IFES Ukraine Election Bulletin #77 (January 17 – January 30, 2019)
Parliament’s Committee on Legal Policy and Judiciary Recommends Adopting at First Hearing Draft Law 6240 Aimed to Enfranchise IDPs and Mobile Citizens in Elections
On January 17, the Verkhovna Rada Committee on Legal Policy and Judiciary adopted a decision recommending the Rada to pass the Draft Law No 6240 on Amendments to Certain Laws of Ukraine Related to Electoral Rights of Internally Displaced Persons and Other “Mobile” Groups of Ukrainian Citizens in the first reading.
If the Draft Bill is adopted into law and becomes effective before the 2019 parliamentary elections, IDPs and economic migrants and other mobile groups of citizens will be able to vote in parliamentary elections not only for the party list (which they are entitled to under the current law), but also for candidates running in single-mandate districts under the majoritarian (first-past-the-post) component of the parallel electoral system. IDPs and mobile groups will further be entitled to vote in the 2020 local elections at their current place of residence. The absence of a possibility to register a temporary voting address effectively barred all IDPs from taking part in the 2015 local elections. This was widely criticized including internationally by the OSCE/ODIHR and Council of Europe.
Draft Law No 6240 was registered in the Verkhovna Rada on March 27, 2018. It was sponsored by 24 MPs representing the Petro Poroshenko Bloc, People’s Front, Samopomich, Batkivshchyna, Oleh Liashko’s Radical Party, and the Opposition Bloc. The bill was prepared by the Group of Influence (former CVU-Donetsk) and Civil Network OPORA, in consultations with the Central Election Commission, MPs, Ukraine’s internally displaced community and other key stakeholders.
Under the current laws governing elections in Ukraine, citizens vote at polling stations to which their electoral addresses are assigned; their electoral addresses are determined based on their registered places of residence. Changing one’s registered place of residence, or, so-called propiska, and, subsequently, one’s electoral address, is burdensome and a significant barrier for Ukraine’s displaced and mobile communities.
Voters can temporarily (i.e. for a specific election) change their voting address from the election precinct they are assigned to and vote at a polling station at their actual place of residence. To do so, a voter must submit a written application to a Register of Voters Maintenance Body (RMB) no later than five days before an election, accompanied by supporting documents that demonstrate the need to change one’s election precinct/place of voting. The procedure for temporarily changing the place of voting without changing the electoral address is less cumbersome than changing the residence (“propiska”) and is widely used for national elections by internal labor migrants and other categories of voters who otherwise would not be able to vote where they currently reside. However, the procedure is not applicable to all election events. The current legal framework does not foresee that voters can register a temporary voting address for local elections or for the single mandate constituency component in parliamentary elections. The laws require that they vote in the community where they have residence registration. Since IDPs, as a general rule, have residence registration in areas currently not controlled by the government, this effectively disenfranchised them from voting in these races, including for the mayor or the local council at their current location.
The Draft Law No 6240 seeks to enfranchise the millions of Ukrainians who are displaced as a result of conflict or who voluntarily reside in places that differ from their registered place of residence.
Key aspects of the Draft Law:
- any voter will be able to permanently change their voter address to current/actual place of residence by submitting a written application to the Voter Register Maintenance Body (RMB) whose jurisdiction expands to the territory of the voter’s current/actual place of residence;
- for the purposes of preventing electoral tourism, an application for changing one’s voting address must be filed with the relevant RMB no later than five days following the official start of the election period (i.e. before the official registration of candidates); no changes to one’s voter address will be allowed until the end of the specific election;
- a written application for changing voting address must be accompanied by one of the documents from the list of eligible supporting documentation mentioned in the Draft Law that can be used to prove current place of residence. The documents among other includes employment contracts, private entrepreneur certificates and the person’s IDP certificate;
- voters will be allowed to change their voter address through a written application to the RMB no more than once within a 180-day period.
- Once voters have registered a voting address under this procedure they don’t need to renew it: it is applicable in all election events, including in potential second rounds of presidential elections and in certain mayoral races of local elections.
IFES, as part of its efforts to strengthen democratic progress in Ukraine, supported by the United States Agency for International Development (USAID) and the UK government, facilitated a range of activities designed to give a voice to Ukraine’s IDPs and to strengthen their ability to communicate their aspirations and desires at the national level. Additionally, IFES provided support to legislative consultations and technical expertise to the drafting efforts with an eye to international standards and good practice in the area of IDP enfranchisement.
