Supporting democratic progress in Ukraine.

IFES Ukraine

The International Foundation for Electoral Systems

IFES Ukraine Election Bulletin #93 (September 9 – 20, 2019)

Rada Supports President’s Petition to Dismiss CEC. On September 13, the Verkhovna Rada voted to dismiss all members of the Central Election Commission (CEC) based on a petition from the President. The parliamentary resolution was supported by 341 MPs – primarily from the Servant of the People, Opposition Platform – For Life and Batkivshchyna parliamentary factions as well as MPs not aligned with a political party. The Holos and European Solidarity factions voted against replacing the CEC.

The petition firing the CEC claimed the Commission “multiple times displayed insufficient prudence or even political bias in its decision-making” during the recent Rada elections. The petition cited court decisions declaring its decisions, actions and inactivity illegal. The petition alleges that the CEC allowed double standards and non-uniform practice when establishing results in single member constituencies (SMCs) – pointing to its “extremely surprising and unprecedented decision” to announce the result of SMC Number 198 “before the conclusion of ongoing court proceedings.”

Civil Network OPORA and the Committee of Voters of Ukraine (CVU) both issued statements in support of the CEC. In a detailed analysis of all the cases referenced in the President’s petition, Civil Network OPORA identified flaws in the legal framework and the courts’ performance rather than CEC bias as the root cause of electoral problems.

“A general review of the claims against the CEC action… did not lead to the violation of the electoral rights of citizens, but flaws in the application of the legal framework… must be corrected by the parliament in the near future,” according to the Civil Network OPORA statement. The CVU statement said that “there are no objective reasons for dismissing the CEC.” CVU noted shortcomings in election court practice and urged the CEC, the Rada, the courts and other government institutions to jointly work on reforming election legislation.

On September 11, prior to the Rada vote, the CEC presented its official position regarding motivations behind the President’s petition. The CEC said it terminated the recount in SMC Number 198 and noted there are issues left over from the Rada elections in July for the new CEC to address after it is appointed.

Presenting the resolution to the Rada before the September 13 vote, First Deputy Leader of the Servant of the People faction, Oleksandr Korniienko, said the CEC repeatedly “violated procedural rules and did not consider court decisions in its decision-making process” during the July parliamentary elections.

Nestor Shufrych of the Opposition Platform – For Life reminded the Rada that his faction has been calling for a complete reboot of the CEC since August 6 and emphasized several questionable CEC decisions affecting SMC races in Donetsk Oblast. He also called for proportional representation of parliamentary factions in the new CEC.

Aliona Shkrum of the Batkivschyna faction cited lack of trust in the CEC as a reason for firing the current Commission. She called for institutional reform of the CEC and suggested the Law on the Central Election Commission should be reviewed, considering the latest legislative developments addressing public service.

Co-leader of the European Solidarity faction Artur Herasymov told his parliamentary colleagues that both recent nationwide elections were considered free and fair by international observers and that numerous stakeholders, including Civil Network OPORA, as well as the diplomatic community and international organizations were against the decision to replace the CEC. Holos faction leader Serhii Rakhmanin called the President’s petition politically motivated.

Dismissal of the CEC is the beginning of the process of forming a new CEC. According to Article 6 of the Law on the Central Election Commission, the Verkhovna Rada appoints CEC members based on the President’s proposals which take into account the views of parliamentary factions. However, the law does not address how consultation between the President and the Rada should begin.

Another issue is the number of commissioners on the CEC.  The election code recently vetoed by the President envisages 15 commissioners compared to the 16 that served on the outgoing CEC with one vacancy. Under the current legislation, the Verkhovna Rada must appoint 17 members.

In January 2018, the Parliamentary Assembly of the Council of Europe emphasized the need for a balanced CEC in Ukraine with proportional representation from all parliamentary factions. This echoes the Venice Commission’s Code of Good Practice in Electoral Matters which states: “Political parties must be equally represented on electoral commissions or must be able to observe the work of the impartial body. Equality may be construed strictly on a proportional basis”.

