The director of TI gives his opinion on the ups and downs of Ukraine’s anticorruption policies.
Transparency International Chair of the Board Jose Ugaz knows pretty much everything there is to know about corruption – both in theory and in practice.
He used to teach criminal law as an academician; as a practitioner he was in charge of investigations concerning Peru’s top government officials.
It was precisely under his leadership that the investigations on corruption against the country’s President Alberto Fujimori, Head of Intelligence Service Vladimiro Montesinos and many others were triumphantly completed.
His endeavors have led to the conviction of over 1,500 highprofile officials.
In 2002 José Ugaz took the lead of TI Peru; in 2014 he has been elected the Chair of the Board of this organization.
Ugaz visited Kyiv a year ago; he met with the President Petro Poroshenko, took part in the meeting of parliamentary committee on corruption prevention and in an interview with LIGA.net spoke about what little time the government has left to start tackling corruption in deeds, not in words.
“President Poroshenko certainly realizes that the window of the opportunity for the reforms is becoming very narrow and that a lot of precious time has been lost already.
And if in the immediate future people don’t see any results – and I mean within the approximate time span of a couple of months – the public trust will be irrevocably undermined” – Mr. Ugaz commented back then.
It has been almost a year since that interview.
It looks like during the current visit, José Ugaz has been met with far less understanding among the state officials – for instance, his comment on the absence of court rulings on cases against Yanukovych raised quite strong objections from the Prosecutor General.
However, the fact remains – Ukraine, far from providing any court rulings against its admittedly odious ex-president, could not even ensure his name remained on Interpol’s Most Wanted list.
The particular results of the year were the topic of the conversation between José Ugaz and the correspondent of LIGA.net
– Mr. Ugaz, we still remain in a state of war with corruption, but in recent months there is an increasing sense that the war is being lost.
Hence the question: what advances did Ukraine nevertheless make in this battle in the course of the last year?
– The obvious advance is the very creation of the anticorruption infrastructure.
In my opinion, all of the main mechanisms for tackling corruption are already available – for example the Anticorruption Bureau, specific [anti-corruption] laws, the e-procurement system ProZorro and many other capacities for better transparency in decision-making.
You already have a publication system of asset declarations, which makes it impossible for public officials to keep any illicit enrichment secret.
Therefore, I believe you have all of the components layed out for you to be able to construct a functioning anticorruption strategy.
However, the gap between the ability of strategy construction and its actual implementation still remains in place, and this gap is first and foremost stemming from the absence of political will and deficit of leadership, both of which are crucial for bringing together available resources and starting the effective fight against corruption.
– So can one consider this to be the main obstacle to the completion of anticorruption infrastructure creation?
– Even considering the fact that it is not yet completed, whatever is already created is sufficient for the system to start properly working against corruption – that is, of course, in case you have enough political will for this matter.
Taking into the account your losses from corruption in the very institutions that are designed to fight it, this should be enough to give a substantial result already.
Sure, the anticorruption system in the current state is far from perfect – you clearly lack anticorruption court, NABU lacks authority, as I had mentioned at the conference, – and certain additional elements, which could be attached to this infrastructure.
But I am fully confident that even in the current state the system is built up to the sufficient level to be able to deliver results.
That is why in my view, the only thing you are in a particularly short supply is political will.
– Then, could it be that the creation of the corruption infrastructure can be regarded as completed, at least on its initial level, if we still have zero court rulings on major corruption cases?
If the perpetrators of corruption are not being prosecuted, is this a sign that the system simply failed?
– There are various reasons why this occurs – for example, the prosecution proceedings are concluded, but there are no courts willing to further undertake them.
Or vice versa – there are judges willing to deal with corruption cases, but it’s the prosecutors office now that is not able to bring the cases to the state of readiness for the court hearing.
For now, what I see is the Prosecutor’s Office not bringing to trial the fair amount of high-quality proceedings. This situation ought to be fixed.
That is exactly why I keep repeating that in addition to creating an anticorruption court it is imperative to find political will in order to put existing structures to work and produce results.
– In your opinion, what are the root causes of the present situation – is this a sabotage or mere unprofessionalism?
– I think one can suggest that it is a combination of both.
On the one hand, in order for this job to be done well, a proper professional competency is needed and the observable result, sadly, does not give positive indications on this matter.
