There is always a witness. The only question is whether he will speak out or not. And the question of whether he decides to take the brave step of raising a concern depends on society’s attitudes to whistle-blowers and the law’s capacity to provide a sufficiently resilient shield.
In Mpumalanga, for example, you are more likely to be murdered than to be welcomed as a responsible citizen doing your bit in the fight against corruption.
A critical mass of opinion encompassing a wide political spectrum — from trade federation Cosatu to Âprogressive civil society organisations, the Democratic Alliance and, not surprisingly, the media — now recognises that corruption has become a major problem. The fight for state power is not an ideological one — it is about control of public procurement processes.
Every time something rotten occurs there is a witness: there is always someone who is not directly implicated, but who sees or hears enough to wonder, at the very least, what is going on or, more often, to actually know what went down.
Will they speak out? Will they inform the authorities before it is too late? Perhaps, though probably not. Especially if they are from Mpumalanga and have heard the stories from that province: 14 government officials or politicians have been murdered there since 1998, prompting the national government to send in a task force to investigate.
The climate of fear prevails, however, and whistle-blowers are far from eager to report what they know. Not surprisingly: when Monica Mathebela, municipal manager for the Dr JS Moroka Municipality in Siyabuswa, took a stand in April and started an investigation into fraud, she was fired and her house was burnt down. Although her dismissal has been ruled unfair by the court, the municipality refuses to give her back her job.
Something is clearly wrong. The Public Service Commission’s 2010 report states that there has been a twelve-fold increase in wasteful expenditure since 2007, but a sharp decrease in the number of whistle-blowers coming forward to report malfeasance, according to research undertaken for the Open Democracy Advice Centre by Ipsos Markinor. So there is more corruption but less exposure of it.
This is worrying because whistle-blowers are important less for the gathering of evidence for prosecution than for prevention: like canaries down the mines in the old days, they can smell trouble and raise the alarm. But only if they are taken seriously — if the message is listened to and heeded and the messenger is not shot.
Scope of protection
There are some important legislative reforms that are urgent and necessary, as the Council for the Advancement of the South African Constitution argued in its March report on a comprehensive societal response to corruption.
First, the scope of protection is too narrow: protection under the Protected Disclosures Act 2000 is limited to whistle-blowers in a formal, permanent employment relationship, excluding citizen whistle-blowers. It thereby excludes all persons in other commercial relationships with the relevant organisation.
As the council argued: “This is despite the fact that members of the public may be compelled by laws such as the Prevention and Combating of Corrupt Activities Act 12 of 2004 and the Financial Intelligence Centre Act 38 of 2001 to report corrupt and other unlawful conduct of individuals and Âorganisations with which they may well have no employment or other commercial relationship.”
Disclosures to corruption hotlines and sectoral complaints mechanisms are not regarded as protected disclosures by the Act.
Second, protection is limited to disclosures about the employer only. The disclosure must relate to the conduct of the employer. This limits the scope of protection to the employment relationship.
Third, the Act only protects the employee against an occupational detriment committed by the employer or another employee of the organisation.
Last, the range of recipients to whom a protected disclosure may be made is too narrow. It excludes bodies and organisations other than the Public Protector and the auditor general — such as professional bodies and the media — that are capable of doing something about allegations and mandated to receive and act on allegations of corruption and irregular conduct.
Policies and procedures
There is also no express obligation on organisations to encourage and facilitate whistle-blowing. As legal researcher Patricia Martin argues: “In the absence of legislative obligations, organisations are not likely to create appropriate policies and procedures, and in the absence of appropriate policies and procedures it is unlikely that we will see an improved culture of transparency and positive receptiveness to whistle-blowers within organisations.” No such obligations are created by South Africa’s statutory framework.
The protection and remedies for whistle-blowers are too weak to create confidence. Martin points out that the majority of disclosures made by members of the public are anonymous.
This is “linked to a lack of confidence in the ability of the laws to protect the whistle-blower’s identity and to protect them against retaliation”.
Aside from the law, which is an especially blunt instrument in the realm of whistle-blowing, institutional culture needs to change. And that can only happen with the right leadership. The government, alas, is seriously scarred in that sense. The president has no credibility when he talks about fighting corruption, and his administration’s attempts to take serious action are largely pathetic.
South Africa has recently joined the Open Government Partnership and is one of eight of 46 participating countries that have submitted plans. The word from those present at the launch of the partnership in Washington on September 20 is that South Africa’s submission is regarded as the weakest by far — a lame rehash of old ideas.
For new ideas, we must await the National Planning Commission’s first national plan next month. In the meantime, progressive thinkers must think much harder about the vital role that whistle-blowers play. We need them — without them we would not know what we do about the arms deal corruption.
Backed by Xolani Gwala and Max du Preez, among others, the Open Democracy Advice Centre is launching the first “Whistle-blower Week” from October 17 to 24. It marks the moment to begin a campaign to shift social attitudes about whistle-blowers — to respect and nurture them and stop treating them as cockroaches that must be stamped on.