SANUSI THE WHISTLEBLOWER AND THE NIGERIAN LAW When the suspended CBN governor Sanusi Lamido Sanusi “blown the lid off a monumental scandal” in which the sum of $20,000,000,000.00 was alleged to disappeared from the public treasury, many Nigerians vowed that this was over. $20b is literally equivalent to N3,200,000,000,000.00 (Three Trillion, Two Hundred Billion) if $1 is N160. Each Nigerian will get about N17,778.00 (Seventeen Thousand, Seven Hundred and Seventy Eight) if Nigerians are 180,000,000. If the money is to be shared among the states, each state including FCT could get about N86,486,486,486.50 (Eighty Six Billion,, Four Hundred and Eighty Six Million, Four Hundred and Eighty Six Thousand, Four Hundred and Eighty Six Naira, Fifty Kobo). With this earth-shattering disclosure by the former CBN governor, many Nigerians already forecasted that Sanusi would be sacked, fired, removed or in other words ‘suspended’. What all Nigerians had consensus on was that some unimaginable consequences must befall Sanusi as he talked on a no-go-area. The long expected sack or suspension is now a history. Now that the ‘whistleblower’ Sanusi or ‘disloyal’ CBN governor as some tag him, is suspended legally or illegally, constitutionally or unconstitutionally, for what he said about some missing funds, many theories surfaced. Some are of the view that the Kano prince was suspended for what he disclosed about the ‘stolen’ or missing or disappeared $20b. Some say he was disengaged because he talks too much and he is too opened to Nigerians about the activities of some untouchables. Yet some gullibly opined that SLS was fired because he was not used to the old convention of dancing to the tune of the highest oga, whether the oga is right or wrong. The presidential mouth-piece however came up with a long list of allegations too technical for the understanding of ordinary Nigeria as reasons for asking the prince to step-aside until investigations are completed. While Nigerians were officially informed of the reasons for suspending the Sanusi of Nigeria’s Central Bank, they will continue to speculate on the real (or Nigerian) reasons why the best central bank governor in any developing economy could be fired unsystematically. It might be that the ‘former’ CBN governor doesn’t speak good English or he doesn’t shout “PDP power” at the beginning of his speeches locally and internationally. Who knows? It could even be speculated that SLS was suspended because he doesn’t belong to Big Mama Club of Praise Singers. Some could even think it was because in addition to his first class in Economics, the prince read Sharia Law. While I will not speculate on any reasons or justifications for ‘sacking’ the best CBN governor, as some one with interest in good governance and especially the concept of whistleblowing, write on the assumption that SLS was suspended because he blew the whistle. Let us all assume that SLS was unsystematically sacked because he speaks too much on our missing money, can Nigerian laws come to his aid? I am talking about whether under the CBN Act 2007 the President can or cannot suspend or remove Sanusi as CBN governor. I am also talking about the constitutionality or unconstitutionality of SLS’s suspension. I am talking about whether SLS as whistleblower can be protected by Nigerian laws. What is whistleblowing? The Oxford English Dictionary defined whistle-blowing as bringing an activity to a sharp conclusion as if by the blast of a whistle. The Cambridge Advanced Learner’s Dictionary (online) defined whistle-blowing as “[causing] something bad that someone is doing to stop, especially by bringing it to the attention of other people”. A whistle-blower on the other hand has been defined by the Oxford Advanced Learner’s Dictionary (online) as a person who informs people in authority or the public that the company [government] they work for is doing [something] wrong or illegal. Legally speaking however, there may not be a universally acceptable definition of the term because of the uncertainties surrounding it. It has been recently defined as “the reporting of a wrongdoing that needs to be corrected or terminated in order to protect public interest”. Whistle-blowing is generally defined as “passing on information from a conviction that it should be passed on despite (not because of) the embarrassment it could cause to those implicated”. Recently it has been defined as “a culture that encourages the challenge of inappropriate behavior at all levels”. So whatever the definition, we all agree that it is something good. It involves disclosing something bad by some good people for public good. Reed Irvine a US journalist gave us a good analogy of whistleblowers and what they do in our societies. He said that coal miners used to carry caged canaries into the mines with them. When the canaries stopped singing, they knew they were in trouble and they had better get out fast. By this analogy therefore, prince Sanusi and