Barely two months after its introduction, whistle-blowing has been yielding results. The Federal Government has so far recovered billions in naira and millions in dollars. The most stunning recovery was from former Nigerian National Petroleum Corporation (NNPC) Group Managing Director Andrew Yakubu, who allegedly kept $9.7million and £74,000 in a fireproof safe in a community in Kaduna State. Is the policy sustainable without the National Assembly passing a law to support it? Lawyers suggest ways to strengthen the policy.
It sounds incredible. But in just two months, with its whistle-blowing policy, the Federal Government has recovered $151 million, N8 billion, $9.2 million and £74,000. When the policy was introduced, many probably never gave it a chance. Now, the recovery of this huge cash has left mouths agape.
Aside being a tool to strengthen the anti-corruption war, two things stand the policy out.
It provides the government an opportunity to raise cash by recovering loot it had no knowledge of; and it gives the whistle-blower access to substantial financial reward for exposing crime.
The Federal Executive Council (FEC) approved the policy last December 21.
The policy’s legislative counterpart, Whistle-Blower Protection Bill 2016, passed the second reading on the floor of the Senate last October 20.
The Bill is one of the five proposed laws sought to be employed by President Muhammadu Buhari as weapons in the fight against corruption.
Others are the Office of the Financial Ombudsman Bill 2015, National Convicts and Criminal Records Bill 2015, Electronics Transactions Bill 2015, and the Nigerian International Financial Centre Bill 2015.
The 2015 version of the Whistle-Blower Protection Bill was one of the 46 bills that the Seventh Senate passed into law within 10 minutes on the eve of the end of its tenure in 2015. They were not signed into law by former President Goodluck Jonathan.
Last December 19, Ben Akabueze, Director-General of the Budget Office of the Federation, said the government planned to infuse N258.6 billion from recovered loot in this year’s budget.
Two months into the policy’s implementation, billions have been recovered, according to Minister of Information, Alhaji Lai Mohammed.
On February 12, he listed some of the recovered cash to include $151 million, N8 billion and $9.2 million.
Mohammed said: ‘’When we told Nigerians that there was a primitive and mindless looting of the national treasury under the last administration, some people called us liars.
“Well, the whistle-blower policy is barely two months old and Nigerians have started feeling its impact, seeing how a few people squirrelled away public funds.
‘’Yet, whatever has been recovered so far, including the $9.8million by the EFCC, is just a tip of the iceberg.”
How the policy operates
The policy, co-ordinated by the Ministry of Finance, requires anyone with information about a violation, misconduct or improper activity that impacts negatively on Nigerians and the government to report it.
According to information on the ministry’s website, the disclosure is expected to be made voluntarily and in good faith, by telephone, e-mail or through “a secure online portal” where the status of the report can be checked.
The subject matter of the report may include mismanagement or misappropriation of public funds and assets (e.g. properties and vehicles), financial malpractice or fraud, collection/soliciting bribes and corruption.
Others are diversion of revenues, fraudulent and unapproved payments, splitting of contracts and procurement fraud (kick-backs and over-invoicing etc.)
The policy assures the whistle-blower of anonymity and confidentiality “to the fullest extent within the limitations of the law,” or full protection if the person chooses to be known.
It states further: “Any stakeholder who has made a genuine disclosure and who feels that, as a result, he or she has suffered adverse treatment in retaliation should file a formal complaint to an independent panel of inquiry, that shall be set up to handle such complaint, detailing his/her adverse treatment.”
The problem of reward
At first glance, the reward for whistle-blowers appears to be attractive: between 2.5 per cent and five per cent, but a closer examination of this provision raises several issues.
According to the ministry, “A whistle-blower responsible for providing the government with information that directly leads to the voluntary return of stolen or concealed public funds or assets may be entitled to anywhere between 2.5 per cent and five per cent of amount recovered.
“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.”
Thus, for a whistle-blower to be entitled to a reward, the information supplied must prompt the holder of the stolen or concealed public funds or assets to return them to the government voluntarily.
What happens where the information supplied is authentic, but the holder of the loot refuses to give it up voluntarily and the government is only able to recover the loot through litigation or some other means? Does this imply that the whistle-blower will get nothing in this circumstance?
