The Senate promised to pass the Whistle Blowers Protection Bill before July 2017. The 57-clause Bill sponsored by Sen. Biodun Olujimi seeks to encourage and facilitate the disclosure of improper conduct by public officers and bodies and to protect those who make the disclosure from reprisal[1]. It also creates a legal framework on how such matters can be properly disclosed and investigated.
Under the provisions of the Bill, natural persons can make such disclosure to the Chief Commissioner of the Public Complaints Commission in a case of “improper conduct” that shows one or more of the following:
- that a criminal offence is being committed,
- that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,
- that miscarriage of justice has occurred, is occurring or is likely to occur,
- that information tending to show any matter falling within any of the preceding paragraphs has been, or is likely to be deliberately concealed.[2]
The Whistle blower is also entitled to seek protection where he believes that the public body being reported is taking or proposes to take detrimental action against him as a result of the disclosure. Under the Bill, disclosure could be oral, in writing or anonymous. However, despite clause 2(b) envisaging a prescribed procedure for the disclosure, the Bill fails to mention the particulars that will be needed in a disclosure such as the full name, address and occupation of the whistle blower, the nature of the impropriety in respect of the disclosure that is made, the time and place where the alleged impropriety is taking place, took place or is likely to take place for disclosures that are not anonymous as obtains in some jurisdictions. In addition, no provisions are made to reduce an oral disclosure into writing[3] or prescribe how anonymous disclosures can be made.
However, persons who make such disclosure are not subject to civil or criminal liability or arising from an administrative process. Furthermore, any provision in an employment contract that prevents a worker from making a protected disclosure, that is one of public interest will be void in relation to its inconsistency with the proposed legislation, if passed. This is also buttressed by clause 32, which prevents a person from using a restriction on the disclosure of information as a defence if the Chief Commissioner is investigating the matter.
For the purposes of the Bill, the Chief Commissioner is to determine whether a disclosure is of public interest[4] and must notify the person who made the disclosure if his findings determine it as such. He is further mandated to inform the person who made the disclosure on the recommendations from the result of the investigation. However, where the Chief Commissioner, decides not to investigate the disclosure on grounds that the disclosure is trivial, vexatious or the person making the disclosure had knowledge of the matter for 12 months without providing satisfactory explanation for his delay, he must give reasons[5].
The Bill also further empowers the Chief Commissioner to refer disclosures to a public body if the matter relates to a member or employee of the public body and he considers it appropriate to do so. However, despite the referral, the Chief Commissioner may be forced to take over the investigation if the public body fails to take over the investigation or the person is dissatisfied with the manner in which the public is carrying out an investigation on the matter or the person is dissatisfied with the steps taken by the public body after the investigation of the matter[6]. The Chief Commissioner can also take over an investigation if he is dissatisfied[7]. Furthermore, the Chief Commissioner is excluded from any civil or criminal liability unless the Federal High Court has substantial grounds to believe that he has acted in bad faith. Also no proceedings can be brought against him restraining or compelling him to carry out an investigation or from reporting findings from an investigation[8].
However, there are notable observations. Firstly, it is commendable that legal protection is guaranteed in the conduct of investigations, as a search warrant must be obtained from the Magistrate Court for any premises that entry is being sought for the purpose of investigation. Furthermore, the search warrant must be used no later than 28 days after it is issued. Also, as a general rule, the person carrying out the search must identify himself to the occupier and give the occupier a copy of the warrant.
Other commendable provisions include penalties against persons who leak information in the course of investigating protected disclosures without reasonable cause or who attempt to mislead the Chief Commissioner in the investigation of his duty.
Nevertheless, it is recommended that the penalty of N100, 000 or imprisonment for a term of not more than one year is upwardly reviewed in both instances to act as a deterrent to likely offenders. Other laudable provisions include mandating the Commission to submit an annual report to the National Assembly detailing information on its guidelines and the number of investigations and recommendations that had been made by the Chief Commissioner. As a distinction, public bodies, who have been referred a matter for investigation are only required to submit the aforementioned information only when required by an Act to do so. In addition, public bodies will be expected to facilitate the objectives of the Bill by establishing provisions for the making of disclosures and reprisals dependent on whether they are in existence before or after the Bill is passed.
Nonetheless, there are also grey areas. For instance, the Bill does not mention whether Whistle Blowers are entitled to make disclosure for personal gain. For instance, other jurisdictions like the United Kingdom’s Public Interest Disclosure Act, 1988 out rightly excludes pecuniary interests[9]. However, the American Dodd-Frank Act, 2010 and the Ugandan Whistleblowers Protection Act, 2010 allows financial rewards. The Ugandan Act even includes a time frame of 6months within which the Whistle blower must be rewarded for his or her disclosure.[10]. Other areas of recommendation include the possibility of extending the Act to private contracts and perhaps even including a format or procedure on how an anonymous disclosure can be reported. It is also unclear whether the purport of the Bill will include agencies that thrive on secrecy like the military and defence, as so far only, the privileges of National Assembly members and legal professional privileges are exempted from falling within the parameters of the Bill. It is also unclear whether the defence and the National Intelligence Agency, which largely thrive on secrecy, will be excluded from the ambit of the legislation.
Lastly, although the government has made reference to its own Whistle blowing framework, it is unclear how far the details of its framework will be included in the final version of a Bill that is sponsored by lawmakers and not the Executive arm. It is also noteworthy that no Bill currently exists before the House of Representatives on the subject.
[1] Clause 1
[2] Clause 56
[3] See section 6(2) and 7 of Ugandan Whistleblowers Protection Act, 2010
[4] Clause 18(1)
[5] Clause 22(b)
[6] Clause 44
[7] Clause 45
[8] Clause 55
[9] See section 43 G (c)of the United Kingdom’s Public Interest Disclosure Act, 1988
[10] Section 19 of Ugandan Whistleblowers Protection Act, 2010