Defender reporting on banana sector risks prosecution

In Ecuador, Jorge Acosta risks prosecution for “creating economic panic” for reporting on labour rights and environmental issues in the banana sector. Companies purchasing bananas from Ecuador should make public their position regarding defenders’ rights and this specific case.

Agribusiness has surpassed the mining sector as the most dangerous sector for human rights and environmental defenders globally, with Latin America being the worst continent in terms of number of threats and attacks against defenders.[1]

In Ecuador, Jorge Acosta, coordinator of the banana workers’ union ASTAC (Asociación Sindical de Trabajadores Agrícolas y Campesinos), which organises around 1,500 banana workers across the country[2], is a well renowned human rights defender who has worked for over ten years to address labour rights, health and safety issues and environmental impacts in the banana sector. Jorge Acosta is also the president of the Ecuadorian Consultative Council for the Free Trade Agreement (FTA) with the EU, a dialogue mechanism between civil society and various Ecuadorian government bodies, established to ensure a correct implementation of the FTA.

On April 18, Jorge Acosta was notified that an official complaint had been presented to the Ecuadorian Attorney General by a private individual. The complaint accused Jorge Acosta of “creating economic panic”, a crime chargeable with five to seven years in prison according to article 307 of the Comprehensive Organic Penal Code.[3] According to the complaint, Jorge had spread false information in order to hurt the economy of the country and in favour of competitors. [4] The accusations made against Jorge Acosta came shortly after he published a complaint directed to the European Commission stating that Ecuador is in breach of the part of the FTA with EU concerning respect for basic labour rights. The complaint addresses the persistence of informal working relationships, exploitation of workers, undue deductions from workers’ salaries, a breach of the monthly minimum wage and restrictions of the right to freedom of association. It also highlights negative impacts on the health of workers exposed to agrochemical products used intensively in banana production. [5]

The accusation against Jorge is a threat to freedom of speech and association and exemplifies a global tendency to try to quiet defenders through lawsuits, known as strategic lawsuits against public participation.[6]  According to Jorge Acosta, he has also received a number of threats, including death threats. Article 307 of the Ecuadorian penal code was recently criticised by the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, David Kaye, who visited the country in 2018. Articles 307 (and 322) provides penalties of five to seven years imprisonment for anyone who disseminates false information that results in “economic” or “financial panic,” both vaguely-defined in the code. According to David Kaye, it has permitted abusive prosecution of media, journalists, and individual citizens, for defamation against public officials, undermining the ways in which free expression serves to hold public officials accountable. After the country visit, the UN Special rapporteur recommended the decriminalisation of these types of offences.[7]

Although some of the problems in the banana sector in Ecuador have been successfully addressed, such as the occurrence of under-age workers, many human rights challenges remain as have been reported by several national and international civil society organizations.[8] In April 2019, the Ecuadorian Ombudsman (Defensoría del Pueblo) published an extensive study of working conditions in the banana sector. The study confirmed what ASTAC has been stating for years, including the lack of living wages, unfair dismissals of workers, harassment of labour unions and the health effects of harmful pesticides on workers and the local population.[9]

Human rights defenders like Jorge Acosta play a tremendously important role in contexts where respect for human rights cannot be taken for granted as they protect basic values, including transparency and accountability. According to the UN Declaration on Human Rights Defenders, all stakeholders have a role to play in defending human rights. The Declaration provides for the support and protection of human rights defenders in the context of their work.[10] The UN Human Rights Council also took an important step in March 2019 when it adopted resolution A/HRC/40/11 in response to the increased threats to defenders around the world.[11] The resolution emphasizes, among other things, the responsibility of companies to respect the right of human rights and environmental defenders to carry out their work without fear of threats and violence.

Companies that source bananas from Ecuador have an interest in that defenders such as Jorge can speak freely and without fear of retaliation, about challenges in the supply chains as such information is crucial for companies’ possibilities to conduct effective risk assessments and human rights due diligence.[12] Swedwatch urges companies purchasing bananas from Ecuador to clarify and make public their position regarding defenders’ rights and this specific case to their suppliers and Ecuadorian authorities, in line with the UNHRC resolution, and the UN Declaration on Human Rights Defenders.

[1] https://www.globalwitness.org/en/campaigns/environmental-activists/at-what-cost/, ; https://www.business-humanrights.org/en/successful-globalization-is-only-possible-if-all-voices-are-heard-7-increase-in-attacks-on-defenders-damages-prospects-of-stable-equitable-future

[2] https://www.astacecuador.com/single-post/2018/09/20/Trabajadores-del-sector-bananero-viven-una-forma-moderna-de-esclavitud

[3] Article 307 of the Comprehensive Organic Penal Code https://wipolex.wipo.int/en/text/444012

[4] The complaint, which Swedwatch has read, was submitted through Fiscalía Séptima de Fe Pública de Guayaquil on the 18th of April 2019.

[5] https://www.oxfam.de/system/files/studie_englisch_complaint_from_banana_workers.pdf

[6] These are generally civil lawsuits filed by a company against an individual or an NGO on a substantive issue of some political interest or social significance with the aim to shut down critical speech by intimidating critics into silence and draining their resources. https://www.business-humanrights.org/sites/default/files/documents/Shared%20Space%20Under%20Pressure%20-%20Business%20Support%20for%20Civic%20Freedoms%20and%20Human%20Rights%20Defenders_0.pdf

[7] https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=23713&LangID=E

[8] https://www.oxfam.de/system/files/20160531-oxfam-sweet-fruit-bitter-truth-en.pdf;  https://www.fes-europe.eu/news-list/e/eu-trade-policy-in-practice-fair-trade-in-the-banana-sector/

[9] Defensoría del Pueblo Ecuador, 2019, Informe de verificaciones de vulneraciones de Derechos Humanos en las provincias de producción bananera Ecuador

[10] https://www.ohchr.org/en/issues/srhrdefenders/pages/declaration.aspx

[11] https://undocs.org/A/HRC/40/L.22/Rev.1

[12] https://www.business-humanrights.org/sites/default/files/documents/Shared%20Space%20Under%20Pressure%20-%20Business%20Support%20for%20Civic%20Freedoms%20and%20Human%20Rights%20Defenders_0.pdf