KIEV, UKRAINE. OCTOBER 7, 2014. People throw rotten tomatoes at portraits of corrupt Verkhovna Rada (Ukrainian Parliament) members outside the Ukrainian Parliament building.
IMAGE: MAXIM NIKITIN/TASS

Ongoing Ukraine Reforms Will Not End Corruption

However, one alternative approach can.

by Keith Darden, Vox Ukraine, Hromadske International

What you need to know:

✓ Despite war with Kremlin-backed separatists, looks like corruption is still Ukraine’s own worst enemy

✓ Amid vocal support for anti-corruption reforms coming from Ukrainian officials, little has changed in Ukraine since the Euromaidan revolution

✓ The lustration reform might provide some help in fighting corruption, there are concerns it may open the way for political persecution

✓ An alternative approach is to empower citizens — rather than politically appointed prosecutors — by allowing them to prosecute corruption cases themselves, using qui tam writs and on behalf of the state.

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How Bad Ukraine’s Corruption Is?

Corruption is the main impediment to Ukraine’s prosperity and long-term security. If Ukraine had an effective, efficient and less corrupt state, it would enjoy legitimacy, investment, and, as a country of 46 million people, would face few threats — either foreign or domestic — to its sovereignty and territorial integrity.

Despite brutal war with Russian-backed rebels, looks like corruption is still Ukraine’s own worst enemy.

Instead, corruption is still a growing problem in Ukraine. In 2013's Transparency International Corruption Perceptions Index Ukraine was ranked 144th out of the 177 countries investigated (tied with Iran, Cameroon, Central African Republic, and Nigeria).

2013's Transparency International Corruption Perceptions Index

Despite the war with Russian-backed rebels, looks like corruption is still Ukraine’s own worst enemy. Just recently the Office of the General Prosecutor announced that it is bringing charges against several former Defense Ministry officials who purchased substandard body armor for the army:

They are accused of spending $5.6 million to buy 17,080 pieces of low-quality body armor, which, according to reports in the Ukrainian media, have led to dozens of casualties and deaths during military operations in the east. The armor was apparently incapable of withstanding a direct hit from a bullet.

Bribery has been widespread at all levels of Ukrainian government and public life since independence, but international watchdogs say corruption and cronyism worsened dramatically during President Yanukovich’s four years as president.

Since the ouster of Yanukovych in February, new Ukrainian government promises sweeping changes, starting with the lustration law:

Justice Minister Petrenko said those targeted by the law, which Poroshenko signed on Thursday, would include officials at minister and deputy minister level who had served under Yanukovich for more than one year.
“The purge has to start with the head,” he said. They will fall under ‘lustration’ and must be dismissed within 10 days of the law coming into force.”
Among those in the firing line would be prosecutors, judges, investigators who had falsified criminal proceedings during the Euromaidan protests and civil servants who, by their actions, had supported separatism and “terrorists”, he said, using the government’s term for pro-Russian fighters in the east of the country.
State officials would also have to make available for inspection their income and expenditure in order to justify their lifestyles — a move targeting officials leading a life of luxury financed by bribe-taking and cronyism.
Corruption in Ukraine did not begin with Mr Yanukovych — nor will it end with him.

Amid vocal support for anti-corruption reforms coming from Ukrainian officials, little has changed in Ukraine since the Euromaidan revolution back in February. As The Economist puts it, “corruption in Ukraine did not begin with Mr Yanukovych — nor will it end with him. ”

Weak institutions, low morale, and an underdeveloped sense of public service have made everyone from judges to traffic police liable to corruption over Ukraine’s entire post-Soviet history. Murky privatisation overseen by the former president, Leonid Kuchma, in the mid-1990s created a class of oligarchs who came to exercise outsized influence on politics and business. That the two main candidates for the presidency in the recent election — Petro Poroshenko and Yulia Tymoshenko — both made large fortunes through opaque dealmaking in the 1990s shows the unshakable dominance of the power structure formed in that era.

The Ukrainian public is growing frustrated with inability of the new government and President Poroshenko to fight massive corruption, as polls suggest.

IFES September poll, funded by USAID

Why Lustration Might Not Work?

How can Ukraine become less corrupt? One solution is lustration, or a purge of corrupt officials through massive anti-corruption campaigns. But what if the problem is not simply bad people, but bad incentives and institutions? Or if it is not so easy to select “good” honest and capable people to staff the bureaucracy? If this is the case, then lustration will not solve the problem. And the history of massive anti-corruption campaigns and lustration efforts is not terribly promising as a means to root out corruption.

Prosecution is often selective — targeting one’s political enemies rather than treating all potential cases equally — and such campaigns often devolve quickly into politically motivated efforts to redistribute the spoils of the state. Purges of this kind may result in a turnover in personnel as the loyal members of one political faction are replaced with those of another, but not a change in the corrupt nature of the system. Corruption remains.

Where it all began: Ukrainian frustration with politicians swelled in the summer after parliament rejected several attempts to pass a bill that would permanently remove from office certain officials connected to past wrong-doings. In this video, activists protest former Yanukovych supporters outside the Rada in August
A key problem with anti-corruption or lustration campaigns is that they empower state-appointed prosecutors — and prosecutors have their own political incentives.

