Retired judges in South Africa are often referred to as part of the national treasure of the country. Long and distinguished careers in the service of the public by dispensing justice impartially and without fear, favour or prejudice make them so. They reach retirement age at the height of their powers and are sought after in the chairing of arbitrations, commissions of inquiry and other activities suitable to their lofty status.
Whistle-blowers are also part of the national treasure of the land.
They are the lifeblood of the anti-corruption efforts so sorely needed in this time of kleptocracy, state capture and grand corruption. Without their testimony the criminal justice administration is hamstrung in its investigation and prosecution of crimes of greed committed by those who illicitly divert public funds for their own private gain.
But instead of being honoured and respected, whistle-blowers find themselves reviled, impoverished, unemployed, ill and isolated. They are regarded as “impimpis” by far too many people who should know better.
Others who have written at length about the need to protect whistle-blowers, about the inadequacy of the existing laws and about the urgent need to change the system to better protect those who take the risks inherent in blowing the whistle on wrongdoing are all correct to highlight the plight of those brave individuals who nevertheless raise their heads above the parapet.
There is remedial legislation in the pipeline, but the process is too slow to bring immediate relief. The GIBS “white paper” on whistle-blowing is an example of the type of effort expended to alleviate the current plight of whistle-blowers. A petition calling on President Ramaphosa to prioritise action to protect whistle-blowers has been signed by more than 25,000 people.
One “workaround” solution immediately available at minimal cost and with maximum impact is the notion of having an ombud for whistle-blowers. An official who is approachable in confidence by those contemplating whistle-blowing who can help and guide them either toward officially sanctioned protection or to keep their identities secret from those involved in the malfeasance in question.
The ideal group from which to draw the ombud personnel is from the ranks of retired judges. They are all already on the payroll of the state because judges are appointed for life. The work of an ombud, duly supported by a secretariat, is not of an unnecessarily onerous nature to those with the qualifications and knowledge of the law that our retired judges have accumulated in the course of their careers.
Initially one ombud at the seat of each High Court and a chief ombud presiding over the structure of the “Office for the Ombud for Whistle-blowers” should provide welcome relief to our beleaguered whistle-blowers. There are manifest opportunities for rotating personnel so that the burden of work for the ombud is not borne on too few shoulders.
There is precedent for this type of solution to the problems of whistle-blowers in SA. The state of Schleswig-Holstein in Germany has just such an office, occupied by a retired police official.
Here is how it works according to Wolfgang Pistol, who recently occupied the office. I quote his experiences from page 82 of my book “Countering the Corrupt”:
“In Schleswig-Holstein the office of the anti-corruption ombudsman exists to protect whistleblowers. The system it operates is a great way to encourage whistle blowers to come forward in the knowledge that their identities will be protected by the ombudsman. The problem identified when the office was set up was the under-reporting of corruption, particularly in procurement situations and in the building industry in general. The whistle blowers, fearing exposure, repercussions, loss of their jobs and the terrors of the witness box in a criminal court, were understandably reluctant to come forward.
Once the ombud was put in place and properly introduced to society, whistle blowers took advantage of their guaranteed anonymity to make reports to him. The next step in the process was for the ombud to make investigations with a view to establishing malfeasance. Often the paper trail or the absence of any warning to the corrupt would enable the ombud to establish a case for the police to investigate without them or the accused ever finding out about the initial tip off from the whistle blower.
Once again, the system is only as good as the ombud. The practice of allowing a recently retired chief constable to take up the independent position of ombud is a salutary one. Not only is there a wealth of experience to draw on, he knows the police personnel with whom he has to deal and has experience in the field of finding proof of corruption. As corruption is a crime committed in secret against victims who are not even aware of it, the task of establishing a provable case is a difficult one. The inside information that an undetected whistle blower is able to give to the ombud can be invaluable to investigators and prosecutors who are tasked with seeking a conviction.
Pistol shared statistical information that suggested that the introduction of the ombud created a marked improvement in the rate of detection and conviction. Critical to the success of the office is the trust that the ombud is able to build with the public. Once the independence of the office is accepted as a given, it becomes easier for those in possession of sensitive information and even those who merely suspect something is amiss to come forward anonymously to the ombud to take up their concerns in a manner that does not prejudice them. The traditional lines of whistle blowing are short circuited and the horrors that so many whistle blowers endure are obviated. The critical element for success is the capacity and integrity of the ombud to observe confidentiality and act independently.”
A necessary element that is currently lacking in South Africa is the political will to establish such an office. A groundswell of public support for the notion is needed. The system is not complicated and does not require a legislated framework. The office can be set up simply by calling for volunteers and by populating it with the necessary secretariat after which it can be publicly introduced.
The beauty of the innovation is that it can be effected immediately and can have a marked impact on the reporting of malfeasance that would otherwise go undetected. If remedial legislation is effective, the office of the ombud can be phased out too.
The involvement of politically powerful players in corrupt activities in SA is perhaps an explanation for the lack of appetite for effective reforms that protect whistle-blowers. This is not a good reason to delay or obstruct the necessary protection of whistle-blowers by whatever means work best. DM/MC