The principles of whistleblowing

In view of what we shall be discussing below, it is pertinent to briefly define who a whistleblower is and what they do. One definition of a whistleblower is a worker who exposes wrongdoing.Footnote ¹⁴ While a simple definition, it nonetheless captures the overall nature of whistleblowing, which is the exposure of wrongdoing. If we begin to analyse the definition, we can take the word “worker” to mean persons employed within any organization, company or institution. The term “expose” is self-explanatory; synonymously, it could also mean to uncover or reveal. “Wrongdoing” refers to any illegal or dishonest behaviour or unethical conduct engaged in within the organization.

Nader also states whistleblowing to be “an act of a man or a woman who believing in the public interest overrides the interest of the organization they serve, and publicly blows the whistle if the organization is involved in corrupt, illegal, fraudulent or harmful activity”.Footnote ¹⁵ This firstly suggests that a belief in public interest is required to blow the whistle,Footnote ¹⁶ and secondly hints at some form of ethical principle a whistleblower should possess.

The question of what motivates the whistleblower presents an interesting topic for discourse. Literature suggests that it can be anything from greed to morals.Footnote ¹⁷ However, this ethical stand must also be contrasted with persons who by virtue of their position are under a duty to reveal such information, as this may not be considered whistleblowing. An illustration of this can be seen under the administration of the former president of Nigeria, Goodluck Ebele Jonathan.Footnote ¹⁸ During this tenure, it was debated by the public whether or not the former governor of the Central Bank of Nigeria (CBN), Sanusi Lamido Sanusi, could be described as a whistleblower or a hypocrite, following the revelations of wrongdoing which he disclosed, leading to his suspension. In his public disclosures, Sanusi informed a Senate committee that out of USD 67 billion of oil sold by the Nigerian National Petroleum Company between January 2012 and July 2013, USD 20 billion had not been accounted for. Sanusi was thereafter suspended by the president for financial recklessness and misconduct.Footnote ¹⁹

Given the context in which the information was revealed (a memo to the Senate Committee on Finance) and his specific role within the CBN – a public body – his actions are more akin to disclosure of information under the Nigerian Freedom of Information Act of 2011. He acted in his capacity as a public officer responding to an inquiry; that the information was damaging does not makes him a hypocrite or a whistleblower. The hypocrisy claim presumably stemmed from the fact that Sanusi was also viewed as corrupt, and thus had no standing to make allegations of corrupt practices.Footnote ²⁰ In view of this we must continue to consider more carefully who a whistleblower is, since a public officer carrying out a duty by responding to an inquiry is not one.

Beyond the moral considerations for reporting a wrongdoing, and given the path currently being followed, i.e. the incentivization of whistleblowing, it becomes relevant to assess how incentivization sits within the discourse of the principles behind the act of whistleblowing. Incentivization changes things greatly, and it will not be too far removed from reality to now assume that in an incentivized system, the whistleblower may no longer be concerned with public interest, as presented by Nader,Footnote ²¹ but rather with the benefits to be obtained from exposing the wrongdoing.

Based on what has been discussed above, and the understanding we have developed of Nigerian conditions, I assert that in Nigeria, the policy in place does not adopt a moral approach to whistleblowing but a more practical one, that takes into consideration and tries to align with the culture and norms that exist within Nigerian society. It can also be surmised that a common factor with the definitions given above is that the whistleblower is someone who works for an organization. While both definitions are accepted, it should nevertheless be stated that the definition of a whistleblower can extend beyond just an employee. It is recommended that who a whistleblower is should not be limited to employees within an organization, but rather can be anyone who has legitimate access to information about the organization's wrongdoing.Footnote ²² Thus whistleblowers can be employees, suppliers, contractors, clients or any individual who becomes aware of illegal activities taking place in a business or organization either through witnessing the behaviour or being told about it. It should be stated that we are not here to test the veracity of definitions, but is it nevertheless necessary to highlight that, depending on an author's perspective, there will always be variance in the definition of a whistleblower. Here, the approach taken is that proposed by the Whistleblower Protection Bill 2019, which protects “any persons making disclosures”; using this approach is important in this context because it also defines who would be entitled to incentives and protection under the law. It is conceded, however, that realistically, the majority of whistleblowers and cases of whistleblowing have been employees, because they have more access to information within the organization.

The function of a whistleblower fundamentally revolves around unmasking any kind of information or activity within an organization that is considered illegal, unethical or incorrect. The act of whistleblowing is therefore the disclosure of the behaviour of an organization, a government agency, etc or of those who are placed in a position of responsibility that is illegal, immoral or could be categorized as a wrongdoing.Footnote ²³ The term whistleblowing is derived from the action of a referee in a sports event, who blows the whistle to call attention to a player's infraction of a rule that could result or has resulted in injury to another player or that gives an unfair advantage to the offender or his or her team.Footnote ²⁴ The person who discloses, the act of disclosing and the nature of the disclosed information are the underpinning factors which characterize who a whistleblower is and what they do.