alike in any government and other large organizations are, in a way, our canaries. When they are free to `sing, those institutions are healthy. When they are silenced, we are in trouble. A potential whistle-blower who sees a wrong doing being carried out in an organization has four risky options. Firstly, he may decide to keep silent for fear of dismissal or that he will be called names, or that his family may be targeted. However, his silence may cause grave disaster to the public at large. Secondly, he may decide to blow the whistle internally so that those in charge of the organization are put on the alert to take the appropriate measure to avert or avoid the risk. This is particularly if the employee belongs to organization encouraging the culture of raising concern about wrongdoing. Thirdly, he may decide to let everybody know by blowing the whistle outside; for instance by alerting the media. This may be the most dangerous cause as the employee may likely lose his job at the end of the drama for ethical or legal reasons, especially in countries without whistleblower protection laws like our dear Naija. Fourthly, the employee may anonymously blow the whistle internally or outside; for instance by leaking the information to those in more senior positions or to the media. However, this makes the wrongdoing difficult to investigate, as there could be no one to clarify on the matters raised. Whatever option a whistleblower chooses to follow, we all indisputably agree that whistleblowing is helpful, though risky. It is a risky business because of the dangers, the detriment and threats awaiting an employee who courageously decides to say ‘enough is enough’ to the wrongdoing of either his co-workers or his employers. Whistleblowers could commonly “face discipline or dismissal” because they are being seen as “particular threat to, and thorn in the side of, an employing organization.” They may also earn more negative labels such as informants, snitches, rats, squabbles, sneaks, or stoolies) which could have impact on them or their families. A potential whistleblower with a genuine case like prince Sanusi may prefer to be silent rather than reporting the matter to the authorities for fear of being seen as troublemaker or ‘maverick’ or for fear of recriminations and feeling of impotence in the belief that, even if the report is made, nothing will be done about it. Now that the prince has decided to take the risky way by disclosing something wrong to the public, to the media and to the world, can he be protected as whistleblower? The answer is yes and no. Of course by all standards globally, SLS could be protected, in fact could have been protected even before he makes the disclosures – by the various laws safeguarding whistleblowing. A number of countries in Europe, the Americas and Asia have since enacted whistleblower protection legislations. In Africa however, it is only in South Africa that comprehensive whistleblower protection legislation can be found. Most of the countries in Africa struggling with abject poverty and chronic corruption are yet see the beauty and benefits in enacting whistleblower protection legislation. Do we have whistleblower’s protection law in Nigeria? As at the time of this write-up there is no provision, either in an Act of National Assembly or a Law of any state expressly protecting whistleblowers, either in the public or private sectors in Nigeria. In the course of building a paper I presented at Seoul, South Korea at International Public Procurement Conference, 2010, I came across two bills before the National Assembly seeking to protect disclosures made in public interest and whistleblowers. The bills, as sourced from the official website of the National Assembly have not been passed into law. The first bill is captioned “WHISTLEBLOWER PROTECTION BILL, 2008” (H.B. 117). It seeks to provide for the manner in which individuals may in the public interest disclose information that related to unlawful or other illegal conduct or corrupt practices of others and to provide for the protection against victimization of persons who make these disclosures. Senator Ganiyu Olanrewaju Solomon sponsored the bill. The second bill which is the most recent is captioned SAFEGUARDED DISCLOSURE (WHISTLE BLOWERS, SPECIAL PROVISIONS, ETC.) BILL, 2009 (H.B 167). It seeks to make provision for the procedure in terms of which persons employed in the public and private sectors may disclose information regarding unlawful and other irregular practices and conduct in workplace and to provide protection against any occupational detriment or reprisals of a person making such disclosures. The bill has been sponsored by Honorable John Halims Agoda. As at the time of this write-up no information can be found or accessed on the official website of the National Assembly on the progression of these Bills. It cannot be found whether they have been given the usual 1st reading, or they have been debated upon or