The fact that people who come forward with disclosures can be held criminally liable and may face such excessive punishments could be enough to deter them from becoming whistleblowers, the Institute of Public Policy and Research (IPPR) has warned.
Regarding false disclosures, Section 30 (5a) of the whistleblowers’ Bill states that a person who intentionally makes a disclosure while knowing it is false commits an offence. On conviction, that person is liable to a fine not exceeding N$100 000 or a prison term not exceeding 20 years.
IPPR indicated that such an amount acts as a deterrent for potential whistleblowers.
“Whistleblowers are already involved in a nerve-wracking process that may involve going against friends and colleagues and making powerful enemies. The disincentives against coming forward with false information are already strong enough,” IPPR’s executive director, Graham Hopwood, said in a recently released publication titled ‘IPPR’s Comment on the Whistleblower Protection Bill’.
“Such criminal penalties, as outlined in Section 30 (5), are unnecessary and could undermine the whole purpose of the Bill which is to encourage whistleblowers to come forward rather than frighten off genuine whistleblowers who may already be nervous about the process,” said Hopwood.
He also indicated that the punishment for false reporting should not be the same as the punishment for preventing a disclosure of improper conduct from being made.
He said the clause on false reporting should be removed altogether and if lawmakers feel it has to be left in the Bill then the maximum punishments should be vastly reduced.
Although the research body has welcomed the Bill, it has expressed its concerns in a publication released this week.
On clauses related to improper conduct, Hopwood said while the list of types of improper conduct is reasonably extensive, it should also include breaches of human rights and unfair discrimination.
Section 30 (4a) states that a disclosure of improper conduct may be protected only if the disclosure is made in good faith.
The director also warned that if any of the agencies set up by the whistleblower protection law are perceived primarily as arms of government lacking in-built guarantees of independence they will not gain credibility with the public.
Regarding the Whistleblower Protection Office, IPPR wants the Office to be independent and impartial yet functions as part of the public service.
“In terms of its administration, it falls under the Ministry of Justice with the Justice Permanent Secretary acting as its accounting officer,” he said.
The Office will be responsible for investigating disclosures by whistleblowers, investigating reports of detrimental action against whistleblowers, deciding on appropriate action to be taken, initiating criminal charges, and giving policy direction on best practice.
“This mandate will in all likelihood mean that it has to investigate and take action concerning ministries, government departments, and state agencies (this would include potentially the Ministry of Justice). Therefore, the independence of the Office should be strengthened and guaranteed to ensure it is protected from undue influence,” Hopwood said.
According to Hopwood, the process by which the Commissioner and Deputy Commissioners are appointed by the President with the approval of National Assembly does not adequately ensure the independence of the Office.
“In fact, the process for removing a Commissioner from office is more exacting than the process of appointment in that the Judicial Service Commission has to appoint a review board if the President considers that a Commissioner may not be fit for office. The final decision on whether a Commissioner should be removed from post rests with the National Assembly.”
The lack of sufficient independence, according to Hopwood, is underlined by the fact that the Commissioner is allowed to appoint investigating officers but in the case of special administrators and administrative directives this has to be done with the approval of the Minister of Justice (Sections 16 and 17).
“To ensure the independence of the Office if would be preferable if the Commissioner was appointed following a transparent process involving public interviews by an independent panel made up of representatives from bodies such as the Law Society, the Public Accountants’ and Auditors’ Board as well as the Registrar of the High Court and the Ombudsman.”
He further proposed that the top candidates could then be forwarded to the National Assembly for approval after the selection process, similar to the process outlined in the Electoral Act of 2014 for the appointment of Electoral Commissioners.
Furthermore, the independence of the Office should be emphasised in the law, he said.
“There may need to be an additional clause stating that that: no person, including members of the Cabinet or Legislature, should interfere with the work of the Office – in much the same way that the Office of the Ombudsman is protected from interference in the Constitution.”
As for the Whistleblower Protection Advisory Committee, IPPR feels the committee as per the provisions of the Bill, is heavily weighted in favour of state officials.
“The Committee should be a more balanced body including representatives of various professional bodies, the church, civil society, and other esteemed individuals such as retired judges and former journalists.”