WHISTLE-BLOWER PROTECTION, A GLOBAL PERSPECTIVE – IS LEGISLATION THE ANSWER? A KEYNOTE LECTURE DELIVERED BY DR. M.K DIKWA MNI AT THE 38TH SYMPOSIUM ON ECONOMIC CRIME, UNIVERSITY OF CAMBRIDGE UK.

PROTOCOL

It gives me great please to be here today, to be part of this critical and important event regarding the 38th International Symposium on Economic Crime. I want to thank the organizers of this even for the invitation and for putting together this program. I have had the opportunity of participating in many of the presentations in last few days and I must say, it has been a wonderful experience and I have no doubt that solutions to the several economic and security challenges facing our commonwealth and other nations would be deduced from these presentations. I will be speaking about the importance of legislation in the successful and effective implementation of whistleblower Policies. This is based on my first-hand experience as the Secretary of the Technical Committee which developed the Whistle-Blower Policy for the Federal Government of Nigeria in the year 2016/2017.

Whistleblowing is a key tool in fighting corruption. By promising that their rights will be protected, employees and others who are familiar with the inner workings of an organization and are in position to see when corruption occurs, will feel more willing to expose those problems to those who are able to remedy it, or more generally to the public. Whistleblowers often face severe repercussions for their actions. They lose their jobs or are sanctioned for their activities. Some are charged with crimes for violating laws or employment agreements regarding disclosures of official information. In extreme cases, they face physical danger. Over 45 countries around the world have adopted legal regimes to encourage these important disclosures and protect the whistleblowers from retribution.

Many international agreements and treaties on anti-corruption including the Council of Europe and UN Convention Against Corruption now include requirements that nations adopt these laws. Many organisations are also adopting internal rules to facilitate disclosures. This paper reviews whistleblower policy implementation from around the world and proposes standards that should be adopted regarding legislation as a critical component.

BACKGROUND

We live in a complex world. Every day, decisions are made that can affect our health, safety, economic and human rights. Some of these decisions are made for the worst of reasons. They are made by the corrupt, the incompetent or the lazy set of individuals. Accidents happen or corruption flourishes because employees who know about wrongdoing are afraid to say anything in fear of losing their jobs.

There has been a substantial increase in the recognition of the importance of whistleblowing as a means of reducing corruption and defusing dangerous situations by improving the disclosure of information about illegal, dangerous or unethical activities by government and private organizations. Whistleblowing can also be a means of improving the internal culture of organisations in both the public and private sectors to prevent or reveal mistakes and accidents and improve internal management and efficiency.

Around the world, whistleblowers have been hailed as heroes for revealing corruption and fraud in organizations and for preventing potentially harmful mistakes from leading to disasters. The disclosures range from revealing the theft of millions of dollars of public money in Kenya to the cover-up of SARS and other dangerous diseases that threaten millions in China, to exposing dangerous doctors in Australia or making environmental hazards known in the US.

In Nigeria, the whistleblowing programme is under the management of an office in the Federal Ministry of Finance (FMF) called the Presidential Initiative on Continuous Audit (PICA). The programme encourages anyone with information about a violation of financial regulations, mismanagement of public funds and assets, financial malpractices, fraud and theft to report it. The primary purpose of the Whistleblower policy is to encourage people to expose financial or financial-related crimes and to support the fight against financial crimes and corruption.

Examples of information on infractions covered under whistleblowing policies include:

  • Violation of government’s financial regulations;
  • Embezzlement of public assets;
  • Information on stolen public funds;
  • Information on concealed public funds;
  • Financial malpractice or fraud
  • Theft;
  • Collecting / soliciting bribes;
  • Corruption;
  • Diversion of revenues;
  • Underreporting of revenues;
  • Conversion of public funds for personal use;
  • Fraudulent and unapproved payments;
  • Splitting of contracts;
  • Procurement fraud such as kickbacks and over-invoicing; and
  • Violation of public procurement procedures.

