EXAMINING THE BACKLASHES AND BOUNTIES OF THE NIGERIAN WHISTLEBLOWER: FIXING THE FRACTURES. By: JOHNMARY CHUKWUKASI JIDEOBI, Esq.

PROLEGOMENON:

Extraordinary times, they say, call for extraordinary measures. Perhaps, this axiomatic expression better captures the concatenation of circumstances eventuating in the enthronement of the “whistle-blowing” policy of the Federal Government of Nigeria. On Wednesday, 21^st December, 2016, the Federal Government of Nigeria [henceforth in this article referred to as the FGN] released a 19-point agenda of how the whistle-blowing policy will operate, via a statement by the Ministry of Finance.  A detailed analysis of the said 19-point agenda would be adverted to anon. There is no doubt that this policy was borne out of the acclaimed desire of the President Muhammadu Buhari-led FGN to stamp out the hydra-headed monster of corruption in discharge of the abiding duty yoked on the Government’s shoulders by Section 15 (5) of the amended 1999 Constitution of the Federal Republic of Nigeria [called the Constitution henceforth] which mandates the Nigerian State to abolish all corrupt practices and abuse of office. Concededly, this policy appears lofty and laudable on its surface. However, underneath the policy are vortexes of issues which stakeholders must of compelling necessity square up with if the object of the young policy is not to be hobbled or totally defeated. There is considerable force in the submission that “because fraud has always been hard to detect, many nations have historically relied on private citizens to report on corruption, theft, and corporate misconduct. Lawmakers turned to private citizens to uncover and deter illegal schemes as early as the 7th century. The basic principle of those early statutes was to reward individuals a portion of the stolen money they helped uncover, the same assumption that lives on in modern whistleblower law. [https://www.whistleblowersinternational.com/what-is-whistleblowing/history/].

OBJECTIVE:

A critical consideration of different extant factual milieu in Nigerian whistle-blowing implementation formed the springboard of this write-up. The implementation of the nascent whistle-blowing policy of the FGN has drawn both commendations and condemnations by many observers of the implementation of the policy. A careful and systematic analysis of the divergent shades of reactions emanating from stakeholders amply reveals that both the applause and knocks which the implementation of this policy has garnered are not entirely free from the strings political sentiments and primordial considerations. The present exercise, far from pitching its tenth with any of the divides, aims at interrogating a wide-range of issues that underpin the implementation of whistle-blowing policy. The issues to which the humble attempt of this exercise is directed are; the absence of legislative framework for the policy, vagueness relating to the protection and reward of the whistle-blower and lack of enforcement platform where a whistle-blower’s reward becomes elusive or well-nigh unrealizable. This writer will vigorously canvass the view that the whistle-blowing policy of the FGN would be gravely shambled and become counter-productive in the event the issues highlighted herein are not quickly attended to.

FACTUAL BACKGROUND:

The Nigerian Police Force, on 30^th May, 2017, arraigned one Mr. Ahmed Echoda for allegedly providing false information to the police leading to the raid of the Deputy President of the Nigerian Senate, Senator Ike Ekweremadu’s house. The suspect, who was arraigned on one count of giving false information to the police, pleaded not guilty to the charge. Magistrate Umar Kagarko subsequently ordered that the alleged fake whistle-blower should be remanded in Keffi Prison, pending the ruling of his bail application on June 5.

Earlier on Tuesday, the 16^th of May, 2017, The Economic and Financial Crimes Commission arraigned two whistleblowers, Buhari Fannami and Ba-Kura Abdullahi on two separate charges before Justice M. T Salihu of the Federal High Court Maiduguri, for allegedly giving false information to the agency. The EFCC said in a statement by its spokesman, Mr. Wilson Uwujaren, that Fannamit had misled the commission with the information about illegally acquired monies purportedly buried at the residence of one Ba’a Lawan but the information turned out to be false after the execution of a search warrant. Much earlier in October, 2016, on the floor of the Nigerian Senate, while contributing to the debate on the bill, titled Witness Protection Programme (Establishment etc), SB 157, Distinguished Senator (Mrs.) Christine Olujimi mentioned three instances at the Ministry of Aviation, Women Development Centre and the Police Service Commission where whistleblowers were fired.

DEFINITION OF TERM:

With the above factual background in view, we propose to start by first clearing conceptual cobwebs surrounding the term that would form the centerpiece of our discussion. Since we are concerned with a Nigerian whistle-blower, we look inwards for discovering who a “whistle-blower” is. According to the FGN whistle-blowing programme, a whistle-blower is “Any person who voluntarily discloses information in good faith about a possible misconduct or violation that has occurred, is on-going, or is about to occur.”

IMPLEMENTATION OF THE POLICY:

Ever since this policy came into existence, there is no doubt that many discoveries have come to the open most spectacular among which is the haul of cash kept at Osborne Towers, Ikoyi, Lagos for which the Director-general of the National Intelligence Agency, Ambassador Ayo Oke, has been placed on suspension by President Muhammadu Buhari. The humongous sum discovered on the 17^th of April, by the operatives of the Economic and Financial Crimes Commission [hereafter called EFCC] comprised of $43 million, N23.2 million and £27,800 (N13billion). Sufficient to add that on the 6^th of June, 2017, a Federal High Court sitting in Lagos ordered the final forfeiture to the Federal Government $43,449,947, £27,800 and N23, 218,000 recovered from No. 16, Osborne Road, Flat 7B Osborne Towers, Ikoyi, Lagos.

