On a Path to Decentralisation?
Without legitimate elections and a new constitution, Kiev cannot hope to restore stability. Devolution of power to the regions is likely to be one result of the new constitution and of the current instability. But will this be enough to placate Moscow?
Ukraine is set to hold presidential elections on 25 May, to remove its post-Maidan government from the legal limbo in which it now waits, and to give the Ukrainian people the chance to make their voices heard on a new direction for the country. Legitimate elections will be decisive for the country’s future, as will Kiev’s related project of reforming the Ukrainian constitution. As a result of constitutional reform, decentralization of governance looks more and more likely. Whether or not it can offer a viable way to ensure stability in Ukraine in the long run, decentralization may yet help to achieve some kind of compromise between Ukraine and Russia.
The troubles in Ukraine’s eastern and southern regions continue to worsen, and the threat of Russian intervention looms large over the political as well as the physical landscape. But Ukraine’s interim authorities have declared their intention to go ahead with the elections, even if they must be conducted under a state of emergency. Although it is hard to imagine how the government will succeed in conducting a ballot in the east, the sooner the elections can be held, the better, from Kiev’s point of view: only a popularly elected president can bring the government real legitimacy, and the continuing aid of the international community is conditional on an early return to the rule of elected authorities.
Holding free and fair elections will be essential to the credibility of the new regime. The 2012 parliamentary elections in Ukraine, held two years after Viktor Yanukovych returned to power as president, were controversial: according to the Bertelsmann Stiftung’s Transformation Index (BTI) 2014, they were characterized by “the lack of a level playing field, by the abuse of state resources, by the lack of transparent campaign and party financing, and by the lack of balanced media coverage”. If the current administration can oversee a more transparent, better ordered campaign, it can demonstrate a real break with the past.
Presidential candidates: familiar faces from the old regime
But Ukraine’s past will not be easily escaped. The protestors on Kiev’s Maidan hoped to sweep away the old regime. Now, to many, the candidates campaigning for the presidency look very much like more of the same. Front-runner Petro Poroshenko, who at the moment seems the prohibitive favorite, is the seventh richest man in Ukraine, a member of the same oligarchy that has long had a stranglehold on Ukraine’s economic and political spheres. His pro-European stance and his support for the Maidan protestors have made him popular, as has the support he has received from Maidan favorite Vitali Klitschko. Poroshenko is unlikely to easily kowtow to Russia: his Roshen confectionary company was hit by Russian trade sanctions in 2013, and in March 2014, his own assets in Lipetsk, Russia, were targeted. And he promises to fight corruption, which has plagued Ukraine for years – Transparency International’s Corruption Perception Index 2013 ranks Ukraine 144th out of 177 countries surveyed. But given his own deep involvement in Ukraine’s murky business world, along with his links to shady figures such as oligarch Dmytro Firtash, who is currently fighting extradition to the United States on bribery charges, it will be challenging for Poroshenko to fully extirpate the deep roots of corruption in the country.
Poroshenko’s closest competitor is former Prime Minister, Yuliya Tymoshenko, who trails him in recent polls with 14% of the vote to Poroshenko’s 48.4%. Tymoshenko, despite her two-year imprisonment by Yanukovych’s administration on politically motivated charges, is seen by most as too close to the failed promise of Ukraine’s 2004 Orange Revolution. An oligarch herself, she made her money in gas trading in the 1990s, and although her imprisonment was politically motivated, suspicions of corruption in her previous career still persist. Her support base is enthusiastic but small, but she cannot be ruled out just yet: as president of the Fatherland party, the second largest faction in parliament and the party of the acting prime minister and president, Tymoshenko is close to many figures in Ukraine’s interim administration, which may help her to remain in contention. And if elections are delayed because of events in the east, she may have time to rebuild her former popularity.
