FOURTH REPUBLIC
Whistleblower Act, 2006
Act 720
ARRANGEMENT OF
SECTIONS
Section
Information the
disclosure of which is protected
1)
Disclosure
of impropriety
2)
Person who
qualifies to make disclosure of impropriety
3. Person to whom
or institution to which disclosure of impropriety
may be made
Procedures for
disclosure of impropriety and related action
4)
Procedures
for making a disclosure
5)
Reduction of
disclosure into writing
6)
Action by
person who receives disclosure of impropriety
7)
Submission
of copy of written disclosure to the
Attorney-General
8)
Investigation
9)
Application
to court for assistance
10)
Submission of report of investigation to the
Attorney-General
11). Action by the
Attorney-General
Protection for making disclosure of impropriety
12. Protection of
whistleblower
13 . Report to
Commission on Human Rights and Administrative
Justice
14. Action by the
Commission and enforcement of its orders
15. Right of
action for victimisation
16. Legal
assistance
17. Police
protection
18. Protection
against civil and criminal action Void
19. employment
contracts
Whistleblower Reward Fund
20. Establishment
of Whistle blower Reward Fund
21. Sources of
money for the Fund
22. Object of the
Fund
23. Reward on
conviction
24. Reward on
recovery of money
25. Bank account of
the Fund
26.' Management of
the Fund
27. Disbursement of
Fund
28)
Accounts and
audit
29)
Annualreport
30)
Regulations
31)
Modification
of existing laws
32)
Interpretation
28)
Accounts and audit
29)
Annual report
30)
Regulations
31)
Modification of existing laws
32)
Interpretation
THE SEVEN HUNDRED AND TWENTHIETH
ACT
OF THE
PARLIAMENT OF THE REPUBLIC OF GHANA
ENTITLED
THE WHISTLE BLOWER ACT, 2006
AN ACT to provide
for the manner in which individuals may in the
public interest disclose information that relates to
unlawful or other illegal conduct or corrupt
practices of others; to provide for the protection
against victimisation of persons who make these
disclosures; to provide for a Fund to reward
individuals who make the disclosures and to provide
for related matters.
DATE OF ASSENT:
16th October, 2006.
ENACTED by the
President and Parliament:
Information the
disclosure of which is protected
Disclosure of
impropriety
1.
(1) A person may
make a disclosure of information where that person
has reasonable cause to believe that the information
tends to show
(a)
an economic crime
has been committed, is about to be committed or i<;
likely to be committed;
(b)
another person has
not complied with a law or is in the process of
breaking a law or is likely to break a law which
imposes an obligation on that person;
(c)
a miscarriage of
justice has occurred, is occurring or is likely to
occur;
(d)
in a public
institution there has been, there is or there is
likely to be waste, misappropriation or
mismanagement of public resources;
(e)
the environment has
been degraded, is being degraded or is likely to be
degraded; or
(f)
the health or
safety of an individual or a community is
endangered, has been endangered or is likely to be
endangered.
(2) A conduct which
falls within any of the matters specified in
subsection (1), is in this Act referred to as an
"impropriety".
(3) A person who
makes a disclosure of impropriety is in this Act
referred to as a "whistleblower".
(4) Despite any
other law to the contrary, a disclosure of an
impropriety is protected if
(a)
the disclosure is
made in good faith,
(b)
the whistleblower
has reasonable cause to believe that the
information disclosed and an allegation of
impropriety contained in it are substantially true,
and
(c)
the disclosure is
made to one or more of the persons or institutions
specified in section 3.
Person who
qualifies to make disclosure of impropriety
2.
Disclosure of
impropriety may be made
(a)
by an employee in
respect of an employer,
(b)
by an employee in
respect of another employee, or
(c)
by a person in
respect of another person, or an institution.
Person to whom
or institution to which disclosure of impropriety
may be made 3.
