Can Ukraine’s presidential election be stolen again?

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Nov. 26, 2009, 11:18 p.m. | Politics — by Mark Rachkevych

Mark Rachkevych

Mark has been a reporter for the Kyiv Post since 2006, but joined full-time in 2009. A native Chicagoan, Mark currently is editor-at-large and still contributes stories on an ongoing basis. He has written bylines with the Financial Times, Bloomberg News, Associated Press, Irish Times, and Ukraine Business Insight, among other publications. He is a former U.S. Peace Corps volunteer, a graduate of St. Norbert College in Wisconsin, and fluent in the Ukrainian and Russian languages.

Observers say flawed election law makes fraud very possible. For the first time since the 2004 Orange Revolution overturned a rigged election, Ukrainians will be electing a president. Will the Jan. 17 contest be a clean, honest and democratic one?

Unfortunately, Ukrainians don’t think so. A recent poll found that 82 percent of Ukrainians expect vote rigging, according to Oleksiy Anypovych of the Lviv-based Rating Group polling firm. These fears are shared by election observers, both international and domestic.

Compared to five years ago, Ukraine’s media are more pluralistic and citizens no longer have an authoritarian regime breathing down their necks. But, just as in 2004, experts are warning that Ukraine’s presidential election law is so flawed that it could permit a repeat of the large-scale fraud that triggered the Orange Revolution. The peaceful uprising reversed an earlier vote count for state-favored candidate Victor Yanukovych and paved the way for a re-vote that elected President Victor Yushchenko on Dec. 26, 2004.

Oleksandr Chernenko, chairman of Committee of Voters of Ukraine, a nationwide election watchdog, said bluntly: “Those not acting in good faith will have every opportunity to commit fraud.”

The poor election legislation was crafted on July 24, mainly with the support of lawmakers from the Party of Regions and Bloc of Prime Minister Yulia Tymoshenko, whose respective leaders – Yanukovych and Tymoshenko – are the front-runners in the presidential election. They had also flirted with a political alliance this year, before breaking off talks. However, experts say that they have crafted an election law that could cement their political dominance.

One of the main problems – and potential opportunities for fraud – is that the election law limits post-election challenges of vote fraud.

The law calls for a “quick vote count providing little opportunity to challenge election results or lodge complaints should voter fraud or other serious violations occur,” said Yuriy Kliuchkovsky, a parliamentary deputy with the Our Ukraine faction, which has supported Yushchenko in the past.

Olksandr Paliy, a political scientist with the Foreign Policy Research Institute, said: “The main conclusion to draw here is that the Regions Party and Bloc of Yulia Tymoshenko coalition was … planning falsification” of the election] when they held back-door discussions last summer on forming a power-sharing pact.

Paliy, who also worked at a Donetsk Oblast polling station during the 2004 presidential election, said the flawed election law reflects the Yanukovych-Tymoshenko desire to keep out other parties. “Yanukovych becomes president [given his consistent lead in polls] while Tymoshenko retains the premiership and the law keeps any dark horses from challenging the presidency,” Paliy said.

International experts are calling on the Verkhovna Rada to fix the flaws before the Jan. 17 vote. But the Regions Party, which commands the largest faction in parliament with 172 out of 450 seats, is resisting any change.

Upon concluding a two-day visit to Kyiv in early November, OSCE Parliamentary Assembly President Joao Soares called on the Ukrainian authorities to finalize reforms of the electoral legislation in advance of the upcoming Presidential election on 17 January 2010. “Ongoing struggles over the election legislation have left the Ukrainian people, candidates and authorities unsettled in advance of the January election. Clarity is absolutely vital if the upcoming election is to proceed smoothly and if the voters are to have confidence in the system,” Soares said.

