In November of 2021, over 3.5 million documents were leaked from a bank in the Democratic Republic of the Congo (DRC). This so-called “Congo Hold-Up” leak, which included bank statements, emails, contracts, and corporate records, revealed that former Congolese President Joseph Kabila and his inner circle embezzled at least $138 million in public funds between 2013 and 2018. Investigations by media outlets and NGOs exposed a pervasive network of corruption involving the DRC’s Central Bank and national electoral commission, as well as the country’s minerals-for-infrastructure deal with China, a United Nations peacekeeping mission in the Central African Republic, and more. In response, the head of the DRC’s Inspectorate General of Finance (IGF) condemned the bank’s role in facilitating the corruption, and the Congolese Minister of Justice announced the opening of an investigation to address the allegations.
Complex corruption schemes such as the one described above are often revealed by whistleblowers. The DRC in particular has a history of whistleblowers exposing corruption, often at great personal risk (for example, here and here). Yet instead of being publicly recognized for their contributions and afforded government protection, these whistleblowers are forced to conceal their identities to avoid retaliation by those they exposed. Their fears are well-founded: The DRC offers little to no legal protection for whistleblowers, and many Congolese whistleblowers have been forced into hiding or exile due to threats, intimidation, assault, and even death sentences. This must change. It is high time for the DRC to pass comprehensive whistleblower protection legislation, and there may be an unusual window of opportunity to do so now.
Effective whistleblower protection legislation can help expose malfeasance of powerful politicians, government officials, and business elites, making such legislation both important and difficult to pass. Corruption in the Congolese government is pervasive—there are powerful vested interests in stopping the passage, or effective enforcement, of laws that would improve transparency. That said, President Félix Tshisekedi, who took office in 2019, promised an end to the corruption that characterized former President Kabila’s administration and appointed anticorruption crusader Jules Alingete Key to head the IGF. Under Alingete’s leadership, the IGF has significantly broadened the scope of its corruption investigations. To be sure, the government continues to grapple with corruption scandals and has struggled to hold corrupt actors accountable (see, for example, here, here, here, here, and here). Nevertheless, President Tshisekedi’s election, together with the attention generated by the Congo Hold-Up leak, have created unique political momentum for enacting whistleblower protection legislation. Indeed, the Tshisekedi government has indicated a willingness to pass legislation protecting whistleblowers, and a report published at the end of October indicates that the government plans to move forward with such legislation.
The passage of a meaningful whistleblower protection law will be a good start, but enactment of the law alone will not suffice.
The passage of the proposed whistleblower protection legislation represents a critical first step in establishing effective legal protections for whistleblowers in the DRC. Yet, passing this law is not enough: Effective enforcement of whistleblower protection laws may be impeded if corrupt government officials use their political influence to shut down investigations or target whistleblowers who report on them. Furthermore, lack of public trust in the government could deter individuals from blowing the whistle, especially in cases implicating government officials. Nevertheless, passing a whistleblower protection law now—even if that law is inadequate or incomplete—will lay the groundwork for future amendments and government action regarding whistleblower protection. Several countries have amended their whistleblower legislation or reformed their enforcement mechanisms based on issues arising with implementation. South Africa, for example, amended its Protected Disclosures Act in 2017 to expand the Act’s scope and establish immunity from civil and criminal liability for qualifying disclosures. In Ghana, where less than 2000 whistleblower complaints have been received since the Whistleblower Act was passed in 2006, a commission was recently inaugurated to design mechanisms making the disclosure process more accessible to potential whistleblowers. Similarly, the initial passage of whistleblower legislation in the DRC could establish basic mechanisms for whistleblower protection that can be refined and improved upon in the future.
Furthermore, there are several ways to mitigate the potential effects of government corruption on the enforcement of whistleblower protection laws. First, such legislation could structure the disclosure mechanism to protect whistleblowers’ identities, making it more difficult for corrupt government officials to identify and intimidate them. Second, whistleblower legislation could insulate the agency tasked with whistleblower protection from corrupt executive actors by providing for funding and appointment by actors outside the executive branch. For instance, in South Africa, the Zondo Commission has recommended the creation of an independent anticorruption agency tasked with whistleblower protection. Alternatively, different elements of enforcement could be housed in different agencies, providing a safeguard against the effects of corruption in any single agency.
The Tshisekedi administration has declared its commitment to ending corruption in the DRC and has taken several steps in furtherance of this goal. However, government corruption scandals and retaliation against whistleblowers continue to impede the country’s anticorruption efforts. In order to effectively combat corruption, the DRC must enact and enforce legislation that provides adequate legal protections for whistleblowers. While it is likely that the first version of such legislation will fall short, passing such legislation now will lay the foundation for the development of meaningful whistleblower protection in the DRC.