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1 May, 2013

How to Come Forward?

Democracy and the rule of law in post-Soviet Ukraine

I remember the early 1990s as a fantastic period where new democracies - one by one - attended the Council of Europe. For these countries, membership was a blueprint. For many, it was the basis for taking further step as members of the EU.

For Ukraine it was a wasted period as regards the rule of law. The network of old boys from Soviet times transformed into oligarchs. Other former Soviet Union countries faced similar developments. Politics became a fight for power, not for ideas and values. Privatization became an important tool for enrichment of oneself and his entourage. Eventually, to grab the power became a goal, not a tool. This was cleptocracy, not democracy!

In 1995, Ukraine was eager to get the blueprint of CoE – hopefully before Russia got it - in order to avoid Russian veto of their accession at a time when Russia openly lamented that they Europeans accepted Ukraine’s independence. Sadly, if Russia had not continuously talked of its phantom pains, the two neighbour states would have developed positive natural cooperation.

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So, as a member-state, Ukraine undertook a long list of commitments in 1995. In conformity with Council of Europe standards, enacted within a year from accession, it had to develop a new Constitution,  a framework act on legal policy for human rights protection, a framework act on legal and judicial reforms; a new criminal code and code of criminal procedure, and a new civil code. This meant that it essentially had to start from scratch on its way of getting rid of the Soviet legacy.

“The role and functions of the Prosecutor's Office shall be changed, transforming this institution into a body which meets CoE standards,” was the requirement for the Soviet-style prosecutor’s office which survived in the new independent Ukraine. This meant that prosecutors would only prosecute rather than control, exert pressure or judge.

The function of Soviet prokuratura was that of a watchdog ensuring strict observance of laws by all government officials and citizens. In alliance with the KGB, it enforced all dictates of the communist regime. The State, on behalf of the people, could dictate everything – in the name of the people. This brought overwhelming corruption to power – and it’s still there today.

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In close contact with the Presidential Administration, the Prosecutor’s Office controls all activities – state or private – without anybody to control it.  It has room for all kinds of abuse. Therefore, one of the most important demands from the EU before the Association Agreement is that Ukraine fulfills the promise it already gave to CoE in 1995. A way to do this is not through legislation alone. The major demand – and should be understood that way – is to give up power and stop playing with the rules, but start playing by the rules.

Political repression and arbitrary treatment shows every citizen today the risk of endings up in prison if they oppose the Government. Besides, the definition of a criminal violation is so vague, that any man from the street can be put in a courtroom and sentenced. Ordinary small business owners may face various demands and be forced to pay those with better links to the government.

Nation building starts with the rule of law, trustworthy institutions and freedom of speech. The constitution of a nation should first of all secure limitations of the legislative power. The state has to deliver a predictable, accountable, transparent framework for citizens to be able to work, produce and contribute to the growth. The precondition in a demand-supply-driven society is a stable, transparent framework. Not that the smarter eats the cake.

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Ukraine started from scratch 22 years ago, having suffered from a totalitarian history of tsars and communists. It takes time to build up a new nation and it takes time to build real citizenship.  People must learn to have a self-reliant national, independent voice in relation to power. It is necessary to have freedom of expression – and it is equally important to have an informed population.  There is a need for broad political cultural buildup and awareness-raising based on debate, exchange of experience and broad knowledge of the past and present society.

Opinion polls show that this trustfulness in Ukraine is among the lowest in the world, while in my country Denmark people are confident that they have unbiased institutions. Perhaps, this is because Ukraine has had a brutal history, and has experiences arbitrarily rule over and over again.

Ukrainian civil society has to recover the strength it showed on the frosty days of the peaceful street-revolution in November-December 2004. It must build up Ukraine again by uniting efforts at all levels of society. Ukraine can get out of the trap of behaviour stemming from the Soviet era, but optimism is at stake. And it takes time – and dedication - to break bad habits and build up new norms.

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