Whistleblowing: no easy time

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 By Alison Tilley

Whistleblowers have never had an easy time of it.  Back in the day, Plutarch, tells us that a messenger reported bad news to an Armenian general. He said  that a Roman general (plus army) was on his way to attack the Armenian general: the messenger had his head cut off for his pains. “[The Armenian general] sat while war was already blazing around him, with no one daring to bring him further information. He was without any intelligence at all, giving ear only to those who flattered him.” The Armenian guy lost.

So since 60AD until 2014AD, we have sat with the same problem – the temptation to shoot the messenger. And the risk we run is still the same: we will lose the war, against corruption, environmental degradation, bullying, and so on. So, how to win the war?

Listen to your messengers sounds easy enough. We don’t – we fire them, demote them, and even shoot them. Our Protected Disclosures Act doesn’t go far enough to protect whistleblowers. New amendments, partly introduced because of ODAC’s extensive advocacy on this issue, will go some way to extend the reach of the law.

But the new amendments don’t provide a safe alternative to silence for the general public or so called “citizen whistleblowers”[1].

The ISS National Victims of Crime Survey found that an unacceptably high number of the most vulnerable members of society are victims of corruption within both the public and private sectors. The survey found that many people, when applying for basic services like their grants, identity documents and pensions, and when applying for employment, often are subjected to corrupt conduct, bribery being at the forefront. The same study found that there was a dominant culture of silence amongst these people.

The majority (98%) did not blow the whistle on the corruption experienced by them or their family members. The three main reasons for their reluctance to blow the whistle were because 21 % did not know to whom to blow the whistle, 46% of respondents did not blow the whistle because they did not think it would change anything and as many as 27% said they did not do so for fear of reprisals.

Since 2007[2] internal tip offs as a source of detecting crime dropped from 22% to 9%. Reports using formal whistleblowing systems have also dropped in effectiveness off a high of 21% in 2009 to 6%. In ODAC’s surveys, we have noted a decline in the number of people who describe themselves as whistleblowers.  25.3% of respondents said that they had blown the whistle in 2007, which had dropped to 18.4% in 2011.

What would happen if we gave whistleblowers a different kind of protection? In The Whistleblower Act, 2006, which is the equivalent Ghanaian law, section 24 simply states that:

 24. A whistleblower whose disclosure results in the recovery of an amount of money shall be rewarded from the fund with

 (a) ten percent of the amount of money recovered; or

 (b) the amount of money that the Attorney-General shall, in consultation with the Inspector General of Police, determine.

Money might go some way to buy the physical security whistleblowers need, and not provided for by police, the NPA or anyone else. As we have said, the percentage of people who self identify as prepared to blow the whistle has dropped by 7% over the last 7 years. This is probably as a result of ongoing attacks on whistleblowers. Recent deaths include the murder of Johan Ndlovu, chief whip of the Ehlanzeni district municipality killed in January 2011, Sammy Mpatlanyane, director of communication at the provincial department of arts and culture killed in January 2010 and Jimmy Mohlala who was murdered outside his home in January 2009. Police records show that since 1998 at least 14 government officials or politicians have been killed.

 We need to do more to protect whistleblowers. This review of the Protected Disclosures Act is only a beginning.

 


[1] We use the term while noting that the meaning of ‘citizen’ here is a person concerned with wrongdoing, as in ‘concerned citizen’, not an actual citizen as in their residency status.
[2] PwC Global Economic Crime Survey 2014: page 18

Mozambican RTI activists show staying power

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By Mukelani Dimba, Executive Director

 

It is often said that a week is a long time in politics but in right-to-information law advocacy we do not plan in weeks but plan in decades. A decade is just about the right time for the development and passage of an access to information law. Not that there is a rule that you need 10 years to develop a law and have it passed by a legislative body, in fact you do not; with so many resources now available this should be a fairly simple, quick and easy effort, but it appears that that, on average, 10 years is how long most African states take to develop and establish consensus on these laws. Mozambique is one such example.

On 21 August 2014, the Mozambican parliament adopted the Right to Information (RTI) Draft Law, marking a major milestone in a process that began over ten years ago with the introduction of civil society’s proposed draft for an access to information law. This process was initiated by the Mozambican chapter of the Media Institute of Southern Africa (MISA). A couple of years later the MISA effort was supported the by Open Democracy Advice Centre and the British Council when a number of events and seminars were organized under the rubric of the First Open Democracy Week in Mozambique exactly 10 years ago in August 2004.

