Whistleblower bill is seriously flawed

Whistleblower bill is seriously flawedWill not have the support of public The Action Coalition of Namibia is of the view that the Whistleblower Protection Bill is unconstitutional and will fail in its current form. A civil rights organisation has warned that passing the Whistleblower Protection Bill in its current form would render the act null and void.

The Action Coalition of Namibia (ACN) also foresees possible legal opposition that could arise if the bill is passed in its current form “on the basis of the constitution if appropriate amendments are not introduced”.

The ACN has joined numerous other critics in urging the National Assembly to refer the bill to a Standing Committee, for public hearings, to address the bill’s unconstitutionality and what it described as “several serious flaws”.

The organisation agrees that in its current form, the bill “will have the effect of warding off whistleblowers, thereby rendering the act null and void.”

The organisation said that “in order to allow time to address these shortcomings, the ACN of civil society organisations, is calling on the National Assembly to refer the bill to a standing committee which can investigate these issues further and hold a public hearing to allow for citizens input.”

The coalition cautioned that “unless the Whistleblower Protection law has the confidence of the Namibian public” it will fail to achieve its aims of encouraging people to come forward to report corruption or wrongdoing.

Frederico Links, the organisation’s chairperson, listed three main flaws in the bill which the group says must urgently be reviewed before the bill is passed.

The organisation pointed out that the section in the bill dealing with the withdrawal of whistleblower protection, Section 52 (1d), when the disclosure is critical of government policy, is fundamentally unconstitutional.

The section “violates the whistleblower’s right to freedom of expression and thought” as entrenched in the constitution, the organisation stated.

The group warned that the clause appears to be included “purely to ensure whistleblowers cannot criticise government when making a disclosure.”

The group notes that the bill makes provision for disclosures that could “quite easily concern matters of policy,” citing examples such as reports on waste in a government department or threats to the health and safety of a community, which could be labelled as questioning various government policies.

The other two areas of concern include Section 30 (5a), which makes provision for a high penalty for false disclosures, and the lack of independence of the bodies provisionally tasked to deal with whistleblowers and their disclosures.

The group wrote that the penalty of a fine not exceeding N$100 000 or a prison term not exceeding 20 years if a person intentionally makes a false disclosure, should not be included in the bill.

The organisation said the inclusion of excessive penalties would have a “chilling effect on would-be whistleblowers who may already be risking their livelihoods, friendships and other associations by coming forward with information.”

They highlighted the fact that “any person who deliberately makes a false report will not receive protection under the bill and could therefore face potential dismissal or disciplinary action at their workplace.”

They added that persons found to have made deliberate false disclosures would also face the risk of a defamation case.

The activist group also addressed the need to strengthen the independence of the various bodies that will function under the bill.

“Since the Whistleblower Protection Office will potentially be investigating government departments and public agencies, it is important that it operates at arm’s length from government.”

Moreover, the bill should ensure that the appointment process for the commissioner for the office is handled by an independent panel.

A revision of the bill should include a clause stating that no person, including members of the Cabinet or legislature, should interfere with the work of the office.

The Whistleblower Protection Advisory Committee should furthermore include non-state actors, and avoid being dominated by state officials.

JANA-MARI SMITH