PUBLIC INTEREST DISCLOSURE (PROTECTION OF WHISTLEBLOWERS) ACT

Arrangement of Sections

   Section

PART I
PRELIMINARY

   1.   Short title

   2.   Interpretation

   3.   Application

   4.   Void contracts

   5.   Disclosures during proceedings

   6.   Other protection preserved

   7.   Liability of agent of State

   8.   Legal professional privilege

   9.   Relationship of Act with other Acts

PART II
PUBLIC INTEREST DISCLOSURES

   10.   Employee not to be subjected to occupational detriment

   11.   Making public interest disclosure

   12.   Anonymous disclosures

   13.   Frivolous, vexatious, etc. disclosures

   14.   Referral without investigation

   15.   Investigation by authority

   16.   Referral with investigation

   17.   No referral

   18.   Action by investigating authority

   19.   Progress report

   20.   Joint action

PART III
PROTECTED DISCLOSURES

   21.   Effect of Part

   22.   General protected disclosure

   23.   Lodging of public interest disclosure

   24.   Disclosures made by public officers

   25.   Disclosures to be made voluntarily

   26.   Disclosure concerning corrupt conduct

   27.   Disclosure to Investigator-General concerning mal-administration

   28.   Disclosure to Auditor-General concerning serious and substantial waste

   29.   Disclosure concerning police officer

   30.   Disclosures concerning serious and substantial waste in local government

   31.   Disclosures about investigating authorities

   32.   Disclosures to public officers

   33.   Referred disclosures protected

   34.   Disclosures made on frivolous or other grounds

   35.   Disclosures concerning merits of Government policy

   36.   Disclosures motivated by object of avoiding disciplinary action

   37.   Protected disclosure to legal practitioner

   38.   Protected disclosure to employer

   39.   Protected disclosure to certain persons or bodies

PART IV
PROVISIONS RELATING TO INVESTIGATING AUTHORITIES

   40.   Procedures by investigating authorities on public interest disclosures

   41.   Report on disclosures

PART V
PROTECTIONS AGAINST REPRISALS

   42.   Protection against reprisals

   43.   Protection against actions

   44.   Non-disclosure of person’s identity

PART VI
UNLAWFUL REPRISALS

   45.   Employer to protect its officers against reprisals

   46.   Prohibition of unlawful reprisal

   47.   Relocation powers

   48.   Consent to relocation

PART VII
REMEDIES

   49.   Remedies

   50.   Liability in damages

   51.   Application for injunction or order

   52.   Injunction or order to take action

   53.   Undertakings as to damages and costs

PART VIII
GENERAL PROVISIONS

   54.   Prohibition of disclosure of information

   55.   False or misleading information

   56.   Limitation of liability

   57.   Liability of person disclosing

   58.   Notification to person making disclosure

   59.   Regulations

AN ACT

to provide for the disclosure of conduct adverse to the public interest in the public and private sectors; provide for a framework within which public interest disclosures shall be independently and rigorously dealt with; provide for procedures in terms of which employees in both the private and the public sectors may disclose information regarding unlawful or irregular conduct by their employers or other employees in the employ of their employers; safeguard the rights, including employment rights, of persons who make public interest disclosures; provide a framework within which persons who make a public interest disclosure shall be protected; and for matters connected with, or incidental to, the foregoing.

[16th April, 2010]

Act 4 of 2010.

PART I
PRELIMINARY

1.   Short title

This Act may be cited as the Public Interest Disclosure (Protection of Whistleblowers) Act.

2.   Interpretation

   (1) In this Act, unless the context otherwise requires—

“act” includes investigate;

“conduct” includes an act or omission;

“corrupt” has the meaning assigned to it under the Anti--Corruption Commission Act;

“detriment” means—

      (a)    injury, damage or loss;

      (b)   intimidation or harassment; or

      (c)   discrimination, disadvantage or adverse treatment in relation to career, profession, employment, trade or business;

“disciplinary offence” means conduct that constitutes grounds for disciplinary action, in respect of a public officer, under the general Orders or the officer’s contract of employment, or in relation to any other person, under the person’s contract of employment or conditions of service;

“disclosable conduct” in relation to any person or a public officer, means—

      (a)   conduct of the person, whether or not a public officer, that adversely affects, or could adversely affect, either directly or indirectly, the honest or impartial performance of official functions by the person, public officer or agency;

      (b)   conduct of the public officer which amounts to the performance of any of the public officer’s functions dishonestly or with partiality;

      (c)   conduct of the public officer, a former public officer or a government agency that amounts to a breach of public trust;

      (d)   conduct of the public officer, a former public officer or a government agency that amounts to the misuse of information or material acquired in the course of the performance of the public officer functions, whether for the benefit of that person or agency or otherwise;

      (e)   conduct of the public officer that amounts to maladministration which is action or inaction of a serious nature that is—

      (i)   contrary to any law;

