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Whistleblowing Act and the Authorised Persons

Publishing Date : 30 July, 2019

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Unpacking the Act for Better Implementation  
 
Do we have a moral duty to report wrongdoing in our place of work? Do we have a moral duty to report corruption, expose it and bring those that are greedy and selfish to face the law? Do we? Must we? Blowing the whistle on colleagues, family and friends, can we really do it?


Because fighting corruption at times means doing just that, whistleblowing. Whistle blowers are people who report the illegal or fraudulent actions of their employers and colleagues. There are some serious personal and professional costs associated with calling out wrongdoing.
Whistleblowers are often lauded for their bravery and honesty by some and loathed for their disloyalty by others. They are the first line of defence against corruption, crime and cover-up. So it is only good and moral to protect them, if one is serious about fighting corruption. Whistleblowing is an essential element for safeguarding the public interest and for promoting a culture of public accountability and integrity.


At global level, Botswana is a signatory to the United Nations Convention Against Corruption (UNCAC), which under Article 33 Protection of Reporting Persons is as follows:

Each State Party shall consider incorporating into its domestic legal system appropriate measures to provide protection against any unjustified treatment for any person who reports in good faith and on reasonable grounds to the competent authorities any facts concerning offences established in accordance with this Convention.


Like many countries, Botswana passed the Whistleblowing Bill which was enacted in November of 2017. This is a step in the right direction. It is however important to interrogate the Whistleblowing Act and reflect on the law, its interpretation and implications, and identify key conditions for providing effective protection for whistleblowers. The object of the Act is stated as follows:


“...to provide for the manner in which a person may, in the public interest, disclose information adverse to the public interest; to provide for the manner of reporting and investigation of disclosures of impropriety and the protection against victimization of persons who make the disclosures...”


The Act describes a whistleblower as someone who makes a disclosure of impropriety, either orally or in writing, in good faith, which disclosure the whistleblower believes to be true. The disclosure has to be made to an authorized person. “Disclosure of impropriety” is a disclosure of what the whistleblower believes shows or tends to show impropriety. Section 3 sets out numerous acts which would constitute impropriety including but not limited to a criminal or other unlawful act that has been, is being or is likely to be committed, where health and safety is likely to be endangered, where the environment is likely to be endangered and conduct of a person which amounts to breach of public trust (to name a few).

“Authorized persons” to receive disclosures of impropriety are:
the Directorate of Corruption and Economic Crime (DCEC)
the Auditor General (AG)
the Directorate of Intelligence and Security (DIS),
the Botswana Police Service (BPS),
the Ombudsman,
the Botswana Unified Revenue Service (BURS) and
the Financial Intelligence Agency (FIA).

In terms of the Act, an authorized person shall be obliged to receive a disclosure but has the discretion to determine whether or not the disclosure reveals impropriety. It proposes to provide protection to a whistleblower and makes the making of false disclosures, disclosing the identity of a whistleblower, the disclosure by a whistle blower to a third party of the contents of a disclosure made to an authorized person, disclosure of the details of a disclosure, victimization of a whistleblower and willful failure by an authorized person to take action on receipt of a disclosure, criminal offences with sanctions consisting of fines of up to P12,000 (approximately US$1202) and/or imprisonment of up to 7 years depending on the offence committed.

Despite the undisputed benefits to society, there remains some hostilities towards whistleblowing. Whistle-blowers are often victimized, isolated, criticized and in the workplace even dismissed for their actions. It is therefore important that they are properly informed about their rights and how best to raise their concerns about wrongdoing: who to speak to; how to speak and what to speak about.


Concerned citizens or employees who bring up issues regarding their communities or places of work should not be disturbed in their work or lives in any way and should be able to continue without fear of any punishment whether physical, social or emotional. Therefore, protection, safety and security of whistleblowers must take precedence, in the evoking of in good faith provision. Whistleblowing is an act of bravery and no matter what, such an act will have consequences – most likely negative at a personal level.


Conflicts of Interest, Nepotism, Cronyism, Asset and Interests Declarations and Whistleblowing

When a culture of nepotism, cronyism and lack of integrity, transparency and accountability entrenches, blowing the whistle carries connotations of betrayal.  Consequently, institutions and citizens lose out when there is no one willing to speak out in the face of corruption.
Corruption often goes unopposed when people do not speak out about it.


Whistleblowers claims must always be investigated, the issue of discretion is problematic in our legislation when it comes to receiving disclosures and their investigations. Real or perceived incidences of abuse of power, corruption, fraud and numerous shades of mismanagement and maladministration in both the public and private sectors must be reported, and this makes whistleblower protection an imperative of our time.


The Britain’s Institute of Business Ethics research (2007) established that “while one in four employees are aware of misconduct at work, more than half (52 %) of those stay silent”. And in a 2009 a Transparency International (TI) Report, following a survey of whistleblower measures in 10 countries, indicated: “… the majority of people who experience or suspect wrongdoing do not disclose the information.” One could argue that we view whistleblowing as a threat to one’s career and/or even life where stakes are high.


Victimization is ultimately the principal concern of whistleblower protection. Therefore, to use the Act as a tool to fight corruption the levels of security and safety must be raised so high that people feel safe to blow the whistle because they are ensured it will not be punitive for them.

Recommendations

In conclusion, having the Whistleblowing Act in place is noble, however, it must be an instrument that works for the people and the state. I would argue for the establishment of an equipped Whistleblowing Protection Unit, an autonomous and unprejudiced, to handle issues of whistleblowing. It would assist in the proper decision making on policy direction and best practices, appropriate actions to be taken on disclosures and investigate reports on detrimental action against whistle-blowers. Whistle-blower training will be crucial to provide for public sector agencies and publicly traded corporations and their management and staff.


And finally, questions one must know the answers to before blowing the whistle, to ensure one’s own protection by the law:

What happens after the disclosure is received? Any clear laid our procedures?
How are issues of secrecy and confidentiality dealt with?
To whom to send the disclosures? Are there categories in regards to who people report to?
What is allowed to happen in terms of reporting to permit protection?
Are the institutions obliged to take disclosures?
Is there a category of persons who may acquire the role of a whistleblower?
Does the environment really allow for the protection of whistleblowers?
Who has first access and when does the protection start?
What are the channels to follow upon receipt of a disclosure?
Are barriers high enough for protection?
Any non-state bodies to be considered e.g. CSOs to receive disclosures, and what are the legal implications?


Whistleblowing should also be distinguished from laws and policies on protection of witnesses.There is often confusion on this issue with many governments and media mistaking witness protection laws for whistle-blower protection laws. There is some overlap between the two, often including a promise to keep the identity of the individual confidential.


Whistleblowing is about preventing harm to the career and interests of the individual at the workplace. In whistleblowing, the focus is on the information, not the person who made the disclosure. Often, they are not asked to be witnesses but are merely bystanders once the disclosure is made. As noted by the Council of Europe Parliamentary Assembly “a whistle-blower will not necessarily wish to, or need to appear in court, considering that whistle-blowing measures are designed to in the first place to deter malpractices or remedy them at an early stage.”


As a practical matter, laws on witness protection are relating to a much more serious matter, involving usually the physical protection of the individual who will not testify in a criminal case unless they are promised protection, including from physical threats, and possible relocation. Witness protection can also be broader in scope, involving people who are not in the organization and might have merely seen something or come across the information they are being asked to testify on as part of their jobs. Source: Whistleblowing International Standards and Developments, Transparency International, 2009

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