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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