Experts cited other shortcomings:

• “Carousel” or multiple balloting by the same voter may be easier because of lax same-day voting procedures;

• As in 2004, non-party domestic observers – those most qualified and knowledgeable of election tricks and ploys – are banned, forcing many of them to register as journalists to bypass the law;

• Flimsy election commission decision-making and voting procedures are in place, endangering voter registration, vote counting and tabulation of results. Only a quorum is needed from among those present at the time of the vote, not of the entire commission;

• Highly restrictive and limited measures for lodging complaints and challenges have been enacted; and

• Election observers and journalists can be arbitrarily expelled from any of the country’s 38,000 polling stations for “wrongful conduct” not clearly defined.

Other problems include lack of state budget money to finance the election and the poor condition of the nation’s voter registry.

In hindsight, Bloc of Yulia Tymoshenko parliamentary deputy Olena Shustik said the faction did not adequately analyze all of the proposed amendments. “If the election were to take place today, we would have unpleasant problems and pre-election chaos due to the many conflicting (election) rules and regulations,” said Shustik.

Regions Party deputy Serhiy Kivalov, who reputedly played a role in the 2004 election fraud as head of the Central Election Commission, defended parliament’s adoption of the election law amendments on July 24 as “completely justified.”

On Oct. 20, acting on Yushchenko’s petition, the Constitutional Court of Ukraine struck down five of the most egregious provisions of the new election law. But “many still are in place that could endanger the integrity of the election process,” according to Chernenko.

This opinion is shared by international experts.

The Venice Commission, an advisory body of the Council of Europe, and the Organization for Security and Cooperation in Europe’s election-watchdog arm, are among them. Those institutions recommended on Oct. 8 that more than 80 provisions of the election law be revised. Currently, the provisions are not in line with Ukraine’s “OSCE commitments…and other international standards for the conduct of democratic elections.”

Andriy Portnov, Bloc of Yulia Tymoshenko parliamentary deputy, co-authored the July 24 amendments. But he doesn’t expect parliament to address any of the international community’s and local experts’ concerns regarding the presidential election law.

Paliy said that the Tymoshenko camp is belatedly experiencing regret over last summer’s deal. “The Bloc of Yulia Tymoshenko now sees that it is more disadvantageous to falsify the election,” Paliy said. “They see there is no guarantee on their [power-sharing] agreement with the Regions Party.”

The fears of 2010 election fraud come even as supporters of Yanukovych – the beneficiary of the 2004 rigging – deny that anything wrong took place five years ago.

Kivalov, one of the reputed ringleaders in organizing the 2004 fraudulent vote, has written a book about this period and denied taking part in election fraud as Central Election Commission chairman.

On Nov. 23, outspoken Regions Party deputy Nestor Shufrich questioned whether vote rigging took place in 2004. And former President Leonid Kuchma’s hand-picked successor in 2004 has repeatedly denied that vote falsification had taken place under his watch.

Such historical revisionism is dangerous, but easier to make since no high-ranking officials have ever been punished for the 2004 vote fraud.

“By saying that the Orange forces unconstitutionally stole the 2004 presidency affects public perception and means this [voter fraud] could happen again, this is a sign that – despite the fact that the Party of Regions has changed to a certain extent – many there still think the old way,” said Oleksiy Haran, a political scientist and professor at the Kyiv Mohyla Academy.

The 2004 presidential elections, a cut-throat fight for power between Yushchenko and Yanukovych, took place in a highly charged atmosphere of voter intimidation and media harassment. Voter lists were tampered with. Evidence of ballot stuffing was widespread as well as blatant violations of the organization and conduct of elections including procedures, counting and tabulations. There was even evidence of computer data tampering. Evidence was publicized widely of electoral fraud in favor of government-backed candidate Yanukovych and witnessed by many local and foreign observers.

On Dec. 3, 2004, Ukraine’s Supreme Court ruled – as protesters filled Kyiv’s streets – that the scale of election fraud was so extensive it was impossible to establish a winner. Therefore, it invalidated the official results that would have given Yanukovych the presidency. The court ordered a revote of the runoff on Dec. 26, 2004, a contest won by Yushchenko.
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