PRESENTATION TO THE PORTFOLIO COMMITTEE ON PUBLIC SERVICE AND ADMINISTRATION REPORT ON THE ESTABLISHMENT OF A WHISTLEBLOWING INFRASTRUCTURE FOR THE PUBLIC SERVICE 13th AUGUST 2003
NATIONAL ANTI-CORRUPTION SUMMIT 1999 • This summit recognized, inter alia, a resolution encouraging the implementation of a whistleblowing mechanism which would include measures to protect persons who expose and report corrupt and unethical practices.
PROTECTED DISCLOSURES ACT • Accordingly, Legislation in the Form of the Protected Disclosures Act was subsequently passed by Parliament in February 2000. • The Act protects employees against “occupational detriment” • Encourages honesty among employees • Encourages reporting misdemeanors without fear
THE WHISTLEBLOWING PROGRAMME • In view of the discussion above as well as the general interest in and value of whistleblowing in the fight against corruption, the PSC developed a promotion programme with the assistance of the Open Democracy Centre (ODAC). • The 1st step was to hold eight one-day consultative workshops with employees in the public service. ( Gauteng Province intends to hold their workshop in the near future).
METHODOLOGY The workshops comprised two sections: • Training of delegates in understanding the Protected Disclosures Act • Delegates making recommendations on how best to implement the Act.
TRAINING • Highly interactive “learning sessions”. • Looking at the “20 most frequently-asked questions” about the Act. • Answering questions took place in small groups with report-backs to plenary and further discussion.
KEY FINDINGS • Corruption is rife in the Public Service • Employees are aware of this • Examples were readily available to support this assumption • A distinction was made between identifying corruption and reporting it
Fear of reprisal was the main reason for not reporting • Employees unanimous on the need to have a mechanism of reporting, with confidentiality and protection
RECOMMENDATIONS The costs incurred by white collar crime have ranged from the loss of jobs and livelihoods, to the loss of millions of Rands in compensation, fines and insurance, the loss of public and investor confidence, the loss of lives and increased regulations.
Establishing good corporate governance practices can be achieved though the setting up of whistleblowing mechanisms and structures supported by a whistleblowing policy as envisaged and encouraged by the law itself.
The recent King report on Corporate Governance has recommended compliance with and the establishment of easily accessible and safe reporting, such as whistleblowing channels. The report speaks strongly of the need to change organisational cultures to comply with good corporate governance.
The Protected Disclosures Act provides for a safe legal environment, but this has to be matched by a safe working place environment in terms of the attitude adopted by the employer.
It is in this regard therefore that the Public Service Commission saw fit to embark on a countrywide project to train officials on the whistleblower law and to consult them on the establishment of ‘best practice’ whistleblowing mechanisms to combat corruption in the public service.
Employees are aware of fraud and corruption taking place in the public service, but they also need to know where and how to “blow the whistle”, and to feel confident that they would be taken seriously, treated in confidence and protected.
THE KEY RECOMMENDATIONS THAT CAME OUT OF THE WORKSHOPS WERE: • The need for the implementation of a whistleblowing mechanism in the public service. • The need to define what constitutes fraud, corruption and malpractice in the public service. • The need for a policy and procedure on whistleblowing in the public service.
That there be demonstrable political will and buy-in of the Politicians and the Senior Managers in the Provinces. • That they are committed to the elimination of corruption in the public service. • That they should be seen to be “driving and championing” whistleblowing as a tool for improved and better corporate governance.
That managing the whistleblowing process be included in all manager’s performance contracts and measured in terms of their Key Performance Areas. • That a whistleblowing infrastructure be budgeted for so as to ensure an effective whistleblowing mechanism. The provision of such a budget would be a good indicator of political will of the respective provinces in ensuring good corporate governance.
That potential whistleblowers should be assured of the confidentiality of the process, in the policy, through awareness campaigns and demonstrable support by Political Leaders and Senior Managers. • That the confidentiality of the whistleblower be maintained at all times.
That the whistleblower be assured of protection including what the Act defines as “occupational detriment”. • Departments are encouraged to look at measures that they could put in place that go beyond the protection provided for in the Act. e.g support and counselling. • The need for promotion and awareness of the Act and the Whistleblowing Policy
The need for training and awareness of employers and employees in the public service around the Protected Disclosures Act. • The need for participative development of a whistleblowing policy and procedure for the public service
The need for training and awareness of employers and employees in the public service on a Whistleblowing Policy. • The need for the establishment of whistleblowing hotlines in the various departments.
THE CODE OF CONDUCT • The Code of Conduct for Public Service employees states that: “An employee in the course of his or her official duties, shall report to the appropriate authorities, fraud, corruption, nepotism, maladministration and any other act which constitutes an offence, or which is prejudicial to the public interest” (Section 4.4.10).
This duty includes employees not involved in corrupt practices, but who are aware of colleagues who are. If the employee keeps quiet and does not report the malpractice, he or she is evading collective responsibility for the integrity of the public service. In such a case, he or she becomes an accessory to corruption”. (Example 3 page 48, Explanatory Manual on the Code of Conduct.
DEFICIENCIES OF THE ACT The Act has its deficiencies. There are two main areas: • The first is that it only offers protection to employees and it excludes members of the public, including contractors, pensioners and temporary/casual workers.
The second is that where an employee has been dismissed and has qualified for protection in terms of the Act, the compensation is limited to 24 months salary. • This is a small amount when considering the ‘other costs’ to the whistleblower such as protracted and expensive legal proceedings, negative perceptions of the whistleblower by the community and potential employers, not to mention the cost to personal and family life.
It is our understanding that the Law Commission is giving attention to the deficiencies.
WAY AHEAD • It is suggested that the Director-General in each of the provinces take responsibility for ensuring that a Whistleblowing Policy for the province is formulated and implemented. • That a whistleblowing infrastructure be budgeted for so as to ensure an effective whistleblowing mechanism.
Employee consultation and participation in the development of the Whistleblowing Policy be initiated. • The Draft Whistleblowing Policy in the Public Service Commission report be adopted, and adapted where necessary, for this purpose.
The implementation of the policy should be marketed through publicity and awareness campaigns, including posters and brochures, and the Political Heads and Senior Managers should be seen to be fully championing and endorsing the Policy. • Training on the Whistleblowing Policy and the Protected Disclosures Act should take place in all provinces, with all managers and with all staff. Contractors could also be invited to the training sessions.
Every employee should be given a copy of the Provincial Whistleblowing Policy. • Provincial Whistleblowing Policies should be made available in the official languages of the respective provinces. • Training on the Whistleblowing Policy should be included during the induction of all new employees.
Implementation of the Whistleblowing Policy should be included in the Key Performance measurables of every senior manager in the public service so that they constantly make employees aware of the Policy.