Ukraine Can’t Afford Presidential Prosecutions

The world has spent the last month and a half transfixed by the question of whether the Kremlin’s threats to massively ratchet up its ongoing invasion of Ukraine is a bluff. The Kremlin is now demanding that the West speedily ratify a pair of draft treaties which would essentially lock Ukraine out of NATO and would consolidate Moscow’s domination over its neighbors.

The news that the government of Ukrainian President Volodymyr Zelensky has initiated legal procedures accusing former President Petro Poroshenko of high treason could not have come at a worst moment. On Dec. 20, the Ukrainian State Bureau of Investigation, the equivalent of the FBI, announced that Poroshenko was under serious suspicion for having committed “state treason” for having “supported the activity of terrorist organizations.”

His administration is alleged to have assisted the Russian-backed and commanded separatists in Eastern Ukrainian regions controlled by Russia of selling the government coal even as Ukrainian troops were being killed. The government accusation is that $54 million worth of coal was illegally sold in 2014 to 2015, thus illicitly funding the separatists. This would also not be the first time that the Zelensky administration has moved against Poroshenko, whom it considers to be a major political opponent. When the Zelensky administration had first come to power in 2019, they had mulled going after Poroshenko loyalists. The media that the chocolate tycoon former president owns also continue to make him a formidable figure within Ukrainian politics. Though many cases previous cases against the former president had previously been opened, none were prosecuted or brought forward.

A day later, Kyiv’s Anti-Monopoly Committee followed up on the judicial actions with targeted economic escalation by leveraging a fine against several companies owned or affiliated with Poroshenko for the sum 283.6 million hryvna ($10.4 million). The companies were fined for allegedly violating national anti-monopoly legislation, with claims they had abused their position to illegally leverage the prices of corn starch and glucose syrup. Poroshenko is being charged as part of the same alleged scheme that the Ukrainian government has used to go after Viktor Medvedchuk, a leader of one of the pro-Russian political factions within the Ukrainian parliament and a close confidant of Russian President Vladimir Putin.

The Ukrainian security services have released suggestive phone conversations that suggest Medvechuk’s machinations had at least tacit agreement from the president. Still, if the purchase of Ukrainian coal from the occupied territories is not outside of the realm of the impossible, Ukraine does continue to engage in all sorts of business with private Russian enterprises and as well at the Russian state on oil and gas transit. The choice to pick this case to prosecute is thus inherently a subjective decision and may very well open up a possible Pandora’s box in the future.

The Zelensky administration is taking a very dangerous step in moving against an internal political opponent at the same moment that a lively debate has broken out on how to help secure its sovereignty among the expert community in Washington. The newly opened case against former president Poroshenko is seen by critics within Ukrainian civic society as an instance of selective prosecution. By moving against his predecessor, Zelensky runs the risk of squandering the accumulated national reserve of international good will just as it is critically needed to deter the threatened Russian military escalation.

The alleged use of Ukrainian government funds to acquire illegally mined coal from the Russian-backed separatists in the partially occupied portions of Eastern Ukraine is a serious issue. But the country simply had no coal at a time when it was desperate for it in the midst of a winter and a Russian military offensive. Purchasing the coal from Russia was clearly not the correct political answer in the midst of the conflict, and supplies that were meant to come from South Africa were rejected for political reasons. Yet, if Poroshenko was indeed playing a complex game with sourcing illicit coal, this was being done when the country required coal in the middle of a messy war. The Ukrainian government already had dozens of cases open on the book against Poroshenko, none of which it chose to prosecute before bringing up this newly opened case.

Zelensky is keen to be seen as fighting corruption, which along with a mandate to conclude the war, were the core platforms on which he was elected in a bitterly contested election fight against Poroshenko in 2019. Yet, surprisingly for a president who was once a comedian, his timing has often been lacking. in In March 2020, Zelensky sacked a cabinet he viewed as underperforming. That was the exact moment when the country and the world were first being battered by the coronavirus. Such moves make the Ukrainian government look bad in the international arena, hint at democratic backsliding, and call into question the fairness of its due process system.

A conviction of high treason would give the former president, now the head of a major opposition party within the Ukrainian parliament, a possible 15-year-long prison sentence. It would have the effect of essentially ejecting him from Ukrainian political life. A Poroshenko ally has denounced the accusations as having been “politically fabricated” but the case seems to be steaming ahead. The former president has left the country for the time being.

In a related concern, the Zelensky administration has recently unveiled accusations against businessman Rinat Akhmetov that were widely viewed by Ukrainian journalists and international Ukraine watchers as unconvincing. Zelensky made a claim during a press conference that the Ukrainian Security Services had evidence (this was not much presented) of a coup plan being fomented by the Russians that intended to accrue backing from Akhmetov. At the same time, Poroshenko has been rising in the polls, especially in a hypothetical second round runoff rematch of the 2019 presidential elections. Zelensky’s former parliamentary speaker Dmytro Razumkov is also doing very well in those polls after having been forced out after a squall with the president.

The Zelensky administration is quickly falling in the polls, and some of these moves look to critics as if they’re directed at clearing out potential opponents in the upcoming 2024 election.

But that process risks creating liabilities for the young president in establishing a precedent for selective prosecution which may one day also bring with it an unexpected return in the form of his own vulnerability. The strength of the prosecutor’s case and the ethics of the decision to go after the former president aside, much of the population remains unconvinced and these actions seem likely to sap Zelensky’s own political standing.

The prosecution of former presidents has become something of a ritual in several post-Soviet states—with at least three former leaders of Kyrgyzstan being prosecuted, for instance. But that is something that Ukraine has wisely avoided until now. Ukraine is in many ways a flawed and vulnerable democracy with shaky institutions, yet it has been very good in routinely rotating its government and respecting the security of former heads of state.

Likewise, delegitimizing the man who negotiated the Minsk accords hurts the image of Ukrainian political legitimacy in the international arena in the midst of a serious crisis. The Ukrainians are outgunned and outmatched by a tough opponent whose defense expenditures are 10 times its own. What Kyiv has on its side in this David and Goliath matchup is the luster of its moral and democratic legitimacy. With thousands of Russian tanks along its border, Ukraine’s friends should not keep quiet while the country risks perpetrating a possibly serious mistake and tarnishing its international image.