Analysis: KELVIN SIWALE
THE fight against white-collar crime is a complex one and not as easy as envisaged. Gathering of evidence and management of reports must be done in a discrete manner to safeguard evidence and protect those submitting reports to investigative wings.
The United Nations Convention Against Corruption recognises the key role whistle-blowers play in the fight against corruption. For this reason, the Convention requires all state parties to enact laws to protect whistle-blowers from any form of distress that may arise as a result of having made a public interest disclosure.
According to Article 32 of the UNCAC, state parties are encouraged to take measures in accordance with their domestic legal systems, to protect witnesses, experts and victims from retaliation and intimidation because of giving a testimony on offences established in the convention. Some measures proposed in the convention among others include; relocation of witnesses and permitting where appropriate non-disclosure or limitations on disclosure of information concerning their identity and whereabouts (UNCAC, Article 32(2)(a).
Further, article 33 of the convention requires state parties to consider incorporating into their legal system, deliberate measures to provide protection against victimisation and retaliation on persons that report alleged corruption to competent authorities.
In response to Articles 32 & 33, Zambia enacted, the Public Interest Disclosure Act number 4 of 2010. This is a huge milestone in attaining compliance to international anti-graft standards. The law empowers investigating authorities to provide protection to whistle-blowers as well as witnesses in the reported cases. It also provides for protection of whistle-blowers who make public interest disclosures to investigating authorities or Heads of agencies. However, it is important to note that reports should be made to appropriate authorities so that should there be any retaliation or intimidation, the same authorities reported to will by law, facilitate the provision of such protection.
According to section 23 of the Public Interest Disclosure Act, a public interest disclosure concerning a government agency’s conduct or the conduct of a public officer in relation to a government agency, or a public interest disclosure that a person has engaged, is engaging, or intends to engage in, an unlawful reprisal can be lodged to any of the following,: a) the head of the government agency; b) the Anti-Corruption Commission; c) the Police Public Complaints Authority; d) the Judicial Complaints Authority; e) the Drug Enforcement Commission; f) the Investigator-General(now the Public Protector); and g) the Auditor-General. To enjoy protection, disclosures must be made to any of the above authorities and without frivolity.
According to Section 26 of this Act, any disclosure to the ACC by a public officer on matters bordering on corrupt conduct shall be protected. This means the reporting person is protected by law from any form of resentment or retaliation by the affected persons as long as they report without frivolity and in accordance with the Anti-Corruption Act. Further, Section 45 of the Public Interest Disclosure Act demands that within six months from its commencement which was in 2010, all employers establish procedures to protect its employees from unlawful reprisals. Further, Section 46 of the same Act goes to state that no person shall engage or attempt or conspire to engage in an unlawful reprisal. This section criminalises such acts and offenders are liable to imprisonment not exceeding two years or a fine of not more than Two Hundred Thousand penalty units or to both as the court determines. If the offender is a corporate body, it is liable to a penalty not exceeding Seven Hundred Thousand penalty units.
Section 47 requires that employers consider the requests of employees who apply for transfers for fear of reprisals. If the employer determines that the best solution to avert danger is to move the employee, a transfer to another place, in the employing agency should be effected. The employer is expected to make all the arrangements and meet all the costs involved.
Zambia is compliant to most of the provisions of the UNCAC, one of them being enacting a law that protects whistle-blowers and witnesses. However, having good legislation is one thing, effective implementation of such legislation is another. For effective implementation of this law, there is need for all employers to be compliant with the provisions of the Public Interest Disclosure Act. Private and Public entities should establish policies that protect whistle-blowers in their institutions.
With this law, whistleblowers should feel safe and make public interest disclosures through the right channels to enjoy protection. Failure to make disclosures to the recognised authorities makes it difficult to be covered under this law.
The author is an anti-corruption specialist.