March 12, 2018
Poroshenko’s Last Chance
By Diane Francis
President Petro Poroshenko’s current proposal misses the mark, and fails to meet the criteria stipulated by the International Monetary Fund and the Council of Europe's Venice Commission. Under Poroshenko’s bill, international experts will play only an advisory role in the selection of judges, and civil society has no role.
Without international oversight, the process is a sham. This is because his proposal would delegate the vetting of candidates to the same jaded judicial body that allowed in twenty-seven unacceptable persons to Ukraine’s new Supreme Court. By so doing, they ignored the Public Integrity Council that vetted the roster last year.
This time, Poroshenko would eliminate both the Public Integrity Council and international involvement from the process, thus creating an anti-corruption court in name only, staffed by crooks and cronies.
This means that—without a bullet-proof autonomous court in place—Ukraine’s anti-corruption police and prosecution institutions will continue to be guard dogs without a bite. It also means that, without the rule of law, Ukraine’s economy will continue to be unjust and unattractive.
Fortunately, there is still time to right this proposal as the legislation passes through committees and further readings in parliament. Significantly, Prime Minister Volodymyr Groisman publicly supports the IMF and Venice Commission recommendations, unlike the president’s bill.
Last week, Groisman elaborated to Latvian media: "We have created a system of anti-corruption authorities for a few years. We have the National Agency for the Prevention of Corruption, National Anti-Corruption Bureau, and Anti-Corruption Prosecutor's Office. What's left is to set up the Anti-Corruption Court. This court should be independent. Then it will be a guarantee for everyone that it would issue fair rulings.”
By contrast, Poroshenko defended his court proposal by saying that international involvement in the court’s creation would infringe on Ukraine’s sovereignty in an interview with the Financial Times.
By so doing, Poroshenko reneged on funding terms set by the IMF and on pledges made to the European Commission in return for relaxation of visa restrictions between Ukraine and the European Union.
Poroshenko never cited sovereignty issues when he gladly accepted billions of dollars, and visa privileges, from foreign donors and allies. By accepting both, he assumed the responsibility on behalf of Ukraine to deliver a truly independent “high” anti-corruption court.
Besides, foreign participation has been involved in Ukraine since 2014, notably concerning the appointment of specialized anti-corruption prosecutors and the head of the National Anti-Corruption Bureau.
He is also flouting the wishes of the public as well as of business. Political posturing aside, international investors will only accept proof, not promises, before they commit billions to build Ukraine’s economy.
“The fight against corruption... remains a priority for 2018, with the business community's expectations of eliminating corruption seen a key to economic growth and foreign direct investment attraction,” wrote Andy Hunder, president of the American Chamber of Commerce in Ukraine, in an e-mail last week.
A recent Chamber survey shows that his members see the creation of an Anti-Corruption Court as their number one priority. Respondents named NABU the champion of 2017, followed by electronic income declarations for state officials. And 71 percent of respondents stated that the most corrupt state institutions are the courts, 54 percent said it was tax and customs authorities, and 34 percent said local government authorities.
Poroshenko also went on the defensive, after activists and others have roundly criticized his court template, by repeating that the country has undertaken more reforms in the past four years than have happened in twenty-five years. Frankly, that’s not saying much, given the dreadful leaders of the past, but his point about some reforms is valid.
However, without the creation of a truly independent and efficient court, all the reform gains will be clawed back or sabotaged. For instance, NABU said in February that, out of the 116 cases it had sent to courts, 44 cases were not being considered. It has conducted almost 500 criminal investigations, though progress on the cases has been slow or nonexistent. Only two minor officials have been convicted to prison terms.
And also in February, Ukraine’s corruption rating, published by Transparency International, remained embarrassingly high and slightly worse than Russia’s.
Defended by tethered guard dogs, Ukrainians lack access to justice, lack opportunities to attract more foreign investment, and have no means to bring to justice former President Victor Yanukovych and his accomplices, still embedded in Ukraine’s government and society, that have looted the nation’s wealth and ruined lives.
This is not about a court. This is about finally changing the course of Ukrainian history.
Diane Francis is a Senior Fellow at the Atlantic Council's Eurasia Center, Editor at Large with the National Post in Canada, a Distinguished Professor at Ryerson University's Ted Rogers School of Management, and author of ten books.