In recent years we have become familiar with the great sacrifices of whistleblowers. In the global context, Chelsea Manning and Edward Snowden have exposed the terrible crimes of the empire. Recently released publisher and activist, Julian Assange, was also incarcerated due to his role in aiding whistleblowers. Ugljesa Radulovic argues that the experiences of whistleblowers in Africa are less well known. Yet, Radulovic identifies that South African whistleblowers have been subjected to vicious, and sometimes, deadly reprisals, similar to that of their counterparts in the West.
By Ugljesa Radulovic
The world has been acquainted with the sacrifices of whistleblowers for some time now. In the global context, Chelsea Manning and Edward Snowden have exposed the operations of power and crimes of the empire. Manning’s bombshell disclosure of sensitive military material to WikiLeaks would become known as ‘The Iraq War Logs’ and the ‘Afghan War Diaries’ detailing mass civilian casualties and human rights abuses which were a direct result of US military intervention. As a reward, Manning was sentenced to thirty-five years in prison but was ‘fortunate’ enough to be pardoned after seven years of incarceration.
Snowden is presently one of the best-known US whistleblowers. He worked for the US National Security Agency (NSA) via external contractors, where he disclosed several highly classified NSA documents to the public, implicating US surveillance structures in immoral dealings. He has been characterised as a dissenter and a deviant, with US Council of Foreign Relations president, Richard Haass, even arguing that Snowden’s disclosure did not qualify as whistleblowing but rather as a policy issue. Haass’ view is, of course, wrong, as it has long been accepted that the act of whistleblowing entails the disclosure of illicit, immoral or unlawful practices, under the control of one’s employer, to parties that can effect action. Snowden has been in exile in Russia since 2013.
Australian publisher and activist, Julian Assange, also fell victim to reprisals due to his role in aiding the two whistleblowers mentioned above in communicating their messages. Assange founded WikiLeaks in 2006 as a non-profit publisher of leaked documents. WikiLeaks became known for its role in exposing violations of human rights and civil liberties across the world. It was crucial in making Manning and Snowden’s evidence freely available to the global public. Assange, as a consequence of his civil activism through WikiLeaks, became a political prisoner. He was incarcerated in Belmarsh prison, in southeast London, from 2019 and was inhumanely confined to his cell for 23 hours every single day. On 24 June 2024, Assange was freed from British imprisonment after striking a plea deal with the US Justice Department, having plead guilty to the US Espionage Act.
The narratives of some whistleblowers have even become the subject of high-budget Hollywood films. Two earlier US whistleblowers, Frank Serpico and Karen Silkwood, each received their eponymous films. Serpico was a detective at the New York City Police Department (NYPD). He blew the whistle on systemic corruption within the NYPD, initially following the internal procedure and then going public when he was met with no internal response. After his disclosure, Serpico was shot in the face (yet survived) during a routine heroin raid, with no NYPD police officers making a 1013 call – a call which signals that an officer is in trouble. Serpico was accompanied by other NYPD officers, though he had lost track of them during the raid. Frank Serpico has long suspected that it was a set-up by his fellow police officers to have him murdered.
Karen Silkwood exposed a horrific corporate crime in the US. She worked for a nuclear fuel production facility in Oklahoma. Silkwood uncovered that she was exposed to plutonium, due to abusive and dangerous working conditions in the plant. She compiled the necessary documentation in order to make her disclosure public but was killed as her car was run off the road, en route to her meeting with people that were to aid her in her disclosure. No documents were found in her car after the crash, with many believing that it was an assassination.
The context of South Africa
These cases give insight into the aftermath experienced by whistleblowers. Though, it must be noted that these examples are framed within the West and exclusively reflect high stakes disclosures under the profile of flag-bearing capitalism. What these cases do indicate is that there are striking similarities in responses to whistleblowers’ disclosures, grounded in an attempt to protect the Western military-industrial complex, large corporations, and corrupt policing agencies. A clear fallout pattern emerges in the political economy of whistleblowing across many sectors in the Western world, characterised by career ending reprisals, lengthy legal affairs accompanied by imprisonment, and the threat of assassination.
