– Stresses importance of provision
The need for whistleblower protection legislation in Guyana is clear. What is not clear is the reason the APNU+AFC government is taking so long to have such a Bill and as such delaying its passage in the National Assembly.
So said former Auditor General and anti-corruption advocate, Anand Goolsarran yesterday.
He told Kaieteur News that Guyana has long been in need of such an important piece of legislation.
However, Goolsarran said that the need has been magnified with the coming of an oil industry.
A whistleblower is defined as a person who exposes any kind of information or activity that is deemed illegal, unethical, or not correct within an organisation that is either private or public.
Goolsarran shared that he had been following closely the deliberations of the recently just concluded symposium on “Public Corruption and the Oil Curse” which considered the need to strengthen Guyana’s Procurement Act and to promulgate whistleblower protection legislation.
That symposium was hosted by the Guyana Oil and Gas Association (GOGA) and the Caribbean Institute of Forensic Accounting (CIFA). At that forum, Trinidadian expert, Professor Afra Raymond said that more protections for ‘whistleblowers’ are needed in Guyana, along with a drastic overhaul of the nation’s procurement laws. He said that such measures are necessary to not only guard against, but prosecute corrupt activities emanating from the resource curse, associated with the influx of large sums of money into a country from commercial production of oil.
In speaking to Kaieteur News about the need for whistleblower protection, Goolsarran was quick to point to the retaliatory action taken against Nurse Sheryl Marks of the Fort Wellington Hospital.
Nurse Marks was transferred as punishment for her exposure Region Five Councillor, Carol Joseph’s abuse of Pethidine and the fact that she was able to access prescription for the highly addictive and costly drug for years.
Goolsarran thinks that people like Marks need to be protected.
He noted that since November 2015, Guyana drafted legislation in the form of Protected Disclosures (Whistleblower) Bill 2015. He said however that consultations with civil society did not take place until eleven months later in October 2016. The anti-corruption advocate noted that eight months have since passed and” it is not clear why the authorities are taking so long to have the legislation passed in the National Assembly and assented to by the President.”
The draft whistleblower legislation identified three key objectives. These are, to assist in combating corruption and other wrongdoings both in the public and private sectors by encouraging and facilitating the making by employees of specified disclosures of improper conduct in good faith and in the public interest; to regulate the receiving, investigating or otherwise dealing with disclosures of improper conduct; and to protect employees who make specified disclosures from being subjected to occupational detriment.
According to the Explanatory Memorandum to the Bill, the proposed legislation marks another step towards full compliance with the Inter-American Convention Against Corruption that came into effect in 1996 and to which Guyana is a signatory. The convention requires member states to consider creating, maintaining and strengthening the system to protect public servants and private citizens who in good faith report acts of corruption to the relevant authorities.
The Bill contains six parts: Preliminary; Disclosures qualifying for protection; Provisions against occupational detriment; Receiving, investigating and otherwise dealing with disclosures; Oversight functions; and Miscellaneous.
Goolsarran said that there are a number of important definitions in the Interpretation Section. He noted that perhaps the most important of these is the meaning of “disclosure” which is the disclosure of information made by an employee, regarding the conduct of an employer of that employee or another employee of the employer, where the employee has a reasonable belief that the information disclosed shows or tends to show that improper conduct has occurred, is occurring or is likely to occur. Goolsarran pointed out that “disclosure does not qualify for protection under the Act unless it is made in good faith and in the public interest. Nor is protection offered if an employee making the disclosure commits an offence in doing so.”
Improper conduct is defined in the bill as any conduct that tends to show that: a criminal offence has been committed, is being committed or is likely to be committed; a miscarriage of justice has occurred, is occurring or is likely to occur; the health and safety of any individual has been, is being or is likely to be endangered; the environment has been, is being or is likely to be damaged; gross mismanagement, impropriety or misconduct in the carrying out of any activity that involves the use of public funds or any financial resources, has occurred, is occurring or is likely to occur and information tending to show that any of the above has been, is being or is likely to be deliberately concealed.
The draft act speaks to disclosures qualifying for protection and to whom disclosures can be made.
The draft says that disclosures made by an employee to an employer qualify for protection if it is made to the employer where no procedure is in place for making disclosures.
The draft bill stipulates that disclosures can be made to a Minister, the Auditor General; Bank of Guyana; Guyana Bureau of Standards; Rights of Child Commission; Commissioner of Police; Public Procurement Commission; Director of Public Prosecutions; Guyana Elections Commission; Competition and Consumer Affairs Commission; Integrity Commission; Guyana Revenue Authority; Environmental Protection Agency; Public Utilities Commission; and the Ombudsman.
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