by Teingo Inko-Tariah
In December 2016, Nigeria’s finance Minister, Mrs Kemi Adeosun announced following a Federal Executive Council Meeting, that the Federal Government had approved a payment of up to 5% of recovered loot to any person whose act of whistleblowing leads to the successful recovery of illegally acquired wealth. Subsequently, the media was awash with reports that could entice anyone to immediately begin to look for ways to indict or implicate suspected looters, just for the reward.
There is no doubt that in order to successfully prosecute an anti-corruption crusade, there must be measures in place to protect people who disclose useful information which aid the recovery of looted public funds.
In fact, it is believed that Nigeria’s problem with endemic corruption is due to a number of factors, including but not limited to the fact that there is not enough motivation to stimulate people to speak up against the menace on one hand and no clear reference of instances where the full weight of the law has been applied to serve as a deterrent. This is as a result of the fact that the anti-corruption institutions are very weak, inefficient and so detached from the people that it is almost impossible to lodge a complaint conveniently.
Moreover, there is a fundamental problem with values possibly due to the years of decay in governance system. This has left the people to fend for themselves and provide basic amenities such as power, water, roads, healthcare, education and security; which come at a huge cost to individuals, families and communities that have lost faith in the ability of government to provide these amenities. The result is that people tend to bear the responsibility of government.
Again, with almost non-existent welfare schemes in the country people are left with no option than to cater for numerous extended family members who themselves have expectations especially from relatives who are ‘well placed’. So the focus shifts from the government to the citizen in terms of welfare leaving most people with the need for more income to meet the rising demands of survival for themselves and for those under their care. With this sort of grim situation staring people in the face, 5% compensation for whistle blowing which itself is a legitimate means of income, will sound very attractive. The problem however is that motivating people to report alone is not enough to combat corruption and money laundering except there is a clear indication that those who continually engage in such criminal activities are punished adequately enough to deter others.
Unfortunately, there is currently no legal regime for the protection of whistle blowers in Nigeria. The closest effort to establishing one are two bills: Whistle Blower Protection Bill, 2008 and Whistle Blowers Protection Bill, 2015. Obviously neither of these has successfully metamorphosed into law. Thus, there is no legal basis for which the protection of a whistle blower in the county can be enforced.
The key anti-corruption laws do not also provide adequate provisions for the protection for the whistle blower. Section 64 of the Corrupt Practices & Other Related Offences Act, 2000 (ICPC Act) provides that the information contained in a complaint, the identity of the complainant and circumstances of disclosure shall be kept secret and shall only be disclosed to a trial judge and defence lawyer in attendance in any civil or criminal proceeding. There is no penalty for wrongful disclosure of the identity of a complainant neither is there any restitution or compensation for a whistle blower who suffers victimisation as a result of complaints made in relation to corruption.
On the other hand, section 39(1) of the Economic & Financial Crimes Commission Act 2004 (EFCC Act) only provides that officers of the Economic & Financial Crimes Commission cannot be compelled to disclose information or identity of informants except by order of court. There is no indication of any penalty where information or identity of the informant is disclosed contrary to the law neither is there any form of restitution or compensation where an informant has been victimised as a result of information provided to the Commission. The Money Laundering Prohibition Act of 2011 as amended in 2012 and the Advanced Fee Fraud & Other Related Offences Act, 2006 are both silent on the issue of protection for whistle blowers.
Although Mrs Adeosun was reported to have said that the ‘Whistle blowing policy’ would be supported by a bill already receiving due attention of the National Assembly, the said ‘policy’ appears to have kicked off nonetheless. An online whistle blowing portal was launched by the Federal Ministry of Finance to enable people report and provide tip-off on cases of suspected abuse of public office. Surprisingly, there is no policy document, guideline or any official document from the Ministry in this regard. Rather, what is to be relied upon in implementing this ‘whistle blowing policy’ is a 5-page document titled “FMF [Federal Ministry of Finance] Whistle Blowing FAQs”. The said document which is in a question and answer format defines who a whistle blower is and answers other questions related to the operation of the policy.
Two key provisions of the FMF FAQs are financial reward and protection for whistle blowers. Excerpts from the FMF FAQs relevant to this piece follow:
10 – Will I be protected as a whistleblower?
Any Stakeholder who whistleblows in public-spirit and in good faith will be protected, regardless of whether or not the issue raised is upheld against any Party. Any Stakeholder (internal or external) who has made a genuine disclosure and who feels that, as a result, he or she has suffered adverse treatment in retaliation should file a formal complaint to an independent panel of inquiry, that shall be set-up to handle such complaint, detailing his/her adverse treatment.
If it appears that there are reasonable grounds for making the complaint, the responsibility will be on the Party against whom the complaint of adverse treatment has been made to show that the actions complained of were not taken in retaliation for the disclosure.
Where it is established that there is a prima facie case that a Whistleblower has suffered adverse treatment (harassment, intimidation or victimization) for sharing his\her concerns with the Ministry, a further investigation may be instituted and disciplinary action may be taken against the perpetrator in accordance with the public service rules/other extant rules and a restitution shall be made to the Whistleblower for any loss suffered.
12 – Is the whistleblower entitled to a financial reward?
A Whistleblower responsible for providing the Government with information that directly leads to the voluntary return of stolen or concealed public funds or assets may be entitled to anywhere between 2.5%-5.0% of amount recovered. In order to qualify for the reward, the Whistleblower must provide the Government with information it does not already have and could not otherwise obtain from any other publicly available source to the Government. The actual recovery must also be on account of the information provided by the Whistleblower.
Unfortunately, the document has no weight whatsoever to form the basis on which people should engage in any whistle blowing activity. Assuming the document was one which could have been relied upon; with regards to the compensation for whistle blowers, the conditions make it almost impossible for one to qualify. First, it only applies to funds which are voluntarily returned. Secondly, compensation would only apply if the Government does not already have the information or could not have obtained same through any other public source. Finally, the actual recovery must relate to the information provided. It is doubtful that those who were cajoled by the media reports of compensation for whistle blowing are aware of these conditions.
The Minister for information and culture, Lai Mohammed was recently reported to have called on Nigerians to join forces with the government and assist with its ‘whistle blowing policy’ to expose looters, claiming that within two months of launching the ‘policy’ the government had recovered a total of $160m and N8bn. While we hope that the legislature will rise to the occasion and see the need to enact a law as a starting point for creating a legal regime for the protection of whistle blowers, citizens are advised to exercise every necessary caution in making any disclosures as their actions could boomerang and they would be worse for it. Until there is sufficient guarantee that a whistle blower will not end up being victimized, no one should endanger him/herself in a bid to enjoy a purported commission from recovered loot.