Attempts to reintroduce undemocratic practices, such as the much-abused home voting privileges of 2004, are threatening to derail Ukraine's fledgling democracy less than three years since the population took to the streets to overturn a rigged presidential election.

In mid-August, several international election monitoring organizations began working in Ukraine in advance of the extraordinary September 30 parliamentary elections. Their timing couldn't have been better. Even as campaign monitors began to deploy in all regions of the country, the Central Election Commission (CEC) issued a series of rulings that both confounded and concerned election specialists. Domestically, the rulings also galvanised the country's opposition against what it labeled "political repression" and "subversion of the democratic process."

The decision that provoked the biggest question was the initial refusal of the CEC to register the candidates of the opposition Bloc of Yulia Tymoshenko (BYUT). If upheld, the ruling could have led to the exclusion of the country's largest opposition bloc from the election.

This decision reportedly led to a number of concerned telephone calls from Western diplomats to Ukraine's leaders. European People's Party President Wilfried Martens publicly suggested that the CEC ruling violated "not only the legal system but also the free will of the Ukrainian people." Adrian Severin, the chairman of the EU-Ukraine Interparliamentary Cooperation Committee, warned that election observers "will monitor very carefully whether all political forces are assured equal and fair conditions of participation in the Ukrainian elections."

Three days after the initial decision, Kyiv's Administrative Court satisfied BYUT's claims against the CEC, calling the decision "illegal." The next day, BYUT was registered.

There was little doubt that the court would find in favour of the opposition bloc, given the shaky grounds on which the registration was initially refused. CEC members suggested that BYUT had not met electoral requirements when it included the postal addresses of its candidates on the wrong form. The addresses were submitted on the candidates' biographies, while only their region of residence was placed on their official requests to register.

Bloc leader Yulia Tymoshenko countered that the registration forms were submitted in the same manner as in 2006, when the bloc was easily registered for that year's parliamentary elections. She immediately charged that the decision was purely political and pointed out that no electoral regulation or law exists to govern the way in which addresses are submitted. Indeed, an examination of the CEC's own regulations and forms shows that a concrete postal address is specifically requested on the biographies, but not on the registration forms.

While the swift and unwavering judgment of the court in this matter is encouraging, the CEC's original decision was viewed immediately by many Western officials as a potentially dangerous signal for the fairness of the upcoming election.
 

The home voting question

The concern of election observers was compounded when, on the same day that BYUT was registered, the CEC voted to allow a home voting procedure similar to that used during the discredited first two rounds of the 2004 presidential elections. That procedure, which was said by the Organization for Security and Cooperation in Europe (OSCE) to have been a "major source of electoral fraud" in 2004, allows ballots to be cast in homes with little control and under the watch of potentially biased election workers.

The "home" ballot in Ukraine is intended to be used by disabled voters who are unable to travel to the polling place. In 2004, hundreds of thousands of ballots were found to have been cast at home, with the figure reaching as high as 30% of votes cast in some oblasts. These figures dwarf the percentage of the population with disabilities impeding their ability to travel, according to observers. In fact, in 2004, as home ballot boxes were removed from the polling precincts and kept generally out of view of monitors, it was impossible to know where the ballots inside these ballot boxes came from and who marked them.

In order to deal with this concern, in 2005 Ukraine began requiring medical certificates in order to receive approval for home voting. The CEC's new ruling would eliminate this safeguard. On 22 August, Kyiv's Administrative Court supported an appeal filed by the country's second opposition bloc, Our-Ukraine-People's Self-Defense (OU-PSD), against the CEC decision. BYUT also joined the lawsuit. The court ordered the CEC to require medical certificates, but the CEC promptly appealed the decision. All sides are awaiting the decision of the appeals court. If home voting is conducted as it was in 2004, this could "open the door to significant falsification of votes," according to a newly released pre-election assessment from the US-based National Democratic Institute for International Affairs (NDI).

No to a referendum?

The CEC also halted a plan by BYUT to try to collect enough signatures to hold a referendum on proposed constitutional changes simultaneously with the parliamentary elections. As per procedures for triggering a popular referendum, BYUT filed petitions from several hundred "citizen initiative groups" endorsing the referendum questions and asking to be allowed to begin collecting the required three million signatures in support. The CEC refused their requests, suggesting that the proposed questions could not be the subject of popular votes, according to the Constitution.

