A Critique of the Kaduna State Whistle Blower Protection Law, 2017: A Tool for Accountability

In Nigeria today, many of the organisation and public institution are dwindling or better collapsing as a result of impropriety, corruption, mismanagement and embezzlement of public resources . Despite the security and corruption protection agencies scrutiny , the impropriety is yet to be curtailed.

Although, it is the constitutional duty of every citizen to ‘render assistance ‘ and uncover any practice that will endanger the peace, order and sanity of public in every organization or association. Yet there is no instruments of enforcing this right and even when a citizen volunteers to ‘blow” the hidden abnormalities in his ministry ,he will be victimized, prejudiced and punished by the top-echelon members of his organization.

Therefore, the Kaduna state in order to enhance and encourage democracy and transparency in public service enacted this law . And this article intends to highlight the relevance of this law in ensuring a safe, transparent and accountable administration in Kaduna state.

Kaduna State Whistle Blower Protection Law, 2018

Generally, Section 24(e) of the Nigerian constitution made it a duty upon all citizen to “render assistance to the appropriate authority” for the mainatince of law and order in Nigeria. In fulfilment of the above constitutional mandate , any person who exposes the illicit behavior or unlawful acts in any organization or ministry is regarded as “whistle blower ” and in Kaduna state this law is purposely designed to protect such person.

Section 4 of this law defined whistle blower as a person who discloses or make a disclosure that:

a. An economic crime has been commitee , is about to, or is likely to be committed

b. A person has not complied with a law or is in the process of breaking a law or is likely to break a law.

c. A person has maintains a standard of living above that which is commensurate with his or her current or past known sources of income or assets

d. A person is in control or possession of pecuniary resources or property disproportionate to his or her current or past known sources of income or assets

e. A miscarriage of justice has occured , is occuring or is likely to occur

f. In a public institution there has been , there is or there is likely the be waste , misappropriation or mismanagement of public resources

g. The environment has been degraded , is being degrade or is likely to be degraded; or

h. The health or safety of an individual or a person of an individual or a community is endangered,has been endangered or is likely to be endangered .

However, for a person or a “whistle blower” to be protected by this law his disclosure must be purposely made on good faith, with a reasonable cause to believe that the disclosure is true,and “must” be made to the appropriate authority outlined under section 6(1) of the law (see generally section 5) the reason for these conditions is to avoid malicious and fallacious disclosure based on personal vendetta, or interests.

Beautifully, the learned draftsmen of this law recognized the level of civility in some other part of the state and the lack of writing skills which will/may hamper the successful exposure of the atrocious Activities in public enterprises , thus, the law recognized under section 7(1) of this law that the procedure for ‘whistle blowing’ can be made in writing, orally or by an electronic gadgets (e.g phones, recorder etc) . This section tends to widen the procedure in order to accommodate every intended ‘whistle blower ‘ .

However, where the disclosure is made orally or videoed , this law mandate the person to whom the disclosure is made to reduce same into writing and must contained same particulars as enumerated under section 7 (2) of this law . In the case of illiterate whistle blower ,the writing must be read over to him , interpreted and explained to him before he thumb imprint on the papers and a certificate of testification should be attached to the document.

In addition, where a person is either blind, or dumb or has other form of physical disability but is equally illiterate, a certificate of testification must be attached to his statement . (See generally section 8(2)(3))

The above condition is in line with the provision of Nigerian Evidence Act 2011 under section 84(4) which provides :

” In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate –

a. identifying the document containing the statement and describing the manner in which it was produced; or

b. giving such particulars of any device involved in the production of that document as may be appropriate for the purpose of showing that the document was produced by a computer; or

c. dealing with any of the matters to which the conditions mentioned in subsection (2) above relate, and purporting to be signed by a person occupying a responsible position in relation to the operation of the relevant device or the management of the relevant activities, as the case may be, shall be evidence of the matter stated in the certificate, and for the purpose of this subsection it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.

Therefore, in order to make a recorded disclosure admissible in the court and comply with provision of evidence act , the condition for certification was laid down by the learned draftsmen of this law .

