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Whistleblowing Act and the Authorised Persons

Unpacking the Act for Better Implementation  
 
Do we have a moral duty to report wrongdoing in our place of work? Do we have a moral duty to report corruption, expose it and bring those that are greedy and selfish to face the law? Do we? Must we? Blowing the whistle on colleagues, family and friends, can we really do it?

Because fighting corruption at times means doing just that, whistleblowing. Whistle blowers are people who report the illegal or fraudulent actions of their employers and colleagues. There are some serious personal and professional costs associated with calling out wrongdoing.
Whistleblowers are often lauded for their bravery and honesty by some and loathed for their disloyalty by others. They are the first line of defence against corruption, crime and cover-up. So it is only good and moral to protect them, if one is serious about fighting corruption. Whistleblowing is an essential element for safeguarding the public interest and for promoting a culture of public accountability and integrity.

At global level, Botswana is a signatory to the United Nations Convention Against Corruption (UNCAC), which under Article 33 Protection of Reporting Persons is as follows:

Each State Party shall consider incorporating into its domestic legal system appropriate measures to provide protection against any unjustified treatment for any person who reports in good faith and on reasonable grounds to the competent authorities any facts concerning offences established in accordance with this Convention.

Like many countries, Botswana passed the Whistleblowing Bill which was enacted in November of 2017. This is a step in the right direction. It is however important to interrogate the Whistleblowing Act and reflect on the law, its interpretation and implications, and identify key conditions for providing effective protection for whistleblowers. The object of the Act is stated as follows:

“…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 victimization of persons who make the disclosures…”

The Act 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 authorized person. “Disclosure of impropriety” is a disclosure of what the whistleblower believes shows or tends to show impropriety. Section 3 sets out numerous acts which would constitute impropriety including but not limited to a criminal or other unlawful act that has been, is being or is likely to be committed, where health and safety is likely to be endangered, where the environment is likely to be endangered and conduct of a person which amounts to breach of public trust (to name a few).

“Authorized persons” to receive disclosures of impropriety are:
the Directorate of Corruption and Economic Crime (DCEC)
the Auditor General (AG)
the Directorate of Intelligence and Security (DIS),
the Botswana Police Service (BPS),
the Ombudsman,
the Botswana Unified Revenue Service (BURS) and
the Financial Intelligence Agency (FIA).

In terms of the Act, an authorized person shall be obliged to receive a disclosure but has the discretion to determine whether or not the disclosure reveals impropriety. It proposes to provide protection to a whistleblower and makes the making of false disclosures, disclosing the identity of a whistleblower, the disclosure by a whistle blower to a third party of the contents of a disclosure made to an authorized person, disclosure of the details of a disclosure, victimization of a whistleblower and willful failure by an authorized person to take action on receipt of a disclosure, criminal offences with sanctions consisting of fines of up to P12,000 (approximately US$1202) and/or imprisonment of up to 7 years depending on the offence committed.

Despite the undisputed benefits to society, there remains some hostilities towards whistleblowing. Whistle-blowers are often victimized, isolated, criticized and in the workplace even dismissed for their actions. It is therefore important that they are properly informed about their rights and how best to raise their concerns about wrongdoing: who to speak to; how to speak and what to speak about.

Concerned citizens or employees who bring up issues regarding their communities or places of work should not be disturbed in their work or lives in any way and should be able to continue without fear of any punishment whether physical, social or emotional. Therefore, protection, safety and security of whistleblowers must take precedence, in the evoking of in good faith provision. Whistleblowing is an act of bravery and no matter what, such an act will have consequences – most likely negative at a personal level.

Conflicts of Interest, Nepotism, Cronyism, Asset and Interests Declarations and Whistleblowing

When a culture of nepotism, cronyism and lack of integrity, transparency and accountability entrenches, blowing the whistle carries connotations of betrayal.  Consequently, institutions and citizens lose out when there is no one willing to speak out in the face of corruption.
Corruption often goes unopposed when people do not speak out about it.