In fact, Ukraine's Constitution prohibits referenda questions on territorial change, amnesty of individuals, taxes and the budget. The questions proposed by BYUT -- asking primarily whether judges should be elected or appointed, if parliamentary immunity should be eliminated, if the parliamentary opposition should receive official status, and if the voters prefer a presidential or parliamentary republic -- clearly do not fit within these prohibitions. Therefore, while it is doubtful that a referendum could be organised in time for 30 September, it is unclear why the CEC prohibited the simple attempt to collect signatures.

BYUT has filed yet another court appeal, requesting that the Administrative Court order the CEC to allow signature collection. The number of court appeals filed within such a short time led NDI, in its assessment, to note concern "about future problems in election administration if the CEC and other commissions cannot work collegially." The Institute's delegation, which included former Congressman and House Democratic Caucus Chair Martin Frost and former United Nations Assistant Secretary General Cedric Thornberry, noted that "partisanship might lead to unnecessary obstacles to certifying election results. This would severely undermine Ukrainians" confidence in those results.?

Down with the billboards
 

On the evening of August 18, Yulia Tymoshenko announced that her bloc's billboards had been removed in several areas of Kyiv. She suggested that the advertising company controlling the billboards had come under pressure from Kyiv's mayor, who is allied with Prime Minister Viktor Yanukovych. Tymoshenko has vowed to work to impeach Mayor Leonid Chernovetsky, and has led numerous blockades of Kyiv City Council meetings. The owner of the advertising agency denied Tymoshenko's charge, and there is no clear evidence of Chernovetsky's involvement. But the agency provided no reason why recently installed advertising suddenly would have been removed in the middle of the night over the objection of the advertiser.

The battle for the east
 

Tymoshenko's allies suggest that pressure against her bloc may have increased because of her attempt to increase support for BYUT in several eastern regions that have traditionally favoured Yanukovych. These areas include the regions of Dnipropetrovsk, where Tymoshenko was raised; Kirovohrad, where Tymoshenko's numbers have shown increases over the last two elections; Luhansk, which is the home base of a number of highly-placed candidates on the BYUT list; and Kharkiv and Zaporizhya, which boast some of the country's most active student groups.

Tymoshenko also recently signed an agreement to form a coalition government with the Our Ukraine-People's Self-Defense Bloc, should they together achieve a majority in the elections. This agreement could put an end to divisions among former Orange Revolution leaders -- divisions which led to the loss of the majority in 2006. President Viktor Yushchenko is the honorary leader of OU-PSD and has taken an active role in supporting the party's rejuvenation after its third place finish one year ago. Yushchenko has been embroiled in a fierce power struggle with Yanukovych since the latter was able to patch together a parliamentary majority, which then nominated him to the prime minister's chair. Ukraine's parliamentary-presidential government provides significant and sometimes overlapping powers to both the Prime Minister and the President.

Polls indicate that support for the Tymoshenko-Yushchenko tandem currently equals that for a Yanukovych-Communist Party coalition. Should the pro-presidential coalition win, Tymoshenko could well replace Yanukovych as prime minister.

Tymoshenko's removal from the election, then, would not be unwelcome to Yanukovych or his allies. OU-PSD so far seems to have escaped the recent pressure apparently being exerted on BYUT. This is likely because of the bloc's concentration on western areas less contested by the governing coalition, and because of its generally more moderate tone.

However, during the spring, OU-PSD leader Yuriy Lutsenko saw his home and office searched by state security services for reasons that were never adequately explained. The searches came on the heels of an announcement by Lutsenko that he would organize a major demonstration against the government.

BYUT and OU-PSD both have reported worrying break-ins at several of their regional headquarters in recent months. BYUT, in particular, has seen two break-ins in the last several weeks. The office of Kyiv City Council and BYUT election staff member Oleksandr Bryhinets was broken into and a computer stolen and burglars stole documents and digital storage devices from BYUT's local headquarters in Malyniv, Zhitomir.

Both BYUT and OU-PSD also saw their Kharkiv region offices ransacked over the summer. These incidents appear unconnected and neither systemic nor systematic. However, such problems have not been reported by political parties in Ukraine since President Leonid Kuchma left office in January of 2005.

Still cause for optimism

Nevertheless, while the recent actions of certain officials may be worrying, all international observation missions note clearly that Ukraine overall has made impressive strides on its path toward consolidating its nascent democracy. The incidents noted above were all reported in Ukraine's mass media, to which all political blocs have access.

In spite of questionable CEC decisions, all blocs currently have a relatively equal opportunity to campaign. (This equality is tempered, of course, by the "incumbent advantage" provided to both Prime Minister Yanukovych and President Yushchenko.) Unlike during the parliamentary election of 2002 or the presidential campaign of 2004, opposition members are not being pursued by security officials, denied television air time, placed in jail, forced into car accidents, or restricted from traveling to campaign.