In this context, a whistleblower is a person who voluntarily discloses information about any violation of the law. The information can be on the past or present violation or even an intended violation. However, the disclosure must be in public interest.

The policy provides for specific incentives to whistleblowers. First, a whistleblower is entitled to a monetary reward of between 2.5 to 5 per cent (of the recovery made) where the information disclosed leads to the recovery of proceeds of crime. However, claiming the reward is not automatic. Thus, the information must be about violations unknown to the government previously and could not have otherwise been obtained from any existing publicly available source.

Defining Whistleblowing

What is Whistleblowing?Whistleblowing has many different facets. Among other things, it can be an act of free speech, an anti-corruption tool, and an internal management dispute mechanism. This has led to several different definitions. One of the first modern uses was by US consumer activist Ralph Nader in 1971 who described it as “An act of a man or woman who, believing that the public interest overrides the interest of the organization he serves, blows the whistle that the organization is involved in corrupt, illegal, fraudulent or harmful activity.

US academics Marcia P. Miceli and Janet P. Near set the academic standard for whistleblowing in 1982 when they called it “the disclosure of organizational members (former or current) of the illegal, immoral or illegitimate practices under the control of their employers to persons or organizations that may be able to effect action.” They

describe whistleblowing as a four-step process:

  • A triggering event occurs, involving questionable, unethical, or illegal activities, and this leads an employee to consider blowing the whistle.
  • Second, the employee engages in decision making, assessing the activity and whether it involves wrongdoing, gathering additional information, and discussing the situation with others.
  • Third, the employee exercises their voice by blowing the whistle; alternatively, the employee could exit the organization, or remain silent out of loyalty or neglect.
  • Fourth, organization members react to, and possibly retaliate against the whistleblower

Other academics have focused on whistleblowing as mostly an element of free speech and the right of individuals to express dissent. Australian academic Peter Jubb defines it as being necessarily a public action:

Whistleblowing is a deliberate non-obligatory act of disclosure, which gets onto public record and is made by a person who has or had privileged access to data or information of an organization, about nontrivial illegality, or other wrongdoing whether actual, suspected or anticipated which implicates and is under the control of that organization, to an external entity having potential to rectify the wrongdoing.

Barriers to Whistleblowing

  1. Fear of Retaliation

The biggest barrier that prevents whistleblowing is concern that retaliation will result from the disclosure. Retaliation can vary from minor harassment at the workplace to far more severe consequences. Typically, once an employee has blown the whistle, increasing pressure will be placed on them to rescind their statement and refrain from further disclosures. Most employees’ greatest concern is to be fired. In a jurisdiction with an “at will” employment, the employee can be fired without justification. In most jurisdictions, some reasons will need to be found. These could include violations of minor rules or general findings of incompatibility.

More often, the employees are placed under severe pressure to force them to resign. Some common practices under this rubric as listed by the US Project on Government Oversight are:

  • Taking away job duties so that the employee is marginalized.
  • Taking away an employee’s national security clearance so that he or she is effectively fired.
  • Blacklisting an employee so that he or she is unable to find gainful employment.
  • Conducting retaliatory investigations to divert attention from the waste, fraud, or abuse the whistleblower is trying to expose.
  • Questioning a whistleblower’s mental health, professional competence, or honesty.
  • Setting the whistleblower up by giving impossible assignments or seeking to entrap him or her.
  • Reassigning an employee geographically so he or she is unable to do their job.
  • In some cases, the retaliation can be extreme. In India, engineer Satyendra Dubey was murdered after he revealed corruption on a road project.
  • Legal Liability

There are also significant legal barriers to the unauthorized disclosure of information in many countries. These include traditional notions of responsibility to employers; secrets act and other laws. These laws are often used to punish whistleblowers and deter further potential whistleblowers from speaking out.

