The Federal Government of Nigeria recently unveiled a whistle blowing policy to aid in combating corruption in the country. The whistle blowing policy of the Federal Government is under the auspices of the Federal Ministry of Finance and is designed to encourage anyone with information about a violation of financial regulations, mismanagement of public funds and assets, financial malpractice, fraud and theft to report same. The Federal Ministry of Finance has since created a portal on its site which a whistle blower with useful information may utilize in notifying the Ministry.

According to the Federal Ministry of Finance, a whistle blower is a person who voluntarily discloses to the Federal Government of Nigeria, through the Federal Ministry of Finance, a possible misconduct or violation that has occurred, is ongoing, or is about to occur with specific concerns which are in the public interest.

The policy creates incentives for the whistle blower as a whistleblower responsible for providing the Government with information that directly leads to the voluntary return of stolen or concealed public funds or assets may be entitled to anywhere between 2.5%-5.0% of the amount recovered. To qualify for the reward, the whistleblower must provide the Government with information it does not already have and could not otherwise obtain from any other publicly available source. The actual recovery must also be on the basis of the information provided by the whistleblower.

The implementation of the whistle blower policy however throws up pertinent issues, one of which is whether the Federal Government can pay out a portion of any money recovered by it to a whistleblower without a law being passed to that effect by the National Assembly.

Whenever the government recovers any public funds, the funds, after a final seizure order has been made by the court, ought to be paid into the Consolidated Revenue Fund of the Federation. The present administration has however indicated that a separate account has been created with the Central Bank of Nigeria where recovered public funds are deposited.

Section 80 of the Constitution of the Federal Republic of Nigeria 1999 provides for the manner in which the Federal Government may spend public funds whether it is the Consolidated Revenue Fund or in any other Public Fund. In particular, section 80(2) of the Constitution provides that no moneys shall be withdrawn from the Consolidated Revenue Fund of the Federation except to meet the expenditure that is charged upon the fund where the moneys have been authorized by an Appropriation Act or a Supplementary Appropriation Act. This means that the Federal Government cannot spend any money from the Consolidated Revenue Fund unless it is included in the budget and appropriated as expenditure for that fiscal year. Also, section 80(3) of the Constitution provides that no money shall be withdrawn from any public fund of the Federation, other than the Consolidated Revenue Fund unless the issue of those moneys has been authorised by an Act of the National Assembly.

The above stated provisions of the Constitution create a situation where the Federal Government cannot spend or pay out any money from either the Consolidated Revenue Fund or any other Public Fund except such expenditure is authorised by an Act of the National Assembly.

Though there exist certain other legislations with provisions for whistleblowing, there is currently no comprehensive legislation regulating whistleblowing, much less the payment to be made to whistleblowers.

A demand by a whistle blower for the promised percentage of recovered funds after giving useful information to the Federal Ministry of Finance and which enables the Federal Government to recover such moneys or assets, may leave the Federal Government in a legal conundrum in the absence of an Act of the National Assembly authorizing the payment of such funds to the whistle blower.