Whistleblowing

In the last decade, there have been seven major leaks of financial documents in tax havens which have exposed the international web of financial flows, mechanisms to facilitate these flows and the major role players in these activities. In each leak, questions often arise on how both legal loopholes and illicit means are used to facilitate the outflow of funds from low- and middle-income countries to tax havens by corporations, wealthy individuals, and politically exposed persons (PEPs). These leaks are often the result of whistleblower-led investigations and the release of these financial documents has become a primary resource in understanding how financial corruption works globally. The effects of these leaks have seen heads of government sacked or resigned in some cases while little to no action takes place in other countries. However, what is undeniable is the role of whistleblowers is increasingly becoming central to curbing illicit financial flows (IFFs) especially as the global digital economy and stronger privacy-enhancing technologies make the detection of IFFs harder. Within Africa, very few countries have comprehensive national laws for whistleblowers despite the majority ratifying international agreements for the protection of whistleblowers. Using Nigeria, Kenya, and South Africa as case studies, this note reviews the regulatory landscape in the countries and the extent to which current laws and practices aid or hinder whistleblowing on IFFs.

This review focuses on Chapters 1 and 7 of the book ‘Witness Protection and Criminal Justice in Africa: Nigeria in International Perspective’ by Suzzie Onyeka Oyakhire. The review reflects on specific aspects adopted in discussing witness protection and the complexities surrounding its practice in the Nigerian context as presented by the author.

Witness Protection and Criminal Justice in Africa: Nigeria in International Perspective’, by Dr Suzzie Onyeka Oyakhire, provides an important contribution to the processes aiming to establish witness protection concepts, legislation, and requisite structures for the Nigerian criminal justice system. As Oyakhire points out the challenges in institutionalising witness protection in Nigeria are abundant. For this reason, solid academic research such as her book, will be essential in assisting law makers in drafting a law that on one hand appropriately regulates how witness protection is applied at different stages of proceedings within the specific Nigerian legal, socio-economical, and cultural context and consciously considers what benefit international and national practices and standards could provide to the process on the other. Oyakhire’s caution against applying a ‘one size fits all approach’ and recommendation to be aware of the risk of importing ideas from abroad without due consideration to the national context is highly relevant. This is essential in trying to ensure that whatever system Nigerian authorities decide to implement, it must first and foremost be appropriately adopted to respond to national needs. Some principles for practical implementation of witness protection measures, such as how to mitigate risks through prevention, deterrence, and avoidance, will be similar regardless of the geographical location but finding the appropriate solution to these practical challenges will need to have a local flavour.

How does the state provide effective witness protection where the witness-protection architecture is almost non-existent? How is effective protection of witnesses achieved when suspected criminals are in charge of security? How can witness protection programs be made effective without a comprehensive legal and policy framework? In contexts where potential witnesses and suspected criminals live communally and are known to each other, what does effective witness protection look like? Suzzie Onyeka Oyakhire’s new book titled Witness Protection and Criminal Justice in Africa: Nigeria in International Perspective’ used the context of Nigeria to navigate the challenges of witness protection paused by the questions above. These challenges are marked with ambiguity about the precise meaning of witness protection as different domestic and international jurisdictions accord different meanings and therefore interpretations to the concept, though with an ultimate goal of supporting the adjudication of crimes.

In Nigeria, the relevance of witness protection as a critical aspect of criminal justice administration is increasingly becoming evident. Recent developments in Nigeria such as the prosecution of Boko Haram members for terrorism, prosecution of former government officials and high profile individuals for economic and financial crimes as well as Nnamdi Kanu for treason, brought to the fore the need to clarify the legal and conceptual issues that underlie the framework for protecting witnesses. The concept of witness protection is characterised by ambiguity about its precise meaning, thereby subjecting it to different interpretations. Using the Nigerian case study, my book illustrates the obscurities inherent in the concept of witness protection. These obscurities are discussed around five critical themes: the definition of witness protection; the scope of beneficiaries requiring protection; the nature of crimes necessitating protection; the nature of protective measures and the administrative control of witness protection. The book thus explored the concept of witness protection which is still at an early developmental stage in Nigeria. The book draws from international debates, legal developments, and institutional practices from other jurisdictions as a basis for developing Nigerian efforts in witness protection. It adopts two distinct perspectives: the criminal justice perspectives and human rights perspectives as heuristic tools for analysing the concept and to separate the disparate influences that shape how witness protection is construed. These distinctions are utilised throughout the book as an integrated way of conceptualising the concept of witness protection.

In this blog post I will consider policy initiatives for tackling the issue of illicit flow of funds out of African countries and the implications of these activities on investment and trade in the context of the AfCFTA. Combating Illicit Financial Flows has been a difficult task for African countries and, the best approach to tackle this endemic problem may be to develop and implement comprehensive mechanisms that will encourage the disclosure of these illegal activities in a timely manner. Such disclosure can best be realized by the adoption of a regional whistleblower protection directive.