Archive for December 8th, 2017

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The President on anti-corruption (NABU fallout)

December 8, 2017

This week, perhaps rightly given the gravity of events, the blog has concentrated upon the events surrounding NABU and more broadly the anti-corruption institutions current and future.

It is appreciated that for some readers this is something of a bore, and indeed to focus on what is a policy of sabotage and/or vengeful targeting of the NABU Chief in the battles that lay ahead – for they are certainly not over – is not why all readers spend their time pursuing the blog during a coffee break.

Further, while the author has a history in CT and organised crime, and thus finds policy and operational matters surrounding these arenas both interesting and often questionable, the blog was never intended to focus on such matters to the exclusion of all else – and it hasn’t.

An eclectic commentary upon issues that do not grab the headlines was the goal.

Indeed this week while NABU related issues could not be ignored, the blog has failed to mention the deals struck with China by Prime Minister Groisman to the tune of $7 billion, and the declaration that 2019 will be “The Year of China” in Ukraine – however that will manifest.

It has also failed to mention the passing of a law that prima facie not only runs directly against the obligations of Ukraine regarding the EU Association Agreement, but also, by interfering with the Prozorro public procurement system, has particular implications for continued corruption and lack of transparency.  While this law will seemingly have to be vetoed or seriously amended to comply with the AA and providing anything like transparency, the more interesting questions would be why those who voted the law through did so, and who lobbied them to do so if anybody?  The major beneficiaries are probably to be found in the provinces due to decentralisation after all.

Both of these occurrences (and others such as tax law changes and the 2018 budget adoption) are all worthy of scrutiny and posing questions this week – but this is not a news outlet and your author is not a journalist.  One entry per day, for the sake of a hobby, is all you get.

Following on from the previous NABU related entry of yesterday and the ousting, or sacrifice, of Mr Sobolev within the “Positions-Interests-Needs negotiation model, (depending upon how a reader may view the discussions held the night previous to his removal from his position), the 8th December witnessed a NABU related statement by President Poroshenko while hosting the fearless (and thus respected) Lithuanian President Dalia Grybauskaitė.

There are certainly things to note from the President’s oratory.

The President stated “I declare that I will not tolerate any dangers regarding political interference with the activities of the anti-corruption institution.”  Quite right.

The Europeans, US and Canada also made it perfectly clear that they too will not tolerate such political dangers either, after the parliamentary leaders of the Presidential faction and its coalition partner People’s Front, jointly authored a draft Bill that would have actively facilitated “political oversight” – a euphemism for political subordination in Ukrainian parlance – over NABU.

The President went on to say “over two and a half years of anti-corruption activities, all, including the leaders of these bodies, claim that there was never any interference with the activities of these bodies on the part of the president.”

A reader is therefore expected to infer from the presidential comment above that President Poroshenko and The Bankova disassociate themselves from the draft Bill that the two leaders of political parties that form the coalition had submitted that was intended to sabotage the independence of NABU.  Further the actions of an undeniably politically subservient Prosecutor General and SBU in the NABU environment occur without, at the very least, tacit approval/awareness.

It is customary that such legislative sabotage is generally submitted via draft legislation by little known deputies who, should a draft Bill bring a particularly volatile reaction, can simply withdraw it under the instruction of fatherly Bankova advice for the sake of deniability.  There is no deniability or claims of ignorance to be found when the parliamentary leaders of the two coalition parties submit a joint Bill that is so obviously a blunt assault upon an institution’s independence.  It simply would not happen without the knowledge of those at the very top the political elite – The Bankova and the President.

Hence the international community threatened severe consequences via some very hefty policy sticks that led to the Bill not being put to the vote.  Only a fool would believe that those within The Bankova, and President Poroshenko himself, were not aware of the draft Bill, or the substance of the foreign reaction.  Micromanagement is the political signature of this Bankova after all.

It is perhaps worthy of note that The Bankova and President Poroshenko are not exactly the same thing and therefore necessarily interchangeable labels.  Indeed, arguably The Bankova does not necessarily consist only of those that work within it.  It is perhaps better defined as a collection of interests – sometimes competing, sometimes aligned, but all joined by situational needs, headed by President Poroshenko.

