AS the Government ratchets up the fight against corruption, individuals who victimise whistleblowers that lift the lid on graft will soon face up to five years in prison or fines of up to US$1 000 under a law that is being drafted.
The Public Interest Disclosure (Protection of Whistleblowers) Bill, designed to encourage individuals to report corruption, allows whistleblowers and their immediate family members to request State protection if they fear reprisals.
The envisaged legislation also prohibits investigating authorities, employers and any other individuals from taking any detrimental action against someone who makes a protected disclosure.
Justice, Legal and Parliamentary Affairs Permanent Secretary Mrs Vimbai Nyemba told The Sunday Mail that the Bill was now awaiting finalisation by the Attorney-General’s Office before it is submitted to the Cabinet Committee on Legislation.
“The purpose of this Bill is to facilitate disclosure of conduct adverse to the public interest in the public and private sectors, and to protect whistleblowers by prohibiting detrimental treatment of any whistle-blower by reason of his or her whistle-blowing,” said Mrs Nyemba.
“Any disclosure made in good faith to a person or an investigating authority in respect of which the reporting person reasonably believes it is true, and the information disclosed and any allegation contained in it are substantially true amounts to a protected disclosure.
“A person is not subject to any liability for making a protected disclosure in good faith and no action, claim or demand shall be taken or made of or against the person for making the disclosure.”
However, she said, any person who makes a frivolous and vexatious disclosure is not protected under the proposed law.
“A whistle-blower or his or her dependants may institute civil proceedings in respect of a detrimental action taken against them by a Government agency or an employer at any time within three years after the detrimental action is alleged to have been committed,” added Mrs Nyemba.
“Further, the Bill prohibits engaging in or attempting or conspiring to engage in an unlawful reprisal.
“Contravening the above, the perpetrator shall be guilty of an offence and liable, upon conviction, if the offender is a natural person, to a fine not exceeding Level 13 or to imprisonment for a period not exceeding five years, or both; or if the offender is a body corporate, to a fine not exceeding Level 13.”
Level 13 fines are pegged at US$1 000 or the equivalent in ZiG.
She said corporates, the private and public sectors will be expected to develop reporting procedures that employees or agencies will use to disclose any suspected malpractices.
This, she added, may not be mandatory at law, but will be done by any entity in the name of good transparency practices.
“If public interest disclosure leads to the detection of a crime perpetrated by the whistleblower, the punishment of such person or persons may be mitigated or remitted.
“Where an employer takes disciplinary action against a whistleblower by reason of an offence or some misconduct by the whistleblower, discovered in the course of investigations that arise from the whistleblower’s disclosure, the employer is prohibited from taking action until such time that the investigations are completed.
“In the event that the employer pursues the case, the investigating officer shall request the employer to mitigate or remit the disciplinary action, and the employer, on receiving a request, shall comply with such request unless there is good reason for non-compliance.”
If a protected disclosure contains confidential work-related information, Mrs Nyemba said, the whistleblower shall be deemed not to have violated their professional confidentiality obligation.
“A whistleblower and his or her immediate family members may request protective measures for their personal or property safety from the investigating authority which is investigating or prosecuting due to the disclosure that has been made,” she said.
“The investigating authority must consider such request and if deemed necessary or where the whistleblower has faced or is likely to face serious danger, must request the Commissioner-General of Police or head of other security services to provide the necessary protection as may be required. These personal protective measures must be provided without undue delay.”
Experts say whistleblower protection laws help give people confidence to come forward and report corruption, fraud or other illegal activities without fear of losing their jobs or facing other forms of retaliation.
In South Africa, the Protected Disclosures Act of 2000 is considered one of the most advanced whistleblower protection laws in the world.
It protects employees in both the public and private sectors who disclose information about illegal or corrupt conduct.
The law also prohibits employers from taking any detrimental action against whistleblowers, such as firing them or demoting them.
It also allows whistleblowers to make disclosures anonymously.
