Whistleblower Protection Bill Under Scrutiny

Following is an extract from the Institute for Public Policy Research’s (IPPR) commentary of the Whistleblower Protection Bill

An important indication of the commitment to whistleblower protection from Namibia’s politicians will come in the next few days as the Bill is debated in the National Assembly and the National Council.

Positive Aspects

There are many aspects of the Bill that should be welcomed. The IPPR notes in particular:

1.  The definition of improper conduct is wide-ranging. Disclosures of improper conduct can be made when a person believes a crime has been committed or is likely to be committed; when an institution is wasting, mismanaging or misappropriating resources; if there are threats to the health or safety of an individual or community; or if the environment is being degraded or is likely to be degraded, among others.

2.  The Bill offers different options for making disclosures – internally (e.g. to an ethics and integrity officer within a government department/organisation/company) as well as externally (e.g. to the Office of Whistleblower Protection).

3. The Bill is not only applicable to government and its officials but also covers the non-state sector.

4.  The Bill includes a comprehensive list of detrimental actions that a whistleblower should be protected from including dismissal, redundancy, demotion, transfer or refusal to transfer, disciplinary action, discriminatory treatment, and change in working conditions. The Bill also recognises that detrimental action can also be taken against a person associated with or related to a whistleblower.

Concerns and Recommendations

1. Improper conduct

While the list of types of improper conduct is reasonably extensive (as mentioned above) it should also include breaches of human rights and unfair discrimination. These items should be added to Section 2 of the Bill.

2. Good faith

Section 30 (4a) states that a disclosure of improper conduct may be protected only if the disclosure is made in good faith. As long as a whistleblower exposes wrongdoing, and believes that their disclosures are true, their motivations should not be relevant. Any emphasis should be placed on the veracity of the disclosure. This is because it is difficult for any designated agency to second-guess the motives of a person making a disclosure. Any doubts about the ‘good faith’ of a whistleblower should not be reason enough for not affording protection. Section 30 (4b), which emphasises that for a disclosure to be protected the whistleblower should have reasonable cause to believe that the information is substantially true, is adequate on its own. In view of this, Section 30 (4a) should be removed from the Bill.

3. Independence of various bodies

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.

a) Whistleblower Protection Office
The Office is supposed 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.

4. False disclosures

Section 30 (5a) 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.

5. Public Education

According to Sections 7 (1g) and 79, the Whistleblower Protection Office has the responsibility to educate the public about the provisions of the law and necessity for disclosures of improper conduct. The Office can also issue practical guidelines to help the public understand the processes involved in making a protected disclosure. As the various options and procedures outlined in the Bill are quite complex, it is vital that the Office is resourced and capacitated to do this public education work effectively.

The full text of the IPPR submission can be viewed here: http://ippr.org.na/wp-content/uploads/2017/02/IPPR_Comment_Whistleblower_Protection_Bill.pdf

Leave a Reply

Your email address will not be published. Required fields are marked *