At present, neither Poroshenko nor Tymoshenko is campaigning strenuously; the continuing uncertainty in the east and south means active politicking would not go down well with the electorate. Tymoshenko has promised to turn her political organization into a national resistance force, to meet the threat of Russian aggression, while Poroshenko has condemned her decision as infringing on something that should be left to the army and security services. But the campaigns will likely heat up before the election takes place, and the government must ensure that the campaign is conducted much more transparently than in previous elections. In 2012, according to the BTI report, state-controlled media devoted 48% of its coverage to Yanukovych’s Party of the Regions. It is unlikely that any party will be so favored this time round. However, among his assets, Poroshenko can claim the independent news channel, 5 Kanal. Its coverage of the Maidan protests was one of the factors in building his personal popularity, and he has already been accused of using the station to shore up his support.
Both Poroshenko and Tymoshenko have promised to confirm the pro-Western orientation demanded by the Maidan protestors. None of the pro-Russian candidates has significant support: MP Sergiy Tigipko is running a distant third, with 7.4%, and Yanukovych’s Party of the Regions is fielding Mikhail Dobkin, for whom polls predict just 6% of the vote. Since it cannot hope to see its proxy win the presidency, Russia will likely try to undermine it. It will continue its fight for influence in Ukraine through the rewriting of the Ukrainian constitution.
The amendments made to the constitution after the Orange Revolution in 2004 turned Ukraine into a parliamentary republic. After Yanukovych won the presidency in 2010, he took steps to centralize power in his own hands. The Ukrainian parliament restored the 2004 constitution in February 2014, meaning that parliament will now again hold significant powers: the parliamentary majority approves the prime minister, who is proposed by the president, and can also dismiss the government. Many political leaders have called for new parliamentary elections to be held as soon as possible, so as to finally and completely restore stable and legitimate government.
A new constitution is needed
But the 2004 constitution had its own problems: in contravention of the provisions of the earlier constitution, lawmakers failed to consult Ukraine’s Constitutional Court before drawing up amendments. And the Parliamentary Assembly of the Council of Europe said that the 2004 constitution did not offer sufficient checks and balances. A new constitution is needed, and the Ukrainian government has promised to deliver it. The government has said that a draft of the new constitution should be handed over to the Council of Europe’s Venice Commission before the May polls, so that Ukraine’s voters know exactly what powers will be given to the president for whom they are about to vote.
The drawing up of the constitution has become an international affair. The government is consulting with the European Union and the United States, as befits its hope to get closer to the West. But Russia too has interests, and it is in Ukraine’s interest not to ignore them, both to avoid conflict with its neighbor and to reassure the sector of its own population that favors closer ties with Russia. The Kremlin wants the new constitution to enshrine decentralization of authority, because it could then influence governors and local governments in the eastern regions of Ukraine and thereby gain even greater political and economic control over the eastern regions of Ukraine. It would like to see Ukraine adopt a federalized system similar to the German model: if it could ensure that the regions were represented in a strong second house, it could use its control over the eastern regions of Ukraine to ensure influence over the workings of the central authority.
Kiev is ready to consider decentralization: in a statement on 19 April, Prime Minister Arseny Yatsenyuk said that “The Ukrainian government is ready to conduct a comprehensive constitutional reform that will secure powers of the regions.” Devolution of powers would not only represent compromise with Russia but would also fit in with Kiev’s pro-Western aspirations, because it would conform with the European Charter of Local Self Government, according to the Ukrainian leadership. And as Kiev loses its hold on the east, it seems that it has little choice but to confirm in law what has already become obvious in practice: the central authority cannot retain control of the regions if the regions do not accept the central authority’s control. It remains to be seen whether decentralization is enough to placate Russia, which has other demands, such as the confirmation of Ukraine’s neutrality and a firm promise not to pursue NATO accession, as well as unstated interests, such as its desire to see Ukraine become part of its proposed Eurasian Union. But with or without continued Russian efforts to destabilize the country, until legitimate elections are held and a new constitution is promulgated, Ukraine cannot hope to fully restore stability, the rule of law, and proper government functioning.
Justine Doody is an editor for the Wider Europe and China & Asia programs of the European Council on Foreign Relations. She is also a writer for the Bertelsmann Stiftung’s SGI News and BTI Blog.
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