Ukrainian civil society activists have been aggressively campaigning for the establishment of an independent anticorruption court (see, for example, here, here, and here), in which international donors and other partners would participate in the selection of judges. Until very recently, President Poroshenko had vigorously resisted this campaign, asserting that “all courts in the country should be anti-corruption,” and proposing instead to have an anticorruption chamber within the current court system as part of his judicial reform plan. Yet in a surprising turn of events, on October 4th President Poroshenko appeared to yield to the demand of activists and international pressure to create such a court.
Poroshenko’s flip-flop seems to be a major victory for anticorruption activists in Ukraine. Yet it might be too early to celebrate. As promising as it sounds, a specialized anticorruption court is unlikely to live up to Ukrainian activists’ expectations. In a country like Ukraine—an oligarchic democracy in which governmental power is not delineated clearly by the constitution or legal framework, the executive is not effectively checked by the judiciary, and businesses are entangled with politics—the creation of a new judicial body is unlikely to be a game-changer. Moreover, in focusing so much on the campaign to create a specialized anticorruption court, domestic and international activists may be diverting energy and resources from more important issues, such as reforming the Prosecutor General’s Office (PGO), strengthening the role of the National Anti-Corruption Bureau of Ukraine (NABU), and adopting more comprehensive political and economic reforms reduce the clout of the country’s oligarchs.
There are two main reasons that the proposed Ukrainian anticorruption court is unlikely to live up to activists’ expectations:
First, the effectiveness of an anticorruption court relies on the prosecution and investigation of the cases that are brought before it. Yet while Ukraine has made great strides with respect to investigative institutions, the prosecutor’s office remains the weak link in the chain. NABU, founded in October 2014 at the insistence of the International Monetary Fund and the European Commission, is an enforcement agency with a mission of “preventing, exposing, stopping, investigating and solving corruption-related offences committed by high officials.” And NABU is considered by many to be at least a qualified success. Yet with regard to anticorruption prosecutions, the PGO remains the most powerful authority in Ukraine. And the PGO is so corrupt, and its decision-making process is so opaque, that the Executive Director of Transparency International (TI) Ukraine characterized it as “a political entity, not a law enforcement agency.” Well-connected oligarchs and politicians can and do use their influence over the PGO to impede serious efforts to prosecute corruption cases. A typical example is a case in which the PGO balked at prosecuting a kleptocratic oligarch who stole US$23.5 million, despite the overwhelming incriminating evidence collected by NABU. Even if with a fully independent and perfectly designed anticorruption court, it is hard to imagine that any real improvement will take place without major reforms of the PGO.
Second, Ukrainian society and government are so thoroughly permeated by corruption and oligarchic domination that it is unlikely that even a formally independent anticorruption court would meet activists’ expectations. Consider, for example, the process for selecting judges. Some have suggested that, in order to ensure independence, judges on the special court should be selected by a diverse body of interests. Yet diversity in Ukraine is most likely an illusion, as the interests exercising influence in Ukraine are very much aligned, and the multiple stakeholders—including government authorities, trade unions, multinational corporations, actors in private sector, among others—are more or less interdependent. One possible solution might be to give civil society more of a role in the selection process. But even if this occurred, it might not matter much, given the power that the government has to pressure or coerce civil society groups if it so chooses. (Case in point: President Poroshenko signed a law that imposed mandatory asset declaration on anticorruption groups, with such vague wording that it could easily be used to harass or punish those groups.) Another proposed solution, endorsed by many domestic activists and also recommended by the OECD, is for the international donor community to play a role in judicial selection. But the role of international partners in selecting the judges on a Ukrainian anticorruption court is not likely to be more than marginal. President Poroshenko emphasized in his address that the specialized court should be guided by the principle of national sovereignty, demonstrating his reluctance to relinquish the judicial power or to delegate the fight against corruption to international participants. Giving a handful of international representatives a limited say in selecting some of the judges is unlikely to be enough to counterbalance the overwhelming influence of the oligarchs.
In sum, as long as the oligarchs continue to dominate Ukraine’s legislature and party politics, and as long as those same oligarchic interests are able to capture the public prosecutor’s office and wield sufficient influence over judicial selection, it is unlikely that the creation of a specialized anticorruption court will make more than a marginal difference to the fight against grand corruption in Ukraine. That does not necessarily mean that the creation of such a court might not be desirable, or that it wouldn’t make at least some difference in a few cases. But I worry that Ukrainian anticorruption activists have zeroed in on the creation of a specialized anticorruption court as their highest-priority agenda item, and are spending considerable resources and political capital in the fight for that specific institutional reform. That might be a mistake, to the extent that the activist community is putting unrealistic expectations on what a special court can accomplish, and in the process diverting their limited energy and attention from broader efforts to tackle the entrenched culture of nepotism and oligarchy, and the other political, institutional, and legal factors that perpetuate the weak rule of law.