Actions taken against whistleblowers raise alarm

Two headlines caught my eye this week. “Telkom criticised over ‘whistle-blower’ policy” and “whistle blowers being targeted”. In both instances, the reports referred to actions taken against employees who courageously ‘blew the whistle’ on corrupt activities within their organisations.

Whistleblowing is not about leaking secret correspondence. It’s not about freedom of information. It may be about secrets – bad secrets. It has to do with raising concerns about wrongdoing within an organisation or through independent structures associated with it.

Whistle blowing is a critical weapon in the fight against corruption and mismanagement, especially of public funds. It may also play a significant role in ensuring transparency and accountability.

Whistleblowing can be problematic for whistleblowers and for the organisations about whom concerns are raised. As Patricia Martin explains in the Open Democracy Advice Centre’s excellent report on the issue, The Status of Whistle Blowing in South Africa, “Whistleblowing always involves two parties with opposing rights and interests; on the one hand there is the whistleblower who has a right to equality, freedom of expression and fair labour practices; and on the other hand there is the organisation against which an allegation is made which has rights to a reputation and to loyalty from staff.

The need for whistleblowing regulatory frameworks is premised on the recognition that neither sets of rights are absolute and that they need to be balanced appropriately and lawfully. The power imbalances in the relationship between whistleblowers and the organisations, against which allegations are made, require the governing framework to be especially strong and effective so that it may create a meaningful safe alternative to silence for the whistleblower. The experience of whistleblowers, even in a country such as South Africa which has a more advanced whistleblowing law than most other countries, does not bear testimony to the successful provision of a safe alternative to silence.

Whistleblowers can risk their livelihoods, their reputations, their lives and even the lives of their families to expose information of significant public importance, yet they do so at grave risk to themselves.

There is at this point in our history, a pronounced need for whistleblowers given the apparently elevated levels of corruption. At the same time, the livelihood of whistleblowers is more at risk than ever before given the recessionary economy and significant job losses we have seen.”

The solution to this dilemma, Martin suggests is to foster a culture of disclosure, and to provide the appropriate legal frameworks that offer protections to both parties to support this. The Protected Disclosures Act of 2000 (PDA), one of the instruments intended to do just that, aims to, “Create a culture which will facilitate the disclosure of information by employees relating to criminal and other irregular conduct in the workplace in a responsible manner by providing comprehensive statutory guidelines for the disclosure of such information and protection against any reprisals as a result of such disclosures.

Other instruments that make up the whistleblowing framework in South Africa include the Constitution of the Republic of South Africa, the Protected Disclosures Act 26 of 2000, the Labour Relations Act, the Companies Act 71 of 2008 and the body of jurisprudence that has been developed by the Labour, High and Supreme Courts of South Africa.

Martin is of the opinion that these laws are not sufficient, as they stand, to create an enabling legal environment that fosters a culture of disclosure. In summary, the protections they offer are not strong enough to protect whistleblowers; they do not oblige or encourage organisations to promote a culture of disclosure that protects whistleblowers or even to investigate disclosures and; the range of recipients to whom a protected disclosure may be made is too narrow.

The ODAC report indentifies gaps in the legislation and makes extensive recommendations on how these may be addressed.

Until such time as this is done, those who blow the whistle are at risk, and there is little chance of stemming the tide of corruption that is plagues the fabric of our society.

For further information see:Open Democracy Advice Centre and International Whistleblowers websites

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