Tag Archives: Ukraine

Preserving the Independence of Anticorruption Institutions Under Pressure From War, Politics, and Populism: Lessons from the Ukraine Crisis

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On July 22 Ukraine’s parliament approved without debate or warning legislation sharply curbing the independence of Ukraine’s corruption fighting agencies. Nine days later it okayed a second bill largely repealing the curbs. In between were massive demonstrations by citizens protesting the July 22 law and threats by the European Union to cut financial support.

Ukraine’s Institute for Legislative Ideas today published a report offering lessons from these events. The think tank’s analysis explains who and what was behind the attempt to defang the nation’s anticorruption agency and special corruption prosecutor and how the sudden backtracking is likely to affect Ukraine’s fight against corruption. Along the way the report provides a careful legal analysis of the July 22 legislation, what the second bill repeals and what it leaves intact; the stated reason for the July 22 law (cleanse the agencies of “Russian influence”); the real reason for its passage (investigations were getting too close to those in power), and what civil society and international partners must do to ensure there is no further effort to undermine the fight.

Critical reading not only for those concerned about corruption in Ukraine but for those in other nations where a transnational coalition is working to keep the corruption fight on track.

The English text of the report is here.

Zelensky’s Legislation Does Not Undo the Damage Parliament Did to Ukraine’s Anticorruption Regime

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President Zelensky is proposing legislation that supporters say remedies the problem Parliament created Tuesday by enacting Law No. 4555-IX (English translation). 

As yesterday’s post explained, that law gives the Prosecutor General unchecked power to

  • order both the anticorruption agency (NABU) and the special corruption prosecutor (SAP) follow his directions,
  • review pretrial investigations,
  • reassign NABU-led cases to other law enforcement bodies,
  • close cases at the request of the defense, and
  • appoint staff to prosecution teams.

The simple way to undo the damage this law has created is to repeal it, and indeed some reports say that is precisely what Zelensky’s proposed legislation does. But an analysis by Ukraine’s Laboratory of Legislative Initiatives makes clear that that is not the case.

Rather, the analysis shows that in several ways Zelensky’s bill exacerbates the damage 4555-IX did to the two agencies. Most damaging is it perpetuates the myth that the two have been infiltrated by Russian spies. As the Laboratory’s analysis explains:

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Undermining Ukraine’s Anticorruption Agency and Special Corruption Prosecutor: What It Means for Whistleblowers

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Tuesday’s approval of a law curing the independence of Ukraine’s anticorruption agency and the special prosecutor for corruption has sparked a furious backlash from citizens, NGOs, and Ukraine’s international partners. In today’s Guest Post Oksana Nesterenko, the Executive Director of the Anti-Corruption Research and Educational Center of the National University of Kyiv-Mohyla Academy, and Andrii Biletskyi, Senior Policy Analyst at the Center, explain its impact on a critical element in the fight against corruption: Ukrainians’ willingness to blow the whistle on corrupt officials and their private sector accomplices.

The big, disappointing story in Ukraine this week was the fast-tracked passage of legislation curbing the independence of NABU, the anticorruption agency, and SAPO, the special prosecutor for corruption.

Passage of what is now Law No. 4555-IX dealt a serious blow to the independence of the two agencies responsible for tackling high-level corruption. It gives the Prosecutor General sweeping powers to control both of them: authority to issue binding written instructions to either, order inspections into specific pre-trial investigations, reassign NABU-led cases to other law enforcement bodies (including the internal security service Sluzhba Bezpeky Ukrayiny), close cases at the request of the defense, and unilaterally appoint members of prosecutorial teams.

The law triggered protests across Ukraine, with people taking to the streets nationwide to voice their opposition. Western partners — including the European Union and the Organization for Economic Cooperation and Development (OECD) — have already expressed serious concerns, casting doubt on Ukraine’s future steps toward European integration and its ability to attract needed investment.

In response to this backlash — which the Ukrainian authorities clearly did not expect, President Zelensky has submitted Bill No. 13533 to the Ukrainian Parliament aimed at restoring the independence of anti-corruption institutions (here). Some Members of Parliament have also registered an alternative bill (here). However, it’s still too early to proclaim that NABU and SAPO are out of the woods.

