Report

In South Africa the Protected Disclosures Act 26 of 2000 and its amendments (“PDA”), creates protections for employees, whether in the private or the public sector, from “occupational detriment “ as a result of making a “protected disclosure”.

“Occupational detriment” includes, among other things, being subjected to, or being threatened with, disciplinary procedures, dismissal, suspension, harassment, demotion and transferral against your will.

You make a “protected disclosure” when you blow the whistle to a body or person as specified and explained in the PDA.

Specifically the PDA states that a Court can find that whistleblowers shall not be liable to civil, criminal or disciplinary proceedings for the disclosure of confidential information, if the whistleblower disclosed (i) a criminal offence; or disclosed (ii) information which shows or tends to show that a substantial contravention of, or failure to comply with the law has occurred, is occurring or is likely to occur

This protection further means that whistleblowers who suffered occupational detriment can go to court or to the Commission for Conciliation, Mediation and Arbitration (“CCMA”) and ask for financial compensation. whistleblowers can also ask to be transferred to another post or position on terms and conditions that is not less favourable than the post or position they held before they suffered the occupational detriment.

The Labour Relations Act 66 of 1995 and its amendments also provide protections for employees against unfair labour practices and unfair dismissal, which would include suffering occupational detriment.

Persons who are not employees, can rely on the Protection from Harassment Act 17 of 2011 to get protection orders against organisations or individuals who harass them as a result of blowing the whistle.

You can find further information and guidance on whistleblowing in South Africa here:

Corruption Watch Code of Good Practice Booklet

See also links to the relevant South African legislation relating to whistleblowing:

Protected Disclosures Act
Protected Disclosures Amendment Act
Labour Relations Act
Protection from Harassment Act

Kenya has various laws relating to whistleblowing, and which are aimed at reducing corruption and encouraging good governance. They also provide protection to whistleblowers from retaliation by those identified as the perpetrators of alleged wrongdoing.

The Anti-Corruption and Economic Crimes Act of 2003 (“ACECA”) provides protection for “assistants, informers, witnesses and investigators.” While the provisions of this Act does not specifically define who would qualify to be an “informer”, whistleblowers could possibly be included here.

The Public Officer Ethics Act of 2003 (“POEA”) which sets out the ethical requirements, including disclosures and reporting for public officers, 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 Kenya Bribery Act 47 of 2016 (“BA”) also provides protection for whistleblowers and witnesses as per the provisions of Section 21 of the Act. Accordingly, a whistleblower, informant or witness in a complaint or a case of bribery, shall not be intimidated or harassed for providing information to law enforcement institutions. This protection also applies to whistleblowers, informants and witnesses who testify in a court as a result of the information provided. A whistleblower or witness under Section 21 of the BA shall be eligible for protection, as long as the report made pertains to acts of bribery or other forms of bribery; and is made to the Commission or relevant Kenyan law enforcement agencies.

The legal framework surrounding the protection of whistleblowers in Kenya is in the process of being strengthened by the Whistleblower Protection Bill of 2017 (“WPB”), which is still to be enacted and will only come into force on a date to be specified by the Cabinet Secretary.

For the purposes of the WPB, “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 the Act, or any person assisting such individual.

“Whistleblowing” means making a disclosure of improper conduct as specified in the Bill, and includes among others, unfair discrimination, criminal conduct, human rights violations, gross mismanagement of public funds or a public asset, or an act or omission which creates a substantial and specific danger to the life, health or safety of persons, or to the environment.

The WPB requires specified public and private bodies to develop whistleblower policies and procedures to prohibit improper conduct and encourage disclosures. It also states that protection afforded to whistleblowers under the Bill shall not be limited or affected in the event that the disclosure does not lead to disciplinary action or prosecution.

You can find further news and guidance on whistleblowing in Kenya here:

TI Kenya
Standard Media

See also links to the relevant Kenyan legislation relating to whistleblowing:

Anti-Corruption and Economic Crimes Act
Public Officer Ethics Act
Bribery Act 47 of 2016

Whistleblowing and reporting of crime, fraud, corruption and other forms of misconduct affecting the public sector, are actively encouraged in the Republic of Botswana. This was portrayed through the enactment of its own Whistle Blowing Act, No. 9 of 2016 (herein after referred to as “WBA”).

