SB 158: Whistle Blowers Protection Bill, 2016

Bill Analysis:

SHORT TITLE

Whistle Blowers Protection Bill, 2015

OBJECTIVE OF THE BILL

The objectives of the Bill are: -

• to encourage and facilitate disclosures of improper conduct by public officers and public bodies
• to provide protection for – persons who make those disclosures and persons who may suffer reprisals in relation to these disclosures;
• to provide for the matters disclosed to be properly investigated and dealt with

NUMBER OF CLAUSES/PARTS

The Bill has 8 parts and 57 clauses, including citation 

IMPLICATIONS OF THE BILL

If the Bill is signed into law -:

• a Chief Commissioner or any officer of the Public Complaints Commission authorized for that purpose may at any reasonable time enter any premises occupied or used by a public officer in their capacity, and inspect;
• A public body conducting an investigation on the request of the Chief Commissioner or person who made the disclosure shall give information within 28 days of receiving the request; (Clause 50)
• No civil or criminal proceeding may be brought against the Chief Commissioner or any official of the Public Complaints Commission (PCC) in respect of any act done or purporting to be done under this Bill (once passed into law) without leave of the Federal High Court (Clause 55(2))

GENERAL PROVISIONS OF THE BILL

1.       Part II – Who Can Make a Disclosure about Improper Conduct and to Whom?

         According to the Bill, a natural person who believes on reasonable grounds that a public officer or body:

• has engaged, is engaging or proposes to engage in improper conduct in their capacity as a public officer or body;
• has taken, is taking or proposes to take improper conduct or detrimental action;

        A disclosure, subject to the provisions of the Bill (when passed into law) shall be made to the Public Complaints Commission (PCC). A disclosure may be made in writing or orally

• A disclosure can be made anonymously (Clause 4)
• A person may make a disclosure about someone regardless of whether they can identify the person or body
• A person may make a disclosure about an act that happened before this Bill came into being (Clause 6)

2.       Part III – Protection of Whistleblowers  

• A protective disclosure may be made in accordance with the provisions of this Bill; however the person making the disclosure shall not be subject to any civil or criminal liability (Clause 10). Any provision in a contract that precludes a person from making a protective disclosure shall be void.
• There is a defense for absolute privilege in respect of the making of a protected disclosure. However, it does not qualify as a protective disclosure if the person making the disclosure commits an offense by making it.
• Provide short, medium and long term financing to participating financial institutions for on-leading to small scale, medium and industrial enterprises;
• A person’s liability for his own conduct is not affected by the person’s disclosure of that conduct (Clause 12).
• A person who takes detrimental action against a person in reprisal for a protected disclosure is liable in damages to that person (Clause 14). A person against whom a detrimental action has been taken may apply to the High Court for an order for the person to remedy the action or an injunction. (Clause 15)

3.       Part IV – Determination of Public Interest Disclosures

• If anyone makes a disclosure to the Chief Commissioner, the Chief Commissioner shall within a reasonable time after receiving the disclosure, determine whether the disclosure is of public interest (Clause 18)
• In making a determination, the Chief Commissioner shall be satisfied that the disclosure shows or tends to show that a public officer or body
  • Has engaged, is engaging or proposes to engage in improper conduct in their capacity as a public officer or body
  • Has taken or is taking detrimental action in contravention of the Act;

           The Chief Commission shall within a reasonable time notify the person who made the disclosure of the determination (Clause 19). This however does not apply if the person made an anonymous disclosure

4.       Part V – Investigation of Public Interest Disclosures by the Chief Commissioner

         The following are the functions of the Chief Commissioner under this Bill -

• To determine whether disclosures are public interest disclosures
• To investigate matter disclosed in public interest disclosures
• To prepare and publish guidelines for the procedures to be followed by public bodies in relation to disclosures, investigations, monitoring of investigations by public bodies and any other function conferred by the Chief Commissioner (Clause 20)

The Chief Commissioner shall not investigate a matter if the disclosure is trivial, frivolous/vexatious or if the person making the disclosure had knowledge for more than 12 months and failed to give a satisfactory explanation for the delay in making the disclosure. The Chief Commissioner must within a reasonable time notify the person making the disclosure of his or her decision not to investigate the disclosed matter (Clause 22(2))

The Chief Commissioner may refer a disclosed matter to another body to investigate if the matter relates to an officer or employee of the public body, or if the Chief Commissioners deems it appropriate to (Clause 23).

Subject to the provisions of the Bill, the Commission may regulate its procedure on an investigation of a disclosed matter in any manner that it thinks fit (Clause 24)

Investigation: - The Commission may request the Inspector General of Police to make available members of the police force to assist in the investigation of a disclosed matter (Clause 25).

The Commission may request a prescribed public body to make available, staff to assist in the investigation of a disclosed matter (Clause 26). The Chief Commissioner informs the relevant person in writing of the intention to conduct the investigation.

