While the Ukrainian military continues to fight Russian-backed separatists in the east, it was the country’s bitter war on corruption that has exploded back into the spotlight last week. The decision by Ukraine’s constitutional court to strike down elements of anti-corruption legislation has brought protesters to the streets of Kyiv, with President Volodymyr Zelensky calling for an immediate legal response to nullify the court’s decision. Members of the court have framed their initial ruling and continued resistance as an attempt to maintain judicial independence and protect individuals, but the president and other public figures accuse the court of protecting the judges’ personal wealth and that of their political backers.
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This particular challenge is yet another inflection point in a long-running battle between potential reformers and the entrenched networks of privilege and wealth that have dominated Ukraine’s political and economic apparatus since independence in 1991. Setbacks are common, and progress is slow for any country when it comes to combating corruption, but the magnitude of the current scandal means that Ukraine is at a new crisis point. A weak or ineffective response could potentially bury the already-faltering reformist agenda of Zelensky’s cabinet. Alternatively, this could be the moment when a corrupt institution overplays its hand in a way that serves to reinvigorate and rearm the Ukrainian anti-corruption project.
Corruption in Context
Scholars of corruption are quick to point out the lack of any final answers or even definitions of terms when it comes to diagnosing corruption. Corruption is present in all countries to some extent, but it manifests in Ukraine as a systemic rather than episodic issue. To take one of many definitions, systemic corruption means “interdependence on deviate behavior in public and/or private sector institutions.” Individual action is informed by the so-called sucker mentality — the knowledge that you would lose out personally if you do not engage in corrupt acts like everyone else.
Additionally, the opportunity costs of engaging in corrupt actions make devious behavior acceptable and highly profitable. We are not talking about one or two “bad eggs,” but a ready-made template for those who want to take advantage of others. The case involving Ukraine’s constitutional court stems from the interplay of the country’s legislative, executive and judiciary branches that, despite their relatively recent creation, all exist within a specific post-Soviet context.
Volodymyr Zelensky’s presidential campaign was successful because it ran essentially on a one-issue platform — addressing corruption. This aim was rendered more plausible by Zelensky’s outsider status. The electorate was suffering from a lack of forward movement after the 2014 Revolution of Dignity, with progress stalled by the political and economic immediacy of the anti-terrorist operations against Russian-backed separatists. Zelensky came to power on the promise to end the conflict in the east and wage a war on corruption.
As an executive, Zelensky is still more or less understood to be “personally incorruptible,” and his position allows him a large measure of power to highlight corruption and work with MPs on financial crime legislation. His Servant of the People party initially dominated the polls, winning the country’s first-ever single-party majority in the Ukrainian parliament. As a result, the president was able to pass legislation aimed at clearing up a number of high-risk sectors like banking and security services.
The creation of the high anti-corruption court and the National Anti-Corruption Bureau of Ukraine (NABU) were viewed as significant steps, while the upcoming land reform process represents another big step in upgrading the country’s rich agriculture system. That being said, MPs are by necessity often connected to the country’s oligarchs who want to ensure that their interests are not harmed. The constitutional court’s surprise ruling was made on the basis of a complaint by MPs associated with the millionaire personal friend of Russian President Vladimir Putin, Viktor Medvechuk; the same group of MPs is also working with those loyal to the infamous oligarch Ihor Kolomoisky to challenge the land reform package.
On October 27, the constitutional court ruled that the National Agency on Corruption Prevention (NACP) no longer had the authority to require officials to submit electronic asset declarations. It also struck down the law that makes false declarations a criminal offense, calling it “excessive punishment.” In the words of Oleksandr Novikov, the head of the NACP, “The court has canceled all anti-corruption tools developed since Ukraine became independent.”
Several of the judges themselves are currently under investigation for making false declarations, which could mean jail time if the ruling is declared null and void. This is in keeping with the traditional alliance between the judiciary and the legislative branch, with judges able to protect the rights of oligarchs and MPs from legal challenges.
Both the war on corruption and with the separatists can be understood within a geopolitical context, meaning that both wars overlap and intersect. Much like the conflict in Donbas, the anti-corruption drive symbolizes turning away from Soviet and Russian influence in Ukraine in hope of enjoying the benefits of membership within the Euro-Atlantic community. The Revolution of Dignity was sparked by what many viewed as a move by then-president Viktor Yanukovych to take part in a corrupt transaction offered by Russia that would keep Ukraine from moving closer to the EU.
