30 November 2021 –
The Fourth Regional Meeting for Latin America and the Caribbean brought together representatives from UNCAC Coalition member organizations to coordinate actions within the region ahead of the upcoming 9th UNCAC Conference of the States Party (CoSP) and to discuss the issue of whistleblower protection, which lacks fundamental regulation in the region. Two pre-edited video interviews with experts on the topic acted as the basis for a lively discussion among participants.
A consultation process for an upcoming written submission from the members of Latin America to the 9th CoSP included several inputs regarding protecting whistleblowers and defending victims of corruption, making whistleblower protection a key issue for States Parties to address in the region and beyond.
After conducting recorded video interviews with experts on whistleblowing advocacy, the Coalition’s Regional Coordinator for Latin America and the Caribbean cut and sub-titled them to allow for an inclusive approach of both the English and Spanish speaking Coalition members from the region.
The first interview shown was with Mark Worth from Whistleblowing International, the European Centre for Whistleblower Rights, and the Centre for Whistleblower Rights and Rewards, and Stephen Kohn from the National Whistleblower Centre, from the United States, and the Centre for Whistleblower Rights and Rewards. Both Stephen and Mark have been working on the subject of whistleblower protection for decades, each advocating for the passage of whistleblower protection laws and defending whistleblowers worldwide from retaliation.
The second interview shown was with Alejandra Scampini and Eduard Martín-Borregón from PODER, a Mexico-based organization with a presence all over Latin America. PODER was a key member of the team that runs Mexico Leaks, a leaking platform for whistleblowers, and has promoted the creation of similar platforms in other countries around the region. Alejandra and Eduard have worked on whistleblower advocacy in the region for years, aiming to connect the issue of whistleblowing to other social movements, including the feminist movement and the fight for human rights.
The interviews provoked a number of conversations about the state of whistleblowing in Latin America. Though it is a relatively new subject in the region, many of the members were able to link their experiences with what the speakers said in their videos. Some key topics were of particular interest for the participants:
Whistleblowing in the Latin American context
In her interview, Alejandra Scampini referred to the current systems for the protection of human rights and environmental activists, journalists as well as protected witnesses as a major barrier for continued regulation of whistleblower protection. Latin America is one of the worst regions in the world in regards to violence towards journalists, environmental advocates and human rights activists. She noted that it is hard to advocate for a State to protect a new legal person, when they are not able to meet with their obligations to protect existing legal persons.
This view was echoed by several members of the Coalition. A representative from Acción Ciudadana from Guatemala talked about the situation in Guatemala, where state capture by corrupt actors has made working with protected witnesses and whistleblowers very difficult. He referred to one of Mark Worth’s comments about a case Mark worked on where the “whole weight of the state came down on one person,” mentioning a case they are currently working on where a person has come forward to report on corruption and embezzlement and has seen his world turned upside-down. A representative from the Bolivian Fundación para el Desarrollo Participativo Comunitario saw parallels in his country where new anti-corruption legislation is paradoxically going after whistleblowers. Members from Paraguay and Argentina empathized with the situation in Guatemala, noting that even in their countries there is a general distrust about the capacity of the State to protect you if you blow the whistle.
Mark Worth noted that Latin America and the Caribbean have yet to pass comprehensive whistleblower laws. He highlighted legal advances in Peru, Jamaica and Chile, but noted that these only tackle part of the risks to whistleblowers. Eduard Martín-Borregón echoed this comment, noting that the region lacks comprehensive whistleblower laws. PODER has recently worked with legislators in Mexico to try to push through a ground-breaking law on whistleblower protection, but is skeptical about its prospects. A representative from Transparencia Mexicana agreed, noting how, despite the utility of repentant witnesses in the Oderbrecht case, the law is constantly under attack and on the verge of being struck down.
Reprisals, “soft” and “hard”
All interviewed experts were asked about how whistleblowers could be protected from reprisals, in particular, those reprisals that do not end in violence or dismissal, but in “death by a thousand cuts” as Stephen Kohn put it in his interview. Mark Worth spoke about “reason shopping”, a common practice where those institutions that are accused of wrongdoing in a complaint, begin to build a case against whistleblowers when they come forward. “In one case, someone came forward; they looked through her company file, and they fired her for not signing a paper in the 1990s.” He notes that while this has been addressed in the EU Directive on Whistleblowing, it is a very common practice.
Analyzing whistleblowing through a gender perspective, Alejandra Scampini made a case that Latin American societies treat men and women whistleblowers differently when they come forward. The portrayal of women whistleblowers in the media as untrustworthy or conniving lowers their chances of protection and puts their complaints in danger of not being followed through on. “When a woman is demonized in the media,” she notes, “you’ve already done more damage than if you fire her.”
A notable intervention from the participants was that of a representative from ACIJ from Argentina, who mentioned a project with a fellow UNCAC Coalition member, Poder Ciudadano, where they launched a platform for soft reprisals on public employees that were forced to campaign for a certain party. He noted that it is a common practice and that these reprisals have been generally normalized by society.
Getting whistleblowers to come forward
All four speakers talked about the need to create conditions within government and civil society to promote whistleblowing. They stressed that whistleblowing should not make someone a martyr or make them suffer because of it: the goal of whistleblower protection is for whistleblowers to be able to present their information in a way that makes a strong case, not suffer reprisals for doing so, and have the ability to walk away anonymously.
Stephen Kohn conceptualized whistleblowing policy as guaranteeing that whistleblowers are protected after they report, but also protected before they report. Eduard Martín-Borregón echoed this, noting that processes, like that of the English model for whistleblowing, must be embraced by governments in order to have a smooth whistleblowing process that guarantees protection before the fact.
Two policies to incentivize whistleblowers to come forward were mentioned: whistleblower reward legislation and collective action movements.
Mark and Stephen talked about the former in great detail. Both experts agree that the empirical evidence from the U.S. and South Korea shows that rewarding whistleblowers with a portion of the sanctions that derive from crimes they blew the whistle on, leads to a surge of whistleblowing. Stephen talked about the extensive history of the U.S. with whistleblower rewards noting that, despite the controversy surrounding these laws, law enforcement agencies find these laws very useful, because it causes not only more whistleblowers to come forward, but for them to do so with more sound evidence.
Alejandra discussed collective action movements as ways to incentivize whistleblowers to come forward. She cited the #MeToo movement as an example of a collective, social movement that was able to topple unethical behavior in entrenched positions of power through reporting and support from civil society and women’s groups. She noted that anti-corruption advocacy needs a similar movement, where we are disposed to believe the accusations of the whistleblower, where we support these people, and demand accountability from the institutions they blow the whistle against.
The Fourth Regional Meeting of Latin American and Caribbean members reinforced the need to work on whistleblower protection in the region. The topic, while still in its early stages in the region, is full of promise and civil society organizations are enthusiastic to take up the cause. The most common mantra uttered at the meeting by all speakers was the following: governments in our regions must take action. Hopefully, Latin American and Caribbean countries party to the UNCAC take notice of this.