Opinionista • Paul Hoffman • 31 August 2021
Whistle-blowers in South Africa are inadequately protected against murder, intimidation, unfair labour practices and being shunned in the workplace for not being ‘team players’ in situations in which the ‘team’ is actually a gang of merciless thieves.
The visibly bleak reactions of Maverick Citizen editor Mark Heywood’s guests, Justice Edwin Cameron and Professor Salim Abdool Karim, at a Covid-19 webinar last week when he raised the vile murder of public servant Babita Deokaran, in the context of the PPE “covidpreneurism” on which she was a whistle-blower, spoke volumes. You can make your own assessment of the gravity of the situation and the depth of their feelings by viewing the first minutes of the webinar here.
Words are not adequate to describe the calumny of her cowardly murder, the depravity of its perpetrators and the outrage it provokes in the hearts and minds of all right-thinking South Africans.
Getting even, rather than getting angry, is always the preferable response to lawlessness. When the greed of the perpetrators and those who organised the hit on Deokaran is balanced in the scales of justice against her loss of life and the impact that has on her family, friends, colleagues and indeed on the flimsy fabric of our society, getting even takes a lot of thought and work.
Quite apart from tracking, tracing, investigating, prosecuting and punishing the perpetrators of this most heinous crime, there is the question of ensuring that such crimes do not happen again in SA. As a society, we can atone for the loss of a good citizen, a faithful public servant, by making sure that this safer situation comes to pass.
But how? That is the question.
When the pandemic struck, two senior judges, one on each side of the Atlantic Ocean, predicted that corruption in the procurement of PPE would be the next big game in town for those who regard public funds as their piggy bank and who disregard the dangers to which those in need of PPE, who do not receive it timeously, are exposed. Judges Richard Goldstone and Mark Wolf, very much alive to the inwardness of unbridled greed, wrote in April last year:
“Very little is certain about the coronavirus, and we are only judges, not prophets. However, we can confidently predict that the response to the pandemic will be a bonanza for kleptocrats — an opportunity for the corrupt leaders of many countries to further enrich themselves.
“Governments are poised to provide trillions of dollars to counter the pandemic, without even the usual, often ineffective, safeguards to assure that the funds are properly spent. The coronavirus will, therefore, provide additional compelling proof that the world needs an International Anti-Corruption Court to punish and deter kleptocrats who enjoy impunity in the countries they rule.”
In June 2021 the UN General Assembly chose not to seize the opportunity to establish the court of which the judges wrote. This means that whistle-blowers remain exposed to the depravity that took the life of Deokaran.
In SA, it is common cause that whistle-blowers are inadequately protected only against murder, intimidation, unfair labour practices and being shunned in the workplace for not being “team players” in situations in which the “team” is actually a gang of merciless thieves.
In law, the work of protecting whistle-blowers, those who are to give evidence in criminal trials, has been given to the prosecution service because it needs their evidence to secure convictions of those charged with crimes arising out of the criminal investigation of reports made by whistle-blowers. These reports are usually to employers and the authorities, be it criminal, civil or a chapter 9 institution such as the Auditor-General or Public Protector. The Special Investigating Unit (SIU), which has no criminal jurisdiction at all, often does the initial investigation with a view to recovering loot identified by whistle-blowers. The SIU does not do any work without a presidential proclamation that requires it to spring into action.
The truth is that the prosecution service is set up to prosecute criminals, not protect witnesses. Its training and skills are not attuned to the needs of whistle-blowers. A fresh approach is needed.
Schleswig-Holstein, modern Germany’s northernmost state, has been settled for many centuries and boasts some fine churches dating back to the 1300s. It has developed a system that could work in SA for the proper protection of whistle-blowers. The office of a Whistle-Blower Ombud exists there to protect the identity of all whistle-blowers who fear the downside of reporting untoward activity they detect whether in the workplace, civic life or elsewhere.
The ombud, a trusted senior public servant, is contracted by the state to protect the interests of any whistle-blower that approaches his or her office. This is done by securing complete anonymity for the whistle-blower. The ombud does a preliminary investigation of the kind that the Public Protector or Auditor-General is capable of in SA. If criminal activity is revealed it comes out of that investigation, not from the initial report of the whistle-blower. The whole system is described more fully in Chapter 15 on page 87 of Countering the Corrupt and also in Chapter 14 page 72 et seq.
Safe houses in SA turn out not to be so safe; whistle-blowers are at the mercy of those on whom they blow the whistle when the levels of corruption are as high and as mighty as they are in SA. Another plan needs to be put in place.
While remedial legislation is needed and is suggested in the draft legislation for reforming the Accountability Now-sponsored anti-corruption justice administration, it is plain that the focus of that draft legislation is not whistle-blower protection. The provisions of section 31 of the draft Integrity Commission Bill that will revive the Scorpions on steroids require beefing up and fleshing out, but they could be a good start. There is no good reason for not including the whistle-blower protection fully in the draft legislation which is in its conceptual stage and has yet to be considered by Cabinet, the Constitutional Review Committee of the National Assembly and by Parliament itself.
An ombud contract of the type used in Schleswig-Holstein does not require legislation, can be put in place rapidly and could serve as a stop-gap, or if it works well, a permanent solution to at least part of the problem posed by the current lot of whistle-blowers in SA.
Senior civil servants like retired prosecutors, auditor general staff members or former public protectors, if not a retired judge, would be suitable candidates for the type of appointment that could show a real willingness on the part of government to help alleviate the plight of whistle-blowers with alacrity. With the necessary political will, the ombud could be in office in a matter of a few months. If there is sufficient demand, one ombud per province might do. Schleswig-Holstein has under three million inhabitants.
The problem is not only one of governance. The attitude of society towards whistle-blowers needs to be one in which their integrity and courage are admired and rewarded. A fund for whistle-blowers who are down and out for doing the right thing is not beyond the wit of the Association for Savings and Investment South Africa (Asisa). The establishment of insurance policies that allow for whistle-blowing not to be financially crippling could be offered as part of the package of employees, if the insurance industry is prepared, as it should be, to underwrite the risk of becoming a whistle-blower.
Medical and psychological support services need to be catered for, and, where a whistle-blower is murdered or incapacitated, an income stream for dependants is not an impossibility if a little imagination is brought to bear. At present all local whistle-blowers are unrewarded, vulnerable and very much alone. These conditions should not appertain in a society based on human dignity and freedom in which human rights guaranteed to all are enjoyed by all.
If an ombud is appointed and if the law is cleaned up to protect whistle-blowers properly, it will reassert our unity in diversity, reflect our determination to get on top of corruption and help make us the society envisaged in the Constitution, our supreme law.
The sombre expressions on the faces of Mark Heywood’s guests will not have been wasted or lost. As a society, we will have atoned for the unfortunate lot of current whistle-blowers. DM/MC