Whistleblowers claims must always be investigated, the issue of discretion is problematic in our legislation when it comes to receiving disclosures and their investigations. Real or perceived incidences of abuse of power, corruption, fraud and numerous shades of mismanagement and maladministration in both the public and private sectors must be reported, and this makes whistleblower protection an imperative of our time.

The Britain’s Institute of Business Ethics research (2007) established that “while one in four employees are aware of misconduct at work, more than half (52 %) of those stay silent”. And in a 2009 a Transparency International (TI) Report, following a survey of whistleblower measures in 10 countries, indicated: “… the majority of people who experience or suspect wrongdoing do not disclose the information.” One could argue that we view whistleblowing as a threat to one’s career and/or even life where stakes are high.

Victimization is ultimately the principal concern of whistleblower protection. Therefore, to use the Act as a tool to fight corruption the levels of security and safety must be raised so high that people feel safe to blow the whistle because they are ensured it will not be punitive for them.

Recommendations

In conclusion, having the Whistleblowing Act in place is noble, however, it must be an instrument that works for the people and the state. I would argue for the establishment of an equipped Whistleblowing Protection Unit, an autonomous and unprejudiced, to handle issues of whistleblowing. It would assist in the proper decision making on policy direction and best practices, appropriate actions to be taken on disclosures and investigate reports on detrimental action against whistle-blowers. Whistle-blower training will be crucial to provide for public sector agencies and publicly traded corporations and their management and staff.

And finally, questions one must know the answers to before blowing the whistle, to ensure one’s own protection by the law:

What happens after the disclosure is received? Any clear laid our procedures?
How are issues of secrecy and confidentiality dealt with?
To whom to send the disclosures? Are there categories in regards to who people report to?
What is allowed to happen in terms of reporting to permit protection?
Are the institutions obliged to take disclosures?
Is there a category of persons who may acquire the role of a whistleblower?
Does the environment really allow for the protection of whistleblowers?
Who has first access and when does the protection start?
What are the channels to follow upon receipt of a disclosure?
Are barriers high enough for protection?
Any non-state bodies to be considered e.g. CSOs to receive disclosures, and what are the legal implications?

Whistleblowing should also be distinguished from laws and policies on protection of witnesses.There is often confusion on this issue with many governments and media mistaking witness protection laws for whistle-blower protection laws. There is some overlap between the two, often including a promise to keep the identity of the individual confidential.

Whistleblowing is about preventing harm to the career and interests of the individual at the workplace. In whistleblowing, the focus is on the information, not the person who made the disclosure. Often, they are not asked to be witnesses but are merely bystanders once the disclosure is made. As noted by the Council of Europe Parliamentary Assembly “a whistle-blower will not necessarily wish to, or need to appear in court, considering that whistle-blowing measures are designed to in the first place to deter malpractices or remedy them at an early stage.”

As a practical matter, laws on witness protection are relating to a much more serious matter, involving usually the physical protection of the individual who will not testify in a criminal case unless they are promised protection, including from physical threats, and possible relocation. Witness protection can also be broader in scope, involving people who are not in the organization and might have merely seen something or come across the information they are being asked to testify on as part of their jobs. Source: Whistleblowing International Standards and Developments, Transparency International, 2009

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Opinions

Internal party-democracy under pressure

21st June 2022

British novelist, W. Somerset Maugham once opined: “If a nation values anything more than freedom, it will lose its freedom; and the irony of it is that if it is comfort or money that it values more, it will lose that too.”

The truism in these words cannot be underestimated, especially when contextualizing against the political developments in Botswana. We have become a nation that does not value democracy, yet nothing represent freedom more than democracy. In fact, we desire, and value winning power or clinging to power more than anything else, even if it harms the democratic credentials of our political institutions. This is happening across political parties — ruling and opposition.

As far as democracy is concerned, we are regressing. We are becoming worse-off than we were in the past. If not arrested, Botswana will lose its status as among few democratic nations in the Africa. Ironically, Botswana was the first country in Africa to embrace democracy, and has held elections every five years without fail since independence.

