Implementation of Whistleblower Act Needs to be Enhanced

James Tjivikua

Namibia’s Whistleblower Protection Act was developed specifically to provide for establishing a whistleblower protection office.

The act also embraces establishing procedures for disclosures of improper conduct; providing for the investigation of disclosures; protection of whistleblowers; providing for the review of certain decisions; providing remedies for people against whom detrimental action is taken; and, dealing with incidental matters.

Namibia’s Whistleblower Protection Act (No 10 of 2017) criminalises retaliation against reporters and imposes a fine of N$75 000 or a jail term not exceeding 15 years, or both, for anyone convicted of retaliation.

In effect, the government will have to spend N$160 million a year on protecting whistleblowers.

This amount is based on the financial and human capital costs involved in implementing this law.

However, this amount appears insufficient for the effective implementation of various stages of the programme, particularly in terms of training and sensitisation.

THE CRUNCH

Since February 2001, South Africa has had legislation which protects employees in the public and private sector should they blow the whistle.

It has an extensive legal regime governing so-called “protected disclosures”. While on paper the law stacks up well against legal frameworks, in practice it apparently has significant flaws and gaps.

Sadly, whistleblower Patricia Mashale was forced to flee South Africa to an undisclosed location. She said her life was in danger after exposing alleged corruption within the police crime intelligence unit in 2009.

She has appealed for protection from the government for a while.

Mashale was reportedly dismissed in 2022 as a senior administrator in the Free State.

Several civil society organisations have also written to South Africa’s justice minister, asking for funding to be made available for whistleblowers who lose their livelihoods after exposing corruption.

TRAINING AND RETALIATION

Drawing lessons from South Africa, it is imperative that, first and foremost, anti-retaliation training is well funded and happen at all levels of the public and private sectors.

Effective training must include employees, all levels of management and, if applicable, boards of directors.

Training is critical because it equips managers and employees with the knowledge, skills, and tools they need to notice, report, prevent, or appropriately resolve dangers, potential legal violations and retribution.

Employees and managers should be taught about whistleblower protection laws, including company policies that apply to them, as well as their rights under the laws, and how to exercise those rights.

These principles, as well as related abilities, behaviour, and responsibilities to act, are also essential to enhance workplace culture.
Retaliation can include firing or laying off people, demotion, denying overtime or promotion, disciplining, denying benefits, failing to hire or rehire, reducing pay or hours and blacklisting.

It can also include common, but less overt behaviour like ostracising, mocking, and false accusations about poor performance; marginalisation, impromptu negative performance reports, and unwanted shifts or tasks.

Anti-retribution training for managers should include, at a minimum, skills for defusing conflict, problem resolution, stopping retaliation and promoting zero-tolerance policies of anti-retaliation behaviour.

IMPERATIVES

Public and private sector companies need strong anti-retaliatory policies that give human resources professionals the power to take strong action against retaliation.

Making a public pronouncement on someone fired for retaliation sends a strong message to others that they are safe to report unethical behaviour.

It also signals to those tempted to retaliate that they should not even think about it.

Cultivating a work environment where people feel safe to report internal issues is necessary for business to thrive in the country.
Also, the effectiveness with which employers follow the policy on compliance determines if there is a culture of fear of retaliation.

The tone at the top, as well as the tone in the middle is crucial.

Businesses that welcome open and honest feedback from employees can root out issues and fix them. These types of business will eventually thrive.

All too often, people who point out suspicious behaviour, or other issues detrimental to an institution, are punished.

It is therefore imperative that the government prioritises training for both the public and the private sector, and also sensitises the citizenry on the benefits of the law, otherwise it may fail to stand the test of time.

  • Major general JB Tjivikua served in the Namibian Police for 27 years.

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