(1) Disclosure of
impropriety may be made to anyone or more of the
following:
(a)
an employer of the
whistleblower; (b) a police officer;
(c)
the
Attorney-General;
(d)
the
Auditor-General;
(e)
a staff of the
Intelligence Agencies;
(f) a
member of Parliament;
(g)
the Serious Fraud
Office;
(h)
the Commission on
Human Rights and Administrative Justice;
(i)
the National Media
Commission;
(J)
the Narcotic
Control Board;
(k)
a chief;
(I)
the head or an
elder of the family of the whistleblower;
(m) a head
of a recognised religious body;
(n)
a member of a
District Assembly;
(0)
a Minister of
State;
(P)
the Office of the
President;
(q)
the Revenue
Agencies Governing Board; or
(r)
a District Chief
Executive.
(2) A whistleblower
may take into account
(a)
a reasonable belief
or fear on the part of the whistleblower that the
whistle lower may be subjected to dismissal,
suspension, harassment, discrimination or
intimidation;
(b)
a reasonable belief
or fear that evidence relevant to the impropriety
may be concealed or destroyed;
(c)
that the person to
whom the disclosure is made will not frustrate the
objective; .
(d)
that the
impropriety is of an exceptionally serious nature
and that expeditious action must be taken to deal
with it;
(e)
the place where and
the prevailing circumstances under which the
whistleblower lives in determining to whom the
disclosure may be made.
Procedures for
disclosure of impropriety and related action
Procedures for
making a disclosure
4)
(1) A
disclosure may be made in writing or orally.
(2) The disclosure
shall contain as far as practicable
(a)
the full name,
address and occupation of the whistleblower;
(b)
the nature of the
impropriety in respect of which the disclosure is
made;
(c)
the person alleged
to have committed, who is committing or is about to
commit the impropriety;
(d)
the time and place
where the alleged impropriety is taking place, took
place or is likely to take place;
(e)
the full name,
address and description of a person who witnessed
the commission of the impropriety if there is such a
person;
(f)
whether the
whistleblower has made a disclosure of the same or
of some other impropriety on a previous occasion and
if so, about whom and to whom the· disclosure was
made; and
(g)
if the person is an
employee making a disclosure about that person's
employer or a fellow employee, whether the
whistleblower remains in the same employment.
Reduction of
disclosure into writing
5.
(I) Where a whistle
lower makes a disclosure orally, the person to whom
the disclosure is made shall cause the disclosure to
be reduced into writing containing the same
particulars as are specified in subsection (2) of
section 4.
(2) Where the
whistleblower is illiterate, the writing required to
be made under subsection (1) shall be read over,
interpreted and explained to the whistleblower in a
language the whistleblower understands and the
whistleblower shall approve of it before making a
mark to it and a certificate to this effect shall be
attached to the writing.
(3) In the case of
a person who is blind or with some other physical
disability, but literate, a certificate as required
in subsection (2) shall be made with the necessary
modification.
Action by person
who receives disclosure of impropriety
6.
(1) "When a
ulsc10sure of impropriety is made to a person
specified in section 3, the person shall
(a)
make a record of
the time and place where the disclosure is made,
(b)
give to the
whistleblower an acknowledgment in writing of
receipt of the disclosure, and
(c)
keep the writing in
which the disclosure is made confidential and in
safe custody pending investigation of the
impropriety.
(2) Where the
disclosure is made to a chief, head of a recognised
religious body or a head or an elder of a family,
the chief, head or elder may instead of recording
the disclosure as required under subsection (l),
assist the whistleblower to make the disclosure to
the police or to some other authority specified in
section 3.
(3) Where a person
to whom the disclosure is made fails to keep
confidential the disclosure, the person commits an
offence and is liable on summary conviction to a
fine of not less than five hundred penalty unit~ and
not more than one thousand penalty units or to a
term of imprisonment of not less than two years and
not more than four years or to both.
Submission of
copy of written disclosure to the Attorney-General
7. Where a
disclosure is made to a person specified under
section 3, other than the Attorney-General, the
person shall submit a copy of the written disclosure
to the Attorney-General within seven working days
after receipt of the disclosure.
Investigation
8.
(1) Where a
disclosure is made to a person specified under
section 3, the person shall investigate the matter
except that where the person to whom the disclosure
is made does not have the capability to undertake
the investigation, the person shall refer the
disclosure as recorded to the Attorney-General or
another body as directed by the Attorney-General
for investigation within seven working days after
receipt of the disclosure.
(2) Despite
subsection (1), the Attorney-General may on receipt
of a copy of a written disclosure under section 7,
cause investigation to be conducted into the
disclosure.
