Disable the ‘thugocratic’ machine by backing whistleblowers

In a recent opinion piece by Claire Keeton, “How to fix a fearful, new world riven by polycrisis” (6 March, TimesLive), she quotes Mark Swilling, co-director of the Centre for Sustainability Transitions at Stellenbosch University: “We need to maximise what we can do to solve our own problems and minimise our dependence on the state.” 

Middle class citizens with means are doing that in sinking boreholes, installing solar panels and so forth. But, if they have to take the law into their own hands to deal with crime and violence, the state will have effectively abdicated its responsibility as custodian of our constitutional democracy. The litmus test of whether the governing party understands that is the extent to which it commits to protecting and encouraging whistleblowers. 

It has been two and a half years since I started working with whistleblowers. The entry threshold was the launch of Mandy Weiner’s book The Whistleblowers in October 2020. To promote the book I asked a journalist friend, Joanne Joseph, to anchor a panel discussion, Springing the Trap: Developing a Culture of Whistleblowing.

During the discussion, Mandy said: “We have to stack the cards in favour of whistleblowers if we are to fight corruption.”

“This is a life you would not want to wish for your worst enemies,” said Thabiso Zulu who, having survived an assassination attempt, never stays at one place for too long lest the thugs contracted by politicians finish him off for blowing the whistle on corruption in local government in KwaZulu-Natal.  

“Rosemary had nobody senior enough inside who could have had impact to help her bring to light the failure of pension fund administrators to ensure billions in unclaimed benefits were paid,” said Catherine Hunter, sister to Rosemary Hunter, who blew the whistle on fraudulent maladministration of pension funds. 

“South Africa is a decade behind the rest of the world in all our anti-corruption laws and policies,” said anti-corruption lawyer Colette Ashton. “If whistleblowers were protected, we would be well on the way to checking all the boxes on the path to better governance in South Africa.” 

I said, “A vast subterranean aquifer of damning information on ongoing corrupt activity is waiting to be disclosed. If we simply protect the ‘springs’ the waters will flow to cleanse our society from this contagion of corruption”.

Back then I had imagined protected springs of information would flow to create a flood of more damning disclosures. Catalysed by the Zondo commission on state capture, I was sure whistleblowing would emancipate the state and the ANC from capture and restore the social contract implied in the rule of law.

Assured of protection, support, compensation and redress for victimisation and retaliation, I believed the trickle would become a torrent. The opposite has happened. Babita Deokaran, a finance official in the Gauteng health department, was assassinated, apparently because she was a witness in an investigation into fraudulent contracts for personal protective equipment. Witnesses were deterred from speaking out. 

Moreover the National Assembly failed dismally in its oversight function, as Ilse Salzwedel’s book Permitted Plundering: How Parliament Failed South Africa shows.

A year after the panel discussion, Athol Williams, who had testified at the Zondo commission, left for a safe haven abroad. Police whistleblower Patricia Mashale, believing corrupt cops want to kill her, has also left South Africa. 

The ANC’s secretary general, Fikile Mbulula, railed against former Eskom chief executive Andre de Ruyter, who on eNCA blew the whistle about the abject failure of the authorities and ruling party elite to deal with the organised criminals stealing from Eskom.

The lives of people who try to stop or expose corruption are in danger, as evidenced by the assassination of court-appointed liquidators and corruption investigators Cloete Murray and his son Thomas.

Today marks the seventh anniversary of the assassination of my friend and client Sikhosiphi “Bazooka” Rhadebe, chair of the Amadiba Crisis Committee a day after Human Rights Day in 2016.  His family are still waiting for the criminal justice system to make an arrest. 

By failing whistleblowers, the state has failed us all. 

How do citizens who rely on institutions of state to investigate, prosecute and prevent such occurrences respond? What can we do to empower the state law-enforcement apparatus to reverse the toxic spiral into a systemic culture of corruption? 

A lasting inspiration from panel discussion was from Colette. Her point is that the protection and support of whistleblowers is the most efficient and effective plank in any anti-corruption policy platform. 

“International experts on anti-corruption enforcement have shown that providing incentives for people to come forward and report corruption is the most effective way to detect financial crime,” she said. “It is a much more cost-effective use of anti-corruption resources than criminal investigations of complex cross-border corporate schemes designed by teams of professionals.”  

So why does the National Prosecuting Authority (NPA) not have a team linked to the Special Investigating Unit that is dedicated to the protection, support and encouragement of whistleblowers?  

A lack of money can’t be the reason. The Asset Forfeiture Unit has recovered millions. The money sits in a fund in the treasury.  

Colette explains in her dissertation, Dismantling the Machine, that recruitment to corrupt networks happens by “horizontal co-optation” in which “symbiotic relationships are formed between politicians, business and organised crime”.

But this secretive corrupt relationship is fraught with conflict, and parties experience many temptations to betray one another. 

“We simply need to make it easier for them to do so, by providing strong incentives for one of them to come forward with information in a safe way,” she said. “These incentives do not currently exist in our law, and this needs to change.”

Why have we not seen the statutory changes to get the virtuous counter-cycle of whistleblower based corruption-busting spiralling upward?

Because the criminal syndicates know that a normalised culture of whistleblowing would be bad for business. The thugocrats are working to stall, frustrate and undermine any sincere effort by the state to lay bare and prosecute their crimes.  

Colette explains: “Corrupt actors are operating as rational, utility-maximising individuals, responding to strong extra-legal incentives and disincentives provided by corrupt principals to conform to an informal set of rules enabling and entrenching systemic corruption.” 

It is in the retaliation against whistleblowers that this becomes starkly evident, confirmed by stories of whistleblowers. 

In a normal society, citizens who see wrongdoing must report it to the authorities. But when the authorities and the ruling party elite are co-opted into a thugocratic machine they have abdicated any legitimate custodianship of the social contract between citizens.  Anarchy leads to tyranny.  

It is a common misconception that the social contract is between citizens and the state, as social ethics teachers Christine Hobden and Heidi Matisson argue. 

“One of the central features of the social contract that is often overlooked is that it is between citizens rather than between citizens and the state. That is, on the social contract view, the state and its political structures and authority are morally justified not because we have signed a hypothetical contract with the state to obey its laws, but because we have signed a hypothetical contract with each other as citizens. It is our job as citizens to respect the terms of the contract. The job of the state or political authority is to do something about it if we don’t.”  

Today is Human Rights Day.  Even if elected representatives break their oaths of office to uphold the Constitution, citizens don’t need their permission to show them how it’s done.  The Constitution in effect details the terms of the social contract.  The preamble, the Founding Provisions (Chapter 1) and the Bill of Rights (Chapter 2) leave little doubt as to what our rights, duties and obligations are to one another.  Predicated on those foundations the rest of the document explains what a fully accountable state must do. 

Human rights do not belong to the state, they belong to people. 

It is incumbent on citizens to ensure that human rights acquire meaning, which is exactly what whistleblowers are doing. The fact that they are persecuted for doing so is an indictment against the state. 

I believe that the thugocracy can be dismantled. Mashale has fled to safety out of the country, but she has left behind a chorus of whistleblowers. They won’t stop. Too much has been sacrificed. Too much is at stake.

John GI Clarke is a social worker, writer and justice monitor.

The views expressed are those of the author and do not necessarily reflect the official policy or position of the Mail & Guardian.