Ukraine strengthens independence of key anti-corruption agency

Ukrainian MPs adopted a landmark law on October 19 that will advance and safeguard the independence of the National Anti-Corruption Bureau of Ukraine (NABU), the key agency in the country’s struggle against high-level corruption.

The NABU was first established in 2014 and began operating in 2015. During the past six years, the Bureau has demonstrated genuine professionalism along with a capacity to operate independently of outside influences. Together with the Specialized Anti-Corruption Prosecutor’s Office and the High Anti-Corruption Court, the Bureau has begun to bring corrupt members of the previously untouchable Ukrainian establishment to justice.

Since the High Anti-Corruption Court became fully operational in late 2019, dozens of cases has resulted in guilty verdicts. Those convicted have included senior managers at state-owned enterprises, judges, prosecutors, and elected officials found guilty of accepting bribes.

The economic impact of the Bureau’s activities, from asset recovery to disruption of corruption schemes, already exceeds the budgetary costs of its operations. NABU investigations have also proved instrumental in tackling corruption internationally. The Bureau has helped bring Ukrainian officials to justice in other countries relating to instances of bribery.

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Inevitably, the Bureau has encountered considerable resistance from an unholy alliance of corrupt Ukrainian politicians, the country’s powerful oligarchs, and opponents of Ukraine’s continued Euro-Atlantic integration. The NABU has been targeted repeatedly in attacks designed to destroy its mandate or gain political control over its activities.

In August and September 2020, opponents of the Bureau appeared to have achieved a major breakthrough. Following appeals from a number of pro-Kremlin Ukrainian MPs, the Ukrainian Constitutional Court declared all NABU-related presidential powers unconstitutional and revoked an earlier presidential decree on the appointment of the NABU director.

These rulings were actually the end result of a time bomb planted back in 2014 by the ruling elite looking for ways to sabotage Ukraine’s fight against corruption. The Constitutional Court’s verdict created legal loopholes that damaged the position of the Bureau itself, while also significantly undermining trust in the permanency of Ukraine’s anti-corruption reforms among the Ukrainian public and the country’s international partners.

Following this setback, President Zelenskyy’s Servant of the People party attempted to update the Ukrainian Constitution and introduce the necessary presidential powers to appoint and dismiss the NABU director with the consent of parliament. However, the Constitutional Court blocked these amendments.

Faced by this barrier, the only remaining solution was to adopt a new law, co-authored by my colleagues and myself, that would eliminate legal loopholes to the status of the Bureau and restore confidence in the government’s commitment to anti-corruption reforms.

The newly adopted law now brings the regulations governing the NABU into line with the Ukrainian Constitution. It defines the status of the Bureau as an executive body and empowers the Cabinet of Ministers to appoint the NABU director, but at the same time establishes strong guarantees of institutional independence.

For example, in line with the new law, the Cabinet of Ministers cannot interfere in any of the activities or investigations of the Bureau, nor can it dismiss the NABU director unless for a number of strictly defined objective reasons. The government is also unable to limit NABU funding or influence the Bureau via other means.

The most important part of the new law is the section governing the procedure for the appointment of the next NABU director. This is the key guarantee of the Bureau’s future political independence.

The next NABU director will be appointed by a specially designated selection commission that will conduct a transparent competition, with independent international experts set to play a decisive role in the process. This model anticipates even greater engagement of independent experts than the format used during the successful selection process for the High Anti-Corruption Court. It takes all of the Venice Commission’s recommendations on board, corresponds to Ukraine’s main anti-corruption commitments to the IMF, and has been endorsed by the G7 group of ambassadors.

The law also provides for a smooth transition in the leadership of the Bureau. The current NABU director will remain in office and continue to exercise all his powers until the expiration of his term in April 2022 or the appointment of a successor, with the selection process set to begin immediately following the entry into force of the recently adopted legislation.

The independence and integrity of the National Anti-Corruption Bureau of Ukraine is one of the central pillars of the Ukrainian government’s anti-corruption policies. Given the resistance of the old political elites and the country’s oligarchs, this is not always an easy task, but recent developments underline the commitment of the present authorities to transforming Ukraine into a modern European state free from corruption.

Slowly but surely, Ukraine is demonstrating its resilience as a regional trendsetter in the creation of a robust anti-corruption infrastructure. This experience may well be worth exploring in greater detail during US President Joe Biden’s upcoming Summit for Democracy.

Anastasia Radina is a Ukrainian MP for the Servant of the People party and Head of the Parliamentary Committee on Anti-corruption Policy.

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Image: Officers from Ukraine's National Anti-Corruption Bureau (NABU) stand next to plastic bags filled with seized US dollar banknotes following a June 2020 probe into alleged bribery of state officials. A number of controversial court rulings in summer 2020 have placed the future of NABU and other key Ukrainian anti-corruption institutions in question. (Press Service of the National Anti-Corruption Bureau of Ukraine/Handout via REUTERS)