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26 June, 2015  ▪  Dmitro Krapyvenko

Co-author of a local elections bill Oleksandr Chernenko: “The next local elections can take place two years after decentralization kicks in”

Oleksandr Chernenko spoke about the main challenges to changing the local political powers-that-be, electoral risks, and the voting rights of internally displaced persons

U.W.: How do you see local elections taking place in Donbas?

Right now, there’s no point to talking about elections in the occupied territories. If and when elections do take place there, we’ll need a special law. There’s a problem with electing the oblast councils in parts of Donetsk and Luhansk Oblasts under control of Ukraine. Based on open party lists as proposed in our bill, among others, oblast councils are elected on a proportional basis and even part of a territory that has voted can fill empty seats in the council. But this would not be entirely fair. We propose that elections in Donbas be governed by a separate law.

My position on Donetsk and Luhansk Oblast councils is as follows: better not to elect them until the anti-terrorist operation (ATO) is over. Elections to city, county, village and town councils can then be held on the liberated territories. There’s no problem right now in holding elections to the councils of Mariupol, Kramatorsk, Sloviansk or other village and town councils. The problem is what to do with those counties that the frontline crosses and those places that are supposedly Ukrainian territory, such as Stanytsia Luhanska, Shyrokyne and Shchastia, where running an election safely will be difficult at best. That’s why I think our proposal will be in a separate law.

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The way I see it, although it’s not reflected in legislation, is that at the beginning of the campaign, the Central Election Commission, together with the Cabinet of Ministers, will put together a list of those population centers where elections will not take place at this time. After all, the Cabinet includes the Defense Ministry and we’re talking about the territory on the front. This encompasses the rayon or county councils that are there, as well as the village, town, city and other settlements where it will be impossible to hold elections from a security and logistics point of view. At the same time, the law will state that such elections will be held as soon as it becomes possible to do so.

U.W.: What do you think of the idea of setting up separate ridings for Donetsk and Luhansk Oblasts in the same way as we do abroad?

People are talking about this option. A colleague of mine who is now in charge of the Committee of Voters, Oleksiy Koshel, proposes making special ridings in the bigger towns, such as oblast centers, where the Donetsk Oblast council can be elected by the voters registered in Donetsk or Luhansk Oblasts, who have moved to other oblast centers as IDPs. I don’t see any technical options for implementing this scenario because we will have to decide how to put together voter lists. Under the current system, you can come and you show your passport with a Donetsk registration and you are allowed to vote, then you can go off and vote in another riding the same way.

Theoretically, such lists can be drawn up in five days, but I don’t know how to get the ballots to each of the polling stations. So, it’s a good idea, but practically impossible. Moreover, apart from oblast centers there are cities such as Severodonetsk, Kramatorsk, Sloviansk, Mariupol, where a lot of IDPs currently live. The question arises whether to register them to regular polling stations—and I think the polling stations simply won’t be able to handle them—or to set up special polling stations for them, which costs money.

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In short, you can describe any number of attractive projects, but you have to deal with reality. The key question is the voting rights of these IDPs, who have been forced to move. If the issue were elections for the president or Verkhovna Rada, there wouldn’t be any problem at all. They would be held across the country where every citizen has the right to vote. But these are local elections. Only the members of a community have the right to elect their council. On the one hand, those people who have resettled to a place live there and in many cases are working, they’re using utility services—and that already makes them members of the community! The question is did they arrive just today, or yesterday, or a long time ago. Nobody really knows.

The next question is, when they will go back: today, tomorrow, or right after the election? On the one hand, we can give them the right to vote. The bill proposed by our working group works on the basis of a declaration. The voter needs to go to the office that is handling registrations no less than five days prior to Election Day, present a document proving that they are an IDP, register on the voter list, and then they can vote. This idea is acceptable to us, as we consider rights granted by the Constitution fundamental.

Still, it’s good that not many of these people will go, because in Severodonetsk and Sloviansk, for instance, there are enough IDPs to affect the outcome of the election. I mean, if I live in a town where there are a lot of resettled people, I want to see a certain person as my mayor, while these people who have moved in and might move away again tomorrow, who either in that way or even for money or because of their convictions might vote for someone else and possibly then move away, this will cause a conflict. What comes first: being a member of a given community or my constitutional right to vote? The main thing is for there not to be any manipulation or wrongdoing. And so, the individual has to register in time in order to have the right to vote.

U.W.: What are the chances that your bill will be adopted?

It’s already pretty obvious that there’s going to be a real competition between the bill drafted by our working group and the bill sponsored by MPs Ihor Popov (Radical Party of Oleh Lyashko), Vadym Denysenko (Bloc of Petro Poroshenko) and others. What’s the main difference between them? Both of them call for open lists but what we propose is a model at the level of oblast councils and bigger towns, 90,000 and up, with open lists similar to Poland’s system of ridings. In each riding, the parties propose a list of candidates and voters must vote for a party and, optionally, for someone particular from the party’s list.

