Volume 11 Numbers 1/2

Winter/Spring 2002

Constitutional Watch
     A country-by-country update on constitutional politics in Eastern Europe and the ex-USSR

Ukraine - In parliamentary elections held on March 31, the Our Ukraine bloc, led by Viktor Yushchenko, received 23 percent of the vote; the Communist Party (CP), 20 percent; the propresidential For a United Ukraine (FUU), 12 percent; the Socialist Party (SP), 7.55 percent; the Yuliya Tymoshenko Bloc, 6.47 percent; and the Social Democratic Party (United) (SDP[U]), 6 percent. The OSCE noted "fundamental flaws" in the elections, and the US State Department described them as a "façade." A local election organization, the Committee of Voters of Ukraine, stated that the elections were the worst organized of the last three held in Ukraine, with as much as 15 percent of the electorate unable to vote because of long lines at polling booths as well as numerous other violations. After combining the candidates who won in individual districts with the party lists, FUU will have the greatest number of parliamentary seats with a total of 119 (another 18 candidates who ran as independents have declared their intention to join FUU); Our Ukraine will have 113 deputies; CP, 66 deputies; the Yuliya Tymoshenko Bloc, 23 deputies; SP, 23 deputies; and (SDP[U]), 17 deputies. Coalition negotiations are underway.

The elections were marred by controversy from the beginning. The campaigning had originally been scheduled to begin on October 12, 2001, but began late, on January 1. The delay was occasioned by the long struggle to pass a new election law (see Ukraine Update, EECR, Vol. 10, No. 4, Fall 2001) and then by a last-minute ruling by the Constitutional Court that "more than twenty" provisions of the then-current version of the law (1997) contradicted the 1996 Constitution. After yet another presidential veto of parliament's legislative efforts on October 4, a compromise was reached on October 18.

The new law (234 deputies voted in favor, 123 against, and 79 abstained) accepted-as the first of its four main features-the president's demand that the electoral campaign be shortened from 170 to 90 days, despite many deputies' fears that it would be harder to uncover malpractices in a shorter campaign. The basic concern was, of course, that certain crucial abuses would take place prior to January 1, that is, before the provisions of the new law would apply. In particular, it was feared that the wealthy sponsors of parties-the true backers of the many "virtual" parties-would have largely disappeared into the background by the first of the year. A shorter official election period would also increase the relative impact of the big players' expensive public-relations campaigns on television.

Second, although most deputies had expressed a clear preference for a greater degree of proportional representation (up to 75 percent of the seats), the mixed system used in the last elections, in 1998, was retained. Half (225) of the deputies would be elected by simple majority voting in territorial constituencies, half from a national party list. The barrier for representation for the latter was again set at 4 percent, despite proposals to raise the figure to 5 percent, as in Russia, and despite evidence that the low hurdle would do little to encourage the consolidation of Ukraine's fragmented party system.

Third, the requirement that all parties needed to collect 200,000 signatures in order to stand for election was replaced by a demand for simple cash deposits. The sum of 15,000 untaxed minimum monthly wages (currently about $47,000) would be required to join the national party list, and sixty times the same minimum (about $190) for any individual candidate in the territorial constituencies. Poorer, mainly left-wing, parties would obviously be disadvantaged.

Fourth, and finally, after a dispute as to who should sit on the vital election committees responsible for overseeing the vote and the count, it was agreed to represent not just the eight parties and alliances that were victorious in 1998 (many of which no longer exist in their original form) but to add, as well, all the parties and factions formed in parliament since then, and, in addition, some representatives of the smaller parties chosen by ballot. President Leonid Kuchma duly signed the compromise into law on October 30, 2001.Nevertheless, some of the legislation's opponents regrouped and won a temporary victory by passing a law, on December 13, called On Mandatory Television Debates During Election Campaigns. The extremely ambitious proposal, sponsored by one of those most likely to be kept off television screens during the campaign-Yuliya Tymoshenko, a former deputy prime minister turned bitter opponent of Kuchma-envisaged compulsory access for all candidates to all stations, whether public or private. The law also allowed for the exclusion of candidates from the ballot if they failed to cooperate in debate. But the act overreached itself: it also implied that all the candidates in local races (of whom there might be scores) would have to be similarly represented. The law seemed impossible to implement, and Kuchma's subsequent veto was only to be expected. Nevertheless, the fundamental issue of equitable media coverage had at least been highlighted.