The Legal Policy and Judiciary Committee’s decision is a positive step towards enfranchising IDPs and internal migrants in all the elections regardless of their place of residence registration, in line with the international standards and best practices. Now the focus will be on the Rada to adopt the Draft Law No 6240 into law well in advance of the 2019 parliamentary elections and the 2020 local elections. The Draft Law has limited to no effect on the ongoing presidential electoral process since IDPs and internal migrants already have the right to temporarily change their voting address and vote at a polling station at current location under the legal framework governing the 2019 presidential election.
2019 Presidential Election update
As of January 29, the Central Election Commission had registered 23 candidates for participation in the March 31 presidential election. They candidates are: Ihor Shevchenko, Serhii Kaplin, Valentyn Nalyvaichenko, Vitalii Skotsyk, Andriy Sadovyi, Vitalii Kuprii, Yevheniy Muraiev, Anatolii Hrytsenko, Hennadiy Balashov, Olha Bohomolets, Oleksandr Shevchenko, Roman Nasirov, Yurii Boiko, Oleh Lyashko, Arkadii Kornatskyi, Oleksandr Vilkul, Yuliya Tymoshenko, Dmytro Dobrodomov, Oleksandr Moroz, Illya Kyva, Ruslan Koshulynskyi, Oleksandr Danyliuk and Serhii Taruta. On January 29, the incumbent President Petro Poroshenko declared his intention to run for a second term.
To date, the CEC has accredited 129 civil society organizations to observe the presidential election.
According to State Register of Voters Director Oleksandr Stelmakh, the overall number of voters included on the list for the 2019 presidential election will not differ significantly from that of the May 2014 early presidential ballot and will total just over 30 million voters.
As part of its electoral fact-checking project, the Hromadske news agency is analyzing election statements made by presidential candidates and their campaigns. It is a part of a joint independent media project that includes Hromadske, New Times of Ukrajinska Pravda, VoxCheck and Radio Svoboda.
The Vybory Vybory project, administered by Ukrajinska Pravda and Center UA, published an article analyzing whether the incumbent’s “tomos tour” could be considered campaigning by President Poroshenko. On January 5, the tomos, or book, recognizing and establishing the Orthodox Church of Ukraine and granting it autocephaly (or self-governance), was signed. Soon after, President Poroshenko, accompanied by high-level church figures, traveled to the regions of Ukraine to raise awareness of this development among citizens. During these visits, the President emphasized the significance of this ecclesiastical achievement and claimed credit for other elements of his presidency which he considers to be positive.
According to the article, these visits were complemented by outdoor advertising; and, local media reported instances of providing free school-owned transportation to bring citizens to these public events – a possible abuse of state resources. The article also mentions other registered and potential presidential candidates who were engaged in early campaigning including Hrytsenko, Kaplin, Kuprii, Sadovyi, Skotsyk, Muraiev, Tymoshenko, Shevchenko, Lyashko, Kyva and Koshulynskyi. This reporting was also echoed by Radio Svoboda which assessed controversial actions and statements by actual and potential presidential election candidates.
Electoral Reform in Ukraine
On January 28, Ukrainian leaders from culture, science and politics directed an open letter to President Poroshenko, requesting him to lead the passage of Draft Election Code Number 3112-1 which, among other things, eliminates majoritarian single mandate districts in parliamentary elections. IFES recall, that the Election Code passed the first reading on November 7, 2017.
“Delaying the preparation and consideration of the Draft Election Code in the second reading . . . is the sign of unwillingness of MPs to change the rules for themselves”, reads the letter. “And, we are asking you to lead in this complicated process and convince MPs to adhere to (the) 2014 Coalition Agreement so that in Fall 2019 the majoritarian system disappears and [parliamentary] elections are held under (a) regional open list proportional representation system.”
Throughout 2018, the Rada Committee on Legal Policy’s Working Group considered almost all of the 4,296 amendments proposed to the Draft Election Code. Beginning in January of 2019, Working Group meetings have addressed issues of the Code that have not been agreed upon, including voting by internally displaced persons and people with disabilities.
All amendments agreed to by the Working Group must be considered by the Election and Referendum Subcommittee of the Committee on Legal Policy and the Judiciary before they can pass to the full Committee. If the Committee preliminarily approves the Draft Election Code with the proposed amendments, the legislation will then be submitted to the Rada for consideration and a vote. A simple majority vote – 226 votes – is necessary for approval.