At the press conference The President further stated “On the contrary, I believe that it is necessary to accelerate the appointment of the audit, it is necessary to provide effective protection against any political interference of politicians in the work of the NABU and politicization of the work of any law enforcement agencies and the desire to influence their work.”  Again, quite right.  Upon such principles are nations built.

Here we come to the crux of Positions-Interests-Needs negotiation and the hefty stick diplomacy of 6th December – and whether Mr Sobolev was sacrificed – or not.

How do such “discussions” take place?  If a reader were involved, how to go about them?

The international position is clear and robust.  After having invested so much into NABU, this institution will not be allowed to fall under political control without severe consequences.  The Bankova position is that without political control it cannot be sure of gathering and consolidating the interests and assets behind it to insure election victory.  It can offer no guarantees to those it has to get on board that their personal support will equate to personal benefit.  It is not only a matter of facilitating corruption among the elite by taking control, but political survival too.

The question put before the international community then – which is the priority if (and only if) President Poroshenko is perceived as the least worst option in 2019?

The answer, perhaps to the dismay of President Poroshenko, is invariably it is the support of institutions rather than individuals that take priority.   Typically institutions last longer than politicians in a democracy after all.  Thus whomever may become president will face the same hefty sticks from the same foreign capitals when it comes to attempts to sabotage anti-corruption institutions that have so much foreign energy already (and continuously) spent on them.

If that position was not clear to The Bankova and President Poroshenko before the evening of 6th December, then it should be now.  Who wants to be the Ukrainian President or “Bankova member” responsible for the reversal of Visa-free, or for putting an end to defensive weapons debates?  Personal sanctions perhaps?  A visible political shunning beyond territorial integrity issues?  Not exactly an election winning and/or vested interest saving position to be in.  Big affronts to the democratic sensibilities Ukraine claims to share, result in the waving (and potential use) of big sticks in response.

That position now (hopefully) unambiguously clear, it is an opportunity, while brandishing hefty policy sticks and in prickly diplomatic mood, to remind those negotiating on behalf of The Bankova and the coalition political parties, that genuinely independent anti-corruption courts are required to complete the independent anti-corruption investigative and prosecutor architecture.

The presidential comment of 8th December – “I asked the Parliament to create a working group for the preparation of the project, taking into account the positions of the Venice Commission and people’s deputies, and I stated that if the parliament is dragged on with the creation of such a working group, I will shortly introduce a bill that will be developed by me and will take into account all comments, which were voiced by the Venice Commission.”

The President made very similar comments more than two weeks ago that did not bring forth his own Bill in the absence of Verkhovna Rada activity – but that was before the “discussion” on the evening of 6th December, and the parade of hefty policy sticks that would end any thought of reelection if wielded.  Perhaps this time, before the year end, there will be legislation submitted.  There is one more plenary week to go beginning 19th December.

The Bankova “Position” fully surrendered, it now moves to its “Interests”.  There is coercive opportunity to perhaps be found in the selection of the NABU Auditor and the ability for exceptionally slow anti-corruption court creation.

The foreign “position” now secured over such blunt attempts at political interference on NABU (for the time being at least), it is also their position to have a NABU Auditor appointed – for it is they that had a significant hand in pooh-poohing horizontal and vertical accountability methods, instead insisting upon independent external accountability via an independent external auditor – precisely to avoid political subordination in any way.

The mens rea of the elite Ukrainian political class remains unchanged – control of NABU.  The foreigners are no fools.  Having beaten back the odious draft Bill, and with hefty sticks still in hand, it is an appropriate time to keep the momentum and discuss NABU Auditor candidates – for which there are several very competent foreign candidates.

If rumour be in any way accurate, The People’s Front have now agreed to back Robert Stroch (former FBI auditor) following what was clearly very prickly diplomacy indeed.  It remains to be seen whether others have been equally “convinced” to align behind a particular candidate (or not) having so irked foreign capitals with the proposed draft Bill to kill NABU.

