There is a very funny cartoon trending in the social media. It is about a teacher who asked some pupils what they would like to be when they grow up. The pupils all replied they would want to become whistle-blowers.
The federal government launched its whistle-blowing policy in December 2016 to help expose financial crimes and concomitantly strengthen its fight against corruption and impunity. Domiciled at the Federal Ministry of Finance (FMF), it is hoped that through the policy, more looted funds will be recovered.The policy has three key components- the channels for reporting information and the type of information to be reported, reward for reporting fraud (the whistle-blower will get between 2.5 per cent and five per cent of the recovered loot), and assurance of protection for whistle blowers.
There are several issues around the new policy:
One, a whistle-blower is a person who exposes any kind of information or activity that is deemed illegal and unethical and which information is perceived to be in the public interest. In the more advanced countries, most ‘whistle-blowers’ do not actually see themselves as ‘whistle-blowers’. They are usually ordinary public servants who notice something untoward in their organizations and pass on the information to appropriate investigative organs without any monetary incentive to do so. Whistle-blowers are animated by different impulses: for some, it may be love of country, for others it may be revenge and where there is monetary compensation for whistle-blowing, it could be a simple love of cash.
Two, given the level of polarization in Nigeria, it can be speculated that the reported high interest shown by many to become whistle-blowers is driven more by the love for lucre than any patriotic zeal. The twisted logic could be: if some could loot, the new policy gives those who do not have such opportunity a chance to get their own cut and level the playing field. It may be a perverted sense of social justice. Just imagine if a whistle- blower gets the minimum 2.5 per cent of the $43m reportedly found in an Ikoyi apartment by the Economic and Financial Crimes Commission (EFCC). That will be over $1m (N400m) -or several times more than what most ‘well-paid’ Nigerian professionals will ever make in their life time. In this context I can see the sense in the cartoon where the pupils said they would like to be whistle-blowers when they grow up. However, before you start thinking of quitting your job (or folding your business) to get your own cut, it will be wise to remember that there is a caveat to the government’s promise of monetary reward: the whistle-blower will get between 2.5 per cent (minimum) and five per cent (maximum) of the recovered loot, only if “there is a voluntary return of stolen or concealed public funds or assets on the account of the information provided”. As we can see from what was recovered in the Ikoyi apartment, the ownership could be contentious which could lead to long-drawn legal battles. What happens to the whistle-blower in the interim in terms of compensation? By the way we read that through the help of a whistle-blower, the EFCC discovered $9.8m and £74, 000 in a building owned by a former group managing director of the Nigeria National Petroleum Corporation (NNPC). It will be interesting to know if the whistle-blower got the requisite financial compensation or not. Additionally don’t forget that under the policy, if you make the security agencies to waste their time digging some soak-away in the hope of finding hidden treasures only for them to end up finding nothing but stinking human waste, you could become a candidate for one of our infamous prisons.
Three, the new euphoria about the whistle blowing policy gives the wrong impression that there are no such opportunities in our extant laws. Several times, the police and other security agencies have placed bounties on the heads of some wanted criminals and terrorists. We may want to know why there is usually not much enthusiasm by the citizens in trying to seize such opportunities. How many people utilize the help-lines offered by the police and other security agencies? The reasons why the Police and the rest of the law enforcement structures are not as trusted as in other countries will also manifest with the whistle- blowing policy once the euphoria settles.
Four, a very important question is how sustainable the policy is. You can’t hope to make a career in whistle-blowing if the policy is not sustained and we know that sustainability is not this government’s strong suit. There have been just too many policy summersaults that no one will be surprised if nothing is heard about this again after a while or if the Minister of Finance who is driving it is no longer around.
Five, crucial to any consideration of making a career in whistle-blowing is whether there will be laws to protect you from being harmed or victimized. What the policy offers so far is not robust enough. It says: “If you [whistle-blower] feel that you have been treated badly because of your report, you can file a formal complaint. If you have suffered harassment, intimidation or victimisation, for sharing your concerns, restitution will be made for any loss suffered”. We know how our institutions work and how the complaints you filed could be used against you.
Some supporters of the policy are hoping that the National Assembly will pass the necessary legislation to give legal teeth to the policy, including robust protection of whistle-blowers. I support this because the law is always necessary and useful in the implementation of any policy. However there are limits on how far the law could be used to protect whistle blowers. For instance while South Australia’s 1993 whistle-blower Act looks excellent on paper it has hardly helped in protecting any whistle-blower.In the US, there is the Whistleblower Protection Act of 1989 which stipulates that a federal agency “violates the Whistleblower Protection Act if agency authorities take (or threaten to take) retaliatory personnel action against any employee or applicant because of disclosure of information by that employee or applicant”. Despite this, the US Supreme Court in Garcetti v. Ceballos (2006) held that government employees do not have protection from retaliation by their employers under the First Amendment of the Constitution when they speak pursuant to their official job duties. In the UK, a 2015 survey by the law firm of Slater & Gordon found that over half of whistle-blowers in the UK were treated differently at work after they raised their concerns and a third of them felt isolated following raising a concern.
Six, how will the whistle-blowing policy impact on the extensive use of media trial by our corruption-fighting contraptions? In our type of society where justice is believed to be commoditized and the wheel of justice moves sluggishly, these contraptions (especially the EFCC) seem to believe that the court of public opinion is more important than the formal courts. For those who lead the EFCC, the strategy seems to be: if you cannot win quickly at the formal courts, there is the court of public opinion where many are baying for the blood of their supposed class, ethnic and regional enemies. It is much easier to pander to the court of public opinion and be treated as a hero or heroine than going through the time-consuming motion of proper sting operation and diligent gathering of evidence that will ensure conviction at the law courts. But this strategy creates its own problem as we have now seen with the cash haul at Osborne Tower’s flats in Ikoyi -or what Nigerians now call ‘Ikoyigate’. First we were told that $38m, £27000 and N23m were seized. However the dollar amount quickly changed to $43m once the Nigerian Intelligence Agency claimed ownership. People are asking what the EFCC planned to do with the $5m differential and whether it had been transparent in its previous disclosures. Additionally, the EFCC initially linked the cash haul to sacked NNPC director Mrs. Esther Nnamdi-Ogbue and when she denied, it linked it to former Chairman of the PDP Alhaji Adamu Mu’azu, who also denied. The haul has now variously been linked to founder of Ebony Life Television, Mo Abudu, former Governor Peter Obi and Transport Minister, Rotimi Amaechi, all of whom also denied ownership. The Nigerian Intelligence Agency and the Rivers State Government are however both claiming ownership. The bottom-line is that in its bid for a quick point in the court of public opinion, the EFCC unwittingly exposed its backside such that even some of its ardent admirers are now raising questions about its professional competence. In essence, the whistle-blower policy may either force the EFCC to change its ways or completely undermine it.