Today’s guest post is from Nedim Hogic, a PhD candidate at the Sant’Anna School of Advanced Studies in Pisa, Italy, and Arolda Elbasani, Visiting Scholar at New York University. The research on which this post is based was sponsored by Kosovo Open Society Foundation.
In Kosovo, as in the rest of the Balkans region more generally, anticorruption initiatives and institutional solutions have typically been top-down efforts based on templates recommended by international actors and hastily approved by a circle of local political allies. Few of those international initiatives have proved successful, often because the new laws provided enough discretion for political interests to thwart effective implementation. Hence, Kosovo, like much of the rest of the Balkans, seems trapped in a continuous yet futile cycle of international-sponsored institutional- and capacity-building measures, which have not delivered.
The 2018 amendments to Kosovo’s law on the protection of whistleblowers suggests a more promising model of legislative drafting. The amended law stands out for its collaborative and open mode of drafting, involving various international, governmental, and civil society actors, a welcome contrast to the more prevalent pattern of top-down, and largely futile, approach to legal and institutional reform.
Kosovo’s previous whistleblower law, the 2011 “Law on Informants,” was a commendable initial attempt to encourage and protect those who risk their careers, their livelihoods, and sometimes their safety in order to report wrongdoing by powerful people or institutions. High-profile cases of retaliation against whistleblowers in Kosovo, particularly individuals reporting abuses of international structures, prompted policymakers to do something about it, though the issue was not really on the international agenda.
Yet good intentions don’t always translate into legislative effectiveness. The 2011 law, which was approved without much political or public discussion and preparation, had a number of serious flaws. For a start, the law’s use of the word “informant” was a misstep, as the term carries the negative connotation of “snitch.” More importantly, the law failed to designate an institution responsible for processing complaints, providing only that a public institution “may” designate an official in charge of receiving the complaints. When the institution doesn’t do so, the manager of the institution is in charge of receiving complaints, which means that complaints must often be filed with the very person against whom those complaints are directed. The 2011 bill also failed to provide adequate protections for whistleblowers, such as sanctions against possible retaliation. It is therefore unsurprising that, from the time the law was enacted in 2011 to the time it was amended in 2018, there was not a single case in which the government took any action with regard to whistelblower reports.
That is not because there were no whistleblowers. To the contrary, Kosovo’s population has ranked first in a regional poll measuring willingness to report whistleblowing. At different times, numerous individuals have publicly spoken about abuses of public office and misuses of public funds, and have often suffered as a result. For example, Abdullah Thaci, who reported alleged misuse of funds in a public school, was sentenced to prison and fined 5000 euro for violating bank secrecy laws. In another case, Bujar Ejupi was fired from his position for reporting breaches of a public-private contract concerning the Prishtina airport, an affair that allegedly cost the state 14.5 million dollars.
The problems with the law were only fixed due to a combination of pressure from local activists and international support for their initiatives. From the beginning, the NGO sector and media took on a leading role in exposing the weakness of 2011 legislation and lobbying for changes. They also highlighted the courage of whistleblowers, told their stories, and criticized the government for failing to uphold its legal obligations. Related activities focused on attending relevant sessions of parliamentary committees, reporting on the issue and lobbying the MPs to advocate necessary amendments. The fact that local NGOs were the ones pushing for changes to the legislation is in itself exceptional, given that Western Balkans states have rarely taken any anticorruption initiatives without external pressure.
Yet, despite the fact that the push for these amendments was spearheaded by local rather than international actors, international attention and support still played a key role. Indeed, despite the dogged efforts by domestic NGOs, revisions to the whistleblower law didn’t enter the political agenda until the international actors lent their support to the NGO campaigns. International pressure mounted when the 2016 EU annual country report on Kosovo discussed the problems regarding the 2011 Law on Informants—the first time the annual report had mentioned this issue since the law was adopted. At the same time, the issue gained traction at the European level, a development influenced in part by the eruption of whistleblower-triggered scandals like Lux Leaks and the Panama Papers.
The Council of Europe also recognized and supported local NGOs activity. The Council hired Flutura Kusari, a domestic expert with international credentials, to write the reports on the needed changes to the legislative framework on whisteblower protection. Using this report as evidence, the Council, together with domestic civil society organizations, succeeded in getting the Ministry of Justice on board in 2017. Thanks to collaboration of different actors—including representatives of the judiciary, the Ombudsman, the media, and civil society organizations—the results came few months later, in 2018.
The open, consultative, and NGO-led process did indeed lead to substantial improvements to the law. For example, the revised 2018 whistleblower law, which was based in part on Serbian and Irish models, specifies that every public institution with more than 30 employees, and every private institution with more than 80 employees, must designate a specific person in charge of receiving reports, and that the procedure for investigating a complaint must begin immediately upon receipt and be closed within 45 days. If internal reporting channels fail, the new law authorizes the whistleblower to freely distribute information in the media, and also entitles the reporting individuals to sue the state or a private entity for damages they might have incurred in the process of disseminating the information. The new law prohibits retaliation against whistleblowers, lowers the standard of proof in retaliation cases, and provides for compensatory damages. The 2018 law also provides for centralized management of the implementation process by assigning responsibility for the law’s implementation to Kosovo’s anticorruption agency.
In addition to these specific improvements, the open and collaborative process of legislative reform—in which local NGOs assumed a pivotal role by analyzing the deficiencies of the previous law, suggesting revisions, and lobbying the legislature—also means that civil society, the media, and indeed the general public claim “ownership” of the law—it’s not just the product of the Ministry of Justice and foreign advisors. That sense of ownership, in addition to the law’s specific provisions, augurs well for the effective implementation of the law as well as the local safeguards needed in the process.