We hinted above that the whistleblower may be guided to report by some form of moral obligation; we noted, however, that there could be other considerations to whistleblow, such as access to a reward (capturing the motivations of what we shall see in the Nigerian context), or, as in the case of the governor of the CBN, when it is one's duty to do so by virtue of the office one holds.

An overview of the Nigerian whistleblowing framework

Nigeria does not have a comprehensive whistleblowing legislation which offers protection to whistleblowers. This discounts policies created by individual or private organizations such as banks which utilize guidelines provided by the CBN to create their internal whistleblowing policies or other fragmented legislations such as the Independent Corrupt Practices and other Related Offences Act 2000 (the ICPC), which provides for protection of whistleblower identity and punishes upon conviction anyone who knowingly discloses false information.Footnote ²⁵

Several attempts have also been made at creating a whistleblowing legislation, such as the Whistleblower Protection Bills of 2008, 2011 and 2015. While these bills received the required approval from the Senate, they did not become law.Footnote ²⁶ To compensate for this lack of actual legislation, in 2016 a stopgap policy from the Federal Ministry of Finance was put in place which offered rewards for whistleblowing. The policy was designed to encourage reporting of mismanagement and misappropriation of public funds and assets, and focuses on corruption, collecting and soliciting for bribes, fraud, etc.Footnote ²⁷ Since the policy came into effect, various recoveries have been made in different currencies as a result of whistleblowers sending in tips. Altogether, NGN 7.8 billion (approximately GBP 13 million), USD 378 million and GBP 27,800 has been received.Footnote ²⁸ There has been a total of 13,002 communications and tip-offs; so far, only 918 have been investigated and 623 of these have been completed.Footnote ²⁹ Prosecution and convictions still remain low: there have been twelve cases prosecuted and four convictions made. In 2018 Corruption Anonymous acknowledged that there was a lack of diligent prosecution of mostly politically linked persons exposed for corruption.Footnote ³⁰ It must, however, also be acknowledged that the low prosecution rate may also be a reflection of the slow court system in Nigeria.Footnote ³¹

Since the stopgap policy came into effect in 2016, there have been instances of reprisals against whistleblowers, including Aliyu Ibrahim, who reported contract fraud within his organization and was fired; as of the last update he is fighting for reinstatement.Footnote ³² There has also been the case of Ntia Thompson, who was fired for reporting the misappropriation of over USD 200,000. Thompson was reinstated later but suffered victimization so that he had to be moved to another department; as of the last update he was still fighting to be paid his salary for the period he was fired (seven months).Footnote ³³

With the preliminary success of the policy at least in terms of reporting, it was recognized that a stronger statutory backing was needed to drive the growing whistleblowing movement; thus the Whistleblower Protection Bill of 2017 was introduced. This bill was a reiteration of the stopgap policy; the main aim was to provide for the rewarding of whistleblowers, like the stopgap policy, but just like its predecessors and the trend of proposed legislation in Nigeria, this bill never made it into law. A new bill was again introduced in 2019, the Whistleblower Protection Bill 2019. The focus of this bill was to protect whistleblowers against victimization and loss of jobs, a likely response to the victimization suffered by individuals who blew the whistle after the stopgap policy came out.Footnote ³⁴

It should be stated here that the momentum of the stopgap policy is already being lost by the delay in providing statutory backing. On 2 December 2021 the African Centre for Media & Information Literacy (AFRICMIL) released a five-year report on the 2016 policy indicating that the initial ground made by the policy is being lost.Footnote ³⁵ The report acknowledged that although many Nigerians are aware of the whistleblowing policy, they are unwilling to blow the whistle: “The survey showed that 3 out of every 4 respondents who were interviewed have stopped exposing corrupt individuals despite agreeing that corruption had become a menace that requires urgent attention.”Footnote ³⁶ Two points acknowledged by the report were the fact that the policy seems to have been hijacked by political actors to punish their opponents and the fact that the anti-graft agencies (created to reduce corruption) were alleged to “drag their feet”, a sentiment that was already acknowledged in 2018 regarding the low prosecution rates, as highlighted above.Footnote ³⁷ Another key point was the reprisal attacks suffered by whistleblowers who are ignored by the government, despite their initial call on citizens to report fraud.Footnote ³⁸

