Whistleblowing Act, 2016

1. Short title ,md commencemrnl 2. lnterpretati,m PART II - !nfor111atio11 thl.' di1do.1·11re r!/1rhicf1 i.1· pm/t'cre,!

3. Disdosun.: of impropriety -1-. Prot..:clio11 11f Ji~clo~urc of impropriet)'

5. Disdowres made on frivolou~ or nlhn grounds

6. Disclosures crnk·crning merits ofGnvcrnmcnt policy

7. Di~clm,urc~ motivat<:d by object ufavoiding di;,c:iplinary action

8. Pcr;,,m tu\\ horn nr institulilln to which Ji~c!osme o/' impropriety may be: mad..:: P.\RT IIl - Pmccd1m•.1·jiJr diJclo.1·11rc o{improprief\' wul rd111ed ci.·rim1

9. Proci:-durcs l~Jr making di;,clnsure JO. Rcducti,111 of di:;ch.1,urc intu \\ ritin_,;

11. Action by per~1,n \\ hn ren:i•.-.:s lfodu'iurc uf impropriety l 2. Compubury receipt of di:;cki\ure;, 13. lnvt:stigalion PART I\' - Pmh'1'/ion,Jiir muki11g disclosurl.' of improprie/1' l•I. Protection of whistlcblo11cr

15. Prntcclion again\! civil and criminal action

16. Vt•iJ 11rn\·i'>ion in employment cnnlntl'(:c; PART V " O//e111·e.1 mu! penullics

17. Making false Jisdosun::s

18. Disclosing thc identity of a whi~tlehlower !9. Disclo,ure uf infomrntitJn It) H Lhircl party

20. Di~clnsing the Jdails of the di~dthure

11. VicLin1isation of 11 hist!eb[o\\'cr

11. Failure to lake action by nn at1thori"ed person PART V! •-- ,\1i.1·r·clfu111'011.1 pm1'isio11s

23. Regulations A.11-1 An Act to provide for the manner in which a person may disclose eouduct adverse to the public interest; to provide for the manner of reporting and inves{igations of disclosures of impropriety; and lhe protection against victimisation of persons who make lhc disclosures; and to provide for related maHcn,. Date 1!( Assent: 26.09.16 Dare ofC011mu.,11cement: ON NOTICE ENACTED by the Parliament of Botswana. PART! - Prefiminarr

1. This Act may be cited as the Whist!eh!nwing Act. 2016. and shall come Short title and into operation mi such date as the Minister may. by Order pub!ishcd in !he cnmmenn:m~nt G11:.c11e. appoint.