While we wait for the air to clear, and we hope for repeal of the law, let’s talk now about what it means for whistleblowers so long as it remains in force.

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Ukrainian Anticorruption Agencies Under Attack

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Ukraine’s National Anticorruption Bureau (NABU), the independent agency responsible for investigating corruption, was searched July 21 by agents of the State Security Office and the Prosecutor General’s Office. In a post on X, NABU says no warrant or other legal authorization was presented to justify the search (here).

On Tuesday, the day after the search, Parliament approved legislation putting both NABU and the Special Anti-Corruption Prosecutor’s Office (SAP), which is responsible for prosecuting NABU cases, under the control of the Prosecutor General of Ukraine, an appointee of the Ukrainian President (here).

Both actions come a little more than a week after security service personnel searched the home and office of Vitaly Shabunin, a leading anticorruption activist.

The searches and the legislation were justified on two grounds. First, NABU and SAP have abused their powers. Second, and more significantly and darkly, the two are alleged to have ties to Russia and are furthering its interests.

The grounds for these actions seem shaky to say the least. A July 16 letter (original here; translation here) by Ukrainian civil society organizations shows the allegations levelled at Shabunin are without foundation. It also observes that all first appeared on anonymous Telegram channels.

Close observers say there may be cases where NABU or SAP or both were overly aggressive, but that is a far cry from doing Russia’s bidding. And indeed the real fear is that it is the critics of a vigorous anticorruption campaign who are doing the aggressor’s bidding.

The bill curbing NABU and SAP’s independence is now before President Zelensky for signature or veto. The European Union, which made the independence of NABU and SAP a condition for continued support, have weighed in with Zelensky. Pictures from demonstrations in Kyiv urging a veto (by GAB special correspondent) are below. More demonstrations planned for Wednesday.

Whistleblowers in Ukraine: Successes and Challenges in Ukraine

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The Anti-Corruption Research and Education Center (ACREC), Kyiv, Ukraine, and the National Agency on Corruption Prevention (NACP) are pleased to invite you to the Fourth Annual Conference “Whistleblowers in Ukraine: Successes and Challenges,” which will be held on July 10, 2024, from 10:00 AM to 6:00 PM. Kyiv time.

The event aims to bring together activists, representatives of non-governmental organizations, judges, whistleblowers, authorized officials, employees of the National Agency on Corruption Prevention (NACP), international experts, political figures, and compliance managers to discuss opportunities for improving Ukraine’s legislation on whistleblowers. The event will feature three panel discussions and two workshops.

The event will be held online via the Zoom platform, where viewers will be able to actively participate in the conference. Please confirm your participation in the event by filling in this short form: https://forms.gle/DaF6T32Jd5GXMLQa7.

Towards Preventing Corruption During Ukraine’s Reconstruction: Bilingual Compilation of Ukrainian Procurement Laws

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Russia’s war of aggression against Ukraine has inflicted massive damage on the country’s infrastructure, a half trillion dollars and growing daily (here). While Ukraine’s government is just beginning the massive task of letting contracts for the reconstruction of schools, hospitals, and other public works destroyed by Russian bombs and artillery shells, reports are already circulating that corruption has infected the procurement of some large works.

Fighting corruption in procurement is about much more than tightening and strictly enforcing laws on what to buy from whom. Rules governing political contributions, gifts to officeholders, conflicts of interest and business practices that facilitate bid rigging are all part of the equation. But preventing and detecting corruption in government contracting starts with what the law does (or doesn’t) say about who makes purchasing decisions and how specifications are drawn, contractors selected, and performance assured.

The fight against corruption in Ukrainian reconstruction just got an important boost. An online data base of some 450 Ukrainian statutes and Cabinet decrees along with English summaries is now available here. Included is everything from the text of ProZorro, Ukraine’s award-winning e-procurement law to statutes on permitting and land use to detailed rules governing the construction of roads and ports. A dropdown menu allows users to search by topic – critical infrastructure, damaged property, public procurement, urban development – or hone in on a specific area such as construction standards, PPPs, or telecommunications.