Prior to the enactment of the WBA, Botswana had a reporting agency, the Directorate on Corruption and Economic Crime, which was tasked with receiving information on malpractices and misconduct. The implementation of the Act strengthened this position, and the Directorate was also given the powers to investigate such claims with the aid of other state agencies such as the Botswana Police Service, Botswana United Revenue Service and the Directorate of Intelligence and Security. The enactment of the WBA widened the scope of authorized persons eligible to receive information pertaining to disclosures of impropriety. These designated agencies are the vessels through which the fight to eradicate the scourge of corruption is directed.

It is important to note that legal protection for whistleblowers varies significantly in its scope and effects for whistleblowers in the public and private sectors. While the scope of protection provided by the Whistle Blowing Act may provide comfort to whistleblowers in the public sector, it provides little protection for whistleblowers in the private sector.

A ‘Disclosure of Impropriety’ means any declaration of information made by whistleblower with regard to the conduct of one or more persons where the whistleblower has reason to believe that the information given shows or tends to show an impropriety.

A ‘whistleblower’ means a person who makes a disclosure of impropriety that is protected in terms of section 4 of the Act.

An ‘employee’ means any person who has entered a contract of employment for the hire of his or her labour in terms of the Public Servants Act, Employment Act, Botswana Defence Force Act, Police Act or Prisons Act, and includes:
(a) Any person who provides a service for reward to a public body
(b) An employee of a person providing services to a public body

In terms of the Whistle Blowing Act, whistleblowers are afforded protection if the disclosure is deemed to be made in good faith, and there is a reasonable belief (by the whistleblower) that the disclosure is substantially true; and has been made to an authorized person or agency, which then has the discretion to investigate and act on the disclosure.

The Act goes further than protection of whistleblowers in general, and expressly prohibits discrimination against whistleblowers in their workplaces in the public sector, which in most cases, are the environments in which they discover corruption, unethical practices and misconduct.

The Whistleblowing Act protects whistleblowers from victimization by their employer or by a fellow employee or another person, as a result of making a disclosure of impropriety. The Act provides further protection for whistleblowers from criminal or civil liability proceedings as a result of their disclosure of impropriety.

A whistleblower is eligible for protection under this Act if they have reasonable cause to believe that the information disclosed relates to the commission of a criminal or unlawful act; miscarriage of justice; threats to the health and safety of the public; environmental contraventions; And contraventions of laws and policies.

The Act empowers the Minister to pass Regulations to assist in the enforcing of the provisions of the Whistleblower Protection Act, particularly relating to the process and procedure of disclosing an impropriety. To date, no additional regulations have been passed in this regard.

Also see links to the relevant Botswana legislation relating to whistleblowing:

Whistle Blowing Act No. 9 of 2016
Constitution of the Republic of Botswana (1990)

In an attempt to reduce the corruption that has plagued the southern African country of Namibia, The Anti-Corruption Act no. 8 of 2003 was implemented. This Act can also be seen as support for the legal framework pertaining to protection of whistleblowers. Section 52 of the Anti-Corruption Act provides for Protection of Informers and Information. Accordingly, a person who is a witness in a trial is not obliged to disclose the identity or address of any informer or person who assisted the Commission in an investigation into an alleged or suspected offence under this Act. The Act does not expressly define the term “whistleblowers”, however, the scope of protection provided to “informers of information” under this Act, can be inferred to include whistleblowers.

More specifically, no action or proceedings of a disciplinary, civil or criminal nature may be instituted or maintained by any person or authority against any informer or a person who has assisted the Commission in an investigation into an alleged or suspected offence under the Anti-Corruption Act or any other law in respect of any information. A person is excluded from protection under the Act if a material statement which they knew or believed to be false or did not believe to be true, disclosed by them to the Commission for the purpose of assisting the Commission in the performance of its functions under this Act.

The Witness Protection Act 11 of 2017 makes provision for effective protection of witnesses and other associated and related persons whose safety may be at risk as a result of their disclosures of impropriety and having to testify in proceedings arising from such disclosures. Such protections may extend to family members of the whistleblower, or witness as the case may be.

The Protection of Information Act, No.84 of 1982 (“PIA”) regulates how information is to be disseminated in the public domain. Accordingly, PIA outlaws the possession and disclosure of information unlawfully obtained. The Namibian courts, however, are reluctant to enforce its provisions in instances where the law is used to shield corrupt practices as seen in the “Fish rot” case in 2019, where Namibian authorities had exposed the involvement of high-level government officials and members of the governing party complicit in that corruption scheme.