We were once viewed as the shining example of Africa. Those accolades are not worth it any more. Young democracies such as South Africa, with strong institutions, deserves to be exalted. Botswana has lost faith in democracy, and we will pay a price for it. It is a slippery slope to dictatorship, which will bring among other excess, assault on civil liberties and human rights violations.

Former President, Festus Mogae once stated that Botswana’s democracy will only become authentic, when a different party, other than the Botswana Democratic Party (BDP) wins elections, and when the President of such party is not from Serowe.

Although many may not publicly care to admit, Mogae’s assertion is true. BDP has over the years projected itself as a dyed-in-the-wool proponent of democracy, but the moment its stay in power became threatened and uncertain, it started behaving in a manner that is at variance with democratic values.  This has been happening over the years now, and the situation is getting worse by the day.

Recently, the BDP party leadership has been preaching compromise and consensus candidates for 2024 general elections. Essentially, the leadership has lost faith in the Bulela Ditswe dispensation, which has been used to selected party candidates for council and parliament since 2003. The leadership is discouraging democracy because they believe primary elections threaten party unity. It is a strange assertion indeed.

Bulela Ditswe was an enrichment of internal party democracy in the sense that it replaced the previous method of selection of candidates known as Committee of 18, in which a branch committee made of 18 people endorsed the representatives. While it is true that political contest can divide, the ruling party should be investing in political education and strengthening in its primary elections processes. Democracy does not come cheap or easy, but it is valuable.

Any unity that we desire so much at the expense of democracy is not true unity. Like W. Somerset Maugham said, democracy would be lost in the process, and ultimately, even the unity that was desired would eventually be lost too. Any solution that sacrifice democracy would not bring any results in the long run, except misery.

We have seen that also in opposition ranks. The Umbrella for Democratic Change (UDC) recently indicated that its incumbent Members of Parliament (MPs) should not be challenged for their seats. While BDP is sacrificing democracy to stay in power, UDC is sacrificing democracy to win power. It is a scary reality given the fact that both parties – ruling and opposition — have embraced this position and believe democracy is the hindrance to their political ambitions.

These current reality points to one thing; our political parties have lost faith in democracy. They desire power more than, the purpose of power itself. It is also a crisis of leadership across the political divide, where we have seen dissenting views being met with persecution. We have seen perverting of political process endorsed by those in echelons of power to manipulate political outcomes in their favour.

Democracy should not be optional, it should be mandatory. Any leader proposing curtailing of democracy should be viewed with suspicion, and his adventures should be rejected before it is too late. Members of political parties, as subscribers of democracy, should collectively rise to the occasion to save their democracy from self-interest that is becoming prevalent among Botswana political parties.

The so-called compromise candidates, only benefits the leadership because it creates comforts for them. But for members, and for the nation, it is causing damage by reversing the gains that have been made over the years. We should reject leaders who only preach democracy in word, but are hesitant to practice it.

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Opinions

The Big Deal About Piracy

21st June 2022
piracy

Piracy of all kinds continues to have a massive impact on the global creative industry and the economies of the countries where it thrives.

One of the biggest misconceptions around piracy is that an individual consumer’s piracy activities, especially in a market the size of Botswana’s, is only a drop in the pool of potential losses to the different sectors of the economy piracy affects.

When someone sitting in Gaborone, Botswana logs onto an illegal site to download King Richard online, they don’t imagine that their one download will do anything to the production house’s pocket or make a dent in the actors’ net worth. At best, the sensitivity towards this illegal pirating activity likely only exists when contemplating going about pirating a local musician’s music or a short film produced locally.

The ripple effects of piracy at whatever scale reach far beyond what the average consumer could ever imagine. Figures released by software security and media technology company, Irdeto, show that users in five major African territories made approximately 17,4 million total visits to the top 10 identified piracy sites on the internet.

The economic impact of this on the creative industry alone soars to between 40 and 97.1 billion dollars, according a 2022 Dataprot study. In addition, they estimate that “illegally streamed copyrighted content consumes 24% of global bandwidth”.

