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.
