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The erratic treatment of whistleblowers

The fight against corruption is assisted a great deal when unethical conduct is reported. However, whistleblowers are often not viewed positively. Their action should be seen as supporting the preservation of an ethical environment by disclosing misconduct and thereby allowing it to be addressed. However, whistleblowers are often subject to a “shoot the messenger” attitude, where the bearer of bad news is viewed as if they were to blame for it.

The latter occurred in June 2016 when a Luxembourg court sentenced two former accounting firm employees, Antoine Deltour and Raphaël Halet, who leaked data about Luxembourg's tax deals with large corporations in the so-called "LuxLeaks" affair. Transparency International condemned the prosecution and sentencing (Deltour received a 12 month suspended sentence and 1,500 euro fine and Halet received a 9 month suspended sentence and a 1,000 euro fine), stressing that what Deltour and Halet did was in the public interest and that they should be protected.

Other high profile examples include Wikileaks and Edward Snowden who were condemned for leaking information.

By contrast, the massive leak of the Panama Papers in April/May 2016 has not attracted the same condemnation or criticism. Some 11.5 million documents that detail financial information from Panamanian law firm Mossack Fonseca were leaked, exposing (among other issues) tax evasion and avoidance that denies legitimate tax payment at their source. While the internal whistleblower remains anonymous, the investigation and exposure has been managed by the International Consortium of Investigative Journalists – none of whom have been viewed negatively for facilitating this enormous leak.

Locally, there are many negative examples where whistleblowers have been victimised for speaking out. However, a noteworthy (somewhat) positive example is the leniency which the Competition Commission offers to whistleblowers. In the recent ArcellorMittal case, in terms of which they were fined R1,5 billion for collusive behaviour, Bakhe Majenge, the Competition Commission’s Chief Legal Counsel, confirmed that the company that blew the whistle on the cartel would be treated more leniently.

Whistleblowing – better labelled ethics reporting – should represent an effective tool against misconduct, which warrants that there is effective protection for the whistleblower.

Effective whistleblower protection has repeatedly been demanded by European and international organisations including the OECD, the Council of Europe and the European Commission. Anne Koch, Regional Director at Transparency International, stated that “While some progress has been made, most European countries fail to protect whistleblowers. This hurts the fight against corruption as they play a critical role in exposing wrongdoing.”

South Africa has the (apparent) advantage of having sound legislation in place - the Protected Disclosures Act - and most organisations also have a supporting internal policy. However, what needs to be added to this is consistent action in support of whistleblowers to build trust that this protection will actually be forthcoming.

by Cynthia Schoeman