THE NEED FOR A WHISTLE-BLOWER PROTECTION LAW IN NIGERIA: AN EXAMINATION OF THE ROLE OF ANTI-CORRUPTION AND LAW ENFORCEMENT AGENCIES, THE EFCC, ICPC AND THE NIGERIAN POLICE FORCE.A PAPER PRESENTED AT THE ONE DAY WORKSHOP FOR LAW ENFORCEMENT AND ANTI-CORRUPTION AGENCIES IN PORT HARCOURT UNDER THE THEME: “STRENGTHENING ANTI-CORRUPTION AND PROMOTING ACCOUNTABILITY THROUGH WHISTLEBLOWING AND WHISTLEBLOWER PROTECTION”.BY BAR. AROCHUKWU PAUL OGBONNA INTRODUCTION
This paper is a critical review of the Whistleblower Policy and Protection Law in Nigeria. It seeks to establish the need for a comprehensive Whistleblower Law in the country in the face of massive corruption in state and non–state institutions in Nigeria.
It further interrogates the various provisions of the anti-corruption legislation in Nigeria such as the Economic and Financial Crimes Commission Act, the Independent Corrupt Practices and Other Related Offences Act, the Police Act, the Freedom of Information Act as it concerns the Whistleblower Policy and Protection of Whistleblowers in the country. The paper also seeks to examine the role of law enforcement agencies in the use of the Whistleblower Policy in the fight against corruption in Nigeria. It concludes by stating the urgent need for Nigerian Whistleblower law and for enforcement agencies to collaborate with the civil society to advocate for a comprehensive Whistleblower legislation and Protection Act.
Corruption has been the undoing of national politics and development in Nigeria. Over time acts of corruption have become pervasive in the country with its impacts felt in the dysfunctional quality of social service delivery and the poor standard of living of the citizens. This development became unbearable and warranted a national and global outcry thus forcing the government to declare a state of emergency in the fight against corruption.
THE DEFINITION OF CORRUPTION
According to the black law dictionary, corruption is “the act of doing something with an intent to give some advantage inconsistent with official duty and the right of others, a fiduciary or official use of a station or office to procure some benefits either personally or for someone else contrary to the right of others”. Similarly, Merriam-Webster dictionary see corruption as dishonest or illegal behavior especially by powerful people (such as government officials or Police officers). According to the dictionary, it could as well mean a departure from the original or what is pure or correct. Also, World Bank (2010) specifies corruption as the abuse of public office for private gain. This points above corroborates Varriach (2014) assertion that corruption is an umbrella concept that links together clientelism, patronage, state capture, particularism and patrimonialism. These appear to be forms of corruption that dominates the African State and Nigeria in particular.
THE SETTING UP OF THE ECONOMIC AND FINANCIAL CRIMES COMMISSION AND INDEPENDENT CORRUPT PRACTICES AND OTHER RELATED OFFENCES COMMISSION AS WELL AS THE FREEDOM OF INFORMATION ACT 2011.
Between 1999 and 2007 the Nigerian Government set up two major state institutions to fight and combat corruption especially in official Government circles to wit:- The Economic And Financial Crimes Commission and The Independent Corrupt Practices and Other Related Offenses Commission. These two institutions aside from the Nigerian Police duties in this regard are charged with the responsibility to arrest, investigate and prosecute individuals suspected to have engaged in acts of corruption of whatever nature especially financial misappropriation, expropriation and embezzlement in the case of EFCC, as well as corrupt enrichment or taking undue advantage of public offices or station in public office to curry undue advantages in course of official duties. ICPC on the other hand was to investigate the various forms of abuse of public office especially by state actors. Despite the creation of these two institutions not much progress was made in the fight against corruption aside from a few notorious cases of corrupt practices busted in some public offices in the first decade of the anti-corruption campaign.
This was insignificant to beat the pace of financial corruption and misappropriation of state funds in the country especially in official Government circles nor tackle increasing cases of abuse of public office daily evident in state departments. This development called for a more proactive step in the anti-corruption campaign involving the Whistleblower approach in the anti-corruption struggle by the Nigerian government.
THE LAUNCHING OF THE WISTHLE BLOWING POLICY IN NIGERIA
In Nigeria, the Whistleblower policy or program is an anti-corruption strategy that involves and encourages citizens to willingly and voluntarily disclose information on fraud, abuse of government office, acts of bribery, stolen or looted Government funds, financial inducements, misappropriation of state funds and misconducts in the course of government business or involving Government assets or any form of corruption at all by state officials.