a. Duty of loyalty and confidentiality

A traditional barrier in many countries is based on a duty of loyalty and fidelity to the employer. This can prevent an employee from expressing an opinion or revealing internal information. The US Supreme Court ruled in May 2006 that public employees were not protected by the Constitution when speaking as part of their official duties. Many civil service acts require that information collected is kept confidential. For example, the Nigerian Federal Public Service Code requires that public employees not disclose any information received in confidence or if “it is reasonably foreseeable that the disclosure could be prejudicial to the effective working of government.” Sanctions for these types of laws include demotions and termination of employment.

b. Secrets Acts

Relating to the obligations above, most countries have criminal laws prohibiting the release of state and military secrets by officials and often even by outsiders who have signed no agreement. In most Commonwealth countries, the colonial-era Official Secrets Acts prohibit the release of any information obtained under government employment that remains on the books. For example, the Pakistan Official Secrets Act of 1923 makes disclosure illegal of “any information […] which has been entrusted in confidence to him by any person holding office […] or which he has obtained or to which he has access owing to his position as a person who holds or has held office […]”.

These laws are often a significant barrier to anti-corruption efforts by generally prohibiting the disclosure of any information without permission. In Kenya, the whistleblower who revealed the billions of shillings of fraud in the Goldenberg affair was fired and charged under the OSA and spent years defending himself. In Malaysia, opposition leader Mohamed Ezam Mohd Noor was prosecuted in 2000 under the OSA for releasing police reports on high-level corruption by government ministers. In the UK, two officials were arrested, and several newspapers have been threatened under the OSA for publishing information about the Prime Minister’s meetings with US President Bush where the newscaster Aljazeera was discussed. A whistleblower who revealed that the London police force had released inaccurate statements about the shooting of an innocent man in a botched anti-terror action was also arrested.

How has the Policy fared in Nigeria?

The Whistleblower policy in Nigeria has yielded positive results. Almost three and half years of the policy implementation, the Whistleblower Secretariat within the Federal Ministry of Finance released the following statistics:

  1. Communication received – 11,019.
  2. Tips received – 1,983.
  3. The number of investigations commissioned – 918.
  4. The number of investigations completed – 623.
  5. Referral Made to the EFCC/ICPC/DSS (for further investigation or prosecution) – 95
  6. Convictions (by the EFCC) – 23
  7. The number of cases under investigation (EFCC) – 28

The amount of money recovered in the first eighteen months of the policy was a remarkable achievement in the fight against corruption in Nigeria. The recovery in a short period appeared to be possible because criminals do stash proceeds of corruption in cash in their homes, farms, forests, and cemetery. For example, in April 2017, following a tip from a whistleblower, EFCC recovered US$43.45 million in cash from an apartment in Lagos, Nigeria. Thus, in some cases, issues relating to bank account tracing are not needed.

Challenges of Whistleblower Policy Implementation

Despite success recorded, whistleblowing policy in Nigeria and in many other jurisdictions faces some challenges. The first challenge is the lack of a legal framework to give backing to the policy and guaranty compensation to whistleblowers. In some instances, also, it is difficult to determine who should pay compensation since some of the recoveries maybe for regional or state governments, the scope of which a policy document may not provide the needed direction. For example, in Nigeria, some of the monies recovered through whistleblowing was stolen from states governments, while State Governments are generally happy to receive the money recovered from the Federal Government, they resist paying compensation to the whistleblowers. However, since there is no law allowing Federal Government to deduct from the money recovered or from the allocation of States at the federation account, federal authorities cannot just make deductions and risk litigation with the affected State Government. Thus, whistleblowers turn to the Federal Ministry of Finance for compensation and sometimes with the threat of litigation.

Furthermore, whistleblower policies does not provide for whistleblower protection. This is a fundamental challenge to the policy. It also does not guarantee protection against reprisals and victimisation. In some cases, whistleblower protection is limited to employees in the public sector. The protection does not extend to private sector employees such as banks and other financial and designated non-financial businesses and professions (DNFBPs) through which criminals launder their proceeds of corruption and other economic crimes.

