Human rights and anti-corruption bodies agree that Namibia needs expanded laws to protect whistle-blowers more in the fight against corruption.
By Catherine Sasman
WINDHOEK
“I will never blow the whistle on any corrupt practices that I may become aware of without proper protection to my person and integrity,” said a source that had been the catalyst for a wide-reaching investigation of corruption charges in a Government agency. “I will turn a blind eye and get the hell out of there.”
Speaking on condition of anonymity, the source claimed continuous victimisation at the hands of those who had been accused in a matter involving the misappropriation of millions of public funds.
“When I first stepped forward to report what I saw as outright corruption, I knew the possible risks involved for myself and my family. However, I thought that those risks would be managed and I trusted that higher offices would protect me, but I was wrong. I didn’t get anything out of my act of conscience except misery, threats and ill-health.”
The source claimed to have been stripped of her authority and privileges at her place of work. “I have been harassed, my life was threatened on numerous occasions, my e-mail and telephone were bugged – Telecom Namibia confirmed this at the time – and my car was vandalised. I have been told that I’d get fired or get disciplinary actions,” she claimed, saying that a former colleague had indeed been fired.
“He has lost his job, his house. He is left without a livelihood. I now get the feeling I am now blacklisted [barred] from any possible promotion that may come up,” the source charged. Her body has been threatened as well, she charged, claiming to have been followed by suspicious-looking characters “two or three times” in the past.
And although “things have become better” over the past few months, the source charges that she still gets stopped by political and other public figures who question her motives for having reported corrupt practices within the Government agency.
“But what prompted me to report these cases was my moral conviction that corrupt practices should not be tolerated at all levels in accordance with President [Hifikepunye] Pohamba’s zero-tolerance on corruption.”
In April last year, civil society organisations and other concerned groups expressed the need for substantive legislative protection of whistle-blowers at the first conference on corporate governance and anti-corruption. There, controversial whistle-blower in the Roads Authority Presidential Commission of Inquiry, Sofia Tekie, made an impassioned plea for greater protection.
Director of the Anti-Corruption Commission (ACC), Paulus Noa, acknowledged that there is not sufficient protection afforded to whistle-blowers under the current legislative provisions.
Currently, provisions are made within the ACC Act, as well as certain provisions in the yet-to-be-implemented Criminal Prevention Act and the Prevention of Organised Crime Act. The latter Acts have not yet come into effect because the relevant regulations have to be finalised and duly debated in the National Assembly.
Provisions in the ACC Act provide for the protection of the identity of whistle-blowers and/or witnesses. According to the provision on the “protection of informers and information” witnesses are not obliged to “disclose the identity or address of any informer or person who assisted the [Anti-Corruption] Commission in an investigation into an alleged or suspected offence”. These witnesses are neither obliged to “state any matter which may disclose the identity or address of such informer or person”. However, should witnesses and/or whistle-blowers be required to appear before a court of law, the court may require the disclosure of the identity of the “informer or person concerned”. For the protection of the witness or whistle-blower, the court may then use its discretion to “direct any person whose presence is not necessary at the proceedings to leave the courtroom before permitting the inquiry into the identity of an informer …”. The court may further issue an order prohibiting the publication by any person of any information that may disclose the identity or address of such an informer or person.
Furthermore, to protect the innocent, no action or proceedings of a disciplinary, civil or criminal nature may be instituted or maintained by any person or authority against any informer who has assisted the ACC in an investigation.
Noa added that certain provisions in the not-yet-implemented Criminal Prevention Act or the Prevention of Organised Crime Act also make provision for the protection of whistle-blowers. These Acts are not yet in full use because relevant regulations are still being worked on for these to come into effect.
“But we need legislation on its own on the protection of whistle-blowers as well as witnesses,” commented Noa. “Such protection should come into effect from the time the person lodge a complaint to the ACC until such a time that the person may become a witness in a court of law. If we have full legislation – an Act dealing primarily with the protection with whistle-blowers, witnesses and other sources – it should also spell out how these people should be protected,” he continued.
He continued to say that thorough research should be done and the examples of other countries should be looked at to cover all areas required in the protection of whistle-blowers.
“Such legislation will give confidence to members of the public when they come forward with information. They will know that there is a law that covers them and that no harm will come to them,” added Noa.
National Institute for Democracy (NID) Director Theunis Keulder commented that his organisation has provided the ACC with examples of legislation and approaches to whistle-blowers from other countries. “It is absolutely necessary that Namibia looks at far-reaching protection for whistle-blowers, otherwise people will not come forward and will be afraid.”
The Media Institute of Southern Africa (Misa) Regional Head Office has similarly expressed concern over the fact that whistle-blowers are not fully protected. What is of primary concern for this organisation, though, is access to information and thus support for informers.
“In order to maximum information disclosure, the law should provide protection for whistle-blowers, that is, individuals who disclose information in contravention of the law and/or their employment contracts because they believe that such disclosure is in the public interest. Whistle-blower protection is based on the premise that individuals should be protected from legal, administrative or employment-related sanctions for releasing information on wrongdoing,” Misa maintains.
Human rights activist and executive director of the National Society for Human Rights, Phil ya Nangoloh, said that “even the Namibian society is not conducive to whistle-blowing”. “If one belongs to the same political party, you will turn a blind eye,” he opinioned.
Full legislation, said Noa, should first and foremost make provision for the protection of employees. Also to be covered, he added, are provisions to transfer an informer from his/her job without the threat of losing packages and perks.
“Protection should also be extended from the whistle-blower to the witness, because whistle-blowers often become witnesses when cases of corruption end up in a court of law,” Noa said. “If such legislation comes into force, it should, however, not be open to abuse by people with malicious intent,” he cautioned.
Members of the public, urged Noa, should in the meantime not hesitate to contact the ACC. Usually, he said, the public send faxes or e-mails alleging corruption. Other times they physically come to the ACC to report cases of corruption.
The drawback of anonymous calls, letters or faxes, he said, is that the Commission cannot establish contact with these informers once the investigation has begun. “We often need to get back to the informer to further guide us in our investigations as this person may sit with other information not initially disclosed.” The ACC is furthermore obligated to report back to the original source of information on progress made on any specific case.
“But we shouldn’t wait to come up with full-scale legislation and protection of whistle-blowers. We should not wait until a situation arises and we are stuck somewhere scratching our heads.”