The policy requires that any whistleblower who provides any information involving financial inducements, misappropriation or mismanagement or tip about any fleece or stolen funds in any Government ministry, department or agency is entitled to 2. 5 per cent of the recovered funds if any by the Nigerian Government.The Whistleblower policy was launched in December 2016 and by October 2017, it was confirmed by the acting EFCC chairman that the policy had started producing fantastic results following the recovery of a huge amount of money suspected to be stolen state funds at No. 16 Osborne Road at Ikoyi Lagos with the help of a whistleblower amongst other such discoveries running into several millions of dollars.Irrespective of the progress made with the incorporation of the whistleblower policy in the anti-corruption campaign of the Nigerian Government, it is unfortunate to observe that Nigeria has no comprehensive whistleblower law as a guiding instrument or framework to administer the Whistleblower policy of the government and to protect the Whistleblower.
Currently, the anti-corruption agencies rely on whistle-blowing and protection of the Whistleblower on some provisions of the enabling statute founding their agencies or the provisions of section 39 of the constitution of the Federal Republic of Nigeria 1999 as amended. This section of the law as we shall soon observe including the said constitutional provision is insufficient and inadequate for a nation struggling under the yoke of corruption. A look at some of the statues at this point is germane.
SECTION 39 OF THE 1999 CONSTITUTION OF NIGERIASection 39 (1) of the 1999 constitution as amended provides that “Every person shall be entitled to freedom of expression including freedom to hold opinions and to receive and impart ideas and information without interference” Though this constitutional provision is not specifically targeted As a law for Whistleblowing but enhances and gives citizens the power and opportunity to hold and disclose information which can aid the whistleblower policy.
By this constitutional provision and other related sub-sections of this section of the constitution, one can argue that the whistleblower policy of the government has a legal backing rooted in the constitution but the question is, is this enough? The complexity of the fight against corruption in a legal and judicial system largely described as chaotic and dysfunctional requiring thorough checks and balances and citizens’ .participation in every aspect of the governance process for political accountability is particularly inadequate.
SECTION 64 (1) INDEPENDENT CORRUPT PRACTICES AND OTHER RELATED OFFENSES COMMISSION ACT AND THE EXPLANATORY MEMORANDUM.Section 64 (1) of the I.C.P.C Act as well as the explanatory memorandum to the act provides the legal basis for whistleblowing and the protection of the whistleblower while reporting an offence or giving an information pertaining to a crime.Section 64 (1) provides “subject to subsection (2) where any complaint made by any officer of the Commission states that the complaint is made in consequence of information received by the officer making the complaint, the information referred to in the complaint and the identity of the person from whom information is received shall be secret between the officer who gave the information and everything contained in such information, identity of the person who gave the information and all other circumstances relating to the information, including the place where it was given shall not be disclosed or ordered or required to be disclosed in public but only on the trial judge and the defense lawyer in attendance in civil, criminal or another proceeding in any court or tribunal”. The explanatory memorandum to the I.C.P.C Act provides that “the Act seeks to prohibit and prescribe punishment for corrupt practices and other related offences. It establishes an independent corrupt practices and other related offenses commission vesting it with the responsibility for investigation and prosecution of Offenses thereof”, Furthermore, it states “provision has also been made for the protection of anybody who gives information to the Commission in respect of an offense committed or likely to be committed by any other person ‘ sub- section (2) of the said Act states “If any book, paper or other document, or any visual or sound recording or other matter or material which is given in evidence or liable to inspection in any civil, criminal or other proceedings in any court, or other authority as are referred to in sub- section (1) contains any entry or other matters in which any person who gave the information is named or described or shown , or which might lead to discovery, the court before which the proceeding are held shall cause all such parts thereof or passages therein to be concealed from view or to be obliterated or otherwise removed so far as is necessary to protect such person from discovery”. The above section of the ICPC Act provides for Whistleblowing and protection of the Whistleblower but is silent on the compensation of the Whistleblower as an encouragement and even protection from adverse financial punishment or punitive measures.A look at the EFCC Act is quite instructive in examining the need for a comprehensive Whistleblower protection law and assessing the role of anti-corruption and enforcement agencies in the whistleblower policy of the government. SECTION 38 AND 39 OF THE EFCC ACT.Section 38 (1) of the Act provides “The Commission shall seek and receive information from any person, authority, corporation or company without let or hindrance in respect of offences it is empowered to enforce under this Act. Sub-section (2) states A person who – (a) willfully obstructs the Commission or any authorized officer of the Commission in the exercise of any of the powers conferred on the Commission by this Act; or (b) fails to comply with any lawful enquiry or requirements made by any authorized officer by the provision of this Act, commits an offence under this Act and it liable to conviction to imprisonment for a term not exceeding five years or to a fine of twenty thousand naira or both such imprisonment and fine. It further provides for Protecting informants and information, etc and a Penalty for false information. Also, Section 39 provides that (1) 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.