Consequently, for instance in Nigeria, there has been the yearning for an Act of the National Assembly to give the policy a legal backing to address the challenges and to strengthen the whistleblowing policy.

REASONS FOR WHISTLEBLOWING LEGAL FRAMEWORKS

Whistleblowing has a long history. One of the earliest whistleblower laws – the US False Claims Act – was adopted in 1863, following discovery that companies were selling faulty supplies to the Army during the Civil War. The Act allowed for an action of “Qui Tam” in which a citizen could sue on behalf of the government in cases of fraud and receive an award for doing so. Qui Tam originated in Roman times as a mechanism for enforcement of the law and was widely used in England starting in the Middle Ages, sometimes controversially, as a means for enforcing national laws on often reluctant local officials up until recent times. Several 18th and 19th century statues in the US allowed for Qui Tam recoveries.

The modern development of whistleblowing was championed by US consumer activist Ralph Nader starting in the 1960s. In 1971, he convened a meeting in Washington, DC and called on professionals working in companies and government bodies to “blow the whistle” to check “runaway or unjust bureaucracies”. At the meeting, he recommended the adoption of legal protections for both government and corporate employees and announced the creation of the Clearinghouse for Professional Responsibility to provide help to whistleblowers.

Also, Civil societies play a strong role in supporting whistleblowing. International anticorruption groups such as Transparency International (TI) and specialized whistleblower groups such as the Government Accountability Project (GAP) (US), Public Concern at Work (PCAW)(UK) and the Open Democracy Advice Centre (ODAC) (South Africa) have all assisted and advised governments on adopting new laws. In South Africa, ODAC drafted the whistleblower law. TI was heavily involved in ensuring whistleblowing laws were included in the UN Convention, and has produced a series of integrity reports to bring pressure on national governments to adopt similar legislation. GAP and PCAW have advised several governments and international organizations on adopting laws. PCAW and ODAC also run hotlines for providing advice to whistleblowers and GAP provides legal assistance in some whistle-blower cases.

National Laws on Whistleblowing

Whistleblowing laws are becoming more common. Approximately forty countries around the world have adopted national laws on whistleblowing of in one form or another. Many others have adopted limited protections in other fields that also would apply to whistleblowers. In Australia, the United States and Canada, many states or provinces have also adopted laws. The types of laws can be roughly divided into two distinct groups – comprehensive and provisional.

a. Comprehensive Laws

To date, only a few countries have adopted comprehensive laws on whistleblowing. The UK, New Zealand and South Africa have the most developed laws that can truly be called comprehensive. The US and Canada have laws that cover the public sector broadly and Japan recently adopted a law covering the private sector. There are also several small jurisdictions such as those in some of the Australian states which have also adopted comprehensive laws. A comprehensive law has a few elements. These elements will be further defined later but the following is a summary of the important provisions.

Elements in a comprehensive whistleblower law:

Enacted as a free-standing law: Most comprehensive laws are free-standing. They were adopted on their own, rather than as a section of another law. This has the advantage of giving them additional visibility and makes it easier to notice and promote. Most whistleblowing laws still merely amend existing employment protections.

Coverage: Ideally, a comprehensive law should apply to both the public and private sector. Wrongdoing is not just done by one or the other. Only the UK, New Zealand, and South Africa have adopted laws that cover both the public and private sector. The US Whistleblower Protection Act and the Canadian Public Servants Disclosure Protection Act only apply to public employees. The Japanese Whistleblower Protection Act only applies to private sector employees.

Definitions: Most create comprehensive definitions of what constitutes wrongdoing, which limiting it to one area such as anti-corruption but instead applying it to a wide variety of issues including violations of laws, good practices, and ethics.

Procedures: Another important element is the creation of procedures that promote internal disclosure. Comprehensive laws are generally based on an assumption that changing internal culture to enhance internal communications to prevent problems is a key means of resolving problems.

