An Overview of the Effectiveness of the Nigeria Whistleblowing Framework
The Nigerian Framework
Till date Nigeria is still without a whistleblowing legislation. By ‘without a legislation’, we mean that Nigeria does not have a comprehensive law that offers protection to whistleblowers. Rather, there are fragmented provisions offered by different laws in the country. For example, s.39 of the 1999 Constitution of the Federal Republic of Nigeria, which protects the freedom to impart information without interference. While not quite targeted at whistle-blowers, it does embody the spirit of disclosing information. In addition to this, there is s.64(1) of the Independent Corrupt Practices and other Related Offences Act which provides for the protection of whistleblowers’ identity when reporting on offences under the Act. This section has often been credited to be the start of whistleblowing in Nigeria, further down in s.63(3) the Act also provides for the punishment of whistleblowers who give false information. It is suggested that this is an important section as it serves to stand as a deterrent for abuse by the whistle-blower.
The protection of whistleblowers was again reiterated in s.39 of the Economic and Financial Crimes Commission (Establishment) Act of 2004. Again, s.27 of the Freedom of Information Act of 2001 protects Public Officers or Person acting on behalf of a Public Institution from civil and criminal proceedings. As we can see, so far, the protection of whistleblowers has been fragmented across different legislations. However, formal attempts have been made to create something more comprehensive. These formal attempts can be seen in the proposed Whistleblowers Protection Bills of, 2008, 2011, 2015 which sought to offer broader protections to whistleblowers, sadly, these Bills were never passed into law.
A New Path Towards Whistleblowing in Nigeria
In 2016 however, there was a more active drive to have some sort of whistle-blowing framework within Nigeria, hence the Whistleblowing Stop Gap Policy of 2016[1] was introduced. The policy was aimed at encouraging the reporting of mismanagement and misappropriation of public funds and assets. It also covered issues of corruption; collecting and soliciting for bribes; fraud etc. The policy introduced and adopted the approach or rewarding whistleblowers whose information leg to the successful recovery of fund.
It is suggested that the policy proposes an interesting moral question on whether rewarding whistleblowing is the right approach in creating a whistleblowing culture in Nigeria, or by doing so, this creates an avenue for perverse incentives where the reward becomes too attract that it encourages false reporting. It is suggested that depending on the perspective, the current approach of the Nigerian Government to reward whistleblowing can be justified. A key view on why whistleblowers should be rewarded has been based on the fact that the whistle-blower risks so much,[2] they risk dismissal (often it ends up being difficult for them to be rehired in same field), they risk losing their income, reputation. They undergo stress and intimidation and other possible retaliation. In light of this, some jurisdictions such as the USA have adopted the strategy of rewarding whistleblowers who speak up, although this is not necessarily the only way whistleblowing can be encouraged. This last statement is reflective of jurisdictions like the UK who have adopted a policy of not rewarding whistleblowers.[3]
Since the creation of the policy recoveries have been made in various currencies. A total of N7 Billion (£13 Million); over $ 300 million and £27,000 as at the last update had been recovered.[4] In terms of the tips that have been received, there have been over 1,000 tips with over 900 investigation with 6000 completed and 12 prosecuted and 4 convictions.[5] In terms of the overall effectiveness, it is suggested that because of the absence of legislation, this has impacted the level of protection available to whistleblowers and the potential to step up and whistleblowing so more needs to be done to provide for this. Since the policy came about there have been incidences of reprisals against whistle-blowers, some recent examples include Aliyu Ibrahim[6] who reported contract fraud within his organisation and was subsequently fired, as at the last update he has been fighting for reinstatement. There has also been Ntia Thompson who was fired for reporting the misappropriation of over $200,000.[7] Thompson was reinstated but he suffered a lot of victimisation that he had to be moved to another department, as at the last update he was still fighting to be paid his salary for the period he was fired (7 months).[8]
Looking at the potential for reprisal, we begin to see how important our previous point of protection being a key part of promoting whistleblowing culture in Nigeria. Going forward it is suggested that the foundation of any policy around whistleblowing should be, to give people the confidence to speak up when they witness wrongdoing; to protect them from reprisals should they choose to speak up and to ensure that perpetrators are brought to justice.
Recently the Whistleblowing Bill of 2019 has been introduced to give statutory backing to not only rewarding whistle-blowers, but also to protect whistleblowers from reprisals,[9] especially where there is victimisation. S.18 places a reverse burden in the perpetrator to establish that they did not victimise the whistleblower, there by potentially making claims easier. S.20 (3) highlights the relevant awards available to the whistle-blower where they have suffered reprisals and includes reinstatement, transfers to another department and reversal. A criticism of the Bill comes in the fact that is fails to provide for protection of the whistleblowers identity, thus reliance must still be placed on s.64(1) of the Independent Corrupt Practices and other Related Offences Act, so there is still reliance on other legislation. Nevertheless, the Bill has a lot of potential to be effective, however, until the Bill is passed into law, the Nigeria framework remains incomplete.
Citations
[1] This was introduced by the Ministry of Finance. See Federal Republic of Nigeria
‘Federal Ministry of Finance Whistleblowing Portal’ available at < http://whistle.finance.gov.ng/Pages/default.aspx > Accessed 7th April 2021
[2] Ben McLannahan ‘Best way to encourage whistle-blowers? Reward them -UK is among a handful of big markets not to offer money for raising alarms’ Available at < https://www.ft.com/content/cac4c994-3f24-11e9-9bee-efab61506f44 > Accessed 7th April 2021.
[3] Ibid
[4] Corruption Anonymous: The Whistle-blower Platform ‘Engaging Corruption in Nigeria – One Year of the Corruption Anonymous (CORA) Project’ (2018) African Centre for Media & Information Literacy Available at < https://whistleblowingnetwork.org/WIN/media/pdfs/Fraud-corruption-ME-NA-Nigeria-Whistleblower-report-2018.pdf > at page 11 7th April 2021.
[5] Ibid at page 12.
[6] Ibid at page 20.
[7] Ibid at page 15.
[8] Ibid
[9] See s.20 Whistleblowing and Witness Protection Bill 2019
Bibliography
Constitution of the Federal Republic of Nigeria 1999 (As Amended 2010).
Independent Corrupt Practices and other Related Offences Act 2000.
Economic and Financial Crimes Commission (Establishment) Act of 2004.
The Freedom of Information Act 2001
Whistleblowing and Witness Protection Bill 2019
Ben McLannahan ‘Best way to encourage whistle-blowers? Reward them -UK is among a handful of big markets not to offer money for raising alarms’ Available at < https://www.ft.com/content/cac4c994-3f24-11e9-9bee-efab61506f44 >
Corruption Anonymous: The Whistle-blower Platform ‘Engaging Corruption in Nigeria – One Year of the Corruption Anonymous (CORA) Project’ (2018) African Centre for Media &
Information Literacy Available at < https://whistleblowingnetwork.org/WIN/media/pdfs/Fraud-corruption-ME-NA-Nigeria-Whistleblower-report-2018.pdf >
Whistleblowing Stop Gap Policy of 2016 Available at < http://whistle.finance.gov.ng/Pages/default.aspx >