SECTION 27 OF THE FREEDOM OF INFORMATION ACT 2011Section 27 of the Freedom of Information Act 2011 provides immunity for public officers against any form of civil or criminal proceeding for the disclosure in good faith of any information. The above section provides “Notwithstanding anything contained in the Criminal Code, Penal Code, the Official Secrets Act, or another enactment, no Civil or criminal proceedings shall lie against an officer or any public institution, or any person acting on behalf of a public institution and no proceeding shall lie against such person thereof for disclosure in good faith of any information or any part thereof under this Act for any consequences that flow from that disclosure, or for the failure to give any notice required under the Act if care is taken to give the required notice. From the above provisions of the law, it is clear that Nigeria has no comprehensive whistleblower legislation except fragments of sections of various laws enacted to tackle different aspects of corrupt practices in the country with sections of the legislation providing for Whistleblowing and protection of the Whistleblower.
THE NIGERIAN POLICE: POLICE IS YOUR FRIEND Unlike the EFCC Act, ICPC Act and Freedom of Information Act which have provisions for whistle-blowing and whistle-blower protection sections. The Nigerian Police Act does not contain whistle-blowing provisions or the protection of the whistle-blower. The Nigerian Police whistle-blowing policy is capsulated in the popular saying “POLICE IS YOUR FRIEND” This means that members of the public and citizens are expected to disclose to the Police in confidence information about a crime or suspected crime-violation of the law of any nature as the mark of a good citizen. The disclosure of such information is supposed to be in confidence and does not attract any reward to the giver of the information except at the goodwill of the Police. Often, the Nigerian Police and the state could place a bounty or announce to members of the public a certain reward for disclosing a particular information of need to the Police to track a crime or hunt down a criminal. There have always been complaints that such promises are not redeemed, at other times information given to the Police is mismanaged, exposing the giver of such information to adverse conditions of threats or harm by the perpetrators of the crime. Hence, the Police is your friend policy is grossly incompetent and inadequate as a whistle-blower policy and citizens or members of the society are skeptical of involving themselves in this process. This emphasizes the need for a comprehensive whistle-blower law encompassing the protection of the Whistleblower in Nigeria to secure the practice of whistle-blowing and ensure proper numeration and security of the whistle-blower. This will give the anti-corruption agencies and law enforcement agents an edge in the fight against corruption and properly situate it in the citizen’s domain. THE IMPORTANCE OF WHISTLEBLOWER LAW IN NIGERIAGiven the challenges posed by corruption to national existence and the peculiar situation that Nigeria finds herself as “fantastically corrupt” Nigeria needs a comprehensive whistleblower law. The importance of this cannot be over-emphasized given the progress made after the launch of the Whistle blower policy in 2016. Efforts should be reinvigorated to bring legislation in the character of the 2019 Whistleblower bill which did not sail through the national assembly to see the light of the day. The Whistleblower Bill 2019 was an effort to give statutory backing to the whistleblower policy and the practice of Whistleblowing, remuneration and protection of the Whistleblower. Section 18 of the bill seeks the prevention of victimization of the whistleblower while section 20 (3) makes available awards to the whistleblower when they suffer reprisals. The bill is commendable but needs a concerted effort to come to light. In the absence of a comprehensive whistleblower law, it will be difficult for the whistleblower policy to achieve much in the fight against corruption. A comprehensive whistleblower law will act as an incentive to encourage citizen’s participation in the fight against corruption and make it all-inclusive. A Whistle-blower protection Law will encourage citizens to disclose information willingly to state institutions and even make such information public if state officials are unwilling to act on it. Armed with a Whistle Blower Protection Law the burden of rigorous investigation will be highly reduced on the side of the law enforcement agencies but more importantly, the fight against corruption will be within the domain of the public. THE ROLE OF ANTI-CORRUPTION AND LAW ENFORCEMENT AGENCIESIt is clear that the anti-corruption agencies especially the EFCC and I.C.P.C much more than other state institutions need a Whistleblower law in Nigeria. By the nature of their mandate and job description, Whistleblower legislation is fundamental to the success of the anti-corruption campaign as a working instrument that enables citizen’s participation in the fight against corruption, openness and accountability.. To police Nigeria and contain various acts of corruption requires ingenuity, technology and a people-oriented approach. Such a law will go a long way in helping them achieve desirable outcomes within a short period. In this regard, the two agencies including the Police among others should work in collaboration with civil society groups to deepen the campaign for a Whistleblower law in the country. The anti-corruption agencies can work in synergy with civil society groups to sponsor a bill in this regard and persuade lawmakers to pass such a bill into law. This is likely to be a herculean task as most of the lawmakers at the National Level where the bill will be passed are subject to investigation by law enforcement and anti-graft agencies. It therefore becomes imperative that a combined effort of civil society groups and law enforcement agencies is invaluable for a sustained advocacy to have the Whistle Blower Protection Law passed at that level of government as a standard working instrument for the anti-corruption campaign.