Who can prosecute the offenders exposed by whistleblower

Under the Nigerian laws, pursuant to the provision of the constitution under section 174 and 211 , Attorney General of either state or federation is the sole person vested with the power to prosecute criminal matters . However he can delegate his power to certain established or recognized bodies (like police , EFCC ) .

Likewise, under this law the disclosure can be made to any person specified under section 6(1) of the law and these individuals must submit a copy of disclosure to Attorney General within seven (7) working days after receipt of disclosure. Thus, it is only attorney general that has the power to prosecute or decide whether a matter should be pursued or not. But, he can delegate his authority to other legal enforcement institution for investigation and the entire processes of investigation must not exceeds sixty (60) days .(See section 10 and 11(1) and (2)).

For effectiveness and in order to encourage whistle-blowing in Kaduna state, this law protects such person who voluntarily decides to help authority in uncovering the shits in his organization, society or institution. This protection is provided under section 15(1) and(2) of the law .

Section 15(1) says:

“a whistleblower shall not be subjected to victimization by his employer or by a fellow employee or by any other person or institution because a disclosure has been made “

Subsection (2) provides that :whistleblower shall be considered as having been subjected to victimization if because of making the disclosure :

a. He, being an employee ,is: dismissed, suspended, declared redundant, denied promotion, transferred against his will, harassed, intimidated , discriminate , etc. Additionally, this law further protects a whistleblower from any civil or criminal liability in respect of the disclosure (See section 19 of the law)

This provision replicates Section 27 of freedom of information act where it provides: “Notwithstanding anything contained in the Criminal Code, Penal Code, the Official Secrets Act, or any other enactment, no civil or criminal proceedings shall lie against an officer of any public institution, or against any person
acting on behalf of a public institution, and no proceedings shall lie against such persons thereof, for the disclosure in
good faith of any information, or any part thereof pursuant to this Act, for any consequences that flow from that
disclosure…”

Subsequently, the fact that an employee has an agreement with his employer and contained or formed part of the agreement is not to make disclosure of any unlawful operation within the company organization, that agreement is void (see section 20 generally)

Similarly, for the physical and social protection of whistleblower under this law, section 18 of this law ensure the protection of life and property of whistleblower on the hand of police. Upon request by the person so threatened, a police shall provide adequate protection to his life, family and properties.

Indubitable is the fact that human has a strong inclination or inseverable bond to monetary rewards or compensation. This law in order to encourage disclosure under section 21 provide for compensating the whistleblower where the disclosure is correct and true as may appear appropriate or based on percentage where the disclosure is on money fraud or money disclosure but subject to Attorney general regulations and prescription (See generally section 21 of the law).

Why This Law is a Tool for Accountability

The whistleblower protection law of Kaduna state if it will be effectively utilized it will serve as the tools for a good governance, transparency, accountability and democracy enhancement. It will help in checking the excessess , mismanagement and abuse of public resources in public corporation.

By exposing the hidden skeleton and the putrid action of many public servants,the level of mistrust, misdeed , corruption and maladministration will be highly checked in our system if not swept in toto.

If a citizen will feel the shield of law on his body and weight of law on his side for the good deed he does for the betterment of their society our democracy and governance will change and advance miraculously.

Recommendations

Inspite of the sagacity and meticulousness of the learned draftsmen of this law in drafting this law and in ensuring the goodness and in achieving the ends of enacting this law, this writer finds some loopholes which, to his view, will hinder the course of the application of this law or the achievement of the intended objective glaring at the Nigerian social context:

First, under section 17 of this law where it states that a victimized whistleblower must first submit his complaint to Attorney general before he can commence an action in court of law. Unfortunately, In Nigeria where prosecutorial authority takes more time to respond to a letter , the whistleblower may be injured seriously before the attention of Attorney General comes back to him. Thus, I suggest this condition precedent should be scrapped from the section so that an unrestricted right will be given to whistleblower to institute an action in court of law.

Second, in Nigeria where assassination and used of thugs is the customs and Form part of the normal but unlawful practice of many politicians, directors and top public servant, the writer is suggesting that a properly armed police should be attached to every whistleblower for the protection of his life and family and this should be as of right not upon request by the whistleblower.

Third, the identity of the whistleblower should not be disclosed but maintained confidential as the disclosure of the name will or can discourage other people from making disclosure.

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