2. Jn this Act. unkss lhi:: context othenv is,~ requires - ln1~rp1-ctation •• Auditor General"' means a public officer whose office is cn.:ated under section 12-1 of the Constitution; "'authori\ed per~un" means a per~(\Jl authorbed under section 8 to recein: a disdn~ure of impropriety: "'Bobwana Defonce Force·· mc~ub lhc Butsw:ma Defence Furce e:-.t:ibli:,hed ;1 :05 unda tht: Bobwana Defonce Force Act; '"Bobwana Police Service'" mean.~ Lhe Botswana Police Scn·ice e:-.tabli<;h~•d l'a1,. 21:01 under the Police Act; "'Botswana Prisons Services·· mean:-. Botsw,rna Prisons Service~ established lap. 2!.0.l under the Prisons Act: ""Botswana Cnified Revenue Service" r,1eans the Bniswana Unified Rcvcnu1; Service estahlished under the Botswana llnitied Jkvcnue Scrvio.: Act: Cap. ~_;JJJ ··competition Authority'" mean<; the Cumpditirn1 Authority e~tabfohed under the Competition Aulh,Jril} Ac!: ("I'· -!<,·IJ'J ·•Directornle of Intelligence and Security" mc•0ns the Directorate nf Intelligence and Security estahlished unckr the lntel!iµ-ence and Security Service Act; Cap. ~.l:02 ·•Directmate nn Cnrmplion and Economic Crime"' mean~ the Directorate nn Corruption and Economic Crim.<' <:-"labfohcJ under the Corruptinll anJ Cap. 08:05 Economic Crime Act: ""di~c!osuri:'. 01· impropriety'" means any declaration of information made by a whistlchh1\ver with rc:gard to the conduct of one or more persons where the whis!leblower has reason to believe that the infornrntinn given show:-. or tend" lo ~ht)W an impropricty: ··employee'" means any pcr~on who bas enter.:d into a contrnct of cmploJment rnr the hire of his or her L1bu-ur in terms of the Public Service Act. Cap. 26:01 Emplo)mcnt Act, Botswana DcferKe Fon:c Act, Police Act or Pristllls Cap. -P:01 Acl, and includes - Cap. 21:0.'i Cap. ~!:OJ (a) any person who provide" a service for reward lo a public body: and Cap. 2\.0.1 (h) an employee of a per;.on providing service~ to a public body: '"Financial Intelligence Agency.. mcans the Financial Intelligence Agency L'stablishcJ L111dcr the Fina11cial Intelligence Act: "'impmpriety"' means conduct which falls within any of the matters specilied in :-.cction 3: "public body'" mean., any oflicc. (,rganisntion. establhllmcnt nr body created by or under any enactment l'I" under powers conferred by any enactrncnl. and include:-. all) c,1111pany in 1vhid1 lhc Gt)Vcrnnk'nl has equily share~ oi· any nrg:ani~atinn Pr body when~ public !lllll1C}'S arc used: and A.115 "whi~tleb[ower.. menns a person who makes a disclo,nre of impropriety thal is prole<.:ted in terms of section 4. PART II - fofor111atiu11 the di.1-clos1m· ofwhic/1 is prolcc1cd Disclu,ure of 3. A whisllebluwer may make a disclosure of information where he or impropriety she has reasonable r.:ause lo believe that - (al a criminal or other unlawful act has been committctl. is being committetl or is likely to be committed; (b) rmother person ha~ failed, i~ failing or is likely to fail lo comply with any obligation to which that person is subject; (c) a miscarriage of justice hns occurred, is occurring or is likely Lo OCCllr: (dJ the health or safety of any person has been. is being or is likely to be endangered; (e) the environment has been, is being or is likely Lo be endangered; (/) any matter referred to in paragraph~ (a) tn (c) ha~ been. is being or i~ likely to be deliberately concealed: (g) the conduct of the pcr"on, whether or not a public officer. mlversely affecb. or could adversely affect. either directly or intlirectly, the honest or impartial perfonnancc of official functions by the person. public officer or public body; lhJ the conduct of the pub!it: officer amounts to the perfnrrnnnce uf any of the public officer·s functions dislmnest!y or with partiality; (iJ the rnnduct of the person. whether or not a public officer. n rnrmer puhlic orficer or a public body, amounts tn a breach of public trust: (j) the conduct of public officL'r, a former public (>nicer or a public body amounts: to misu~c of infornrntion or material acquired in the cau:>L' of the perfonm111ce of the public oflicer·s functions whether forth..-: benefit of that person or public body or otherwise; lk) the conduet uf the pcr;,011. whether or 110[ a public officer amuuntc. to mala<lministraLion. which is action or inaction of a serious nnture that is -· (i) contrary to any law, (ii) unreasonable. unjust, oppressive or discriminatory, or (iii) based whollj or pat1l) on improper motives; or (/) tlie conduct of the person or public officer 1vould. if proven. conqitute - (i} a criminal offence, (ii) a disciplinary offence. (iii) serious and substantial public was!agc or abuse of financial or other public resource~ or ass.ets. or (iv) reasonable grounds for dismissing or dispen~ing wil11. or otherwise terminating the service~ of the person pr public ofJiccr who is engaged in it. A.116

4. ( I J No!withslnnding any other law to the contrary, a disclo~ure of Prntection ol" impropriety is protected if - Lli,cio,u,l' r>i" (a) the disclosure is mnde in good faith: impropriety (h) Lhe whist!eblower reasrnmbly believes Lhn1 the disclosure and an allegation of impropriety contained in the <lisdosure is substantially true; ;:md (r'J the disclosure is made to an authorised person. (:?.) A disclosure of impropriety made by a publk uffi..;cr to the Aut.litor General or by any person is protected under this Ac! where it shows or tends or show that a public body or officer or the public body has seriously and ~ubstantially wasted public money.

5. (I) An authorised per~on may decline to investigMe or may discontinue Di,chi,ure, the investigation of rmy matter rnised by a disclosure of impropriety m.ide lo ma<lc Oil frivolom, or the authorised person of a kind referred to in this Par! if the authori.~ed person other ~roum.l, is of the opinion tl1at the t.li~closurc \Vas made maliciously. frivolously. \eXatiomly. in bad faith. for pccunir1ry gain or fm an illegal purpose. ( .?:) A Llisclmure of impropriety referred to in subsection ( I J is noL. despite any other provi~ion in this Part. protected by this Act ir an authorii,cJ person declines to imestigate or di~continues the investigation of u matter under this ~ecti1m.

6. ( 1) A disclosure of impropridy made by a public ofAcer lhat principnlly !Ji,d,,,11re, c'<Hlc·ernin_~ involve~ questioning: the merits of Grwanmcnt policy is not, t.lcspit<" any other m~nh llf provision in this Part. protcct<:d by this Act. Ctn,cmmenl (.?:) Jn this section. "Governrrn.:nl pnlie{· includes the pt,licy of a local rciJiC)'" uutlmri!y.

