Under the law, can
civil servants (or more appropriately, public sector employees and staff,
simply covered by the concept of ‘public officers’) expose corruption in public
office without fearing victimization or persecution?
The simple and direct
answer to this question is “YES”. Any public officer can expose corruption in
any public office, including institutions, schools, colleges, ministries,
establishments, enterprises, departments, agencies, and so on, owned or
financed by any arm of government, without the fear of being victimized. Even
if an anti-corruption public officer had been made to suffer any form of
punitive measure, the National Industrial Court of Nigeria (NICN) could, if
approached, not only set aside any punishment the anti-corruption public
officer might have suffered, the whistle blower could also be entitled to
monetary damages for the deprivation, harassment and/or humiliation s/he might
have been made to go through.
This is the essence of
the unprecedented, striking landmark anti-corruption decision by the National
Industrial Court (NIC) in a Judgment delivered on 1 July 2015 by Hon. Justice
B. B. Kanyip, PhD, of the Lagos Judicial Division of the National Industrial
Court. The Judgment was delivered in the suit between Olu Ibirogba and The Council, ‘The Federal Polytechnic Yaba’ otherwise
known as ‘Yaba College of Technology, Yaba Lagos (Suit No. NICN/LA/582/2013).
From the text of the Judgment,
the facts of the case, in brief, were as follows. The claimant was Olu Ibirogba,
the Bursar of the Yaba College of Technology. He had cause to question certain
transactions of the College which bordered on mismanagement of funds by the
Rector. Sometime in 2013, the Economic and Financial Crimes Commission (EFCC)
invited Ibirogba to make statements with respect to petitions, which the EFCC
received from some member of the public on allegations of corruption and abuse
of office by the Rector of the College. The Federal Ministry of Education set
up a panel which actually indicted the Rector. The College equally set up a
“Committee on Investigation on Alleged Corruption at Yaba College of
Technology” to investigate the alleged corruption at the College. Ibirogba, was
invited for questioning by the Committee. The Committee concluded, on the basis
of some alleged telephone call logs, that Ibirogba was the person who made
information about corrupt practices in the college known to the owner of the
telephone number who was said to be the author of the petition to the EFCC.
The College authorities
queried Ibirogba, accusing him of gross misconduct, despite the denial by Ibirogba
of not having contacts with the author of the petition to the EFCC. The College
initially suspended Ibirogba for 3 months and placed him on half salary for the
duration of the suspension. He was later suspended indefinitely.
Ibirogba instituted the
suit to challenge his suspension, on the grounds that he was not responsible
for leaking information to those who sent petitions to the EFCC and that,
alternatively, assuming without conceding that he gave information to those who
petitioned the EFCC against the Rector, he was protected against any liability
or punishment under the Constitution, the EFCC Act and the Freedom of
Information (FOI) Act, among other judicial authorities.
For example, section 15
sub (5) of the Constitution of the Federal Republic of Nigeria, 1999, as
amended, provides that “the State shall abolish all
corrupt practices and abuse of power.” Specifically, section 27 sub (2)
of the Freedom of Information Act, 2011, prescribes that:
“27(2).
Nothing contained in the Criminal Code or Official Secret Act shall
prejudicially affect any public officer who, without authorization, discloses
to any person, an information which he reasonably believes t to show –
(a)
A violation of
any law, rule or regulations;
(b)
Mis-management,
gross waste of funds, fraud, and abuse of authority…”
Against the claims of
Ibirogba, Yaba College of Technology (the Defendant), among other judicial
authorities cited, contended that under the Federal Polytechnics Act, it has statutory
powers to suspend any of its staff who is being investigated to pave way for
unimpeded investigation of the affected officer, as part of its power and right
to discipline its staff.
The National Industrial
Court, per the said Judgment, held that while the employer has the right to
suspend, the power of suspension must be exercised reasonably, from the point
of view of public interest. Based on an erudite review of authorities, domestic
and foreign, the NIC held that the suspension of Ibirogba was unreasonable,
from the standpoint of public interest.
Among other holdings,
the National Industrial Court, held that:
“Resolving the issue involves a balancing act on the part of the Court of
the competing values of the right of an employer to suspend and the societal
value of not discouraging the fight against corruption….”
In the fight
against corruption, law must not be seen to be an impediment. If a staff is
queried and suspended for being a whistleblower, it will be retrogressive for
any technical provision of the law to be used to go against such a
whistleblower as the defendant has done in this case.”
The Court then declared
that:
“…
by virtue of the provisions of section 15(5) of the Constitution of the Federal
Republic of Nigeria 1999 (as amended), section 38(2)(b) of the Economic and
Financial Crimes Commission (Establishment) Act 2004 and section 27(2) of the
Freedom of Information Act 2011, it is contrary to public policy for the
defendant or any of its agents to punish the claimant by way of suspension from
duty or otherwise subject him to any disciplinary measure for making known to
third parties information about corrupt practices and mismanagement of the
funds of the Federal Polytechnic, Yaba otherwise known as Yaba College of
technology.”
The suspension of Ibirogba
from the office of Bursar was thus declared unlawful, null and void. The Court
reinstated Ibirogba and declared that he is “entitled to return to his work as
if he was never suspended with his right to salary, allowances and perquisites
of office intact”. The College was subsequently ordered to pay, within 30 days
of the Judgment, backlog of the full salary and allowances of Ibirogba from
October 2013, the cost of the action estimated at N50,000 (fifty thousand
Naira) as well as N250,000 (two hundred and fifty thousand Naira) general
damages - for unfair labour practice, suspension being mala fide, vindictive, a clear case of victimization
and unlawful.
In the expected fight
against corruption, which perhaps was the principal reason for the overwhelming
electoral victory of President Buhari, the NIC, by the Hon. Justice Kanyip’s
Judgment in Ibirogba v. Yaba College of Technology, has declared it would be a
reliable ally, at least from the point of view of encouraging and protecting the
rights of whistle blowers. However, there is a need for legislative reform such
that, among other things, the damages which a public institution has to pay to
whistle blowers like Ibirogba should be borne personally, collectively and/or
individually, by those who constitute the Management and/or Governing Council
and who knowingly participated, aided, condoned or allowed the looting,
dissipation, mismanagement and/or waste of public funds, rather than the
monetary penalties being taken from public treasury.
The burning question
is: would the ‘change’ governments of the APC under the leadership of the
anti-corruption President Buhari (at the Federal Government level) establish
the necessary conditions, including initiating required legislative reforms to
partner with the courts, particularly the NIC, in the fight against corruption
in public office?
Femi Aborisade, Esq.
Attorney-at-Law & Industrial Relations
Consultant.
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