To investigate corruption cases one needs professionals who have a good understanding of the financial institutions workflow, financial mechanisms, accounting, functioning of offshore companies, nuances of legislation, and the search for hidden assets –
for all these tasks you certainly need a proper level of competence and I cannot say whether the Prosecutor General has these kinds of resources currently available.
But on the other hand, I suspect that there was not enough effort put into making this system work.
Whenever I hear that the proceeding is suspended is because the document translation is not complete, I consider this to be an excuse, a mere lack of the commitment to move on –“translation problems” can not be the reason why the investigation of the corruption case can be withheld for long.
In case you need money to pay your translators, you ought to earn that money first, including due to the results of your investigation.
Either way, I reckon that both reasons have the equal chance to be true.
At one level, there is political pressure present to conduct certain investigations, and the investigation is not independent enough to be able to ignore this pressure and keep moving, completely disregarding consequences this investigation might have for certain political actors, parties and circles.
In general, the absolute independence of the investigation is a necessary condition for the system to function well.
– Can the current situation be fixed due to the efforts of Ukrainian civil society –
or the Ukrainian government’s political will awakening need additional pressure from international organizations, both governmental and non-governmental?
– I believe you will need both. We are seeing motivated and fully committed people in Prosecutor General’s Office, in National Anti-corruption Bureau of Ukraine, in Specialized Anti-Corruption Prosecutor’s Office, in National Agency for Prevention of Corruption, even in the courts there are some decent judges and you should use all of these resources to create positive dynamics even in thees old, unreformed structures.
This can be a risky task for those who want to undertake this mission in such structures – they will be pressured, and they risk losing their job etc. – and we already witnessed some bright examples of resigning prosecutors who made public statements on the lack of commitment to investigate coming from their directing management.
And this is actually one of the positive examples of the current situation, because it demonstrates that Ukraine is full of people who do not tolerate such active interference and are willing to keep going.
This is to the point of the government being pressured by internal forces – clearly, Ukraine does not lack assertive people who are willing to go through this, with a complete understanding of the stakes they and the whole country will have to face, and the sacrifices needed in order to succeed.
In constrast, international expertise demonstrates that external pressure and external monitoring are also required.
Coming from the international community, intergovernmental organizations such as the Organization for Economic Cooperation and Development, the World Bank, the International Monetary Fund, the United Nations, as well as from foreign governments and embassies.
It has often helped around the world, so it ought to do the job here as well.
And, of course, the role of civil society is immense (by the way, Transparency International is a good example of an international organization created precisely due to the efforts of civil society).
– Another problem of fighting corruption in Ukraine is that this struggle starts losing favour and support because people do not observe any distinct results of it.
This causes apathy.
By the way, the only way to pressure the government, which unconditionally justifies itself, is the external financial aid.
Almost all major advancements in the reforms took place under the threat of Ukraine not receiving its next IMF tranche.
However, there is still no success in creating efficient internal mechanisms for such pressure on the authorities.
– Well of course, you usually look much more convincing with a signed paycheck in your hand.
I recently met with Mme Lagarde, we discussed the potentially conditioning the provision of regular loans to Ukraine by increasing the role of anti-corruption indicators.
The IMF has already invested more than $6 bln in your country and another investment of $2 bln is scheduled.
It is expected that the IMF will be interested in good conditions and efficiency in the work of Ukrainian anti-corruption structures.
Permanent subjects of discussion with the government officials are the anticorruption court, strengthening the NABU’s authority, Yanukovych’s assets…
We too, are not planning to weaken our pressure on anti-corruption reforms promotion.
But you are right – unfortunately, the Ukrainian government is now more likely to respond to a strong external stimulus, rather to an internal one.
– Although you are talking about the government as a whole, it is clear that you mean specific people. People who are individually responsible for anti-corruption reform implementation in the country.
– As it is in the rest of the world, this responsibility rests mainly on the Head of State.
This is particularly important in tackling corruption, because the functionaries need a clear role model from the top management, and in the case of a republic, it is the figure of the President.
Then, of course, we should not forget about the heads of state institutions whose task is to directly implement anti-corruption measures – the Minister of Justice, for that matter.
Who, incidentally, has recently signed with us an agreement on allowing public access to the register of final beneficiaries of offshore companies; this should have a very positive impact for public monitoring over the property of state officials.
In general, heads of the Ministry of Justice, the Prosecutor General’s Office and the NABU are equally responsible for implementing the anti-corruption policy.