President Poroshenko’s signature is necessary for the Draft Code to become law. But, because national elections are on the immediate horizon, it is unlikely it will be put to a vote before the presidential election. It also remains unclear if the Committee on Legal Policy and the entire Rada will consider the Draft Code in time before the parliamentary elections given the Working Group frequently lacking quorum when considering amendments.
The Council of Europe’s Venice Commission Code of Good Practice in Electoral Matters states that no significant changes to election laws – neither to the overall electoral system nor election boundary delimitation – should be introduced later than one year prior to an election. Late adoption of the Draft Election Code (for example, just months before the October Rada elections) may leave insufficient time for election administration to properly implement the many new procedures foreseen by the Code, including on voting, vote counting and tabulation; election districting and election campaigning, and may confuse voters. For instance, if the open list electoral system comes in force for parliamentary elections, there may not be enough time for the CEC to adopt the necessary sublegal acts introducing changes to its resolutions in time before the start of the October elections.
CEC Chair Shares Remarks on Challenges Facing the CEC Prior to 2019 Presidential Election
On January 23, Central Election Commission (CEC) Chair, Tetiana Slipachuk was interviewed by online RBC Ukraine on challenges facing the CEC prior to the 2019 presidential election. Key points made by the Chair are summarized below:
- Martial law had a negative impact on CEC operations;
- The CEC is committed to ensure cybersecurity in the upcoming elections and significant financial support is being invested in upgrading the Commission’s hardware and software. IFES and USAID have been instrumental in their support;
- The CEC closely cooperates with the National Agency for the Prevention of Corruption and other state bodies to ensure effective campaign finance oversight;
- The CEC cooperates with law enforcement and military forces to ensure election security. There is a need to ensure the training of police, especially those who will be serving around polling stations;
- The CEC has received written opinions from the Donetsk and Luhansk Civil Military State Administrations on the impossibility of conducting elections in Ukrainian Government-controlled areas in both oblasts due to security risks. The Commission is expected to soon adopt a resolution indicating where voting can take place on 31 March in both partly occupied oblasts;
- The CEC encourages internally displaced persons (IDPs) to register to vote in the presidential election and change their temporary voting addresses, if necessary. The Commission supports full enfranchisement of IDPs, especially those who are integrated in their new communities, but the decision is the lawmaker’s not the CEC.
- The CEC should properly inform voters affected by the Commission’s decision to close out-of-country polling stations in Russia, consistent with a request from the Ministry of Foreign Affairs;
- If a new Draft Election Code is adopted in late spring or early summer, it would be impossible for the CEC to implement the new Code for the October Verkhovna Rada elections. Incremental changes to the current legal framework governing parliamentary elections is a better solution; and,
- While the Chair supports introduction of an open-list proportional representation system for parliamentary elections, she believes stable political parties should be in place before a decision on transitioning to a new voting system is made.
The Group of Influence Explains Electoral Rights of Mobile Citizen Groups
On January 24, IFES partner and subgrantee, the Group of Influence, said electoral participation of citizens who did not have the opportunity to vote in the three latest elections in Ukraine, is expected to increase during this year’s presidential election. At a press conference addressing electoral rights of mobile groups of citizens, Group of Influence Executive Director Tetiana Durnieva noted that, according to the CEC, in the first two weeks of the election campaign, 130 citizens from the temporarily occupied territories of Donetsk and Luhansk regions and 37 citizens of Crimea temporarily changed their voting place without changing their electoral address.
News conference participants also emphasized the importance of improving voter education to inform citizens of the opportunity to temporarily change their voting places for the March 31 presidential election.
MP Registers Draft Law Suggesting Changes to Ukrainian Election Laws
On January 21, unaffiliated Member of Parliament Serhii Taruta introduced Draft Law Number 9492, which calls for changes to the Presidential Election Law, the Parliamentary Elections Law and the Local Elections Law. Among other provisions, the legislation provides for repeat elections in the case most citizens vote against all candidates. Key changes proposed by the Draft Law, are summarized below:
- Enables voters to show they do not support any of the candidates on the ballot by adding the option line item, “Do not support any of the candidates”, to the paper ballot for presidential, parliamentary, and local elections.
- In case the parliamentary election result in a single-mandate district reveals that more than a half of voters who cast their ballots did “not support any candidate”, the election is nullified. In such as case, according to the bill, the candidates on the first ballot would not be allowed to run in the repeat election. The same rules would apply to local government elections.