Earlier on the 7^th of April, 2017, the (EFCC) said it has discovered a sum of N448, 850,000.00 suspected to be laundered money inside an abandoned bureau de change on the premises of LEGICO Shopping Plaza, Ahmadu Bello Way, Victoria Island, Lagos. The Commission said its operatives visited the shopping plaza after it received a tip-off by a whistleblower. According to the statement released by the Commission, “The money stashed in several Ghana-Must-Go bags were in N500 and N1000 denominations, hidden in a shop awaiting conversion into foreign currency…The attention of the plaza’s chairman and some traders were drawn in order to force the shops open. There was no money found in shop 67, but in shop 64 heaps of Ghana-Must-Go bags were found loaded on the floor of the shop. When the bags were unzipped they were found to contain bundles of naira notes totalling N448, 850,000”.

Much earlier in February, 2017, the EFCC recovered $9.8 million and £74, 000, all in cash, from the residence of the former group managing director of the Nigerian National Petroleum Corporation (NNPC), Andrew Yakubu. But the former NNPC boss claimed the money was given to him as a gift by unnamed persons and has gone to court to challenge its seizure by the commission.

REAPING THE BOUNTY:

On the 6^th of June, 2017, the Nigerian Federal Government announced the release of about N375.8 million for payment of 20 whistleblowers who provided information that led to the recovery over N11.6 billion. According to the Finance Minister, Kemi Adeosun (Mrs.), “The payment underscores the commitment of the President Muhmmadu Buhari-led administration to meet its obligations to information providers under the Whistleblower Policy, which is an essential tool in the fight against corruption.”

FACING THE BACKLASH:

As hinted earlier, on the 16^th of May, 2017, the EFCC arraigned two whistleblowers for allegedly providing false information to the Commission. The charge  on which they were arraigned reads, “That you, Buhari Fannami, on or about the 8th day of May, 2017 at Maiduguri, Borno State, within the jurisdiction of this honourable court, did make statement to officers of the EFCC under the whistleblower policy to the effect that large sums of money being the proceeds of crime were buried in the residence Ba’a Lawan at Pompomari Layout along Pompomari Bypass, Maiduguri which information/statement you knew to be false and thereby committed an offence contrary to and punishable under sections 39 (2) (a) and 39 (2) (b) of the Economic and Financial Crimes Commission (Establishment) Act 2004 respectively”.

THE FRACTURES:

From the outset of the policy, there is a palpable legislative lacuna to provide the needed legal backing to its seamless implementation. For instance, paragraph 15 of the 19 point agenda of the policy reads as follows:

If there is a voluntary return of stolen or concealed public funds or assets on the account of the information provided, the whistleblower may be entitled to anywhere between 2.5% (Minimum) and 5.0% (Maximum) of the total amount recovered.

• You must have provided the Government with information it does not already have and could not otherwise obtain from any other publicly available source to the Government.

From the wordings of the above provision, there is no firm assurance that, come what may, a whistleblower will get his dues from the government where the information he volunteered to the government has led to a successful recovery of proceeds of corruption. More vague than the first is the second arm of the paragraph as there is no independent confirmation process available to the whistleblower in determining whether or not the information he volunteered is one the government does not already have and could not otherwise obtain from any other publicly available source to the Government. Sensing this lacuna, the FGN made some adjustments to the policy. The Finance minister said recent amendments to the Whistleblower Policy of the government include the introduction of a formal legal agreement between information providers and the Federal Government which is to be executed by the Minister of Justice and Attorney-General of the Federation.

It is equally patently wrong for the policy to contain a provision as that reflected in paragraph 16 as follows:

 A first level review will always be carried out to determine credibility and sufficiency of information received.

If you report false or misleading information, it will be referred to the enforcement agents for investigation and possible prosecution.

This is where the policy has run into a troubled ditch. True indeed, Sections 39 (a) and (b) of the EFCC Establishment Act criminalises the act of making a false report to either the Attorney-General or any officer of the Commission. However, the way and manner the above provisions were brought to bear [by the EFCC and Police] on the three (3) Nigerian whistleblowers currently facing criminal trials overlooks two very significant factors. One is the civic duty of every citizen to make reports to the police if he suspects that a crime is about to be committed or has been committed. The enduring legal position is that no citizen ought to be damnified by the law for performing a civic responsibility of reporting the commission of a crime to the law enforcement agencies for their independent investigation and action. The only recognized exception to this accepted principle is where out of bad faith [mala fide], a citizen sets the law in motion against another by brining undue pressure to bear on such law enforcement agent(s) to oppress and harass another citizen even after making his report. Affirming this legal postulation, the Nigerian Supreme Court in the case of Chief (DR.) O. Fajemirokun V. Commercial Bank Nig. Ltd. & Anor (2009) LPELR-1231(SC) taught us this;

“Generally, it is the duty of citizens of this country to report cases of commission of crime to the Police for their investigation and what happens after such report is entirely the responsibility of the Police. The citizens cannot be held culpable for doing their civic duty unless it is shown that it is done mala fide.

