Whistleblower as the gatekeeper of good governance – four years down the line
Four years ago ‘The Whistleblower as the gatekeeper of good governance’ was written to delve into the background of whistle blowing and evaluate its pros and cons. From 2012 onwards, whistleblower programmes were introduced in the Central Bank of Nigeria (CBN), Securities Exchange Commission (SEC) and the Nigerian Stock Exchange (NSE). This was a welcome development at the time because it underscored the need to restore investor’s confidence in the capital markets and curb bad practices, which were then rampant. It was a much welcomed initiative because for the first time the capital markets sector properly joined the long standing fight against corruption and malpractice as well as align with global best practice and boost corporate governance.
The major questions posed at the time when whistleblowing was still a new initiative were:
How do we collectively and actively promote the culture of whistleblowing in the public and private sectors?
2. How do we encourage whistleblowers to come forward?
3. With no legislative backing how will whistleblowers protection be assured?
4. Will the whistleblowers ever get paid?
In recent times, whistleblowing, has become widely accepted in Nigeria and the awareness has grown such that the terminology has now penetrated popular Nigerian parlance and culture. Exactly how and why did this paradigm shift take place? The turning point possibly arrived when The Federal Government of Nigeria through the Ministry of Finance adopted a Whistleblowing programme in 2016 tagged “FMF – Whistleblowing Programme”. The implementation of the programme effectively set the tone ‘at the top’ and gave further credence to whistleblowing as a tool in the fight against corruption.
According to its FAQ, the FMF Whistleblowing programme is designed to ‘encourage anyone with information about a violation of financial regulations, mismanagement of public funds and assets, financial malpractice, theft to report it.’ The programme is aimed primarily at aiding the recovery of stolen funds and the abuse of public office. Whistleblowing programmes are typically designed to help expose illegal, unethical practices in either the public or private sector.
Jurisdictions such as the United States of America passed the extant Whistleblower Protection Act as far back as 1989 with a clearly defined framework that sets out and guarantees the level of protection for informants. In 2017, the US Securities and Exchange Commission (SEC) awarded $1.7m to an informant who uncovered an intricate fraud that would have been difficult to detect without a witness coming forward. The US SEC has awarded a staggering $158m in total to informants since 2012, which would have undoubtedly encouraged and maintained a steady stream of informants to come forward. In Nigeria, there remains insufficient information concerning rewards, promptness of the payouts and protection afforded to whistleblowers. Presently, there is an ongoing investigation (debacle) involving two informants who blew the whistle on the infamous loot found in the Ikoyi property amounting to $38m, £27m and N23m. It is a cause for concern that not only are the names and identities of the whistleblowers revealed by the press, but contradicting reports persist that they are yet to be paid for a variety of reasons despite the fact the law states payment must be made within 30 days.
The introduction of the FMF whistleblowing programme 2016 reveals the intent and willingness of the government to use whistleblowing effectively as a new means to fight corruption and uphold the rule of law. A robust whistleblowing programme not only empowers individuals to play a more active role in civic society by exposing wrongdoings and ensuring justice, it arguably helps to create a safer, more law abiding environment. However, it functions properly only when reporting channels are effective and confidentiality is guaranteed. There still exists some lack of clarity and possibly fear about what it entails to become a whistleblower notwithstanding the attractive compensation scheme (set between 2.5% and 5%). It is arguable that because whistleblowing is largely perceived as betrayal, with a “bad belle” notion and individuals may be reluctant to disclose. Concerns persist about safety and security, degree of risk, fears about job loss and all other issues associated with whistleblowing often make people reluctant to come forward especially in cases where the individual has strong ties and interests.
The pertinent question being asked in 2017 is how is the protection of whistleblowers assured? According to the FMF programme, the Federal Ministry of Finance promised that whistleblowers’ confidentiality will be maintained to the “fullest extent possible” within “the limitations of the law.” The question is, what exactly are these limitations? This is yet to be defined.
A robust whistleblowing programme backed by the law protects the fundamental rights of the individuals especially their freedom of speech. The WhistleBlower Protection Act, 2008 was passed into law in June 2017 and it provides, inter alia, for the protection of informants who disclose information relating to unlawful or other illegal conduct or corrupt practices of others, from victimisation of persons against whom these disclosures have been made.
The FMF programme goes further and not only ‘guarantees the anonymity of all individuals that disclose’ but gives individuals the choice not to disclose his or her identity altogether’.
Whilst this is encouraging, it is necessary to hammer the point home that it is equally important to ensure that not only is remuneration is paid but that it is paid promptly and the identity of whistleblowers is never compromised and is carefully guarded at all times to protect the integrity of the programme in the long term.
The whistleblower in the public or private arena has an integral role to play in the detection and prevention of fraudulent and corrupt practices, and without them major corrupt practices may carry on unchecked. A key recommendation could be the setting up of an independent body or committee to review the way whistleblower cases are handled from start to finish. At this point, we must remind ourselves that we must not view the whistleblower programme and policies in isolation.
Mr Falana (SAN) rightly suggested, in an interview that in order for the whistleblower programme to succeed in the long term there must be serious political will and a concerted effort from not only the government but the anti corruption agencies as well. It is hoped that when we eventually reach a point in our nation, where corruption is no longer endemic nor deemed acceptable, this shift in attitude will surely empower the whistleblower to act without fear of reprisal.