Mr Ibirogba is one of many Whistleblower turn scape goat in Nigeria. Sometimes in 2013, Mr Ibirogba an employee of YABATECH, was dismissed for exposing fraud and corruption involving the rector and other top oficials. Honorable Justice B.B Kanyip, PHD of the National Industrial Court, Lagos in his judgment dated 1st of July, 2015 in the case of OLU IBIROGBA V COUNCIL, FEDERAL POLYTECHNIC YABA otherwise known as YABATECH ordered the reinstatement of Mr Ibirogba. The polytechnic however refused to act upon such judgment. On 7th of June, 2018, Honorable Justice O.A Obaseki-Ogaghae of the National Industrial Court, Lagos Judicial Division in his judgment in the same case granted the following relief to the Claimant, Mr Ibirogba
(a) Declaration that by virtue of S 15(5) of the Constitution Federal Republic of Nigeria, 1999 (as amended) and S 38(2)(b) of the Economic and Financial Crimes Commission Act as well as S 27(2) of the Freedom of Information Act, 2011, it was contrary to public policy for the defendant or any of its agent to punish the claimant for exposing fraud in the institution
(b) Declaration that his suspension from office of the Bursar of the polytechnic vide a letter dated 7th October, 2013 is unlawful,null and void and the subsequent termination of the claimants employment vide a letter dated 30th of April, 2018 during the pendency of the suit as well as refusal to obey subsisting judgment is contemptuous and amounts to flagrant abuse of the rule of law. The court went further to order the claimants reinstatement with all rights and privilege
(c) The court awarded the sum.of #20,000,000 ( Twenty Million Naira)against Yabatech as punitive damages and the sum of #1,000,000 (One Million Naira)as legal cost making the total sum payable to Mr Ibirogba at #21,000,000( Twenty One Million Naira) to be paid within 30days with post judgment interest of 10% per annum till liquidation .The Polytevhnic is yet to act on this judgment as well.
The tenets of a civilised society includes access to justice, freedom of information encouraging and protection of whistleblowers. To this end, the Nigeria Freedom of Information Act, 2011 was believed to have ushered in an era of accountability, accessibility, transparency amongst others. The first form of freedom of information law was enacted in Sweden in 1766 .The Act abolished political censorship and encouraged transparency. As at 2013, about 95 countries in the world are estimated to have enacted one form of freedom of information law or another as it has been given international recognition According to the United Nations Development Program (UNDP), Freedom of Information encompasses the core principles of democratic governance, participation, transparency, and accountability.
Similarly, S 14(1) of the 1999 constitution lends credence to this fact by providing thus “The Federal Republic of Nigeria shall be a state based on the principles of Democracy and Social justice''. Freedom of Information and Expression are two side of a proverbial coin the absence of one is the extinction of another. For a state to operate true democracy, it must allow for freedom of expression, access to information, and also create a platform for Whistleblowing The Nigeria Freedom of Information Act is a reflection of the highlighted tenets of democracy. The Act provides for the following:
Making information and public documents available to all and sundry
Providing a time frame for its provision
Mandating public institutions to keep records of all activities, operation and businesses
Criminalizes and penalizes the intentional destruction or falsification of records
Protection of whistle blowers on of whistle blowers.
Etymologically, the concept called Whistleblowing is a combination of two words namely; ‘Whistle’ and ‘Blow’
According to Wikipedia, A whistle is a simple aero phone, an instrument which produces sound from a stream of gas most commonly air. The whistle is an ancient instrument that was believed to have originated from China around 5000 years ago and making its way to Europe in about the 11th century
‘Blow’ means to cause to make sound by blowing. Amongst the indigenous people, hunters blow the whistle to call the attention of fellow hunters to themselves or in cases when the hunters have dogs trained to hunt, to call the dog back to the hunter. The word whistleblowing is a multi-faceted word meaning different things to different persons, culture, commentator, and jurisdiction.
To some, it is seen as an act of free speech, while to others, it is seen as an anti-corruption tool because it emphasizes the disclosure of immoral, illegal practices within the employer-employee relationship
Latiner and Brown defines it as the “disclosure by organization members (former or current) of illegal, immoral, or illegal practices under the control of their employer, to persons or organizations that may be able to effect action
The International Labor Organization defines it as “The reporting by employees or former employees of illegal, irregular, dangerous or unethical practices by employers”
Banisar identified whistleblowing as:-
… a means to promote accountability by allowing for the disclosure by any person of information about misconduct while at the same time protecting the person against sanctions of all forms. [He] recognizes that whistleblowing relates to internal and external disclosures and should apply to all organizations, public and private. The disclosure can be internal to higher-ranking officials in the organization but also to external bodies such as regulatory bodies, ombudsmen, anti-corruption commissioners, elected officials and the media. The focus of whistleblowing is thus a free speech right, an ethical release, and an administrative mechanism. The result is to ensure individuals have the ability to speak out in their conscience and that organizations are more open and accountable to their employees, shareholders and the greater public in their activities.