Colin Darch, a University of Cape Town historian and academic, is correct in noting that the Right to Information is a subversive right, subversive because if applied correctly it changes the traditional understanding of the state vis-à-vis the people. At the core of the right is the rebalancing of power dynamics wherein authority derived from democratic process or access to resources is checked by the people’s strengthened position to seek explanations for the actions underlying the exercise of public power and authority. It is probably for this reason that enactment of RTI law is so attractive to opposition parties and not an easy sell to ruling party officials. It is also for this reason that the process of deliberation on the contours of an RTI law often takes long. Civil society often plays a critical role in helping various stakeholders in reaching consensus on the scope and limitations of such a law. It is therefore critical that civil society stays invested in the process. This is a lesson that we can all learn from Mozambican activists and organisations such as Alfredo Libombo, Ericino Salema, MISA Mozambique and the Access to Information Programme, that have initiated this process, stuck with it and seen it to its finalization. We congratulate them on this achievement and hope that the draft law will proceed smoothly through the second reading but we also warn them that this milestone, significant as it is, is really the easy part, the difficult part is ensuring that the law, once in force, lives up to the aspirations of the drafters and becomes a critical tool for the betterment of circumstances of ordinary Mozambicans.

 

Statement: Mining Lekgotla Fails to Acknowledge and Address Key Challenges in South Africa’s Extractive Sector, say Rights Groups

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Cape Town - The Centre for Environmental Rights (CER), Centre for Applied Legal Studies (CALS) and the Open Democracy Advice Centre (ODAC) express their disappointment with the outcomes of the 2014 Mining Lekgotla in Johannesburg this week.

The mining sector remains one of the most fractured industries in South Africa and those with the power and capacity to bridge gaps continue to fail to do so. The conversation around mining remains polarised in content and in participation. Fora such as the Mining Lekgotla and Cape Town’s annual Mining Indaba continually fail to advance transparency on the part of government and mining companies and the inclusive participation of mining affected communities, workers and civil society.

Dubbed a “celebration of democracy and transformation” and the mining sector’s contributions thereto the Legkotla has failed to acknowledge, let alone address, key challenges plaguing the sector. These are not one sided concerns; they are issues which continue to exacerbate persistent sectoral volatility, a lack of transparency and accountability and stifled transformation.

Taking place on the eve of the two-year anniversary of Marikana, it is discouraging and deeply ironic that conversations around the future of mining in South Africa either deliberately exclude or cannot be accessed by all affected stakeholders. It is simply too expensive for anyone other than financiers, government officials and mine management and representatives of the Chamber of Mines to attend.

Affected communities, miners, public interest groups and lawyers, academics and development experts are all pivotal to a robust and profitable mining sector but their insights do not feature on the agendas of industry gatherings. The message is clear: the expertise and perspectives of anyone other than capital is not relevant. The pretense that these events include all stakeholders must cease.

Bonita Meyersfeld, Director of the Centre for Applied Legal Studies notes that “as South Africa remembers those who lost their lives at Marikana and following a wave of strike action and unrest in the industry, organisers and participants of events such as the Lekgotla and the Mining Indaba appear to be in denial by not recognising the need for inclusive and accessible discussions.” This is not only a principle of transparency and inclusivity but it is also a principle of sound financial investment. The financiers who invest in mining operations can no longer claim that their investments are attenuating poverty. Investment funds are flowing directly into practices that exacerbate rather than alleviate human rights violations.

In a constitutional democracy where the Bill of Rights is of horizontal application, there is a grave failure of transparency and genuine commitment to change on the part of mining houses and their financiers, and an equally devastating failure on the part of government to hold those responsible for these failures to account.

The Lekgotla has also failed to address the need to foster greater transparency and disclosure of information in relation to mining and the environment.

“Accessing basic information such as mining licenses, social and labour plans, water use licenses and environmental management programmes - documents that are readily and publicly available in other countries - is a constant battle. Government and several industry players actively seek to prevent disclosure and government often refrains from exercising its regulatory oversight adequately. This frustrates the realisation of constitutional rights that depend on the ability of individuals, communities, civil society organisations, companies and decision-makers to access this information”, said Melissa Fourie, Executive Director of the CER.

The lack of transparency makes it difficult to determine whether the sector is being administered properly and raises questions about whether vested interests of the political elite are unduly influencing the sector’s administration.

