Corruption, Whistleblowing and the OGP

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- By Gabriella Razzano

Commonwealth countries joined together in London to discuss corruption and bribery at the “Tackling Corruption Together” meeting in Marlborough House. Discussions have obviously been animated, especially after David Cameron’s problematic statements prior to the meetings on the “fantastically corrupt” Nigeria. However, Nigeria used the opportunity to progress their corruption fight in a dramatic and upstaging way: by committing to joining the Open Government Partnership (OGP).

The OGP is growing steam on the continent, with a successful OGP Africa Summit hosted in South Africa in May.  Yet the London Summit has focused on an aspect of the transparency environment that has not necessarily seen as much attention as we would hope, and that is the promotion and protection of whistleblowers as vital agents in the fight against corruption.

Within the OGP there is whistleblowing sub-committee, but the improvement of whistleblower protections or projects that facilitate whistleblowing have been thin on the ground in the commitments actually made by governments (Ireland, the United Kingdom and Liberia do show some examples).  Part of this links to the need to get the private sector invested in OGP-type transparency, but it also links to the broader malaise in protection of whistleblowers by governments and private bodies.

In fact, at a previous OGP Summit the reality of the weaknesses of the whistleblowing environment in South Africa was reiterated by a speaker talking about the United Kingdom:

"The law that we have in the UK is employment protection and it can only get you so far. It only steps in when damage has already been done to the whistleblower."

The legal and political environments we find ourselves in neither encourage whistleblowing, nor protect whistleblowers once they disclose. Yet, what active steps can be taken on the back of the London Summit that might go some way to creating a better environment, and does the OGP have a role to play?

The truth is the law can create positive obligations for enforcement. When ODAC reviewed the OECDA Anti-Bribery Convention, we saw that one of the strongest elements of the mechanism is its focus on creating an enabling environment for development. And this institution does impact on the practice of private companies, with BHP Billiton noting at the Summit that they focus their business relationships with OECDA countries. OGP countries too have the freedom to develop commitments that focus on environmental change – such as whistleblowing protection. And they need to be actively encouraged to do so.

ODAC are developing a Code of Good Practice on whistleblowing that hopes to go some way to facilitating whistleblowing on a national scale in South Africa. The private sector can then encourage whistleblowing for the benefit of their entire organisation through implementing internal systems and proactively acting on disclosures. And while we believe this will be a game changer to a degree, there remains a broader need to bring whistleblowing to the fore of the transparency conversation both within the OGP, and the other mechanisms that hope to promote good governance.

Alide Dasnois - the importance of speaking out

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Did the dismissal of Alide Dasnois as editor of the Cape Times have a chilling effect across the newsrooms of the country? Journalists have said that it did.

That is one reason ODAC supported the Alide Dasnois case against Independent Newspapers. But perhaps more importantly for ODAC, the dismissal showcased what can happen when an employee and employer disagree about what the rights are of an employee to speak out, or even cause reputational damage to a business, or state institution.

Raising concerns in a workplace is not easy, and in many instances the instinct of the employer is to silence the one who is talking about the concerns they have, or making a public disclosure. In this instance the dispute was between and editor and media owner, pulling issues around editorial independence and media freedom into the debate. We feel that Dasnois, and media workers walk away from this case heartened by the concession by Independent on her editorial discretion, and withdrawal of accusations of racism.

However, after informing a court that Independent Newspapers agreed to end the dispute with Dasnois, they immediately recanted with a view to painting a picture of themselves as being vigorously opposed to any settlement and then being “vindicated” in court - when no such thing had happened.

The Code for members of the Press Council provides that allowing commercial, political, personal or other non-professional considerations to influence or slant reporting constitutes serious misconduct on the part of a news group and Alide Dasnois will be lodging a complaint with the Press Ombudsman. Read the full legal statement here.

ODAC will continue to raise concerns and awareness about the need to protect workers in the workplace from harassment and victimization when they speak out.

