BY CHARLES KUMOLU
The ongoing contention over the delay in paying the whistle-blower, who exposed the sum of $43.5 million, £27,800 and N23.2 million hidden at No. 16 Osborne Road, Lagos, directly mirrors everything that is wrong with Nigeria.
Whether supporters of the current administration agree or not, the development speaks volume about the dysfunctionalities in the system. It is not just about the Buhari administration alone but the manifestation of the continuous failure of the institutions of governance in a country that daily, produces strong men instead of strong institutions.
The leadership class, the instruments of governance and the functionality of the laws of the country among others, were put on the spot by the issue.In fact, they have literally become casualties in this melodrama.
However, the saddest commentary is that the situation has further increased the deficiency of trust between the citizen and the state.
For a country and government that are struggling to earn the trust of the populace, what seems to be the ordeal of the whistle-blower is detrimental to the desire for a patriotic populace.
These observations which are widely held by analysts, were also aptly deduced by Vanguard from an exclusive chat with the Ikoyi Whistle-blower’s lawyer, Mr. Yakubu Galadima and the Whistle-blower himself, last Tuesday.
Though the government had agreed to pay at the end of this month, it did not change the belief of many that the controversies over the matter are emblematic of the systemic nature of Nigeria’s problems.
The 2016 Whistle-blower policy came indeed as a rare avenue of rejuvenating nationalistic feelings in a system where ethno religious allegiance is promoted above national interest.
But the latest development is such that could rather inspire individuals into reaping from the proceeds of corruption instead of exposing corrupt practices.
The above argument found relevance in the experience of the Ikoyi whistle-blower, who was reportedly labelled insane and consequently taken to a Psychiatric facility for persistently demanding for his reward.
The policy primarily seeks to support the fight against financial crimes by exposing such crimes and rewarding whistle-blowers.
In order to promote the practice, whistle-blowers are encouraged and offered protection from harassment or intimidation by their bosses or employers.
Specifically, the violations were found to include, but not limited to mismanagement or misappropriation of public funds and assets;financial malpractice or fraud; collecting/soliciting bribes, diversion of revenue, fraudulent and unapproved payments, and procurement fraud especially, kickbacks and over-invoicing.
A key aspect of the policy which is the issue of reward, clearly states that a whistleblower is entitled to anywhere between 2—5 percent of any amount recovered.
As impressive as this policy which was put together by the Ministry of Finance is, findings showed that there seems to be no law on the ground that clearly defines the programme.
The policy was also found to have been silent on the time frame for the payment of a whistleblower.
Though Sub-section 3 of the Whistle-blower Bill stated that “a whistleblower shall be paid within 30 days after the receipt of funds premised by his or her whistle blowing from the Attorney General’s office,” the programme under which the Ikoyi whistleblower is to be paid is silent on time-frame for payment.
Perhaps, this could have informed the reason the compensation has not been paid since June 2017 when Justice Muslim Hassan of the Federal High Court, Lagos, ordered the permanent forfeiture of the fund to the Federal Government.
Though the Senate had passed the Whistle Blower Protection Bill into law in line with Article 33 of the United Nations Convention against Corruption, UNCAC, which enjoined UNCAC signatory countries to incorporate in their domestic legislation provisions protecting whistle-blower from any unwarranted treatment, the policy by the Ministry of Finance is generally considered a policy-statement.
While some have argued that a policy statement may be lacking a legal background, others rely on judicial pronouncements to state that such policy ought to have been backed by an act of the National Assembly, NASS.
One of such pronouncements was the Wilkie vs FG case where it was ruled that:”A policy statement or guideline by the Federal Government does not give rise to a contractual relationship between the Government and a third party, and its non-implementation does not entitle the third party to a legal redress against the government.”
Also, in the In Fed Military Govt v Sani (N0.1) (1989) the Court of Appeal held that: “The policy of any government which has not received the force of law cannot be the basis for a punitive measure.”
The need for the policy to be backed by law was earlier stressed by the Speaker of the House of Representatives, Mr. Yakubu Dogara, who argued that passing the bill into law to protect the whistle-blower alone, was not enough.
He said:‘’This policy because it is not law, is subject to administrative review from time to time.
A law, is, therefore, required not just to protect the whistle-blower but also to prevent abuse of the policy. A policy may not be legally enforceable.
A robust framework on Whistle-blower’s law will no doubt enhance quick and seamless recovery, forfeiture, and confiscation of property in respect of anti-corruption offences.’’
Speaking to Vanguard on the matter, the Second Vice President of Nigerian Bar Association, NBA, Mr. Monday Ubani urged the Federal Government to ensure that the policy is backed by an act of the NASS.
‘’The government was clearly in a hurry about the policy in order to encourage Nigerians to report corrupt practices. That is what I observed because most of the things contained in that policy has not been enacted into law. But the Federal Government should not rely on that and refuse to pay a reward to anyone, who gave information leading to the discovery of corrupt practice. It behoves on the government to give what is due to anybody who offers information in accordance with the policy.
‘’The policy has to be enacted into a substantive law so that it can be defended in court. Passing it into a substantive law will engender confidence in the mind of the people, who are giving information.’’
However, the Nigeria Whistle-blower programme does not exist in isolation, as many countries have enacted whistle-blower laws to protect individuals.
The law reportedly originated from the United States as early as 1863 with the enactment by Congress of the False Claims Act. By 1989, the Whistleblower Protection Act was passed and amended in 2007.
Presently, it is known as the Whistleblower Protection Enhancement Act of 2007. Also, the United Kingdom passed the Public Interest Disclosure Act (PIDA) in 1999. These Acts offers protections for whistleblowers.
The UK defined a whistle-blower thus: “You’re a whistle-blower if you’re a worker and you report certain types of wrongdoing. This will usually be something you’ve seen at work – though not always. The wrongdoing you disclose must be in the public interest. This means it must affect others, e.g. the general public.
As a whistle-blower, you’re protected by law – you shouldn’t be treated unfairly or lose your job because you ‘blow the whistle’. You can raise your concern at any time about an incident that happened in the past, is happening now or you believe will happen in the near future.”