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Tuesday, 9 March 2010

Public Interest Disclosure Bill, 2010

We have previously argued for legislation to protect whistle-blowers. Well its finally here - Public Interest Disclosure (Protection of Whistleblowers) Bill, 2010. The question of course is whether the current draft goes far enough.

The current draft seeks : (a) to provide for the disclosure of conduct adverse to the public interest in the public and private sectors; (b) to provide for a framework within which public interest disclosure shall be independently and rigorously dealt with; (c) to provide for procedures in terms of which employees in both private and public sectors may disclose information regarding unlawful or irregular conduct by their employers or other employees in the employ of their employers; (d) safeguard the rights, including employment rights of persons who make public interest disclosures; and (e) provide a framework within which persons who make public interest disclosure shall be protected.

When I first read the draft legislation it appeared to be a genuine attempt to do what it says on the tin. But the more I thought about some parts, the problems became obvious. It is my hope that Parliamentarians and the general media will spot these and ensure they are quickly addressed as the Bill progresses through the various stages.

First, although the Bill claims to provide for "a framework within which public interest disclosure shall be independently and rigorously dealt with", it is quite clear that the framework is particularly inadequate in so far as it relates to investigating agencies. The Bill requires investigating authorities to investigate themselves. Section 15 for example states :

(1) An investigating authority shall investigate a public interest disclosure received by it if the disclosure relates to : (a) its own conduct or conduct of a public officer in relation to the investigating authority; (b) a matter, or the conduct of any person, that the investigating authority has a function or power to investigate; or (c) the conduct of a person, other than a public officer, performing services for or on behalf of the investigating authority.

(2) Where an investigating authority investigates a matter in accordance with subsection (1) and is unable to investigate the matter impartially or without a conflict of interest, the authority shall refer the matter to another investigating authority.
Subsection (1) is comedy because surely by the fact that an authority is investigating itself it means it has conflict of interest? Conflict of interest here has not been sufficiently defined within the Bill. It seems to me that the best way forward to avoid the agencies acting defendant, prosecutor, judge and jury  is to simply require that any authority cannot investigate itself. This issue needs to be seriously addressed because the current draft is mockery of the original intentions of holding public servants to account.

Secondly, the Bill contains no monetary incentive or financial reward for whistle-blowing. We have seen that Liberia's President Ellen Johnson-Sirleaf recently issued a decree to pay and protect whistle-blowers as part of her campaign to tackle corruption. Under the new measures, anyone giving information leading to money being recovered will get 5% of that sum. There's need for us to follow that approach for reasons stated in that post. We don't want another amendment just to rectify the obvious. If this has been looked at and dismissed, we deserve to know how and why.

What I found even more baffling is that the current draft Bill actually criminalises "financial incentive" for whistle-blowing. Section 13 states :
(1) An investigating authority may decline to act on a public vexatious, etc. interest disclosure received by it where the investigating authority disclosures considers that (a) the disclosure is malicious, frivolous, vexatious or made in bad faith;....(f) the disclosure is made for pecuniary gain....

(3) A person who makes a public interest disclosure that falls within the meaning of paragraphs (a) and (f) of subsection (1) commits an offence and is liable, upon conviction, to a fine not exceeding seven hundred thousand penalty units or to imprisonment for a period not exceeding seven years, or to both.
Indeed Section 22 makes it more clear that a disclosure is not protected which is motivated by personal gain.
(1) A disclosure is a protected disclosure if :
(a) it is made in good faith by an employee : (i) who reasonably believes that the information disclosed, and any allegation contained in it, are substantially true; and (ii) who does not make the disclosure for purposes of personal gain, excluding any reward payable in terms of any law;
I have nothing against patriotism but it is seems utter folly to not recognise that financial incentives are a powerful tool for fighting corruption. The draft Bill as currently drafted is predicated on good will and moral uprightness. Corruption is part of our Zambian culture. We need to fight it with all tools at our disposal, including properly designed financial incentives. If that is too much, at least let us remain silent on the motive!

My third quibble is more procedural. Section 19  rightly provides a mechanism for whistle-blowers to keep track of their complaint :
(1) A person who makes a public interest disclosure, or an investigating authority which refers a disclosure to another investigating authority, may request the investigating authority to which the disclosure was made or referred to provide a progress report.

(2) Where a request is made under subsection (1), the investigating authority to which the request is made shall provide a progress report to the person who, or investigating authority which requested it : (a) within fourteen days from the date of receipt of the request;
and (b) if the investigating authority takes further action with respect to the disclosure after providing a progress report under paragraph (a).....
The need to only provide updates when "requested" is unnecessary and is characteristic of the entire act - "doing the minimum" rather than what is best to tackle the scourge of corruption. If these law enforcement agencies are going to be serious about their work, their accountability must be presumed. The best way to do is that ensure that they provide progress reports automatically.

The final point brings us to the underlying concern. There are appears no specific sanctions expected of law enforcement agencies if they fail to perform with regards to this draft Bill. Suppose I make a complaint against X and the investigating authorities fail to pursue it properly, then what? Yes, I am protected because I made the disclosure, but who ensures that authorities are pursuing these cases independently and vigorously as envisioned by the draft Bill?

A Million Words Project Review
New Parliamentary Bills (Not Passed) - Not Read:

The Immigration and Deportation Bill, 2010
The Dairy Produce Marketing and Levy (Repeal) Bill, 2010
The Dairy Produce Board (Establishment) (Repeal) Bill, 2010
The Dairy Industry Development Bill 2010"
The Registration of Business Names (Amendment) Bill, 2010
The Plea Negotiations and Agreement Bill, 2010
The Local Government (Amendment) Bill, 2010
The Forfeiture of Proceeds of Crime Bill, 2010
The Engineering Institution of Zambia Bill,2010

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