Protections against retribution: All comprehensive laws create broad definitions against retaliations and provide for remedies.

Appeals: The laws set up procedures for review of retribution by external bodies, often tribunals or courts.

Oversight: Most comprehensive laws have appointed a public body with some oversight role in assisting whistleblowers with advice and receiving complaints of wrongdoing. The US and Canada created new independent bodies charged with these tasks. Most of the rest are using existing bodies such as an Ombudsman.

b.      Sectoral Laws

Many countries have adopted whistleblower protections in a piecemeal fashion. These are often found in a few different statutes and typically only cover certain types of persons or only certain types of information. In some countries, there are both comprehensive and sectoral laws for those areas such as corporate governance.

Anti-corruption laws: Many anti-corruption laws have limited provisions on receiving information and protection of people who disclose information on corrupt practices. The disclosure is typically handled by the anti-corruption commissions. Protections cover both government employees and the public but are often limited to promises of maintaining confidentiality of the whistleblower/informer. In some cases, the commission can investigate retaliations or threats.

Public servants’ laws: Increasingly, laws that regulate public employees include provisions that protect the public servant from retribution for disclosing wrongdoing. The Netherlands Public Servants Act requires that procedures for reporting wrongdoing be created, and protections offered to those who follow those procedures.

Labour laws: Whistle-blower protections are also being included in general labor laws. The Norwegian Working Environment Act was amended in 2005 to give employees the right to inform public authorities of “censurable conditions” and to prohibit retaliation. Other countries’ general provisions on requiring justifiable reasons for employment termination are generally considered to protect whistleblowing.

Criminal Codes: A few countries have made it a criminal offence to retaliate against a whistleblower.

Freedom of Information Act.: In Sweden, the Freedom of the Press Act gives civil servants a fundamental right to anonymously criticize the actions of government bodies. Several countries, such as Moldova in 2002, Antigua and Barbuda in 2004, Uganda in 2005 and Macedonia and Montenegro in 2006, have included provisions on whistleblowing regarding public bodies. It is also being considered in the draft Cayman Islands Freedom of Information Bill. The protection in these laws is limited to only public servants and mostly has to do with the unauthorized release of personal information. The Antigua law appoints the Information Commissioner as a body to receive reports of wrongdoing.

Other laws: Other statues such as some environmental laws have protections relating to environmental hazards. Accounting and bank secrecy laws require disclosures of corporate wrongdoing. These often impose a duty on professionals to disclose wrongdoing but protect them from retribution.

There are many disadvantages with the approach of sectoral laws. Of primary concern is that they are fragmented and do not cover many types of wrongdoing. They are also generally not well known outside their own sectors by either the employees or officials so enforcement may be limited. They also tend to focus only on disclosure and retribution facets and not on improving internal management. Almost none of these laws set up procedures for internal disclosures or standards.

Oversight and Enforcement

An essential requirement for whistleblowing, indeed for many kinds of laws, is adequate oversight. Many countries with whistleblowing laws or provisions have some form of oversight body but they vary in function and utility. Most are limited to a single sector such as anti-corruption.

a. Independent Bodies

One model is to create a single independent body that can accept disclosures and examine cases of retribution. Thus far, only Canada and the US have attempted this and neither has been considered particularly successful. In the US, the Whistleblower Protection Act of 1989 set up the Office of Special Counsel (OSC) as an independent investigative body. The OSC can investigate “prohibited personnel practices” including taking or failing to act because of a whistleblowing. It can recommend corrective or disciplinary action with the public body involved and bring cases before the Merit Systems Protection Board. The OSC can also receive reports from whistleblowers for violations of law, rules and regulations, waste of public funds, mismanagement, abuse of authority and dangers to public safety or health and forward them to the agency or to the Attorney General within 15 days if it is meritorious. It also reports to Congress and the President.

b. Ombudsman

Another possibility is to provide oversight capabilities to modify the duties of the existing Ombudsman, who is usually parliamentary officer. Over 120 countries have created an Ombudsman. In Mexico, the Human Rights Commission is considered an Ombudsman. Over twenty countries have appointed the existing ombudsman to enforce freedom of information legislation.