For instance, a Federal High Court in Kano on February 14 ordered the forfeiture to the Federal Government of $9,772,000 and £74,000 recovered from a former Group Managing Director of the Nigerian National Petroleum Corporation (NNPC), Mr. Andrew Yakubu.
The Economic and Financial Crimes Commission (EFCC) said it recovered the money on February 3, from a building owned by Yakubu in Kaduna, following a tip off by a whistle-blower.
If Yakubu fails to overturn the forfeiture order on appeal, does the recovery of the money by judicial means imply that the whistle-blower won’t get any reward?
Similarly, a telecoms firm has gone to court to claim ownership of the N8.4billion traced by detectives to an Ecobank account, following a tip-off from a whistle-blower. Has the court case damaged the whistle-blower’s chances of getting a reward?
Chief Gani Adetola-Kaseem (SAN) suggests that a whistle-blower legislation would make things clearer.
He said: “If the policy is a law, that will make it clearer to people and you can pin the government or anybody to the provision of the statute. I agree that for that reason, if you have the statute, i.e. an act of the National Assembly duly signed and assented to, it’ll make things clearer.”
Also, the whistle-blower’s information source must also not be a public one that the government has access to. One implication is that there will be little motivation for anyone to draw the government’s attention to the availability of such information.
However, according to the minister, not every whistle-blower appears to be interested in a reward.
Speaking in Abuja, at the inauguration of Human Rights Radio on February 13, he cited a whistle-blower who made a disclosure out of patriotism.
‘’I want to put on record that the fellow through whom we recovered N1 billion in an account told us he does not want any commission from the government and that that is his contribution to the country.
‘’But, I can assure you that we are not going to renege on our promise to give appropriate commission to anyone who gives us information that leads to recovery of money through this policy,‘’ Mohammed said.
Protection of whistle-blowers
How will whistle-blowers be protected? The policy does not specify. It merely states: “Any stakeholder who whistle-blows in public spirit and in good faith will be protected, regardless of whether or not the issue raised is upheld against any party.”
It states further: “Any stakeholder (internal or external) who has made a genuine disclosure and who feels that, as a result, he or she has suffered adverse treatment in retaliation should file a formal complaint to an independent panel of inquiry, that shall be set up to handle such complaint, detailing his/her adverse treatment.
“If it appears that there are reasonable grounds for making the complaint, the responsibility will be on the party against whom the complaint of adverse treatment has been made to show that the actions complained of were not taken in retaliation for the disclosure.
‘’Where it is established that there is a prima facie case that a whistleblower has suffered adverse treatment (harassment, intimidation or victimisation) 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 whistle-blower for any loss suffered.”
The above appears to suggest that the policy is more concerned with stepping in after the whistle-blower has already suffered adversity as a result of his disclosure. Thus, there is really no protection from harm for the whistle-blower.
Danger of inadequate protection
All over the world, examples abound of whistle-blowers suffering harm or adversity following their disclosure of criminal acts by others.
On May 22, 2015, Mr. Aaron Kaase, a Principal Administrative Officer (Press and Public Relations) of the Police Service Commission (PSC) complained to the EFCC, as well as the Independent Corrupt Practices and other Related Offences Commission (ICPC), alleging N275 million fraud against the PSC.
The ICPC investigated and cleared the chairman of the PSC, Mr Mike Okiro, of any criminal infraction.
It was, however, reported that Akaase was suspended indefinitely without salaries. He also allegedly faced threats to his life and family daily.
Also, last Wednesday, the University of Ilorin (UNILORIN) management suspended two lecturers for alleged “insubordination and causing disaffection within the university’’.
But the duo alleged that they were being victimised for exposing corruption in the institution.
On March 14, 2009, Moss Phakwe, an African National Congress (ANC) municipal councillor was assassinated.
He and a colleague, Alfred Motsi, had attempted to expose corruption in the Municipality and delivered evidence to ANC Secretary-General Gwede Mantashe and to the Office of the South African President.
Another meeting took place with Co-operative Governance Minister Sicelo Shiceka in Rustenburg, attended by Phakwe, Motsi and former Rustenburg mayor Matthew Wolmarans on March 12, 2009. Phakwe had spoken last and handed his dossier to Shiceka.
Before he did so, he had looked at Wolmarans and said: “Hate me, but don’t hurt me.”