On September 12, First Deputy Leader of Servant of the People’s faction Korniienko said that his faction supports quotas in forming the new CEC. If the CEC continues to have 17 members, the Servant of the People will likely claim 10 members, enough to give them effective control over the Commission. The Opposition Platform – For Life would gain two seats, while the Batkivschyna, European Solidarity and Holos factions and the political group For the Future will gain at least one seat each. This could leave one seat free for a representative of unaffiliated MPs.

Reducing the CEC to 15 members would entitle the Servant of the People to nine members while all other parliamentary factions would have one representative each. The remaining seat would likely be offered to a candidate representing the For the Future group or unaffiliated MPs. The Servant of the People will still be able to pass decisions on a 15-member CEC on its own.

Thus, regardless of the Commission’s size, the Servant of the People will likely be able to control the CEC, including the chair.

Possible Early Local Elections. Traditionally, forming a new CEC has been a protracted process. The agenda of the new CEC will include newly amalgamated community elections which must be called by October 12 to be conducted on December 22.

There are persistent rumors that early council and mayoral elections may be scheduled in some communities, such as the city of Kyiv, on December 8. If this early December date is chosen, the CEC would have to confirm it by October 8, 60 days prior to the planned election day.

If early local elections are held on December 8, they will most likely be administered under existing law and the so-called St. Petersburg electoral system. This system has been extensively criticized by international and domestic observer organizations. It shares features and consequences of the first-past-the-post system.

The 2015 local election results proved that election outcomes under this system are unpredictable for voters, political parties and candidates. In many cases, candidates who received the most votes in their constituency were not allocated a seat while candidates with only a few votes were elected. On some rayon and oblast councils, certain constituencies ended up without representation and others were represented by two or more elected councilors.

The Verkhovna Rada should consider and adopt a new legal framework for local elections – either in the form of a Local Election Law or by ensuring the new election code is promulgated and takes effect in advance of early local elections.

President Zelenskyy Vetoes Election Code. On September 14, President Zelenskyy vetoed the proposed election code which was approved by the previous convocation of the Verkhovna Rada on July 11. In his explanatory note, the President said elements of the proposed code contradict the Ukrainian Constitution and pointed to that the former Rada violated its own rules of procedure when approving the code. The legislation will now go back to the Parliamentary Committee for State Power, Local Self-Government and Regional and Urban Development to be reworked based on the President’s veto language. The Committee has 30 days to revise the code’s text.

After the code was signed by former Speaker Andriy Parubii on August 27, the President had 15 days to review and either sign it or veto it.  He chose to veto the legislation.

The election code was drafted over several years and would harmonize Ukrainian election procedures at all levels – presidential, parliamentary and local – as recommended by the Organization for Security and Cooperation in Europe (OSCE) Office for Democratic Institutions and Human Rights (ODIHR) and the Council of Europe’s Venice Commission. On July 11, less than two weeks before parliamentary election day, it was repeatedly put to a vote in the outgoing Rada and finally passed on the 17th vote following amendments to the code that substantially changed the nature of the parliamentary electoral system, as previously reported by IFES.

The explanatory note attached to the President’s veto is detailed and outlines amendments the President would like to see introduced in the election code. Commenting on the proposed electoral system, he explains that the regional open-list proportional system with 10 reserved seats for all party lists surpassing a five percent threshold in a nationwide constituency for parliamentary elections is akin to a closed-list proportional system and does not provide voters the full right to choose who will represent them in the Rada. He also criticizes the existing code for not sufficiently protecting the electoral rights of internally displaced persons and persons with disabilities.

IFES welcomes the President’s opinion on the current election code and his intention to improve it. His suggestions for amendments contain important provisions that IFES and its civil society partners have long recommended as part of electoral legal reform in Ukraine. These include a rule requiring political parties that replace candidates and MPs to appoint a candidate or MP of the same gender to guarantee gender balance; enfranchisement of internally displaced persons in all elections, including local elections; accessibility to elections for people with disabilities; and, simplifying CEC public procurement rules.

Olha Ayvazovska of Civil Network OPORA publicly welcomed the President’s veto. She agrees with the President that the election code needs significant improvement for protection of citizens’ electoral rights and election procedures consistent with a 21st Century democracy.