And certainly, the Parliament should play a key role here, albeit we see that the Parliament, which is obliged to pass laws in support of anti-corruption policy, is instead playing against it – amending the laws, setting new restrictions for the NABU, trying to intimidate civil NGOs with absurd demands to present sources of financial aid.
On the other hand, responsibility lies on the shoulders of the civil society as well, since confronting corruption is a nationwide task, one does not simply delegate its completion to the functionaries and then sit back and wait for them to do the job.
In order to achieve a breakthrough in this case, the efforts of the entire country are required.
– And who, in your point of view, is preventing anticorruption reforms most of all?
– The mood of the Parliament deputies bothers me the most, since the Parliament is actively posing obstacles to anti-corruption reforms.
I also believe that the Prosecutor General’s Office clearly lacks general commitment in combatting corruption. They should be much more proactive and work more purposefully on resonant cases.
In other countries, in the event of such problems with the Prosecutor’s office, we usually turn to the office of the Chief State Counselor of Justice
[This structure protects the interests of the state in civil law proceedings and consults governments on legal matters; In Ukraine such a state institution has never existed – Ed.] –
recently in Brazil we managed to mobilize all their authorities and with their help efficiently force the Prosecutor’s office to change the approach.
– Coming back to the subject of the political will, In our context, is this the prerogative of presidential power?
Or can the political will be found somewhere else as well?
– Whether or not the political will from the head of state is manifested, the responsibility for manifesting or creating a request for political will remains on the side of civil society. This is precisely what happened in Romania a few months ago, when the government and parliament attempted to actually legalize bribes worth up to €10 000.
Thousands of people took to the streets and forced the government and parliament to reverse their decision.
When the president of South Korea was found to be involved in corruption with her advisor, millions of Koreans took to the streets – and this protest forced the president to resign.
Last year in Brazil, mass protests led to the impeachment of President Dilma Roussef, who was trying to appoint Lula da Silva the Head of Administration and to infer him from the inquiry process on corruption case. Even right now President Temer is in a similar situation.
In Guatemala, tens of thousands of people each Saturday have been coming to the square in front of the government building every month to protest corruption, until the Attorney General’s Office has launched an investigation, the results of which sent the President and Vice-President of Guatemala to jail.
There are enough examples in the world of how people create their political will to fight corruption and pressure the government to move in the right direction, even if the authorities have no motivation for this.
– Recently, it happened here as well. The attempt of the authorities to get Nasirov away from responsibility resulted into people coming to court to stop his release.
– Actually, you have just answered your own question – we can create our own political will, indeed.
For this, it is enough for people to realize that their power lies within themselves.
And if people understand this, they will always find a way to make a difference. It happens all the time, and everywhere in the world.
You started with the fact that people fall into apathy because the government still has no achievements in the war against corruption – of course, corruption is there, but at the same time there are so many events going on right now, which demonstrate that victory over this issue is possible, you just need to find a way to apply already found and tested solutions in your own country.
– In that case, don’t you think that it’s better for us to stop counting on constructive cooperation with the government in corruption tackling and start looking for ways to solve this problem without participation of authorities?
– Of course, not. We still have quite a few means to be able to achieve results together with government structures.
At least the signing of the agreement with the Minister of Justice mentioned above clearly shows that the Ministry of Justice is determined, and I am absolutely sure that they really want to work in this direction.
And if the register of final beneficiaries of offshore companies will actually start functioning, this will not be just some “breakthrough” – in this case Ukraine might become the first country in the world to allow public access to this sort of information. This is far from a triffle, it is of paramount importance.
– But this is just one tiny step.
– And how do you expect to conquer this summit with one single leap? This can be done only step by step.
Making the register of offshore companies owners open to the public – one step. NABU is implementing some interesting stuff – one more step.
The Prosecutor General told me that they have taken several major officials in custody on corruption cases – another step. Excellent.
We have not yet achieved the consideration of the Yanukovych proceeding, but some of the officials are already incarcerated – let’s continue to make efforts in this direction, they will be justified.
We still have enough space to initiate our work.
What worries me the most is the aspirations of the Verkhovna Rada to intimidate NGOs whose goal is combatting corruption.
We are not enemies of the government itself, after all. We are enemies of corrupt government officials.
As for the government, we must work side by side with them, to overcome corruption together.