they have been referred to any committee (The Senate/House of Reps, Bills Progression). In countries like Japan, United States, South Korea whistleblowers are not only protected from victimization or dismissal, they are even rewarded and celebrated. Whistleblowing was statutorily recognized in the United States as early as 1863. In 1989 the Whistleblower Protection Act was passed. The Act protects federal workers disclosing any information they reasonably believe violate the law, rule or regulation or any information disclosing abuse of authority, gross waste of funds, mismanagement, significant and specific risk to public health and safety. In order encourage and support whistle blower, the United States Office of Special Counsel (OSC) was established in 1979 and operates as confidential disclosure channel for whistleblowers in the federal employment. In 2007 the Whistleblower Protection Enhancement Act of 2007 was passed to amend the 1989 Act. In the UK, the Public Interest Disclosure Act (PIDA) 1999 was passed. PIDA protects both public and private sector employees who make a ‘qualifying disclosure’. Qualifying disclosure is any disclosure of criminal offence, of a failure to comply with any legal obligation, of a miscarriage of justice, danger to the health and safety of any individual, of damage to the environment or of a deliberate concealment of information relating to any of the above that has been, is being or is likely to be committed. Now that there is no law in Nigeria protecting whistleblowers, the common law principles will definitely guide the relationship between Sanusi and his employer the Federal Republic of Nigeria. Thus, under the common law if Sanusi is to blow the whistle he would be faced with two tensions. Is he going to blow the whistle in the interest of Nigerians but lose his job, prosecuted and convicted or is he going to be silent to the detriment of Nigerians but would have retained his job, is celebrated and possibly receives an award. Let us se the position under the common law. The common law position Since whistle-blowing is about speaking out and making disclosures about the information the whistleblower is privileged to know in the course of his employment, this clashes with his duty of trust and confidence under the contract of employment. When an employee decides to speak out a wrongdoing taking place in the workplace, whether a firm, an industry or a public office, his revelations will involve the breach of two important duties he has undertaken to honour. 1. The shared implied duty of trust and confidence Firstly, in any contract of employment there is an implied term of mutual trust and confidence, which includes a duty of co-operation and fidelity. By this shared duty both the employer and employee have impliedly undertaken that there should be “a degree of trust and confidence between them” for the efficient running of the relationship. The duty is mutually shared between the employer and the employee as the House of Lords stated in the locus classicus of Malik v Bank of Credit and Commerce International SA (In Compulsory Liquidation) [1998] A.C. 20 HL. Although the duty is not express, the relationship between the parties clearly indicates that: The employer will not, without reasonable and proper cause, so conduct itself in its dealings with third parties as to destroy or seriously damage the relationship of trust and confidence between employer and employee. The purpose of this implied term is to limit the employees obligation to give loyal service to his employer. He cannot be expected to give such service when the employer is improperly conducting itself in a manner which evinces an intention on the part of the employer not to observe the limits of the bargain.” Thus, where either of the parties has conducted himself or itself dishonestly the other party can treat the relationship as repudiated. In British Aircraft Corporation v Austin [1978] IRLR 332 refusal to respond to a health and safety complaint by a worker was considered by the Employment Appeal Tribunal as constituting the breach of implied term of mutual trust and confidence entitling the worker to claim for damages for constructive dismissal. In relation to employee the duty has the connotation that the employee is logically under a contractual obligation “not let his master down” in any way whatsoever. So this means that as a general rule, an employer can treat as repudiated his relationship with an employee whistleblower who discloses confidential information to others because literally he is trying to bring him down and he can no longer trust him. 2. Employee’s duty not to disclose employer’s confidential information Secondly, there is a duty of confidence generally expressed in the terms of employment that the employee is under duty not to disclose to anybody any confidential information or secrets he comes to acquire in the course of his employment. The basis of this duty is that in the