Gabriella Razzano, Head of Research at ODAC notes that proactive disclosure of mining licenses, authorisations and related information “is in the public interest given South Africa’s constitutional commitment to accountable and transparent governance and recognition that South Africa’s natural resources must be governed in a manner that ensures all South Africans benefit. South Africans have a right to know.”

It is hoped that the organisers of the 2015 Cape Town Mining Indaba, government, and industry leaders will take stock of these concerns and engage with all relevant stakeholders going forward. Inclusive, realistic and honest conversations about mining in forums such as these are long overdue, and there is broadening recognition that without this inclusivity the promises of transformation made at these events will remain empty.

For more information please contact:

Bonita Meyersfeld/Lisa Chamberlain, Centre for Applied Legal Studies: 011 717 8600

Melissa Fourie, Centre for Environmental Rights: 021 447 1647

Gabriella Razzano, Open Democracy Advice Centre: 021 447 1191

Better implementation for OGP in South Africa, call from civil society at US Africa Summit

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The Open Democracy Advice Centre (ODAC) is one of a few African non-governmental organisations that will be participating in the USA-African Leadership Summit taking place in Washington, DC, this week.  The summit will be hosted by the USA’s President Barack Obama and about 50 African heads of state have confirmed their attendance. ODAC intends to use this occasion to call for more resourcing of the Open Government Partnership (OGP) processes in South Africa. President Jacob Zuma is expected to speak at the Group Consultation on OGP.

ODAC’s Executive Director, Mukelani Dimba, said; “We are looking forward to engaging at the Civil Society Forum on issues around transparency, and in particular the Open Government Partnership. We want to ask for more concrete progress around that agenda” said Mukelani Dimba.

“We need to see a better resourced OGP process, that really engages with civil society, and drives a real transparency agenda” said Damaris Kiewits, SANGOCO WC.

40 African Heads of State will gather in DC to discuss trade and investment, peace and security, and good governance. The summit has been billed as an opportunity for the US to build a strategy together with Africa, which would include trade and governance issues. Civil Society Forum has been convened on the sidelines of the Leadership Summit. This will be convened on the morning of August 4 by Secretary of State Kerry and will bring together U.S. and African government leaders, members of African and U.S. civil society and the diaspora, and private sector leaders.

 For more call Alison Tilley 071 671 8654

#africasummit

@ODAC_SA

 

In memoriam: Nadine Gordimer (1923-2014)

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Nadine Gordimer

The Nobel Laureate and Booker Prize winner Nadine Gordimer (1923-2014) was an outspoken critic of the system of Apartheid. In her lifetime she devoted herself to using the written word to raise consciousness about South Africa's system of racial segregation and oppression. For her the freedom to express herself was both a shield and a spear that she wielded against the abuse of public power in whatever form it takes. It is not surprising, therefore, that when a democratically elected government introduced in 2010 a law that many feared would limit freedom of expression and the right of access to information, she would be counted among millions of voices that spoke out against this law, South Africa's the Protection of State Information Bill.

We publish below the full article where she warned against the dangers of such a piece of legislation. The article, titled "South Africa: The New Threat to Freedom" was first published in The New York Review of Books on 24 April 2012:

South Africa: The New Threat to Freedom

Nadine Gordimer

(Source: The New York Review of Books - http://www.nybooks.com/articles/archives/2012/may/24/south-africa-new-threat-freedom/ )

The regime of racism in South Africa was maintained not only by brutality—guns, violence, restrictive laws. It was upheld by elaborately extensive silencing of freedom of expression. The Suppression of Communism Act of 1950 had definitions of communism that were vastly inclusive. What was forbidden included advocacy of industrial, political, economic, and social change.

In 1982 an updated version of the Suppression of Communism Act, the Internal Security Act, was passed, which banned the African National Congress and the Pan African Congress along with the South African Communist Party. It retained almost all of the previous definitions of what was forbidden.

The Publications and Entertainments Act of the apartheid regime banned thousands of newspapers and books in South Africa from 1950 to 1990. The works of world-famous writers, including D.H. Lawrence, Richard Wright, Henry Miller, and Vladimir Nabokov, were prohibited along with the novels and nonfiction works of South African writers, including Todd Matshikiza, Bloke Modisane, Ezekiel Mphahlele, Lewis Nkosi, André Brink, Can Themba, and three of my own novels. Among the taboo subjects of everyday life was sexual relations between white and black. In the 1970s the films Jesus Christ Superstar, A Clockwork Orange, and The Canterbury Tales were prohibited.