South Africa’s history of secrecy

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South Africa continues, despite itself, to cling to secrecy and the silencing of voices in situations where openness and transparency are required by our constitutional and legal framework. A history of secrecy in exile and secrecy inside apartheid South Africa have left a deep commitment to secrecy in the DNA of our country’s government, the ruling party, and business, as well as a commitment to the gathering of a loyal cadre of unquestioning followers as a necessary condition for survival.

This tendency towards secrecy has been recognized, and an elaborate framework has been put in place intended to counter it, including transparency rights and laws, and independent mechanisms such as the Public Protector, the Auditor General, the SAHRC, and, ultimately, the courts. These laws include the Protected Disclosures Act, and its forthcoming amendment, the Companies Act, and the Public Finance Management Act (PFMA).

In many cases, reporting of corruption or maladministration is followed by harassment and even assault.  In our publication Heroes Under Fire, we outline the experience of a number of whistleblowers, and document their harassment, and even assassination. We know from our research that there is increasing distrust of the ability of the law to protect whistleblowers and a declining number of people who self-identify as whistleblowers. There is also a recognition from auditors that the number of people reporting corruption in the workplace is going down. The attacks on high profile people are especially important which is why ODAC has chosen to support Alide Dasnois in her ground-breaking case against Independent Media. 

Read about Alide Dasnois' landmark victory here.

ODAC’s Support in the Case of Alide Dasnois

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ODAC seeks to provide litigation support to the high profile cases of those who have spoken out within the context of the rights and legislation that protect individuals who speak truth to power. We have provided litigation support in a number of cases; most recently in 2014 and 2015 in the case of C373/2014 Motingoe v MEC and HOD Department Infrastructure and Public Works Northern Cape, where we supported Mr Motingoe in the Labour Court, Supreme Court of Appeal and Constitutional Court. Following a long court battle Motingoe is now back at work after the Department refused to reinstate him.

At ODAC, our intention is to both support litigation and create awareness around the need to protect those who speak out, which is why we have chosen to support and drive awareness of the Alide Dasnois vs Independent Newspapers court case that is due to begin on 9 May.

Dasnois vs Independent Newspapers

Alide Dasnois was removed from her position as editor of the Cape Times by the chief executive of the Independent Newspapers, Iqbal Surve, on 6 December 2013 at a meeting at a hotel in Claremont.

In a later disciplinary hearing, Independent Newpapers found she was guilty of "dereliction of duty and/or a gross lack of judgement" in failing to "lead editorially" with the death of Nelson Mandela in the second edition of the Cape Times on 6 December 2013. However, the Cape Times second edition did indeed lead with the death of Madiba. The newspaper produced a special four-page edition with a new front page, two pages of news and a leader, a timeline and tributes. The Cape Times had more news about the event on that day than most other newspapers including reactions and tributes from outside his house, from Ahmed Kathrada, Jacob Zuma, Frans Baleni, Helen Zille, Patricia de Lille, FW de Klerk, Thabo Mbeki, Barack Obama and a prayer from Desmond Tutu.

This treatment of the news of Mandela’s death followed a time-honoured way of marking a special historic event.

Dasnois, with the support of ODAC, is taking the matter to court, where she will argue that the real reason she was fired was to punish her for publishing material about one of the Sekunjalo companies.

Testing the right of editors

In a landmark case in the Cape Labour Court on 9 May 2016, former Cape Times editor Alide Dasnois will test the right of editors to publish material which the publisher deems unacceptable to their private or business interests. In the context of growing concern about media ownership being used to drive corporate agendas, the case will also question whether the level of editorial independence in our media is being compromised.

The court case

Dasnois will argue in court that she was in fact fired to punish her for publishing material about one of the Sekunjalo companies.  The first edition of the newspaper (printed before Madiba's death) led with a story about a long-awaited report by the Public Protector finding that one of the Sekunjalo companies, Sekunjalo Marine Services Consortium, had been improperly awarded a tender by the Department of Agriculture Forestry and Fishing.  For the second edition, this story was folded inside the new Mandela special edition.