(3) Investigation
undertaken in respect of impropriety shall be
carried out as expeditiously as possible and shall
in any event be completed within sixty days of
receipt of the disclosure or directives to undertake
the investigation.
(4) A person who
undertakes an investigation in respect of an
impropriety and in the cause of that investigation
conceals or suppresses evidence, commits an offence
and is liable on summary conviction to a term of
imprisonment of not less than two years and not more
than five years.
Application to
court for assistance
9.
Where in the course
of an investigation under section 8, it appears to
the investigator,
-
(a) that evidence or documents relevant to the
investigation are likely to
be destroyed,
concealed, tampered with or,
(b)
that a person
willing to provide information relevant to the
investigation is being subjected to pressure,
inducement or intimidation to withhold the
information,
the investigator
may apply to the court for an order to preserve the
evidence or documents or to restrain the
intimidation of the person willing to provide .the
information.
Submission of
report
of investigation to the Attorney-General
10.
(1) A report on
investigation conducted under section 8 shall be
submitted to the Attorney-General for directives
immediately the investigation is completed.
(2) Where the
completion of the investigation is delayed beyond
the sixty day period specified in subsection (3) of
section 8, a report shall be submitted to the
Attorney-General stating
(a)
the reasons for the
delay;
(b)
measures that are
proposed to expedite the investigation, and
(c)
any further
assistance required to complete the investigation.
(3) A report of an
investigation which is submitted to the
Attorney-General shall contain particulars of
(a)
the manner in which
the investigation was conducted,
(b)
the names and
particulars of persons who provided information in
the course of the investigation,
(c)
facts obtained
which either confirm or dispute the truth or
accuracy of the information contained in the
disclosure and the person who provided the facts,
(d)
an obstacle
encountered in the course of the investigation and
the nature of the obstacle, and
(e)
the recommendations
of the investigator.
Action by the
Attorney-General
11.
The
Attorney-General may on receipt of a report under
subsection (3) of section 10, take the following
steps:
(a)
accept the
recommendations contained in the report and act on
it,
(b)
ask for further
investigations by the same person or institution
that conducted the investigations or by some other
person or institution, or
(c)
reject the report
and the recommendations for stated reasons which
shall be communicated to the investigator.
Protection for
making disclosure of impropriety
Protection of
Whistle blowers
12.
(1) A whistleblower
shall not be subjected to victimisation by the
employer of the whistleblower or by a fellow
employee or by another person because a disclosure
has been made.
(2) A whistleblower
shall be considered as having been subjected to
victimisation if because of making the disclosure,
(a)
the whistleblower,
being an employee, is
(i)
dismissed,
(ii) suspended,
(iii) declared
redundant,
(iv) denied
promotion,
(v) transferred
against the whistleblower's will,
(vi) harassed,
(vii) intimidated,
(viii) threatened
with any of the matters set out in subparagraph (i)
to (vii), or
(ix) subjected to a
discriminatory or other adverse measure by the
employer or a fellow employee, or
(b)
not being an
employee, the whistleblower is subjected to
discrimination, intimidation or harassment by a
person or an institution.
(3) A whistleblower
shall not be considered as having been subjected to
victimisation if the person against whom the
complaint is directed has the right in law to take
the action complained of and the action taken is
shown to be unrelated to the disclosure made.
Report to
Commission on Human Rights and Administrative
Justice
13.
(1) A whistleblower
who honestly and reasonably believes that that
whistleblower has been subjected to victimisation or
learns of a likely subjection to victimisation
because a disclosure has been made, may in the first
instance make a complaint to the Commission.
(2) A complaint
made under subsection (1) shall contain the
following particulars;
(a)
the name,
description and address of the whistleblower,
(b)
the name,
description and address of the whistleblower's
employer or of any other person who the
whistleblower claims has subjected the whistleblower
to victimisation or might subject the whistleblower
to victimisation, and
(c) the specific
acts complained of as constituting victimisation.
Action by the
Commission and enforcement of its
orders
14.
(I) The Commission
shall, on receipt of a complaint, conduct an enquiry
into the complaint at which the whistleblower and
the person against whom the complaint is made shall
be heard.
