was going on in the Central Bank of Kenya.
The story that captured and shook the government was first broken by David Munyakei a Goldenberg Whistle-blower who was a clerk at the Central Bank and had come across documents he was supposed to process for payment for the export of diamonds and gold which were non-existent.
Munyakei with the assistance of a senior official at the CBK sneaked out copies of sensitive documents and presented them to the then opposition MPs Paul Muite and Peter Anyang' Nyong'o. Nyong'o and Muite would later present the papers in Parliament and this would cause an uproar across the whole country.
Munyakei was arrested and spent several days in jail before a judge ruled that he had no case to answer. Munyakei was subsequently fired from his position at the Central Bank of Kenya.
The Witness Protection Act states that a whistleblower should share the information established to the investigative authorities like EACCand DCI.
However, during the case, it emerged that Githongo did not do but instead went straight to the media and publish a book, the ruling noted.
Unlike in the Munyayeki situation where he gave out actual documents and paper trials. Githongo noted the ruling never gave out documents despite being in an office that could have given him access to documents.
The ruling noted that he, in fact, refused to write or sign a witness statement with KACA when asked to come forward.
Comprehensive legislation on whistleblower protection in Kenya report by Transparency International, it noted that Kenya has various laws that have a bearing on whistleblowing, however, do not prioritise it and hence, no single law or institution established under these laws has promoted it.
The report noted that the Anti-Corruption and Economic Crimes Act, 2003 provides protection for “assistants, informers, witnesses and investigators.”
However, the report notes that the Act does not define an “informer”; thereby making it difficult to determine whether it means the same thing as a whistle blower.
Though on its parts, the Public Officer Ethics Act, 2003 states that “A person who, without lawful excuse, divulges information acquired in the course of acting under the Act is guilty of an offence and is liable, on conviction, to a fine not exceeding five million shillings or to imprisonment for a term not exceeding five years or to both.”
The irony the reported noted was that is that this section of the Act outlaws whistleblowing, while at the same time the rest of the Act purports to introduce and standardise the ethical code and standards of public officials.
TI report called for legislation on whistleblower protection, confidentiality, discriminatory or retaliatory personnel action, including dismissal, suspension, or demotion; other disciplinary or corrective action.