Certain legacies of the Soviet era are still present. In the Soviet period, the oversight function of the security sector in Ukraine was carried out by bodies within the state security structure that were controlled by the Communist Party.[36] After the dissolution of the Soviet Union the quality of oversight and monitoring decreased and the security sector grappled to overcome past inefficiencies and structural deficiencies. The sector was therefore in urgent need of reform, including reinstating internal (inspectors, members of the judiciary, audit institutions, ombudsmen) and external (Parliament, civil society organisations, media, think tanks) oversight mechanisms, in line with Ukraine’s stated objective to pursue democratic governance.[37]
Good governance of the security sector is not only a requirement for Ukraine in light of its aspirations to join the European Union (EU) and the North Atlantic Treaty Organization (NATO), but also to make its security apparatus more resilient in the face of protracted high-intensity warfare.[38] Various assessments over the years have highlighted that Ukraine needs to institutionalise the mechanisms of public control and oversight in its security sector.[39] But amending legislation alone is not enough; it also needs mechanisms to ensure and monitor its implementation as well as to have a feedback mechanism for shortcomings.[40] Special attention is required with regard to human security issues within the security sector and its depolitisation, in particular the independence of the security sector leadership from the political influence of the ruling party and the President.[41] Several assessments prior to the full-scale invasion also highlighted the importance of the demilitarisation of the sector, i.e., prioritisation of the rule of law above the military command. This is especially relevant for non-military security providers (e.g. the police).[42]
This chapter focuses on the analysis of how public oversight is ensured at the level of the key state governance actors responsible for the reform progress of the security sector: the Government, Parliament and the Office of the President; and on the current state of the reform efforts at the level of external and internal security actors, i.e. the Ministry of Defence (MoD), the Armed Forces of Ukraine (ZSU), the Ministry of Internal Affairs (MoIA) and the Security Service of Ukraine (SBU).
Legal basis and parliamentary control
Ukraine has established a solid constitutional and legal basis for reliable public oversight of the state security sector.[43] The Law on National Security of Ukraine, adopted in 2018, has redefined the roles of all actors involved in Ukraine’s security sector and enshrined a prominent role for democratic-civilian oversight within Ukraine’s security sector.[44] This law stipulates the right of civil society to request information, conduct analysis and take part in public discussions. It does not include, however, clearly defined feedback instruments that oblige the authorities to provide information and involve non-state oversight actors in policy development on a structural basis.
As such, in practice things work differently: civil society organisations are involved at all levels of the security sector and provide important resources, analysis and input. But consultations are not formalised and are usually requested on an ad-hoc basis. This approach may work well in the short term, in particular while all state and non-state actors have a common interest – i.e., to resist the Russian invasion.[45] In the long run, though, the vulnerable fabric of this trust and collaboration would have to be better institutionalised to ensure its sustainability.
The basis for the oversight function of Parliament is institutionalised as well, empowering Verkhovna Rada to exercise parliamentary control. Among other things, it has the responsibility to define and regulate the activities and powers of the security and defence sector, to approve relevant budget allocations, to determine reporting requirements and the option to create thematic, investigative and temporary special commissions to investigate issues of public interest (see figure 4).[46]
In practice, both Verkhovna Rada and civil society organisations (CSOs) still partly lack access to security sector processes related to information exchange, procurement and the drafting of strategies.[47] Parliament formally approves budgets and procurement strategies, but has a negligible influence on the actual direction of security policies, as discussed in chapter 1.
In order to balance the temporarily increased powers of the President and to maintain a degree of control over security affairs, in July 2022 Parliament established the Temporary Special Commission on Monitoring the Receipt and Use of International Material and Technical Assistance During Martial Law. This specialised commission engages in meetings with national and international civil-military relations experts and NGOs to improve its efficiency.[48] Another reason for its establishment was to ensure international partners that their military aid would not be abused, and to show that even in wartime Ukraine could function as a democratic state.[49] The supporting legal document describes the Verkhovna Rada’s right to oversee international military aid and its utilisation. There is however no mention of the possible role for civil society actors in this oversight process. [50]
Civilian control over the military
Another step in the right direction towards civilian control over the military was the appointment of Oleksiy Reznikov as the Minister of Defence (MoD) of Ukraine in 2021. He became the first civilian minister to hold the post, following the adoption of the National Security Law in 2018, specifying that Ukraine’s Minister of Defence and key positions are to be held by civilians.[51] This law also increased the accountability of the armed forces towards the President and civil society. Before 2018 key positions at the MoD were held by individuals with military ranks, which in practice meant that the main military organisation of the country was accountable only to itself.