For instance, if voters gave all their votes to a particular party but no votes to a particular candidate, then if the party gains enough votes for 10 seats, the first 10 on the party’s list get seats. If the party gets enough votes for 10 seats while voters indicated their preference for three or five candidates, a candidate needs to get at least 3% of the vote to move up in the lists, which is the so-called “internal threshold.” If you, the candidate, get more than 3%, then you begin to move up in the rankings. If five candidates have good ratings from voters while the party won 10 setas, then these five get first dibs on seats, and the next five get seats according to the party’s list of top 10. That’s more-or-less the model and it’s meant for bigger towns and oblast councils.

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U.W.: You don’t think voters will be confused by this?For elections in smaller towns to rayon or county, village and hamlet councils, the first-past-the-post system is recommended, just as it has been until now. The difference is that, under the system we propose, not just one but two to four candidates win seats in each riding. Why this model? For voters, it makes sense. There is a ballot paper with candidates that are both independents and members of parties and all you have to do is check off the ones you prefer. People vote, they count how many votes each candidate got, and if two seats are being elected in this riding, then the top two get those seats. Why do it this way? First of all, to overcome the inherent conflict in the FPTP system, where only one person could win until now. Secondly, to provide better representation to voters. Right now, a candidate can theoretically get only 15% of the vote, come out first, and take the seat, leaving 85% of the voters unrepresented. If there are several seats to be won, then the sum of the candidates that gain seats immediately raises the level of representation.

This is probably the biggest issue. We have half a year to go, but experience shows that, even if we had a year, everything would still be done at the last minute. We’ve been putting off electoral reform for years under the excuse that voters won’t understand it. The election system problem does exist and it’s huge, and this is the system’s biggest challenge. But one of these days, we have to take that step and make a collective effort to hold an information campaign, train commissions, engage the press and involve civic organizations. We also propose that every ballot have instructions for how to vote properly printed on the back side.

U.W.: How do you see the processes of decentralizing government and renewing local government working together?

We won’t be able to get it right for these upcoming elections. Based on the provisions of the current Constitution, we have to hold the election on October 25. So, like it or not, we have to get these electoral reforms in place.

Changing the Constitution, which is necessary for decentralization, is a much more difficult task.  Even if we get 226 votes for decentralization during this session, a ruling from the Constitutional Court over the summer, and 300 votes in September, we just won’t make it, because the election campaign starts 50-60 days prior to Election Day, which means the end of August, early September.

The way it works, electoral legislation determines how people are elected and the Constitution determines their powers. To treat them completely separately is not the right approach, but making them dependent on each other is also wrong. Our position is that the electoral reform has to happen alongside with decentralization. But even if we manage to amend the Constitution in September—which is theoretically possible but, I think, highly improbable—, it doesn’t mean that decentralization has been completed. This will only be the beginning, as dozens of other laws need to be changed, and so on. In fact, between amending the Constitution and completing this reform process, we need 12-18 months, possibly two years. This means postponing the elections is not the right thing to do. That’s why we made the decision to go ahead with the elections. All these processes will continue side-by-side.

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We’re also talking about holding new elections in about two years—something I agree with in principle—after decentralization has been finalized. But this raises another problem: once territorial communities are merged under the decentralization reform, they should hold their first joint elections. What’s more, if some village merges into Kyiv, this is a new community and that means new elections. Once this becomes a single community, the election takes place not just in the newly-joined village but in the entire community. So we have a complicated situation where those communities that were unable to merge prior to the election will be unwilling to do so once the elections have been held. Will newly-elected councils, mayors and council chairs want this merger? In principle, the community can approve the change without them, but technically, it will be very difficult to do so. Someone just got elected and now they have to go for a merge and new elections? It’s understandable that, after the elections, this process of merging communities will go on hold precisely because people won’t want to go through another election.

However, if the new provisions in the Constitution state that new elections will be in two years, then everybody will drag things out for another year with the mergers, but at that point elections will be coming up anyway and they will have to go for it. It’s a kind of incentive. Once again, they will have to go for it, like it or not. Of course, all this is only one approach that is now being debated. What will actually happen in the end, I don’t know.

BIO

Oleksandr Chernenko, born in Kyiv Oblast in 1973, graduated from the Drahomanov National Pedagogic University in 1997 with a major in History and Country Studies. He later took a civic engagement course at the National Democratic Institute in the United States, and the Political Education course at the Klausenhof Academy in Germany. Mr. Chernenko worked as journalist in various publications. In 2009, he chaired the Board of the Committee of Voters of Ukraine. In 2014, he was elected to parliament as member of the Bloc of Petro Poroshenko


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