THE CONCEPT OF WHISTLE-BLOWING IN NIGERIA

Whistleblowing is the act of disclosing information, often by an employee, about activities within an organization, whether public or private, that are considered illegal, immoral, illicit, unsafe, or fraudulent. A whistle-blower is someone who, without permission, discreetly exposes private or confidential information regarding an organization, usually in the context of misconduct or wrongdoing. This disclosure is made in the interest of public safety, accountability, and ethical standards, and whistle-blowers often face personal risks for their actions.

Whistle-blowers serve as essential agents in uncovering corruption and misconduct within organizations. Their actions expose activities such as bribery, embezzlement, money laundering, and other illicit practices, ultimately contributing to the dismantling of corrupt networks within the organization. Notably, whistle-blower disclosures have resulted in the recovery of substantial amounts in fraud cases, thereby safeguarding taxpayers’ funds and ensuring that justice is served. It is evident that whistleblowing stands as one of the most potent tools for both detecting and preventing corruption and, various forms of malpractice.

Legal Framework for whistle-blowing in Nigeria

As of today, Nigeria still does not have comprehensive whistleblowing legislation. Several attempts have also been made at creating whistleblowing legislation, such as the Whistleblower Protection Bills of 2008, 2011, 2015, and 2019. While these bills received the required approval from the Senate, they did not become law as the president failed to assent to the bills. There are however fragmented provisions offered by different laws in the country. For example, Section 39 of the 1999 Constitution of the Federal Republic of Nigeria protects the freedom to impart information without interference. While not quite targeted at whistle-blowers, it does embody the spirit of disclosing information.

In addition to this, there is Section 64(1) of the Independent Corrupt Practices and Other Related Offences Act also provides for the protection of whistle-blowers’ identity when reporting on offenses under the Act. This section has often been credited with the start of whistle-blowing in Nigeria. Section 63(3) of the Act also provides for the punishment of whistle-blowers who give false information. It is suggested that this is an important section as it serves to stand as a deterrent for abuse by the whistle-blower.

The protection of whistle-blowers was again captured in Section 39 of the Economic and Financial Crimes Commission (Establishment) Act of 2004 which is to the effect that officers of the commission cannot be compelled to disclose the source of information or identity of their informants except by the order of the Court. Again, Section 27 of the Freedom of Information Act of 2001 protects public officers or persons acting on behalf of a public institution from civil and criminal proceedings for the disclosure in good faith of any information or any part thereof pursuant to the act.

As we can see, so far, the protection of whistle-blowers has been fragmented across different legislations. However, formal attempts have been made to create some more comprehensive legislation for the protection of whistle-blowers in Nigeria. These formal attempts can be seen in the proposed Whistle-blowers Protection Bills of, 2008, 2011, 2015 which sought to offer broader protections to whistle-blowers, sadly, these Bills were never passed into law.

In 2016 however, there was a more active drive to have some sort of whistle-blowing framework within Nigeria, hence the Whistleblowing Stop Gap Policy of 2016[1] was introduced. The policy was aimed at encouraging the reporting of mismanagement and misappropriation of public funds and assets. It also covered issues of corruption; collecting and soliciting for bribes; fraud etc. The policy introduced and adopted the approach of rewarding whistle-blowers whose information led to the successful recovery of funds.

It is suggested that the policy proposes an interesting moral question on whether rewarding whistleblowing is the right approach in creating a whistleblowing culture in Nigeria, or by doing so, this creates an avenue for perverse incentives where the reward becomes too attractive that it encourages false reporting. It is suggested that depending on the perspective, the current approach of the Nigerian Government to reward whistleblowing can be justified. A key view on why whistle-blowers should be rewarded has been based on the fact that the whistle-blower risks so much,[i] they risk dismissal (often it ends up being difficult for them to be rehired in the same field), they risk losing their income, reputation. They undergo stress intimidation and other possible retaliation. In light of this, some jurisdictions such as the USA have adopted the strategy of rewarding whistle-blowers who speak up, although this is not necessarily the only way whistleblowing can be encouraged. This last statement is reflective of jurisdictions like the UK who have adopted a policy of not rewarding whistle-blowers[ii].

More recently, the Whistleblowing Bill of 2019 was introduced to give statutory backing to not only rewarding whistle-blowers but also to protect whistle-blowers from reprisals,[iii] especially where there is victimization. Section 18 places a reverse burden on the perpetrator to establish that they did not victimize the whistle-blower, thereby potentially making claims easier. Section 20(3) highlights the relevant awards available to the whistle-blower where they have suffered reprisals and including reinstatement, transfers to another department, and reversal. A criticism of the Bill comes in the fact that it fails to provide for the protection of the whistle-blower’s identity, thus reliance must still be placed on Section 64(1) of the Independent Corrupt Practices and Other Related Offences Act, so there is still a reliance on other legislation. Nevertheless, the Bill has a lot of potential to be effective, however, until the Bill is passed into law, the Nigeria framework remains incomplete. Unfortunately, the bill has not seen the light of the day.