interest of public policy “when information is received in confidence – for a limited purpose, as it always is – it should not be used for other purposes”. This duty exists whether or not it is expressly stated in the terms of the employment. Practically speaking, since wrongdoing is usually committed secretly it is only the persons who are privileged to know it could know what is going on. This means that it is practically inevitable that disclosure by whistleblower could lead him to breach the duty of confidence he owes to his employer as his revelation involves disclosing certain confidential information and secrets to others. Although there have been some controversies over when does this duty arise, it is clear that a whistleblower can be dismissed or face disciplinary action for the breach of this duty. Exception to the general rule As far back as 1856, Wood VC stated in Gartside v Outram [1856] 26 LJ Ch 113, 114, 116 that “there is no confidence as to the disclosure of iniquity”. If the disclosure is in the public interest the employee may not be in breach of his contract of employment. This exception applies whether or not it is expressly stated in the contract of employment. It was even held in Initial Services Ltd. v. Putterill and Another [1968] QB 396 that any express term in the contract or its accompanying document excluding the application of this exception is void. However, whether or not a disclosure is in the public interest is a question of fact depending on the circumstances in each case. A disclosure may be of public interest only, although not in the public interest. This means that it is not all disclosures the public could find interesting or fascinating that could truly be in the public interest. The case law has indicated that there are certain factors the courts normally consider before deciding whether or not a disclosure by a whistleblower is in the public interest. Among these factors are the following: a) What type of information was disclosed? Generally speaking, disclosure of crime, illegality, bribe or fraud and that on health and safety may be in the public interest.. In Initial Services Ltd. v. Putterill and Another Lord Denning MR. stated that the exception should be extended to crimes, frauds and misdeeds, both those actually committed as well as those in contemplation, provided always that the disclosure is justified in the public interest. The reason given by Lord Denning was that …no private obligations can dispense with that universal one which lies on every member of the society to discover every design which may be formed, contrary to the laws of the society, to destroy the public welfare”. The decision of the English Court of Appeal in Sun Printers v Westminster Press [1982] IRLR 292 is to the effect that where the confidential information has been in public domain no breach of the duty of confidence; hence there is no confidence to breach. However, the House of Lords decided in British Steel Corporation v Granada Television [1981] AC 1097 that where the disclosure relates to mismanagement or fraud in the public sector or nationalized company it is to be regarded in the public interest. Thus, disclosure of mismanagement like the one done by SLS can be in the public interest. Having said this, it may be submitted that while it is likely that whistle-blowing of an illegal act or a serious misdeed in a public sector may not involve breach of duty of confidence, a whistleblower who engages “in protest, for example about management practice or the effects of government funding policies in the public sector” and makes disclosures could be in breach of duty of confidence. b) To whom was the disclosure made? The identity of the recipient of the disclosure is important and as well relevant in determining whether a disclosure is in the public interest or not. The Spycatcher cases have indicated that certain factors are considered by the courts, like the seriousness or the sensitivity of the information disclosed; whether or not there has been a specified person or regulatory body to which the complainant could make his disclosures and whether a complaint was first made to the specified person or regulatory body. It is pointed out that: “Clearly, where concerns are very urgent and relate to serious matter such as public health and safety, internal disclosure will not be appropriate, even as a starting point: instead, the quickest way to reach the widest number of people will be by disclosure via the media.” Generally speaking, a disclosure to designated person or to a regulatory body does not amount to breach of duty of confidence. This in effect means that, although a whistleblower that makes revelations to such designated person or body might be victimized in some other ways, legally speaking he might not be found in breach of his duty of confidence. c) When was the disclosure made? The courts also consider the time when the disclosure was made so that disclosures