Jul 19, 2017

Provisions of the Whistle Blower Protection Bill | Adedunmade Onibokun

The Whistle Blower Protection Bill, 2017, on 19th July, 2017, was passed by the Nigerian Senate. The Bill seeks to encourage and facilitate the disclosures of improper conduct by public officers and public bodies and to ensure that persons who make disclosures and persons who may suffer reprisals in relation to such disclosures are protected under the law.

The Bill aims to provide for the manner in which individuals may in the public interest disclose information that relates to unlawful or other illegal conduct or corrupt practices of others.

The Bill in Section 1 begins by stating the class of persons who may be Whistle blowers. It provides that –

1.—(1) A person may make a disclosure of information where that person has reasonable cause to believe that the information tends to show—

(a)   an economic crime has been committed, is about to be committed or is likely to be committed;

(b)  another person has not complied with a law or is in the process of breaking a law or is likely to break a law which imposes an obligation on that person;

(c)   a miscarriage of justice has occurred, is occurring or is likely to occur;

(d)  in a public institution there has been, there is or there is likely to be waste, misappropriation or mismanagement of public resources;

(e)   the environment has been degraded, is being degraded or is likely to be degraded; or

 (j) the health or safety of an individual or a community is endangered, has been endangered or is likely to be endangered

It however is not everyone that brings forward information that is a Whistle Blower, such person must be making the disclosure in good faith, believing the information to be true and same must be made to any of the following persons in line with Section 2 and 3 of the Bill including; an employer of the whistle blower; the Inspector General of police; the Attorney-General; the Auditor-General; a staff of the Independence Corrupt Practices Commission; a member of the National Assembly; the Economic and Financial Crimes Commission; the Human Rights Commission; the print and Electronic media; the National Drug Law Enforcement Agency; a chief; the head or an elder of the family of the whistleblower; a head of a recognised religious body; a Minister; the Office of the President; the Federal Inland Revenue Service; or the Public Complaint Commission.

It is important to note that a disclosure can be either oral or written. The procedure for making a disclosure is contained in Section 4 of the Bill and states that such disclosure must contain as far as possible the following –

(a)   the full name, address and occupation of the whistleblower;

(b)  the nature of the impropriety in respect of which the disclosure is made;

(c)   the person alleged to have committed, who is committing or is about to commit the impropriety;

(d)  the time and place where the alleged impropriety is taking place, took place or is likely to take place;

(e)   the full name, address and description of a person who witnessed the commission of the impropriety if there is such a person;

(f)    whether the whistleblower has made a disclosure of the same or of some other impropriety on a previous occasion and if so, about whom and to whom the disclosure was made; and
(g) if the person is an employee making a disclosure about that person’s employer or a fellow employee, whether the whistleblower remains in the same employment.

Where a disclosure is made to a person other than the Attorney-General, the person shall submit a copy of the written disclosure to the Attorney-General within seven working days after receipt of the disclosure. It is important to note that when a disclosure is made, any investigation into the matter by the authority to whom it was reported must be completed within 60 days and if such person does not have the authority or capacity to investigate the disclosure, such must be reported to the Attorney – General’s office.

Also, if the investigator believes that the evidence in the disclosure will be tampered, an application can be made to court to preserve the evidence.

The Bill specifically in Section 12 provides that a whistleblower shall not be subjected to victimisation by the employer of the whistleblower or by a fellow employee or by another person and victimisation will be inferred if  the whistleblower, being an employee, is dismissed, suspended, declared redundant, denied promotion, transferred against the whistleblower’s will, harassed, intimidated or threatened. If the Whistle blower is not an employee, victimization will be inferred with such person is subject to discrimination, intimidation or harassment by a person or an institution.
A whistleblower is not liable to civil or criminal proceedings in respect of the disclosure unless it is proved that whistleblower knew that the information contained in the disclosure is false and the disclosure was made with malicious intent. Also, any contract of employment which seeks to prevent a disclosure is void.

A whistleblower who has been subjected to victimisation may bring an action in the High Court to claim damages for breach of contract or for another relief or remedy to which the whistleblower may be entitled, except that an action shall not be commenced in a court unless the complaint has first been submitted to the Commission on Human Rights and Administrative Justice.

One major flaw however of the Bill is that it does not specifically make provisions for the reward of a Whistle Blower. Many Whistle blowers will be willing to make disclosures most importantly because of the possibility of a reward. The Bill however provides in Section 14(4) that the Commission may, where it considers it just in the circumstances of the case, make an order for payment of reward from the Fund established under section 20 of the Bill. Section 20 thus further provides that the Attorney _General or Minister of Justice may make regulation for or with respect to any matter required or permitted by this Act to be prescribed to give effect to this Act. The above seems very vague and puts the onus on the Minister to make policy in regard to the rewards for Whistle Blowers.

This single flaw will in no small way limit the success of the Bill.

Adedunmade Onibokun

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