7. A disclosure of impropriety that i~ made solely or sub\tantiallJ \\'ith the Di,cln-,ur,:, mo!1,a1cd motiw of avoiding Jismissal nr other Jisciplinary action. not being action h} objcc"l of referred to in section !4. is nol. not\vithslanding any other prnvi~ion or thi~ :l\rnd1ng Part. a protected Jisdo~ure. <l1,c1plmary au inn

8. Th,.; following shall appoint authoriseJ person~ to recei\ c <lisclmurc~ of Pcr,n11 to impropriety - u)10n1 nr (al lhe Directorate on CoiTUption anJ Economic Crime: rn,ti!lllio11 tn rf,) the Auditor General: wbkh di,cJn,ure of (c) !he Directornte of Intelligence and Security: impropriety (d) the Botswana Police Service; lll<I} be lll,ltk (e) the Ombudsrrnm; (j} the Botswann Uuilkd Revenue S..:rviec; (g) lhe Financial Intelligence Agency; (/i) the Competition Authority; (i) the Botswana Defence Force: ant.I (i) the Botswana Prisons Services. PART !II - Procedures.for di.l'clo.mrc i!/impropric1_1· um! related action

9. (I).--\ disclosure or impropriety may be made in writing or orally. PtucniHre~ for (2) Not\\ ilhstanding the genernlily nf subsection (I). all forms of informmion m,1ki11g communicntion tc-clmology may be uscJ to convey a disclosure of impropriet). di,dmurc ( J) ;\ disclo~urc of impropriety sl1all contain as far ns practicable - (11) the foll name, ntldrc~~ and occupation or the whistleb!ower: (bl the nature of tl1c impwpriel) in respect ufwhicli the disdn~urc is madt': {c) the name ant.I particulars nf the person alleged to have commillcd. ,,Jro is commilling or i~ likely Lo commit the impropriety; A.117 (d) the time and place where the alleged impropriety is taking pi.tee, look place or is likely to take place; (e) the full name. address nnd description of a person who wilncssed the commission of the impropriety; {/) whether the whistleblower has made a disclosure of the same impropriety or of some other impropriety on previous otca'iion and if so, about whom and to whom the disclosure was made: (gl if the whistlcblower is making an cmp!oyrnent-rc!ated disclosure. whether the whistlcblower remains in the same employment: and (/1) any information Lhnt the Mini~le1· may prescribe. Reduction of

10. (l} Where the whistlcblower makes a disclosure of impropriety orally, di1ci'lst!fe into writin~ the authorised person 6hall cause the disclo~ure to be reduced into writing. (2) Where the whist!eblower cannot or Is unable to wrile, the writing required lo be made under subsection ( ! ) shall be read over, inlerpn:led and explained to the whistlcblowcr by the authorised per~nn in a language the whislleblowcr undcrc,tamb aml the whistlcblower shall approve of the writing before making a mark to c,ucb writing and a certificate to thi~ effect 6hal! be attached by the authorised person 10 the writing. (3) !n the case of a whislleblowcrwho is bli!ld or with ,ornc physical dbability, <l certificate requir,·d under ~Ub\,Xtinn (21 -~lwll be nrndc \Vith the neccc;\ary modir1rnLion. A,tum ~)' pcl'~!\ll 11. When a disdosun:: nf impropriety is made. an authorised per~on sh:dl - <>bi rccei,·es Ui,,clu,urc of (al make a n::cor<l of the <late. time and place where the disclosure of improprid:, improrriet y is made: lh) give to the whistleblower an ad.. nowleJgement in \>riling of receipt of the disclosure of impropriety: and (cl keep the disdusure confidential pending inve~tigation of the impropriety. f_"1"1l)'ll]s<\I')

12. ( l) An authori~eu person ~hall rel'cive a!! di~clt,~ure\ of impropriety rc,;~ipt nJ Ji,cio,urc, mat.le by a whic,tlcblnwe1·. (2) Notwithstanding subsection (I). receipt of a disclosure of imprnpricly by an nutho1iscd person shall not preclude the exercise of the authorised person's di=,crdiun in determining whctheror not the infonnalion reveals impropriety. {3) An authorised person may. after a preliminary investigation. cloc,e the inve~tigatiun where the authorised pcr~on considers that - (al the disclosure of impropriety is maliciou~. frivolous, vexatious or made in bad faith: {/J) the disclosure of impropriety is misconeeiveJ or lacking in substam::c: I r·) lhe disclosure of impmpricl) is lri\"ial: (d) there is :1 more appropriate method of dealing with the di~clu:,urc of impropriety reasonably available: ( e) the disc!o~urc of impropriety has already been dealt with adequately: or Vl lhc <li~dosure of improprie!y is made maliciously, frin)lou~!y, wxatiously. in bad faith. for pecuniary gain or for an illegal purpose. A.118

