The Whistle-Blower’s Conundrum: 3 Reasons why you should think before you blow the whistle

So, last week I was one of the millions of Nigerians who were left speechless at the news that $9.8 million was discovered in a property belonging to a former Group Managing Director of the NNPC — Andrew Yakubu. After the initial conversion of my income into US Dollars and trying to calculate how many years I would need to work for to earn that amount (wayyyy too many years), I then moved to the next daydream every single Nigerian lawyer would have had… ‘Imagine this guy was my client! How I would bill him into eternity!’ Then I woke up from my daydream and went back to work.

Fast-forward a couple of days later and I started hearing news about whistleblowing and rewards, and I was a bit confused as my understanding was that the Whistleblowing Act was still pending in the National Assembly. I did some digging and sure enough the Whistleblower Protection Bill only scaled the second reading in October 2016.

For those familiar with the process of law-making in Nigeria, that is still very early (for those not familiar, the infographic below should give you an overview of the process.

So, apparently, what happened in December 2016 was that the Federal Executive Council approved a policy devised by the Federal Ministry of Finance for whistle-blowers.

In a nutshell, what the policy provides is that if the government are able to recover stolen or concealed assets through information provided by a whistle-blower, then he/she may be entitled to between 2.5%-5.0% of amount recovered. In order to qualify for the reward, the whistle-blower must provide the Government with information it does not already have and could not otherwise obtain from any other publicly available source to the Government. The actual recovery must also be on account of the information provided by the whistle-blower.

What this means therefore is that at this present moment, the only framework for whistle-blowers in Nigeria appears to be this policy initiated by the Federal Ministry of Finance.

I read the policy (actually, the FAQs as I was unable to locate the policy document itself) and decided to share my thoughts on it:

1. The first issue for me is the definition of a whistle-blower, as defined in the FAQs of the policy –

A whistleblower is a person who voluntarily discloses to the Federal Government of Nigeria, through the Federal Ministry of Finance, a possible misconduct or violation that has occurred, is ongoing, or is about to occur with specific concerns which are in the public interest.

There are a couple of things to note there:

• For you to be a whistle-blower and take a benefit of this policy, the information needs to be disclosed through the Ministry of Finance (not any other agency).
• The definition really is for informants, people who are aware of the crime, therefore a co-conspirator or accomplice will technically not be classed as a whistle-blower and would be unable to take the benefit of the policy.

This might seem trivial to some people, but I think it’s an important fact. If you are aware of corruption on a massive scale, it is more likely that you are a part of it (either willingly or unwillingly). The policy does not appear to make provision for a co-conspirator/accomplice who has become born again, seen the error of his/her ways and wants to clear their conscience by reporting the crime.

If you are a co-conspirator or accomplice and you think you can escape punishment (and pocket a nice whistle-blowing referral), then you might just have another thing coming to you…

2. The next issue for me is the level of protection (or lack thereof) provided to the whistle-blower.

For clarity, I will quote the policy and my comments below. The FAQs of the policy state that:

Any Stakeholder who whistleblows in public-spirit and in good faith will be protected, regardless of whether or not the issue raised is upheld against any Party…

What this would seem to mean is that you must have altruistic motives in your whistle-blowing, the Ministry of Finance doesn’t want any jobbers trying to make a commission on their head.

Therefore seemingly buttressing the earlier point that ‘born-again accomplices’ will probably not be classed as whistle-blowers.

The FAQs go on to state that:

Where it is established that there is a prima facie case that a Whistleblower has suffered adverse treatment (harassment, intimidation or victimization) for sharing his\her concerns with the Ministry, a further investigation may be instituted and disciplinary action may be taken against the perpetrator in accordance with the public service rules/other extant rules and a restitution shall be made to the Whistleblower for any loss suffered.

Crucially the policy in purporting to protect whistle-blowers, only provides that it may institute disciplinary action against the perpetrator and make restitution for any loss suffered, and this is only where a prima facie case has been established. For the non-lawyers and non-Latin speakers, prima facie means evidence that, unless rebutted, would be sufficient to prove a particular proposition or fact, in this case that there was indeed an act of corruption.

The policy does not provide ANY immunity from civil or criminal prosecution. So, if I were to blow the whistle on Mr National Cake Eater (NCE), and then the relevant agency bungled the investigation and was unable to present a prima facie case, if Mr NCE so wished he could technically sue me in a civil case (for defamation at least, and maybe some other civil wrongs), and I would have to defend myself in court, and bear all the liability, no protection from the Ministry of Finance!

What this means also is that if during the investigation some of the evidence links me to partaking in the act of corruption or a related criminal incident, I would not be immune from criminal prosecution. I could technically be charged for a crime that I helped blow the whistle on.

3. The final issue for me (at least for now) is the fact that the policy is just that…a policy.

For anyone familiar with the way the hierarchy of laws work you will know that a policy pronouncement is not a strong foundation to build anything that could potentially affect people’s legal rights. The policy is subject to Laws in force in Nigeria, and so even if you were a clean whistle-blower (i.e. not an accomplice), and you blew the whistle with public spirit and in good faith, you could still find yourself in hot water. For example, if in the course of blowing the whistle a whistle-blower disclosed information which is expressly precluded from being disclosed by a law like the Official Secrets Act, then the whistle-blower would be unable to use the policy of the Federal Ministry of Finance as a defence to breaking the Law.

Laws trump policy. Simple!

Why is all this important?

To some people this might seem like nit-picking and just commenting for the sake of commenting. If you feel that is what this short article is about, then I apologise for wasting your time.

However, I honestly feel that we need to start to do things properly (and that’s the motivation behind pointing out these issues), the Executive (through the Federal Ministry of Finance) would have been better served to push for the legislation to be passed quickly at the National Assembly rather than putting together a policy which at best seems hurried and not well thought through…and at worse a recipe for protracted litigation and dangerous retribution.

I am an ardent believer in the need for there to be a genuine fight against corruption in Nigeria, but for God’s sake, let’s stop doing half-baked jobs that play to the gallery and let’s focus on building lasting solutions that can outlast current Ministers of Presidents.

Selah.