Changes to whistleblower law hopeful

Serious concerns raised by civil rights groups earlier this year about the unconstitutionality of the whistleblower protection bill were laid to rest this week when parliament passed an amended version of the law without the controversial clause.

Moreover, although experts say the bill could be further improved and strengthened, especially in terms of ensuring independence of the office and the removal of stiff fines for false disclosures, the bill’s facelift was commended by a coalition of Namibian activists, civil society and media organisations.

In a statement issued by the Access to Information Namibia (Action) coalition this week, the group said the changes may enable the bill “to live up to its potential, and allow the creation of a Namibia where whistleblowers feel free to report wrongdoing without fearing retribution.”

In general, the amendments in general “improved upon the original version” the group said.

In March, the inclusion of a section that would revoke protection of a whistleblower if they were found to criticise government policies, received widespread criticism and was described by legal experts as “blatantly unconstitutional.”

At that time, the Action coalition noted that section 52 (1d) “would seem to be included in the Bill purely to ensure whistleblowers cannot criticise government when making a disclosure.”

With the deletion of this clause in the new version, which is heading to the National Council now, the group stated that “Action welcomes government’s willingness to engage with stakeholders on this bill, and to take suggestions into account when drafting improvements.”

The fact that the bill was further strengthened with the inclusion of a section that explicitly protects those who blow the whistle on human rights violations, in addition to other acts of wrongdoing, was also praised.

The extension of whistleblower protection to those whose employment contracts mandate secrecy and the assurance that this protection continues by default until a tribunal has found otherwise, was also welcomed.

Nevertheless, the Action coalition said that despite these improvements, “the law is not perfect.”

Fines still a concern

Supporters of the law warned earlier this year, that excessive fines or jail time for false reporting could backfire and weaken the bill’s intention for encouraging whistleblowing.

In the new bill, lawmakers reduced the N$100 000 fine or a 20-year jail term to a N$30 000 fine or a 10 year jail-term, a reduction which was welcomed but not in line with recommendations to scrap the penalty entirely.

In March, the Action coalition warned that the criminalisation for false reporting “will have a chilling effect on would-be whistleblowers who may already be risking their livelihoods, friendships and other associations by coming forward with information.”

Yesterday, the Action coalition said it “is unfortunate that penalties for those who intimidate whistleblowers were also reduced”, even though the maximum monetary fine is, at N$50 000 and now higher than for false reporting.

The maximum jail term for any person, who uses force, coercion, threats or intimidation to prevent another person from a making a disclosure has remained unchanged at 20 years.

The Action coalition said that the overall independence of the office will depend on the final arrangement, after only minimal recommendations in this regard were included in the new bill.

There were also no improvements made to ensure the inclusion of a more diverse group of stakeholders in the Whistleblower Protection Advisory Committee.

JANA-MARI SMITH