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.