The database will help frontline corruption fighters – in the Ukrainian government, civil society organizations, and those overseeing reconstruction funding – determine if procurement rules are being observed in a project. Vigorous competition for procurement contracts is perhaps the most important way to curb corruption. By offering a free guide to Ukrainian procurement law, the database reduces the cost to new or foreign firms of preparing bids, increasing the chances more companies will bid on a project and thus spurring competition.

The database is the result of a heroic, pro bono effort by a squad of multilingual lawyers at the international law firm Debevoise & Plimpton aided by Ukraine’s Institute for Legislative Ideas. It was the brainchild of Jennifer Widner, Princeton University professor and director of the University’s Innovations for Successful Societies, and Oksana Nesterenko, head of the Anticorruption Research & Education Centre at Kyiv-Mohyla Academy. Both provided guidance and overall direction. Worth MacMurray, president and chief executive officer of the Coalition for Integrity, oversaw Debevoise’s work on behalf of ISS. The project is part of a larger effort by ISS and ACREC to prevent corruption during Ukrainian reconstruction.

The Invisible Front: Russia’s Corruption-Themed Propaganda War Against Ukraine

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The concept of “strategic corruption”—defined by the U.S. government as “when a government weaponizes corrupt practices as a tenet of its foreign policy”—has recently gained prominence as an important way to understand Russian foreign policy in the former Soviet republics, and elsewhere. The country that has faced the most sustained and systematic Russian state-sponsored strategic corruption campaign is almost certainly Ukraine. For the two decades preceding Russia’s full-scale invasion in 2022, Russia employed a wide variety of corrupt measures to influence Ukrainian politics, including the sale of vast quantities of discounted fossil fuels to bribe pro-Russian Ukrainian oligarchs and create a political class aligned with Kremlin interests (as exemplified by the “outrageously corrupt” tenure of President Viktor Yanukovych after his election in 2010); the cultivation of sympathetic media empires in the country; and money-driven attempts to discredit American officials perceived as obstacles to Russian influence. 

Much has been written on Russia’s use of this sort of strategic corruption. But there’s another aspect of Russia’s strategy that has become especially prominent since the 2022 invasion: using propaganda and disinformation to spread and amplify the narrative that Ukraine is pervasively corrupt. Here lies a paradox: for two decades, Russia deliberately fostered corruption in Ukraine to keep its neighbor firmly under its influence, and now Russia is seeking to leverage Ukraine’s reputation for corrupt practices to undermine Ukraine’s ability to resist Russia’s invasion.

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The U.S. Approach to Corruption in Ukraine: Change or Continuity?

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[A quick note: I drafted the post below last week, before the horrific events in Israel over the weekend. I have nothing useful to say about that tragedy–I have no expertise in military or security policy, Middle Eastern politics, terrorism, or anything along those lines. But I wanted to express my deepest sympathy to those who have been affected by Hamas’s horrific and inexcusable attack on innocent civilians. I will continue to write posts on assorted corruption-related issues, like the one below, because that’s what I know and that’s what I do. But this is one of those moments when other things seem so much more important. Am Yisrael Chai.]

Last week, a piece in Politico discussed the contents of a confidential (but not classified) U.S. State Department’s “integrated country strategy” for Ukraine; a shorter public version of that strategy document was released last August, but the version Politico obtained was longer and more detailed. The big headlines coming out of the Politco story (both literally and figuratively) concern corruption. The U.S. strategy document, Politico notes, “sees corruption as the real threat,” and “warns Western support may hinge on cutting corruption.” The Politco story made a bit of a splash among some of the people who follow these issues closely, but I don’t think it tells us much that we didn’t already know, and the new material from the confidential version of the report, so far as I can tell from Politico’s reporting, mainly concern political calculations that are basically common knowledge, though perhaps a bit sensitive for the U.S. government to declare formally in a public document.