A risk which is usually present when armed forces lack civilian control is that they can be used to seize power and undermine the constitutional order. Interestingly, despite Russian narratives about ‘coups’ and ‘juntas’, in Ukraine only the opposite has happened in recent years. The only serious incident of the military turning against the civilian authorities was in 2014 when senior military commanders refused to comply with the orders of President Yanukovych to deploy the armed forces against the Euromaidan protesters.[52]
Even if the institutional set-up, and particularly the role of Parliament, can be further improved and decision-making during wartime is understandably concentrated in the hands of a limited number of people, there is still democratic control over the armed forces. The key decision-makers outside the military are either directly elected civilians such as President Zelensky himself, or civilians legally appointed by him such as Minister Oleksiy Reznikov and the Secretary of the National Security and Defence Council Oleksiy Danilov. Although it is presently unclear when Ukraine would be able to hold new Parliamentary and Presidential elections, for now there are no serious challenges to the democratic legitimacy of both the President and the Government. These challenges will increase if martial law is maintained for a longer period, but for now, the legal and practical difficulties in organizing an election during wartime appear to be greater than the payoff in terms of democratic legitimacy. This is especially the case if they would be held at short notice, under extremely challenging conditions and with an incomplete voter registry.[53]
In addition, civil society itself keeps actively monitoring Ukrainian democracy and is very alert to any developments that would undermine it, regardless of its staunch support for the armed forces. Its capacity to provide oversight has grown exponentially since 2014. Previously the most prominent and professional NGOs were mostly those that served as watchdogs. By now the landscape of non-state actors that are exercising civilian control over Ukraine’s democracy in the state security sector has further expanded and consolidated.[54] Apart from that there is a solid network of experts with a civil servant or a military background, who play a role in the security and military policy development process through consultations with Parliament and security and defence government agencies and through their influence on public opinion.
Obstacles to better cooperation between state and non-state oversight actors
This is not to say that it all works perfectly. While both state and non-state civilian actors legally have many specific rights and functions regarding oversight of Ukraine’s security sector, in reality some obstacles remain. Especially non-state actors frequently encounter obstructions when they try to fulfil these roles due to an institutional and deeply-rooted insistence on secrecy regarding all security-related matters.[55] While this is understandable in wartime, this reflex action was already present before the full-fledged invasion and is particularly present when it comes to civilian oversight of internal security actors, such as the MoIA and the SBU. As the SBU has the mandate to itself determine what type of information should be classified or declassified, on this issue there is little accountability towards external parties.[56] Currently, there is still a tendency to consider almost any information within the government security agencies, such as the SBU, as classified.
This trend of secrecy slowly starts to change as civil society becomes more assertive and the Government feels compelled to respond. Ukraine sometimes struggles to strike an effective balance between democratic demands for transparency and national security imperatives to maintain secrecy. An example is a discussion with the Independent Anti-Corruption Commission (NAKO) (a Ukrainian NGO that, among other things, focusses on Ukraine’s defence and security sector) on whether the employment selection process and asset and income declarations of the SBU should be considered as classified information, as it can be used to cover corruption practices.[57] It is questionable whether such full transparency on the recruitment and income of the personnel of the security services is desirable or effective; in many EU countries, including the Netherlands, such information is kept classified to protect the intelligence services’ personnel and their families. It might be preferable to have the oversight function executed by a special parliamentary commission, with a specific assignment to exercise control over the security services in a context of confidentiality.[58]
Another point of concern is insufficient coordination between the state and non-state oversight actors in Ukraine which, to be fair, is also a challenge for similar institutions in other European countries as well.[59] NGOs and state oversight agencies seem to work in parallel and almost in an atomised fashion, without communication between them. The new prospects for EU and NATO integration could provide an impetus for increased cooperation in this regard.[60]