As for the campaign itself, most of the main contenders had declared by January 2002. Former prime minister Viktor Yushchenko's Our Ukraine bloc (see Ukraine Update, EECR, Vol. 10, No. 4, Fall 2001) took its final form on October 8, 2001. Yushchenko had found few new allies beyond the ranks of the center-right, apart from one left-center group, Solidarity, with little actual grassroots support. One possible establishment defector, the Liberal Party, led by the Donbas politician Volodymyr Shcherban (now governor of the Sumy oblast), decided against joining at the last minute. Sensibly, however, Yushchenko dumped the far-right Congress of Ukrainian Nationalists. The 2 percent of the vote they might possibly have added in west Ukraine would have been more than offset by the damage they would have done to Yushchenko's more pragmatic image in the east and south.

Our Ukraine's main opponent was the coalition of four establishment parties originally given the less-than-wonderful acronym TUNDRA. In the autumn, the bloc received a fifth member, the Union of Ukrainian Industrialists and Enterprise Bosses (the political wing of Ukraine's "bosses union") and the endorsement of its former leader, Yushchenko's successor as prime minister Anatoliy Kinakh. Despite Kinakh's obvious status as a temporary expedient, the bloc's leaders were now more willing to associate themselves with the government than in 1998, hoping that some of the credit for continuing economic growth might go to them rather than Yushchenko. TUNDRA renamed itself For a United Ukraine (FUU).

Other establishment contenders included popular Kiev mayor Oleksandr Omelchenko, after his late decision to run separately with his Unity party. Two dark horses were Women for the Future, backed by business sponsors and the president's wife, and Ukraine's New Generation (NG), the liberal business party of Valerii Khoroshovskyi and Inna Bohoslovska. The latter was modeled on Russia's Union of Right Forces and sought to convey a similarly young and dynamic image (it was backed by the same public-relations company). However, scratch the surface and links emerge to one of the older oligarchic groups in the coalition FUU that had been most compromised during the Gongadze affair-Labor Ukraine (LU). (For a description of the Gongadze affair, see the Ukraine Update, EECR, Vol. 10, Nos. 1, 2/3, Winter, Spring/Summer 2001.)

On the other hand, SDP(U), previously part of the governing inner circle, now seemed to be out of favor-most probably because it had grown too powerful and the president was happy to see it cut down to size (the president was also angry with its perceived disloyalty during the Gongadze affair). Kuchma must have given informal approval to the removal of its leader Viktor Medvedchuk as deputy chairman of parliament, on December 13, by a devastating 234 votes to 50, with an equally significant 112 abstentions. It was only last summer that Medvedchuk was being touted as Kuchma's eventual successor. Another sign of SDP(U)'s declining influence was the opening, on December 4, by the procurator's office of a case against the son of another of the party's leading lights, former president Leonid Kravchuk, although the allegations concerning the fate of Ukraine's Blasco (Black Sea Company) merchant-marine fleet were at least seven years old.

Among the other establishment parties, the Green Party's many business activities did not receive too much attention in the official media. The party courted the youth vote through its sponsorship of The Last Hero, the Ukrainian equivalent of the US Survivor television series. Out-of-favor oligarch Oleksandr Volkov, meanwhile, did not make much headway with his Democratic Union-Popular Democratic Party alliance, despite an apparent presidential endorsement when his former friend and head of the National Security Council Volodymyr Horbulin emerged at the head of its list.

None of the various official parties was, therefore, likely to repeat the success of Russia's Unity in 1999, when it came from nowhere to win 23.3 percent. Pundits predicted that the presidential administration might be forced to hunt around for extra votes after the election. As it did during the Gongadze affair, it might call on the CP. One straw in the wind was the surprise announcement, in January 2002, that prosecutor general Mykhaylo Potebenko (whom the party had given an easy ride during criticism of his handling of the Gongadze affair) would appear at number 20 on the party's list, a relatively high ranking. The Communist Party of Workers and Peasants, rival to the CP, was widely assumed to be an official project designed to keep the mainstream party under control.