The Parliamentary Committee for State Power, Local Self-Government and Regional and Urban Development will now establish a working group to develop proposals contained in the explanatory note of the President’s veto. IFES hopes the process of introducing amendments to the election code will be transparent and inclusive and is ready to take a leading role in ensuring the new election code is well designed, consistent with democratic standards and best practices and considers the recommendations of international and domestic election observer organizations.

Among the potentially controversial issues not addressed in the President’s explanatory note is his position on conditioning parliamentary seats in 27 local constituencies on voter turnout.  The international practice used by most European countries is to base the number of seats on the size of the population or the number of registered voters in the constituency. It is also not clear if the President wants to change the date when the new election code will come into legal force. Currently, the proposed code is not set to become law until December 1, 2023.

If Ukraine is to avoid another local election in October 2020 with council members elected under the unpredictable St. Petersburg electoral system, the Rada must act swiftly. The Venice Commission recommends that substantial changes to election law should not take place during the year before an election is scheduled.

Political Sentiments of Internally Displaced Persons. On September 11, IFES and the Civil Holding Group of Influence presented results of a national survey on political attitudes of internally displaced persons (IDPs).

According to survey research fielded in February and March of this year by Ipsos Ukraine and reinforced by IFES Senior Project Officer Nadiya Pashkova, IDPs are increasingly binding their future with the new communities where they have settled. The number of IDPs who are certain or likely to remain in their new communities increased by 10 percent compared to 2018 and is now 43 percent of the surveyed. Sixty-five percent of IDPs say they feel fully or rather integrated into their current community – 16 percent fully integrated, 49 percent rather integrated, according to the polling. Almost one in ten IDPs strongly or rather agree with the statement that they are active members in their communities – nine percent strongly agree, and 33 percent rather agree.

A majority of IDPs voice skepticism that they can influence decisions made by the government – in general or through voting. When asked to agree or disagree on whether voting gives people like them influence over decision-making, 24 percent strongly disagree, and 30 percent somewhat disagree with this statement while 34 percent strongly or somewhat agree. Forty-one percent of respondents strongly agree, and 35 percent rather agree that politicians “do not understand people like them”.

With many IDPs perceiving that they cannot exercise influence through voting, it is not surprising that many IDPs said they would unlikely vote in local elections. Only 15 percent said they are very likely to participate in the elections while 27 percent said they are somewhat likely. Fourteen percent said they are somewhat unlikely to participate in local elections, 12 percent are very unlikely and 10 percent said they will not vote.

A total of 2,063 interviews were conducted in respondents’ homes. For the purposes of the survey, IDPs are defined as residents of Donetsk, Luhansk, and Crimea who have been forced to move to other parts of Ukraine because of war or occupation in these oblasts. The sample for this survey is IDPs living in households. The margin of error is ± 2.16% within a 95 percent confidence interval.

Tatiana Durneva, Executive Director of Civil Holding Group of Influence, said IDPs’ participation in local elections is still unresolved because electoral legislation deprives them of the right to vote in these electoral contests.

“Despite the large-scale advocacy campaign conducted by the Civil Holding Group of Influence to ensure IDPs electoral rights, the Draft Law Number 6240 was not considered by the Verkhovna Rada of the VIII convocation”, said Durneva. “The text of the Electoral Code, adopted on July 11, 2019, signed by the Chairman of the Verkhovna Rada (…) also lacks provisions on the electoral rights of IDPs. Accordingly, it would be optimal to return the code to the Parliament with proposals to ensure the electoral rights of IDPs and labor migrants”.

Oleksandr Klyuzhev, a Сivil Network OPORA analyst, said prospects for passing a new electoral code in the previous Verkhovna Rada were challenging, but noted: “Now the situation is different, as there are no counter-arguments from neither parliament nor the President. However, we still do not see their position on solving IDP’s issues and developing relations with the temporarily occupied territories”, Klyuzhev said. “Hopefully, this strategy will be presented soon. When the president will provide his position on the electoral code, it will become a certain benchmark also on his view of the IDP’s issues. It will happen soon”.