Friday, June 8, 2012

N/R CHRAJ BOSS DISSECTS WHISTLEBLOWER LAW, POINTS OUT CHALLENGES


The negative effects of corruption on development especially in developing nations including Ghana, leaves much to be desired. It robs citizens the opportunity to enjoy their stake of their national resources. 

In their efforts to reduce corruption, governments in Ghana over the years have passed many laws to fight the canker. The accessibility and application of these laws are utilized by only a few literates who by virtue of their understanding and ability benefit them. More so, these laws are not understood and used by the ordinary citizens due to the lack of effective education at the local levels.

Passed into law in 2006, the Whistleblower Act, Act 720 is fraught with so many challenges, and according to the Northern Regional Director of the Commission on Human Rights and Administrative Justice (CHRAJ) Stephen Azantilow, is perhaps the more reason why its enforcement has remained ineffective over the years.

Speaking at a day’s capacity building workshop in Tamale organized for Traditional Authorities by the Ghana Anti-Corruption Coalition (GACC), Mr. Azantilow in a topic entitled “The lessons and challenges in the Enforcement of the Whistleblower Act at the Local Level”, said the purpose of the Whistleblower Act was to: “Provide for the manner in which individuals may in the public interest disclose information that relates to unlawful or other illegal conduct or corrupt practices of others; to provide for protection against victimization of persons who make the disclosures, and to provide for a fund to reward individuals who make the disclosures and to provide for related matters.”

The main objective of the Whistleblower Act according to him was to fight, reduce/eliminate corruption and other forms of impropriety through user friendly and approachable media/methods.
He however stated that part of the problems of enforcing Whistleblowing in Ghana was that the duty cast on individuals (persons) to make disclosures of information was not mandatory. This, he said, might seem to conflict with some provisions in the Constitution itself, adding that for instance, Article 41 of the 1992 Constitution, made it mandatory for every citizen: “(b) to uphold and defend this Constitution and the law,…..  (d) to respect the rights, freedoms and legitimate interests of others, and generally to refrain from doing acts detrimental to the welfare of other persons (f) to protect and preserve public property and expose and combat misuse and waste of public funds and property (h) to defend Ghana and render national service when necessary (i) to cooperate with lawful agencies in the maintenance of law and order and (k) to protect and safeguard the environment.   

Mr. Azantilow also noted that Section (1) of Act 720 states that: “1 (1) a person may make a disclosure of information……Section 2 states…..Disclosure of information may be made……Section 3 states: 3 (1) Disclosure of impropriety may be made to anyone or more…..” “The operative wording therefore is may”, he observed.

According to the CHRAJ Director the duties imposed on citizens under the Constitution and the content of disclosures of information to be made under the Act 720 were in his view inseparable, or almost the same. “Although arguably not all persons envisaged under the Act are citizens, I do not think that the law makers intended that citizens and non-citizens should have different levels of responsibility when it comes to reporting on impropriety. Such an analysis is informed by the fact that many of the acts of impropriety envisaged under Act 720 are criminal in character including economic crimes, waste, misappropriation of public resources, environmental degradation, etc. Indeed, some of these crimes could mature into felonies, or are felonies by themselves if they are aggravated. Now Section 22 of the Criminal Offences Act, 1960 (Act 29) imposes a duty on all persons to use all reasonable means to prevent the commission of felony. The consequences of any failure to observe this duty attracts sanctions. However, under the Act 720, there is nothing compulsive about it, neither are there sanctions”, Mr. Azantilow further observed.

Mr. Azantilow also maintained that Sections 3 (1) of the Act 720 listed 18 institutions/persons to whom one could make a disclosure of impropriety to. But given the tenor of the section, he noted it was very clear that the Whistleblower had the wide latitude to make disclosures to all of them. “This in itself can create some confusion/unnecessary conflicts”, he reckoned stressing that, by Section 32, a Chief was given the same definition as that given under the Chieftaincy Act and the 1992 Constitution. But, chief under the Act, he indicated appeared to be in reference to the person (an individual) and not the institution. 

He said given the fact that under Section 6 (3) of the Act, a person to whom a disclosure was made was supposed to keep the information confidential, how could a chief ensure confidentiality when a Whistleblower might have to pass information through a linguist to be given to him, Mr. Azantilow asked?

Furthermore, the Northern Regional Director of CHRAJ observed that another challenge relates to disclosures to be made to a head of a recognized religious body which he said could create problems. “I have looked at the interpretation section of Act 720. No interpretation is given of recognized religious body. This puts the potential Whistleblower in an unnecessary conundrum. If he comes across any information on impropriety and he thinks that he/she is comfortable reporting such information to his pastor/priest, he has to ask himself whether that religious body to which the pastor/priest belongs is a recognized one? And how does one determine recognisability?” Mr. Azantilow asked again noting that that had not been provided by the law.

With respect to Section 4 (2) which states that the disclosure shall contain as far as practicable – the full name, address and occupation of the Whistleblower, he suggested the inclusion of email and telephone numbers and other forms of identification.

Mr. Azantilow also pointed out that the period of time required for a person or institutions listed under section 3 to whom a disclosure may be made to mandatorily submit a copy to the Attorney General (AG) was very short. Besides, he viewed that reporting to the AG itself could erode public confidence in making disclosures, the reason being that acts of impropriety involving corruption were mostly committed by government officials. “In view of the fact that AG’s office and Minister of Justice are inseparable, how does one expect that justice would be done to a disclosure that is made involving a government official, and would the AG ordinarily accept recommendations and so act on them where they negatively affect the Minister of Finance, Health, Agric or even his own deputy, he asked?”
To stem the tide, he recommended that there was the need for an independent body to handle results of investigations made under the Act instead of the AG to maintain public confidence in Whistleblowing. 

The overriding challenge according to the Northern Regional Director of CHRAJ Mr. Stephen Azantilow perhaps had to do with ignorance of the law. He doubted that statistics on reported cases of corruption would be high since the Act 720 was passed into law six years ago, citing that even in CHRAJ which was well common and acceptable, “We have only received 2 of such complaints – one bordering on victimization and the other on corruption.”

The legal luminary proposed intensive sensitization exercises to create awareness of the Act saying “There is the urgent need to empower a state institution with resources to engage in educational exercises if not the fight against corruption will continue to be a mirage.”

The Whistleblower Act is one of the anti-corruption laws that were passed to help reduce the canker of corruption in the Ghanaian society. Traditional Authorities are one of the institutions mandated under the law to receive prospective Whistleblowers. Unfortunately, most of the traditional authorities have a limited or lack the understanding of this law and makes it impossible for the implementation of the law at the local level.

GACC realized this shortfall and with support from the Open Society Initiative for West Africa (OSIWA) is implementing a project under the theme “Mobilising grassroots level participation for effective implementation of anti-corruption laws: a focus on the Whistleblower Law 2006 (Act 720).”

Thus, the objectives of the workshop organized for the traditional authorities in Tamale were among other things to educate them on the effects of corruption on the development of their people and communities they serve; educate and enhance participants knowledge and use of the basic anti-corruption laws especially the Whistleblower Law; and build the capacity of the traditional authorities to lead their communities to demand accountability from duty bearers.  

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