How to relaunch the Agency on Corruption Prevention that failed e-declarations

Ukrainian version published by Ukrainska Pravda

National Agency on Corruption Prevention (NACP) that sabotaged the verification of declartions for two years, has come up with a new excuse: they remind that verification of declarations is not the only their function.

It's a holy truth.

Under the law, NACP has very broad powers, including the development of anticorruption strategy, e-declarations, conflict of interest checks, control over the financing of political parties and cooperation with whistle-blowers.

And NACP failed them all. Following are details and solutions.

Anticorruption strategy. It is precisely the NACP that is responsible for the development of the state anti-corruption strategy and a state program for its implementation. When adopted by the parliament and the government the Agency is also to monitor, coordinate and evaluate the effectiveness of its implementation.

In other words, NACP is to determine who, what exactly, how and when in the state should do to overcome corruption, and then assess how effective it is being done.

However, there exist no anticorruption strategy in Ukraine today.

The previous terminated in 2017, and the new one was never adopted. The project developed by NACP project was so poor that never made it through the the anti-corruption committee of the Parliament.

Since then (and this is almost a year) nothing was happening. In Ukraine where everyone declares the need to fight corruption, no understanding on a state level exists how to do it. And NACP, responsible for this understanding, did not even care for it, until recently they were reminded of this duty. After that, the statement of its head appeared… about the need to develop a new strategy.

E-declarations. NACP is responsible for maintaining the register of e-declarations, their verification and sending the results to law enforcement depending on the findings.

In fact, one of the most powerful anti-corruption instruments created by the anti-corruption reform has been at the disposal of this body.

However, during the first 2 years NACP was not able to ensure efficient verifications of declarations.

In 2016, for some unknown reasons, they refused to accept the modules for automatic verification. In the next two years, all verifications were carried out manually. In 2017-18, 615 decisions were taken, or 0.03% of all submitted declarations.

Currently NACP actively reports on violations detected, but figures do not indicate quality. For example, almost half of all verified declarations are those of highest political leadership, judges and prosecutors, and in 90% of the cases no grounds for criminal prosecution were detected. In some cases, even after NABU has already handed over relevant cases to the courts.

96% of these decisions were taken not in time, often delayed more than a year without clear reasons, and every 3rd decision is adopted in the absence of all responses to inquiries (their primary source of information during the verifications).

Eventually, after 2,5 years under the pressure of both civil society and conditions set by international partners, NACP launched an automated system for verifications — just to immediately offset its value by internal regulations.

At the same time, the NACP tried to block the investigation of NABU on the basis of declarations.

Collaboration with the whistle-blowers. NACP’s mandated to work with those who report about corruption, called whistlblowers.

The Agency has to process their appeals, take care of protection and bring to justice those who attempt to or violate the rights of the whistle-blowers.

However, during 2 years of work NACP has no concrete results in this field.

When back in 2016 the bill on the protection of whistleblowers was drafting, NACP refused to participate in the working group. Instead, 2.5 years (!) after this draft law was registered, they decided to submit one of their own — "pointless" according to experts.

At the same time, NACP reports that only for the past year they handled around 2207 reports of the whistle-blowers, though it is not indicated how exactly these were handled, or who reported or at lest results of this activity.

Notably, a co-author of the draft law on whistle-blowers protection could not even get the answer to the question of how NACP would handle this information when addressed them «under cover», pretending to be a whisle-blower herself.

Recently, NACP reported that it stands on the side of the whistle-blowers in three dozen court cases. No surname, or at least reference to the case in the register of court decisions is available though. However, one can get a taste of how NACP protects whistle-blowers from the testimonies of one of the most famous Ukrainian whistle-blowers, judge Larisa Golnik.

Conflict of interest.NACP is mandated to prevent and resolve situations where officials may abuse their powers: from initiating official investigations and drafting administrative protocols to declaring illegal decisions taken in a state of conflict of interest.

In practice, however, NACP applies this tool according to the principle: "friends get everything, enemies get the law".

NACP reported about sending 471 respective protocols to court. However, the analysis shows that in some cases they were too "picky", while in others - closed their eyes to obvious violations.

For instance, in one case, during 1 day NACP drew up a 46 protocols on 1 person, were drawn up per person – acting head of the state enterprise for granting bonuses.

And in another case, NACP did not see any violations in the actions of the official that helped to eliminate the prosecutor in the case of ex-MP Mykola Martynenko, who was charged by NABU with the theft of 695 million USD from two state-owned enterprises.

Political financing. NACP is also responsible for allocation of government funding to political parties that have received at least 2% of the votes in the elections, and to monitor compliance with the constraints set on parties by the law, including verification of their reports.

However, the NACP never managed to provide high-quality state control over the financing of political parties.

According to experts, many aspects of this reform failed, in particular, due to the poor quality of the NACP’s work.

Regulations produced by the NACP not only of poor quality, but often contradict the law. For 2 years, the agency has not introduced an electronic form for reporting parties. About 30% of the parties in general ignore this duty, and those that don’t not always indicate the full and reliable information that the NAPC analyzes poorly superficial.

Who is to blame and what to do?

The failure of the NACP to properly perform its functions was obvious already back in 2017. And not only to civil society, but also to international experts, who recommended to amendmend the law.

The Parliament could do it in 2017. At that time, several bills were registered at once, nither however had ever been voted. It is noteworthy that the ruling coalition consisting of Petro Poroshenko Block and Narodnyi Front failed even the vote for including the issue to the agenda.

In another half a year, the whistle-blower from within the NACP itself stated that the Agency is being controled from the Presidential Administration. The latter denied it, while those who criticized the work of the body, President Poroshenko called little short of"Kremlin hand".

Before the second round of elections, President Poroshenko publicly changed his mind. Though it is clear that there will be attempts to maintain the political control over the Agency with extremely wide powers even though he is soon to leave the office.

Obviously, the NACP must be rebooted. This requirement is supported by specialized anti-corruption NGOs. And in order to ensure the independence and efficiency of the body, it needs to be done via adopting a law that will resolve the following key issues:

1. External influences on leadership chosen by political quotas, not by level of professionalism and qualification

The current management of the NACP must be

dismissed. To elect a new leadership, the composition of the election commission needs to be changed. The inclusion of international experts, whose votes will be a prerequisite for a decision in favor of any candidate, may provide the necessary transparency and quality of the selection process.

2. A slow, inefficient management drowned in internal conflicts, where nobody is responsible for anything

Instead of a collegial leadership, giving the powers to govern the body to the Head seems much more reasonable.

The Head should be elected though the competition, but should appoint his deputies himself. The entering requirements for candidates to the position of Head should provide access to as many people as possible.

3. Lack of clear distribution of areas of responsibility, ineffective management and its consequences

The newly elected leadership will need information about the previous activities of the body, the main issues and priority steps for their solution. Such information may be provided by an international independent audit of the NACP in 2016-2019, which may be initiated by the government upon adoption of the law.

4. Lack of effective control over the work of the body

Daily control over the activities of the body can be ensured through the establishment of the Office for Internal Control. Public control should be carried out by the Public Council, which should be selected based on the results of online elections. It is also advisable to introduce an annual audit, the negative conclusions of which will not be grounds for termination of powers of the Head, but will determine the problems and possible ways to overcome them.

5. "Infiltrated agents"; low skilled workers and other staff problems

The NACP’s apparatuswill also require a reboot upon selection of the new leadership. This can be done though evaluating the results of the work of the staff with the subsequent dismissal of those who failed the assessment. Such an assessment should be carried out with the participation of the newly created Office for Internal Control and Public Council.

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