Opinionista Alison Tilley 17 April 2014

Of (silver) bullets and whistleblowers

Only three out of 10 South Africans believes that the law does effectively protect whistleblowers, and there’s been a steady decline in the number of people willing to shed light on corruption. What that means for power – and for the rights of all of us – remains unclear.

Remember when ANC councillors, Alfred Motsi and Moss Phakoe, armed with an incriminating dossier, embarked on a mission to get the top ANC leadership to act against what the two said was fraud and other corruption totalling millions of rand?

Motsi later gave evidence that the pair had first presented their evidence to the ANC regional leadership, then provincial leadership of the North West, and then national leadership, but nothing had happened.

Motsi and Phakoe had then delivered documentation to Jacob Zuma’s Forest Town home in Johannesburg. They were invited to Nkandla. Motsi said they had spent almost a whole night with Zuma and presented their evidence to him.

In January 2009, Phakoe, Motsi and several other councillors met the top ANC leadership in Potchefstroom. Matthew Wolmarans and several other ANC councillors also attended the meeting.

The meeting ended with the leaders deciding that former minister of Co-operative Governance and Traditional Affairs Sicelo Shiceka must call a meeting to solve the problem. Another meeting took place with Shiceka in Rustenburg, attended by Phakoe, Motsi and Wolmarans on March 12, 2009. Phakoe had spoken last and handed his dossier to Shiceka. Before he did so, he had looked at Wolmarans and said: “Hate me, but don’t hurt me.”

Two days later, early in the evening of 13 March 2009 Phakoe’s body was found slumped over the steering wheel of his car with two bullet wounds.

Phakoe’s dossier– which disappeared at the beginning of 2011 – included incriminating CCTV footage allegedly showing Rustenburg’s ANC mayor Matthew Wolmarans loading weapons into his car on the eve of Phakoe’s murder.

Hawks investigators found the missing dossier – including critical video evidence – of the investigation into the murder of a corruption whistleblower when they raided crime intelligence boss General Richard Mdluli. At the time, little progress was being made in the Phakoe murder probe being investigated by a North West provincial task team commanded by Colonel Tsietsi Mano.

After the Hawks found the Phakoe docket, a new national task team was appointed to investigate the murder and shortly afterwards, Wolmarans and his bodyguard Enoch Matshaba were arrested and charged with murder and possession of firearms and ammunition.

Wolmarans pleaded not guilty and was released on bail of R50,000. After the trial he and his partner were found guilty in the Mahikeng High Court in July 2012. Their subsequent appeals have, to my knowledge, failed.

I tell that story for three reasons. The first is to remember and honour the courage of Moss Phakoe, and the second is to point out what can happen to whistleblowers. And thirdly because for me, it marked the beginning of a change in what my organisation was concerned about in relation to whistleblowing. We weren’t only worrying about people getting fired. Now we started worrying about people dying.

Am I exaggerating? Perhaps the anecdotal evidence is misleading. Well, what is the empirical evidence? The latest PWC Global Economic Crime Survey for South Africa, released in February 2014, identifies a trend in the effectiveness of whistleblowers in reporting crime. The trend is downwards – in 2007, 16% of crime was detected through whistleblowing, and now that has dropped to 6% in 2013.

There has been a steady decline in the number of people who describe themselves as blowing the whistle. In 2011, 18.4% of respondents said that they had blown the whistle. This is down from 25.4% in 2007. (In the same survey, an overwhelming majority of respondents (87%) agreed that whistleblowers should be protected while only 13% disagreed.)

We believe these drops in numbers of people blowing the whistle can be directly related to the perception that the law does not effectively protect whistleblowers.

There are implementation gaps and deficiencies in the use and application of the existing laws which undermine the safety of whistleblowers. Those laws are themselves ineffective. This contributes to the lack of confidence in the ability of the law to protect people – ultimately contributing to the declining rates of whistleblowing in South Africa. Only three out of 10 South Africans believes that the law does effectively protect whistleblowers.

But would better law have protected Moss Pakoe? Or Moses Tshake, a Free State government auditor, who died in May 2013 after a brutal and mysterious hijacking? Or Nkululeko Gwala, a housing activist with Abahlali baseMjondolo, who was assassinated in June 2013, allegedly after uncovering evidence of political corruption in Cato Crest?