And this is a bad sign that even here and in many other countries, the government is considering us their adversaries – even if they reckon that they themselves are not corrupt.
But if they give us an opportunity to do our job –we will work together with them.
If there is no other way out, we will create opportunities ourselves, but In that case we will become their opponents indeed – expect strong accusations, international condemnation; we will support public protest rallies and other initiatives of civil society.
– Don’t you think that the obvious emphasis on the cases of past corrupt officials – Yanukovych, Azarov and others – is aimed, among other things, to divert public attention from the corrupt affairs of the current officials?
– I would pose this question differently: why did the new authority, the one which came after the anticorruption aimed Maidan, why the current prosecutor general, who was imprisoned for being Yanukovych’s opponent – why are all of these people leading such poor and inefficient investigations against former corrupt officials?
Perhaps the reason is that these investigations will accidentally reveal the affairs of some current government officials?
The question is not why the emphasis is now on investigating cases against Yanukovych, but why in these investigations they have so few tangible achievements.
And as for the investigation of cases against current corrupt officials, this is exactly why the investigation and the court need maximum independence from the government, and exactly why the maximum transparency and accessibility for public control is needed.
The country needs to know who voted for what and where their money is coming from. And, of course, success requires a truly active civil society, ready to closely monitor all dubious decisions of officials.
Without these elements, we will simply walk in a circle, and in a few years or even months we will start complaining to each other that corruption has again grown to the skies.
– Another problem is that we can not establish a clear connection between civil society and government structures.
For instance, there are examples of public and journalistic investigations which do reveal corruption schemes, but the publication of these investigations usually presents an absolute zero interest to the investigating bodies.
– This is something I can not grasp at all. In Peru, when I started investigating corruption cases, investigative journalists were my main source of information in my search directions.
Immediately after my appointment, I invited all of them for cooperation.
“Bring me everything you got”, I told them back then, “about corruption of President Fujimori’s surroundings”, and they immediately brought me wagons of useful information.
Previously, there were publications, and a lot of them actually, but no one reacted to them, because both the Prosecutor General’s Office and the police were corrupt and under full control of Fujimori.
But if, as a Prosecutor, I really needed a lead for corruption cases, there was simply no better source than investigative journalism.
– In Peru, corruption was also a common occurrence?
– In Peru, as here, corruption was a common practice in all walks of life back then.
In Spain, for example, there is a high-level corruption in the powerful elite, but at the same time, it is absolutely inconceivable for the driver to offer 10 euros to the policeman.
There, corruption is concentrated at the top.
Here the task is much more complicated – considering the society’s high tolerance for corruption, it is necessary to fight not only those whom it has struck in power, but also a public habit of illegal practices.
This makes the task twice more hard. And the social habit ought to be overcome not only by practice, but also by upbringing, publications, education, so that an intolerant attitude to corruption becomes an acquired habit.
We need to develop an anti-corruption culture.
People have to realize that a better way of life is possible, a way of life in which they do not need to deviate from the law.
It seems inconceivable that in the former Soviet republics it is considered commonplace to bring a little gift to the doctor, because without it he/she will refuse to treat you as you want.
In the meantime, everyone is referring to the “Soviet legacy”, although the tradition has been preserved for a quarter of a century after the Soviet government ceased to exist.
Such habits here are strong – this is a challenge for us and for everyone else.
– Coming back to the beginning of our conversation – do you consider us winning or losing the war on corruption here in Ukraine?
–To support this metaphor, I would say this way: we did not win in the current battle, but this is far from the last battle of the war.
As it is in any war, strategy is crucial, it is important to have the right distribution of forces.
And even if we are losing, let’s say, in the investigation against Yanukovych, there is always a chance to regroup forces, redefine priorities, adopt a strategy which will lead to a decisive victory.
I believe that, in principle, this war can be won, and won fairly easily – if the government really puts their minds and hearts into it.
– Will they want to, though?
– I do not know. We are here precisely in order to convince them that this is absolutely necessary. This is exactly what we talked about with the Prosecutor General and at a meeting with the President a year ago, and communicating with the Minister of Justice.
– And what if they are willing to deal with corruption, but are simply not yet in a position to? What if they are unable to?
– So, they are simply not suitable for these positions and leave.
And if they do not want to leave, you will have to force them out and find those who will be able to do this job.
Nobody needs leaders that are unable to provide results.
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