Civil society as police officer, prosecutor and judge

Ukraine is a country where, at least in the fight against corruption, civil society plays a very important role, more important than the role it has in most other countries. There are several reasons for this: the high level of corruption in Ukraine, the proliferation of state anti-corruption bodies in the past as well as their chronic inefficiency, just to name a few, have simply forced members of NGOs from Ukraine to take a far more active approach to fighting corruption than most of their counterparts elsewhere. The Ukrainian government, under strong pressure from the international community in Kyiv, acknowledged this and, as a result, NGOs received power, prominence and recognition unrivalled by similar organisations anywhere else.

An ever-present and justifiable concern is not just the passivity of the government and the competent state bodies in the fight against corruption, but also their active obstruction of it. This was clearly visible in the selection process for the head of the Specialised Anti-Corruption Prosecutor's Office (SAPO). All of that triggered a reaction within the Ukrainian civil society that has had mixed outcomes, not only positive. One of the ramifications is the absolute and complete distrust of everyone working in Ukrainian state bodies. To demonstrate the level of distrust one only has to consider the agonizing process of establishing the National Anti-Corruption Bureau of Ukraine (NABU). Finally, there was a law enforcement institution with real teeth and an ideal set of powers to root out corruption; yet the leaders of one NGO maintained that having a purely Ukrainian anti-corruption police unit was a mistake and that a fully international anti-corruption police unit should be set up instead. How could an entity consisting entirely of foreigners successfully fight Ukrainian corruption without the involvement of Ukrainians themselves?

Slowly, a truly modern anti-corruption landscape began to take shape in Ukraine, consisting of the National Agency on Corruption Prevention (NACP), the National Anti-Corruption Bureau of Ukraine (NABU), the Specialised Anti-Corruption Prosecutor's Office (SAPO) and the High Anti-Corruption Court of Ukraine (HAAC); a set-up the envy of any number of other countries. Gradually, it became clear that despite the teething troubles, these bodies were actually doing their job and this became increasingly problematic for civil society in Ukraine. The authorities, in which they purportedly had no confidence, began to gather momentum and a degree of prestige; however, there were still cases where they made mistakes that clearly violated the applicable legal and ethical norms. This was the plight of the previous NABU Director, the entire NACP management some years ago and the aforementioned appointment of the current SAPO Director, which was severely hampered by politics. As a result, civil society formed the view that it alone could decide what was right and what was wrong in regard to corruption. Now the decisive criterion for judging the competence of state-paid anti-corruption officials was no longer the quality and quantity of their work, but their willingness to divulge – to one NGO in particular – even highly classified information on matters pertaining to their field of work, which was then used by the NGO for its own publicity and so-called "advocacy". 

This desire to obtain information, especially classified one, became so important to civil society that it became involved in the selection process for the latest NABU Director. It actively supported a candidate it considered "friendly", while completely ignoring his highly controversial vision for the future development of NABU.  His selection, coupled with another "friendly" appointment to the director's post of the NACP, would mean the top management positions of the NACP, NABU and SAPO would be in the pocket of one close-knit circle of friends. This would naturally lead to a lack of essential checks and balances and give them full control over the procedures and intelligence of these bodies.

Fortunately, the plan did not work: their NABU director candidate was so bad that he had no chance of winning, while the NGOs preferred candidate for the NACP director’s role withdrew because of mistakes made during his previous tenure. However, the would-be sole arbiter of the work of the anti-corruption bodies in Ukraine had not given up its aspirations for total control. Very quickly both the new director of SAPO and the new director of NABU fell under their influence and became their "friends" – probably in the belief that passing on information to civil society or to meeting certain members of the public to discuss highly confidential matters "off the record", was better than being the object of scathing criticism. The NGO was happy to embrace the two new "friends", without consideration of their level of competence, which any impartial investigator would quickly identify as questionable - or even corrupt. Nonetheless, it soon identified a convenient target, the Deputy Director of NABU, who was unwilling to divulge information and tolerate interference in NABU’s investigations. In its overwhelming desire to punish the disobedient and uncooperative, it forgot that this man had been the "heart and soul" of NABU since its inception, and that NABU had functioned, and was still functioning, so successfully solely because of his expertise and impartiality. His removal suits everyone: NABU’s director – because his Deputy obviously knows too much both about his professional lapses as well as his efforts to keep NABU away from certain politicians; civil society – because by removing him from NABU, it will completely subordinate NABU’s director and ensure a steady flow of information; and SAPO’s director – because the lack of backbone on the part of NABU’s director and his befriending of the same circle of people means that he is now able to completely subordinate NABU as well; Ukrainian politicians – because they will get rid of a man who is not receptive to their offers of friendship; and foreign embassies, which, at a time when substantial military, financial and political support is being directed towards Ukraine, do not need a man who would vigorously pursue and prosecute any acts of corruption by the political elite of that same Ukraine.

All these interests can be understood. What cannot be understood, however, is the ease with which they sully and disown a man who, until then, was acknowledged by all to be the man without whom Ukraine would not have achieved some emphatic victories in the fight against corruption. Do they think that after years of endeavour devoted entirely to fighting corruption, the man has suddenly converted and become corrupt himself? The real anti-corruption fighters remain loyal to the fight against corruption, whereas politicians, public officials, diplomats and, apparently, some NGOs do not.

Undoubtedly, the latest developments at NABU signal the beginning of the end of Ukraine's genuine fight against corruption. Perhaps civil society does not want to see this yet, because it is more important for it to maintain the flow of information and its own appearance of infallibility and omniscience. Until it accepts that NACP, NABU, SAPO and HACC are also staffed by honest professionals, there cannot be any serious effort to fight corruption in Ukraine. Until it accepts that the independence of NACP, NABU, SAPO and HACC is crucial, there cannot be any effective fight against corruption by these agencies. Multiple agencies are essential elements in combating corruption in most other countries of the world; if they were not, then there would be no need for them to have police forces, prosecutors and judiciaries. All they would need is something like AntAC. What a paradox – at the very moment when the country needed to be as effective as possible in fighting corruption, on account of the largest-ever spending of international aid, these efforts will be destroyed by the very people who are beating their chests the loudest about how honest they are!

Drago Kos, аnti-corruption expert