With the expected establishment of a national Anti-Corruption Bureau by the end of this year, Ukraine may be embarking on its most ambitious project in its fight against corruption.
The bureau will be a specialized law
enforcement body targeting corruption and will combine elements of police and
prosecutorial powers. It will open cases against corrupt officials, conduct
investigations and bring cases to court.
Ukraine has never had any state body with
similar powers since its independence.
The anti-corruption law signed on Oct.
23 creating the bureau empowers it to demand any information from law
enforcement bodies and government agencies relevant to its investigation.
The bureau can also seal off cash
registers, premises and confiscate evidence and documents on the basis of a
court ruling. It can enter government offices, local self-government bodies,
military units or border and custom control buildings. Its members have the
power to use firearms as well as apply physical force. It can also represent
state interests in foreign courts, for example, to return stolen assets to
Ukraine.
But many questions remain. To get some
of the answers, the Kyiv Post interviewed Juhani Grossmann, an
anti-corruption expert who has been in charge of implementing anti-corruption
programs in Eastern Europe and Southeast Asia for more than a decade.
He now heads Management Systems International’s $17 million U.S.-Agency for International Development-funded
Strengthening Integrity and Accountability program in Indonesia, which supports
the Indonesian version of the anti-corruption bureau. It is known as the
Corruption Eradication Commission.
Grossman also spent five years in Ukraine, working on elections and anti-corruption programs, and is now a member of the board of directors of Transparency International-Ukraine.
Kyiv
Post: The anti-corruption reforms were successful in Singapore and Hong Kong,
while in Indonesia it is work in progress. What are the chances for Ukraine?
Juhani Grossmann:
Singapore and Hong Kong are specific examples and we have to be
careful about extrapolating from them to other places. First, they are both
very small. Second, they are both fairly affluent. Third, neither of them was
democratic when they tackled corruption. These elements make Singapore and Hong
Kong much different from Ukraine. If you have a well-meaning autocrat, it is
easier to address societal problems, not just corruption. This sort of national
reform is more challenging in a democracy, though it can also more sustainable
in a democracy. Here in Indonesia, the government decided to create
anti-corruption commission in 2003. Since then it had tremendous success in
investigating and prosecuting top-level corruption cases. But corruption cannot
be tackled by one elite agency; it should be what the whole country does.
KP: What,
in your view, is so significant about the anti-corruption laws that Ukraine
enacted?
JG: I am glad that Ukraine
will finally create this very important body. It will have some limitations
brought by weakening it at the last minute by parliament. The key weakness is
that the parliament can fire the director too easily. It is too bad. The independence
of the director from political pressures is of crucial importance. Here, in
Indonesia, it is a collegial body led not by one individual, but by a board of
five with one chairman and two deputy chairmen. This collegial body has been
quite good at fencing off outside pressures. They get appointed with the
approval of parliament and at that time of the appointment there is some
horse-trading. But once in office it becomes rather difficult to get rid of
them. While there have been attempts, including fabricated criminal cases, the
agency was able to withstand the external pressure. The Ukrainian
anti-corruption bureau will have harder time in defending itself against
politicization and political interference.
KP: How
do you respond to critics who say that this bureau does not address the
root-causes of corruption and is created to punish rather than prevent
corruption?
JG: The anti-corruption model in indonesia has both preventative and investigative functions. This is based on the so-called Hong Kong model which integrates both.
KP: Investigation,
prevention and education?
JG: Yes. Ukraine has adopted
a different model where they have prevention and enforcement in separate
agencies, but I do not see anything wrong with it. You cannot completely eradicate
corruption ever. Even the countries in Scandinavia and Singapore that top
anti-corruption ratings still have corruption. Therefore, you need somebody to
investigate and prosecute corruption that does exist.
You can do a lot of
prevention work and Ukraine has already done some of it, like improved licensing
system or one-stop shops. But you arrest one minister for taking a bribe and
the public education from such an arrest is that people suddenly start to
realize that elites are not immune. They can go to jail. That realization has a
tremendous catalytic effect on society.
Ordinary Ukrainians
demonstrated that they are able to stop corrupt leaders, not once, but twice
now. Ukrainian people are equally important to fighting corrupt officials, as will
be the new bureau.
KP: Tetyana
Chornovol, who was supposed to be the head of the future bureau, said the law
gives the opportunity to prosecute businessmen and extort them for bribes.
JG: Wherever there is law
enforcement agency there are potentials for abuse. I do not see it as a fatal
flaw to the potential of the agency. Businesses are very engaged in corruption
in Ukraine. The fact that the Indonesian anti-corruption agency does not have
powers to go after business-to-business corruption, but only after cases where
there is a loss to the state, is a serious handicap.