Corruption is articulated publicly as a Russian practice that has no place in Ukraine’s transition toward Western practices, and it appears that pro-Russian legislators and oligarch-backers have put up the most opposition to Zelensky’s reforms. But while it is dangerous to assume that oligarchs are necessarily in cahoots with Russian interests, the Ukrainian public has an understandably long and difficult relationship with anti-corruption rhetoric.
The average Ukrainian is extremely skeptical of the authorities, and many of the people the author knows personally who initially voted for Zelensky always qualified their choice with, “But I doubt anything will change.” Approval ratings have plummeted for the Zelensky administration despite his personal appeal, and his Servant of the People party was hammered in local elections last week. The pressure to deliver has never been higher.
Coverage of President Zelensky’s effectiveness as a reformer tends to revolve around the narrative of an actor discovering that the business of governance is actually quite difficult. While it is an evocative hook that references his rise to fame, all of Ukraine’s elected leaders have displayed a marked inability to move beyond rhetoric to achieve measurable gains. What makes Zelensky’s presidency so interesting is that his first year in office has shown noticeable improvements in terms of concrete legislation.
The space for corrupt activity has been shrunk, but the reshuffling of the cabinet and mixed messaging about going after high-profile individuals means that the administration is perceived as sliding back on its aims. According to Chatham House’s Orysia Lutsevych, “This is a Rubicon for Zelensky.”
In the immediate aftermath of the court’s decision, Zelensky introduced a draft law to reverse the ruling and remove the mandate from its current members. The legislation is aimed at restoring the public’s faith in the court as a legitimate organ of government, but the court’s judges and opposition parties have been quick to brand the legislation as an attempt by the executive office to gain control of the independent judiciary. The head of the constitutional court, Oleksandr Tupytsky, labeled the move a “constitutional coup.”
It is true that the president has no technical power to disband the court, and opposition parties like Holos have been content to merely call for the resignation of the judges, a move that Tupytsky has ruled out. But with four of its 15 judges already under investigation for breach of the declaration law, the optics are not in the court’s favor.
This particular crisis serves as the perfect example for the question of anti-corruption initiatives, namely: Can or should a country fight corruption from the top down? Given the power of MPs within the legislature covering for corrupt judges or prosecutors, a Chatham House report from 2018 states that “The process of cleaning up institutions must start at the top.” Reform efforts such as the creation of the NABU or the push to mandate the disclosure of property and financial assets for public servants have increased the pressure on those with something to hide.
However, the consolidation of anti-corruption rhetoric under Zelensky has made his administration vulnerable both to opportunistic opposition parties and their oligarch backers, as well as jeopardizing the democratizing push that catapulted Zelensky into office. A strong showing from a single party can only take the movement so far, and, as the Atlantic Council’s Adrian Karatnycky points out, the “remedy is not unilateral action by the president and his majority in the Rada. What is needed is a national consensus with the support of the pro-Western opposition.” This struggle takes place amidst increasing pressure from Kolomoisky to stop land reform as well as reclaim his PrivatBank that was nationalized in 2016 under President Petro Poroshenko.
Ukraine’s former economy minister, Tymofiy Mylovanov, is more sanguine about Zelensky’s options for weathering the storm. “If the law goes through, Zelensky comes out a victor, recaptures control of the parliament, and demonstrates in the public eye that he is trying to fulfill his promises of getting rid of the corrupt elites and making Ukraine prosperous,” he said. But “if the law gets stuck, it is parliament that is to blame.”
The question remains about how effectively Zelensky can cooperate with a parliament that would presumably continue to hemorrhage allies, meaning that his party can only hope that the constitutional crisis is resolved in a way that allows the president to achieve a public victory. Whether understood as a self-perpetuating environment or simply as actions of malicious or greedy individuals, corruption flourishes when allowed to become the status quo. The battle for the constitutional court and, by extension, the legitimacy of much of Zelensky’s anti-corruption legacy will be fought with all sides utilizing the public rhetoric of upholding the laws of Ukraine.
For Volodymyr Zelensky, the judges know that “only a weak president and a weak state are a guarantee of preserving their corrupt lifestyle.” The fear now is that executive attempts to strengthen the state will simply erode support from other stakeholders while failing to disincentivize corrupt behavior.
Progress is understandably relative, and the power of corrupt networks has had over three decades to grow and evolve. The rhetoric of war, whether on corruption or separatism, would seem to promise glory and immediacy of a result that can only lead to disappointment for a weary public. Ukraine has yet to win its war on corruption, and it seems to be put in an untenable geopolitical position by a hostile government in Moscow. That being said, Russia lost its battle with corruption a long time ago. Ukraine has taken a different path, and it remains to be seen whether it will succeed.
The views expressed in this article are the author’s own and do not necessarily reflect Fair Observer’s editorial policy.