Corruption in Ukraine: What Needs to Be Understood, and What Needs to Be Done?

8 July 2015, 21:25

Bohdan Vitvitsky is former Federal Prosecutor and Assistant U.S. Attorney, U.S. Department of Justice; New Jersey, USA 

Towards that end, I will propose and answer four questions about corruption in Ukraine.  Preliminarily though, we should all be clear about what we mean by “corruption.”  Corruption refers to the misuse or abuse of public assets by public servants either by themselves or in combination with other public servants or private individuals—whether for personal, familial, partnership or partisan gain.  The public assets most often are money, but may also be real estate, personal property or simply information.  Examples include bribery, kickbacks, theft of state assets, conflict of interest and other schemes. There do, however, exist other malfunctions related to government such as, for example, the monopolizations of power, but just because some phenomenon is a malfunction related to government does not make it corruption.

Why is there such a high level of corruption in Ukraine?

Ukraine’s widespread corruption cannot be understood without understanding four central features of Soviet society, whose legacy in part continues to haunt Ukraine to the present day.  These features are:

1.      moral degradation in the public sphere;

2.      virtuality, i.e., the practice of systematically pretending that things are different than they actually are;

3.      social atomization;

4.      the fundamental deformation of the Soviet legal system so that the rule of law was minimally present or altogether absent.

When I came to Ukraine for the first time in 1989 when it was still part of the Soviet Union, I heard two striking anecdotes that reflect the related pathologies of moral degradation and virtuality.  The first was:  “they pretend that they pay us, and we pretend that we work”; and the second was that in the Soviet Union, people “say one thing, think a second and do a third.”  But it was Nikolai Ryzhkov, the Prime Minister of the Soviet Union under Gorbachev and one of the architects of “perestroika” who revealed the pervasiveness of the two pathologies when he said in 1985:  the “moral state of [Soviet] society” was its “most terrifying” feature.  He explained:  “[We] stole from ourselves, took and gave bribes, lied in the reports, in newspapers, from high podiums, wallowed in our lies, hung medals on one another.  And all of this—from top to bottom and from bottom to top.”

The third factor is social atomization.  It is civil society, all of the social organizations and institutions that are independent of government, that teaches us and provides us with opportunities to build trust and solidarity with others and expect trust and solidarity from others.  The Soviet system destroyed all civil society and proscribed its re-emergence; in its place, it substituted a society of suspicion and distrust that led to profound social atomization.  If, in post-Soviet societies such as Ukraine, some or many citizens feel little or no solidarity with their fellow citizens and, thus, with Ukrainian society at large, it is not surprising that they are unlikely to exhibit much of a conscience when it comes to participating in corruption.

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The fourth Soviet factor was the catastrophic decision by Lenin and his Bolsheviks to completely disband the existing Russian imperial legal system and to substitute for it the “peoples’ courts,” the troikas, the show trials and the “kangaroo courts,” all totally subservient to the Communist Party, all divorced from considerations of justice as understood in the West, and, instead, all primarily in existence to help the Communist Party and government control its population. This was a system that has aptly been called legalized lawlessness and imitation legality.

The pervasiveness of corruption in Ukraine, and its equal pervasiveness in Russia and other post-Soviet states, cannot be understood without understanding and taking into account the four historical legacies identified here today. And any genuine reform requires that there also be an ongoing push back against those legacies.

What should be done about corruption in Ukraine?

One often hears that corruption in Ukraine needs to be eliminated or defeated. Military terms may convey a sense of urgency, but in this context they confuse or mislead more than they illuminate. All countries and societies have corruption, so the distinction is not between those that have it and those that do not.  The distinction is, rather, between those whose level of corruption is systemic and those whose level of corruption is merely episodic. All countries can be said to be found somewhere on an imaginary corruption scale. Those in which corruption is widespread, in which society’s attitude is that corruption is “normal” or inevitable, in which there is no genuine effort to prevent corruption and in which there are no law enforcement institutions that have the will and the capacity to investigate and punish corruption are the countries at the far end of the scale on the side of systemic corruption. In contrast those countries in which corruption is infrequent, whose societies hold corruption to be abnormal, where there exist rules, procedures and mechanisms to help prevent corruption and in which there exist effective law enforcement institutions willing and capable of investigating and punishing corruption are the countries that are on the other end of the scale, on the episodic corruption end of the scale. What needs to be done is to genuinely begin moving Ukraine from the systemic corruption side of the scale towards the episodic corruption side of the scale.

How can corruption be reduced to episodic?

There are three arenas in which action needs to be taken simultaneously in order to genuinely reduce corruption. These are law enforcement, societal attitudes, and economic incentives and disincentives.