As Botswana’s creative industry remains relatively slight on the scale of comparison to industries such as Nollywood and Nilewood where the creative industry contributes a huge proportion to West and East Africa’s respective GDPs, that does not imply that piracy activities in Botswana do not have a similar impact on our economy and the ability of our creative industry to grow.

When individuals make decisions to illegally consume content via internet streaming sites they believe they are saving money for themselves in the name of enjoying content they desire to consume. Although this is a personal choice that remains the prerogative of the consumer, looking beyond the fact that streaming on illegal content sites is piracy, the ripple effect of this decision also has an endless trail of impact where funds which could be used to grow the local creative industry through increased consumption, and revenue which would otherwise be fed back into Botswana’s economy are being diverted.

“Why can’t our local creative industry grow?” “Why don’t we see more home-grown films and shows in Botswana?” are questions constantly posed by those who consume television content in Botswana. The answer to this lies largely in the fact that Botswana’s local content needs an audience in order for it to grow. It needs support from government and entities which are in a position to fund and help the industry scale greater heights.

Any organisational body willing to support and grow the local creative industry needs to exist and operate in an economy which can support its mandates. Content piracy is a cycle that can only be alleviated when consumers make wiser decisions around what they consume and how.

This goes beyond eradicating piracy activities in so far as television content is concerned. This extends to the importation and trade in counterfeit goods, resale of goods and services not intended for resale across the border, outside its jurisdiction, and more. All of these activities stunt the growth of an economy and make it nearly impossible for industries and sectors to propel themselves to places where they can positively impact society and reinvest into the country’s economy.

So what can be done to turn the tide here in Botswana in order to see our local production houses gain the momentum required to produce more, license more and expand their horizons? While those who enforce the law continue to work towards minimizing piracy activities, it’s imperative that as consumers we work to make their efforts easier by being mindful of how our individual actions play a role in preventing the success of our local creative networks and our economy’s growth.

Whether you are pirating a Hollywood Blockbuster, illegally streaming a popular Motswana artist’s music, or smuggling in an illegal decoder to view content restricted to South Africa only, your actions have an impact on how we as a nation will make our mark on the global landscape with local creative productions. Thembi Legwaila is Corporate Affairs Manager, MultiChoice Botswana

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Opinions

Our Strength is our Unity

18th March 2022
Craig-Cloud

Putin Chose War.  We Remain United with Ukraine.

U.S. Ambassador Craig L. Cloud

This is a dangerous moment for Europe and for freedom-loving people around the world.  By launching his brutal assault on the people of Ukraine, Vladimir Putin has also committed an assault on the principles that uphold global peace and democracy.  But the people of Ukraine are resilient.

They’ve had a democracy for decades, and their bravery is inspiring the world.  The United States, together with our Allies and partners across the globe, will continue to support the Ukrainian people as they defend their country.  By choosing to pay for a war instead of investing in the needs of Russians, Putin’s invasion of Ukraine will be a strategic failure for the Kremlin and ravage the future of the Russian people.

When the history of this era is written, it will show that Putin’s choice to launch an unprovoked, unjust, and premeditated attack left the West more unified and Russia exponentially weaker.

United in Our Response

This will not end well for Vladimir Putin.  Together, the United States and our Allies and partners are taking action to hold Russia accountable.  As a result of unprecedented global sanctions coordination, the United States, the United Kingdom, the European Union, Japan, and Canada have removed selected Russian banks from the SWIFT messaging system and imposed restrictive measures on the Russian Central Bank.

President Biden announced sweeping financial sanctions and stringent export controls that will damage Russia’s economy, financial system, and access to cutting-edge technology.  After Putin began his invasion, the ruble hit its weakest point in history, and the Russian stock market plunged.

Along with the United Kingdom and European Union, the United States imposed sanctions on the architects of this war, including Putin himself.

By moving in close coordination with a powerful coalition of Allies and partners representing more than half of the global economy, we have magnified the impact of our actions to impose maximum costs on Putin and his regime.  In response to Putin’s war of choice, we will limit Russia’s ability to do business in U.S. dollars.