In the context of South Africa, a state with dramatic class inequality represented by having the world’s highest Gini coefficient at 0.63, there is no exemption from punishment for whistleblowers either. The experiences of South African whistleblowers have been marred by all of the forms of reprisals experienced by whistleblowers in the West, with whistleblowers being subjected to retaliation more consistently, and to a more severe degree, than in the West.
The disclosures of South African whistleblowers have been dominating news headlines for an extended period of time. It is, however, important to note that the act of disclosure only became commonplace in South Africa after the country’s transition to democracy. This is, in part, due to a new Constitution adopted on 3 February 1997. With a new Constitution, legislation was also revamped with a focus on democratic rights for all of the state’s citizens. As a consequence, the Protected Disclosures Act no. 26 of 2000 (PDA) was implemented. This might very well have contributed to greater prevalence rates of disclosure in the country. However, the PDA, it would later be determined, was riddled with loopholes. These loopholes meant that whistleblowers were inadequately protected by legislation.
The PDA was, thus, amended by way of the Protected Disclosures Amendment Act no. 5 of 2017 (PDAA). The amendment, despite having implemented provisions for the broadening of whistleblower protection, is still lacklustre. It fails to meet Transparency International’s best practice guidelines for whistleblowing legislation, complying with only five of the twenty criteria.
Glaringly, under the PDAA, one can only claim a protected disclosure if an employer has charged the individual with a legal contravention. The PDAA’s definition is also far too narrow, which means that the scope of behaviours that qualify as whistleblowing, under the PDAA’s provisions, is limited. Furthermore, individuals that are connected to whistleblowers or are mistaken for whistleblowers are also not subject to protection under the PDAA. The PDAA does not provide protection to whistleblowers for workplace bullying, blacklisting and economic detriments. It also does not provide for explicit obligations for financial compensation, in the event of a whistleblower suffering financial detriments as a consequence of their disclosure. Legislation also fails to mandate financial penalties for the lack of adequate whistleblowing policies. In terms of the threat of physical retaliation, the Protection from Harassment Act and South African criminal law account for some degree of protection, albeit insufficient.
These loopholes persist because reforming the law would mean that criminals would be held to account. Since those perpetrating the crimes find themselves at the very top of hierarchal structures, they possess the capacity to influence the state and are often part of the government of that very state. Reform of whistleblower protection legislation would mean that a mechanism for transparency and accountability would be reinforced. Such a mechanism would work against the interests of those perpetrating the crime – those in the top echelons of public and private institutions and businesses.
Reprisals as evidence
History has taught us that the benefit of a revamped constitution, with at least some form of whistleblower protection legislation implemented, has resulted in a higher frequency of reported wrongdoings. Under apartheid, the frequency of reporting such cases was insignificant in comparison to the democratic state of South Africa. But, with makeshift legislation in place, the South African whistleblower is left open to various forms of retaliation. Such retaliation has transpired in myriad forms – work-related, social, lawfare, and physical.
Work-related retaliation has been executed through work-related ostracisation, disciplinary proceedings, ensuring whistleblowers’ loss of work, and rendering whistleblowers unemployable. Social retaliation has taken the form of social ostracisation, labelling, and even public reprimands. Retaliatory lawfare has entailed the use of delaying strategies, accruing whistleblowers’ legal costs, and the detainment of whistleblowers. The worst of reprisals – physical retaliation – has manifested in the presence of the threat of potential harm to, or the actual assassination of, a whistleblower.
As such, these reprisals have only confirmed an absolute imbalance in the power dynamics between the whistleblowers and the corporate and political criminals. The result has been a prolonged period of suffering by South African whistleblowers. This shows that those with power are able to exert their will over the powerless, whistleblowers in this case, particularly when the powerholders are the perpetrators of crime.
