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IFES Ukraine

The International Foundation for Electoral Systems

Parliament supports President’s petition to dismiss the Central Election Commission

September 13, 2019. Today, the Parliament of Ukraine, the Verkhovna Rada, voted to dismiss all members of the Central Election Commission (CEC) based on a petition from the President. The resolution of parliament was supported by 341 MPs mainly from the parliamentary factions Servant of the People, Opposition Platform – For Life and Batkivshchyna, as well as some independents. The factions of Holos and European Solidarity voted against this decision.

Presenting the resolution before the vote, first deputy leader of the Servant of the People faction Oleksandr Korniienko motivated his faction’s support to the President’s petition, stating that the CEC during the recent early parliamentary elections repeatedly “violated procedural rules and did not consider court decisions in its decision-making process.” Nestor Shufrych from Opposition Platform – For Life reminded parliament that their faction had been calling for a complete reboot of the CEC since August 6 and emphasized several questionable CEC decisions affecting single-member constituency races in the Donetsk region as a reason. Simultaneously, he called for proportional representation of the parliamentary factions in the new CEC – even for those political forces that did not support the resolution. Aliona Shkrum of Batkivshchyna cited the lack of trust in the CEC as a reason for rebooting the institution. She called for reform of the CEC as an institution and suggested that the Law on the Central Election Commission should be reviewed, including to take into account the latest legislative developments in the field of public service.

Co-leader of the European Solidarity faction Artur Herasymov reminded his 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 this decision. The leader of the Holos faction Serhii Rakhmanin called the President’s petition solely politically motivated.

The dismissal of the CEC  means the beginning of the process of forming a new CEC. According to Article 6 of the Law on the Central Election Commission, parliament appoints the members of the Commission based on the President’s proposal. The proposal must take into account recommendations from factions and groups in parliament. However, the law does not state as to how the consultation process should commence. Another issue is the number of members in the new CEC, as the Election Code awaiting the President’s signature envisages 15 members, as compared to the current 17-member composition under the existing law. It seems likely that the law will be amended to bring the number of commissioners down to 15. Currently, the CEC has 16 members and one seat remains vacant.

In Resolution No 2203 from January 2018, the Parliamentary Assembly of the Council of Europe (PACE) emphasized the need for a balanced CEC with proportional representation of all parliamentary factions. This echoes the Venice Commission’s Code of Good Practice in Electoral Matters: “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 or on a proportional basis.”

Yesterday, Korniienko stated that the Servant of the People faction supports a quota principle in forming the new CEC. In practice, this could mean different results in several scenarios. If the CEC stays at 17 members, Servant of the People will likely be entitled to 10 members, which grants them effective control over the Commission. Opposition Platform will qualify for two seats on the CEC, while the Batkivshchyna, European Solidarity and Holos factions along with the political group For the Future will qualify for at least one seat each. This potentially leaves one seat free for a representative of independent MPs. Reducing the CEC to 15 members would entitle Servant of the People to nine members, which still constitutes the majority, while all other factions will get one representative. The remaining seat would likely be offered to a joint candidate from the group For the Future and independent MPs. Either way, the Servant of the People will likely be able to control the CEC, including the position as Chair of the Commission.

In the past, the formation of a new CEC has taken considerable time. The upcoming agenda of the new CEC will include the next round of first and supplementary elections in newly amalgamated communities. These elections have to be called by October 12 for these elections to be held in 2019 (the last day for the elections is December 22).

There are rumors that early elections for local councils and mayors may be called in some communities, including Kyiv city, with December 8 mentioned as a possible date. For this to happen, the CEC would have to call them by October 8 (60 days prior to the day of voting).

If early local elections are held on December 8, they will most likely be held under the existing law and the so-called St. Petersburg electoral system. This electoral system has been highly criticized by international and domestic observer organizations and national experts. The system shares a number of features and consequences of the first-past-the-post system, including the fact that party representation in local councils under this system depends not on the level of support for the respective party as expressed by the voters of the community in question but rather on the number of votes cast for individual candidates nominated by the party. The 2015 local election results proved that election outcomes under this system are unpredictable not only to voters, but also to parties and candidates. In many cases, candidates who received most votes in their constituency were not allocated any seat, while candidates with only a few votes were elected. In some rayon and oblast councils, certain constituencies ended up without representation, while others were represented by two or more elected councilors.

Therefore, parliament should consider and adopt a new version of the Local Election Law or a new omnibus Election Code with a different election system for local elections, and this should be promulgated in advance of the suggested early local elections. This law should not only depart from the “St. Petersburg” system, but also address procedural flaws in the current law.