BY
Over $12
billion disappears from
Ukraine’s budget every year, and global graft watchdog Transparency
International ranks the
country as Europe’s most corrupt. Though Ukrainians face demands for petty
bribes in all areas of their lives, the worst, grandest corruption is
perpetuated by high-level politicians, officials, prosecutors, and oligarchs
who operate with utter impunity.
Recently, a staggering $1.8 billion in aid from the International Monetary Fund disappeared offshore
thanks to the efforts of a single oligarch — and he has never been held
accountable. The Euromaidan revolution that deposed the venal regime of ex-President
Viktor Yanukovych and promised European-style governance is now nearly two
years in the past. Ukraine must, at long last, find a way to tackle this
endemic problem before it’s too late.
While Ukraine’s vibrant civil society continues to
demand that Kiev confront corruption, old guard officials from both the
government and parliament continue to fight change every step of
the way. What’s to be done? Surprisingly, the most useful model for Ukraine
could turn out to be the small and distant Central American country of
Guatemala.
Faced with its own endemic graft, Guatemala decided to
sacrifice a portion of its sovereignty, outsourcing its fight against
corruption to a hybrid international/domestic body called the International
Commission Against Impunity in Guatemala (CICIG). Doing the same would
surely be a difficult pill for Kiev to swallow, but milder measures simply
haven’t worked.
It’s a
radical step for Ukraine’s feuding politicians to take — but the fate of their
country depends on it.
CICIG was created in 2006 under an agreement between
Guatemala and the United Nations. It was established as an independent
investigative agency to target powerful criminal networks who were running amok
in the aftermath of the country’s long civil war. While CICIG operates under
Guatemalan law in the Guatemalan courts, institutionally it stands apart from
the rest of Guatemala’s government. Crucially, CICIG is fundedentirely
by voluntary contributions by foreign countries — principally the United States — with the
money administered by a trust fund created by the United Nations. As a result,
its operating costs aren’t dependent on the fortunes of Guatemala’s economy.
The body’s accomplishments are significant. Since its
launch, CICIG has investigated more than 200
cases of high-level corruption and brought charges against over 160 current or
former government officials. And CICIG isn’t afraid to go after the worst
offenders. The list of those it has prosecuted include powerful businessmen,
former generals, former defense and interior ministers, former heads of the
national police, a former president — and even the sitting president.
President Otto Pérez Molina ended up resigning and was indicted in
September after being investigated by
the agency in a $120 million customs corruption case. As Carlos Castresana,
CICIG’s first head, put it, the agency “puts government officials on notice
that the era of impunity is over. It also shows Guatemala’s people that no one
is above the law.”
CICIG owes its success to its unusual
quasi-international structure. The agency’s current director, Ivan
Velasquez, said that the key is its freedom to act outside of political
constraints. “You can’t influence us,” he told the Wall Street Journal. “We aren’t linked to the business
class, or military, or judges or lawmakers. That gives us enormous freedom.”
While CICIG could have been a purely international body, Castresana emphasized
that involving local authorities was key to ensuring domestic buy-in from both
the Guatemalan government and civil society.
Following
Guatemala’s example may be the only hope Ukraine’s immensely unpopular president Petro Poroshenko has of saving
his political skin. But CICIG does have a number of shortcomings. To make
a genuine dent in corruption, Ukraine needs an enhanced version that would
preserve CICIG’s key innovation — its status as a hybrid domestic and
international body — while making several important improvements.
CICIG’s first problem is its short mandate of just two
years. Guatemala’s president must agree with the United Nations to renew the
agency every time it expires. Consequently, its continued existence is alwaysin doubt.
And it’s not surprising that many politicians aren’t favorably disposed to the
agency, considering it has the power to investigate them for corrupt practices.
Needless to say, Ukrainian politicians, too, tend to
block anti-corruption legislation by proposing endless changes or inserting anti-reform
clauses into unrelated laws — so Ukraine would undoubtedly face the same
problem. To ensure that the Ukrainian version of the agency doesn’t become a
political football, it should begin with a minimum mandate of five years that
would be extended automatically, unless it were explicitly ended through
legislation.
Second, funding CICIG has been a constant challenge.
