Source: Graft: Whistleblowers need full legal protection | The Herald July 2, 2019
Willard T. Mugadza Correspondent
On June 17, 2019, one of the lead stories in The Herald was “President rescues ZESA whistleblowers”.
The article was in reference to the well-intended intervention by President Mnangagwa on the fate of eight ZESA workers who had disclosed some corrupt activities within the power utility.
The sin that was committed by the eight ZESA workers was exposing corruption inter alia in the awarding of procurement contracts. The sanction of the sin was the dismissal of the workers who had made this disclosure. The affected workers have been on suspension for 15 months without pay (having been suspended on March 7, 2018). The aim of this article is to advocate the enactment of a Whistleblower Protection Act, preferably before the end of 2019.
The act of disclosing or exposing corruption by the ZESA workers is what is defined as whistleblowing. The person who does the disclosure or exposure is called the whistleblower. Generally speaking, whistleblowing refers to the act of disclosing or exposing any information on illegal or immoral or clandestine activities that are being committed by a particular person(s) or organisations that are detrimental either to the public sector or private sector.
The success in the fight against corruption is multifaceted in the sense that it requires multiple well-coordinated anti-corruption tools that are anchored in a clearly defined Anti-Corruption Strategy.
It has been recognised by international organisations that are involved in the fight against corruption such as Transparency International, the Organisation for Economic Cooperation and Development (OECD), the World Bank, the African Development Bank, etc, that one of the most critical players in the fight against corruption are whistleblowers.
In most jurisdictions, especially in Africa, whistleblowers are instrumental in the fight against corruption. For instance, South Africa is currently seized with an inquiry (The Judicial Commission of Inquiry into the Allegations of State Capture — Corruption and Fraud in the Public Sector, including Organs of State) on the extent of corruption that might have taken place in the last 10 years. So far, whistleblowers have revealed damning evidence on the magnitude of state capture and corruption within the South African government and state-owned enterprises (SOEs).
While the information that is revealed by whistleblowers may be so sensitive or may be so helpful in the fight against corruption, which may save the state millions of dollars. Whistleblowers are found in the public sector, private sector or anywhere outside the confines of business.
The importance of whistleblowing is that it enhances transparency, integrity, trust and accountability in the fight against corruption. For example, the OECD has said that, whistleblowers are the ultimate line of defence for safeguarding the public interest.
However, the concern is what happens to the whistleblowers after they release such information? One solution that has been proffered internationally is the enactment of legislation or strict legal mechanisms that protect the person, the character or families, etc, of the whistleblowers.
In some jurisdictions, the protection of whistleblowers may be found in an array of legislation such as employment laws, company laws, competition laws, anti-corruption laws, criminal laws, procurement laws, tax laws, etc. In Zimbabwe, it is not clear which laws or provisions in specific laws that protect whistleblowers. This aspect of the law remains blurred and makes it extremely difficult for whistleblowers to enforce such legal provisions if at all they exist. To make it worse, no such legal provisions have been adequately tested in our courts in order to ascertain the veracity of such protection. This level of uncertainty has contributed to the escalation of corruption in Zimbabwe.
There has been some positive movements from President Mnangagwa insofar as the fight against corruption is concerned. With the anticipation of the interviews and the final swearing in of the new Commissioners for the Zimbabwe Anti-Corruption Commission in the next few weeks — the time has come for the country to enact a dedicated Whistleblower Protection Act.
The envisaged Whistleblower Protection Act should be comprehensive and must not let the whistleblower feel more vulnerable than protected. The envisaged Whistleblower Protection Act should be anchored at least on inter alia the following pillars:
Pillars of the Whistleblower
Who is a Whistleblower?
Classes of people who are eligible for protection — the Whistleblower Protection Act must allow, former and current employees, contractors, sub-contractors, family members, friends, associates, members and any other person who has interests in the advancement of the State to be protected under the Whistleblower Protection Act.
Further, it must be clearly provided on the act or conduct that qualifies to be reported under the act. For example, any conduct that violates: financial rules; procurement (tender) regulations; issuance of licences; immigration, tax laws, etc, must be adequately defined in the envisaged Whistleblower Protection Act.
Who must receive the corruption report from the Whistleblower?
It is also equally important, for the Whistleblower Protection Act to guide as much as possible the identity of the recipient of the report of the suspected corrupt act by the whistleblower. In simple terms, the Whistleblower Protection Act must “tell” the whistleblower on who should receive the report. In this regard, the following, should at least be allowed to receive the report by the whistleblower: Legal practitioners; the Auditor-General; the Zimbabwe Anti-Corruption Commission; the Zimbabwe Republic Police; Office of the Speaker of Parliament; the National Prosecuting Authority; the Gender Commission; the Human Rights Commission; the Judicial Service Commission; the Public Service Commission; the National Peace and Reconciliation Commission; employers and other bodies (non-statutory) that the whistleblower(s) is comfortable reporting their cases to.
It must not be mandatory for a whistleblower to report the suspected corruption to a constitutional or a statutory body. The whistleblower must be encouraged to report the suspected corruption to a person or body that he or she is most comfortable with. It will then be incumbent upon that chosen person or body to escalate the report further.
Compensation to the whistleblower
Another important element is that there must be a well defined compensation package for whistleblowers. In the Zimbabwean context, this has been demonstrated in the much publicised Zimra feud with a whistleblower, who was claiming a reward (US$1,8 million) in terms of Section 34B(2) of the Revenue Authority Act [Chapter 23:11].
These and other contentious compensation issues will be well defined in the Whistleblower Protection Act.
Other notable inclusions must be the following: the elimination of the “good faith test” — it must be sufficient if the whistleblower has objectively reasonable suspicion that corruption has taken place; hefty penalties for individuals and corporates that disclose the identity of the whistleblower; well crafted provisions on the criminal and civil immunities for whistleblowers; wide discretion on the Courts to protect whistleblowers, etc.
Whistleblower Protection Oversight Agency
It is imperative for the envisaged Whistleblower Protection Act to provide for the establishment of the Whistleblower Protection Oversight Agency. The purpose of the Agency will be to inter alia, oversee the operationalisation, the administration and the implementation of the Whistleblower Protection Act.
In conclusion, the intervention by President Mnangagwa, in the case of the eight ZESA employees, who are whistleblowers, is an indictment on our parliamentarians to enact the Whistleblower Protection Act with speed in order to enhance the fight against corruption.
Dr Willard T. Mugadza holds a Doctor of Laws (LLD). He is an expert in Public Procurement, Corruption, International Trade, Governance and Policy. He has done work for the World Bank Group, African Development Bank and Transparency International. He can be contacted him on firstname.lastname@example.org or +263774962411.