GAB | The Global Anticorruption Blog 
Thank you for an interesting read. It is interesting to see how important the use of terms in laws is across the world. When drafting the model law on whistleblowing in Lithuania (which is an older democracy than Kosovo, but not old – independence was restored only in 1991), the experts came up with a new term to define a whistleblower, using a direct translation from English – “pranesejas”. The word itself has existed before, but with a meaning that has never been used in the context of reporting potential crimes (at least not on a large scale). It took a couple of years to catch on, but now the term is used freely and the new Whistleblowers’ Protection Law has just been adopted in the Parliament (finally!). Just like in the case you describe here, it became apparent that using the correct phrasing matters. Lithuania, too, had a negative connotation of many terms related to reporting crimes, so offering the society a neutral term very likely helped to move the push for legal reforms further. However, part of the challenge was to also ensure that the portrayal of whistleblowers in the society is positive. That is why I am a big believer that such laws must be followed by advocacy and information campaigns, ensuring that whistleblowers are perceived as brave and civic people. Otherwise, even the most perfect laws will fail to encourage reporting.
Thanks for this interesting input Ruta. Interestingly, the Hebrew equivalent term of “whistleblowers” in Israel is quite neutral – “חושפי שחיתות”, which literally means “people who expose corruption.” This term is used by both anticorruption NGOs, state agencies, and the general public, and I am not aware of any other equivalent term.
The title is bit misleading – it should read whistleblower protection legislation rather than whistleblower protection. Has a chance to discuss this with Kosovo Police Inspectorate last month when I was training them. The short version was it will be very difficult to implement this given the population and size of Kosovo. Same with neighboring Northern Macedonia – how do you protect whistleblowers when due to the population size everyone knows everyone and what everyone else is doing? Plus the strong family structure gives other points fro retaliation. Given the still weak court system despite decades and billions in international assistance – still a long way to go to acting enforcing it.
Thank you for clarifying that this piece is about the adoption of the law and this is only the starting point. We don’t know whether this specific law, even if improved, will be implemented. Implementation is the critical stage when all kinds of transition problems -weak institutions, politicians who refuse to be ruled by law, clientelistic society etc -enter the equation. But, this is still a kind of straightforward case to sort out -we can trace who doesn’t implement the law, why and at some point those institutions and structures can be hold into account.
Yet, this piece raises a different angle of the problem, which we had little space to elaborate in detail. That is the role of the international community in devising poor laws, which created more problems that they solved, and none can be hold responsible for this. During my research on the Balkans, I have seen all over again how legal/institutional initiatives promoted by a myriad of self-interested international organizations, projects and experts and often positively praised by them actually created the legal space for the ruling elite to evade the law.
Cases like Kosovo which have been target of huge international efforts to fight corruption, were left with poorly devised non-functioning but internationally legitimized legislation. Not only did those laws facilitate and provide a cover up for ongoing corruption. Those countries needed to spend a few more millions, time and energy to uncover the problems and undo those laws. Even more, no structure or individual can be hold responsible for spending millions to devise a poorly-functioning law. And that issue doesn’t feature it in the literature on corruption yet.
Thank you both Nedim and Arolda for this really fascinating – and even cheerful – post. There have been a number of posts related to Kosovo published on the Global Anticorruption Blog, and I am glad that you shared later developments with us.
I found particularly interesting your analysis regarding the influence of public perception of whistleblowers on the effectiveness of the 2011 “Law on Informants,” and the way the media – in response – helped highlight the positive role of whistleblowers and consequently helped bring about important legislative reform. To the extent that the facts are known to you, I was wondering whether there was any explicit cooperation between media outlets and NGOs who supported the same goals (for example, by NGO-sponsored ads or by initiating joint projects or joint campaigns), or whether these two sectors worked mostly independently.
Thanks again for this interesting post.
Thanks for this. It’s great to read a piece about a potential anticorruption victory, and to hear about the recipe that made that victory possible. In general, it does seem like local leadership and engagement coupled with international support is an effective way to create change and overcome political opposition. However, I’m wondering how well you think the Kosovo experience will translate to other contexts and how replicable Kosovo’s path to reform will be in other countries. I have to admit I know very little about Kosovo or the Balkans more generally, so I’d be curious for a little more context on, say, how much space there is for civil society in Kosovo (in comparison with other countries in the region or around the world) and how important Kosovo’s relationship with the E.U. was in the passage of the new law. I think that help give us a sense of what lessons can be learned for countries in other parts of the world. Thanks!
Thank you for the comments and raising the issues of lessons learned. Obviously cases are all specific and in this op-ed we checked a specific sector, but there are at least two-three broad issues here that can be generalized as possible lessons.
1. Very often the answer of why a law is not implemented lies in the very process of making the law -how it was negotiated, who was involved, how much was it scrutinized, how much it reflects existing local demand and expertise, and whether there are actors that will follow up on its implementation etc.
2. a related issue, very relevant in the case of Kosovo, was the mode of internal rule promotion and what is wrong with the rule of law promotion industry, particularly the exclusion of local expertise. Frequently, international organizations had x million $ to spend within a specific time and delegated the task to a foreign project manager or director who had little time in the country and often little idea about where he was. within that frame, internationals experts often hurried up to make a law and threw it to the locals to ‘own’ it after the fact, recorded the law as successful project deliverable, evaluated it as institutional progress, and moved on to the next project. they had neither time nor interest in including local knowledge and evaluating the ‘life’ of the law. Once the law would prove a dead letter, they would allocate another X millions to do the same all over again.
3. Much of the explanation boils down to whether a country has usable local expertise. Many of the post-conflict transition countries are short of that, but there was much more local knowledge that the international projects and experts had time and interest to incorporate, at least in the cases I analyzed.