The Ombudsman already receives complaints and institutes investigations of public bodies in many countries. A general Ombudsman typically investigates maladministration, so it is likely receiving complaints from whistleblowers already. Ombudsmen do have some limitations which may not make them ideal for the task of overseeing whistleblower protections. For one thing, they generally only have authority over public bodies. In addition, they tend to only have limited powers to order remedies. Most Ombudsmen rely on their moral authority to force public bodies to follow their recommendations. This may not be ideal when the body has already decided to sanction an employee and does not wish to reverse it.

c. Sectoral Bodies

Most countries have some form of a limited jurisdictional body that can receive reports of possible illegalities or other issues. Some also have the power to protect whistleblowers and sanction discrimination. For the most part, the organizations in question are anti-corruption bodies but a few countries distribute these functions to others such as competition commissions. A downside to this approach is the jurisdictional limitation placed on the body. They can only investigate within their own area and mostly only for crimes instead of unethical or dangerous behaviour. In Nigeria, the Economic and Financial Crimes Commission (EFCC) and Independent Corrupt Practices Commission (ICPC) are among established legal bodies that can receive reports on whistleblowing, investigate, and prosecute offenders and make recoveries.

d. Courts and Tribunals

Most of the countries with comprehensive laws use existing employment tribunals or courts for appeals. The UK PIDA allows appeals to the Employment Tribunal. The Tribunal receives around 800 cases each year and issues over 100 decisions. Advocates such as Public Concern at Work are fairly satisfied that the Tribunal is working reasonably well

Criteria for Evaluating the Effectiveness of Whistleblowing Laws

A few different metrics can be used to measure the effectiveness of whistleblowing procedures. It may be possible, using a combination of these, to develop some comparisons internationally on which systems are working better than others and how to better examine whistleblowing systems.

  1. Does Increased Disclosures indicate that more wrongdoing are being disclosed? Are more people coming forward both internally and externally? This is a difficult thing to measure since in a properly working comprehensive law, most will be internally dealt with and there will be little public notice. But there is some evidence that disclosures are increasing.

If there is an external body that receives complaints, this can give some indicators of the level of public interest.

b. Reported Cases of Reprisal

A second indicator on the success of whistleblowing is the reports of retribution. Are employees being sanctioned for releasing information that is of a public interest?

Do these appear in the media? This is not a perfect indicator since the dismissals or other actions could have been justified on other grounds, and the media tends to focus on high-profile negative cases since it makes for a better story. However, reporting of cases will often shape the cultural and employee perceptions of the benefits and negative effects of whistleblowing and the effectiveness of related laws.

This aspect does not appear to have met with as much success. A cursory review of media finds a considerable number of stories of cases where whistleblowers have been sanctioned, even in jurisdictions such as the UK, South Africa, and US that have relatively strong whistleblowing laws.

c. Refunds of Money to the Public Treasury

The amount of money returned to the public treasury due to whistleblowing is also an indicator, albeit a less defined one. In jurisdictions that allow for Qui Tam actions, the amount of money that has been returned to the public treasury due to those actions is the best indicator.

d. Existence of Whistleblowing Procedures in Organizations

Are organizations, both in the public and private sector adopting whistleblowing procedures? Do they encourage disclosures? Are the whistleblowers protected from sanctions? There appears to be a positive trend here. Generally, reviews done of countries that require or encourage procedures have found that most have adopted them, at least in the public sector.

Conclusion and Recommendations

The field of whistleblowing is still in its infancy, especially in developing countries. Only a few countries have attempted to adopt laws that have general application. Fewer have made a serious effort to address cultural issues that will allow them to internalize whistleblowing as a positive means of improving organizations and governments. In many places, the laws are limited in scope and provide few protections. Many governments and organizations seem hostile to disclosures, and whistleblowers around the world regularly face fear of reprisal, job loss and worse.

