Serious flaws in whistleblower bill. Refer to Standing Committee!

The Chairperson of the ACTION Namibia Coalition, Frederico Links said on Tuesday the Whistleblower Protection Bill, currently before the National Assembly is seriously flawed, calling for the Members of Parliament to refer this bill to a Standing Committee for investigation and for a public hearing.

“Unless the Whistleblower Protection law has the confidence of the Namibian public, it will fail to achieve its aim of encouraging those who know of wrongdoing to come forward to report such matters in the public interest while receiving protection from retaliation” stated ACTION.

ACTION is a coalition of civic organisations advocating for greater access to information and freedom of expression. The members are the AIDS Rights Alliance of Southern Africa (ARASA), Citizen Action Project Namibia (CAP Namibia), Citizens for an Accountable and Transparent Society (CATS), Editors’ Forum of Namibia (EFN), Insight Namibia Magazine, the Institute for Public Policy Research (IPPR), the Legal Assistance Centre (LAC), the Media Institute of Southern Africa Namibia Chapter (MISA Namibia), the Namibia Media Trust (NMT) and Sister Namibia. The advocacy group was formed in 2012.

In their analysis of the bill and its implications, ACTION pointed out three main areas of concern.

The first deals with the grounds on which whistleblower protection can be revoked. The bill makes provision for punitive charges if a whistleblower discloses information that brings government policy into disrepute.

“However, from the types of improper conduct outlined in Section 2 of the Bill, it is clear that disclosures could quite easily concern matters of policy. For example a whistleblower who reports about waste in a government department could be seen as questioning budgetary policy. Equally, a threat to the health and safety of a community or concerning environmental protection could also be due to the application of a government policy” ACTION stated.

“Therefore, 52 (1d) undermines the very purpose of the law. The clause would seem to be included in the Bill purely to ensure whistleblowers can not criticise government when making a disclosure.”

According to ACTION, the bill is unconsitutional as it violates the whistleblower’s right to freedom of expression. This point is underscored by Windhoek-based legal practitioner, Norman Tjombe who stated “Section 52 (1d) is blatantly unconstitutional. It will in fact discourage people from disclosing suspected cases of corruption, especially if there is a perception that such corrupt practices are official policy. This provision will ensure that less and less people will be willing to expose themselves to the wrath of this law.”

Regarding the proposed penalties of a N$100,000 fine or a gaol sentence not exceeding 20 years, the advocacy group said “We do not believe that criminal sanctions for false reporting will serve the intended purpose of the Bill. It has to be remembered that any person who deliberately makes a false report will not receive protection under the Bill and could therefore face potential dismissal or disciplinary action at their workplace. Depending on the nature of the false disclosure and its impact, they could also face a defamation case.”

“The inclusion of false reporting as a criminal offence and the potential heavy sentences associated with such an offence, will have a chilling effect on would-be whistleblowers who may already be risking their livelihoods, friendships and other associations by coming forward with information. The criminal sanction for false reporting is not necessary and should be removed from the Bill” stated Links unequivocally.

As a third major concern, ACTION cites the percieved independence of the variuos bodies that will be created by the bill.

“Since the Whistleblower Protection Office will potentially be investigating government departments and public agencies, it is important that it operates at ‘arms-length’ from government” ACTION advised, adding that the Commissioner must be appointed by an independent panel, and that the bill must make it very clear that no civil servant, including elected officials, may be allowed to interfere with the work of the Whistleblower Protection Office.

“If passed in its current form, the law will have the effect of warding off whistleblowers, rendering the Act null and void. Once a law, the Whistleblower Protection Act is also likely to face a legal challenge on the basis of the Constitution if appropriate amendments are not introduced” ACTION warned.