made of information already in the public domain may not involve breach of confidence. The authorities have also indicated that if the disclosure could prevent a harm or disaster befalling the public or a section of the community then it does not involve breach of duty of confidence. This also applies to a disclosure that will bring an end to an existing fraud or harm. It also covers instances where the disclosure of the confidential information may curtail the occurrence of a contemplated harm. d) Was the disclosure in good faith? Motive or state of mind of the person who makes the disclosure may be relevant in some cases and irreverent in others. The motive of a person who unlawfully and or for material gain obtains confidential information and discloses it may not necessarily be material if the public have the right to know about the disclosure. However, whether or not the public have right to know a piece of confidential information is a question of fact. The case law has indicated that the courts would be more readily to find a breach of duty of confidence where the disclosure was made for material benefit only, or out of malice, spite or hatred. e) Was the disclosure true? It is incontrovertible that public interest is unlikely to be served by disclosure of unfounded suspicion of wrongdoing. The case law has indicated that a person who makes a disclosure claiming to be in the public interest must show that it is not on a mere suspicion that there might be something wrong taking place. He must have “at least a prima facie case that the allegations have substance” even if they might not literally be true. Generally speaking, the common law position is that a whistleblower who discloses confidential information of his employer to others may get his contract terminated; he may be dismissed with or without notice and he may be disciplined – except if the disclosure is in the public interest. The only remedy available to the employee seems to be an action that the dismissal or other disciplinary measure taken against him by his employer was unfair; or that it was discriminatory; or that the measure less dismissal was to constructively dismiss him. What the absence of whistleblower protection costs Nigeria On 30th September 2006 a dam collapsed in Zamfara, swept away about 500 houses and led to the deaths of about 40 people. On the 18th of the same month, a plane crashed in the Southern Nigeria killing 10 serving generals. Earlier in May, an oil pipeline explosion killed about 200 people at the outskirts of the city of Lagos. And on 8th of February a case of bird flu was reported in Nigeria - the first case of the disease in Africa. On the 10th of December 2005 it was reported that a passenger jet crashed on landing at the airport in the city of Port Harcourt and least 56 people were killed. Earlier, on October 23rd, 2005 a Bellview Airlines Boeing 737 with 116 on board crashed shortly after take-off from Lagos and all the passengers died. On 24th September 2006, Nigeria Civil Aviation Authority (NCAA) Director General, was reported to have said that the country recorded the highest air accidents in the world the year before. He further stated that the countrys two air accidents involving Belleview Airline and Sosoliso Airline account for 225 deaths, the worst recorded in the world that year. As of recent, all Nigerians will never forget the incidence of the 29th October 2006 which claimed the lives of many Nigerians, including His Eminence the Sultan of Sokoto. The Dana Air disaster is fresh in the memories of Nigerians. And now the “Sanusi Disclosures” – yet we do not have any whistleblower protection law. Do they want ‘gullible’ Nigerians to believe that no insider or employee of the organizations involved in these disasters ever knows about the frauds, the wrongdoings or breach of health and safety. There must have been some good Nigerians who might have known that their ‘oga-at-the-top’ was perpetuating illegalities destroying lives and properties of innocent Nigerians but because they knew they could be fired they decided to be silent. And silence of a whistleblower means disaster against the public. In the absence of that law the vague and uncertain common law principles will continue to apply. It is to be noted that even though under the common law disclosure of fraud, mismanagement, breach of health and safety regulations are allowed and when done, an employee may not be in breach of his duties of loyalty and confidentiality to his employer. Nevertheless, the common law principles do not provide for any remedy to the employee who is dismissed because of the fraud or wrongdoing he discloses. It is high time therefore Nigeria gets its own whistleblower protection legislation, just like South Africa, Japan, and the US where whistleblowers are even rewarded and celebrated and cannot not be dismissed, victimized, prosecuted or ‘sacked’ by their employer.
Posted on: Tue, 11 Mar 2014 14:12:52 +0000