We will stunt Russia’s ability to finance and grow its military.  We will impair Russia’s ability to compete in the global economy.  And we are prepared to do more.

In addition to economic penalties, this week President Biden authorized an additional $1 billion over the $350 million of security assistance he recently approved, and a $650 million in 2021, to immediately help Ukraine defend itself, bringing America’s total security assistance to Ukraine over the past year to $2 billion.

We also stand ready to defend our NATO Allies.  President Biden has coordinated with Allied governments to position thousands of additional forces in Germany and Poland as part of our commitment to NATO’s collective defense.

He authorized the deployment of ground and air forces already stationed in Europe to NATO’s eastern and southeastern flanks:  Estonia, Latvia, Lithuania, Poland, and Romania.  Our Allies have also added their own forces and capabilities to ensure our collective defense.  There should be no doubt about the readiness of the greatest military Alliance in the history of the world:  NATO is more united than ever.

The United States has also coordinated with major oil-producing and consuming countries to underscore our common interest in securing global energy supplies.  We are working with energy companies to surge their capacity to supply energy to the market, particularly as prices increase.

Putin’s Unprovoked and Premeditated War

This was an attack that Vladimir Putin has planned for a long time.  He methodically moved more than 150,000 troops and military equipment to Ukraine’s border.  He moved blood supplies into position and built field hospitals, demonstrating his intentions all along.

He rejected every good-faith effort by the United States and our Allies and partners to address his fabricated security concerns and to avoid needless conflict and human suffering by engaging in diplomacy and dialogue.

Putin executed his playbook exactly as we had warned he would do.  We saw Russia’s proxies increase their shelling in the Donbas.  We saw the Russian government launch cyber-operations against Ukraine.  We saw staged political theater in Moscow and heard outlandish and baseless claims made about Ukraine in an attempt to justify Russia’s aggression.

Russia continues to justify its military aggression by falsely claiming the need to stop “genocide” in Ukraine – despite there being no evidence that genocide was occurring there.  We saw Russia use these tactics before when they invaded Ukraine in 2014 and Georgia in 2008.

And then, at almost the very same moment the United Nations Security Council was meeting to stand up for Ukraine’s sovereignty and forestall disaster, Putin launched his invasion in violation of international law.  Missiles began to rain down, striking historic cities across Ukraine.  Then came air raids, columns of tanks, and battalions of troops, all riding a renewed wave of disinformation and outright lies.

We have been transparent with the world.  We declassified our intelligence about Russia’s plans so there could be no confusion and no cover up.  Putin is the aggressor.  Putin chose this war.  And now his people will bear the consequences of his decision to invest in war rather than in them.

Transatlantic Unity and Resolve Stronger Than Ever

Putin’s goal of dividing the West has failed.  In the face of one of the most significant challenges to European security and democratic ideals since World War II, the United States and our Allies and partners have joined together in solidarity.  We have united, coordinating intensively to engage as one with Russia and Ukraine, provided assistance to Ukraine, developed a broad response, and reaffirmed our commitment to NATO.

Putin has failed to divide us.  Putin has failed to undermine our shared belief in the fundamental right of sovereign nations to choose their destiny and their allies.  And Putin will fail to erase the proud nation of Ukraine.

The next few days, weeks, and months will be incredibly difficult for the people of Ukraine.  Putin has unleashed great suffering on them.  But the Ukrainian people have known 30 years of independence, and they have repeatedly shown they will not tolerate anyone who tries to take their country backwards.

The world is watching this conflict closely, and if Russian forces commit atrocities, we will explore all international mechanisms that could be used to bring those responsible – whether members of the military or their civilian leadership – to account.

Putin’s aggression against Ukraine will cost Russia profoundly, both economically and strategically.  The Russian people deserve better from their government than the immense cost to their future that this invasion has precipitated.

Liberty, democracy, and human dignity are forces far more powerful than fear and oppression.  In the contest between democracy and autocracy, between sovereignty and subjugation, make no mistake:  Freedom will prevail.

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