KP: Do
you see the politicization as a potential problem for the future
anti-corruption bureau?
JG: The litmus test would be
if the bureau is ready to go after officials from the current government. This
will be the way to see if they are serious or not.
KP: So
what is the strategy for the bureau to build the trust among society and media?
Going for current government officials if they are corrupt for starters, right?
JG: They should go wherever
the case leads them.
KP: In
Indonesia, what is the social status of those who work at the agency? Are they
respected?
JG: They are respected, but
usually in an anonymous way. Many of them, especially the investigators, are
not public figures…The leaders of the agency are public figures with high
status in society. The spokesman (of the anti-corruption bureau) is the most
quoted man in Indonesia. The extent of media attention that the agency gets is
outstanding. They have 40-50 beat journalists who do nothing else except cover
the (agency). If you go to the agency those journalists are always there, in
their own pressroom, waiting for news and writing stories. News out of the
agency is in the media every day, at least one story in every outlet. It is an
exception when you pick up a newspaper and it does not have a story about the
agency.
KP: Are
they better paid than other civil servants?
JG: In Indonesia agency’s
salaries are not private sector salaries but they are significantly higher than
other government salaries. Salary adds independency and staff retention. I
understand that the original salary standards in the Ukrainian law were
weakened. That’s unfortunate. Of course, if you have more flexibility and more
funds, you can attract better people. But I still think there will be long
lines of people who would want to work at that agency. It should be a matter of
prestige. It should not necessarily be a life-long employment, but I hope that
the graduates of the prestigious universities would want to work there for a
while.
KP: Indonesia
saw nationwide protests in support of the anti-corruption bureau. Can the
Ukrainian bureau count on a similar societal support?
JG: I hope so. Given the
weakening of the final draft of the law, at this stage it is essential. If the
agency takes this attitude ‘we are law enforcement agency, the public does not
understand what we do, we are under no obligation to report to them,’ they are
doomed. The bureau derives its authority and legitimacy not from the parliament
but from the Maidan (EuroMaidan Revolution) and is responsible to the people. It
is will a grave mistake to assume the air of superiority as some other law
enforcement agencies unfortunately do in Ukraine.
The agency has to very
actively and continuously engage with the public. Report to the public. Keep
the public with it. That is the only thing that will protect it from the
inevitable onslaught of the politicians. If the bureau does its job well, the
politicians will hate it and will try to fight back. The only way for the bureau
to defend itself is to have public on its side. The bureau has to take the
relationship with the public very seriously, not as an afterthought, as a
press-conference at the end of the day. It should be part of every decision
that the agency makes. How do we involve the people in this process?
KP: How
can the bureau be effective if the other parts the state system are not yet
reformed?
JG: Having those reforms is
crucial if you want to have serious anti-corruption environment…At the
beginning they should only take cases that are very easy to prove, like bribery
for example, when you catch someone red-handed. If you have that kind of
evidence it is really difficult even for the court that wants to be biased to
throw out that evidence.
KP: Go
for simple cases first?
JG: Simple cases don’t mean
low level officials; it can be high-level officials. Just do not go for
offshore money laundering schemes that involve multiple shell companies. It is
too difficult for a new agency. Look at bribery, cash in envelops or Xerox
boxes. Those kind of low-hanging cases allow you to build expertise and
experience that you can carry on to the more difficult cases.
KP: The
head of the bureau is given only several months to form the agency of more than
700 people. Should they hire professionals with experience, who used to fight
corruption in the police and the prosecutors’ offices, but who might be corrupt
themselves? Or they should rely more on new people, who have integrity but no
experience?
JG: Ideally, you need both
experience and integrity. It is not always possible. One thing you can’t
sacrifice is integrity. You can hire someone who has integrity and is smart and
you can train them, but if you have someone without integrity, this person is lost.
My experience with law enforcement in Ukraine makes me very skeptical about
their ability to project integrity as a group.
KP: Should
they hire investigative journalists?
JG: Sure. They should hire journalists, management
experts, sociologists, linguistic majors, math experts and economists. They
should hire everybody. Corruption is a multifaceted crime. You then train an
investigative skill.
KP: Who
can train Ukrainian anti-corruption bureau staffers?
JG: Ukrainian policemen and
prosecutors with integrity. If those are not willing, you can get international
experience. There is lots of retired anti-corruption agency staff from other
countries you can bring in. Typically those programs are sponsored by donors,
such as USAID, the United Nations Development Program and the World Bank.
Editor’s Note:This article is part of the Kyiv Post’s Reform Watch project, sponsored by the International Renaissance Foundation. Content is independent of the financial donors. The newspaper is grateful to the sponsors for supporting Ukraine’s free press and making specialized coverage of reforms possible through this project.
