The main purpose of this act is to provide 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. This means that any information disclosed in accordance with this act or law must be in accordance with the public interest. Article 295 of the 1992 constitution defines public interest to include any right or advantage which ensures or is intended to inure to the benefit generally of the whole of people of Ghana. The act also provides for the protection against victimization of persons who discloses such information and also provide a fund to reward individuals who make such disclosure.
WHO CAN DISLCOSE AN INFORMATION?
The information can be disclosed by any individual without necessarily been a citizen of Ghana. In accordance with section 32 of this Act a person includes an individual, body of persons or institutions or corporations. Glaringly, disclosure of information can be made by any of the bodies aforementioned. Again, in accordance with the Act, a disclosure can be made by an employee in respect of the adverse activities of the employer, by an employee in respect of the adverse activities of another employee or by any person in respect of the adverse activity of another person or an institution.
INFORMATION THAT CAN BE DISCLOSED IN ACCORDANCE WITH THE LAW?
The whistleblowers act 2006 limns six types of information which relates to certain activity that can be disclosed. A person may disclose information when that person has reasonable cause to believe that
- An economic crime has been committed, is about to be committed, or is likely to be committed.
- Any other person has not complied with law or is in the process of breaking a law or is likely to break a law which imposes an obligation on that person.
- A miscarriage of justice has occurred, is occurring or is likely to occur
- In a public institution there has been, there is or there is likely to be waste, misappropriation or mismanagement of public resources.
- The environment has been degraded, is being degraded, or is likely to be degraded
- The health or safety of an individual or a community is endangered has been endangered or is likely to be endangered.
This means that any disclosure of information made must relate to any of the activity listed above. In a situation where such disclosure made does not fall within the elements listed above, such disclosure of information made would not be accorded the necessary protection under this law or Act irrespective of it been in the public interest. Hence, such person may pursue such cause under a different law or Act.
Any person that discloses information which relates to any of the elements above is referred as the whistleblower.
INSTITUTIONS TO WHICH INFORMATION CAN BE DISCLOSED TO?
The Act lists an array of institutions that can receive such disclosed information. Upon receiving such information by the institution, the information becomes protected, once the other two criteria are complied with which would be discussed. The mere disclosure of an information to any of these institution does not mean such institution is obliged to investigate such matter when it does not have the capacity to investigate such information disclosed. The institutions, however, not been able to investigate the matter or the information is still obliged to protect the information and keep it confidential as it also strives to assist the whistleblower to the police or any other institutions that may have the gambit to investigate such information or matter.
The institutions include
- Employer of the whistleblower, a policer officer, Attorney General, Auditor general, a staff of the intelligent Agencies, member of parliament, serious fraud office, CHRAJ, National media commission, chief, head of religious organization, head of family or elder, minister of state, office of the president. ETC.
It is worth to note that the disclosure of information to bodies such as the chief must be someone who qualifies to be a chief in accordance with the constitution and nothing less than that. In accordance with Article 277 of the 1992 constitution, a chief is any person hailing from the appropriate family and lineage, has been validly nominated, elected or selected and enstooled or installed as a chief or a queen mother in accordance with the relevant customary law and usage. Hence, a disclosure of information can also be made to a queen mother as they also qualify as chiefs under the 1992 constitution.
Again, any disclosure made to religious heads must be to those religious organizations that have been registered in accordance with the laws of Ghana.
WHAT DOES IT MEAN TO SAY AN INFORMATION IS PROTECTED?
An information is said to be protected when its disclosure comes with certain ancillary or advantageous rights. For a disclosure of an information to be protected it has to satisfy certain elements.
Firstly, the whistleblower has to disclose the information in good faith. Good faith means to act honestly whether negligent or not; secondly, the whistleblower must have reasonable cause to believe that the allegation where substantially true; in addition, the information has to be disclosed to any of the institutions listed above.
A breach of any of the elements listed would render the information unprotected and such whistleblower cannot gain any rights under this law. Imperatively, the scenario would be different if the whistleblower complies exactly with all the three elements in the law which would then render the information protected.
After these elements have been complied with successfully by the whistleblower in the disclosure of such information, the whistleblower enjoys certain rights as result of the protection of such information.
In accordance with section 12 of the Act, a whistleblower shall not be subjected to intimidation or victimization by the employer as result of the disclosure of such information. In accordance with the Act, a whistleblower may report to the CHRAJ if he or she is subjected to or is likely to be subjected to victimization or intimidation. Again, a whistleblower who believes that his or her property or life is in danger as result of such disclosure may request for police protection.
NEED FOR THE REFORM OF SECTION 6[2]] OF THE ACT?
Section 6 of the whistleblowers Act states that where a disclosure of information is made to a person or any institution specified by law, the person or institution shall
[a] make a record of the time and place where the disclosure is made;
[b] give to the whistleblower an acknowledge in writing of receipt of the disclosure;
[c] keep in writing in which the disclosure is made confidential and in safe custody pending Investigation of information.
[2]] Where the disclosure is made to a chief, head of a recognized religious head or body or a head of family, chief or head or elder may instead of recording the disclosure as required under subsection [1]], assist the whistleblower to make the disclosure to the police or to another authority.
[3] Where a person to whom the disclosure is made fails to keep confidential the disclosure the person commits an offence.
My reservation to this Act is in relation to section 6[2] which seeks to relief of the chief, elder or head of families the obligation to compulsorily record the disclosure of the information; give the whistleblower the acknowledgement of receipt of the disclosure and also keep the writing of the disclosure confidential. Even though, the bodies may not be able to commence investigation, the law has to compel them to record such disclosure made to them, keep such disclosure confidential and also give the whistleblower an acknowledgement of the receipt of such disclosure whiles it strives to assist them to make such disclosure to the police . The essence of giving the whistleblower receipt of such disclosure is to prove that such disclosure has been made to such body and as such the information is been protected by law and it been evidential by the bodies been obligated to keep the writing of such disclosure confidential .Once, the information is provided to the chief or the elder the information becomes protected, however, providing the whistleblower with receipt of acknowledgement of the disclosure would boost the confidence of the whistleblower that such information would be kept confidential and in the situation where such information is not kept secretly, the whistleblower can shift the burden of prove unto the chief or the elder by the use of such receipt to prove that such disclosure was made to those bodies and as such those bodies could be a suspect of such confidential information been breached.
In accordance with section 3[2] of the whistleblowers Act, a whistleblower may in disclosing information take into account
[a]A reasonable belief or fear that he or she may be subjected to fear of dismissal or intimidation or suspension
[b]A reasonable belief or fear that the evidence relevant may be concealed or destroyed.
[c] The place where and the prevailing circumstances under which the whistleblower lives; in determining to whom the disclosure may be made.
With regards to section 3[2]]c, a whistleblower may have no option due to the place he or she resides or due to some unfortunate circumstances have no other person to report such matter to but only to the available or the person in proximity with the whistleblower which in this case might be the chief or the elder or family head. The whistle blower in this instance would be loath to disclose the information to the chief or the elder because the law presently does not compel them to give the whistleblower the receipt of acknowledgment of the disclosure, the whistleblower would be unlikely to disclose such information for fear that such evidence might be easily distorted upon such disclosure and it would be also difficult to bring those bodies to book ,as there would be dearth of evidence to prove that such disclosure was made to those bodies in the first place.
BY: SILAS OSEI BOATENG
