Hell by mutual agreement

19 June 2020
Hell by mutual agreement
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Authors: Nazar Zabolotnyi, Oleh Savychuk, analysts of the Centre of United Actions

This week the parliamentary Committee on Law Enforcement agreed to include in the parliamentary session agenda a resolution on dismissing the Minister of Internal Affairs Arsen Avakov. On June 30, the Verkhovna Rada can include it in the agenda and take a vote to dismiss the head of the MIA. Public opinion about the minister is polarized: some people come into the streets demanding his dismissal, discourse in the media swings between “there are no better candidates for his position” and “Avakov in the office is dangerous even to those in power”. What are the grounds for such claims? Does the minister hold his position due to some informal agreements or the law? What should be changed in law enforcement if Avakov is dismissed? If modern folklore is right in claiming that the head of the MIA is the most powerful demon and his subordinates have organized Dante’s Nine Circles of Hell then we have to ask a logical question: how could all that have emerged right under our noses? Let us investigate.

The story of the rise of Arsen Avakov to the top of the Ukrainian power structure is a classic example of the idiom “there is nothing more permanent than temporary”. He started his career as an acting Minister of Internal Affairs right after Viktor Yanukovych has fled the country. 5 years later, the Chairperson of the Servant of the People in the parliament Davyd Arakhamia during the first days after been elected also claimed that Avakov would be the minister only temporarily.

He is, though, the only person on the Pechersk hills that has managed not just to remain in power but also to increase his influence during the last six and a half years. Despite recurrent protests and appeals to dismiss the minister, his place in the Cabinet for now looks solid. His influence has increased so much that journalists and activists talk about him as not just a minister but as “an owner of the state within the state” or “the informal vice-president of the country”.

 In the end, he is the person that for years escapes the political responsibility for the failure of the law enforcement reform, permanent police abuse that causes street protests, and a virtual absence of police on some territories where the illegal activity takes place for years. Let us analyze how Avakov was able to accumulate so much power and what should be done to prevent others from doing so in the future.

No help from legislators

It is a paradox, but the powerful head of the MIA never had enough influence to lobby a law to expand the scope of his authority.

The hardest defeat on the legislative front Arsen Avakov suffered back in 2015. That year president Poroshenko vetoed the Law on Bodies of Internal Affairs that allowed, among other things, to create a special internal security unit under the direct control of the minister.

This unit was supposed to prevent, detect, and stop criminal offenses and administrative violations within law enforcement agencies. With such a tool, the minister could have gained absolutely legal and legitimate leverage to put pressure on any law enforcement employee. That includes the National Police, the National Guard, the State Border Service, the State Emergency Service, the State Migration Service, and service centers of the MIA. In total, over 300 thousand of Ukrainian citizens work there, i.e. almost one percent of the population. The minister could have got an advantage to legally put pressure on each and every one of them.

Several months ago, the Verkhovna Rada discarded a draft bill allowing the National Guard to perform a search of a person or their belongings. Thankfully, the Parliament has not allowed turning the National Guard from a military formation into an extra police force under Avakov. This extra police force would have been equipped with heavy armament, warlike and special equipment designed for warfare and not maintaining public order.

Another fresh example is a draft bill allocating ₴2.7 bln from the special COVID-19 fund to the MIA: the bill was passed in the first reading only on the second attempt and it is doubtful whether it will be adopted. There is a chance that Avakov’s subordinates will not get their extra money.

Avakov definitely has never increased his influence by lobbying for new legislation. Moreover, laws adopted during the first years of his term in office were supposed to restrict his powers: new law on police made the police a separate executive body and not a subordinate structure within the MIA as it was before.

In the right place, at the right time, and portraying himself as a patriot and a reformer

When Avakov was appointed the minister, the system of law enforcement virtually had not existed. On the one hand, law enforcement agencies that just yesterday shot unarmed Maidan protesters had zero legitimacy in the public eye. On the other hand, many police officers and other representatives of law enforcement in Crimea, Donbas, and in a number of localities in Southern and Eastern Ukraine either explicitly supported separatist movements triggered by Russia or remained inactive.

Ukrainians clearly understood the catastrophic state in the MIA: on December, 3 out of 5 respondents did not trust the militia. That is why at the beginning it was enough for the minister to publicly present himself as a patriot and declare that he is ready to implement reforms. Avakov was always able to say what people wanted to hear, so among other promises he even assured that representatives of Euromaidan self-defense force and Right Sector would be hired into the force.

While flirting with patriots, Arsen Borysovych actively tried to win the confidence of the old militia system. Thanks to his efforts, servicemen from the Internal Troops that took part in attempts to disperse the Euromaidan and had good chances to face the trial in the end remained in the force after the “reevaluation”: most of the reevaluation commissions were controlled by people connected to the MIA. Even those who were fired eventually returned by courts’ decisions.

A telling illustration of this approach is an incident when ex-Berkut officers beaten up journalists in the winter of 2015. In just a few weeks, Avakov’s advisor and ex-MP from the People’s Front Anton Herashchenko publicly reported that these officers had stopped a car with unlicensed guns and should be awarded. This story has demonstrated for all MIA employees the existence of a parallel universe where the minister and his associates are above the law and “take care of their own”.

