Risks And Opportunities Of The New Ukrainian Electoral Legislation: The Devil Is In The Details

On 8 October 2020, VoxUkraine jointly with Promote Ukraine (Brussels) held an open discussion on amendments to the electoral legislation that were adopted 3 months before the October local elections.

depositphotos / nicktys

Authors:

Kseniia Alekankina, VoxUkraine

Oleksandra Savchenko and Ulyana Chaban, UCU

Anna Nalyvayko, Wilfried Martens Centre for European Studies (Brussels); Vita Dumanska, NGO Chesno; Ostap Hunkevych, Assistant Consultant to an MP of Ukraine (Golos party) and Serhii Horovenko, Assistant Consultant to an MP of Ukraine (Servant of the People party) presented their reflections on the law. Although decentralization reform requires new electoral legislation, there is a risk that adopted changes will shift the balance of power in favor of the parliamentary parties.

Hereby we present the highlights from the discussion.

Local elections in Ukraine are scheduled for 25th October 2020. They will be completely different from the previous ones because of the complex new electoral system and numerous organization issues. The new, more complicated, electoral system with open lists, disruptions caused by the ongoing conflict in Eastern Ukraine, and public health risks associated with COVID-19 pandemic make the upcoming elections a challenge for all stakeholders — candidates, members of electoral commissions, independent observers, and voters. 

Recently we published an article on the conduct of elections during the pandemic in different countries.

With regards to the ongoing conflict, the Central Electoral Commission of Ukraine decided not to hold elections in the separatist-controlled territories and in the communities on the line of contact in Donbas. This decision has also been reinforced by President Zelenskyy. During his visit to Brussels, he said that now there is no way to hold free and fair elections in the Eastern Ukraine, “local elections cannot be held in the embattled areas of eastern Ukraine — as demanded by Russian President Putin — until Ukraine regains full control of its external borders”.

In the previous years, regardless of the 6-year military conflict, Ukraine has managed two presidential elections where the will of people was reflected. In this regard Ukraine set a very high bar and displayed democracy in action, especially for neighboring countries which are still struggling with a Soviet past. Having media pluralism, independent media and equal access to them for candidates  is important for transparency of the elections.

The EU does not have any expectations about the results of elections besides the fact that they reflect the will of the people. However, the EU expects elections to be transparent, fair and free from corruption. While vote buying is not as widespread anymore as it used to be in the past, there are still some unfair or dirty practices, such as bribing voters or registering ‘clone’ candidates. It is very important to tackle these issues as soon as possible.

How will new rules affect the electoral process?

The new Electoral Code was developed and adopted by the previous parliament. Then president Zelenskyy vetoed it. The second time a very similar Code (with the inclusion of some of the President’s proposals) was adopted in December 2019. It was adopted in a hurry due to the need to complete decentralization reform and run local elections in 2020, so the Сode is not as good as it should be.

All amendments can be divided into two groups: technical that fixed loopholes of the Electoral Code, and political ones. The second group of amendments includes both positive and negative changes which are discussed below. 

Proportional system (+/-). One of the achievements of the Electoral Code is the introduction of a proportional system with open lists for electing local council members in cities/towns with more than 10,000 voters. This amendment equalizes big villages and small cities in their voting rights: all communities with more than 10 thousand voters have a proportional system, smaller communities have a majoritarian system. As a result, 45% of all communities will elect deputies under the new system.

At the same time, the amendments introduced an election quota of 25% and a complicated design of the ballot. This combination makes open lists similar to closed lists. 

Additionally, a norm that a candidate can run independently only in a city with less than ten thousand people does not comply with the Code of Good Practice in Electoral Matters of the Venice Commission of the Council of Europe. The Code establishes the equal right to run for elections for party-related and independent candidates. 

Inclusion (+/-). A positive step is introduction of regulations for broader inclusion of women (gender quotas for party lists), internally displaced persons (IDPs), and labor migrants (they can more easily change their voting address and thus are not excluded from voting). However, gender quota is mandatory only at the moment of nomination. There were cases when a party included people on the lists but they failed to submit documents to the Territorial electoral commissions. Commissions still registered such lists.

Party-building process (+/-). The Code now includes the concept of a minimum number of candidates whom a party should include into a regional list: at least 5 candidates for each district + the list leader. This should stimulate the party-building process. Most of the parties have their representatives only in big cities. With the new system, parties will have to build relationships with local communities if they want to be in city councils. At the moment this became a significant problem for parties in small communities since it is hard to find candidates. Hence, 

  1. people who would like to run for elections have to be nominated by parties – and thus either to strike a deal with an existing party or form their own party;
  2. the presidential party has a higher opportunity for presence in local councils and therefore in local governance.

Ukrainian party system was not ready for these radical innovations. And the court practice proves that this innovation can be bypassed because the regulation is mandatory at the moment of nominating candidates rather than at the time of their registration.

Financing (). There are no spending limits on local electoral campaigns from the party pockets. However, candidates who are not supported by parties have strict limits on their spending. This puts them at a disadvantage. In terms of regulating campaign expenses, the Code and the Law “On political parties” have radically opposite approaches. For example, the Code bans legal entities from funding campaigns and limits funding by private individuals. That is why the parties use provisions of the Law “On political parties” to collect funds into their accounts and then finance the electoral fund. Party candidates and independents are now in unequal conditions. Also, the National Agency for Corruption Prevention of Ukraine allowed them to submit financial reports after the quarantine. The quarantine is lasting since March 12 and its end is not in sight. Thus, parties do not violate the law but there is no way to check their finances. Taking into account that there is no financial reward for the work in local councils, there is a high probability that parties are financed by oligarchs.

Control (+/-). Greater role of parties is supported by their ability to recall a deputy. A deputy now can be recalled by its party if, for example, his/her activity does not correspond to the program of the party. This will threaten the independence of local deputies.

Rapid changes (). However, the highest risk is posed by attempts to change the rules of the game during the campaign itself. According to international norms, the electoral legislation should not be changed less than a year before the elections. The reason is that such decisions put old parties and the newly formed ones in unequal conditions, as they have a different amount of time for preparation for the elections. According to the latest statistics, party candidates were mostly nominated on behalf of the parliamentary parties, including the ruling one.

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