Two days later, early in the evening of 13 March, 2009 Phakwe’s body was found slumped over the steering wheel of his car with two bullet wounds.
On July 17, 2012, Wolmarans was convicted and jailed for 20 years for Phakoe’s murder.
United States of America
In 1996, Marsha Coleman-Adebayo, a former senior policy analyst for the United States Environmental Protection Agency (EPA), filed complaints alleging that a company from the United States was mining vanadium in South Africa and harming the environment and human health.
The EPA did not respond, and Coleman-Adebayo reported her concerns to other organisations. Subsequently, the EPA refused to promote her and she filed a suit against the agency, alleging racial and gender discrimination.
On August 18, 2000, a federal jury found EPA guilty of violating her civil rights on the basis of race, sex, colour and a hostile work environment, under the Civil Rights Act of 1964. Her experience inspired passage of the Notification and Federal Employee Anti-discrimination and Retaliation Act of 2002 (No FEAR Act).
In October 2005, Shanmughan Manjunath, a former manager at Indian Oil Corporation Ltd (IOCL), spoke against adulteration of petrol. He was shot dead on November 19, 2005, allegedly by a petrol pump owner from the state of Uttar Pradesh
Prevention of abuse
One of the reasons the bill failed to fly in the sixth and seventh Senate was because of the fear that it could be used as a tool for witch-hunt.
It was also argued that the bills did not make provision for malicious and false whistle blowing.
So, what happens to a whistle-blower whose allegation is found to be false, malicious and hateful, thereby damaging someone’s reputation?
The policy seeks to prevent abuse by referring false disclosures to law enforcement agencies. It also does not stop aggrieved persons from seeking damages for defamation.
It states: “A first level review will always be carried out to determine credibility and sufficiency of information received. If you report false or misleading information, it will be referred to the enforcement agents for investigation and possible prosecution.’’
Lawyers urge National Assembly to pass bill into law
Lawyers are united in their support for the policy. They suggest that passing it into law would ensure its sustenance.
Seyi Sowemimo (SAN) said: “It is important that it should have legal backing because the policy is also supposed to offer some protection to those who do the whistle-blowing, so that no adversity will come to them and then, of course, I expect that there will be some reward for those who engage in the whistle-blowing.
“So, it’ll help if there’s some legal backing to assure people that yes, this money will come and, really, in a country like Nigeria, if we want this kind of policy to be sustained, it is better to pass it as a law, so that it won’t depend on whether the man who is at the helm of affairs is interested or not in pursuing that policy. It will be law, it will be binding on anybody including the government and as a matter of policy. The National Assembly should not waste time in passing that legislation.”
The Chairman of the Nigerian Bar Association Ikorodu Branch, Levi Adikwaone, said a legislation would offer greater protection for the whistle-blower.
He said: “For the practice of whistle-blowing to be successful, steps must be taken to protect the whistle-blower. The corruption in Nigeria makes it difficult for whistle-blowing policy to be an effective weapon in the hands of the people to assist the government.
“At the University of Ilorin, two lecturers are suffering because of whistle-blowing. They exposed corrupt practices allegedly committed by the management of the school and the next thing is they were dealt with. Now, what is their succour, their fate?
“So, if we have whistle-blowing as a policy, there should be laws to back it up, so that if anybody should expose a crime, such citizen must never suffer on account of that and if that citizen suffers as a result of that, there must be compensation. There should be an enabling environment to ensure that the prospective whistle-blower enjoys protection.”
Malachy Ugwummadu, president of the Committee for the Defence of Human Rights (CDHR), hailed the policy’s implementation as a “direct response to the frustrating and debilitating state of affairs and corruption in Nigeria. It is reported that the huge amounts already recovered from various private homes came from just three whistle blowers.
“Thus, what changed that the government could recover such amounts without a single arrest or prosecution? Two things: first, the percentage reward incentive attached to any credible information and second, the security of the information and informant. With every policy in Nigeria, emphasis should now be placed on strategies to prevent the abuse of such information.
“In effect, it is a welcome development. A country that has comprehensively enacted an Administration of Criminal Justice Act (ACJA) 2015 which expressly provides for plea bargain, parole system, community/suspended sentencing, etc. is gradually moving away from punishment focused criminal justice system to recovery/restitution driven system,” Ugwummadu said.
Source: The Nation Newspaper