(2) The Commission
in the course of conducting an enquiry under
subsection (1) may make an interim order that it
considers fit.
(3) After hearing
the parties and other persons considered necessary
by the Commission, the Commission shall make an
order considered just in the circumstances
including an order for
.
(a) reinstatement,
(b)
reversal of a
transfer, or
(c) transfer of the
whistleblower to another establishment where
applicable.
(4) The Commission
may, where it considers it just in the circumstances
of the case, make an order for payment of reward
from the Fund established under section 20.
(5) An order of the
Commission under this section shall be of the same
effect as a judgment or an order of the High Court
and is enforceable in the same manner as a judgment
or an order of the High Court.
(6) The powers
conferred on the Commission under this Act are in
addition to the powers exercisable by the Commission
under the Commission on Human Rights and
Administrative Justice Act, 1993 (Act 456).
Right of action
for victimisation
15. A whistleblower
who has been subjected to victimisation may bring an
action in the High Court to claim damages for
breach of contract or for another relief or remedy
to which the whistleblower may be entitled, except
that an action shall not be commenced in a court
unless the complaint has first been submitted to the
Commission under section 13.
Legal assistance
16. Where the
Commission in the course of an inquiry or hearing
before it under section 14, is of the opinion that
the whistleblower is in need of legal assistance,
the Commission shall issue a certificate to the
whistleblower to obtain legal aid from the Legal Aid
Board or another institution that the Commission may
specify in the certificate.
Police
protection
17. (1) A
whistleblower who makes a disclosure and who has
reasonable cause to believe that
(a)
the whistleblower's
life or property, or
(b)
the life or
property of a member of the whistleblower's family
is endangered or likely to be endangered as a result
of the disclosure, may request police protection and
the police shall provide the protection considered
adequate.
(2) Despite
subsection (1), the Commission or the
Attorney-General as appropriate may in relation to a
disclosure of impropriety made or about to be made
direct that the person who has made or is about to
make the disclosure and the person's family be given
police protection.
(3) "Family" for
the purposes of this section means spouse, father,
mother, child, grandchild, brother and sister.
Protection
against civil and criminal action
18. A whistleblower
is not liable to civil or criminal proceedings in
respect of the disclosure unless it is proved that
that whistleblower knew that the information
contained in the disclosure is false and the
disclosure was made with malicious intent.
Void employment
contracts
19. (1) A provision
in a contract of employment or other agreement
between
an employer and an
employee is void if it
(a)
seeks to prevent
the employee from making a disclosure,
(b)
has the effect of
discouraging an employee from making a disclosure,
(c) precludes the employee from making a
complaint in respect of victimisation, or
(d)
prevents an
employee from bringing an action in court or before
an institution to claim relief or remedy in respect
of victimisation.
(2) Subsection (1)
also applies to a contract of employment or
agreement in existence on the commencement of this
Act.
Whistleblower
Reward Fund
Establishment of
Whistle blower Reward Fund
20. There is
established by this Act a Whistleblower Reward Fund.
Sources of money
for the Fund
21. The moneys for
the Fund consists of
(a)
voluntary
contributions to the Fund, and
(b)
other moneys that
may be allocated by Parliament to the Fund.
Object of the
Fund
22. The object of
the Fund is to provide funds for payment of monetary
rewards to whistleblowers.
Reward on
conviction
23. A whistleblower
who makes a disclosure that leads to the arrest and
conviction of an accused person shall be rewarded
with money from the Fund.
Reward on
recovery of money
24. A whistleblower
whose disclosure results in the recovery of an
amount of money shall be rewarded from the Fund with
(a)
ten percent of the
amount of money recovered, or
(b)
the amount of money
that the Attorney-General shall, in consultation
with the Inspector-General of Police, determine.
Bank account of
the Fund
25. Moneys for the
Fund shall, on the directions of the Legal Service
Board established under section 8 of the Legal
Service Law, 1993 (PNDCL 320), be paid into a bank
account opened for the purpose by the Board with the
approval of the Accountant -General.
26.
(1) The Fund shall
be managed and administered by the Board which shall
include for this purpose the Inspector-General of
Police or a representative of the Inspector-General
of Police.
