7 June 2021 –
The implementation of UNCAC Article 33 (on the protection of reporting persons) into domestic legal systems is crucial to protect whistleblowers and make their contributions matter. The UNCAC Coalition hosted its second regional meeting for CSOs from Sub-Saharan Africa on 20th of May 2021, bringing together over 20 attendees and 4 guest speakers from across the region to speak to the following questions:
- What is happening in our countries, what are the legal and institutional frameworks our States have put in place to encourage whistleblowing as an anti-corruption tool?
- What domestic legal systems and measures do we have to provide protection for whistleblowers?
- What are the experiences of whistleblowers in terms of retaliation, unjustified treatment for persons who reported in good faith and on reasonable grounds?
- What do we need to do for the levels of protection to be raised to ensure safety, security and full implementation of the UNCAC provisions as they relate to whistleblowing and whistleblowers?
UNCAC Provisions on Whistleblowers
The United Nations Convention against Corruption (UNCAC) makes reference to reporting persons, stating:
Each State Party shall consider incorporating into its domestic legal system appropriate measures to provide protection against any unjustified treatment for any person who reports in good faith and on reasonable grounds to the competent authorities any facts concerning offenses established in accordance with this Convention.
Whistleblowers provide the voice to expose corruption, but whistleblower laws give them the vital legal protection from retribution and help to ensure that their disclosures make the greatest positive impact. The UNCAC binds all of its signatory countries to consider legal provisions to protect people who report corruption-related offenses from retaliation.
Whistleblower Protection in Sub-Saharan Africa
Below is a summary of the interventions made by speakers:
A Regional Perspective on Whistleblowing
Speaking about legal and institutional situations on the ground, Ms. Khadija Sharife, former Director of the Platform to Protect Whistleblowers in Africa (PLAAF), pointed out that each country context is different. The norm is to have a ‘veneer’ of a protective law for whistleblowers. On a deeper level, however, these laws are still not fully implemented and protection is insufficient. For instance, Botswana has a Whistleblowing Act, however, it does not offer sufficient protection for the whistleblower who should be empowered to use this anti-corruption tool for good. A lack of protection results in a reluctance to blow the whistle on wrongdoing. This has also been illustrated in the case of Namibia and the Fish Rot scandal, where dozens of whistleblowers contributed to exposing the case, yet only one publicly came forward, and he was not from Namibia.
Ms. Sharife stated that a disheartening matter in most Sub-Saharan African countries is that arrests are not directly linked to accountability; one does not immediately imply the other. Rather, it is politics which often determine legislative justice and accountability. The political system relies on corruption as an extra-legal way to maintain power, so its commitments are often exclusively at the surface level. Whistleblowing is the single most critical role any citizen can play in their country, and it should be recognized as an act in the name of human rights. The speaker proposed that a Whistleblower Fund be created, offering sufficient protection such as political asylum in safe countries, an idea which was supported by participants. One could also consider setting up an Anti-Corruption Court at the African Union level, so that when local remedies have been exhausted, citizens have spaces for further recourse. These are some concepts civil society and the UNCAC CoSP can encourage UN Member States to establish.
Democratic Republic of the Congo (DRC)
Mr. Ernest Mpararo, Executive Director of UNCAC Coalition member Ligue Congolaise de Lutte Contre la Corruption (LICOCO) noted that there is no Whistleblower Act in the DRC but that civil society and anti-corruption organizations are working to condemn attacks against activists. Even though corruption is omnipresent, civil society has managed to mitigate some of the risks through partnerships with authorities like national police forces, and in more high-profile cases, with international organizations exposing cases through their channels. The new regime in the DRC has shown political will to fight corruption, and civil society will propose a whistleblowing act in Parliament in March of next year (2022).
Mr. Graham Hopwood from the Coalition-affiliated group Institute for Public Policy Research (IPPR) has been involved in the Whistleblower Protection Initiative in Namibia for more than seven years and reported that although the Act was passed by Parliament in 2017 and is a full law on paper, in practice it is not being effectively implemented. The system for whistleblower protection is deemed to be too costly, and the situation has been worsened by Covid-19.
The huge Fish Rot scandal in Namibia involving bribes and tax evasion saw high-profile Namibians who were involved dismissed and arrested within two weeks, with some still imprisoned and awaiting trial. These actions could not have happened without whistleblowers (Johannes Stefansson, the main whistleblower in the case, in particular). Equally important was the role played by local and international media in exposing the scandal, and this demonstrates how international collaboration can be impactful in fighting corruption at the national level.
Given the social, mental and financial sacrifices whistleblowers who do step forward are forced to make, the current system is not encouraging. So how can Namibia inculcate the political will within a party which has turned a blind eye to scandals over the years? According to Mr. Hopwood, conducting a public education campaign that communicates how important whistleblowing is for the public good can highlight how urgently protection is needed.
A Whistleblower’s Perspective from South Africa
Ms. Bianca Goodson, the whistleblower in the Eskom case in South Africa gave a first-hand account of her experience, outlining the toll whistleblowing has taken on her and the often-forgotten impact of this simple act on one’s life, for years to come. While helping to expose state capture, she did not expect to become “unemployable and financially distraught.” “Life simply doesn’t go back to normal, and whistleblowers should be offered rehabilitation,” Ms.Goodson warned, and whistleblower protection should include guidelines on how to blow the whistle safely. What can be done to ensure that human protection is holistic, covering physical, economic and psychological risks? At the end of the day, is it worth risking one’s life and wellbeing for the public good?
Discussions from the floor: Advancing Whistleblower Rights and Protection through the UNCAC
Comments from the floor emphasized that whistleblowing can be lethal and that states ought to effectively implement the provisions of the UNCAC and ensure protection for those blowing the whistle. Many participants highlighted that in their countries, civil society cautions people against blowing the whistle as protective measures are not high enough as provided in the current legislation. Ms. Goodson’s story demonstrated how vulnerable citizens are without state protection for whistleblowing as an anti-corruption tool.
Proposals to protect whistleblowers, such as the creation of a platform that allows journalists to be alerted to cases of economic crime and corruption, were discussed. These alerts will serve as a basis to help journalists build their investigative cases. The platform, while secure, would also provide journalists access to whistleblower accounts. This echoed another proposal for cheap and effective encryption services for whistleblowers when coming forward with information, especially through digital means, as a sort of insurance system for their protection. CSOs can also raise the issue of whistleblower protection with any governmental contacts they may have at the national level, maintaining pressure and promoting its visibility.
States Parties of the UNCAC should fully implement Article 33 and ensure protection for their citizens who report wrongdoing. Another immediate way to take action would be for States Parties to bring forward resolutions on effective whistleblower protection in the Conference of the States Parties (CoSP) in December 2021, thereby placing it higher on the international agenda. Setting up a Whistleblowing Fund to address the personal toll whistleblowing on corruption takes, is another matter that States Parties ought to consider, coupled with robust legal and institutional frameworks necessary to ensure the protection of whistleblowers globally.
The next regional meeting for Sub-Saharan Africa will take place in September, on the topic of Access to Information.