Nico Alant is one such whistleblower, whose suffering lasted twelve years. His struggle commenced on the eve of the triple transition, as the apartheid government was facing mounting political pressure. To stimulate investment, the ‘Financial Rand’ was introduced, trading at a discount to the regular Rand. Some individuals illicitly exploited this two-tier currency system and therefore quickly accumulated substantial wealth, draining the country’s foreign exchange reserves. Alant reported his concerns and faced severe reprisals in the form of work-related retaliation, being sidelined, labelled as a troublemaker and was, thus, rendered virtually unemployable. With a relatively peaceful transition to a democratic state, capital-driven opportunists arose to occupy key positions throughout public and private enterprise. With freshly minted opportunists and a democratic constitution, it is at this point in South African history that the frequency of reported wrongdoing rapidly increased. So too did the retaliation.
Work-related retaliation continued to be an extremely common fallout arising out of disclosure. Disciplinary hearings have been commonly used to terrorise whistleblowers. Simphiwe Mayisela, who exposed improprieties within Africa’s largest state-owned asset manager – the Public Investment Corporation (PIC) – was suspended without charge and faced internal disciplinary action. South African Airways whistleblower, Cynthia Stimpel, faced the same fate, as did National Prosecuting Authority (NPA) whistleblower Glynnis Breytenbach. Ecobank whistleblower, Altu Sadie, lost his job. Many whistleblowers have been rendered unemployable, just like Nico Alant before them. Sadie, Mayisela, and Trillian’s Bianca Goodson are just a few of the many examples of whistleblowers whose careers have been irreversibly tarnished.
Ostracisation also starts in the workplace. It comes from friends and acquaintances alike. Stimpel, after her disclosure, experienced people distancing themselves from her, primarily from a fear of being associated to her. With this, a spillover occurs which affects every facet of the whistleblower’s life. It manifests as social retaliation, enacted through social ostracisation and negative labelling of the whistleblower. One peculiar case of social retaliation in South Africa was the public reprimand that Mayisela experienced. In testifying at the PIC Commission of Inquiry, he was publicly reprimanded for not following the official reporting protocol and for sharing PIC documents with the police. Yet, were it not for his disclosure, revelations regarding wrongdoing at the PIC would not have come to light. He left the PIC Commission of Inquiry feeling embarrassed after experiencing this form of social retaliation.
It gets progressively worse for South African whistleblowers. Retaliatory lawfare is commonly utilised by criminals to turn the experience of a whistleblower into a protracted one. Essentially, retaliatory lawfare is the use of “hostile legal action” against a whistleblower in order to extend their suffering. This has been a common retaliatory strategy utilised in the West, with a recent case in Switzerland an example of this. An anonymous whistleblower disclosed information revealing that Credit Suisse opened several accounts for individuals linked to criminal activities. The scale of the disclosure is enormous, providing irrefutable evidence of Credit Suisse clients linked to “torture, drug trafficking, money laundering, corruption and other serious crimes” being in possession of ill-gained wealth, with the bank keeping the wealth safe for the criminals. This indicates that the bank has not conducted its due diligence, and has ‘indulged’ in the illegally acquired money. As a response to the disclosure, Switzerland’s Federal Prosecutor’s Office has launched an investigation to identify the whistleblower, in order to charge them with economic espionage. This, of course, is a trumped-up charge that would serve the purpose of silencing any further claims the whistleblower were to make while also discrediting the whistleblower. Unsurprisingly, the Swiss government has a poor track record of persecuting banking whistleblowers, as illustrated in the highly unethical attempt to uncover the identity of an anonymous whistleblower.
In South Africa, trumped-up charges against a whistleblower are a common occurrence. Mosilo Mothepu was accused of multiple fabricated charges by her former employer. In attempting to clear her name, it resulted in her amassing R1.3 million in legal expenses. These expenses are one of the primary motivations standing behind the use of retaliatory lawfare. NPA whistleblower, Breytenbach, accrued R14 million in legal fees. Stimpel also spent an extended period of time and money with a labour lawyer (despite the fees being covered by a supportive non-governmental organisation). Moreover, the strategy of utilising hostile legal action also serves the purpose of delaying a final outcome, often forcing the whistleblower to abandon their course of action and succumb to the demands of the party responsible for the wrongdoing. This perversion of the legal system can even go as far as being used as a tool to detain whistleblowers, again – on trumped-up charges.