Investigation on a disclosed matter shall be in private (Clause 28). No hearing is required for the investigation of a disclosed matter. The Chief Commissioner may extract information in any manner for the purposes of conducting the investigation.

Confidentiality: - An obligation to maintain confidentiality does not apply to the disclosure of information for the purposes of an investigation by the Chief Commissioner of a disclosed matter (Clause 32). Likewise the federal government is not entitled to any privilege in respect of producing documents or giving evidence in relation to investigation of a disclosed matter

Access to premises: - For the purposes of conducting investigations of a disclosed matter, the Chief Commissioner may at any reasonable time, enter/inspect the premises occupied or being used by the relevant person or body (Clause 33)

Search Warrant: - The Chief Commissioner may apply to a Magistrate for the issuance of a search warrant in relation to premises the Chief Commissioner believes; on reasonable grounds that entry of the premises is necessary for the investigation (Clause 34). The warrant ceases to have effect after 28 days of issue.

Executing a Warrant: - On executing a search warrant, the executor must announce that they are authorized to enter the premises by the warrant. However this process may not be followed if the executor believes on reasonable grounds that immediate entry to the premises is required. (Clause 35)

Report on Investigation: - On completion of the investigation of the disclosed matter, the Chief Commissioner shall report the findings of the investigation to the relevant person and make recommendations as to the actions to be taken as a result (Clause 37).

The person who made the disclosure must be informed of the outcome of the investigation within a reasonable time after the completion of the investigation. This is not applicable if an anonymous disclosure is made. (Clause 38)

5.     Part VI – Investigation of Public Interest Disclosures

A public body shall establish procedures to facilitate the making of disclosures, investigate disclosed matters and protect persons from reprisals by the public body (Clause 39)

The Public Complaints Commission shall prepare and publish guidelines for procedures to facilitate the making of disclosures, conducting investigations of disclosed matters and for the protection persons from reprisals by public bodies/members/officers (Clause 40).

A public body may refer an investigation of a disclosed matter to the Commission if it considers its own investigation is being obstructed (Clause 43). Where a person is unsatisfied with the investigation by a public body of a disclosed matter, the person may request that the disclosed matter be referred to the Commission. The Chief Commissioner may take over an investigation if he is not satisfied with the public body’s investigation (Clause 45).

Unless the disclosed matter was made anonymously, the public body shall give notice to the referral person if the investigation is transferred to the Commission (Clause 48).

A public body conducting an investigation shall within 28 days of receiving the request, give the Chief Commissioner information regarding the investigation (Clause 50). At completion, within a reasonable time, the public body shall inform the person who made the disclosure of the findings of the investigations (Clause 51)

6.     Part VII – Reporting: -

At the beginning of each year, the Chief Commissioner shall cause an annual report to be laid before each house of the National Assembly (Clause 53). The contents of the report shall include provisions under Clauses 53(a) – (l). The contents of the annual report of a public body are specified under Clause 54.

7.    Protection of the Chief Commissioner & other Officers

The Chief Commissioner and other officers are not liable, whether on ground of want of jurisdiction or on any other ground, to any civil or criminal proceedings to which he or she would have been liable, in respect of any act done or purporting to be done under this Bill (when passed into law), unless done in bad faith (Clause 55)

No civil or criminal proceeding may be brought against the Chief Commissioner or any officer of the Commission in respect of any act done in carrying out their duties under this Bill (when passed into law), without the leave of the High Court (Clause 55(2))

8.     Offences and Penalties

• A person who takes detrimental action against a person in reprisal for a protected disclosure, commits an offence and is liable on conviction to a fine not exceeding N300,000 or to imprisonment of not more than 2 years or both (Clause 13);
• A person who obtains or receives information in the course of or as a result of a protected disclosure or the investigation of a disclosed matter under this Act who without reasonable cause discloses that information commits an offence and is liable on conviction to a fine not exceeding N100,000 or to imprisonment or both (Clause 17);

CONCLUDING ISSUES

The Public Complaints Commission (PCC) shall be the body to which disclosures can be made and the Chief Commissioner shall lead the investigations as provided by the Bill (Clause 3). As the Bill seeks to make alteration to the powers of the Chief Commissioner and other officers of the PCC, the Public Complaints Commission Act (LFN, 2004) may need to be amended to include Clause 55(2), which requires leave of the Federal High Court to be sued.

The monetary penalty of N100,000 provided under Clause 17 is not significant and would require a review in the near future. It needs to be reviewed upwards. Clause 14(2) is not clear and also requires a review. This Bill is relevant in the fight against corruption in Nigeria. Given that part III of the Bill is similar to another Bill before the House of Representatives – Witness Protection Programme Bill (HB 132) sponsored by Hon. Nkeiruka Onyejeocha, both Bills need to be consolidated. 

Infographic: