The good and bad of the Whistleblower Protection Bill

The new bill has potential for good -- we detail the issues that need to be fixed first

This is a summary of our official submission to Parliament on the recently-tabled Whistleblower Protection Bill. You can read the full comment here, or continue reading for a shorter version below.

The IPPR welcomes the publication of the Whistleblower Protection Bill which affirms Namibia’s commitment to the UN Convention Against Corruption (UNCAC), in particular Articles 32, 33, and 37. The tabling of the Bill in the National Assembly also marks another milestone in the achievement of targets set out in the Harambee Prosperity Plan.

An important indication of the commitment to whistleblower protection from Namibia’s politicians will come in the next few days as the Bill is debated in the National Assembly and the National Council.

There are many aspects of the Bill that should be welcomed. These include the types of improper conduct mentioned in the Bill – which range from misappropriation of funds to threats to the environment.

The Bill also offers different options for making disclosures – internally (e.g. to an ethics and integrity officer within a government department/organisation/company) as well as externally (e.g. to the Office of Whistleblower Protection).

The Bill has a broad focus – in that it is not only applicable to government and its officials but also covers the non-state sector.

However, the IPPR is concerned that some parts of the Bill miss their mark. Of particular concern are the lack of independence for various bodies and disproportionate punishments for false reporting.

If any of the agencies set up by the whistleblower protection law are perceived primarily as arms of government lacking in-built guarantees of independence they will not gain credibility with the public.

The Whistleblower Protection Office is supposed to be independent and impartial yet it will function as part of the public service – falling under the Ministry of Justice. The Office’s head will be a Commissioner appointed by the President and approved by the National Assembly.

To ensure the independence of the Office if would be preferable if the Commissioner was appointed following a transparent process involving public interviews by an independent panel. The process could be similar in some respects to the one outlined in the Electoral Act of 2014 for the appointment of Electoral Commissioners.

Furthermore, the independence of the Office should be emphasised in the law. This could be in the form of an additional clause stating that that: no person, including members of the Cabinet or Legislature, should interfere with the work of the Office  – in much the same way that the Office of the Ombudsman is protected from interference in the Constitution (Article 89 (3)).

False disclosures

Section 30 (5a) of the Bill states that a person who intentionally makes a disclosure while knowing it is false commits an offence. On conviction that person is liable to a fine not exceeding N$100 000 or a prison term not exceeding 20 years.

The fact that people who come forward with disclosures can be held criminally liable and may face such excessive punishments could be enough to deter them from becoming whistleblowers at all. Whistleblowers are already involved in a nerve-wracking process that may involve going against friends and colleagues and making powerful enemies The disincentives against coming forward with false information are already strong enough.

The IPPR believes the clause on false reporting should be removed altogether.

Finally, the Whistleblower Protection Bill will not be effective once passed into law unless there is a major publication education campaign about the importance of whistleblowing as a public duty.

The introduction of the Whistleblower Protection Bill is a major step forward for the promotion of accountability and integrity in Namibia. Whistleblowers play a crucial role in uncovering misconduct, mismanagement, corruption and other forms of wrongdoing.

It is our hope that MPs in the National Council and the NationalAssembly will give the intention behind the Bill their strong backing while also scrutinising carefully the various sections and clauses to ensure the envisaged whistleblower protection measures work in an optimal manner.

22 Feb 2017