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Ukraine’s Difficult Path toward a More Transparent Government

Photo by Jurij Skoblenko
Photo by Jurij Skoblenko

Interview with Oksana Nesterenko, Former Kennan Institute Fulbright Scholar, and Associate Professor, National University “Yaroslav the Wise Law Academy of Ukraine,” on September 4, 2014. Kennan Institute Project "Protection of Whistleblowers and Education Programs as Strong Guarantees for Transparent Government."

Malinkin: As a new government is forming in Ukraine, what should it focus on most, concerning transparency? What should be their first steps in your opinion?

Nesterenko: The Ukrainian government's biggest challenge is corruption. This is why people went to the streets in November and December and why Yanukovych was overthrown. We have significant legislation on government transparency and accountability in Ukraine, but unfortunately it doesn’t work very well. A couple months before Poroshenko became president, the Ukrainian Parliament adopted a new law on access to public information, but now we need to amend previous Ukrainian laws because the new law conflicts with them. The other thing the new government needs to do is to establish legal protection for whistleblowers. It’s a new concept — whistleblower protection — in Ukraine, and it’s a crucial tool for fighting corruption. A big problem related to corruption — though it's not the focus of my research — is economic freedom. We have a lot of licensing regulations for private corporations and very complex tax regulations – these create a good environment for corruption.

Tell us more about the new law on access to information.

It was a real victory for me because I worked on this legislation for two years. When I worked for the Ukrainian ombudsman, we fought with the Ukrainian parliament and with Yanukovych's regime to adopt it. Only recently, after the revolution, the Ukrainian parliament finally agreed to pass the bill, and it could change everything. Why is it so important? Because the government in Ukraine refuses to disclose certain information, citing internal regulations. This law will enforce existing standards as well as the law on the access to public information. We have a serious problem because people request information based on the law on access to public information, but officials refuse to release information according to other laws.

Are you satisfied with the new law?

It's very strong. According to this new law, if government agencies refuse to release non-classified information, one year after a request for information, the process to provide it will start automatically. Previously, the Ukrainian government classified information according to the Soviet Union’s standards, but after the new law on access to public information was adopted, the Ukrainian government was required to review all classified information and determine what should remain classified. Government agencies often refuse to do that. So now they have two options - to do a real review according to the new law OR do nothing and everything will be opened in a year. It's really important regarding the Soviet archives - we cannot really talk about human rights violations that occurred during the Soviet Union because we don't have access to a lot of the documents. This law will help change that.

In addition to the laws you’ve mentioned, are there any movements to amend the constitution regarding access to information?

It would be great, but it's a very serious task. Seven years ago I wrote my dissertation, and later a book, arguing that the constitution should be changed to include a provision for access to official documents. Since the Ukrainian Constitution does not cover access to information the next Ukrainian Parliament could repeal this recent law. Ideally, the Constitution should protect access to public information as well as more freedom of speech and the media.

How do you think the new government is dealing with the media, in terms of what is shown on Ukrainian television?

All Russian media outlets have been prohibited in Ukraine (except in Donetsk, Lugansk, and Crimea, of course). This is of course a violation of the Ukrainian Constitution as well as Article 10 of the European Convention on Human Rights. However, I cannot say that I don't support the Ukrainian government right now. We are at war. Russia might not call it a war, but it's a war. In this case, maybe the Ukrainian government has the right to prohibit some of the Russian coverage. I try to follow the Russian news on the internet — it is so aggressive and looks like it is having a real influence on people’s minds. If we talk about liberty and freedom, the Ukrainian government can’t prohibit media outlets because it's a violation of economic freedom as well. If some channels would like to broadcast Russian media, that is their right.

Who do you think are the most appropriate bodies to monitor transparency in Ukraine?

In my view, we have a very strong civil society and there are a lot of non-profit organizations that focus on protecting freedom of information and overseeing government expenditures and accountability. They do great monitoring. Among these organizations are my hometown organization, the Kharkiv Human Rights Protection Group, the Media Law Institute, the Institute of Mass Information, the Center for Political Studies and Analysis, Internews Ukraine, and many more. But my dream is to create an independent oversight body that will monitor and protect the freedom of information. The new version of the law on freedom of information included establishing such a body.

One of the goals of your grant was to study the U.S. whistleblower protection and develop models for Ukrainian legislation. I'm curious to hear after you've been in the U.S. and seen some real life examples — most prominently, the Snowden case — has your opinion of U.S. whistleblower protection changed? What are the merits of the U.S. model? What could be improved?

Before I arrived in the U.S., I was sure that the First Amendment protected whistleblowers. But when I started my research I understood from recent decisions of the Supreme Court that no, intelligence employees who speak out using classified information are not protected by the First Amendment. I am sure if Snowden had protection in the U.S., he wouldn't have gone to Russia. Contractors like Snowden should have this protection.

One of the interviews I did during my grant was with Thomas Andrews Drake, another famous whistleblower from the NSA. Why did he go to the press? He reported information internally first, but didn't get any response. The U.S. needs to create the appropriate channels for reporting things for the intelligence community to be able to provide real security for people. But I have faith in the people working on this issue in the U.S. I met a lot of great experts during my time here. I became acquainted with the Government Accountability Project, which is the oldest and most famous organization in the U.S. that works on whistleblower protection. I attended classes at American University with Professor Robert Vaughn who dedicated his life to whistleblower protection. There is a strong academic community and civil society in the U.S. that understands the value of the First Amendment.

What are your thoughts about the new Ukrainian government?

The Ukrainian people would like to see anti-corruption reforms and real changes in the country. However, real changes will only be possible when a new parliament is created based on new laws. Over the last ten years, Ukrainian constitutional experts have been arguing that the Parliament should be elected according to a proportional representation system with open lists. The public would be able to elect their candidates instead of the political parties. This would be a more just system, and President Poroshenko was in favor of this, but the Ukrainian Parliament failed to adopt it. So the upcoming election – on October 26 – will be conducted according to the old election laws, and this means Parliament will not change in any meaningful way.

Any initial observations on President Poroshenko and his administration?

At this point in time, I see that Poroshenko is taking some positive steps — he’s conducting economic and anti-corruption reforms in Ukraine, and he’s paying attention to civil society. But the problem is —it’s not just Poroshenko, just like the problem was not just Yanukovych. There is a thick layer of bureaucrats, judges, police, etc. who would like to hold onto their money and power, and continue their corrupt activities, and I’m not sure Poroshenko will be able to break the system that formed over the last 20 years.  I’m not sure he has the will, the power, or the right team. I’m not sure the people around him are honest or want real reforms. Poroshenko recently announced that he would like to create an anti-corruption bureau. This should be a strong, independent agency, but the question is – who will head it? We have tried many times to create anticorruption agencies in Ukraine, but they become just as corrupt as those they are monitoring. The average Ukrainian wants real anti-corruption reforms, real changes, and a better life.

Is there anything you want to say about how Poroshenko's administration has dealt with the Donetsk and Lugansk “Republics” as well as his meetings with Putin?

It’s really obscure for me. We get some information about the situation from the media, but it's not clear. Unfortunately, overall the Ukrainian media is weak and unprofessional. We don't have censorship, but there are few highly skilled investigative journalists in Ukraine, and this adds to the problem of trying to understand what is going on.

Mary Elizabeth Malinkin
Matthew Rojansky, Director, Kennan Institute

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