We can’t know the answer to that question. We know that a succession of Justice Ministers have had draft legislation to amend the whistleblowing law on their desks, a product of a South African Law Reform process, since the end of 2008. They have not acted on it. We know that key parts of the machinery in government who should be protecting whistleblowers, have not been. In the absence of such law reform, is there anything that can be done? Yes: and in fact has to be done, anyway, law reform or not.

Law and policy are seductive. They present an almost magical theory of how to manage the abuse power – simply write words on paper, and the world changes.

This is not true. Oppression and injustice exist even in societies highly regulated by law and policy. Power is always present, and the more it accumulates in spaces controlled by the few, the more inimical it will be to the rights of the many. We have expanded and refined mechanisms for moving power from the centres of control, which now include democracy, and the development of a human rights discourse, which encompasses such early concepts as the right to vote, and now pushes towards concepts such as the right to freedom of expression in the workplace.

In this story there have been many actors, who have played many roles. Some have been groups of people, and these collectives have been enormously powerful in restructuring society towards justice. They have used many tools, including some withholding their labour, which speaks to the organising of power at one of its most basic levels, that of the ownership of things. Actors have also used law, and the concept of fairness inherent in it, to challenge the power held by the few. The few have, of course, appropriated law to maintain their power.

What does this mean for whistleblowing? Information mimics power in its distribution. The movement of information away from centers of power is subversive of that power by its very nature.

Whistleblowers move power. They do so in a way which often challenges power, and in many ways, their speaking out will always run counter to the interests of power. If they spoke out in ways which reflect and magnify power, they would not be whistleblowers.

So the whistleblower will always be a target of the state and business, and often by the community of the faithful, and often by society in its broader forms. We have evolved from a society that on principle hangs, burns and excommunicates its whistleblowers, to one which acknowledges that what they say must be tested against the evidence, little though we may like it.

So, how best to protect and encourage whistleblowers? They may be likened to any other stigmatised and discriminated against group, and analogies for help may be drawn from that model.

We can decrease the stigma of the ‘snitch’, through education and awareness raising: story telling, in the form of documentaries, movies, and reporting news, which explains how whistleblowers are people too, with motives that are understandable and resonate with the ‘in’ group, and what the value of those stories is. We can develop recognition of the special value of protecting whistleblowers amongst groups in society that recognise the value of speaking truth to power. Unions have a special role to play in using collective bargaining to shield whistleblowers, and insisting on a response to allegations. We can develop support mechanisms for individual whistleblowers, and assist them in engaging with power. We can develop mechanisms in places of power for talking to the whistleblower, recognising them for what they do, and at least not violating their rights (if not actually celebrating them). This would include law and policy that recognises the value of at least hearing what the whistleblower has to say, and not actively punishing them.

The media are unfortunately not always the answer. A lonely, desperate Bradley Manning, deployed to Forward Operating Base Hammer, near Baghdad, might have been safer speaking to an organisation experienced in advising whistleblowers: he tried to give the information to the New York Times and Washington Post, who ignored him. He ended up giving the information to an organisation, Wikileaks, which published the information, but did not actually end up keeping him safe. Anonymity is only a cloak for those who want to stay hidden. He eventually ‘reached out’ – in that strange new phrase – to someone who would listen with sympathy. And they turned him in.

Could the media have saved Moss Phakoe? Better legislation? A good lawyer? Perhaps none of those could. Witness protection might have, but at the cost of his job, his income, his extended family, his pastor, his doctor, his medical aid – an assassin’s bullet might have seemed kinder. Who can judge? But that was not an option open to him. No criminal charges had been laid, a prerequisite for witness protection.

Maybe we could have found a way, which was some combination of all of these avenues. Most likely the answer could have been some close protection officers, checking under his car with mirrors, watching for unmarked cars. Perhaps a safe house, halfway between the dislocation of witness protection, and nothing at all. If Phakoe had been able to sue for three times the value of the corruption, and recovered 30%, as you can do in other jurisdictions, he would have been able to afford all of those things – but such a claim would always take time. And who pays in the meantime?

There is no single silver bullet to solve the problems of the whistleblower. The only effective bullet here was the one that killed Moss Phakoe. DM


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