(2) For purposes of
subsection (1), the Board shall
(a)
pursue and ensure
the achievement of the object of the Fund,
(b)
ensure
accountability for the Fund by defining appropriate
procedures for its management,
(c)
initiate activities
to generate money for the Fund,
(d)
publish in the
media the criteria for the disbursement of moneys
from the Fund, and
(e)
perform other
functions as are incidental to the achievement of
the object of the Fund.
Disbursement of
Fund
27.
(1) The
disbursement of moneys from the Fund shall be
determined by the Board.
(2) The Board shall
within thirty days on receipt of the submission of a
claim for payment out of the Fund, approve
(a)
payment of a reward
from the Fund,
(b)
the reimbursement
of expenses incurred by a whistleblower hose
disclosure resulted in an investigation for which
that person incurred those expenses, and
(c)
the payment of
other relevant expenses that the Board may
determine.
(3) An amount
payable under paragraph (a) and (b) of
subsection (2) shall be paid within a period of not
more than fourteen days from the date the payment of
the money is approved.
(4) Each payment
issued from the Fund shall be signed for by the
chairperson of the Board and the Inspector-General
of Police.
Miscellaneous
provisions
Accounts and
audit
28.
(1) The Board shall
keep in respect of the Fund, books of accounts and
proper records in relation to them in the form
approved by the Auditor-General.
(2) The Board shall
submit the accounts of the Fund to the
Auditor-General for audit within three months after
the end of the financial year.
(3) The
Auditor-General shall not later than three months
after the receipt of the accounts, audit the
accounts and submit the audit report to Parliament.
(4) In
addition to the annual audit, technical audits shall
be conducted on selective basis by the
Auditor-General or by an auditor appointed by the
Auditor General on recommendations of the Board ..
(5) The financial
year of the Fund shall be the same as the financial
year of the Government.
Annual report
29.
(1) The Board shall
within one month after receipt of the audit report
submit an annual report to the Minister covering
activities and the operations of the Board in
relation to the Fund for the year to which the
report relates.
(2) The annual
report shall include the report of the
Auditor-General.
(3) The Minister
shall within one month after the receipt of the
annual report, submit the report to Parliament with
a statement that the Minister considers necessary.
(4) The Board shall
also submit to the Minister any other reports which
the Minister may require in writing.
Regulations
30.
The
Attorney-General may by legislative instrument make
Regulations prescribing
(a)
further disclosure
procedures,
(b)
other persons to
whom disclosures may be made, and
(c)
measures generally
for the effective implementation of this Act.
Modification of
existing laws
31.
Existing enactments
shall be construed with modifications as are
necessary to give effect to this Act.
Interpretation
32.
In this Act unless
the context otherwise requires;
"Board" means the
Legal Service Board established under section 8 of
the Legal Service Law, 1993 (P.N.D.C.L. 320);
"chief' means a
person, who, hailing from the appropriate family and
lineage, has been validly nominated, elected or
selected and enstooled, en skinned or installed as a
chief or queen mother in accordance with the
relevant customary law and usage;
"Commission" means
the Commission on Human Rights and Administrative
Justice;
"disclosure" means
disclosure of impropriety under this Act;
"economic crime"
includes an act which involves the loss,
mismanagement or misappropriation of public funds or
causes the loss, mismanagement or misappropriation
of public funds;
"employee" means a
person who works for another person, company or
organization or for the Republic and who is paid or
entitled to be paid for organization services
rendered but does not include an independent
contractor;
" employer"
includes an individual, a body corporate or
unincorporated of the Republic who or which engages
the services of or provides work for any other
person and pays for the services, and a person
acting on behalf of or on the authority of the
employer;
"Fund" means the
Whistleblowers Reward Fund established under section
20;
"person" includes
an individual, a body of persons, an institution or
a corporation;
"religious body"
means an association, a body or organization which
professes adherence to a belief in a system of faith
or worship or which is established in pursuance of a
religious objective; "Republic" means the Republic
of Ghana;
"reward" includes a
sum of money payable from the Fund to a person who
makes a disclosure in accordance with this Act; and
"victimisation" means acts which fall within the
matters specified in subsection (2) of section 12.
Date of Gazette
notification: 20th October, 2006 .
|