However, movement on this issue can probably be expected and has been subsequently acknowledged in the Presidential comment above.  The chances of now getting a NABU Auditor that will succumb to domestic political influence are clearly less than good odds for those requiring a deliberately poor audit to oust the NABU Chief.

NABU certainly requires auditing – not only to meet legal requirements, but as a fledgling institution there will be audit findings that need fixing.  There is no way the internal workings can be perfect.  No institution is perfect.

This brings a reader to Mr Sobolev, who had used his position to prevent the appointment of a NABU Auditor for the past 15 months – doing so in the belief that the appointed would be politically amenable to the Bankova whim.  Naturally, if the stick wielding of the evening of 6th December has brought about consensus, the blocking actions of Mr Sobolev must be overcome.

Thus far, the international community have not moved from their “position” whatsoever.  All concessions have come from the Ukrainian political coalition elite.  Its position could not be saved, its nefarious interests surrounding the Auditor having been recognised, and if rumour be true neutralised (even if temporarily), it is left with a need to be seen to emerge with something (even if playing with the context of “needs” here within position-interest-needs).

It is no secret that Mr Sobolev is more than unpopular within The Bankova (or with some within the Verkhovna Rada.)  NABU Auditor aside, he has stood his anti-corruption ground where others would have crumbled – which is not a way to endear yourself to the Ukrainian elite.

His removal can therefore be perceived as a “win” for The Bankova, in an effort to mitigate the obvious defeat of the draft Bill, predicted shenanigans around a malleable Auditor, and deliberate glacial progress on an anti-corruption court (that preferably will not be functional before the elections from a domestic leadership perspective – hence the glacial movement).

The foreign capitals also recognise that simply crushing The Bankova is not necessarily good policy – for it may yet remain the “least worst option” come the elections and therefore a longer term view is required for a working relationship.  Plus, one way or another, Mr Sobolev will have to change his position in preventing the NABU Auditor appointment.

Are the diplomatic corps entirely certain that he will now allow a NABU Auditor to be appoiinted, or of what is really driving his position?  For all that he has done that is recognised as furthering the anti-corruption cause in other areas, having finally been forced to reach for the hefty sticks, and having seemingly reached agreement with the “powerful and influential” during the “discussions” surrounding NABU, Auditors and anti-corruption courts, is he not a variable that could derail the outcomes of these “discussions”?

Politics and diplomacy is no place for the fainthearted.  The defence of anti-corruption institutions clearly matter more than any particular individual.  While the removal of Mr Sobolev from his post may not be a desired outcome, it is not enough to derail all else accomplished during the “discussion” – unfortunately for Mr Sobolev.  An endured but unwelcome sacrifice in pursuit a greater cause?  Perhaps.  An act of vengeance following an understanding of a muted response?  Maybe.

Whatever the case, room has been left for The Bankova and President Poroshenko to now state that the obstructions to appointing a NABU Auditor have been removed and continue the pretense of having no involvement in the draft Bill (despite the authors of it) that brought matters to a very bruising political head.

It is, unfortunately not an end to the matter.  The subordination of NABU will continue to be an objective for some, and the removal of its Chief a priority, if for no other reason than despite numerous attempts to remove him he still remains.

A court case involving the NABU Chief questioning the circumstances of his initial appointment continues in Kyiv.  Those that brought the case remain unknown, and it appears to centre around his personal declaration submitted at the end of March 2015, his appointment in the middle of April 2015, and his declaration being deemed accurate and lawful in early May 2015.  The inference being he was unlawfully appointed prior to the official conformation that his declaration was lawful and correct, that the SFS and Finance Ministry should have prevented his appointment until checks upon the declarations were completed, and that therefore he was unlawfully appointed.

The NAPC, subject to allegations of Bankova control after whistle blowing, has restricted NABU access to e-declarations.  Somewhat necessary for the role of NABU.

And NABU operations continue to irk – this time the Ministry of Justice.

For now however, the memory of those hefty foreign sticks will remain when it comes to the anti-corruption institutions.  Hopefully those sticks will not ever have need to be used, for a reader can never be sure whether such a beating would drive out the worst of intentions – or beat them further in.

 

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