In fact, the level of real political competition and contestation meets or exceeds that found in most European countries. Journalists, too, are freer, even if press freedom is sometimes hindered by local officials and the relatively liberated Ukrainian press community continues to question the country's politicians.

The hurdles placed in front of BYUT in the last two weeks stand out because they do not fit within the norm that has developed in Ukraine over the last two years. This, in itself, is worrying. The CEC's overturned decisions underscore the fragility of Ukraine's democracy.

There are five weeks remaining before voters choose the people and parties that will form their next government. Have the problems and irregularities of the last three weeks been a small bump on the road, or is it a sign of real regression? International observers will be watching to see if the country is truly able to conduct an election that meets European standards for freedom and fairness.

Tammy Lynch is a Senior Research Fellow at Boston University's Institute for the Study of Conflict, Ideology & Policy and a regular international commentator on Ukrainian politics.

18.09.07. Ukraine: Parliament reconvenes, despite four dissolution decrees

September 4, 2007
By Jan Maksymiuk

The Verkhovna Rada gathered for a session today, in spite of having been formally disbanded by President Viktor Yushchenko.

Parliament speaker Oleksandr Moroz said he wants parliament to address the issue of stripping parliamentary deputies and senior government officials of their immunity from prosecution and other privileges before preterm elections on September 30.

Yushchenko called today's session illegitimate and politically meaningless, but Moroz assured those present in the session hall that their gathering is fully lawful and constitutional.

According to Moroz, the Ukrainian parliament is constitutionally obliged to open its fall session on the first Tuesday in September.

Moroz also cited another constitutional provision requiring that the legislature remains operational until newly elected lawmakers take their oath of office.

However, Moroz failed to mention the constitutional provision stipulating that the Verkhovna Rada is a full-fledged legislative body only when it has no fewer than 300 deputies.

A Legitimate Session?

It was Moroz himself who, with President Yushchenko and Prime Minister Viktor Yanukovych, struck a political deal in May to disband the Verkhovna Rada and set early elections, following the voluntary resignation of deputies from the pro-presidential Yulia Tymoshenko Bloc and Our Ukraine.

The subsequent resignation of pro-presidential lawmakers brought the number of deputies in the 450-seat legislature below 300, allowing Yushchenko to issue two decrees, on June 5 and August 1, scheduling early polls for September 30.

[ ... ]
 

Risk of Chaos

If the session was objectionable from a legal point of view, and without any practical meaning, was it actually worth holding for the ruling coalition?

According to Moroz, it was necessary to open the session within the constitutionally prescribed terms. "We cannot disregard the risk of preplanned chaos in governance, in which, following undesirable election results gained by some participants in the election campaign, the newly elected Verkhovna Rada would not be able to become legitimate," Moroz said.

In this somewhat cryptic manner, Moroz appears to have expressed the fear shared by many observers of the Ukrainian political scene that the September 30 election results could be contested in court by any party dissatisfied with its election performance. They warn that it will be easy to cast doubt on the election results due to procedural mistakes and legal irregularities in the electoral process.

Thus, if the elections fail to receive official recognition, Moroz may hope for the continued existence of the current legislature, in which his Socialist Party has more than 30 lawmakers.

Current opinion surveys in Ukraine suggest that the September 30 polls may consign the Socialist Party to political oblivion. ...

18.09.07. Ukraine is to hold elections -- but will they change anything?

Taras Kuzio
28 Aug 2007
 

Ukraine will (again!) hold elections next month. Many of the people I talk to seem to believe that they will not decide much. One wonders what BBC Ukrainian service readers think?

Reaction in Washington to the April decree disbanding parliament was, to say the least, mixed. One group, maybe more pro-orange, said "Finally Yushchenko has shown some determination!".

Another group, maybe one more closely supportive of the grand coalition, saw his decree as unnecessary because the anti-crisis coalition would have never obtained a 300 constitutional majority. And it was a threat to the rule of law and constitution.

This question we can leave for future historians. The more important question today is what will the elections change?

If I were to meet President Yushchenko in person I would ask him only one question: "Did you go on holiday in the first two years of your presidency and then return to find not everything to your satisfaction?" The first two years of the orange president were largely wasted, especially the first year under the old constitution when the president had extensive powers.

The make up of the newly elected parliament will not change that decisively except that there will be four, not five, parties. A priest will have to be called to do a pana khyda over the Socialist Party.

