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U.S. institutes: Ukraine's new election law step backwards for democracy

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Aug. 11, 2010, 8:18 p.m. | Op-ed — by Kristina Wilfore
The National Democratic Institute (NDI) and the International Republican Institute (IRI) offices in Ukraine have recently joined forces for the first time to draw attention to concerns we share about the new Law on Local Elections. Both institutes, which have promoted democracy in Ukraine since 1992, have serious concerns about aspects of the law and the manner in which it was adopted. The new Law, approved by the Rada in July, was drafted and adopted in a non-transparent manner that involved virtually no public debate.The Law places restrictions on newer parties and independent candidates and prohibits electoral blocs at the local level. In these and other respects, the Law appears to contradict principles established by the Ukrainian Constitution, as well as international obligations and commitments undertaken by Ukraine.

Election law changes favor incumbents, could impact election results and leave fraud unpunished

While it does include a new provision for domestic monitors, which we believe are essential to ensure free and fair elections, the law lacks sufficient detail and clarity for monitoring and may in fact compromise efforts to provide election oversight.

Here are six significant changes in the law that will likely have the most direct impact on the quality and fairness of local elections in Ukraine:

1. Change in party registration requirements


Under the new law, only regional and local party branches that were registered more than one year before the election date are qualified to participate in the local election. Rather than merely eliminating frivolous attempts to contest elections, the one year registration requirement will have a substantive and disproportionate effect on parties that are newer but have established popular bases.This includes Strong Ukraine (led by Sergiy Tigipkowho came in third in the first round of the January 2010 presidential election) and Front of Change (led by Arseniy Yatsenyuk, who came in fourth, earning seven percent of the vote), as well as Udar led by professional boxer Vitaliy Klitschko.


These changes deprive citizens of political choices that have recently emerged, which subvert genuine election processes.
Many of these parties’ regional and local branches were registered in late 2009 and in 2010, which, under the new law, disqualifies them from participating in the October elections.This allows the governing Party of Regions (PoR) and other so-called “mature” parties (including the major opposition party, Batkivshchyna, led by former Prime Minister Yuliya Tymoshenko,) to avoid competition with new and popular political organizations.

These changes deprive citizens of political choices that have recently emerged, which subvert genuine election processes. They are in apparent conflict with Article 36 of the Ukrainian Constitution, which provides for equal rights for all organizations of citizens.

2. Change in election commissions and their authorities

Members of the Territorial Election Commissions (TECs) will be nominated by local branches of parties who are represented in parliament.In the past, TEC members could be nominated by any local party regardless of its national parliamentary presence.With the change in TEC composition, parties that are not necessarily represented at the local level will have the power to manage local elections. This could mean national political conflicts are projected inappropriately into disputes at the TECs.Furthermore, the CEC was given additional powers under the new Law, although the ability to exercise such powers may be limited due to the organizational ability and finances of the CEC.

3. Increasing political partisanship in mayoral offices


The law would require mayoral candidates to be nominated by city branches of political parties. Self-nomination, previously allowed, is now impossible.Despite the strong recommendations of domestic political and civic leaders and international organizations, the law calls for a majority voting system for mayors, meaning the candidate with a plurality wins, even if his percentage of the overall vote is small.

The law governing these elections and the process by which it was conceived are obstacles to Ukraine becoming a fully functioning, European-style democracy

A run-off system requiring 50 percent plus one vote support for one candidate was not introduced.Self-nomination (independent candidatures) is called for in the Organization for Security and Cooperation in Europe (OSCE) Copenhagen Document (paragraph 7.5).The abolition of self-nomination by mayoral candidates represents a major departure from past practice in Ukraine -- undermining the local political bases of numerous successful, independently elected mayors, forcing them instead to ally with parties.

4. Shortened electoral timelines

The period in which actual campaigning may occur has been reduced to three weeks.A three week campaign period favors incumbents and the national ruling party, which would have unlimited access to local and national media and other resources.Other parties and their candidates will have difficulties delivering their messages to voters in this short period and in light of constraints in the media environment.
A shorter period for submission of complaints and consideration of them by commissions and courts may leave many legitimate concerns unconsidered. This could impact election results and leave fraud unpunished.

5. Reducing information to voters


The law abolishes the requirement that candidates submit their programs or platforms and pictures to the election commission as a part of registration process.This change reduces opportunities for voters to receive information needed to make informed electoral choices. This presents a particular difficulty because voters will be asked to evaluate candidates in a large number of races. (Every voter will receive 6-7 ballots).

The lack of information on candidates combined with the effects of a shortened campaign period will exacerbate the absence of political debate in Ukraine and risks yielding a campaign devoid of substance.

6. Domestic observation

The new law allows domestic non-partisan observers, which is a positive change from the previous local election law.Currently, domestic observers are present in parliamentary election law.The law, however, is vague, thus creating possibilities for arbitrary actions by officials and for imposition of unreasonable restrictions. In fact, compared to the parliamentary election law, the new local election law limits the rights of observers.
Observers’ rights have been described vaguely, which invites election commissioners’ to interpret the law freely and could lead to abuse.

Parties that would be hit hardest by controversial election law



Party Name


Number of local offices for which the party would be eligible to compete under the old law


Number oflocal offices for which the party would be eligible to compete under the new law


Percentage change in number of local offices for which the party would be eligible to compete


TRADITIONAL PARTIES


Party of Regions


1,045


1,045


100%


Batkivschyna


Around 800


Around 800


Almost 100%


People’s movement of Ukraine (RUKH)


770


681


88%


Reforms and Order


Around 1000


Around 1 000


Almost 100%


Svoboda (Tiahnybok)


471


407


86.41% (13.59)


NEWER PARTIES


Strong Ukraina (Tigipko)


1212


427


35.23% (64.77)


Front of Change (Yatsenyuk)


650


19


23.6%(76.4)


For Ukraine! (V.Kyrylenko)


408


199


48.77% (51.23)


Civil Position (Hrytsenko)


172


106


61.62% (38.38)




Note: According to information provided from political parties in July.

Sources: International Republican Institute, National Democratic Institute

Conclusions

Local elections generally do not attract the attention of the international foreign policy community, as they are seen as less important than headline grabbing presidential and parliamentary elections, however, NDI and IRI believe that the future of any democracy depends on good governance and credible elections at the grassroots level.For this reason, we believe these elections are important to Ukraine’s democratic development.

Unfortunately, the law governing these elections and the process by which it was conceived are obstacles to Ukraine becoming a fully functioning, European-style democracy.

Kristina Wilfore is Director of the Ukraine office for the National Democratic Institute for International Affairs (www.ndi.org).With more than 17 years of political experience she recently moved to Ukraine to help party and civic activists work on the country’s democratic development. Chris Holzen is the Director of the Ukraine office for the International Republican Institute (www.iri.org). He has lived and worked in Ukraine since 1995.
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