Richard Calland
A coach careers off a road and down a bank. Thirty die. The brakes failed, claims the driver. Maybe they did. What if he knew they were faulty?
What if he knew they might be faulty because he knew they were poorly maintained by a company that won the contract through kickbacks?
What should the driver have done? It’s easy to sit here and say he should have reported the matter. But to whom? He’s got a wife and four young children to feed. He’s grateful to have a job. He told his wife about it; of course, he’s scared. But he’s also scared about losing his job. Rock the boat at work? You’ve got to be joking: that job is gold dust to him, faulty brakes or no.
This man is a potential “whistle-blower”. Whistle-blowing can be defined as the “disclosure by an employee of confidential information relating to some danger, fraud or other illegal or unethical conduct connected with the workplace, be it of the employee of or his fellow employees”.
Presently the coach driver gets no specific protection from the law. But that could be about to change. The Open Democracy Bill, that is about to be passed by Parliament, includes a chapter on providing whistle-blowers with legal protection against a whole range of possible adverse consequences flowing from their disclosure.
Section 63 of the Bill protects a person who discloses information showing corruption, contravention of the law, dishonesty or serious maladministration in a government body from civil or criminal liability or disciplinary action, provided he or she acts in “good faith” and makes the disclosure to one or other of a list of bodies, including Parliament, the Office of the Public Protector and the Human Rights Commission.
But for the Open Democracy Bill to protect our coach driver, however, the ad hoc parliamentary committee chaired by African National Congress MP Johnny de Lange will have to act decisively to extend the provisions to cover “purely private sector” cases of whistle-blowing.
As it stands, the Bill only provides protection where the disclosure relates to a government body. If the driver knew that a government Department of Transport official was being bribed to pass the company’s maintenance record, for example, he would definitely be covered if the current draft of the Bill is passed into law.
Does the whistle-blower have to be able to prove the corruption, illegality, dishonesty or maladministration? No, the Bill says that he or she must have a “reasonable belief”. The point is that you want people to voice concerns and to act as an early warning alert system, especially in cases concerning public safety.
In the Herald of Free Enterprise ferry disaster in the English Channel hundreds died. Competition on the lucrative pre- Chunnel route was fierce. Time was of the essence and so, eager to provide the fastest service, ferries were setting sail with their bow doors open. Evidence later showed that this had happened at least five times previously and had been reported. But no action was taken by middle management where the issue “was lost”, according to the judicial inquiry.
The most important thing, says United Kingdom expert Guy Dehn, is that whistle- blowing creates real accountability. Where someone has blown the whistle internally, the company cannot later say, “Well, of course we would have done something – if only we’d known.” A blown whistle puts a company on notice: failure to act will invariably lead to criminal or civil liability.
More importantly, it may lead to remedial action. “My nirvana,” Dehn says, “is that there are not that many whistle-blowers because malpractice is deterred because they know it will come out -internally, through regulators or through the media.”
Corrupt or negligent people in the private and public sectors will self- regulate; they will not sweep things under the carpet because they know that people will later ask why they did not do something.
This potential deterrent effect of whistle-blowing is perhaps the most significant contribution it can play in the fight against corruption.
It is the fear of getting caught, Dehn argues, that is the greatest deterrent. “If you are corrupt or negligent and your corruption or negligence causes death despite the fact that you knew about it, you will have to go home and face your friends and family, as well as your colleagues. That is the essence of the deterrence.”
However, for the system to have a deterrent effect, people must know that it will work – that potential whistle-blowers will trust the protection offered by the law enough to come forward.
Hence, the protection proposed under the Bill must be accessible and workable. Here, the main concern is that protection can only be sought and found in the high court. This reflects the wider defect of inaccessibility in the enforcement procedure proposed in the Bill as a whole.
But this is a defect that the government looks prepared to change at the 11th hour, whether it be by “moving” the remedy to the Commission for Conciliation, Mediation and Arbitration or to another new tribunal or to a magistrate’s court. Parliament should also extend the list of bodies to whom the whistle-blower can make disclosure.
Moreover, whistle-blowers need support and advice before, during and after disclosure. In Britain 1 300 whistle- blowers have relied on the free advice and support of Public Concern at Work, the organisation that Dehn heads. In South Africa, where the stakes for the potential whistle-blower are higher owing to massive poverty and unemployment, the law needs also to make provision for a system of support or advice, whether it be through the Human Rights Commission or some other body.
Again, the question of resources will arise. But if the government is serious about combating corruption, it must do more than pass laws; it must put its money where its mouth is. Provided it is extended to the private sector, the Open Democracy Act will be an important step. But as well as courage, whistle-blowers need to know that the law will protect them and the system support.
Richard Calland is head of the Institute for Democracy in South Africa’s political information and monitoring service. He will be chairing two workshops at the IACC