BK Blog Post
Posted by Tom Devine.
Tom Devine is legal director of the Government Accountability Project, where he has worked to assist thousands of whistleblowers to come forward and has been involved in the all of the campaigns to pass or defend major whistleblower laws over the last two decades.
David Kaye, the Special Rapporteur for Freedom of Expression at the United Nations has released his report on the topic with a series of strong recommendations for governments and intergovernmental organizations on protecting whistleblowers.
The report recognizes and codifies the international best-practices that the Government Accountability Project (GAP) has advocated for many years. Among other provisions, these include a broad scope for protected disclosures and shifting burdens of proof so that the onus of establishing the truth does not fall exclusively on the whistleblower.
The service that whistleblowers provide in protecting the public interest is also recognized by the Special Rapporteur. Because the regulatory structures in many industries across the world have been so weakened since the 1980s, the public is increasingly dependent on whistleblowers for a realistic and knowledgeable picture of the economies and societies in which they live. Kaye defines the ‘public interest,’ inclusively for governments:
…[A] State might define “public interest” as involving information that contributes to public debate, promotes public participation, exposes serious wrongdoing, improves accountability, or benefits public safety.
Whistleblowers whose disclosures meet this standard, according to the Special Rapporteur, must be protected from retaliation. The definition, of course, includes the case of Edward Snowden, and GAP concludes that, by implication, the treatment meted out for Snowden by the U.S. government would violate protections based on public interest, if they existed in the U.S.
The definition, Kaye reports, must apply to national security whistleblowers, as well as to those in other sectors. GAP is encouraged to see Kaye’s concern about the lack of protection for whistleblowers whose disclosures about fraud or institutional misconduct involve national security, which is increasingly used by putatively democratic governments to justify secrecy and repression.
The Special Rapporteur is additionally aware that the treatment of whistleblowers at international organizations, such as the World Bank and the UN, can be retaliatory. In these institutions, the implementation of Kaye’s recommendations would go a long way toward improving the climate in which employees of conscience can speak out about in-house corruption and illegality.
If the recommendations in the report are implemented, for example, the ordeal that Anders Kompass has experienced at the UN Office of the High Commissioner for Human Rights, after reporting child sexual abuse by non-UN peacekeepers in Africa, would not have occurred. Kaye points out that international organizations are non-transparent in their dealings with whistleblowers and that existing oversight mechanisms lack the independence and impartiality needed to protect them. The Kompass case is a painful illustration of what can be done to whistleblowers behind a veil of secrecy when oversight officials collude to silence them.
In general, the report is an important and detailed guide for governments and international organizations that intend to defend and protect whistleblowers.