But, the pinnacle of whistleblower retaliation manifests in a physical form, akin to the experiences of Serpico and Silkwood. Physical retaliation against whistleblowers, or the very threat of it, has presented itself as a frighteningly common occurrence in South Africa. Sometimes it is merely the presence of such a threat that debilitates whistleblowers, as was the case with Mothepu who had to install additional security measures in her home to ensure her personal safety. In many cases, it results in the worst possible outcome for the whistleblower – death.
Such was the case with Mbombela FIFA World Cup stadium scandal whistleblower, Jimmy Mohlala, who was killed in front of his home, with his son being injured in the attack. Moss Phakoe faced the same fate after blowing the whistle on corruption at the Bojanala municipality in the North West Province. Moses Tshake and Philemon Ngwenya blew the whistle on the fraudulent diversion of funds that were intended for the empowerment of black farmers. Tshake was kidnapped and tortured, and succumbed to his injuries in hospital, while Ngwenya was killed at his home. Babita Deokaran is now a famous whistleblower who was in the midst of disclosing procurement fraud in the Gauteng province’s Department of Health. She was shot multiple times after dropping her child off at school. She has since become a symbol for whistleblower martyrdom in South Africa.
Insights gained
What do these cases tell us about the state of whistleblowing in South Africa, and by extension capitalist Africa? First and foremost, there is an obvious power imbalance between those that perpetrate the wrongdoing and those that attempt to remedy it. Despite blowing the whistle in an effort to serve the public good, whistleblowers remain at the mercy of those they reported on – individuals who possess social and economic capital, and thus possessing the capacity to exert their will over the whistleblowers. In some cases, the wrongdoing is remedied but the criminals tend to remain at large.
In examining the problem specific to the South African context, it is evident that the whistleblowers’ predicament also resides in legislation not having adequate provisions in place, provisions with the capacity to police the powerholders. In the absence of adequate legislative provisions, a different political economy is needed to reform the law as the current system makes effective law reform unlikely.
There has, however, been some movement on this front in South Africa. The Department of Justice and Correctional Services recently called for recommendations for the review of whistleblower protection legislation, which signals intent from at least one department of the South African government. Civil society organisations concerned with supporting whistleblowers continue, through a coordinated effort, to plea for the revision of legislation. Yet, several political forces need to align for effective and speedy reform to occur, comprising multiple units of the state (inclusive of independent state institutions), along with social movements. Since blowing the whistle serves the public good, it is undeniable that private interests will also need to signal for whistleblower protection reform.
Where does this leave us?
In conclusion, as all legislative reform is a lengthy process, whistleblowers will continue to be inadequately protected by legislation in the interim. They will continue to rely on civil society to offer them support with practical measures such as advocacy, physical protection, legal aid, financial aid, and guidance. This quandary is arguably more than just an issue of legislation. It is a structural problem, one where absolute power corrupts absolutely. A major problem for redress of structure also presents itself – it is, as David Whyte and Jörg Wiegratz argue, “capitalist states are accomplices to criminal and fraudulent capital”. Thus, initiatives to address issues of corruption, such as strengthening whistleblower protection laws (in this case), need to act in opposition to neoliberal political economy of which South African is a prime example.
This can be achieved through consolidating “cultural and political-economic resistance” to neoliberalism, though this will inevitably be met with confrontation. Such confrontation would emerge from corporations that would cite legal privileges, ones that are designed by law and politics to specifically allow corporate criminals to act with impunity. Yet, even with capitalism’s moral economy, which encompasses a broad scale of social practices, being corrupt and socially destructive, pro-social morals manage to exist in this environment. The actions of whistleblowers, speaking truth to power, in capitalist South Africa, Africa, and the West, are powerful examples of how a different morality can triumph.
Ugljesa Radulovic is a Senior Postdoctoral Research Fellow in the Department of Sociology at the University of Johannesburg, South Africa.
Featured Photograph: Vigil for murdered whistleblower Babita Deokaran in Johannesburg (Fani Mahuntsi/Gallo Imagess via Getty Images).
