07 Jul 2016

Assistant Minister for Presidential Affairs and Public Administration, Mr Dikgang Makgalemele has presented the Whistleblowing Bill No 19 of 2015.

He said the object of the bill was to “provide for the manner in which a person may, in the public interest, disclose information adverse to the public interest; to provide for the manner of reporting and investigation of disclosures of impropriety and the protection against victimisation of persons who make the closures.”

Mr Makgalemele said the bill has six parts and 23 clauses. 

The bill describes a whistleblower as someone who makes a disclosure of impropriety, either orally or in writing, in good faith, which disclosure the whistleblower believes to be true. 

The disclosure has to be made to an authorised person. 

“Disclosure of impropriety” is a disclosure of what the whistleblower believes shows or tends to show impropriety.

He said the bill prescribes who was an authorised person to receive a disclosure as well as authorised institutions to receive disclosures such as the DCEC, Auditor General, Botswana Police Service, Ombudsman, Botswana Unified Revenue Service, DIS, and Financial Intelligence Agency.

However, the bill notes that an authorised person may decline to investigate or may discontinue their investigation of any matter raised by a disclosure of impropriety made to the authorised person if they were of the opinion that the disclosure was made maliciously, frivolously, veraciously, in bad faith or for illegal purpose.

The bill also prescribes that a whistleblower may disclose information where he or she has reasonable cause to believe that a crime or other unlawful act has been committed; was being committed or was likely to be committed. 

The whistleblower may also disclose information where he believes that: “Another person has failed, is failing or is likely to fail to comply with any obligation to which that person is subject to; a miscarriage of justice has occurred, is occurring or is likely to occur,”

Notwithstanding any other law to the contrary, Mr Makgalemele said a disclosure of impropriety was protected if the disclosure was made in good faith or if the whistleblower reasonably believed that the disclosure and an allegation of impropriety contained in the disclosure was substantially true, and that the disclosure was made to the authorised person.

The bill prescribes that those whistleblowers who have disclosed information shall not be subjected to victimisation by their employer or by fellow employees or by any other person.

“A whistleblower shall be considered as having been subjected to victimisation if: being an employee is dismissed or suspended from work or denied promotion; is subjected to a discriminatory or other adverse major by the employer or fellow employees and where the whistleblower not being an employee is subjected to harassment, intimidation or discrimination by another person,” the bill states.

Mr Makgalemele said the bill also provides that a whistleblower shall not be liable to civil or criminal proceedings in respect of a disclosure of impropriety.

Some clauses of the bill provide for the void provision in employment contracts which seek to prevent an employee from making disclosure of impropriety, precludes the employee from making complaints in respect of victimisation or prevents an employee from bringing an action in court or before an institution to claim relief in respect of victimisation.

Mr Makgalemele said the bill further provides for the offences and penalties thereof which are a fine not exceeding P10 000 or a term of imprisonment not exceeding five years or both.

“A person, who knowingly makes false disclosure alleging impropriety, commits an offence. 

Also any person who allegedly makes a false disclosure alleging impropriety commits an offence and any person who unlawfully discloses the identity of a whistleblower commits an offence” the bill states.

The whistleblower who after making a disclosure of impropriety proceeds to disclose the same information to a third party commits an offence, and also any person who fails to keep confidential the disclosure of impropriety commits an offence.

He said the bill further provides that a person either by himself or through another person who contravenes a section that protects a whistleblower shall be liable to a fine not exceeding P50 000 or imprisonment not exceeding 10 years or both.

It also states that: “An authorised person who wilfully fails to take action upon receipt of a disclosure made to him or her, commits an offence and liable to a fine not exceeding P12 000 or to a term of imprisonment not exceeding seven years, or both.”

The bill also provides that the minister may make regulations for the better carrying out of the provisions of the act and regulations may provide for the procedure for disclosing an impropriety other persons to whom a disclosure may be made and any matter in the act that is required to be required. Ends