UNCAC: Open letter in support of whistleblower protections

UNCAC: Open letter in support of whistleblower protections - Transparency

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ARTICLE 19 joined over 100 other civil society organisations in signing an open letter urging delegates of States Parties to the United Nations Convention against Corruption (UNCAC) to prioritise and strengthen whistleblower protection within the UNCAC framework through a resolution on whistleblower protection.

Read the full letter below.

Open Letter to UNCAC States Parties: A Call for Action at the 10th UNCAC Conference of States Parties to Enhance the Protection of People who Report Corruption (Whistleblowers)

Atlanta, Georgia, 11 to 15 December 2023

Distinguished Delegates,

We, the undersigned 106 civil society organisations and activists, representing a diverse range of voices from across the globe, address this crucial gathering of the 10th Session of the United Nations Convention against Corruption (UNCAC) Conference of the States Parties in Atlanta, Georgia, USA. As staunch advocates for democracy, transparency, accountability, human rights,
and the rule of law, we express our collective commitment to the ideals of this Convention and its vital role in countering corruption worldwide.

While recognising the commendable progress made in addressing corruption, we wish to draw your attention to a critical concern that demands urgent consideration: the safeguarding of people who report corruption (whistleblowers).

Whistleblowers play a pivotal role in uncovering corrupt practices, ensuring accountability, and upholding the principles of the UNCAC. However, their protection remains a challenge in many jurisdictions. Instances of retaliation, lack of legal safeguards, and inadequate mechanisms for reporting pose substantial barriers to effective whistleblowing. When these challenges go unaddressed, whistleblowers suffer the psychosocial impacts to their mental health, family stability and quality of life.

Therefore, we urge States Parties to prioritise and strengthen whistleblower protection within the UNCAC framework through a resolution on whistleblower protection. Specifically, we call for the following measures:

1. Technical Assistance

UNODC and States Parties, in collaboration with civil society and other stakeholders, should provide and expand upon existing technical support to strengthen national and regional capacities to fully implement all the articles of the Convention relating to whistleblower protection. This support should be consistent with international best practices for the protection of people who report corruption. This should include technical support in the establishment of dedicated, independent, specialised, and adequately resourced bodies to receive and investigate whistleblowers’ reports about corruption allegations, retaliation complaints, and requests for protection, as well as to provide alternative dispute resolution services. There should also be available ombuds and mental health support to help whistleblowers cope with the adversarial nature of whistleblowing and subsequent retaliation.

2. International Study

The CoSP should mandate that UNODC conduct, in consultation with civil society, international and regional organisations, and other stakeholders, an international study of the existing national structures in place for receiving and investigating reports of corruption and providing protection for whistleblowers and witnesses. UNODC should make the results of the study public. This study should include the ways that whistleblowers cope with retaliation and the available support to mitigate the psychosocial impacts of retaliation and adversity.

3. Increasing Public Awareness

Increase public awareness: States Parties should raise public awareness of available reporting channels in a manner that makes it easy to navigate the process. The public should also have information on their rights in plain language that anyone can understand. A checklist for whistleblowers to identify and document tactics of retaliation and human rights violations should also be publicly available.

4. Emergency Assistance

Whistleblowers and witnesses who have come under attack for reporting corruption sometimes require resources for emergency assistance including medical care, mental health care, physical security, electronic security, relocation, housing, vocational rehabilitation, and legal representation. An emergency assistance fund should be established to protect and support vulnerable reporting persons.

5. Reporting in Crisis

States Parties should establish clear emergency reporting and protection guidelines for people to safely report corruption during emergencies, including pandemics, and ensure that all forms of retaliation are prohibited by law.

Improved transparency, accountability, and governance across the board can contribute to reducing incentives for corrupt actors to seek to enter or influence politics. We urge States Parties to make countering corruption a priority across all branches of government to achieve full, effective, and timely implementation of the UNCAC.

6. Best practice whistleblower legislation: Member States should adopt or reform their whistleblower protection laws to align with best practices, including:

  • Safe & inclusive reporting channels: Disclosure procedures should encompass internal and external reporting avenues that are accessible, gender-sensitive, inclusive, and appropriate for national security matters. UNODC should provide guidelines, including best practice examples, to States Parties on how to accomplish this in different local contexts and cultures. It should also consider the physical and psychological safety of the whistleblower and include those protective measures in its reporting processes.
  • Multiple reporting channels: Whistleblowers should be able to make safe reports internally to their organisation or directly to the competent authorities. There should be no restrictions or extra burden on whistleblowers who wish to report directly to regulators and the authorities. Additionally, public disclosures in certain circumstances should be protected. There should also be avenues for whistleblowers to report national security matters and official secrets, including through an independent oversight body.
  • No motives test: The ‘Good faith reporting’ term has been interpreted by some in a way that tests whistleblowers’ motives, which is contrary to modern best practices. Good faith, if used in legislation, should be defined by whether the whistleblower has reasonable grounds to believe what is reported is true.
  • Protection against vexatious lawsuits: Whistleblower laws should shield whistleblowers from criminal and civil liability prosecutions related to the act of their whistleblowing.
  • Non-waiver of rights and remedies: Employers should be prohibited from utilising a non-disclosure disclosure policy, form, or agreement to restrict lawful disclosures to authorised channels.
  • Penalties for targeting whistleblowers: Whistleblowers should have an enforceable right of action in the appropriate forum against any natural or legal person who attempts to identify them, hinder reporting in any way, or retaliate. Culpable persons should face penalties.
  • Relief: A full range of remedies, covering all direct, indirect, past, and future consequences of unfair treatment should be provided, including financial, legal, psychological, and interim relief.
  • Burden of proof: The burden of proof in whistleblower retaliation cases should be placed on the defendant to establish that the detriment is not linked in any way to the disclosure.
  • Whistleblowing authority: An independent agency, or agencies, should be responsible for the oversight and enforcement of whistleblowing legislation. It should have sufficient power and resources to operate effectively.

Government Accountability Project and Transparency International’s written submission to the 10th UNCAC CoSP outlines the most critical issues that need to be addressed to enhance the protection of whistleblowers.

The battle against corruption and human rights violations are intricately tied to the role of whistleblowers. It is crucial that we respond effectively to the changing landscape of challenges such as retaliation and tactics aimed at suppressing free speech in the twenty-first century. Strengthening protection for whistleblowers is a pivotal measure toward fostering a political environment that is transparent, accountable, and equitable. The UNCAC represents a worldwide dedication to these principles. We urge all States Parties to join forces in addressing these challenges, both at the national and international levels, with a collective sense of responsibility.

Your attention and dedication to this crucial cause are appreciated.

Read as PDF to view signatories