Ukrainian President Poroshenko's illegal enrichment bill worse than earlier norms, say analysts

Ukrainian President Poroshenko's illegal enrichment bill worse than earlier norms, say analysts
Both president Petro Poroshenko and opposition leader Yulia Tymoshenko submit bills to overturn a Constitutional Court decision that decriminalized graft
By Ben Aris in Berlin March 3, 2019

Ukraine’s politicians were scrambling to undo a Constitutional Court decision that decriminalised graft at the end of last week, that could threaten both Ukraine’s International Monetary Fund (IMF) programme and the country’s visa-free deal with the European Union (EU). However, experts say that the bill submitted by President Petro Poroshenko is all show and no substance.

Both Poroshenko and his presidential election rival Yulia Tymoshenko rushed out bills on February 28 to replace the legal statute on illegal enrichment that the Constitutional Court ruled to overturn last week.

The Constitutional Court said that officials declaring income that they could not account for was not grounds for investigation as it impinges on the principle of presumption of innocence. The mandatory annual declarations are part a package of reforms introduced in 2015 at the insistence of the IMF and EU and were hailed as a triumph in the fight against corruption at the time. However, a group of lawmakers objected to the law and filed a complaint with the Constitutional Court, which reached its decision last week in a closed session.

The ruling sparked outrage among Ukraine’s anti-corruption activists, who accused the court of fulfilling an order from the president. In his response to the criticism, Poroshenko ordered the registration and immediate approval of new legislation, which he said in a February 28 Twitter post “takes into account all the concerns of the court.”

Yet the president’s legislation is not only worse than the overruled statute in fighting illegal enrichment, but doesn’t even meet the lax standards approved in 2011 under former president Viktor Yanukovych, in the view of Anticorruption Action Centre head Vitaliy Shabunin, as cited by Zenon Zawada of Concorde Capital in a note.

“The 2011 standard required prosecutors to provide evidence that a bribe was paid and authority was abused, while Poroshenko’s bill requires that prosecutors present evidence that no bribe was paid and no authority abused before addressing the illegal enrichment claims,” Shabunin said. “With such a formulation, it will be impossible to prosecute officials for acquiring property that is not explained by their official income.”

The anticorruption centre offered a similarly critical assessment of Tymoshenko’s proposal, which creates two stages for establishing incidents of illegal enrichment. First a court has to rule that property was illegally acquired, before a second investigation is conducted to secure another ruling, he said. Moreover, the rulings can be appealed, a process that can take many years. The bill also has legal formulations that can be widely interpreted.

“In submitting the weaker legislation, both Poroshenko and Tymoshenko are acting rather cynically to an issue critical not only for the Ukrainian public, but Western authorities who are interested in stricter measures to fight corruption, particularly among the political class. Their campaigns are very eager to accuse each other of corruption, but not act to the necessary extent to eliminate it from among their own party ranks. This disinterest in the anti-corruption struggle will only help Volodymyr Zelenskiy, who isn’t capable of submitting legislation himself but can use rhetoric to convince the public that he’s the best candidate to address corruption, which he has been doing rather effectively so far,” said Zawada.

Ukraine’s government has resisted, defied and derailed most of the anticorruption initiatives that have been forced on the government by its international donors. As bne IntelliNews argued in an opinion piece two years ago, corruption is not a problem that afflicts the system, corruption is the system.