Richard Calland: Overhaul the law to protect whistleblowers

Thandeka Gqubule-Mbeki. Themba Maseko. Mosilo Mothepu. Cynthia Stimpel. Tiro Holele. Sindiso Magaqa. Athol Williams. Thabiso Zulu. Babita Deokaran.

These are just some of the names in a growing roll-call of South African whistleblowers. Some have acquired celebrity status, with best-selling books to their names. Most of the media treats them as heroes.

Some of this is good and welcome; some of it less so — a symptom of the problem rather than evidence of a “solution”. After all, some of these people are dead; slain for having taken a stand. And all of them, in different ways, have suffered sickening reprisals as a result of their decision not to turn a blind eye.

In an ideal world, whistleblowers would be neither extraordinary nor heroic. Reporting wrongdoing should be an ordinary act of responsible citizenry, treated calmly and with respect by those in authority.

In short, the message should be heeded and acted upon. Instead, invariably the messenger is shot — literally, in the case of Magaqa and Deokaran.

Whistleblowers have to contend with an adverse political economy, a euphemistic way of describing the deadly threats that emerge from the shadows once it becomes known that the whistleblower has made, or is considering making, a disclosure. The published accounts of these whistleblowers provide chilling testimony of the dangers.

Which takes one to the legal protection — or, rather, the lack thereof. The relevant legislation is the Protected Disclosures Act 2000, which created a category of legally protected disclosures whereby “no employee may be subjected to any occupational detriment by his or her employer on account, or partly on account, of having made a protected disclosure”.

Some of the whistleblowers that have emerged battered but not bowed, or who have been killed in recent times, may not even have conformed strictly to the legal definition, which, in the original Act, required the individual to be an employee of the organisation in which he or she witnessed the wrongdoing.

This was partly remedied by an amendment to the Act in 2017, which extended the scope of protection by adding “workers”, thereby including sub-contractors or contractors, such as advisers and consultants, or other service providers, as well as those employed under a contract of employment — the point being that in many cases of corporate or state corruption, the wrongdoing may extend up or down the value chain and so may be witnessed by people all along it rather than just by employees in the principal organisation.

It’s an important improvement. But, it did not address an even more serious shortcoming to the legal protection for whistleblowers, which is the conceptual premise upon which the South African law is founded, namely, that except for exceptional cases, the whistleblower is required to make the disclosure “internally” first — that is, within his or her organisation.

In light of the traumatic predicament that many whistleblowers have faced, and the reprisals that they have been forced to endure, this may justifiably be considered not only to be a legislative error of judgment but an act of gross naivety.

The conceptual premise assumes that the employee and the employer have a common interest in the well-being of the organisation and in combatting corruption and other forms of unlawful conduct or wrongdoing.

You don’t have to be Marxist to recognise the flaws in this presupposition, especially in the hierarchical and deeply unequal, not to mention increasingly toxic and corrupt, organisational culture that prevails in much of South Africa. 

And yet — mea culpa — this is the approach that several of us urged the parliamentary ad hoc committee that was processing the draft law, which had been hived off from an earlier omnibus Open Democracy Bill that included what is now the Promotion of Access to Information Act, to adopt.

Why? Because it was one way of getting the law over the line. There was a recognition that protecting whistleblowers was going to be an important part of the complex anti-corruption institutional infrastructure that needed to be put in place. But there was querulousness about the previously dominant American model, in which whistleblowers were legally permitted, even encouraged, to go outside of their organisation to report wrongdoing to oversight bodies or even to go straight to the media.

It did not sit well with the culture of the ruling party. The ANC has always preferred that any dirty laundry is washed behind closed doors away from the prying eyes of the public. So, when some of those of us who had been lobbying parliament as a part of the Open Democracy Campaign Group got to learn of the new approach that had been adopted in the 1998 British legislation (the Public Interest Disclosure Act), an advocacy opportunity opened up. It was a relatively easy sell to the chairperson of the parliamentary committee, Johnny de Lange.

Even so, there was recognition at the time that legal protection was likely to be a blunt instrument unless it was accompanied by fundamental social, cultural change.

It had been alarming to see even apparently respectable organisations, such as lawyers’ associations from certain provinces, line up against the bill, on the grounds that whistleblower protection would amount to legitimising “impimpis”. So it was clear that the ostensibly neat and elegant upside of the British model would have to succeed in far rougher terrain. 

With the benefit of hindsight, it is obvious now that the deadly ruthlessness of the criminal underworld in South Africa, combined with the capture of lucrative state procurement processes, would render the protection of the Act almost worthless.

The Protected Disclosures Act does partly anticipate this reality, by providing for “external” disclosure in certain narrowly confined circumstances where internal disclosure is inappropriate. But to understand and then navigate those provisions requires legal knowledge and guidance, and the stories of South African whistleblowers — even highly qualified professionals such as many of those cited above — indicates that few people in such a predicament can obtain such advice in time, and are more likely to fall foul of the provisions requiring adherence to internal processes, thus creating opportunities for malign interests to exploit.

For more than 15 years from 2002 until it was forced to close for lack of donor funding, the Open Democracy Advice Centre hosted a whistleblower hotline. The organisation was able to assist many potential whistleblowers through the deft and painstaking guidance of its advice line manager, Lorraine Martin.

In some cases, the centre’s clients opted not to take the risk. Others were able to deliver the message and then slip safely back into normal life without having to deliver the heroics that others have been compelled to, nor suffer “occupational detriment”.

Showing that the Protected Disclosures Act has worked in some cases is, however, challenging — because it requires proving a counter-factual. Regardless, it is time for root and branch reform. That should be the first step. 

And it is to be hoped that the recommendations of the Zondo commission’s final report will require an urgent reform process, which must focus on the core question: where should the whistleblower go to with the information about wrongdoing?

What is clear now is that the whistleblower must have as wide a range of options available as possible, including both independent, non-state organisations and statutory bodies (including, maybe, a new specialist body). Who the disclosure of information is made to is likely to be the most important decision a whistleblower takes, with life and death consequences.

Legal reform will help. But learning the lesson of the past will mean recognising that legal protection will always have its limitations. It needs to be accompanied by a powerful social campaign to reset societal values and attitudes to whistleblowing. This will require a coalition of organisations and individuals, working together collectively for many years.

It will not be a task for the faint-hearted. There are likely to be more Babita Deokarans, as the stakes are too high on all sides. But for her death not to have been tragically in vain, it must in 20 years be seen as the tipping point — the moment at which South Africa stood up and said enough is enough.

We must cherish those with the courage to swim against the tide, and provide them with all of the protection they need, legal and security, along with an unflinching determination to bring those who harm whistleblowers to justice. No more heroes — dead or alive.

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Richard Calland
Richard Calland is an associate professor in public law at the University of Cape Town and a founding partner of the Paternoster Group.

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