Namibia moves to legally protect whistleblowers

By Lahja Nashuuta

WINDHOEK – THE Namibian government has moved to enact whistleblower legislation after many years of repeated calls by the citizenry of the Southern African country to provide an avenue for raising concerns related to unethical practices and provide legal protection to informers from retaliation.

Justice Minister Albert Kawana last Thursday tabled the Whistleblowers Protection Bill in the National Assembly, which he said is part of the government’s vision to make Namibia the most transparent country in Africa.

Namibia is among the first countries that demonstrated commitment to dealing with corruption. The country became a State Party to the United Nations Convention Against Corruption on 9 December 2003 in Merida, Mexico. The convention is a global instrument to address the scourge of corruption at global level.

Namibia, through Parliament, has also signed other conventions and protocols in the fight against corruption, including the African Union Convention on Preventing and Combatting of Corruption, the SADC Protocol against Corruption and the United Nations Convention Against Transnational Organised Crime.

In his motivation statement, Kawana told the National Assembly that the proposed legislation is part of President Hage Geingob’s vision to make Namibia the most transparent country in Africa. He said Geingob had directed that the Whistleblower Protection Bill should be finalised and enacted into law as a matter of urgency.

“In Namibia, there is a feeling that we have good laws on our statute books, but the only problem is lack of protection for patriotic citizens, law-abiding individuals and good citizens who report those who are involved in criminal or unethical activities.

“Lack of whistleblower protection has been realised by a number of countries and have since come up with legislation to close the gap.

“Indeed, even the United Nations has realised the importance of coming up with such legislation and it now encourages member states to adopt legislative measures aimed at addressing the problem,” Kawana said.

“Successful and winning nations of the world have put in place processes that regulate ethical conduct of officials in both public and private sectors.

“Ethics provide a guide as to what is acceptable and what is not acceptable in the conduct of business.

“What is accepted as unethical has consequences. Each and every patriotic citizen is called upon to report unethical conduct of officials in both public and private sectors.

“At the same time, such citizens should be assured that he or she will be protected by the State in the event of intimidation, harassment, detrimental action or any form of reprisal being taken against him or her for reporting such unethical conduct.”

Kawana pointed out that successful and winning nations of the world have put in place processes that regulate ethical conduct of officials in both public and private sectors.

Paulus Noa, the head of the Anti-Corruption Commission (ACC), has commended the government for finally coming up with the proposed law. He said the proposed legislation is a step in the right direction and a milestone in the Namibian statute books that should be welcomed by all.

Noa noted that there had been lack of comprehensive legislation to protect informants, and that once enacted the proposed law would enhance anti-corruption efforts by protecting persons who disclose information on corrupt activities from victimisation, and harassment.

“When we establish the anti-corruption work in the country, we realised that the provision on whistleblower and witness protection was not adequate enough.  While some people are claiming that they are not comfortable reporting corrupt practices because they are not protected by the law,” he said.

“There are scenarios where some people have been mum on corruption deeds being committed by their immediate supervisors and managers but cannot report it because of fear of victimisation and harassment,” he said.

“Therefore, it was established that the country needs a law that will protect and secure the employment of the whistleblowers by creating an environment where they can work freely without fear of victimisation”.

Noa, who has been at the helm of the anti-graft body since its inception in 2006, was recently elected to serve on the African Union Advisory Board on Corruption, and representing the Southern African region, along with Florence Ziyambi from Zimbabwe.

The 11 members of the AU Advisory Board on Corruption were appointed during the 28th Session of the African Union (AU) Assembly of Heads of State and Government on 31 January, in Addis Ababa, Ethiopia.

Controversy over New Law

Although it is still in the early stages of debate in the National Assembly, the Whistleblower Protection Bill has already generated public controversy. Local media and the general public expressed displeasure at some provisions in the legislation such as the fining of informers for misinformation.

Whistleblowers that provide false information are liable to hefty penalties. The Bill provides that “A person who intentionally makes a disclosure knowing or believing that the information contained in the disclosure is false or untrue, commits an offence and is, upon conviction, liable to a fine not exceeding Rl00,000 or to imprisonment for a period not exceeding 20 years, or to both such fine and imprisonment”

Human rights lawyer, Norman Tjombe, stressed that the penalties would be unconstitutional and may discourage the public from reporting corruption.

“In other words, the life, dignity and privacy of women victims are not as important as the reputation of those who may be falsely accused of corruption,” Tjombe was quoted as saying by a local daily.

Noa cautioned the public not to use the new law, once passed, to settle scores but said they needed to be careful when lodging complaints to avoid facing harsh punishment.

The public also took to social media to react to Kawana’s assertions that in extreme cases, informers might be required to voluntarily change their identities, including undergoing plastic surgery.

The minister explained the importance of protecting informers noting that, “it will be necessary to put such a whistleblower under the Witness Protection Act.

This is a new law that will have to be passed to protect witnesses. It will replace the current procedure where witnesses are protected under the Criminal Procedure Act of 1977”.

The proposed law seeks to establish the Whistleblower Protection Office to be headed by a commissioner, and will be tasked with the investigation of disclosures of improper conduct.

A tribunal will also be established that in part will lay criminal charges against any person who has committed a criminal offence under the Act.

Incentives

The proposed law has made provisions to incentivise whistleblowers.

“Experience elsewhere shows that in some countries, whistleblowing can be demanding to family members, especially in circumstances where the whistleblower is the sole breadwinner.

“In some cases, a whistleblower faces detrimental action against powerful forces such as employers who might take action against an employee for disclosing information of a criminal nature against the company.

“In such a situation, it is only fair and just to appreciate the courage of a law abiding citizen or person. Depending on the circumstances of the case, such a person deserves a reward,” Kawana said.

Noa said during the stakeholders’ consultations, it was proposed that the Whistleblower Protection Bill should contain provisions on incentives, where if a person has reported corruption that results in the recovery of a large amount of money or assets should be awarded with a certain percentage from the recovered money or asset.

He said the introduction of incentives has been proven to work in countries such as Nigeria where billions of dollars were recovered after the President introduced the law on witness protection.

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