Sunday, 25 August 2019

AN APPRAISAL OF THE WHISTLEBLOWING POLICY IN NIGERIA

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It is no longer news that the Federal Government in a bid to curb corruption, mismanagement of public funds and financial malpractice as well as encourage compliance with financial regulations has, through the Federal Ministry of Finance(FMF), introduced a whistle-blowing programme, known as the Federal Ministry of Finance Whistle-Blowing Programme (FMF- WBP). The Whistle-Blowing programme is aimed at encouraging anyone with information about a violation of financial regulations, mismanagement of public funds and assets, financial malpractice, fraud and theft to report it.[1]

Whistle-blowing, in the simplest of terms, means providing information about any illegality, usually for the purpose of protecting the public interest. The FMF has defined a whistleblower as a person who voluntarily discloses to the Federal Government of Nigeria, through the Federal Ministry of Finance, a possible misconduct or violation that has occurred, is ongoing, or is about to occur with specific concerns which are in the public interest.

Information on impropriety in the dealing or use of public funds or property, theft or corruption is acceptable by the FMF; it is particularly useful if such information is in the public interest. Information pertaining to personal grievances concerning private contracts is expressly excluded.
Information could be submitted anonymously. If a whistleblower does not wish to reveal his identity, he can do so and there would be no record whatsoever of his identity. Even if he chooses to disclose his identity, the utmost confidentiality would be maintained and his identity would not be disclosed, except in circumstances stipulated by law.

A whistleblower is expected to submit his information with evidence, if he has any, and with as much precision and specifics as to dates, time, events and persons involved in order to aid proper investigation.

A whistleblower has no criminal or civil liability and would not be subjected to disciplinary action of any kind for supplying information which turns out to be untrue if, at the time of supplying such information, he had reasonable belief that the information provided was substantially true beyond reasonable doubt and if his concerns were raised in public spirit and good faith. However, if it is discovered that a whistleblower intentionally supplied false and misleading information or made malicious claims, he stands the risk of being prosecuted after an investigation is conducted.

A whistleblower is entitled to a reward of about 2.5% - 5% of the amount recovered if he provided the Government with information that directly led to the voluntary return of stolen or concealed public funds or assets; provided the information is one that the Government does not already have and which it could not have obtained from any other publicly available source. The whistleblower would only get rewarded if the money is recovered on account of the information supplied by him.

The FMF-WBP assures stakeholders that if they whistleblow in public spirit and good faith, regardless of whether the information provided is used, they will be protected and where a whistleblower is victimised or where he suffers adverse treatment in retaliation for whistleblowing, he can file a formal complaint with a panel of inquiry which shall be set up to handle such complaints. If upon further investigation, it is discovered that a whistleblower has suffered some kind of retaliatory treatment for whistleblowing, disciplinary actions shall be taken against the perpetrators of such act and restitution shall be made to the victim for any loss suffered.

As laudable as the Whistleblowing programme is, its shortcoming lies in the fact that it is not backed by any law, a fact which could create problems.  There is no law in place to legally define the framework of the whistleblowing policy in Nigeria, there is also no law to provide adequate protection for whistleblowers and vest them with a right to redress in the event of any victimization. 

There is no law to compel the Government to pay Whistleblowers the stipulated reward due them in the unfortunate event that the government fails or refuses to give the stipulated reward.  The fact that the reward payable to Whistleblowers is not specifically stated may pose some problems (how do we determine what percentage would be paid to whistleblowers when the policy merely states that it is between 2.5 % and 5%).

The courts have stated that "A policy statement or guideline by the Federal Government does not give rise to a contractual relationship between the Government and a third party; and its non-implementation does not entitle the third party to a legal redress against the Government."[2]
If for any reason the Government fails to uphold its side of the bargain, the Whistleblower would be left with no remedy. It is for this reason that it is highly desirable to have in place a Whistleblowing Law.
 
 
 

 [1] Federal Ministry of Finance FMF - WHISTLE BLOWING  Frequently Asked Questions (FAQs) Accessed at http://whistle.finance.gov.ng/_catalogs/masterpage/MOFWhistle/assets/FMF%20WHISTLEBLOWING%20FREQUENTLY%20ASKED%20QUESTIONS.pdf
 
[2] WILKIE v. FGN & ORS (2017) LPELR-42137(CA)
 
 

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