THINK TANK | Addressing Corruption in Ukraine

THINK TANK | Addressing Corruption in Ukraine

By Gary Reusche and Jean-Pierre Méan

Solving corruption by law alone will not succeed. Current legal reforms have been described as piling up new laws on a massive post-soviet mess. The slow pace of legal reforms demands sustained effort and a culture of integrity. Under the best of conditions, the effect of law is very weak to prevent corruption, and must be supported by ethical conviction. In the current context of Ukraine, emphasis on the legal issues in the Parliament is not enough. Civil society, young professionals, schools, and families will need to actively promote Ukrainian values and reject the culture of corruption.

THINK TANK | Addressing Corruption in Ukraine

Reducing corruption in Ukraine must include a change in culture— legal reform alone cannot succeed

The Dichotomy of Values vs Rules in Anti-Corruption Law [1]

“When the risk to be caught is very low, as is the case with corruption, values will offer a higher compliance level than rules.”

Corruption in Ukraine has been practiced by high-ranking public officials, ministers, members of the Verkhona Rada, and the head of state. They have been ready to cash in on assets obtained after the collapse of the Soviet Union, infrastructure projects, the sale of their country’s resources, public procurement, and more. The proceeds are conveniently hidden in confidential bank accounts, more often than not in the name of opaque corporate structures registered in offshore centres and having no other purpose than to hide the identity of their true owners [2]. The overwhelming level of corruption during the Yanukovych presidency led to protests and revolution. The core issue was corruption.

The corrupt government official uses state power not in the public interest, which is the purpose, but for private gain; which is against the law— or should be. Therein lies one current conundrum. The rule of law seeks transparent and uniform application of law, but the current laws are out of date (“ghosts” from the Soviet period) or contain internal contradictions which many believe were intentionally created during the past decades. The end result appears to be that corruption is still relatively unchecked in spite of a great deal of public desire to eradicate it.

In Ukraine, government officials have felt protected by the system. Reforms are under discussion every day, and there is a struggle going on between those said to be benefitting from the existing system, and those that want to eradicate corruption. The reform movement was created from people rebelling against the legal system, and wishing to live under a better system — a system more ethical and with positive moral values.

Those in authority involved in corruption consider the risk to be caught, and whether or not they are able to circumvent it.When the risk to be caught is very low, as is the case with corruption, values will offer a higher compliance level than rules or the law.

The OECD Convention writes that ‘bribery….raises serious moral and political concerns’ [3]. This means that the effect of law is weak and needs to be supplemented by ethical conviction. Thus, in the current context of Ukraine, moral or ethical issues must also be stressed.

“Existing Ukrainian legislation is a massive, post-Soviet mess, which incorporates numerous special interests and corrupt schemes accumulated over 20 years… Piling up new laws on top of this mess will not miraculously turn it into a new system… Rule of law means, among other things, strict enforcement of the existing laws, but if the entire body of current outdated and often absurd legislation gets enforced, the country will be paralyzed. This is why the current system cannot function without selective enforcement, which gives the vast bureaucratic class, including law enforcement and the judiciary, enormous discretionary power over the ordinary citizens and businesses and feeds systematic corruption. No anti corruption measures can succeed if they are undertaken within this system…” [4].

Since the “revolution of dignity” in Ukraine, great strides have been made to address corruption [5]. However, none are satisfied with the progress made to-date.

The Dichotomy of Ukrainian vs Soviet Value Systems

Values and law belong to conceptually different worlds. With values, compliance rests on inner conviction rather than on the law. In a recent survey, those interviewed connect the values from the Soviet period to post-Soviet Ukraine’s corruption problems [6].

Ultimately the difference in values, between those inherited from the Soviet Union and those of Ukraine as a separate nation (representing the present and future), will significantly impact the outcome of legal reform.

  • 100 years of cultural subjugation
The history of Ukraine (from the mid-20th century) was a history of how Ukrainian patriotism and nationalism were physically destroyed [7]. With near unanimity in Ukraine the basis for the current conflict is a clash of values.

