Whistleblowing in Mauritius

Transcription

1 Whistleblowing in Mauritius Preamble Whistleblower protection is now recognized as part of international law. In 2003, the United Nations adopted the Convention Against Corruption. This convention was subsequently signed by 140 nations, including Mauritius, and formally ratified, accepted, approved, or acceded by 137 nations. Article 32 and Article 33 of the UN Convention endorse protection for whistleblowers. With the announcement by the Prime Minister to make anti-corruption and anti-money laundering priorities of this government, the Whistleblowing Council wishes to share some thoughts and perspectives on this topic. The Whistleblowing Council A key challenge in preventing and fighting corruption is to detect and expose it. One of the most direct methods is through whistleblowing. Transparency International defines whistleblowing as the disclosure of information related to corrupt, illegal, fraudulent or hazardous activities being committed in or by public or private sector organisations which are of concern to or threaten the public interest to individuals or entities believed to be able to effect action. Whistleblowing can help a country promote a culture of meritocracy, democracy and good governance as well as create confidence of the public in its government and institutions. Since 2012, Transparency Mauritius ( TM ) and the Mauritius Institute of Directors ( MIoD ) have been working on the concept of Whistleblowing as a tool against corruption and for good governance. Whistleblowing policies and procedures are being promoted in the Private Sector to develop a culture of integrity, good governance and to reduce levels of corruption at work. This initiative was further strengthened through the concerted discussions and efforts of both organisations to jointly set up a Whistleblowing Council.

2 The objectives of the Whistleblowing Council are to: promote whistleblowing within the private sector; act as an advisory council to relevant stakeholders; assist the relevant stakeholders to identify and act upon corruption risks and targeted malpractices, and take relevant action via recommended channels; raise awareness to relevant stakeholders concerning whistleblowing initiatives; assist relevant stakeholders to put in place mechanisms to protect whistleblowers against victimisation; analyse trends and issue recommendations to the relevant authorities for enactment and/or amendment of appropriate/applicable legislation; and give recognition to whistleblowing initiatives. The Whistleblowing Council welcomes the setting up of a Ministry of Financial Services, Good Governance and Institutional Reforms and the determination of Government to fight corruption and its commitment to enact new legislations in this respect. The Whistleblowing Council believes that whistleblowing is a key element in this initiative and wishes to share some perspective for general consideration. Definition Perspectives 1. Whistleblowing, as a legal concept, has been increasingly recognised since the 1960 s; and its broad definition, according to Transparency International, is the disclosure or reporting of wrongdoing, including but not limited to corruption; criminal offences; breaches of legal obligation; miscarriages of justice; specific dangers to public health, safety or the environment; abuse of authority; unauthorised use of public funds or property; gross waste or mismanagement; conflict of interest; and acts to cover up of any of these. 2. The broad definition of a Whistle-blower, according to Transparency International, is any public or private sector employee or worker who discloses information (covered in the above broad definition of whistleblowing) and who is at risk of retribution. This includes

3 individuals who are outside the traditional employee/employer relationship, such as consultants, contractors, trainees/interns, volunteers, student workers, temporary workers and former employees. Focal Issue 3. The focal issue of all laws on whistleblowing boils down to the protection of whistleblowers from various forms of retaliation. 4. Having regard to the state of legislation in Mauritius, a shrewd approach is advisable inasmuch as, inter alia, (a) Public value and awareness of whistleblowing need to be created. (b) There is need to prevent abuse. (c) The basic tenets of the Mauritian legal system are made up of a hybrid of laws, mainly French [Civil Code] and English [common law] These need to be carefully considered, especially as regards to: (i) the rules of evidence (ii) the concept of the right to a fair trial, as enshrined in the Constitution. (iii) the fact that the labour laws - namely the provisions of the Civil Code, the Employment Rights Act and the Employment Relations Act already provide an array of redress to any employee who contends that his / her employment may have been unjustifiably terminated. (iv) the provisions of the criminal code, namely Art 297 False and malicious denunciation in writing which state the following, Any person who makes a false and malicious denunciation in writing against any individual to any officer of justice or to any officer of police, whether administrative or judicial, shall be liable to imprisonment for a term not exceeding 5 years and a fine not exceeding 100,000 rupees.

4 (v) the provisions of the Prevention of Corruption Act, (vi) the unlimited and unquestionable powers of the learned Director of Public Prosecution - as enshrined in the Constitution - to prosecute (or not) any individual upon criminal complaint made against the said individual. The Whistleblowing Council has the following proposals to make: (a) (b) The amendment of the Companies Act by providing that a Company whether private, public or state owned must inter alia, establish and maintain a system to receive disclosures confidentially, and act on them. The creation of an Independent Whistleblowing Service - IWS which would be instrumental to the timely and successful implementation of whistleblowing in Mauritius. (c) The main attributes of the IWS could be (i) (ii) (iii) To create a culture of awareness and to conduct ongoing awareness programmes. To have the ability to offer a 24/7/365 free call facility enabling employees or third parties to anonymously blow the whistle on irregularities. To devise ways and means to guarantee anonymity, confidentiality and afford protection to whistle-blowers. (iv) To ensure that the reports which are received are duly considered in the appropriate manner and that all those who receive the report have the adequate credibility and authority to take appropriate actions. (v) To have an ability to distinguish prank calls and evaluate all disclosures prior to a report being compiled. (vi) To handle rewards anonymously. (vii) To assist in the drafting of business policies and procedures relating to:

5 (a) the prevention of fraud, corruption, wrongdoing, including but not limited to corruption; criminal offences; breaches of legal obligation; miscarriages of justice; specific dangers to public health, safety or the environment; abuse of authority; unauthorised use of public funds or property; gross waste or mismanagement; conflict of interest; and acts to cover up of any of these. (b) the protection of Whistle-blowers acting in public interest. The Whistleblowing Council hopes that its suggestions will usefully contribute to the public debate in the fight against corruption. The Whistleblowing Council Jacques Dinan (Chairperson) Diya Tatarah (Secretary) Michael King Fat Jane Valls Rajen Bablee Eddy Jolicoeur David Hotte Kelina Moonesawmy Murree Date: 26 th August 2015