Today’s guest post is from Lemarque Campbell, a Policy and Legislative Development Specialist for the International Development Law Organization (IDLO), and Vlora Marmullakaj, a Senior Project Officer for the Project Against Economic Crime implemented by the Council of Europe. The views and analysis expressed in this post are those of the authors and are not attributable to the IDLO or the Council of Europe.
Encouraging whistleblowing is one of the most important tools for detecting and deterring wrongdoing in public sector organizations. Especially in small developing countries that lack strong institutions, insiders may be the best or only source of accurate and reliable information about malfeasance. Moreover, whistleblowers not only help expose corruption, but they also play a significant role in providing information that could lead to the recovery of assets derived from corrupt practices. And in this time of global pandemic, when opportunities for corruption abound and the normal oversight and accountability processes are weakened, whistleblowers are even more crucial—a fact emphasized by, among others, GRECO and Transparency International.
Unfortunately, many developing countries lack an adequate system for encouraging and protecting whistleblowers. Even those countries that have substantially overhauled their whistleblower laws continue to face significant problems of implementation. Considering the recent experience of the Bahamas and Kosovo—two very different small developing countries that have recently overhauled their whistleblower laws—helps illustrate some of the obstacles to achieving effective reforms.
The Bahamas enacted its first whistleblower protection law in March 2018, in accordance with its obligation as a signatory to the Inter-American Convention against Corruption (IACAC). The new law prohibits retaliation against those who report in good faith information that would disclose wrongdoing, including corruption and maladministration. However, this legal prohibition on retaliation against whistleblowers was not accompanied by the creation of any new reporting channels; prospective whistleblowers are still expected to report possible corruption and maladministration to the police. This is an unappealing option for many would-be whistleblowers, given that Bahamian citizens perceive the police as the most corrupt public service in the country. In addition to the lack of trustworthy independent reporting channels, the Bahamas’ whistleblower regime suffers from numerous other deficiencies, including a lack of anonymity and confidentiality protections, and an absence of measures to ensure that whistleblower complaints receive adequate follow-up. The problems with the law itself are compounded by the dearth of active and well-resourced civil society organizations advocating for whistleblowers and educating the public about the importance of whistleblower protection.
The Bahamas illustrates how legal reforms that focus only on protecting whistleblowers from retaliation, without providing an adequate legal and institutional framework to encourage reporting and follow-up, are insufficient. But even countries that have adopted much more comprehensive whistleblower laws have faced significant challenges in making those laws effective. Kosovo provides a useful example. Kosovo’s first Law on Protection of Informants, adopted in 2011, suffered from numerous deficiencies (see here and here), but in 2019—thanks to the combined efforts of the international community and domestic civil society groups—Kosovo enacted a new Law on Protection of Whistleblowers that has received a much more positive reaction, both locally and internationally. Yet despite the law’s many admirable features, the implementation of the law in practice leaves much to be desired. There have been only a handful of whistleblower reports so far, despite Kosovo’s widespread corruption. In Kosovo, the problem appears to be more cultural (and organizational) than legal. The traditional stigma surrounding whistleblowers may inhibit people from reporting, and despite the creation of a new legal framework, the level of awareness and experience in handling whistleblowing reports remains inadequate. Kosovo thus serves as a reminder that encouraging effective whistleblowing cannot be accomplished by legislation alone—education, outreach, and efforts to change attitudes and organizational culture are crucial as well.
While the problems with effective implementation of whistleblower systems in the Bahamas and Kosovo differ in many respects, it is important to recognize a more fundamental challenge to encouraging whistleblowing systems in these countries—and in many other small developing countries. Both the Bahamas and Kosovo are small countries with very close-knit communities, with political systems substantially based on patronage networks and familial ties. The lack of economic opportunities for most people means that seeking political patronage through a party machine may seem like the only way to ensure economic security or advancement. Systems like this—characterized by extensive patronage networks fortified by strong social and familial ties among the governing elite—are especially inhospitable to whistleblowers. In these contexts, it is much harder to protect the identity of whistleblowers and to shield them and their families from reprisals.
In such communities, ensuring that whistleblowers are confident that their anonymity will be guaranteed—something that’s important in all contexts—is of paramount concern, and especially difficult to achieve. One way to help whistleblowers feel safe is to establish reporting channels that connect whistleblowers with accredited external organizations based in foreign jurisdictions. These external organizations could collect and process the information provided by whistleblowers and forward the anonymous information to trained civil society organizations based in the countries where the alleged wrongdoing took place. The civil society organizations could then provide the information to the authorities and ensure that there is adequate follow-up.
One initiative that comes to mind is Crime Stoppers International, a non-profit umbrella organization that provides platforms and channels for citizens to anonymously share information about crimes of concern and criminal activity. Through this organization, witnesses can anonymously report crimes to a Crime Stoppers affiliate outside of the witness’ jurisdiction. The external affiliate then works along with the national contact to ensure that the criminal activity is reported to the local law enforcement agency and that adequate follow-up is made. Countries like the Bahamas and Kosovo ought to consider strengthening their whistleblower regimes by promoting and officially sponsoring a similar model.
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I wonder to what extent these external organizations may in-and-of-themselves prompt some sort of blowback to whistleblowing. These organizations are often based in wealthy, developed nations, and there may be resentment from less developed nations regarding reporting to these organizations. In effect, this reporting could be seen as circumventing domestic channels and instead favoring channels in rich, Western nations. It’s not inconceivable to think that developed countries might find these organizations as simply another attempt by developed nations to encroach on domestic autonomy, and thus might not respond to kindly to whistleblower reports.
I also share Michael’s concern in general, but I think depending on who the whistleblower is, he or she might not really be concerned about the organization being funded by a developed or Western country. However, I have another concern. As you mentioned, in developing countries the markets are quite closed and elites generally manage them. In that sense, even with the assurance of anonymity and even if in practice there is anonymity of whistleblowers, I fear the community where the corruption act occurred will still be able to know who “betray” them and retaliation will occur anyways.