Four years on, whistleblower protection legislation is yet to be brought into effect (Part II)

We have a credibility problem all of us: We’re talking and we’re starting to act, but we’re not doing enough. We must see the so-called ‘dash for gas’ for what it really is: a dash down a bridge to nowhere, leaving the countries of the world facing climate chaos and billions in stranded assets, especially here in Africa. We have to move beyond the era of fossil fuel colonialism.

Former U.S. Vice President & climate change activist, Al Gore

In his opening address to the United Nations Framework Convention on Climate Change (COP27) held in Cairo, Egypt, United Nations Secretary-General Antonio Gutteres warned that the world is on ‘the highway to climate hell with our foot still on the accelerator … We are in the fight of our lives and we are losing’. He asserted that climate change is on a different timeline and a different scale; it is the defining issue of our age and a central challenge of this century; and it is unacceptable, outrageous and self-defeating to put it on the back burner.’

The Secretary-General called on China and the United States, the world’s two biggest polluters, to cooperate in addressing climate change. And in his own opening remarks, President Abdel Fattah el-Sisi of Egypt called on leaders to act with urgency to meet their commitments, warning that ‘[t]here is no time to slip back. There is no space for hesitation. For the sake of future generations, here and now we are facing a unique historical moment, a last chance to meet our responsibilities.’

The United Nations has stated that the past eight years are on track to be the hottest on record, bringing ever more dramatic and deadly impacts of climate change. Sea level rise is accelerating, the melting of Europe’s Alpine glaciers shattered records, and devastating floods, drought and heatwaves hit in 2022.

According to Attorney-at-Law, Nigel Hughes, having a law in place to protect the rights of ordinary citizens who expose acts of corruption and misconduct perpetrated by officials in high offices, means absolutely nothing, if the powers that be, refuse to do what is necessary to enforce it. He was at the time addressing concerns over the status of Guyana’s Protected Disclosures Act 2018 passed in the National Assembly and assented to by the President but which is still to be brought into effect by an Order from the Minister of Legal Affairs.

Mr. Hughes disclosed that since the allegations by one of his clients of a cover-up by the Guyana Police Force of a murder case, he made several attempts, so far unsuccessful, to have the person benefit from provisions of the Act, including appeals to the President and the Minister of Home Affairs. In this regard, he remarked:

We live in a society where there is no serious commitment to meet international standards, whether it is the fight against corruption or in other area that requires putting actual systems in place that work for the benefit of the people…I have written to the [Minister] on operationalisation of the [Act] and we are still awaiting a response. I should not be surprised at all because Guyana is not a real place and our politicians are not serious about these things.

In his letter to the President, Mr. Hughes referred to Section 9 of the Act requesting the President to establish an independent investigation by regional or international police officers into the allegations made by his client who is also a member of the Police Force. That section provides for special procedures for making disclosures relating to national security, and for the President, the Minister and the Minister responsible for public security to establish and cause to be operated, procedures for receiving, investigating or otherwise dealing with disclosures made. He also bemoaned the non-establishment of the Protected Disclosures Commission provided for under Section 4 of the Act. Suffice it to state that, to the extent that the Act has not been brought into effect, it is not possible for any of its provisions to be invoked. The solution to the problem is for the Minister of Legal Affairs to immediately issue the relevant Order to bring the Act into operation.

Transparency Institute Guyana Inc. (TIGI) recently weighed in on the matter. According to TIGI’s President, ‘[h]onest leaders in all spheres of society should ask themselves if the time has not arisen for a collective action to force that legislation. The morale, the career, and perhaps even the lives of the professional policemen remaining in the Force may require it’.

In our article of 17 October 2022, we highlighted the key provisions of the Protected Disclosures Act 2018. However, because of space constraints we were unable to complete the exercise. So far, we have outlined the main purpose of the Act as a means of combatting corruption and other wrongdoings; the requirement for the establishment of a Protected Disclo-sures Commission; disclosures of improper conduct and the procedures to be followed; and procedures for investigating the allegations made. In today’s article, we conclude our coverage of the key provisions of the Act.

