“See it. Say it. Sorted.” The persistent refrain on the public address system of the London underground will be familiar to anyone who travels to and around the UK’s capital city. Sounds good, doesn’t it? A witness to wrongdoing reports it; action is taken by the relevant authority; disaster is averted.
But not in South Africa. “See it. Say it. Get assassinated” would be far more apt. Ask Babita Deokaran’s family. This is the often deadly dilemma of the whistleblower. You’ve seen it, but dare you say it? And yet we need them: like the fabled canaries sent down the mine to sniff the first whiff of lethal gas, whistleblowers can provide an early warning in the treacherous fight against corruption.
The Zondo commission of inquiry into state capture woke up to these fundamental points regrettably late in the day. Having sat through three years of evidence of deep-seated, endemic corruption, the commission threw in some last-minute, half-baked recommendations about the need to reform the law that purports to protect whistleblowers from retribution ― the Protected Disclosures Act.
After an inexplicable delay this has now resulted in a draft new bill to replace the act. Zondo found that the Protected Disclosures Act was not fit for purpose because it failed in its primary task: to protect the whistleblower. And, furthermore, that it is not proactive in providing physical protection, offers no incentives to the discloser and does not ensure all such information finds its way to a destination with specialised skills in receiving, investigating and utilising such information effectively.
The new bill fails to address these stated shortcomings sufficiently. I can’t tell you what the justice department has been doing in the years since the Zondo reports landed, but it can’t have been digesting the many expert submissions I know it received because the new bill is a complete dog’s dinner.
For a start, it hardly represents a root and branch reform. It reminds me of one of those old-fashioned newspaper puzzles with two apparently identical drawings that invite the reader to spot the differences.
On close inspection some of the revisions are regressive. Critically, while the Protected Disclosures Act presently sets a relatively low bar for what constitutes a “protected disclosure” ― namely “good faith” ― the bill will not protect a disclosure if the whistleblower ought reasonably to have known that the information was false. I know from my own experience at the now sorely missed Open Democracy Advice Centre that this will have a chilling effect.
Would you speak up? Most witnesses to wrongdoing, especially corruption, are likely to stay silent. Having “seen it”, the chances of them stepping forward to “say it” are slim, and will be slimmer still if there is any hint that they will have to prove the truth of the disclosure. If we are serious about recognising the role whistleblowers can play, we need to maximise not only what is protected, but also to whom the disclosure can be made.
On this latter point the new bill is also deficient: it still limits the options and continues to shepherd the putative whistleblower towards disclosing to their employer on the insecure premise that employer and employee have a common interest in nipping a corrupt act in the bud.
As we now know, this common interest is often conspicuously absent. The law has proved to be even more of a blunt instrument than usual. The primary problem is cultural, not legal. The law is just one instrument that must be put in place to protect whistleblowers ― establishing, for example, a specialist independent advice service for potential whistleblowers to turn to before deciding to make what may prove to be a life-or-death decision.
Public comments must be submitted to parliament by May 14, so time is short. The parliamentary committee must be put under pressure to listen to the experts, as the department apparently failed to do, and drastically revise the bill lest the law prove itself to be an ass once again.
Time to read it. Rewrite it. Sort it.
• Calland is emeritus associate professor of public law at UCT and a member of the Council for the Advancement of the South African Constitution.
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