Thanks to the efforts of the new minister, old militia officers were able to remain in power and keep the tradition of mutual cover-up engaging everyone: from junior police officer to the minister.

Covering up the misconducts of his subordinates became a trademark of Arsen Avakov. For example, for the murder of a 5-years-old boy in Pereiaslav, the head of police in Kyiv oblast was not dismissed but instead appointed the head of police on the Anti-Terrorist Operation zone. In other words, he got an equivalent position and, de facto, even more power, because in an active combat zone police have more influence and are less controlled than in other regions of the country.

Progressive activists that demanded to reform law enforcement also have got a carrot from the minister. That carrot was patrol police — a service body “created for the people”. Still, times when people asked police officers for selfies were soon over. Ukrainians realized that the system had only been refurnished and continue to cover up its subordinates and resort to power abuse.

The key to success for Arsen Avakov at the beginning of his career were a reform imitation and effective PR that gave him time to take control of the old repressive apparatus from the times of Yanukovych. Other important factors for his ascent were active work with bloggers and the expansion of his family’s influence over the media. After getting total control over law enforcement, Avakov just threatened both presidents with chaos and riots if he is dismissed.

Not a strong minister, but weak institutions

Avakov has become as powerful as he is now not least due to a shaky power structure of Petro Poroshenko’s parliament. After Batkivshchyna, Samopomich, and the Radical Party of Oleh Liashko pulled out of the coalition, Petro Poroshenko Block and People’s Front had less than 226 votes. Thus, the parliamentary coalition was dead. Instead of accepting his obvious defeat and announce early election as is customary in civilized countries, Petro Poroshenko decided to keep a shaky status quo. The price for that was that until the end of his term in office he had to gather votes for each bill he wanted to push. Without 80 votes from People’s Front, of course, it was impossible, so there were also no chances to dismiss Avakov or restrict his influence in any way.

The dependence of the parliament on the shaky union of Petro Poroshenko Block and People’s Front made it impossible to maintain any civil control over the Minister of Internal Affairs and his subordinates. Overall, the lack of parliamentary control is an old problem of defense and law enforcement agencies in Ukraine. Our Western partners and Ukrainian experts mention this problem at every opportunity. Parliamentary control is a necessary requirement if we want to minimize power abuse and corruption in such closed structures as the MIA.

The foundation of civil control is the Parliament that must constantly monitor the Government and always respond to high-profile cases: conduct open discussions and debates about what is happening in the MIA, create provisional investigatory commissions when necessary. The last two parliaments, however, turned up to be spineless when it comes to Arsen Avakov. It is hard to find any other explanation why the minister that has not come to the Rada 30 times after been summoned by MPs keeps his position for the last 7 years.

On top of that, the Verkhovna Rada of the previous convocation has managed to appoint as its Commissioner for Human Rights a political figure instead of an independent professional: Ludmyla Denisova had close ties with People’s Front — like Avakov. Moreover, she is often called his protégé.

As a result, the Parliament and its Commissioner are now incapable of effectively controlling the part of the executive branch that has to be controlled the most: on behalf of the state, the Ministry of Foreign Affairs exercises the monopoly on using force within the country’s borders.

So what can be done?

It is hard to imagine any positive changes in the key law enforcement agency while it is led by Arsen Avakov. Thus, his dismissal is a necessary prerequisite for any real reform in the Ministry that is supposed to defend and protect.

At the same time, a mere dismissal of Avakov is not enough to ensure real changes. To reform such a powerful and divergent structure as the MIA, it is important to keep a close watch over any new minister starting from their first day in office. It is easy to define the success criteria for Avakov’s successor: he or she has to be able to replace the senior personnel within the ministry with professionals with untarnished reputation and reform the educational system. Neither old top officials nor old lecturers from higher educational establishments of internal affairs can give us better police officers.

It is also necessary to finally pass a law defining the role of the parliamentary opposition. The opposition is always the best watchdog over the Government and other top officials trying to abuse their powers. The foundation of the parliamentary control is the discussion between the government appointed by the majority of the Verkhovna Rada and the opposition thriving to come into power.

Another step towards ensuring parliamentary control over law enforcement agencies is to give real independence to the Commissioner for Human Rights and give them more powers.

The measures listed above, though, will solve only a part of the problem with the lack of real parliamentary control over the executive branch. The root cause of our trouble is that Ukrainian parliaments are weak and dependent on presidents. Until the parliament is not a key political actor of the state, until it does not form the Government and appoint all top officials in the executive branch, there will be no effective parliamentary control. That is why the abnormal amount of power concentrated in Arsen Avakov’s hands is not just the result of his personal ambitions or actions — and this is true in many other cases.

We have what we have because the balance of state power in Ukraine does not have reliable mechanisms of checks and balances. Until we change that, new authoritarian dictators like Yanukovych or omnipotent ministers of internal affairs will rise again and again, just because the system works this way.