Reporting mechanisms

1. Internal Reporting Channels

Most whistle-blowers opt for internal reporting, where they disclose misconduct by a colleague or superior within their organization. This is typically done through anonymous reporting mechanisms, often referred to as hotlines.

Internal whistle-blowers bring concerns about the organization’s wrongdoing to a higher authority within the company. For instance, an employee may report fraudulent activity by a co-worker to the CEO or the head of the human resources department.

In cases of internal whistleblowing, government investigations are typically not triggered, and there is no formal litigation. The organization addresses the issues internally without involving external authorities. However, there are instances where the company may choose to report such matters to the appropriate government agency to initiate a formal investigation, aiming to pre-empt more severe sanctions that may be imposed if the government independently uncovers the wrongdoing.

2. External Reporting Channels

External whistle-blowers take a different approach. They expose wrongdoing within a company to external authorities, such as law enforcement agencies, media organizations, regulatory bodies, and high-ranking government officials, amongst others. For instance, a contractor may divulge a significant fraudulent scheme to the appropriate government agency.

External whistle-blowers engage with individuals or entities outside the organization to bring misconduct to light. Depending on the nature of the information, they may report wrongdoing to legal professionals, media outlets, law enforcement agencies, oversight organizations, or various local, state, or federal entities. In some cases, external whistleblowing may be incentivized through the promise of financial rewards.

Highlighting legal protections and considerations for whistle-blowers Nigeria currently lacks a comprehensive whistleblowing legislation that provides adequate protection for individuals who come forward to report wrongdoing. While the concept of whistleblowing has been in operation in the country, particularly within the banking sector, there is no all-encompassing legal framework in place.

In the context of whistleblowing within the Nigerian banking sector, the ethical report of First Bank of Nigeria in 2016 emphasized the significance of both the Central Bank of Nigeria’s 2012 Guideline Section 3.1 and Section 5.3.1 of the Code of Corporate Governance for Banks and Discount Houses. The former lays the foundation for whistleblowing in banks and other financial institutions, while the latter serves as an additional mechanism specifically within the banking sector. These guidelines collectively contribute to fostering a culture of accountability and transparency in financial institutions, with a focus on promoting ethical practices and reporting mechanisms.

The Significance of Anonymity in Whistleblowing

Anonymity is a critical element in whistleblowing as it allows individuals to come forward with information while shielding their identity. This protection empowers potential whistle-blowers to reveal wrongdoing without fearing personal repercussions.

While anonymity is vital, it must be balanced with the need for verifiable evidence. Maintaining a careful equilibrium between protecting whistle-blowers’ identities and providing sufficient evidence can be challenging but is essential for investigations and legal proceedings.

Legal protections are in place to safeguard the identities of whistle-blowers. These safeguards ensure their confidentiality and safety, encouraging them to report misconduct without fear of retribution.[iv]

Limitations of the whistle-blowing regime in Nigeria

The provisions of section 115 (3) and (4) of the Evidence Act 2015 are to the effect that when a person deposes to his belief in any matter of fact and his belief is derived from any source other than his personal knowledge, he shall set forth explicitly the facts and circumstances forming the grounds of his believe and where such belief is derived from information received from another person, the name of the informant shall be stated and reasonable particulars shall be given respecting the informant and the time place and circumstance of the information.

The above provision of the Evidence Act appears to have placed a limitation on witness protection in Nigeria. Significantly, our Courts have refused to bat an eyelid in a bid to protect the identity of witnesses and whistle-blowers in Nigeria.

This presupposes that it will be difficult to urge the Court to rely on the statement made by a whistle-blower whose address cannot be disclosed by the Claimant/Prosecution.

It is the author’s view that the above watertight provision of the evidence act be amended to accommodate whistle-blowers whose identities need to be protected to safeguard their jobs, reputation and importantly their lives. Only then will prospective whistle-blowers summon the courage to divulge sensitive information within their knowledge.

Conclusion  

In conclusion, the legal considerations for whistle-blowers in Nigeria reflect the broader global effort to nurture an environment where “truth-tellers” can come forward without fear of retribution. By continually enhancing these legal frameworks, Nigeria can bolster its commitment to good governance, accountability, and the welfare of its citizens. Whistle-blowers remain the critical linchpin in achieving these objectives, and their protection should be paramount.

The relevance of whistleblowing in the public and private sector cannot be overstretched. It is therefore the author’s view that a comprehensive legislation be enacted to protect the identity of whistle-blowers and all laws that appear to limit whistleblowing be amended to accommodate whistleblowing.

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[i] Ben McLannahan ‘The best way to encourage whistle-blowers? Reward them -The UK is among a handful of big markets not to offer money for raising alarms’ Available at  https://www.ft.com/content/cac4c994-3f24-11e9-9bee-efab61506f44 > Accessed 7th April 2021.

[ii] https://gsdec.network/7750/an-overview-of-the-effectiveness-of-the-nigeria-whistleblowing-framework/

[iii] s.20 Whistleblowing and Witness Protection Bill 2019

[iv] https://www.mondaq.com/nigeria/whistleblowing/1398650/safeguarding-whistleblowers-in-nigeria-legal-considerations-and-rights-protection

Written by Ovye Isreal for The Trusted Advisors

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