A key problem with anti-corruption or lustration campaigns is that they empower state-appointed prosecutors — and prosecutors have their own political incentives. Prosecutors have an obvious disincentive against prosecuting those who appointed them or who work within their ranks, and an obvious incentive to target political rivals for investigation and prosecution. Such campaigns are rarely seen in democratic societies, but are a staple feature of Communist and post-Communist states. They have historically been used to remove political rivals when a new faction rises to power. More generally, if the state bureaucracy itself is the problem, empowering bureaucrats seems destined to fail as a solution.


Throw Lustration In Trash, Empower Citizens

An alternative approach is to empower citizens — rather than politically appointed prosecutors — to root out corruption. One way that this has been done in democratic societies is by allowing private citizens to prosecute corruption cases themselves, using qui tam writs for certain types of crimes. The qui tam, which is short for qui tam pro domino rege quam pro se ipso in hac parte sequitur, Latin for “[he] who sues in this matter for the king as well as for himself,” allows citizens to file lawsuits on behalf of the state.

Qui tam writs are particularly useful in cases where the state itself is the problem, and in the U.S. they are applied to cases of Federal Government corruption through the False Claims Act. When money is being stolen from the state, often with the collusion of state officials, the qui tam provides a way for individual citizens or citizen organizations to file lawsuits on behalf of the state to prosecute the guilty parties and retrieve the stolen money.

What is Qui Tam?

Qui tam provisions reduce the incentives of officials to risk corrupt practices and shift the balance of power in favor of the public interest in two important ways.

First: they empower any private citizen to act as a prosecutor in cases of corruption. Because any citizen can file the suit, there is no way for the corrupt official to curry favor with the potential prosecutor — there are simply too many. And since prosecution does not rely on the state prosecutor, the political affiliation or personal integrity of the prosecutor ceases to matter. Indeed, in principle, citizens could even target a corrupt prosecutor.

Second: the qui tam laws typically provide citizens with a financial reward for doing this dangerous and time-consuming work. Most laws with a qui tam provision allow citizens who file the writ to receive some percentage of the financial penalty paid by the law-breaker or to be rewarded with a significant percentage of the moneys that their efforts have recovered for the state. They act a bit like the reward bounties provided to citizens who assist in apprehending criminal suspects, but instead citizens are rewarded for identifying and successfully prosecuting certain criminal acts, not simply apprehending criminals identified by the state.

Qui tam laws: the more you steal, the more incentive citizens have to catch you, and the more likely you will be caught and prosecuted

These sums can be quite large — enough to finance continuously-operating civic anti-corruption groups. But most important, the incentive to expose and prosecute the corruption increases proportionately with the scale of the corruption. The more you steal, the more incentive citizens have to catch you, and the more likely you will be caught and prosecuted. For example, let us say that a ministry of defense official pays a contractor (who is perhaps an old friend) ten million dollars to provide combat rations and the rations delivered are below the quality or quantity stipulated in the contract. A citizen learns of this and files a qui tam writ. If a judge decides that the contractor (and perhaps the defense official) have defrauded the government, the contractor would be forced to pay back the 10 million dollars, plus penalties, face possible imprisonment, and the citizen’s organization that filed the qui tam writ would get 10% of the 10 million, or one million dollars.


But Will It Work In Ukraine?

Can a law like this be applied in Ukraine, a country facing an economic crisis, secession and war? Yes. It is worth recalling that the US False Claims Act was enacted by President Abraham Lincoln at the height of the US Civil War in conditions not unlike contemporary Ukraine. Lincoln faced a deeply corrupt US bureaucracy, a Justice Department (Prosecutor) that he could not trust, challenges to his authority within the corrupt ranks of his own “supporters”, and secession and civil war from the southern states of the Confederacy. The effectiveness of the war effort was significantly hampered by problems with supply: contractors, in collusion with corrupt officials, were pocketing government money and supplying inferior (cheaper) rations, transport equipment (mules) and old and shoddy ammunition to the Union army. Because he could not rely on officials in his state to police themselves, he empowered his citizens to root out corruption through the False Claims Act, and rewarded them for their service. As a result, he not only won the war. He created the foundations of a robust, more efficient, and less corrupt state and an empowered citizenry to watch over it and keep it honest. There is no reason that Ukraine cannot do the same.


KEITH DARDEN is Associate Professor in the School of International Service at American University. Prof. Darden’s research focuses on nationalism, state-building, and the politics of Russia, Ukraine and Eurasia. His forthcoming book,Resisting Occupation in Eurasia (Cambridge University Press), explores the development of durable national loyalties through education and details how they explain over a century of regional patterns in voting, secession, and armed resistance in Ukraine, Eurasia and the world. His award-winning first book, Economic Liberalism and Its Rivals (Cambridge University Press, 2009) explored the formation of international economic institutions among the post-Soviet states, and explained why countries chose to join the Eurasian Customs Union, the WTO, or to eschew participation in any trade institutions.

P.S. Our extended thanks to The Office TV-show for its valuable input.

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