One of the bills tabled in the National Assembly last week with the opening of the fifth session of the sixth Namibian parliament is the Whistle-blower Protection Bill.
The whistle-blower, in this sense and for the purposes of the Bill, is to sound out any corrupt act or suspected corrupt act, or improper conduct, to be exact in terms of the operative word of the Bill, so that such sounding or expression may reach the Anti-Corruption Authority (ACC) or any other agency for further action, via, in this instance and in terms of the Bill, the Whistle-blower Protection Office that the Bill provides for.
The essence of the Bill is to ensure that should any member of the community or society be aware of any improper conduct to bring such to the attention of the Whistle-blower Protection Office without fear of persecution, with such office offering him or her the necessary protection.
Protection of whistle-blowers is long overdue, and hopefully, given the necessary momentum, it would just have the necessary intended consequences. There’s no denying that the ACC has for long been in need of the necessary boost and push.
As of today, so to speak, its impact remains negligible in terms of fighting corruption.
Negligible in the sense that today since its establishment, close to 15 years now, one has as yet to see any watershed corruption case in the country in which any people of note have been arraigned for corruption and consequently brought to justice and are today incarcerated for such.
This is not necessarily because of the incompetence of the ACC investigators and our courts. This may partly be because most, if not the majority of the cases brought to the attention of the ACC, have eventually been abandoned partly due to lack of concrete evidence.
As a result the ACC may have been spending most of its time first trying to establish concrete evidence, and may have been consuming, both in terms of the time spent on establishing such, energy and other resources to eventually end up in a cul-de-sac.
Certainly this is a shortcoming the Whistle-blower Protection Office shall partly address by serving as a sieve, and allowing the process to only deal with cases of merit for the onward transmission to the ACC, or any other agency, for the next process and necessary action.
Also, there must have been many cases of improper conduct of which members of society must have been aware but have been reluctant to come forward for fear of retribution for lack of protection which the Bill now proposes to offer any whistle-blower.
Such protection of the whistle-blower in terms of this Bill pertains to a) the protection of confidential information she/he may provide to the Whistle-blower Protection Office; b) immunity from civil or criminal action; c) against detrimental action and where applicable d) protection under the Witness Protection Act. Such protection may also be extended to any person related to or associated with the whistle-blower.
One cannot take much away from this nobly proposed piece of legislation, especially from the good intention of enhancing the fight against improper conduct and/or corruption by encouraging those who may be aware of any cases of improper conduct within any institutions, public or private, to come forward and report them to the institutions that are well placed to ensure any further course of action against the suspects and/or accused.
While this being the case, one cannot but also guard against making the whole process of reporting such suspect improper conduct cumbersome to the extent of defeating the end goal. Especially in view of the fact that another structure is being created alongside the ACC and other agencies like the Office of the Ombudsman, amongst others, bodies properly entrusted with the fight against corruption, maladministration, now via the Whistle-blower Protection Office in the first instance.
The Whistle-blower Protection Office is another institution. And as much one envisages there shall and must be a symbiosis between the two, one cannot but wonder how this may impact on the offices of the ACC and the Ombudsman. Would all corruption cases and that of maladministration now have to be channelled only through the Whistle-blower Protection Office?
The interface between the Whistle-blower Protection Office and other agencies like the ACC and Ombudsman Office is most crucial if the fight against improper conduct, corruption and maladministration is to be given the much-needed overdue push in view of the process of the disclosure of improper conduct and the attendant one of the investigation of disclosure of improper conduct.
One is aware that those who have been suspect of such improper conduct, and investigated by the ACC, have often been complaining of being perceived guilty without having been proven such. Their concern is very much understandable in terms of the legal principle that anyone is innocent until proven guilty.
But one hopes that the process of the disclosure of improper conduct and the investigation of such a disclosure is not meant to sieve out any disclosure and in the end defeat the very process of arraigning the suspects and ultimately the fight against corruption.