“Whistleblowers and Corruption Prevention – You can’t have one without the other.”
Samantha Feinstein Highlights Importance of Whistleblowers at UN Anti-corruption event
By: Samantha Feinstein and Ian Herel
On October 11th, 2022, Samantha Feinstein, Vice Chair of the United Nations Convention Against Corruption (UNCAC) Coalition, and International Program Director at Government Accountability Project spoke about the importance of whistleblower protection at a side event during the Intersessional meeting of the Conference of the States Parties (CoSP) to the UNCAC on the achievements of the political declaration adopted at the special session of the General Assembly against corruption and First resumed 13th session of the Implementation Review Group in Vienna, Austria. Feinstein’s speech addressed the progress and challenges towards implementing commitments on whistleblower protection reflected in the UN General Assembly Special Session (UNGASS) Against Corruption’s political declaration. The side event was organized by the UNCAC Coalition and sponsored by the European Union. Feinstein emphasized the importance of whistleblower protections in the effort to prevent and combat fraud and corruption.
Her presentation firmly placed the protection of whistleblowers as an essential priority for all nations and private entities to prevent fraud, gross waste of funds, and abuse of power; while also stressing that “paper rights” must be backed by sufficient infrastructure to protect and enforce these rights, such as secure reporting channels and fully funded investigative and enforcement agencies, or else the rights would be false advertising. In addition to providing an overview of recent global developments, progress, and challenges on whistleblower protection, Feinstein also reinforced Government Accountability Project’s availability to be a leading international resource and provide support to member states and the private sector to help them reach their whistleblower protection goals.
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The United Nations Convention Against Corruption is one of the world’s most important anti-corruption mechanisms. Adopted by the UN General Assembly in 2003, and supported by civil society organizations including more than 350 organizations in the UNCAC Coalition’s network, the Convention “introduces a comprehensive set of standards, measures and rules that all countries can apply in order to strengthen their legal and regulatory regimes to fight corruption”.
In her presentation at the UNCAC Coalition’s side-event: “Recent Developments in Corruption Prevention,” Feinstein drew attention to Article 33: Protection of Reporting Persons. Article 33 merely states that member states “shall consider” incorporating legal protections against whistleblower retaliation.1
Feinstein noted that “too few countries have whistleblower laws in place.”
After the event, Feinstein explained that “wording tends to be vague in international conventions” to account for what countries are willing or able to commit to politically. “The political declaration of the UNCASS Against Corruption was full of qualifiers to avoid holding countries accountable for taking direct action,” she said.
Feinstein went on to explain in her presentation that only about 20% of the 189 UNCAC member states have comprehensive legal protections for whistleblowers, and while there is a contingent of members with “narrower, sectoral” protections, that leaves roughly half of all member states without legal protections for people who report corruption.
For Feinstein, this picture highlights a few important trends:
The Lack of Whistleblower Protections Leaves Public and Private Sectors Vulnerable to Corruption
First, the general lack of whistleblower protections around the world creates a critical vulnerability in the Convention’s ability to prevent fraud and corruption. Whistleblowers, as Feinstein cited in her presentation, are proven to be one of the most valuable resources organizations have in the effort to prevent fraud. For example, a study by the Association of Certified Fraud Examiners showed that 43% of fraud is detected by tips, and losses from fraud are 50% less for corporations that have a hotline available for whistleblowers.
Moreover, “a study by PricewaterhouseCoopers that showed that whistleblowers are responsible for exposing and catching more fraud than audits, compliance departments and law enforcement combined.”
Therefore, where protections are lacking there are missed opportunities to detect fraud. Threats of violence, job and reputation loss, financial costs, and arrests create a “chilling effect” on would-be whistleblowers who are in a position to expose fraud. Without protections, “Whistleblowers who would be reporting corruption see the retaliation faced by their colleagues, and are reconsidering if that’s the path they want to take,” Feinstein said.
