LAST CHANCE FOR UKRAINE

Victoria Gumeniuk, Head of the European programme, Centre «UA»

Ukraine is facing a hard choice. And it might be the last one in terms of understanding which way Ukraine decides to go: the way of a democratic development or an authoritarian regime. After Yulia Tymoshenko’s guilty verdict the attention of West is drawn towards Ukrainian election legislation. Its further reforming in direction of enabling fair political competition will mean that Ukrainian power follows the realization of Ukraine’s Eurointegration course.

On the 3rd of November, the leaders of all parliamentary factions agreed to settle the Temporary special commission on election draft law and to direct there all the drafts law on elections, registered in the Parliament. The main task of this commission is to elaborate a consolidated draft law, taking into account the recommendations of the Venice Commission, till November, 17th.

International benchmarks

The previous version of Bill №9265-1, known as the “improved Bill of Law “On the election of national deputies of Ukraine” and drafted as part of the activities of the Working Group to improve election legislation, was sent for an audit to the Venice Commission and the OSCE/ODIHR, as well as to the International Foundation for Electoral Systems (IFES).

The audit’s results are alarming, as the key articles of the Bill do not follow the international institutions’ recommendations. The main flaws of the Bill are depicted in the Table 1 below.

Table 1. Summarized remarks of the international institutions.

Legislation scope Remarks

The electoral system itself

changing the current system from strictly proportional to a mixed one, rather than to a proportional system with regional, open lists;

raising the threshold to 5%;

prohibiting the participation of political blocs (groups of parties) in elections;

The territorial organization of elections

establishing the boundaries of polling districts just before the election campaign start, not 6 months prior;

setting an excessively high cap on the number of voters (2,500) in polling station lists;

c) not providing a clear list of legal grounds for setting up temporary overseas polling stations;

The formation and activity of committees

not allowing individual candidates to be represented in District Electoral Commissions;

giving priority to parties that already have their own VR factions to sit on DECs and PSCs;

allowing commissions to make decisions with less than a majority of their total members;

Campaign finance regulation

leaving contradictions between the rules for financing parties and the rules for financing election campaigns;

not establishing restrictions on the size of campaign chests;

Legislation scope Remarks

not requiring complete disclosure on sources and volumes of contributions and the type and volume of spending, both prior to Election Day and after the election;

not providing for independent monitoring of the financing of political parties and election campaigns, or effective, proportional, preventive penalties for financial abuse;

Candidate registration

providing very tight timeframes for candidates to register in single-seat electoral districts;

requiring excessive cash deposits for parties and individual candidates alike and offering very limited conditions for refunding them;

Election campaigning

dropping all forms of state funding for campaigning;

establishing requirements for private broadcasters and printed media that restrict their editorial independence;

establishing penalties for violations of electoral legislation by the press, such as withdrawal of licenses and so on, that could be out of proportion to the seriousness of the actual violation;

establishing undemocratic restrictions: a ban on commenting and evaluating the content election campaign programs for at least 20 minutes before and after they are broadcast; a ban on campaigning in the foreign press; a binding requirement on the press to publish responses to information that they consider inaccurate at the demand of a candidate or party; a ban on the participation of foreigners or individuals without citizenship in campaigning; and a ban on publishing public opinion polls during the last 10 days prior to Election Day;

Procedures for defending voting rights

violating the principle of equal electoral rights by providing different voting rights in different districts;

not providing for the necessary oversight, including monitors, of changes in polling stations for voters who have not changed their official address;

not mandating documented confirmation of grounds for voters to vote at wherever they happen to be on Election Day;

Election monitoring not providing monitors from COs the right to monitor everywhere in the country, not just within the polling stations, or with the right to challenge through electoral commissions;

Counting votes and challenging the process

establishing a “margin of tolerance” (10-20% cases of illegal ballot-casting) for the violations of electoral law that constitute grounds for declaring an election invalid;

prohibiting the declaration of the results of the vote in polling stations invalid; c) setting overly tight timeframes for challenges to be filed and considered.

Road signs are there, traffic is not

During next two weeks the deputies - members of the Temporary special commission are to accomplish the things, which were not done during almost a year period of time, since the Working group on election legislation improvement was formed. They are to elaborate a common position. Owing to the efforts of both international and Ukrainian experts, the “bottlenecks” of election legislation are clearly defined. For now it’s about readiness of deputies of different political forces to agree on systemic principles of parliamentary election 2012, which would enable running the elections in line with democratic standards. Crucial importance of the moment is difficult to be overestimated as the legitimacy of a future parliament, people’s trust and the European perspective of Ukraine are do depend on the deputies’ decision.

This brief was written on the basis of a policy paper: “Bill №9265-1, or How to undermine the electoral process”, the authors of which are: Denys Kovryzhenko, Director, Legal Programs of Legislative Initiatives Lab and Oleksandr Chernenko, Chair, Board of the Committee of Voters of Ukraine in the framework of activities of the Civil Experts Council within Ukrainian Part of EU-Ukraine cooperation committee.