Clearly, President Kuchma works behind the scenes to influence the actions of these very malleable political parties. Another possible maneuver for the president would be to work for an eventual alliance with Yushchenko's Our Ukraine. Many of Yushchenko's supporters on the right had raised a few eyebrows when he appointed as his campaign managers Petro Poroshenko, Yuriy Yekhanurov, and Roman Bezsmertniy -all protégés of Volodymyr Lytvyn, head of the presidential administration and one of the leaders of FUU. The former prime minister argued, however, that their presence was necessary as a means of winning some access to official media and "administrative resources" and deflecting negative campaigning. Nevertheless, some observers feared Our Ukraine would follow the fate of Fatherland-All Russia after 1999, which was cajoled by the Kremlin into an eventual alliance with Unity in 2001. Yushchenko seemed to be calculating that declaring outright opposition to the president was simply too risky-and judging by the difficulties facing Tymoshenko's bloc, he was probably right.

The controversial but glamorous Yuliya Tymoshenko, Yushchenko's former deputy, converted the Forum of National Salvation (see Ukraine Update, EECR, Vol. 10, Nos. 2/3, Spring/Summer 2001) into the more distinctly personal Yuliya Tymoshenko Bloc, whose Ukrainian acronym was the evocative ByuT ("they beat"). However, her diminished business empire was under considerable pressure as a possible source of finance.

The Socialist Party, on the other hand, sprang the one genuine surprise of the party-congress season (nominations had to be in by January 25). Mykola Melnychenko, who claims to have made the notorious Kuchmagate tapes and is now in the US, appeared as number 15 on the party list. His candidacy was soon scuttled by the Central Election Committee (CEC), which cited the rule requiring five years' residence in Ukraine before an election (in late January the CEC had claimed there were "irregularities" in his paperwork, and Melnychenko was threatened with arrest if he returned to Ukraine).

The campaign period was marred by numerous irregularities. The watchdog group, the Committee of Voters of Ukraine, expressed its concern about violence against candidates, media restrictions, candidates' abuse of their official positions, improprieties in the formation of election commissions, the distribution of fake campaign materials, and other provocative actions. To these, one might add a mass cancellation of candidates, which occurred on March 15, when the CEC struck more than 100 candidates from the registration lists. The commission cited discrepancies between the candidates' income declarations and their official tax data. The leaders of the Yabluko party were among those removed, as were at least 18 candidates from the Yuliya Tymoshenko Bloc.

Western concern, meanwhile, had mounted. On March 1, a representative from the Parliamentary Assembly of the Council of Europe told the press that, although the campaign was more open than that of 1999, "Sixty percent of local electoral committees are controlled by propresidential parties." She also expressed concern over "the misuse of power resulting from illegal usage of administrative resources by propresidential forces, particularly in the regions. . . . There is absolutely no political dialogue, there is just fear." On March 21, the US Congress passed a resolution urging a fair election.

In other events of constitutional importance, the adoption of a new Criminal Code in September 2001 continued to cause disruption. Kuchma cited it as his reason for decreeing the reorganization of Kyiv's court system, basically a technical reduction of the number of district courts from fourteen to ten. The ensuing, temporary closure of the capital's legal system disrupted many trials, including the high-profile case against leaders of the far-right Ukrainian National Assembly for their alleged role in the March 2001 Kuchmagate demonstration. These events had ended in violence and marked the conclusion of the campaign for Kuchma's removal.

After years of struggle, parliament adopted a new Land Code against fierce Communist opposition, on October 25, disregarding its frantic attempts physically to disrupt the voting process. The measure passed by a vote of 232 to 2 (the 113 Communists were trying to render the vote invalid by denying parliament a quorum). The Code will allow the buying and selling of farmland after 2004.

On December 29, the Constitutional Court voted to declare illegal the ban on the (original) Communist Party, applied in August 1991, but stopped short of spelling out the consequences (the existing party, technically, only calls itself the inheritor of the ideas and traditions of its Soviet predecessor). The Court rejected all claims for a return of the party's assets.

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