While national whistleblower protection rights may not exist or are ineffective, Feinstein encouraged government agencies and the private sector to develop anti-retaliation policies, provide internal or even external reporting channels, and to have a positive tone-at-the-top showing whistleblowers are valued. Feinstein pointed out that studies repeatedly confirm that over 90% of whistleblowers report internally to their employer first, meaning that a private company taking the initiative to create an internal policy and whistleblower channel would still detect the majority of wrongdoing and give them an opportunity to address it, thus protecting companies from financial loss and liability, as well as shareholders and the public in the process.
Paper Rights are False Advertising without Adequate Support for Implementation
While the obvious solution might be to impose a stronger commitment to pass comprehensive legal protections for whistleblowers, Feinstein also cautioned that countries need “more than just paper rights”:
The non-existence of legal protection in certain contexts isn’t a bad thing as it’s more important to have certain measures in place first – like the rule of law and basic human security. Otherwise, the paper rights could be ‘leading the lambs to the lion’s den'” – giving a false sense of security to would-be whistleblowers, ultimately leading to their exposure and retaliation.
Having paper rights that don’t hold up in practice appears even more threatening:
A study by Government Accountability Project and the International Bar Association showed that whistleblower laws, where they exist, are failing to protect whistleblowers in reality. Of all the whistleblower retaliation cases we studied, only about 20% of whistleblowers prevailed. And the overwhelming majority of countries studied really weren’t implementing whistleblower laws at all – 89% had fewer than 15 reported whistleblower retaliation cases, and 60% had zero reported cases.
However, Feinstein did note that one data limitation is the number of whistleblowers who get relief through settlement agreements is unknown. Mediation is an avenue that is faster and more affordable than litigation, and a win-win for whistleblowers and employers who may resolve disputes amicably between the parties. She urged countries for more proactive public reporting on settlements to create a better understanding of how well whistleblower protection laws are working.
Nonetheless, the scarcity of whistleblower cases handled through most countries administrative and/or legal systems led Feinstein to urge member states to provide appropriations “to establish the systems to support the law, and to make sure that people are educated about the law’s existence, so that they can use these frameworks.” Appropriations, however, are typically in the hands of legislative branches so political commitments on whistleblower protection are important but often challenging. Technical support for guidance on best practices for legislation and implementation could come from the UN Office on Drugs and Crime, which serves as Secretariat for UNCAC, as well as civil society organizations and experts like Government Accountability Project.
UNCAC Member States should Adopt a Dedicated Resolution on Whistleblower Protection at the next CoSP
CoSP resolutions set standards and provide guidance to States Parties on specific anticorruption measures that they are expected to take on the national level to better implement the convention. Feinstein hopes member states will adopt a dedicated resolution on whistleblower protection at the next CoSP, which will be hosted by the United States in 2023. She also hopes the resolution would provide commitments to implementing best practices for whistleblower protection, avenues for the UNODC to provide technical support to member states, and further define the criteria that whistleblowers report in “good faith” to mean they must have a “reasonable belief” that their disclosure evidences wrongdoing to avoid interpretations of good faith that wrongfully put the motives of whistleblowers on trial.
Finally, Feinstein emphasized that among the UNCAC Members, “there is a shared understanding and acceptance of the important role that whistleblowers play as demonstrated by their speeches, the political declaration, past resolutions, and efforts to draft national legislation.
“That shows that whistleblowers are winning the cultural revolution, and that in and of itself is a big step in the right direction. Now it’s important to take the next step, with a dedicated resolution to whistleblower protection at the next CoSP.”
Government Accountability Project is proud to be represented by Ms. Feinstein at such an important international forum and we applaud her efforts to demonstrate the uniquely important role whistleblowers play in promoting transparency and accountability in civil society, and for her tireless advocacy on behalf of whistleblower legal protections and empowerment.
Samantha Feinstein is a Staff Attorney and the Director of the International Program at Government Accountability Project. Ian Herel is a Communications Associate for Government Accountability Project.