Among the issues exposed by US President Donald Trump’s interactions with the Ukrainian president is that of weak rule of law, a key problem of modern governance. This latest scandal has shown how the judiciary is still vulnerable to being exploited for personal political gain, financial enrichment and geopolitical support.
Since independence, Ukraine has suffered from weak rule of law, high-level corruption and selective justice. A major Chatham House report concluded that despite ‘greater success in restricting the opportunities for corruption, reforms of the law enforcement agencies are proceeding slowly because of the deep underlying culture of corruption in the judicial system.’ Meanwhile, the World Bank’s Worldwide Governance Indicator for rule of law in Ukraine has remained almost unchanged in the last 10 years.
With a judiciary lacking political independence, especially at the highest levels, Ukraine now finds itself caught in the crossfire of a US political struggle.
There is an unfortunate continuity in the discussion between the two presidents of a new prosecutor general that would be ‘100% my person’, according to Ukrainian President Volodymyr Zelenskyy. Previous Ukrainian presidents have had politically loyal prosecutor generals; Viktor Shokin, who Trump called ‘your very good prosecutor’, was an example in the previous administration. Zelenskyy vocally promised to attack these systems of political privilege when running for office.
Agreeing to nudge the investigation of Hunter Biden, the son of Trump’s political opponent, casts a shadow over Zelenskyy’s commitment to fighting corruption and will now undermine the credibility of any new anti-corruption cases. Taken against a background of allegations about Zelenskyy’s proximity to the tycoon Ihor Kolomoisky, the commitment of the new Ukrainian leadership to limit the influence of vested interests on the judiciary is in question.
During Zelenskyy’s first months in office, there have been mixed signals as to how serious he is about creating an independent judiciary. While the appointment of new prosecutor general Ruslan Ryaboshapka has generally been positively received by civil society, two of Zelenskyy’s appointments to the High Qualification Commission, the body that selects judges, are less reassuring.
Notably, at the end of September, he gave a place on the commission to the daughter of the ex-deputy of Viktor Pshonka, who was former president Viktor Yanukovych’s prosecutor general. There is a risk that instead of refreshing the make-up of the judiciary the commission will replicate the same compromised system.
Another worrying indication of the condition of rule of law under Zelenskyy is the fact that Andrey Portnov, deputy head of the Yanukovych administration and in charge of judiciary, has returned to Ukraine. He fled to Russia after the Euromaidan protests, but came back to Kyiv on the day of Zelenskyy’s inauguration.
Like Andriy Bohdan, the current head of the presidential administration, he has provided legal services to Kolomoisky. Portnov has filed several lawsuits against former president Petro Poroshenko, accusing him of illegal attempts to retain power, among other things.
The United States has always been a vocal and strategic partner for rule-of-law reform in Ukraine: it was instrumental in setting up the flagship National Anti-Corruption Bureau of Ukraine (NABU), and the FBI provided technical assistance and training to the NABU. Joe Biden’s efforts to dismiss the prosecutor were understood in Kyiv not to be related to his son; it was simply America putting pressure on the Ukrainian authorities to reform.
However, it was inappropriate for the son of a serving vice president to join the board of the gas company owned by an ex-minister in Yanukovych’s government, who was himself under investigation at the time of this appointment. Joe Biden should have advised his son against taking a substantial monthly cheque from a company working in one of the most corrupt sectors of the economy – gas extraction.
Even in the midst of the investigation, Hunter Biden was a speaker at the Energy Security Forum in Monaco, sponsored by Burisma. It was only in spring of this year that Hunter Biden resigned from this position.
The coming months will provide more details of the matter, but the important fact remains – Ukraine is a frontline state between liberal democratic order and authoritarian kleptocracy. The future of that battle depends to a large extent on whether the West can remain united in support of Ukraine, as well as on the success of the country’s judicial reform. Ukraine’s image as a ‘corrupt basket case’, pushed so actively by Russian disinformation, could make Western political and financial investments there toxic.
There is still time to prevent this from happening. There has always been US bipartisan strategic understanding as to why a democratic rules-based Ukraine is key for the security of Europe as a whole. US conditionality for reform, together with strong pressure from local civil society, has helped to move the country forward.
With the spotlight of the world’s media now turned upon it, this is the ideal time for Ukraine and its allies to push for an independent judiciary. Only then can it truly break away from the Soviet legacy and the stains of corruption.
Orysia Lutsevych, Research Fellow and Manager, Ukraine Forum, Russia and Eurasia Programme.