The legal framework concerning whistleblower protections was strengthened by the implementation of the Namibian Whistleblower Protection Act 10 of 2017 (“NWPA”), which was signed into operation in October 2017. The Whistleblower Protection Act has also sparked amendments to the Prevention of Organized Crime Act 29 of 2004, particularly Section 76 of said Act. The amendment relates to payment as reward for making a disclosure, as contemplated in Sections 74 and 75 of the NWPA.

The Namibian Whistleblower Protection Act established a Whistleblower Office, headed by a commissioner and supported by an advisory committee, to investigate disclosures of improper conduct. The Act also empowered the Whistleblower Office to investigate complaints of retaliation against the persons making the disclosures. Most importantly, the NWPA sets out conditional protections for whistleblowers and how disclosures should be dealt with. In addition to criminalizing retaliation against reporters of misconduct and corruption, the NWPA also imposes substantial fines or a jail term not exceeding 15 years, or both, on anyone convicted of retaliation.

‘Disclosure’ means the revealing of information which is not known to the person receiving it, and in the case where information is already known to the recipient, bringing that information to his or her attention.

‘Authorized person’ means any of the persons specified in Section 3, and supported by Section 30(1)(a)-(c), to whom a disclosure can be made.

‘Complainant’ means a whistleblower or any person related to or associated with the whistleblower who makes a complaint under Section 53 of the Act for having been, being or likely to be subjected to detrimental action in retaliation for having made a disclosure of improper conduct.

‘Whistleblower’ means any person who makes a disclosure of improper conduct in terms of this Act.

‘Employee’ and ‘Employer’ have the same meanings given to them in Section 1 of the Labour Act 2007.

‘Designated Employer’ means an employer designated as such under Section 26 of the Act. This provision stipulates that the Minister may conditionally designate employers or classes of employers to whom the provision of the Whistleblower Protection Act 10 of 2017 will apply.

In terms of Section 29 of the Whistleblower Protection Act, a disclosure of improper conduct may be made to an authorized person by an employee in the public or private sector, in respect of his or her employer; OR an employee, in respect of another employee; OR, any person in respect of another person, a public or private body or institution.

The definition of improper conduct is quite broad, and includes the intention of, concealment of, or actual conduct pertaining to: Criminal acts; Miscarriages of justice; Violations of fundamental human rights and freedoms protected by Chapter 3 of the Namibian Constitution; Non-compliance with a provision of any law which imposes an obligation on a person; Disciplinary breaches (organizational and professional codes of conduct); Waste, misappropriation or mismanagement of resources affecting public interest; or health and safety infringements.

Specifically, the Act provides that a disclosure of improper conduct is protected if the disclosure is made in good faith in relation to the information being disclosed; the whistleblower has reasonable cause to believe that the information disclosed and any allegation of improper conduct contained in it are substantially true; and the disclosure is made to an authorised person.

Disclosures can be made to authorized persons as described in Section 3 and supported by Section 30(1)(a)-(c) of the Act. Accordingly, authorized persons include the ethics and integrity officer at a designated employer, persons otherwise authorized by the employer, a member of the Whistle Blower Protection Office or persons or entities designated by the Minister.

In accordance with subsections 39(2), 43(3) and 45(1) of the Whistleblower Act, whistleblower protection is granted from the date of the first receipt of the disclosure of corruption until the Commissioner of the Whistleblower Protection Office terminates protection in terms of Section 52 of the Act.

The type of protection afforded under the NWPA will differ based on the surrounding circumstances of a particular matter, but some of the protections include; protection of confidential information; conditional immunity from civil or criminal action; protection against detrimental action; and in certain instances, protection under the Witness Protection Act 2017.

Section 5 of the Act deals specifically with Detrimental Action, which covers both employees and non-employees making disclosures, or suffering detrimental action as a result of such disclosure being made.

In terms of the Act, an employee is considered to be a subject of detrimental action if he or she is subjected to intimidation, harassment or any action causing personal harm or injury or loss or damage to property or any interference with his or her lawful employment by the employer or a fellow employee or by any other person or an institution. The Act also provides protection from detrimental action for non-employees who have been subjected to discrimination, intimidation, harassment or any action causing personal harm or injury or loss or damage to property or any interference with his or her business or livelihood by any person or an institution.

Also see links to the relevant Botswana legislation relating to whistleblowing:

Constitution of the Republic of Namibia (1990)
Whistleblower Protection Act No. 10 of 2017
Anti-Corruption Act No. 8 of 2003
Witness Protection Act No. 11 of 2017
Prevention of Organized Crime Act No. 29 of 2004
Labour Act 2007