By Mwalimu Mati
At last, an opportunity to pass on some good news has presented itself; for looming on the horizon is the solution to Kenyan anti-corruption activists’ much complained about triple-header problem of the Official Secrets Act, the absence of whistle-blower protection, and having no law to secure a citizen’s right to freedom of information. The good news is that we may not have to wait for the repealing of the Official Secrets Act or enactment of whistle-blower protection and freedom of information law to freely expose grand corruption anymore.
Events are conspiring to ensure that, regardless of whether or not the Kenyan Government gets its act together and enacts new laws, new technological developments will soon condemn the Official Secrets Act to dead letter status and distant memory. It’s exciting to report that the next two months should herald the arrival of the bane of secretive governments, in the name of a new transnational effort to promote ethical leaking on a website - www.wikileaks.org
WikiLeaks.Org combines the wiki platform technology, popularized by the world’s largest online encyclopedia www.wikipedia.org, with a political bent which will be irresistible to freedom advocates the globe over, as it is designed to facilitate untraceable mass document leaking and analysis. The idea has caught fire, with its promoters claiming to have already received close to 1.5 million leaked documents, from all over the world, months before its official launch!
WikiLeaks.Org, run by a global mix-match of cyberspace residents, has an overt idealistic and political mission. To break the cycle of impunity, by penetrating the walls of secrecy erected by governments around the world; and making millions (perhaps billions) of people members of an international network against corruption and injustice. As of the time I last visited the site there were close to 900 people signed up. Clearly this is going to be a popular site.
The site has lofty and, I believe, achievable ambitions of a world free of corruption and repression. Its philosophical justification is plain and immediately relevant to Kenya. At a first level, it dovetails nicely with the Kenya Anti-Corruption Commission’s recently launched whistle-blower initiative that implements the Business Keeper Monitoring System (BKMS®) which allows for anonymous and secure corruption reporting on the its website. At another level, WikiLeaks.Org will complement the online activities of Kenyan whistle-blowers including ex-Permanent Secretary for Governance and Ethics, John Githongo, who recently halted the Return-Mwiraria-to-Cabinet campaign in spectacular fashion (Transcript Githongo Mwiraria).
As WikiLeaks.Org’s blurb puts it: “the power of principled leaking to embarrass governments, corporations and institutions is amply demonstrated through recent history. Public scrutiny of otherwise unaccountable and secretive institutions pressures them to act ethically. What official will chance a secret, corrupt transaction when the public is likely to find out? What repressive plan will be carried out when it is revealed to the citizenry, not just of its own country, but the world? When the risks of embarrassment through openness and honesty increase, the tables are turned against conspiracy, corruption, exploitation and oppression. Open government answers injustice rather than causing it. Open government exposes and undoes corruption. Open governance is the most cost effective method of promoting good governance.”
The timely arrival of WikiLeaks.Org coincides with the publication of a new draft policy document on Freedom of Information by the Kenyan Government. The draft policy, which can be read at Freedom of Information Policy, is really the same old public relations exercise one has come to expect from cynical public servants. It is our case that the utility of the GOK Freedom of Information Policy, in the fight against corruption, is dubious.
Although it claims to support the principal that “there is a strong presumption that government action should not be shielded from public view”, the policy lays heavy emphasis on making the case for exemptions on the rights to information it purports to be establishing. For example, its very first annex is a table which describes how other countries limit the right to freedom of information! Without pausing for the irony to sink in, the authors of this policy document then go on to annex the entire Official Secrets Act; and the new Statistics Act, which controversially requires socio-economic researchers to obtain prior approval from a Government board for surveys (including opinion polls) in Kenya. Clearly, whoever is passing this policy off as a step forward in the fight against corruption is being disingenuous.
Unfortunately for us, the Kenyan legal regime remains most unfavourable to public spirited whistle-blowers - the most obvious disincentive being the aforementioned Official Secrets Act. Kenyans should also note that even what is being touted as reform legislation is inadequate. For example, the Witness Protection Act to which President Kibaki gave his assent in December 2006 is criminal witness protection law and not whistle-blower protection legislation. Section 3 defines the meaning of a “witness” for the purposes of the statute as a person who has given or agreed to give evidence, or made a statement to the authorities concerning an offence against Kenyan law would qualify for the protection of the Attorney General. At this point it is clear that it would not apply to a whistle-blower in a private sector corporation. Furthermore it does not cover disclosures to persons outside the government - so for example it could not have protected the late David Munyakei from dismissal because he did not take the Goldenberg papers to the police. Kenyans know what would have happened to him if he did!
Best practice whistle-blower legislation protects whistle-blowers who eventually give evidence in criminal proceedings, as well as persons who make disclosures relating to things that may not necessarily result in criminal proceedings. For example, disclosing to a newspaper that a certain parastatal head has reached retirement but still remains in place, can get the human resources department clerk in a lot of trouble but is in the public interest. The Witness Protection Act would not protect her.
A major purpose of any whistle-blower legislation is to deter punitive actions from being taken (by superiors, organizations or authorities) against those who disclose corruption, illegality and misconduct. Thus, a good law would ensure that you can’t demote, suspend or fire someone for telling the world the truth about an organisation.
Whistle-blower protection should motivate more people to speak out in the public interest (by removing the threat of retribution). As stated above this new law would not have prevented David Munyakei’s harassment because he didn’t make the disclosure to the State, the Kenya Police & law enforcement agencies, or to a court or tribunal.
The good news is that a new frontier has opened in the war for truth and against corruption and the secrecy that cloaks it. A new frontier with enhanced state-citizen accountability; a more open society and certainly a more transparent government. I leave you with the words of Siddhartha Gautama (the Buddha) as reproduced by WikiLeaks.Org: Three things cannot hide for long: the Moon, the Sun and the Truth.
Wednesday, March 26, 2008
By Mwalimu Mati