The Cape Times also printed an op-ed by Iqbal Surve, followed on Friday 6 December by the newspaper’s own editorial reassuring readers that this did not signal a new trend and reaffirming the newspaper's commitment to accurate and balanced reporting. Dasnois was removed from her position the same day.

On 7 December, a letter was sent to Dasnois by Sekunjalo's lawyers, Edward Nathan Sonnenberg, complaining about the Cape Times coverage of the Sekunjalo contract, demanding a front page apology (the writers were clearly not aware that by then Dasnois had already been removed from her position) and threatening to sue her, the reporter on the story, and the Cape Times if they did not comply.

Punishment for being a whistleblower: Dasnois argument

During the court case against Independent Newspapers, Dasnois will argue that Surve's concerns about the Cape Times coverage of Sekunjalo were the real reason for her sudden removal as editor in the middle of the coverage of Madiba's death.

She will argue that the other reasons advanced by Surve in letters to Independent staff and in the disciplinary hearing, including her failure to position the newspaper correctly, or the falling circulation of the Cape Times, are an attempt to mask the real reason for her dismissal. It is a matter of fact that the circulation of all Independent's newspapers (with one exception) had been falling, and that of the Cape Times much slower than many others.

Right to freedom of expression

Dasnois will argue that Independent Newspapers intended to punish her for publishing material adverse to the interests of its owners and so was in breach of her right to freedom of expression; that her dismissal as editor was an unfair labour practice under the Labour Relations Act; and that it was in breach of her contract. The case will test the rights of editors to publish information about their publishers which run contrary to their corporate interests.

 

Read about South Africa's history of secrecy here.

Read about Alide Dasnois' landmark victory here.

 

What Change Means: the OGP in Africa

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- By Gabriella Razzano

Wednesday 4 May 2016, marked the first day of the Open Government Partnership (OGP) Summit - kicked off with an afternoon Civil Society Meeting. The opening day has brought to the fore probably one of the most pertinent questions underlying the value of the OGP, but also of the open government and transparency agenda broadly: what is real change?

Sanjay Pradhan has just taken over as the CEO of the OGP. He kicked off his tenure with a great speech to the civil society organisations present, highlighting that the OGP is at a critical point of its development. After five years of being in place, OGP should no longer measure its success by the “number” of countries that join. In the next five years, OGP is going to have to start measuring its worth in terms of the difference it makes to people’s lives.

This can be contextualised through a very practical idea – National Action Plans (NAPs) need to not only be ambitious, but they need to be implemented. Commitments need to not just be about proactive release of information, they need to be about closing the “feedback loop” so that civil society can actually hold government to account. We have to move to an era of substance over form.

This is a very real conversation in the transparency world. Yu & Robinsons spoke eloquently of how “open government data” is often a problematic term, poorly used. In fact, open government should not be conflated with open government data. Open government is more than just being open about information; it is also about being open about information that forwards accountability. Sometimes, when a government is merely being open with data, this data is not necessarily enough to hold the state to account.

This is an important conversation to have, particularly on the African continent. As Pradhan noted, the African continent on average has the highest percentage of ambitious commitments, yet, worryingly, the lowest percentage of full implementation.

What does this mean for OGP? ODAC have just completed an examination on the feasibility of the OGP in Malawi (available here), as Malawi just submitted its first National Action Plan in April 2016, after joining in 2013. Our research discussed many of the problems that might exist in trying to implement the OGP in Malawi, but a finer point that emerged was this: if OGP is to do what it hopes to do, and that is create real open government, it needs to do so in a variety of contexts. And in Malawi, there is an opportunity for real change if OGP can extend its hand in peer learning, instead of being overly focused on how the commitments might be technically framed.

Real change will be defined by the contexts in which OGP takes shape. It will be different things for different countries, but the first step to getting there will be for civil society and government to keep their eye on the prize: substance over form.