The European Court of Human Right and Vickers sees whistleblowing as “an expression of Dissent”, an element of free speech in workplace
Wikipedia defines a whistle blower as a person who raises concern about wrongdoing occurring in an organization. In the 1970’s, US Civic activist Ralph Nader coined the word “Whistleblowing” to mean the dramatic revelation of something illicit and in certain walks of life, it means getting painted as a ‘Rat’, ‘Squealer’, ‘Fink’, ‘Stool pigeon’, ‘Snitch’, or ‘Informer’ and other derogatory terms used to qualify the act of exposing illicit activities
Whistleblowers ought to be treated as heroes, respected and encouraged; this is however a far cry from what obtains in the society today as the Whistleblower in discharging his duty is met by hostile legislations and where whistleblower friendly legislations exists, it is more often than not a mere paper tiger The Freedom of Information Act is the only Nigeria legislation that expressly provides for Whistleblower protection. This was one of the reasons various groups and individuals agitated for its passage. It was believed that the Act will protect Whistleblowers from discrimination, punishment and a host of other reprisal. However this has not been the case. Since its passage, there have been few instances of Whistleblower protection in Nigeria neither has the Act changed people’s perception of Whistleblowing hence a Whistleblower has to think twice before blowing the whistle.
Adefaye, President of the Nigeria Guild of Editor’s, lauding the passage of the Act said that: “It has expanded the frontiers of press freedom for Africa most vibrant press”
Ayobami Ojebode commenting on the passage of the Freedom of Information Act started on the note that it took over a decade to pass the Bill into law owing to the reluctance on the part of the government to practice transparency. Prior to its passage, many citizen especially journalists were detained, jailed and even murdered in the struggle for the passage of the bill. During the military era, those who pried into government activities or those of its officials were ruthlessly dealt with. Section 27 of the Act which protects individuals who make disclosures in good faith from civil or criminal proceedings will according to him allow for transparency in the civil service this is because civil servants are very secretive . Hence, a proper application of the Act has the possibility of ending such undemocratic practice. However, he highlighted the likely challenges to be faced in the implementation of the Act as follows;
The lack of a supervisory body/agency to oversee the implementation of the legislation unlike other piece of anti- corruption legislations that establishes regulatory agencies. The implication of which is that civil society will have to remain vigilant and active in ensuring the effectiveness of the Act
High cost of litigation may deter Whistleblowers from blowing the whistle. He however encouraged human right lawyers to be ready to offer pro bono services to Whistleblowers.
Whistleblowing Bill; The Journey so far
The bill was sponsored by Senator Ganiyu Olarenwaju Solomon, Senator representing Lagos West Constituency in the year 2008. Unfortunately, the age long bill is yet to be passed into law.
The Vanguard newspaper on the 16th of June, 2015 in its article titled “Buhari to Fight Graft with Five Special Laws” reported that the President Muhammadu Buhari has set up a committee comprising of distinguished legal luminaries headed by the Vice-President, Professor Yemi Osinbanjo to give legal advice on the bills one of which is the Whistleblower Protection Bill, 2015. The committees is saddled with the responsibility of putting finishing touch to the bill and provide legal expertise to the president on the benefits, prospects and Challenges of the various bills. The Civil Society Organization is one of the groups that have been clamoring for the passage of this age long bill as it will help in the fight against corruption. The Executive Director, Civil Society Legal Advocacy Centre, Auwal Rafsanjani, speaking on behalf of the group at a press briefing in Abuja said;
“…reporting misconduct has caused some employees to be victimize .Whistleblowers are seen as troublemakers who are out to unveil all manner of corruption practiced in secrecy. Employees generally do not feel protected enough to come forward with information on misconduct and corrupt practices”
The provision of the bill is in pari material with the Whistleblower Protection Act of Ghana. The bill offers a wide range of institutions and persons a whistleblower can disclose to, classes of persons who can make disclosure, protection of whistleblower from victimization, and also spells out instances when a whistleblower can seek redress at the court etc. Despite how beautifully couched the provisions of the bill is, the researcher suggests that some provisions be looked into before the passage of the bill into law. i.e. The provision that states that disclosure by a whistleblower be reported to the Attorney General of the federation who is also the Minister for Justice. This will impinge on the efficacy of the whistleblowers disclosure because in instances where the disclosure affects the integrity and character of the serving Attorney General, or persons close to him, such a disclosure might be swept under the carpet and the Whistleblower witch-hunted.
Ogungbamila outlined the reason why employees do not engage in Whistleblowing. They include;
Perceived lack of integrity in anti-corruption crusades
Clumsiness of Whistleblowing processes
Perceived inefficiency f court processes
Corrupt persons were too powerful
Ostracism
That Whistleblowing will not bring about the desired changes and ;
The stress associated with being a witness in court
He categorized them as psychological and social factors which discouraged respondents from blowing the whistle. He went further to note that Nigeria was one of the most corrupt in the world despite having anti-corruption agencies .He attributed this failure to the fact that these agencies, focus majorly on the legal framework to fighting corruption forgetting the relevance of Whistleblowing because often time than not, it is an insider (employee) who discovers and draws the attention of others to corrupt acts.
His findings showed that the presence of a strong Whistleblowing law accounted for 83% changes in a country’s Corruption Perception Index. Emphasizing that Whistleblowing can only thrive when employees feel it would bring about the expected changes. He concluded on the note that Whistleblowing is a viable tool in the fight against corruption if the social and psychological impediments are removed.
Ogungbamila is not painting a picture depicting Whistleblowing as a magical wand in the fight against corruption, however if corruption is to be combated, Whistleblowing should be employed.
Will YABATECH'S contemptuous act go unpunished?