      (ii)   unreasonable, unjust, oppressive or discriminatory; or

      (iii)   based wholly or partly on improper motives;

      (f)   conduct of the person or public officer that would, if proven, constitute—

      (i)   a criminal offence;

      (ii)   a disciplinary offence;

      (iii)   serious and substantial public wastage or abuse of financial or other public resources or assets; or

      (iv)   reasonable grounds for dismissing or dispensing with, or otherwise terminating, the services of the person or public officer who is engaged in it; or

      (g)   a conspiracy or attempt to engage in conduct referred to in paragraphs (a) to (e) inclusive;

“disclosure” means any communication or release of information regarding any disclosable conduct of any person, a public officer or employer made by an employee or any person who has reason to believe that the information shows or tends to show one or more of the following:

      (a)   that a criminal offence has been committed, is being committed or is likely to be committed;

      (b)   that a person has failed, is failing or is likely to fail to comply with any obligation to which that person is subject;

      (c)   that a miscarriage of justice has occurred, is occurring or is likely to occur;

      (d)   that the health or safety of any person has been, is being or is likely to be endangered;

      (e)   that the environment has been, is being or is likely to be endangered; or

      (f)   that any matter referred to in paragraphs (a) to (e) has been, is being or is likely to be deliberately concealed;

“employee” means—

      (a)   any person, excluding an independent contractor, who works for another person, whether incorporated or not, or for a government agency, and who receives, or is entitled to receive, any remuneration; or

      (b)   any other person who in any manner assists in carrying on or conducting the business of an employer;

“employer” means any person—

      (a)   who employs or provides work for another person and who remunerates or expressly or tacitly undertakes to remunerate that other person; or

      (b)   who permits any other person in any manner to assist in the carrying on or conducting of the person’s business, including any person acting on behalf of or on the authority of such employer;

“exercise” in relation to a function includes, where the function is a duty, the performance of the duty;

“function” includes power, authority or duty;

“government agency” means—

      (a)   a Government department, Ministry or institution;

      (b)   a statutory body, local authority, organisation or agency established under any law;

      (c)   a body, organ or institution incorporated under any law or established by Government for any public purpose;

      (d)   a body, organ or institution owned by Government or in which Government has any interest or is under Government control; or

      (e)   any other functionary or institution—

      (i)   exercising a power or performing a duty in terms of the Constitution or any other law; or

      (ii)   exercising a public power or performing a public function in terms of any law;

“impropriety” means any conduct which falls within any of the categories referred to in paragraphs (a) to (g) of the definition of “disclosable conduct”, irrespective of whether or not—

      (a)   the impropriety occurs or occurred in the Republic of Zambia or elsewhere; or

      (b)   the law applying to the impropriety is that of the Republic of Zambia or of another country;

“investigate” includes inquire or audit;

“investigation Act” means—

      (a)   in relation to the Auditor-General, the Constitution;

      (b)   in relation to the Investigator-General, the Commission for Investigations Act;

      (c)   the Public Finance Act, 2004;

      (d)    the Zambia Police Act;

      (e)   the Narcotic Drugs and Psychotropic Substances Act;

      (f)    the Judicial Code of Conduct Act, 1999;

      (g)   the Anti-Corruption Commission Act; and

      (h)   the Prohibition and Prevention of Money Laundering Act, 2001;

“investigating authority” means—

      (a)   the Auditor-General;

      (b)   the Anti-Corruption Commission;

      (c)   the Drug Enforcement Commission;

      (d)   the Investigator-General;

      (e)   the Police Public Complaints Authority;

      (f)   the Judicial Complaints Authority; or

      (g)   any other person or body prescribed under this Act or any other law;

“legal practitioner” has the meaning assigned to it in the Legal Practitioners Act;

“local authority” means any municipal, district or city council established under the Local Government Act;

“maladministration” means any conduct that involves action or inaction of a serious nature that is—

      (a)   contrary to the law;

      (b)   unreasonable, unjust, oppressive or discriminatory; or

      (c)   based wholly or partly on improper motives;

“occupational detriment” in relation to the working environment of an employee, means the employee—

      (a)   being subjected to any disciplinary action;

      (b)   being dismissed, suspended, demoted, harassed or intimidated;

      (c)   being transferred against the employee’s will;

      (d)   being refused transfer or promotion;

      (e)   being subjected to a term or condition of employment or retirement which is altered or kept altered to the employee’s disadvantage;

      (f)   being refused a reference or being provided with an adverse reference, from the employer;

      (g)   being denied appointment to any employment, profession or office;

      (h)   being threatened with any of the actions referred to in paragraphs (a) to (g); or

      (i)   being otherwise adversely affected in respect of employment, profession or office, including employment opportunities and work security;

“Parliament” means the Parliament of Zambia;

“protected disclosure” means a disclosure made to—

      (a)   a legal practitioner in accordance with section 37;

      (b)   an employer in accordance with section 38;

      (c)   a person or body in accordance with section 39; or

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