Let me start out by noting one thing that I think the Politico piece gets exactly right, and that poses a general, and by now familiar, challenge to those who both support Ukraine’s resistance to Russian aggression and believe anticorruption reforms are vital for the country’s future success. As the Politico story puts it:

The [Biden] administration wants to press Ukraine to cut graft … [b]ut being too loud about the issue could embolden opponents of U.S. aid to Ukraine, many of them Republican lawmakers who are trying to block such assistance. Any perception of weakened American support for Kyiv also could cause more European countries to think twice about their role.

This is indeed a real issue, and a rhetorical and political challenge. Having said that, I think the Politico story, perhaps inadvertently, may simultaneously (1) understate the extent to which the U.S. government has already been willing to publicly raise the need for serious anticorruption reforms in Ukraine, and (2) overstate the extent to which the U.S. is relying on a coercive approach (mainly express or implied aid conditionality) to press for such reforms. A few thoughts on each: Continue reading →

Has Russia’s Invasion Empowered President Zelensky in His Fight Against Corruption?

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A national crisis can have a wide range of effects on a country’s commitment to fighting corruption. Sometimes, the sense of crisis leads countries (for better or worse) to de-prioritize corruption, out of a sense that other matters are higher priority, or even out of a sense that tolerance for a certain degree of corruption is a price worth paying to achieve other more pressing objectives. But in other situations, a sense of national crisis can strengthen a government’s resolve to crack down aggressively on corruption. There seem to be at least two closely related reasons why this may sometimes occur. First, corruption might be seen as directly and significantly impeding the country’s ability to tackle the emergency at hand. Second, a time of crisis can strengthen the position of the nation’s chief executive (the president or prime minister)—both in the formal legal sense (in that during times of crisis the chief executive may be able to wield extraordinary emergency powers) and in the softer more political sense (in that the chief executive may enjoy a surge in popularity if the country is under threat, and the public perceives the chief executive as providing strong leadership in the crisis). If that chief executive is genuinely committed to fighting corruption (a big if), then he or she may be able to leverage this unusual power to move aggressively against corruption, in a manner that would be politically difficult or impossible in “normal” times.

My impression, based on news stories and informal conversations with actual experts (which I am not!), is that the latter characterization is more apt for what is happening in Ukraine right now. It was not obvious that things would go this way initially—particularly given that, shortly after Russia’s full-scale invasion, the Ukrainian parliament suspended the asset declaration requirement for public officials, which though justified at the time as a way to keep potentially sensitive information from the Russians, was viewed with understandable concern. But a series of developments since then has demonstrated what looks to an outsider (at least to this outsider) like a consistent and quite aggressive effort to crack down on corruption, even at the risk of some (temporary) disruption to aspects of the war effort.

At least for me, one of the most notable and encouraging signs was the arrest, earlier this month, of Ihor Kolomoisky, one of Ukraine’s most powerful oligarchs, on fraud charges. Continue reading →

Ukraine’s Fight Against Corruption: Whistleblowing

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Last Friday, July 7, some 50 civil society representatives, media personnel, and government policymakers spent the day discussing the law and practice of whistleblowing in Ukraine. They heard from among others National Anticorruption Prevention Committee (NAPC) officials explain how whistleblowing fit into the government’s anticorruption efforts, Anticorruption court Judge Oleksiy Kravchuk on measures for fostering respect for whistleblowers, and how the law protected Oleh Polishchuk after he blew the whistle on his employer’s corruption.

I spoke at the closing panel with TI Ukraine head Andrii Borovyk and Serhiy Derkach, Deputy Minister for Community, Territories and Infrastructure Development of Ukraine. The English version of the program is here and the slides I spoke from here. Minister Derkach’s closing remarks are below —

“Whistleblowing during the recovery process in Ukraine is even more important. It is not only about corruption but also about the security and efficiency of how funds and resources are used.

“There are three key conditions for whistleblowers to report wrongdoing:

✔️ Official channel for reporting
✔️ Confidence that the reports will be reviewed and the perpetrators brought to justice
✔️ Protection from retaliation by management

“At the Ministry of Renovation, we support a zero-tolerance culture towards corruption and are actively working to implement an effective compliance system.

Continue reading →