There are some positive signs. Some, such as the UK, have had some success in improving the internal attitudes towards disclosures. The corporate sector seems to be more open to whistleblowing than government bodies. There is now considerable international pressure for countries to adopt standard laws and practices on whistleblowing, but if these laws are adopted in a vacuum, it is unlikely that they will succeed.

More research needs to be done on the effectiveness of the existing legislation and policies to better determine what works, how workers and the general society feel towards whistleblowing laws, and what measures can be taken to improve the culture of openness.

Principles for whistleblowing legislation

Broad coverage – The law should have a broad coverage. It should apply to public and private sector employees and those who may face retribution outside the employer-employee relationship such as consultants, former employees, temporary workers, students, benefit seekers, family members and others. It should also apply to nationalsecurity cases.

Protection against retribution – The law should have a broad definition of retribution that covers all types of job sanctions, harassment, loss of status or benefits, and other detriments. Employees should be also to seek interim relief to return to their job while the case is pending or be allowed to seek transfers to other equivalent jobs within the organization if return to the existing one is not advisable due to possible retribution.

Protection of free speech – The law should recognize that there is a significant importance in free speech whistleblowing. Public interest and harm tests should be applied to each release. For public bodies it should be expressly stated that the unauthorized release of any information that could have been released under FOI cannot be sanctioned.

Confidentiality – The law should allow for whistleblowers to request that their identity should remain confidential as far as possible. However, the body should make the person aware of the problems with confidentiality and make clear that the protection is not absolute.

Waiver of liability – Any act of public disclosure should be made immune for liability under other acts such as Official Secrets and libel/slander laws. An even more significant move would be to eliminate archaic Official Secrets Acts such as already has been done in New Zealand.

Compensation – Compensation should be broadly defined to cover all losses and seek to place the person back in an identical position as before the disclosure. This should include an accounting for any loss of earnings and further consider future earnings. This loss should not be capped. There should also be provisions to pay for pain and suffering incurred because of the release and any retaliation.

Rewards – In some cases, whistleblowers should be rewarded for making disclosures that result in important recovery of funds or discoveries of wrongdoing. Qui Tam cases, such as have been used in the US, may be an appropriate mechanism for recoveries.

Disclosure procedures – The law should set up reasonable procedures to encourage and facilitate internal procedures to disclose wrongdoing. However, the procedures should be straightforward and easily allow for outside organizations to seek the counsel of higher bodies, legislators, and the media in cases where it is likely that the internal procedure would be ineffective. There should be easy access to legal advice to facilitate disclosures and reduce misunderstandings.

No sanctions for misguided or false reporting – The law should protect whistleblowers that made a disclosure in good faith even if the information was not to the level of a protected disclosure. The law should not allow for the threat of criminal sanctions against whistleblowers that make false disclosures. In cases of deliberate falsehoods, allowing for normal sanctions such as loss of job should be sufficient.

Extensive training and publication – Governments and private bodies should be required to adopt management policies to facilitate whistleblowing and should train employees on the provisions of these policies. A high-level manager should supervise this effort and work towards developing a positive internal culture to facilitate disclosures as non-confrontational processes.

Reviews and disclosures – Government bodies and large corporate bodies should be required to publish annual reviews of disclosures and outcomes; reports on discrimination and outcomes including compensation and recoveries should also be required. The law should require a regular review of the legislation to ensure that it is working as anticipated.

Outside Agency – The law should create or appoint an existing independent body to receive reports of corruption, advise whistleblowers and investigate and rule on cases of discrimination. However, this body should not have exclusive jurisdiction over the subject. The whistleblower should be able to also appeal cases to existing tribunals or courts. Legal advice and aid should be available.

Finally, I wish to appreciate the efforts of the organisers of this symposium once again.

Thank you all for your rapt attention.

References

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Ventry D (2008