Which brings me to probably the main outcome of this year's elections. They will also decide who will be Ukraine's next president. Will Yushchenko follow Leonid Kravchuk in only serving one term or Leonid Kuchma in serving two?

Indeed, the more moral question is does Yushchenko, after wasting his first two years, deserve to be re-elected for a second term? How do we not know that if he is re-elected he will not again go on an extended holiday break in 2010-2012, as he did in 2005-2006?

Ukraine needs a rishuche president. Of this I have no doubt. In reaching this conclusion I am influenced by my personal preferences (I fully admit that I admire Margaret Thatcher and Nicolas Sarkozy), I know Ukraine's problems and what is required for Ukraine to integrate into Europe. Plus, it is pretty obvious to me which Ukrainian political leader is both rishuche and attractive.

Sarkozy visited the U.S. recently and flew home for an important meeting but then returned to the U.S. to continue his meetings there. That is what I call rishuchist!

That is why I remain suspicious of Yushchenko's motives. Is he only now rishuche because he wants to maintain his hold on to power?

The mandate of an orange president did not just come from the ballot box but also from the one fifth of Ukraine's population who participated in the orange revolution. They gave Yushchenko a mandate for CHANGE. It is the lack of change that has disillusioned many Ukrainians, particularly young people.

Many of the president's proposals look surprisingly similar to Kuchma's in the April 2001 referendum: a bicameral parliament, lifting immunity from deputies and reducing the number of deputies. Party of Regions will never go for a bicameral Rada as this would mean each oblast, regardless of population size, would send the same number of Senators. Ternopil would have equality with Donetsk.

In principle I have no problem in removing parliamentary immunity. But, how will this help overcome Ukraine's general entrenched immunity for all Ukrainian elites (inside and outside parliament) from criminal prosecution?

Senior Ukrainian officials have never gone to jail in Ukraine regardless of whether they had immunity inside the Rada or did not because they were outside parliament. Only 3 senior Ukrainians currently sit in jail -- two in Germany and one in the US. All 3 were foolish to not stay in Ukraine where they could have continued to sit in parliament or run businesses without any legal problems.

After this years elections the same poorly reformed constitution remains in place. Yushchenko and Our Ukraine-Samoborona agree with the three parties in the anti-crisis coalition to not hold a referendum on the constitution on the same day as the elections.

In November 2005 the Constitutional Court ruled that a referendum should be held on the constitutional changes but this was always ignored. Only BYuT upholds the constitutional court's ruling in supporting a constitutional referendum.

Lets remember that the president has been unable to work with two of his three prime ministers. Will he now be able to work with either Yanukovych or Tymoshenko?

A final problem is the often repeated claim that Yushchenko's mandate was weak as his opponent received only 8% fewer votes. This is not a serious argument. Polls in the last years of Kuchma's rule showed that two thirds to three quarters of Ukrainians wanted change. In other words, a portion of Yanukovych voters (maybe what we call floating or soft voters) also desired change.

In reality Yushchenko's mandate was far higher than that for Sarkozy in France who won only 6% more votes than his Socialist rival (53 to 47%). In the U.S. Bush was elected with even more low majorities of only 3% in 2004 (51 to 48%) and with only a 1% victory in 2000 over his Democratic Party challengers (see the funny video here).

Yushchenko therefore had a large mandate for change that he has not implemented. I doubt whether he would do so if re-elected in two years time.

This is also true of Our Ukraine ministers who went into government and now head Our Ukraine-Samoborona. Despite lots of election rhetoric today I do not remember Yuriy Lutsenko adopting radical changes inside the Interior Ministry.

Two policies that he should have adopted immediately should have been to replace the ridiculous name "Militsya" with "Police" and return the Internal Troops to becoming a National Guard, as most of their units were in the 1990s. Countries do not get invited into Europe if they have Militsyas or troops designed to put down their own populations.

I remain doubtful if this year's elections will change Ukraine. The only manner in which the change promised by the orange revolution could be implemented is if an attractive lady is returned as prime minister and Yushchenko supports her policies designed to implement change (rather than obstruct them as he tried to do while he was on holiday in 2005).

If she does not become prime minister again this year then she deserves to replace Yushchenko as president. Yulia gave him his chance when she did not run in 2004 but, as the Americans say, he blew it.

Yulia could become Ukraine's Thatcher or Sarkozy -- Yushchenko will always be a Chirac. Maybe a woman can do what a man could never.

18.09.07. Deal casts doubt over Ukraine

Roman Olearchyk in Kyiv
September 3 2007
 

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