In the new South Africa that was reborn in the early 1990s, with its freedom hard-won from apartheid, we now have the imminent threat of updated versions of the suppression of freedom of expression that gagged us under apartheid. The right to know must continue to accompany the right to vote that black, white, and any other color of our South African population could all experience for the first time in 1994. But since 2010 there have been two parliamentary bills introduced that seek to deny that right: the Protection of State Information Bill and the Media Tribunal.

The Media Tribunal is intended to apply to members of the press, both journalists and newspaper owners. It questions the powers of the press’s existing ombudsman and the Press Code (both of which can already be used to challenge whether an article should be published). If established, the tribunal will require journalists to submit to it the subjects they intend to investigate or have investigated and will write about. They must inform the tribunal of these subjects so it can decide whether they pose a threat to state security.

The subjects they must submit to the tribunal are not confined to obvious matters such as defense; military information is already protected by the Constitution from disclosure. Under the new tribunal, any government official, of whatever rank, may charge that the gathering of information pertaining to his or her activity should be an offense.

Moreover, there is an additional gag that can be used to shut any citizen’s mouth, as well as that of the press. This gag is made possible by the wide and detailed definition of security in the Protection of State Information Bill. The bill was passed in the National Assembly last November despite eighteen months of public protest against it by journalists and organizations of civil society. The Secrecy Bill, as it is known, specifies prison sentences for whistle-blowers who expose the rampant corruption by individuals in government, industry, and finance. Recent losses to the state through corruption are more than 30 billion rand a year. The protests against the Secrecy Bill will continue during this year. Civil society organizations, the media—and significantly, the Congress of South African Trade Unions (COSATU)—plan to jointly convene a summit meeting against it.

The government is now using various tactics to “accommodate” wide protest against the bill. Public hearings have been held. Separate submissions of dissent were made by eighteen different organizations including COSATU, the Nelson Mandela Foundation, the Legal Resources Centre, the Open Democratic Advice Centre, and the S.A. National Editors Forum. All were addressed to the National Council of Provinces multiparty committee to which the bill had been sidelined after it was passed by the National Assembly in November of last year. The day it was passed was dubbed Black Tuesday in public protests.

The Secrecy Bill has been and continues to be seen as an obvious means of concealing the corruption that has become a way of South African life for many, from high-placed members of the government down to menial officials. The tender—or bid to carry out government enterprises—has become the currency of much of this corruption. After the government calls for bids on projects from submarines to public buildings, the successful bid gets approved in return for bank deposits that end up in the back pocket of the official who has the power to award the deal. Sometimes the deposit is made to a firm where the wife of the awarding official is a partner. Some nosy person may subsequently reveal that the official himself benefited.

COSATU, which along with the South African Communist Party and the Democratic Alliance is a member of the parliamentary opposition to the ANC majority, gave what a newspaper called a pummeling to the bill in Parliament. The “Corruption Watch” launched by COSATU described in detail how the bill would undermine the fight against corruption. COSATU’s director of alternative information and development said that the government’s response to “deepening poverty and inequality, faltering social cohesion” was

rolling back human rights…. The Secrecy Bill is merely one of a much bigger and problematic effort to centralize power in the security cluster of government.

 

He was interrupted by MPs objecting to “political and offensive remarks”—one of them saying, “I am not prepared to listen any further to what he has to say if this is his line.” The advocate George Bizos, who defended Nelson Mandela during his apartheid treason trial in 1963, predicted that “if this bill is passed in its present form there will be a long queue of advocates to take the president and minister of state security to court. And it will be a never-ending queue.”

In the past the Constitutional Court has referred laws back to legislators because they had not been subject to sufficient consideration. The government arranged a series of open public hearings on the bill to meet this democratic requirement. But the showcase of hosting the hearings has been used to allow MPs to express vociferous animosity toward the representatives of national protest organizations attending them. One of these organizations, the Right2Know, has gathered statements from members of the public that they were obstructed and harassed when they spoke up at a public hearing. The Right2Know group also has asked for clarification about whether Parliament paid for public transport so that selected people could swell the ranks favoring compliance.

Two South African attorneys, Daria Milo and Avami Singh, remind us of an example familiar to Americans. Top-secret Pentagon Papers released to The New York Times and The Washington Post in 1971 revealed the deliberate expansion of attacks by the US in Vietnam and the systematic lies that four presidential administrations had fed to the public and Congress regarding the war. If the Protection of State Information Bill had been in force in the US, the attorneys said, it “would be a brave editor who would have risked publication.”