Action must be taken with respect to all three because otherwise any corruption reduction campaign will fail.  Thus, a majority in Ukrainian society must come to understand that corruption is not normal or inevitable and not acceptable in a healthy society, that corruption is a social cancer that undermines and destroys real democracy, a real market economy and, therefore, a chance at national prosperity; and, perhaps most importantly, it destroys rule of law and, thus, any chance for justice. It is necessary for a society to change its attitudes towards corruption because the avoidance of corruption must to a significant degree become voluntary.  There is no law enforcement system in the world that can investigate and punish a quarter or a third of a country’s entire population.  Happily, as the result of and as reflected by the Maidan, the change in attitudes towards corruption has undergone a major shift in a positive direction.  But more needs to be done.  Civil society and NGOs must continue to exert pressure for true reforms. Journalists need to continue to monitor the distance between words and deeds. And religious communities, who are not themselves infected with corruption, need to be mobilized to play a part.

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Economic incentives and disincentives are independently important. If a public servant earns a salary on which she cannot support a normal life style, then it perhaps should not be surprising that she may seek bribes. Singapore is one of the few countries that managed dramatically to reduce its level of corruption. Singapore paid its top civil servants a million dollars a year. Even the president of the United States does not earn half that much, and I understand that Ukraine is experiencing economic difficulties for understandable reasons, but the issue of economic incentives and disincentives cannot be ignored. Business in Ukraine and the people living in Ukraine must come to understand that it is immeasurably more preferable economically and morally to raise taxes a bit so that public servants receive a decent salary than it is to have to spend the same amount of money to pay bribes to those same public servants.

Just as there are public servants whose salaries are modest but who will not engage in corruption because their integrity will not allow it, there will always be public servants who are already wealthy who, nevertheless, will engage in corruption because they are endlessly greedy. That is why an effective system of law enforcement, whether in Ukraine or Singapore or the United States, is an absolute necessity. By an effective system of law enforcement I mean the following: although it may take a longer time to reform the entire judiciary and the entire procuracy, I mean a system in which at least the unit of the judiciary that would be responsible for hearing corruption cases is staffed by judges with high levels of integrity and competence; a system in which at least the unit of prosecutors responsible for taking corruption cases to court would be staffed by prosecutors with high levels of integrity and competence; and a system in which the unit of investigators and analysts that would be responsible for discovering and gathering evidence of corruption is staffed by detectives and analysts with high levels of integrity and competence. Last, but certainly not least, an effective system of law enforcement would have to operate in a legal system in which the level of rule of law, and, thus, of justice, would be high enough to engender public confidence in the fairness of the corruption investigations and prosecutions that were conducted.  Juries are one of the best mechanisms ever invented to help insure such confidence.

Who can do all that?

The answer to this question is: everyone in Ukraine must contribute; every public servant from the President to judges to prosecutors on down to the lowest clerk at the local level, every resident of Ukraine and every business operating here must participate in reducing corruption because otherwise things will not change. Corruption is something that was one of or was perhaps the principal motivating factor behind the Euromaidan, but it must continue to be an issue of concern, and everyone must not only refuse to participate in low levels of corruption but must demand and keep demanding of their political leaders that grand corruption at the top and bribes must be controlled, and that effective law enforcement finally be created and its work facilitated.

Several months ago a prominent businessman in Ukraine was interviewed in the press.  He stated that he had expected that Ukraine’s new, post-Maidan government would immediately enforce a zero tolerance policy towards corruption, but the fact that it had not was profoundly disappointing, and it seemed as if nothing had changed. Such reports and analyses are both inaccurate and counter-productive. There is no magic wand that a president or a prime minister or anyone else can wave to reverse many decades of public corruption. On the one hand, it is of course understandable why people in Ukraine feel a high level of pent up frustration, but on the other hand, it is very important to avoid cynicism and a kind of intellectual laziness that may be involved when some analysts or journalists simply throw up their hands and repeat that nothing has changed because the world has not changed overnight. For purposes of developing positive momentum in corruption reduction, every gradual manifestation of change needs to be viewed as a victory on that long and difficult campaign. Hence, every improvement, however dramatic or un-dramatic, needs to be noticed and the public needs to be informed about it, for otherwise instead of developing momentum towards more positive change, discouragement and inertia will prevail.

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A few concluding words about an effective system of law enforcement. Given the state of the post-Soviet legal system in Ukraine, establishing units of judges, prosecutors and investigators with high levels of integrity and competence may not be easy, but it can be done because of an important confluence of circumstances today:  there is now, on the one hand, a will and desire in Ukraine to make this happen, and, on the other hand, there is a good amount of international assistance ready to help with both resources and advice. What Ukraine needs to do is to find or provide appropriate leadership for each of the units I’ve discussed. This leadership needs:

– to understand the post-Soviet legacies and tendencies of the Ukrainian legal system so as to provide a counterweight to them;

– to possess some experience and understanding of international systems and standards for reducing corruption; and,

– it needs to understand how the international community can help and how to make best use of such assistance.

Such units and their leadership must, of course, be independent so that they are not themselves compromised or politically undermined. Taken in its totality, there is much to be done, but it must be done in order to reduce Ukraine’s systemic corruption and to create a new Ukraine so that its former Soviet identity becomes merely a matter of historical curiosity.

*Remarks presented at Symposium “Ukraine: Escaping From Its Post-Soviet Legacy” (Kyiv, April 24-26, 2015), through VoxUkraine

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