TI-MG Advocates for the Protection of Whistleblower Defenders
Every Citizen Is a Potential Whistleblower and Must Be Protected as Such
Since 2018, Malagasy civil society has been fighting for the recognition and protection of Human Rights Defenders (HRDs), including whistleblowers. After several delays and revisions, a new draft law, developed by civil society organizations and various institutions, was submitted to the Ministry of Justice at the end of May. This presents an opportunity to reflect on the importance of such a law in Madagascar. Andrianalisoa Raonison, Project Manager for Justice at Transparency International – Initiative Madagascar (TI-MG), and Dr. Ketakandriana Rafitoson, Executive Director of the organization, agreed to answer our questions.
Interview conducted by Tina Iung.
Madagascar already has several legal texts in favor of protecting the right to freedom of expression. What is missing from these texts?
Dr. Ketakandriana Rafitoson (KR): Like many United Nations member countries, Madagascar is a signatory to the main international texts guaranteeing fundamental rights such as freedom of expression. However, the national implementation of these instruments is problematic. There are also laws, such as Law 2016-020 of August 22, 2016, on the fight against corruption in Madagascar, which protect witnesses. But we believe that the provisions within these laws are insufficient to protect whistleblowers.
Andrianalisoa Raonison (AR): The existence of this law is used by the authorities to deny the need for a law protecting whistleblowers. However, there is a difference between a denunciator and a whistleblower, and it is precisely the fact that the latter is an integral part of human rights defenders that matters to us, and that drives us to call for this protective law.
What is a whistleblower, and why is there a need for a legal framework to protect them?
KR (Dr. Ketakandriana Rafitoson): In line with international standards, a whistleblower is a person who reports or discloses, without any personal gain, information regarding illegal, unlawful, or harmful actions that go against the public interest and human rights, which they have witnessed and/or personally become aware of, particularly within the context of their professional activities. In doing so, they act as human rights defenders and exercise a fundamental right related to freedom of expression and information. Every citizen is a potential human rights defender, a potential whistleblower, and that’s why the protection envisaged in this law is essential as it has a universal scope. However, for whistleblowing to occur, citizens must first enjoy their freedoms. A society that silences or judicially harasses whistleblowers is not democratic.
What have been the major steps in the development of this draft law so far?
KR (Dr. Ketakandriana Rafitoson): It all started in 2018, when the Ministry of Justice developed an initial draft in collaboration with the Malagasy office of the United Nations High Commissioner for Human Rights. The two bodies then sought feedback from civil society. In March 2021, we were approached by the High Council for the Defense of Democracy and the Rule of Law (HCDDED) to validate a completely new text. Caught off guard, we had to organize an expedited consultation, gathering about thirty civil society organizations (CSOs), with the support of the International Service for Human Rights (ISHR) and the collaboration of the International Organization of La Francophonie (OIF). An expert from the Platform of Whistleblowers of French-speaking Africa (PLAAF) and African human rights defenders participated in these consultations to enrich our discussions and share their experiences. We then presented our proposals to the institutions, which led to a third version of the text, submitted by the HCDDED to the Ministry of Justice in April 2021. However, we were greatly surprised at the end of 2021 to find that the text had been thoroughly revised and no longer resembled the “consulted” version from April. The concept of a whistleblower had, in particular, been removed from the text, under the pretext that it was not suited to the Malagasy context and that whistleblowing was considered a threat to “social peace.” As a result, we organized new consultations in 2022, this time in collaboration with Amnesty International, and planned a workshop between the CSOs, the ministry, and institutions dealing with human rights to revisit the text. This was done on April 20, with the presence of Adélaïde Etong-Kame from ISHR, who traveled to Madagascar specifically to attend this important meeting. We are now in the process of finalizing the text as discussed before submitting it again to the institutional loop, since as CSOs, we do not have legislative power.
AR (Andrianalisoa Raonison): Additionally, we had met with successive Ministers of Justice three times this year. During these meetings, they assured us of their intention to support this text and to consider the proposals from civil society, while also recommending the implementation of an ongoing public information campaign about human rights defenders to help lift certain inhibitions. We sense there is a desire to move forward with this text within the ministry, and we hope this will materialize and have a ripple effect on other ministerial departments and decision-makers at all levels.
This latest version of the draft law mentions a specific status for human rights defenders. What are your thoughts on this?
KR (Dr. Ketakandriana Rafitoson): One of the most problematic points in this version is indeed the intention to establish a “status” for human rights defenders, which would require validation by a state body, with the issuance of a card to accredited human rights defenders. Only those individuals would be protected by the future law. We contest this provision because being a human rights defender is not a profession, and there is no need for legal accreditation to become and act as a human rights defender. Once again, every citizen is a potential human rights defender. We fear that such accreditation could be granted arbitrarily, in a discriminatory and non-objective manner. This system would be contrary to international standards and would hinder the freedom of human rights defenders, including whistleblowers.
AR (Andrianalisoa Raonison): And it would be all the more contradictory because the whistleblower’s activity must be simultaneous with the events in question. It cannot wait for the issuance of a status or its recognition by a specific entity.
The next presidential elections will be held in 2023. Could the government gain an electoral advantage by passing this law?
KR (Dr. Ketakandriana Rafitoson): Absolutely. The adoption of this law would mark the fulfillment of the presidential “velirano” (commitment) related to the fight against corruption. The persecution of whistleblowers could indeed be seen as an attempt to cultivate a culture of secrecy, in order to protect the “friends” and sponsors of those in power. This would be entirely contrary to the declared intention to fight against corruption. The adoption of this law would be an opportunity for the regime to prove that it is consistent with its own commitments. Voters would likely view this positively.
AR (Andrianalisoa Raonison): Moreover, by having this law adopted, the government would demonstrate that it is implementing the recommendations from the 2014 and 2019 Universal Periodic Reviews (UPR) directed at Madagascar, showing that the country is in compliance with international standards and respects and protects human rights. This would also earn the government positive recognition from the international community. However, it is important to note that even if this law is adopted, it will only be fully effective when the law on access to public information is also passed, as these two texts are interdependent. Yet, we have been waiting for 16 years, according to the Committee for the Safeguarding of Integrity (CSI)… Such inertia is unacceptable!
