Whistleblower protection gains global impetus

Recently, the European Parliament approved the new legislation shielding whistleblowers from retaliation. Now, whistleblowers across the European Union have won greater protection under landmark legislation aimed at encouraging reports of wrongdoing.

The new legislation also creates ‘safe channels’ to allow whistleblowers to report breaches of EU law.

Interestingly, it is the first time whistleblowers have been given EU-wide protection. The rules on the protection of whistleblowers have previously been in the hands of member states, resulting in a range of vastly different approaches.

The key takeaways of the legislation: gives whistleblowers who report breaches of EU law a high level of protection. It establishes ‘safe channels’ for reporting the information, both within an organisation [EU] and to public authorities.

It spells out that if no appropriate action is taken or in cases where reporting to the authorities would not work, whistleblowers are permitted to make a public disclosure, including by speaking to the media.

More importantly, the law protects whistleblowers against dismissal, demotion and other forms of punishment. That being said, national authorities are required to train officials in how to deal with whistleblowers under the legislation.

Like many EU countries, Rwanda, in 2017, revised the law on the protection of whistleblowers [Law nº44bis/2017 of 06/09/2017 relating to the protection of whistle blowers] to effectively safeguard them from retaliation for having reported offences, or illegal acts or behaviours.

Quite obviously, unlawful activities and abuse of law may occur in any organisation, whether public or private, big or small. They can take many forms, such as corruption or fraud, malpractice or negligence.

And if they are not addressed, they can sometimes result in serious harm to the public interest. People who work for an organisation or are in contact with it in their work-related activities are often the first to know about such occurrences and are, therefore, in a privileged position to inform those who can address the problem.

Under the foregoing law, a whistleblower is ‘any person who discloses information in his/her possession or which has been brought to his/her attention which is connected to offences, illegal acts or behaviour.’

In other words, these persons, who report (within the organisation concerned or to an outside authority) or disclose (to the public) information on a wrongdoing obtained in a work-related context, help prevent damage and detect threat or harm to the public interest that may otherwise remain hidden.

However, they are often discouraged from reporting their concerns for fear of retaliation. For these reasons, the importance of providing effective whistleblower protection for safeguarding the public interest is increasingly acknowledged both at national and international level.

Whistleblowers protection is equally embodied in the principles and guidelines of the 2004 UN Convention against Corruption and the Organisation for Economic Co-operation and Development (OECD) (entitled “Whistleblower protection frameworks, compendium of best practices and guiding principles for legislation”).

These international standards aim at combating corruption, and have also recognised the importance of having whistleblower protection law in place as part of an effective anti-corruption framework.

Effective whistleblowers protection gives a fresh impetus to positive impacts on the freedom of expression, the freedom of the media and access to information, enshrined in Article 38 the Rwandan Constitution.

Like the new EU legislation, Rwanda’s whistleblower legislation safeguards whistleblowers from retaliatory acts, such as ‘dismissal, suspension, denial or delay I promotion, demotion, redundancy, poor performance appraisal, discrimination, any form of victimisation, being made subject to any other administrative sanction, threats, and harassment by the employer or a colleague of the employee’.

This law doesn’t only guarantee the security of whistleblowers but also rewards them—for such a covert disclosure.

Lack of effective whistleblower protection can cause some of the offences and unacceptable behaviours go unchecked. Alongside other means to collect evidence, whistleblowing is a means of feeding national enforcement systems with information leading to effective detection, investigation and prosecution.

To the EAC, the new EU legislation on the protection of whistleblowers can be seen as a benchmark to have a supranational legislation, if you like. It would, in effect, limit fragmented individual state legislations, which is the case.

Alternatively, harmonised legislations across the EAC would be imperative in ensuring the protection of the whistleblowers. This fragmentation and gaps therein, mean that, in many situations, whistleblowers are not properly protected against retaliation.

Where potential whistleblowers do not feel safe to come forward with the information they possess, this translates into underreporting and therefore missed opportunities for preventing and detecting breaches of EAC Treaty and its implementing protocols, which can cause serious harm to the public interest.

To sum up, encouraging and facilitating whistleblowing, in particular by providing effective legal protection and clear guidance on reporting procedures, can also help authorities monitor compliance and detect violations of anti-corruption laws.

It also helps businesses prevent and detect bribery in commercial transactions. The protection of both public and private sector whistleblowers from retaliation for reporting in good faith suspected acts of corruption and other wrongdoing is therefore integral to efforts to combat corruption, promote public sector integrity and accountability, and support a clean business environment.

The writer is a law expert.

The views expressed in this article are of the author.

 

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