Changes proposed by this legislative initiative would lead to a significant increase of state expense for administering repeat elections and they are generally not in line with recommendations of the Organization for Security and Cooperation in Europe’s Office of Democratic Institutions and Humans Rights and the Venice Commission. Both institutions have recommended excluding the “against all” option from ballot papers, as was foreseen in electoral laws dating back to the early 2000s. These changes, if adopted, would encourage voters not to take personal responsibility for their political choice.
NAPC Adopts Decision on Distributing Taxpayer Money to Political Parties in 2019
On January 24, the National Agency for the Prevention of Corruption (NAPC) adopted a decision to distribute public money to political parties this year.
Public funding for the coming year will be allocated to six political parties: Oleh Liashko’s Radical Party, Batkivshchyna, the Opposition Bloc, the Petro Poroshenko Bloc, Samopomich and the People’s Front.
Annual public funding for political parties is UAH 565,680,500.
Oleh Liashko’s Radical Party will receive UAH 48,925,700 (slightly more than $1.7 million); Batkivshchyna will be allocated UAH 37,317,900 (just under $1.4 million); the Opposition Bloc is scheduled for UAH 61,959,000 (slightly more than $2.2 million); the Petro Poroshenko Bloc will receive UAH 143,366,100 (slightly less than $5.2 million); Samopomich is eligible for UAH 72,090,350 (just under $2.6 million); and the Peoples’ Front will receive UAH 145,453,400 (slightly more than $5.2 million). The political parties will receive their annual state support in quarterly payments.
Stemming from 2015 Political Finance Reform Law, since 2016 funding is provided to parties that passed the 5 percent national electoral threshold in the 2014 parliamentary elections. Following the next general or early parliamentary election public funds will be also provided to the parties that receive at least 2 percent of the valid votes cast in the nationwide election district under the proportional representation system. The total amount of public funds annually available to eligible parties is determined by multiplying voter turnout in the last parliamentary election by 2 percent of the minimum monthly salary. These funds are distributed among the parties in proportion to the number of votes received by party lists in the last parliamentary elections.
The NAPC’s decision allocates an additional UAH 56,568,050 (approximately USD 2 million) to Samopomich this year for satisfying the two-thirds gender requirement on its party list during the 2014 parliamentary elections. According to the 2015 Political Finance Reform Law, 10 percent of the total annual amount of public party funding must be equally distributed between political parties that elected at least one-third of women from the total number of MP candidates nominated on the proportional lists by the parties.
Attack on OPORA Civic Ombudsman in Kropyvnytskyi
On January 26, OPORA civic ombudsman Yevhen Hurnytskyi was attacked and injured by an unknown person. He believes the incident is related to his professional activities of identifying cases of electoral fraud in the Kirovograd oblast.
Hurnytskyi filed a complaint with local police and also sought medical assistance. Before the attack, he filed a complaint with local police against those placing presidential election campaign materials on behalf of candidates who did not have legally-required data.
OPORA has deployed civic ombudsmen in all regions of Ukraine in advance of the presidential elections to track election-related offenses, investigate criminal administrative cases and follow-up on prosecutions.
Since 2017, over 55 activists and politicians have been attacked in Ukraine. The assaults target civil activists and community leaders who campaign against corruption and protect LGBTQI rights and the environment.
A vocal anti-corruption activist, Oleh Mikhaylyk, was shot on September 22, 2018, and hospitalized in critical condition. Prior to the attack, Mikhaylyk publicly demanded the dismissal of the Odessa region’s police chief and chief prosecutor for corruption. He also openly expressed his desire to run for mayor of Odessa. The day before the attack, he campaigned with his party Syla Lyudei (Power of the People) against illegal construction in Odessa.
Local council member and anti-corruption activist, Kateryna Handzyuk, died on November 5, 2018, three months after she suffered burns over 40 percent of her body and severe eye damage as a result of an assault on July 31, 2018. Handzyuk was active in local governance, including monitoring police activities in the southern city of Kherson.
Most attacks were not properly investigated and prosecuted, and many attackers enjoy impunity today. Conduct of the investigations raises concerns that those responsible for the attacks may not be brought to justice.
IFES believes Ukrainian authorities should take effective steps to prevent further threats and attacks against activists, human rights defenders and election observers; ensure prompt, thorough, impartial, and independent investigations into such threats and attacks; and, bring those responsible to justice in fair trials.