According to ex-CICIG head Castresana, much of his time while running the
agency was spent chasing donations from international donors. To mitigate this
problem, the United States and other Western donors should fully fund the first
five years of Ukraine’s version in advance. CICIG’s current budget is $12
million year, and since Ukraine’s population is three times Guatemala’s, $200
million should suffice for the first five-year period.
This may sound like a lot, but in the context of
current donor support for Ukraine, it’s a drop in the bucket. U.S. Vice
President Joe Biden has just committed $190
million to assist Ukraine in its fight against corruption. More broadly, the
International Monetary Fund and Western donors have already spent tens of billions of
dollars propping
up Ukraine. Since reforming the country without fundamentally addressing
corruption won’t succeed, the comparably small amount required to fund a
Ukrainian CICIG should be seen as a hedge on money that has already been spent.
Finally, for a Ukrainian CICIG to succeed, it must
possess two major powers the original does not. CICIG is an investigative
agency, but holds no prosecutorial powers, forcing it to rely on the regular
judicial system to secure convictions. This would be a huge problem in Ukraine,
since the General Prosecutor’s Office is widely considered to be one of
its most corrupt institutions.
According to Yegor Sobolev, who heads the
anti-corruption committee in parliament, the chief prosecutor — close
Poroshenko ally Victor Shokin — has refused to pursue any
of the hundreds of serious corruption cases Sobolev’s committee has brought
him. Despite numerous calls for Shokin’s dismissal, Sobolev alleges that he
remains in place because he protects the corrupt schemes that lead to the
president. To avoid relying on someone like Shokin, the Ukrainian CICIG needs
to be able to prosecute its own cases, in addition to investigating them.
It must also be allowed to work completely outside of
Ukraine’s regular judicial system, since Ukraine’s judges are also corrupt to
the core. The interior minister has even suggested shutting down
the country’s courts for three months while an entirely new judicial system is
built from scratch. Though such a drastic scheme is unlikely, it indicates why
a Ukrainian CICIG would need its own judges and prosecutors — something former
CICIG director Francisco Dall’Anese pined for as well.
Is it
feasible for such a scheme to work in Ukraine? Institutionally, the pieces
already exist. Ukraine’s National Anti-Corruption Bureau (NAB), which
reformers consider the
“point of the spear” in the war against graft, recently hired its first 70
investigators and detectives out of a planned 500. The NAB could serve as the
nucleus for a Ukrainian CICIG.
Ukraine also recently created a special
anti-corruption office within the General Prosecutor’s Office, leading toworries that the new
anti-corruption prosecutor risks being “eaten by the system.” Placing this
position in the Ukrainian CICIG instead would mitigate this risk while also
providing the agency with the in-house prosecutors it needs.
Finally, nothing would prevent the new agency from
hiring its own judges. To ensure the highest standards of justice, though, it
should create a “Chinese Wall” between its judges and other staff, ensuring
that its judges have separate facilities while banning any interaction between
judges and prosecutors outside of the courtroom. In sum, while the original
CICIG was embedded within Guatemala’s justice system, the Ukrainian version
would function like an international tribunal, institutionally separated from
the regular judicial system but still operating in Kiev under Ukrainian law.
The key question is whether Ukraine’s politicians have
the political will to outsource such sensitive government responsibilities —
especially if they fear becoming targets of investigations. But Ukrainian
reformers and their Western allies are not without leverage. Sobolev already
favors international involvement in Ukraine’s war on graft, and Kiev’s
dependence on Western aid plus Ukrainian society’s demand that the
government start a real fight against corruption could lend additional weight
to the proposal.
Ukraine’s
political class understands that the country’s mood is darkening. Only seven
percent of Ukrainians believe the current
strategy for fighting corruption is yielding results. Murmurs of a possible third Maidan are growing
louder, and extremist groups such as Right Sector vow “an execution
in some dark vault” for Poroshenko and his team in the event of a coup.
The
could compel Ukraine’s politicians to take radical steps that would be
unimaginable in less-tense circumstances. Just to be sure, though,
international donors should use the tremendous financial leverage they hold
over Ukraine by making further financial aid contingent on Kiev establishing a
Ukrainian version of CICIG.
Ukraine needs to treat the war against corruption as
seriously as it does its conflict with Russia. It is no less existential a
threat — and international help is no less necessary to win it.
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