By Prof. Deji Adekunle, SAN

Research Lead

Juritrust Centre for Socio Legal Research and Documentation

 

One of the main outcomes of the 10th Session of the Conference of State Parties of the UN Convention Against Corruption is a Resolution CAC/COSP/2023/Rev.1 calling for increased protection of reporting persons (whistle blowers) and their relatives. Whistle blower protection, what it means and how to go about it in a legal system present daunting challenges especially in legal traditions steeped in official secrecy, confidentiality and employee fidelity.  Despite derogations in these hallowed concepts in favour of exposure of illegality or crime, drawing the line in many cases can be problematic. For example should whistle blowers be protected from retaliation or should they be rewarded or incentivised; what difference does it make if the whistle blower is an accessory or conspirator who fell out with his colleagues or perhaps acted in reaction to his being cheated in the distribution of the loot? Should good faith or motives matter or is it just a question of results.

 

Whistle-blowing is the disclosure of information about perceived wrongdoing in an organisation, or the risk thereof, to individuals or entities believed to be able to effect action. Such wrongdoing could be a violation of a law or regulation, a miscarriage of justice, gross waste of public funds or gross mismanagement. It could be deployed as an early warning tool to avert possible risks by necessary corrective action or as a valuable clue to the unravelling of complex and secretive crimes like corrupt enrichment. Nigerian law has not really kept pace with the UNCAC provisions particularly Article 33 which requires that States parties consider incorporating into their domestic legal systems appropriate measures to provide protection against any unjustified treatment for any person who reports in good faith and on reasonable grounds to the competent authorities any facts concerning an offence of corruption. Some of the salient aspects of the Resolution are examined next

 

Blowing the Whistle or Reporting a wrong

The term “whistle blower” is avoided by the Resolution instead it employs the word that in the ordinary sense captures what whistle blowing or whistle blower entail and that is simply reporting a wrong. All through the Resolution the verb “report”, and the noun “reporter” are preferred by the Resolution. The term “reporter” however is not used in the same sense as a news reporter Many see nothing wrong with the term “whistle blower” but in climes like Nigeria where reporting wrongs has become the exception rather than the norm the suggestion of affinity between a whistle blower and a meddlesome snitch should best be avoided. To blow the whistle on corruption is simply to report wrongdoing and while employees or insiders in an organisation are more vulnerable to retaliatory measures there is nothing in the term that restricts it to insiders exclusively.

 

Protection of Reporter and Relatives Against Unjustified Treatment

In urging states to continue to have regard to the application of Article 33 and to continue to develop appropriate measures to fully and effectively provide protection against unjustified treatment for all persons (and their relatives) who, on reasonable grounds, expose or report corruption and related offences to competent authorities the COSP has clarified that protection is not merely against civil or criminal proceedings but against unfairness or injustice. There are many ways in which a reporter can suffer injustice without necessarily being proceeded against in civil or criminal trial. Punitive postings, exclusion from privileges or perquisites, denial of promotion or benefits, withdrawing or limiting the reporters job schedule to the point of redundancy are examples of administrative injustices that can be meted on the whistle blower. Nigeria clearly needs to improve on the current legislative framework for the protection of whistle blowers.

 

Whistleblower Protection For Public officers under the Freedom of Information Act 2011

The existing framework is quite inadequate as it is primarily concerned with limited protection in favour of public officers who disclose information pursuant to the Freedom of information Act (FOIA) or protection against criminal proceedings where information is with a view to exposing corruption. (section 27 FOIA). The FOIA however does not outline a procedure or channel for disclosure of information neither does it prescribe redress or consequences where the whistle-blower is victimised or subjected to unjust treatment. Despite the resolution of some of these cases in favour of the whistle blower, the lack of a formal mechanism for redress was the source of delay and hardship.

 

The COSP Resolution touches on the importance of institutional mechanisms for the safe reporting of wrongs and an equally safe and effective redress mechanism. It urges state parties to increase public awareness of means for reporting instances of corruption, including by disseminating information regarding the rights and responsibilities of reporting persons in accordance with domestic legislation. States are also enjoined to establish and strengthen confidential complaint systems and protected internal reporting systems that are accessible, diversified and inclusive to facilitate timely reporting of corruption and to ensure the confidentiality of the reporting persons’ identities and personal information, including, where appropriate, allowing for anonymous reporting, and utilize innovative and digital technology in these efforts, with due regard for data protection and privacy rights.

One of the greatest fears of informers or reporters is the possibility that the those who are charged to uphold the law will not only reveal their identities to suspects but the informer may quite strangely become the suspect in a bizarre display of impunity. It is of course possible as happens in some cases that the informer is also an accomplice. However this does not make evidence or intelligence from such sources valueless; on the contrary it is this kind of evidence that has sent many kingpins of fraud, extortion or racketeering ring to jail. Safe secure and confidential channels of communication are therefore important prerequisites for a Whistle blower Protection Law.

 

The Whistle-blower Policy

Some of these conditions are captured in the Whistle-blower policy developed in 2016 by the Federal Government through the Ministry of Finance. The policy outlines a 2.5% – 5% reward band incentive for a person who discloses information bordering on violation of financial regulations, mismanagement of public funds and assets, financial malpractice or fraud and theft that is deemed to be in the interest of the public that directly leads to the voluntary return of stolen or concealed public funds or assets. The the major underpinnings of this policy are that:

    • The actual recovery must also be on account of the information provided by the whistle blower;
    • Information must be provided through anyone of three secure channels that guarantees anonymity – the portal, via email, telephone.
    • Any Stakeholder who whistle blows in public-spirit and in good faith will be protected, regardless of whether or not the issue raised is upheld against any Party.
    • Where reasonable grounds exist from which it can be inferred that an informer has been victimized, the onus is on the Party against whom the complaint of adverse treatment has been made to show that the actions complained of were not taken in retaliation for the disclosure.
    • Where a prima facie case established that a Whistle blower has suffered adverse treatment (harassment, intimidation or victimization) for sharing his\her concerns with the Ministry, a further investigation may be instituted and disciplinary action may be taken against the perpetrator in accordance with the public service rules/other extant rules and a restitution shall be made to the Whistle blower for any loss suffered.

 

This policy when read together with the opaque and inchoate provisions of section 27 of the FOIA, offers prospects for a progressive leap forward in the institutionalisation of whistle blower protection mechanisms in the public sector. Little has however been heard of it in recent times; the portal itself is suspect as it may have been hacked and labelled “unsafe.” Besides it is an inadequate basis for a legally binding obligation. Had the policy been sustained it would at least have led to the development of institutional capacity in the public sector and the design of effective procedures pending when these are eventually enacted as law.

 

 


NOTE: The section on legal Briefs is a forum for frank and open scholarly notes by research staff and guest contributors. Views expressed in these notes are personal to the authors and are not to be attributed to the Centre.

DO YOU WANT TO SHARE YOUR VIEWS ON OUR BLOG?

JURITRUST Centre for Socio Legal Research and Documentation invites submission of short articles from VOLUNTEER CONTRIBUTORS who are interested in sharing their perspectives on salient issues in the administration and development of the Nigerian Criminal Justice System, comparative systems and related issues. CLICK HERE find out how to send us your articles. Thank you

Juritrustlaw We would like to show you notifications for the latest news and updates.
Dismiss
Allow Notifications