13. (I) An authorised person shall aflcr receipt of a disclosure of impropriety fnve11ig~1ion under sccticrn 12, investigate or cause an investigation into such disclosure of impropriety and take appropriate action. (2) Where a disclosure of impropriety is not related to - (a) the conduct of the authorised person or of a public officer in relation to the authorised person; or (h) a matter, or the conduct of any person that it has the function or the power to investigate, the authorised person shall, within reasonable time and not exceeding. seven working days, refer the disclosure of impropriety to the appropriate agency that has the function or power to deal with the conduct or the matter Lhat the disclosure of impropriety concerns. PART IV -- Protection for making disclosure of impropriety

14. (I) A whistlcblowcr shall not be subjected to victimisation by hi~ or Prnkctmn nt her employer or by n fellow employee or by another person for making a 1~hi~tld1l(l\H'r disclosure of impropriety. (2) A whi~tleb!ower shall be considered as having been subjected lo victimisation under subsection ( l) if - lo} the whistleblowcr, being an employee - {i) is dismissed or suspended from work, (ii) has his or her post being declared redundant, (iii) is denied promotion, (iv) is transferred by the employer. / v l i~ harassed or intimidated by the emplo:,cr or fdlmv employee. (vi) is threateneJ hy lhc employer with any of the matters ~et out in subparagraphs (i) to (iv). or ( vii J i~ subjected to a discriminatory or other adverse measure. by the employer or a fellow employee; or (h) the whi:,tleblower. not beiitg an employee. is subjected to harassment, intimidation or discrimination by another person. (3) A whistleblowi.::r shal! not be considered as having been subjected to victimisation if the employer or fellow employee who is allegeJ to have taken an action against the whistlr..·blowcr under subsection (2) has the right in law to take the action complained of and the action taken is shown to be unrdated lo the disclosure of impropriety by !he whistleblower.

15. A whistleb!uwer shall not be liable to civil or criminal proceedings Prntcction in respect of a disclosure of impropriety. against civil a~<l criminal action 16. {1) A provision in a contract of employment between an employer Void provision and an employee is void if it ~ in ernplo} men! (a} seeks to prevent the cmployec from making a disclosure of contrnct.s impropriety; lb) precludes the employee from making :i complaint in respect of victimisation under section 14: or {c) prevent:. an employee t"rnm bringin!! an action in court or beforertn institution to claim relief or remedy in respect <1f victimisation under section l ..J.. l~) Subsection (I) shn!! apply to a contract of cmp!oym.:nl or agreement in existence on the commencement of lhi~ Act. A.JJ9 PART V - Offrnces and penafries ~faking false 17. A person who knowingly makes a disclosure alleging impropriety disclosure, knowing the information to be false commits an offence and is liable to a line not exceeding PIO 000 or to a term of imprisonment not exceeding five year~. or to both. Disclo~ing the 18. A person who unlawfully discloses, directly or indirectly. the identity of identity of a a whistleblower. comrnils an offence and is liable to a line not exceeding PJO whistleh]<,wer 000 or to a term of imprisonment not exceeding five years, or to both. Disclosure of 19. A whistleblower who, after making a disclosure of impropriety under this information to Act. proceeds to disclose the same information to a third party, commits an a third party offence and ls liable to a fine not exceeding PIO 000 ortoa tl.!nn of imprisonment not exceeding five years, or to both, Di.,clming the 20. Where any person fails to keep confidential the disclosure of impropriety <letaih, of the made under thi5 Act, he or she commits an offence and is liable to a fine not ,fr,clo,ure exceeding PlO 000 or to a term of imprisonment not exceeding five years, or to both. \~ctimi,a!inn of 21. A person who, either by himself or herself or through another pen.on, "hi,tkb)ower contrnvenes the provisions of section 14. commits an offence and i~ liable lo a fine not exceeding PS0 000 or 10 a tcm1 of imprisonment not exceeding ten years. or to both. Failure to rnJ...e 22. An authorised pt::rson who wi!lfully foib to Lake action upon receipt of action by ~n a disclllsurc made to him or her, commits an offence and is liable to a fine not authorised persnn exceeding P12 000 or to a 1cm1 of impri~onment not exceeding seven years, or to both. PART VI - Miscellaneous Reg:u)aticrn, 23. The i\lini~kr may make regulations for lhe better carrying out or the provisions of this AcL and such n:gulations may provide for - {a) the procedure for disclosing an impropriety; (h) other persons to \\horn a disclosure of impropriety may be made: and /cl any matter in this Act that is required to be prescribed. PASSED by the National Assembly this 3rd clay of August, :2016. BARBARA N. D!THAPO. Clerk of the National Assembly.