Stiff fines for false whistleblowing could weaken the law

23 February 2017 | Government

A Namibian policy think tank warns that the excessive penalties for false disclosures proposed in the Whistleblower Protection Bill could backfire and severely weaken the bill's intention to encourage whistleblowing.

Instead of encouraging reports on corruption and other wrongdoing in the public and private sectors, the threat of a N$100 000 fine or a 20-year jail term would act as a disincentive, the Institute for Public Policy Research (IPPR) comments on the recently tabled bill.

The IPPR welcomes the tabling of the bill, stating that it indicated Namibia's commitment to the UN Convention Against Corruption.

Nevertheless, while praising several aspects of the bill, the IPPR cautions that the risk of incurring stiff penalties could deter potential whistleblowers.

The IPPR argues that the punishment for false reporting should not be the same as the punishment for preventing disclosure of improper conduct.

“If lawmakers feel it has to be left in the bill then the maximum punishment should be vastly reduced,” it advises.

The IPPR believes that the penalties for false reporting are “unnecessary and could undermine the whole purpose of the bill, which is to encourage whistleblowers to come forward rather than to frighten off genuine whistleblowers who may already be nervous about the process.”

The IPPR emphasises that whistleblowers already face nerve-wracking hurdles before coming forward, as their information could “involve going against friends and colleagues and making powerful enemies”.

Another major concern is the independence of the oversight bodies.

The IPPR warns that if the agencies associated with the whistleblower protection law are perceived to be primarily arms of government lacking in-built guarantees of independence, they will not gain credibility with the public.

One recommendation is to ensure that those appointed to the Whistleblower Protection Office are sufficiently independent from government.

As it stands, the process by which the commissioner and the deputy commissioners will be appointed by the president and with the approval of the National Assembly does not adequately ensure the independence of the office, it says.

This lack of sufficient independence is underlined by the fact that the commissioner is allowed to appoint investigating officers, but in the case of special administrators it has to be done with the approval of the minister of justice, the IPPR states.

The IPPR recommends that a transparent process involving public interviews by an independent panel is necessary when appointing the commissioner.

The IPPR further recommends that the independence of the office should be emphasised in the law, which could mean an additional clause stating that no interference in the work of the office would be tolerated.

The bill currently favours state officials, specifically within the proposed Whistleblower Protection Advisory Committee.

“The committee is heavily weighted in favour of state officials. Instead, the committee should be a more balanced body including representatives of various professional bodies,” the IPPR recommends. Representatives could be selected from the churches, civil society, and individuals such as retired judges and journalists.

Another concern is that the bill stipulates that disclosures of improper conduct may only be protected if disclosures are made in good faith.

The IPPR argues that as long as information exposes wrongdoing and the whistleblower believes the disclosures to be true, their motivations should not be relevant.

The IPPR recommends that the clause be removed from the bill and emphasises that it is difficult for “any designated agency to second-guess the motives of a person making a disclosure”.

One of the positive aspects of the bill is the comprehensive list of detrimental actions that a whistleblower should be protected from, including dismissal, redundancy, demotion, transfer or disciplinary action, discriminatory treatment and a change in working conditions.

Also, the submission notes that the definition of improper conduct is wide-ranging and the bill offers numerous options for making disclosures.

The bill furthermore is applicable to government officials as well as the private sector.

The IPPR emphasises the importance of public education, saying that the Whistleblower Protection Office has the responsibility to educate the public about the provisions of the law and the necessity of exposing improper conduct.

JANA-MARI SMITH