The convergence of juristic views on this proposition of law was re-affirmed by the Court of Appeal, speaking through Nwodo J.C.A. [of blessed memory] who captured the position in FCMB v. Ette (2008) 22 WRN 1 thus:

"Every person in Nigeria who feels an offence has been committed has a right to report to the Nigerian Police force. Once that right of complaint to the Police who are custodians of order in the society is exercised, the rights shifts to the Police to exercise their statutory powers under Section 4 of the police Act. The power conferred on the police under the Police Act includes investigation, arrest, interrogation, search and detention of any suspect. In the process of investigation, the Police is enjoined to look at the facts contained in the complaint carefully before proceeding to arrest or detain the persons complained against.

From the effulgent passages considered above, it bears no repetition that whatever the EFCC/NPF makes out of the report submitted by a whistleblower becomes its own independent decision for which the whistleblower ought not be condemned in damages or damnified. As adroitly pointed out by the Courts, it is the statutory duty of every prosecutorial agency to carry out its independent investigation using the information available to it by a whistleblower to establish a beachhead where necessary. It is only when the whistleblower goes out of his way to bring undue pressure to bear on the authorities after lodging his report so that the law is wrongfully set in motion against another citizen or even a corporation that such penal consequences would be invoked against the whistleblower. This then is the gist of the tortious liability in malicious prosecution as explained by the Supreme Court [in Balogun V. Amubikahun (1989) NWLR (Pt.107)18. 2] where this useful passage is found “in essence, is to set in motion the law whereby an appeal is made to some person with judicial authority with regard to the matter in question and to be liable for malicious prosecution, a person must be actively instrumental in setting the law in motion. Merely giving information to the police is not enough; that at best may lead to an action for false imprisonment if the police act on the information and make an arrest and prosecute unsuccessfully.”

FIXING THE FRACTURES:

Firstly, this paper canvasses the view that the scope of the programme ought to be widened to empower private citizens, who have the wherewithal to recover monies at their own expense on behalf of the Government through civil court actions as currently obtains in the United States of America under the False Claims Act [henceforth called FCA]. Under the FCA, private citizens with the financial muscle could sue corrupt companies on behalf of their government especially in the area of tax evasion. Upon a successful prosecution of such suits, such citizens are entitled to the 15% of the recoveries as bounties. To buttress this point, on the 8^th of May, 2017 the Nigerian Senate resolved to probe an oil giant, Chevron Nigeria Limited over alleged fraud in the tune of ($4,926,464,100.00) Four billion, Nine Hundred and Twenty Six Million, Four Hundred and Sixty Four Thousand, One Hundred dollars. The investigation was sequel to a petition forwarded by one Dr. George Uboh of Panic Alert Security Systems bothering on tax evasion and other forms of financial scams by the oil company. No doubt, such humongous sum if successfully recovered would buoy the revenue base of the Government.

Secondly, the incentive for the whistleblower should be reviewed upward to at least fifteen per cent [15 %]. The fact remains that it is still far better for the government to rake in 85% of a stolen sum and pat the whistleblower on the back with 15% than for the government to lose everything as evidenced in the outcome of many criminal trials being prosecuted by the anti-graft agencies where the accused persons floor the government at the stage of no-case submission. In such circumstance, the Government loses both the resources spent on investigation and prosecution in addition to the entire loot allegedly stolen by the defendant who retires happily to his alleged loot.

Thirdly, it is to be remembered that the policy of the Executive Branch of government [until it is enacted into law] lacks the force of law and therefore cannot validly impose any legal duty or confer any benefit on any citizen. To this extent therefore, where the government agent/agencies saddled with the responsibility of rewarding whistleblowers decide(s) to divert the funds meant for rewarding a whistleblower, the whistleblower has no foothold to stand in recovering his bounty since there is no law to fall back on. It is therefore imperative for the National Assembly to pass the Whistleblowers Protection Bill so as to de-personalise the process of rewarding whistleblowers for their maximum protection and conferment of statutory right of recovery in the event of failure or unwillingness of the Government to reward a whistleblower.

Finally, the whole idea of criminal prosecution certainly demoralizes potential whistleblowers. Such prosecutorial proclivity [on the part of prosecutorial authorities] is rather punitive which is at variance with the spirit and intendment of the whistleblowing regime which principally aims at encouraging private citizens to work in concert with the government in stemming the tide of criminality, corruption, fraud, enhancing the revenue base of the government and promoting transparency and accountability in the conduct of government business. After all, it is the foremost duty of a citizen to report suspicion [or actual commission] of a crime to the authorities. It is in this light of the above adumbrations that the whistleblowing programme ought to be seen, understood and implemented by the authorities. This way, the fruition of the programme would not be imperiled. I choose to stop here.

JOHNMARY CHUKWUKASI JIDEOBI is a criminal Defence Attorney and Human Rights Activist based in Abuja, Nigeria and could be reached on [email protected]