The revolution of dignity revealed a dichotomy between Ukrainian values (i.e., patriots not wanting to live in a culture of corruption) and a government and culture inherited from the past. Values that were privately held by many Ukrainians became expressed values during the revolution. The strong majority of Ukrainians, whether from the West or East, did not want to continue business as usual with Russia, and a culture where corruption and its lack of moral stigma were accepted as normal.

Applebaum [8] has written that: there is clearly a… generational change, people have different kinds of relations with each other, people speak differently and act differently than they used to…” This suggests a change in culture.

  • Defeatist Acquiescence to Corruption
‘The majority of corruption practices in Ukraine occurs because of the acquiescence of citizens, who are aware of the facts, but are not going to denounce.” (Transparency International Ukraine, http://ti-ukraine.org/en/news/oficial/5662.html)

In a self-perpetuating cycle, reinforced by years of unfulfilled promises, the general population does not trust that government proclamations of combating corruption are sincere. Due to this cynicism, many older Ukrainians adopt a fatalistic perspective regarding the potential for positive change. This is very much part of the problem.

The sad fact has been that corruption actually makes life easier for average Ukrainians [9].

Most citizens do not recognise their own role in both cultivating and perpetuating the corruption they want the government to eradicate. There is little support for the idea that petty corruption (e.g., paying bribes) is as corrosive to good governance as grand corruption (government rent seekers). Few see that bribes erode the rule of law, meritocracy, and trust in governance throughout society.

It is important that the younger post-Soviet generation starts to believe that change is possible. New values, and their implementation in the laws, are of paramount importance [10].

  • Love of One’s Country
Research completed recently by 2 American academics reported on attitudes and behaviours of Ukrainian citizens and focused on changing current behavior [11]. Applebaum [12] reflected that national identity is still quite weak from the government side. However, “among people it has grown quite a lot.” She continues “the Russian invasion has made people very aware that they want to live in a country with different values from those of Russia….”

Religion has provided the framework for moral and legal codes which have transformed anarchical systems to more sophisticated forms of governance [13]. The values that are the basis for a culture of integrity are none other than those values taught by all religions and espoused by those with no religious affiliation. To cultivate a new public consciousness, it is necessary to view corruption as corrosive to society, immoral, and unacceptable.

Applebaum [14] emphasised the need to love one’s country, one’s space, and to desire to make the place where one lives better. “To feel connected to and feel responsibility for the place in which you live is incredibly important…”

Empowering Values and Legal Reform

Focusing only on legal reforms is insufficient to overcome a culture of corruption. A wider, societal effort is required to create a new culture. A new culture is necessary to replace endemic corruption that many believe to be inherited from the Soviet Union and its aftermath. A new culture will express a love for Ukraine as a separate national entity— different from its Soviet past.

Public support is a requirement for reform [15]. New societal values must be engendered that create a new culture, such as trustworthiness, openness, transparency, participation, and accountability. Such words and values are repeated like a mantra in contemporary Ukraine in the context of legal and government reform. However, a wider societal effort is needed to succeed, involving not only government, but also business leaders, Universities, schools, and family.

Too often in contemporary Ukraine statements regarding integrity and values are considered to be just empty words to cover continuing practices. Warren Bennis defines integrity as an alignment of words and actions with inner values. To overcome an acquiescence to corruption, sufficient concrete examples demonstrating that words and actions coincide are needed.

A culture of integrity must be developed and the development must take many forms. For example, the business community can take the lead and express new values in action or MBA programs can train business leaders about the positive effects of a integrity-based business culture, which is taught in Western Europe and North America as a source of competitive advantage. The school system should teach that personal values impact on happiness and success, and that corruption is not only bad for society but also perverts the inner life of those who engage in corruption. NGOs can use their membership and unique activism to engage in practical actions to combat corruption and replace it with a new Ukrainian culture and integrity.