The bill calls for the following prison sentences:

Minimum 15–25 years for offense of espionage by a person who knows or ought reasonably to have known [the person’s actions] would directly benefit a foreign state.

Maximum 25 years for receiving information that one knows or ought reasonably to have known would directly or indirectly benefit a foreign state.

Maximum 10 years for harboring or concealing a person such as a confidential source.

Maximum of 5 years or a fine for disclosing classified information.

Maximum 5 years or a fine for failing to report possession of classified information (even if acquired before the bill comes into force).

 

The first item on the list, espionage, would be an offense in any country. As for the second, however, there are international trade agreements that surely will benefit both a foreign country and the home country, and otherwise would not have been made. Yet receiving information about such agreements is now a major crime.

The right to know would beyond question be virtually gagged for the people of South Africa by the bill’s censorship strictures on the press, both newsprint and other media. But the Secrecy Act also applies anywhere, and by any means, where human concerns and convictions are expressed; it can be used to stifle moral debates about our culture, our complex history, and our present situation. It is appalling to think of the opinions and actions that inevitably will be seen as transgressions of the deafening silence imposed by the bill. Decisions of the government could be hidden from the public under the bill’s parliamentary edict of secrecy. The bill, for example, could stifle the right to explore in public the effects of the new regime of secrecy itself, whether by characters in the theater, or in reflections on our society expressed by characters in novels and stories.

Some serious pragmatists are for accepting the bill but only if issues in which the “public interest” is recognized as legitimate can be excluded from it.

President Jacob Zuma has his own manipulative tactics to ensure that the bill gains legal acceptance. Now he intends to seek changes to the Constitution—recognized internationally as one of the world’s best—on the grounds that what he’s christened the “Second Transition” of the country requires new protection of the state. The first was transition from apartheid; now, he claims, a second is needed for realization of the “Better Life,” in freedom. As if to respond to recent publications emphasizing the supremacy of the Constitution, the need for judicial independence, and the separation of powers between the state and the courts, President Zuma has come out with: “We don’t want to review the Constitutional Court, we want to review its powers.” A few months earlier he complained that the powers of the courts cannot be superior to the powers of Parliament because political opponents should not be able to subvert the popularly elected government by using the courts to “co-govern the country.”

Concerning the powers Zuma now wants, we have the statement of Raymond Louw, the president of the South African National Editors Forum. He has quoted Pritzman Mabunda, president of the Black Lawyers’ Association, who said that Zuma’s “only way is to divorce the current constitutional democracy and remarry parliamentary sovereignty.” Louw explained that

this means parliament would be the ultimate arbiter of judicial decisions…the majority party in parliament would have the power to decide on jurisprudence on political grounds rather than the rule of law….

 

But I don’t see Zuma climbing down. He cannot interfere with the powers of the judiciary directly because he does not have the required two-thirds majority in parliament to bring this about by constitutional change. That means he has to turn elsewhere. The most obvious move is to look to the…Judicial Service Commission, the body that nominates judges which Zuma appoints…. It [is] estimate[d] that the [ANC] has 14 potential votes among the 23 members composed of judges, advocates, attorneys, members of Parliament and National Council of Provinces…. The Constitutional Court is the last line of defence to preserve press freedom—indeed all our freedoms.

 

This is the cliff-hanger in which, as I write, we South Africans are now opposing the Protection of State Information Bill and its ancillaries. The final hearing on the bill, which will decide whether or not it becomes law under which we must exist, is set for May 17. Meanwhile there’s a twist of irony in President Zuma’s latest political showmanship. He has set up an inquiry into the corruption blatant among us, while his own long and repeatedly delayed case, in which he is charged with corruption, is about to be heard despite inspired legal dodges to get it dismissed yet again.

I actively supported the African National Congress during the liberation struggle against apartheid; I continue to support the ideals on which the ANC was founded.

I am among the South Africans who believe that the bill must be rejected in its entirety.

If it is passed into law, it is the intention of the Democratic Alliance, the Congress of South African Trade Unions, and the South African National Editors Forum to bring a case against it in the Constitutional Court.

The airing of ideas releases pressures which otherwise might become destructive…. Full and free discussion keeps a society from becoming stagnant and unprepared for the stresses and strains that work to tear all civilizations apart.

—Justice William O. Douglas (dissent in Dennis v. United States, 1951)

 

 

—April 24, 2012