FAIR PAYMENT FOR WHISTLE-BLOWERS
If SA wants people to take on immense personal risk to unmask corruption, it needs to ensure they are adequately compensated
It’s time to give serious consideration to paying whistle-blowers. It’s the least we can do, given the perils they go through. I’ve been pondering this idea since I attended an anticorruption round-table, hosted by New York mayor Michael Bloomberg, when I was still public protector.
In the US, whistle-blower compensation is the cornerstone of a blossoming industry.
My commitment to lobby for a law that compensates whistleblowers was renewed during a recent chat with top Boston lawyer Jack Cinquegrana, during a reunion for the 2017 Harvard Advanced Leadership Initiative.
“You don’t pay whistle-blowers?” Cinquegrana asked, clearly flabbergasted. He is a hard-nosed investigative lawyer who is as passionate about investigating corruption as he is about extending access to justice to marginalised communities, particularly migrants.
“In my state this is a huge industry wherein lawyers like myself make money,” he said.
He explained that, in the state of Massachusetts, the law provides that 25% of recovered stolen state funds — stolen, for example, through false billing or overpayment for procured goods and services — be awarded to whistle-blowers.
I mentioned the lonely journey of whistle-blowers in SA, as laid bare at the state capture commission
hearings. I opined that, in SA, whistle-blowers do it for the love of their country and/or a commitment to the truth. There may be one or two who seek revenge, but most do it out of a sense of duty: they simply can’t look the other way in the face of the plunder of public funds meant for social transformation.
I mentioned Ms M, the whistleblower who stuck her neck out and came all the way from Egypt to meet with my team and tell us about what she believed was state capture in the relationship between consulting company Trillian, Eskom and the Guptas.
Thereafter, she was on her own: Trillian sued her for giving me information that showed the company’s executives had anticipated — and positioned themselves for — a change of guard at National Treasury. This was at the time Nhlanhla Nene was fired as finance minister and replaced by Des van Rooyen.
For years thereafter, Ms M was hounded by the Hawks. This, despite so many people professing a commitment to fighting corruption, including corruption that amounted to state capture and the subversion of law enforcement when accountability was exacted. Ms M nearly lost her home. She has only recently found employment.
What her story shows is that the Protected Disclosures Act is hopelessly inadequate.
If this had been Massachusetts, Ms M would have worked with a law firm like Cinquegrana’s Choate Hall & Stewart LLP to dig further into the suspected crime.
The firm would have taken the matter on a contingency basis, meaning Ms M would not have had to pay a cent for legal services — the firm would take the risk, not the whistle-blower.
As public protector, I would not have been approached by a “David” Ms M blowing the whistle on a “Goliath” accused of corruption. Instead, she would have approached a law firm. Whatever she said would have been legal-proofed by its team.
What’s in it for a law firm? It gets a cut of the 25% payout if there’s a successful prosecution and recovery of state funds.
A new way of doing things
You must surely agree that state funds have a much better chance of being recovered in a system such as this.
First, the investigations are swift, as the money trail is followed before it gets cold. Second, funds are recovered before they are taken offshore or parcelled out to third parties under agreements that ensure recoverability by the original looters. Third, the investigations are conducted by trained, hard-nosed investigators. Fourth, multiple investigations can happen concurrently at no cost to the state, so you don’t need dozens of costly commissions of inquiry.
Importantly, witnesses are not thrown into the lion’s den: the system levels the playing field between alleged wrongdoers and whistleblowers. That’s socially just.
As we commence the next 25year stretch of our democracy, we can’t keep doing things that don’t yield the results we want.
It is my considered view that SA should pass a law that creates a similar recovery industry for looted state funds.
In the US, whistleblower compensation is the cornerstone of a blossoming industry