Conclusion

Legal and judicial reforms are essential to reduce corruption. But the law is only part of the effort required. A large number of anti-corruption measures are listed in a recent report on legal and governance reform in Ukraine. For some of them there is a degree of urgency, including:
  • introducing a comprehensive protection for whistleblowers;
  • requiring the disclosure of the beneficial owner(s) of companies (opaque offshore structures must become transparent);
  • increased public oversight and independence of the anti-corruption agency; and
  • public pressure to continue reforms to the state procurement system in order to ensure its objectivity and transparency.
But to succeed in combating corruption, a new culture of integrity must replace the current culture of corruption. The Ukrainian revolution revealed that many Ukrainians want a change, as demonstrated through non-violent activism and a willingness to sacrifice for change (including with their lives). Creating a new culture requires the activism of the business community, schools and Universities, families and NGOs. A wide societal response is mandatory.in order to go from a state where corruption permeates all aspects of daily life to a state where citizens and enterprises are only exceptionally confronted with corruption.

About The Authors:

Gary Reusche, Professor with the International Management Institute (MIM-Kyiv), Advisor for Agricultural Lending, Bank Credit Dnepr, former program manager for World Bank group and European Union projects in Ukraine, former regional manager major Netherlands consulting company operating in Ukraine since 1992 and till present day.

Jean-Pierre Méan, lawyer former General Counsel of SGS, an international verification company, former Chief Compliance Officer of the European Bank for Reconstruction and Development (EBRD) and former Chair of the Swiss Chapter of Transparency International ; Chair of the Working Group on the revision of the Rules on Combating Corruption of the International Chamber of Commerce and member of the ISO Committee working on an Anti-Bribery Management Systems Standard (ISO 37001)

The authors don`t work for, consult to, own shares in or receive funding from any company or organization that would benefit from this article, and have no relevant affiliations

EndNotes

[1] See in this respect: “J.P. Méan, The Dichotomy of Values vs. Rules in Anti-Corruption Law, in: The True Value of Corporate Social Responsibility, Palgrave MacMillan, Edited by Barbara Fryzel, 2015”

[2] Unfortunately, the banking system outside of Ukraine seems to have no second thoughts about servicing these financial flows and giving refuge to public officials accused of crimes in Ukraine. Globalisation provides a largely unregulated area for corruption. For example, in order to seize assets exports by a public official accused of corruption in Ukraine, evidence must be provided by Ukrainian prosecutors that may themselves be part of the corruption that helped obtain the assets in the first place. So the assets are freed because investigations and necessary facts cannot be obtained in Ukraine.

[3] Convention on Combating Bribery of Foreign Public Officials in International Business Transactions,http://www.oecd.org/daf/anti-bribery/ConvCombatBribery_ENG.pdf

[4] White paper: “LEGAL AND GOVERNANCE REFORM IN UKRAINE: STRATEGIC PRIORITIES. Business and Economic Sector.”


[6] Changing Corrupt Behaviours Assessment, USAID, Sept 2015. Roberts, Sean R. and Robert Orttung, George Washington University, Washington, DC.

[7] Interview with Pulitzer Prize-winning author, international journalist and expert on Eastern Europe Anne Applebaum about the development of Ukrainian nationalism over the past century and how the country’s EuroMaidan protests in late 2013/early 2014 led to a civil society drive. http://uatoday.tv/society/anne-applebaum-518447.html; 23 Oct 2015

[8] See Note 7

[9] What Does Everyday Corruption Look Like in Ukraine?

  • Market Compensation Bribes (e.g., health care, primary and secondary education)
  • Exhortation/Responsibility Avoidance Bribes (e.g., traffic police, regulatory bodies, tax fraud, payments to judges, etc)
  • Bureaucratic Roadblock Bribes (e.g., driver’s licences, registrations, to get a bureaucratic piece of paper)
  • Bribes to Gain Socio-Economic Advantage (payments, kickbacks for government contracts, public sector employment, degrees)

[11] Roberts, Sean R. and Robert Orttung. Sept 2015. Changing Corrupt Behaviours Assessment: Addressing Everyday Corruption in Ukraine. USAID, Ukraine

[12] See note 7.

[13] Statement of the Bahá’í International Community on the 60th Anniversary of the United Nations

[14] See note 7.

[15] See Hart, H.L. (1961) The Concept of Law (Clarendon Press, Oxford), for legal arguments).

Source: VoxUkraine
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