Protection of persons making disclosures

A person who makes, receives, investigates or otherwise deals with a protected disclosure shall not be liable to any criminal, civil or disciplinary procedure once it is done in accordance with the provisions of the Act. Protection is offered even if: (i) the person acted in good faith but was mistaken about the importance of the disclosure; (ii) any perceived threat to the public interest on which the disclosure was made, has not materialised; and (iii) the person has not fully complied with the procedural requirements for making a disclosure of improper conduct.

The Act does not offer protection to a person making disclosure if that person is the perpetrator or accomplice in the improper conduct in which the disclosure is made and which constitutes a criminal offence. However, where criminal proceedings are instituted against such a person, the court shall take into consideration the fact that disclosure was made by that person; and whether the person has helped the police or other enforcement agency to apprehend any other person involved in the commission of an offence. Punishment may be mitigated or remitted as the court thinks fit.

Where civil proceedings are instituted, the court may, if it finds the person is responsible for the payment of damages, only hold that person liable for the part of the damages that the person may have caused; and hold that person liable jointly and severally with others. On the other hand, where disciplinary action is taken, the relevant body shall endeavour to mitigate the effects of any punishment; and, where possible, not to seek the dismissal of the person as punishment.

Any provision in a contract for service or other agreement between an employer and an employee is void if it purports to preclude the employee or having the effect of discouraging him/her from making a protected disclosure.

The Act prohibits a member of the Commission from disclosing at any time to anyone the identity of the person making the disclosure unless with the written consent of the person.

Protection of witnesses and other persons

If the Commission is of the opinion that a person making a protected disclosure or a person rendering assistance in relation to that disclosure, is in need of protection, it must issue appropriate directions to the concerned authority to take the necessary steps to protect that person. Protection may be made on application by the person making the disclosure or based on information gathered. The person in need of protection is deemed a protected witness under any law protecting witnesses.

An important aspect of the Act relates to the prohibition of detrimental action against a person making a protected disclosure. Detrimental action is an act or omission that results in a person being subject to, among others, disciplinary action, termination, suspension or demotion, intimidation, harassment or victimization, denial of promotion, or transfer against the person’s will. Notwithstanding any prohibition of, or restriction on, the disclosure of any information under any written law, contract, oath or practice, a person shall not be subject to detrimental action on the basis that the person seeks to make, is making, has made, or intends to make a protected disclosure.

Where a person (or someone who is related to or associated with that person) believes that detrimental action has been taken or is likely to be taken against him/her, the person shall inform the Commission of his/her belief. If the Commission finds the detrimental action to be real or unjustifiable, it may take any remedial action as it considers necessary in the circumstances. This includes seeking the intervention of the High Court for an Order to be issued requiring the person who has taken the detrimental action to remedy that action, or an injunction; or any other relief as the Court deems fit.

A person who may have suffered detrimental action as a result of making a protected disclosure has a right to compensation for any damage caused.

Offences and penalties

It is an offence to prevent, restrain, restrict, intimidate or otherwise a person who has made, is making, or intends to a protected disclosure. The penalty on summary conviction is a fine of $500,000 and imprisonment of two years. Where a person is convicted on indictment, the fine of one million dollars and imprisonment of ten years. Similarly, a person who breaches confidentiality requirements relating to receiving or investigating a protected disclosure, commits an indictable offence, punishable on conviction to a fine of two million dollars and imprisonment of ten years.

A person who obstructs a member or employee of the Commission from carrying on his/her duties under the Act, commits an offence, punishable on summary conviction to a fine of $500,000 and imprisonment of four years. Similarly, a person who falsifies, destroys, conceals or otherwise a document that is relevant to a protected disclosure, commits an offence punishable on summary conviction to a fine of one million dollars and imprisonment of five years.

Report of the Commission

Within six months of the close of the year, or such longer period as the Minister may in special circumstances approve, the Commission is required to present a report dealing generally with its activities in the preceding year. The report shall not disclose any information that would directly or indirectly identify any person who has made a disclosure under the Act, or any person whose improper conduct a disclosure is made. A copy of the report is to be tabled in the National Assembly.