The appointment of Yurii Lutsenko as Ukraine’s general prosecutor on 13 May will even further curb enthusiasm for Ukraine in Europe’s capitals. All branches of power in the country are in desperate need of reform, writes Michael Meyer-Resende.
Michael Meyer-Resende is the executive director of Democracy Reporting International, a Berlin-based NGO promoting democratic governance.
Not only is Mr. Lutsenko a close ally of president Poroshenko, but the circumstances of his appointment in a rapid parliamentary process raise serious doubts about the rule of law in Ukraine.
Transforming Ukraine was never going to be easy, given Russia’s occupation of Crimea and its role in the conflict in the country’s east. Even in peacetime, reforming Ukraine would have been an uphill struggle against an oligarchic system that had entrenched itself over the last quarter of a century.
By now it has become clear to all that change in Ukraine is not comparable with the linear Central European transitions in the early 1990s, which were driven by political elites with a shared goal of becoming a European democracy.
There are drivers of reforms in Ukraine’s government and parliament, but they are a minority. In order to wrestle any piece of reform from a resilient political-cum-business class, they need allies, such as Ukraine’s vibrant civil society groups, the EU and the IMF.
It would be unfair to pretend that no change has happened in Ukraine. There is a new police force, free from corruption, public procurement has gone online and become transparent, industrial behemoths like state-owned Naftogaz are being reformed and, under much EU pressure, anti-corruption agencies have been established.
But there is a gaping hole at the center of these reforms: the overhaul of the country’s political institutions has barely begun. These include constitutional and other legal changes to reform all branches of power.
One of the most essential reforms is completely stuck: decentralising powers away from Kiev to make the state administration more effective and bring decision-making on local affairs back to the local level. While some legal changes have been made, the essential amendments to the constitutional provisions are unlikely to be adopted.
Any debate on decentralisation has been contaminated by allegations that such a step would pave the way for the secession of eastern Ukraine. It is the most glaring example of how the developments in the east affect reforms for the rest of Ukraine. The only step forward in the reform of the executive has been the adoption of the new civil service law.
The picture looks brighter for judicial reforms, with the necessary constitutional guarantees for independent judges possibly to be adopted by July. Yet Lutsenko’s appointment as general prosecutor raises doubts about the government’s political will to establish genuine judicial checks and balances.
The most dramatic failure has occurred in the field of electoral accountability and the way parliament functions. The mandate of most members of the Central Election Commission expired almost two years ago, but the president has yet to propose any new members. Last year’s new local election law, adopted in an opaque process, did little to push back the influence of money-oiled politics at the local level. OSCE observers lamented the “dominance of powerful economic groups over the electoral process”. This year, parliament adopted a law that tightens the parties’ grip on parliamentarians.
Rather than driving the reforms, parliament has often been an obstacle to change. The Lutsenko appointment was another occasion when a majority of MPs engaged in questionable legal manoeuvres in the broad daylight of massive public attention. The law was changed within 24 hours to tailor it to Lutsenko’s CV. The speaker of the parliament and the president signed the appointment within hours of the vote and an emergency issue of the parliament’s newspaper was printed to fulfil all requirements for a valid legal act – hardly a process that suggests that the rule of law is about to emerge.
This speed belies the idea that legal reforms are difficult. On the contrary they show that it is a matter of political will. A mission by the European Parliament made 52 recommendations to change parliamentary procedures, but while Ukraine’s parliament endorsed the report, no majority has yet emerged to implement these recommendations. With parliamentary majorities largely controlled by oligarchic interests, there is a failure at the heart of the political system.
With too few parliamentarians pushing for change, it is no surprise that electoral legislation remains one of the biggest headaches. There is no unified electoral code with robust provisions on campaign and party financing. The deficits in electoral rules and how to overcome them are well known. They have been highlighted by Ukrainian NGOs, the Council of Europe and the Organisation for Security and Co-operation in Europe for the last twenty years. The lack of progress in this field is a particular worry: with the current government commanding only a fragile majority in parliament, early elections have become a distinct possibility. Holding another business-as-usual election would not likely result in a more reform-minded parliament.
Among the plethora of policy advice published on Ukraine, those who advocate a stronger focus on democratisation are right. While it may make sense for the EU to slap sanctions on corrupt Ukrainian officials, as demanded by some Ukrainian MPs, the EU must insist on reforms to all branches of power. Change can only be sustained if institutions are rebuilt. Democracy needs independent judges, an accountable and transparent parliament and clean elections.