The Whistleblower Protection Bill would have been timely: there are merits to its provisions as they try to address concerns that were identified from the implementation of the 2016 policy, but the bill is also not without some drawbacks. The bill shows that, unlike the ICPC discussed above, it does not provide for the protection of the whistleblower's identity, which could potentially mean their names may be revealed, putting them at risk of reprisals.Footnote ³⁹ While it can be argued that the ICPC does cover this already, this still presents the issue of relying on other legislations (the law being fragmented, as was noted above) when the move should be towards a more comprehensive single act. A good feature of the 2019 bill is that it extends the scope of the 2016 stopgap policy, which covered disclosures made of the mismanagement of public funds and assets, to cover improper conduct by any persons, public officers or private and public bodies.Footnote ⁴⁰ For improper conduct, the bill includes under section 2 a range of activities, such as economic and financial crimes, mismanagement and misappropriation of public resources, corruption, environmental degradation, property, health and safety violations, and contravention of any laws relating to terrorism, kidnapping, illegal possession of firearms, etc, or any existing law. Under section 3 of the bill, a person making disclosures can rely on the protections offered as long as they have reasonable cause to believe that the information disclosed is true, to the best of their knowledge.Footnote ⁴¹ Once an investigation is triggered under the bill, section 16(d) provides a punishment of imprisonment for one year or a fine of NGN 100,000 if misleading information is given. Another interesting feature of the bill is that section 24(1) does not remove liability from individuals who have participated in the improper conduct but then choose to disclose. This raises an interesting predicament, in that sometimes access to the details of the improper conduct is often obtained through participation in it; on the other hand, this section is reasonable as it dissuades individuals from suddenly becoming remorseful in order to access the protections offered by the bill.

Section 18 of the bill covers the protection of whistleblowers; one key observation is that this section focuses on protection from victimization. I suggest that this is a reaction to the harassment suffered by the whistleblowers who stepped forward after the 2016 stopgap policy came into effect. The section places a reverse burden on the person or persons about whom the complaint has been made to show that they did not victimize the whistleblower. Also, where a whistleblower makes a disclosure which puts them at risk from reprisal attacks (which could harm their property, members of their family and even their life) by persons about whom the complaint has been made, section 23(1) of the bill allows the whistleblower to request police protection. This can potentially be a very important feature of the bill when it is enacted, given that when it comes to disclosures against public officials, and especially when it comes to corruption, these officials are often influential and may go to different lengths to keep information about their activities from coming out.Footnote ⁴² In terms of the awards for reprisals, under section 20(3) awards can include reinstatement, reversal, transfer and even compensation. Section 25 further punishes any reprisals against whistleblowers with a term of two years’ imprisonment and / or a fine of NGN 300,000. One criticism of these remedies, perhaps, is the need to also consider interim reliefs, such as preserving pay while a claim is being heard; unfortunately, this is not something the bill covers.

Unlike in the United Kingdom, where under the Employment Rights Act of 1996, section 43(c), there are both internal and external reporting mechanisms, the 2019 bill focuses only on external mechanisms, under section 4. This is perhaps something that should be revisited, and a proviso added that organizations, whether public or private, should have a nominated officer to whom whistleblowers can disclose.Footnote ⁴³ Following their recognition of the wrongdoing, the whistleblower must take a decision as to whether it is serious enough to be reported, because to speak out potentially opens them up to reprisals, thus the costs and the benefits of speaking up must be weighed internally. With internal channels, a potential for reprisal exists where the internal reporting channel or mechanism is not secure, but it is still necessary as it removes the innate problem of discerning the appropriate channel to report to, which could otherwise lead to the whistleblower remaining silent, and also fosters a culture within the organization that shows that it is accepted to raise genuine concerns about wrongdoing, thus creating new cultural norms in Nigeria.

Finally, the bill continues the precedent set by the 2016 stopgap and continues to offer monetary rewards for whistleblowing; interestingly, it reduces the amount that can be awarded. The 2016 policy offered either 2.5 per cent or 5 per cent of the recovered asset, but the bill reduces this to 1.5 per cent of the asset if less than NGN 1 billion and 1 per cent if over NGN 1 billion. One can only speculate as to the reasons for this, as the recoveries have shown there is a lot of hidden stolen wealth in Nigeria: as identified above, Sambo Dasuki, the former National Security adviser, was accused of diverting USD 2 billion. There is also the case of the Ikoyi whistleblower Yakubu Galadima, who just after the stopgap policy became effective provided information leading to the discovery of USD 43.5 million, GBP 27,800 and NGN 23.2 million and had to be paid NGN 421 million as his reward.Footnote ⁴⁴ The large amounts that can be paid out could potentially be the reason for the reduction.Footnote ⁴⁵