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21 February, 2018  ▪  Roman Malko

The Central Electoral Commission conundrum

The shambolic renovation of the Central Electoral Commission, which has been in progress for several years now, looks about to be finally concluded. On Feb. 5, the President submitted a list of candidates to the Verkhovna Rada and this suggests that the process is finally being unblocked

Ukrainians can now hope that by the end of the month the illegitimate CEC will become legitimate.

Still, it’s too soon to celebrate. A similar event took place in June 2016, yet the process of restoring the CEC then ended in nothing. At that time, the president was blamed for supposedly insisting on preserving the Okhendovskiy commission for reasons of loyalty, in order to take advantage of it during next year’s presidential vote. There was probably some truth to this. But the real reason for the blockage lay elsewhere.

Poroshenko’s list of candidates by some miracle had individuals under the Narodniy Front quota that were apparently not proposed by the faction. It’s hard to say whether this was a deliberate provocation or the faction simply was ignorant about some agreements among their higher-ups. But the search for a compromise took more than a year and all this time the chief suspect in all the delays continued to be the president. Nor has the cloud been lifted from him to this day—even after he submitted a revised list that reflects the requests of all VR factions except the Opposition Bloc. OppoBloc still hasn’t submitted its nominee and that name will be added to the list once they do.

Needless to say, a great deal really does depend on who is sitting in the new CEC. The most important question is whether voters will trust it, because these people will control all elections for the next seven years. And elections are something the entire country pays attention to. This means that proportional representation of all the political parties in the Rada, which civic activists have been insisting on, is very important. The quality of the nominees and the transparency of their appointments are also critical and this is where any clashes are likely to take place.

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Overall, the professional quality of most of the nominees does not raise any red flags. As experts have noted, for a start, things are a lot better than in the current CEC. Olha Zheltova (BPP), deputy chief-of-staff of the VR Rights Policy and Justice Committee, has co-authored a number of electoral bills. Oleh Konopolskiy is a lawyer who worked at the NF headquarters and was Arseniy Yatseniuk’s right-hand man during the 2010 presidential race. Svitlana Kustova (BPP) worked on the team of lawyers in Viktor Yushchenko’s suit against Viktor Yanukovych in the Supreme Court in 2004, when the results of the second round of the election were declared null and void; in the 2014 presidential race, she represented Poroshenko in the CEC. Vitaliy Plukar (BPP), a one-time aide to Valeriy Karpuntsov, head of UDAR’s legal department, currently works in the Presidential Administration. Yevhen Radchenko (Samopomich), a civic expert, was one of the founders of the Committee of Voters of Ukraine, took part in many election campaigns and coordinated many election platforms. Leontiy Shepilov (NF), a lecturer at the Department of International Law and Special Legal Studies at the Kyiv-Mohyla Academy, also has a distinguished background in electoral matters. Mykhailo Verbenskiy (BPP) is a police general. Tetiana Slipachuk (Volia Narodu) is a lawyer. Tetiana Yuzkova (Radical Party of Oleh Liashko) is a lawyer and current MP. Andriy Yevstihnieyev (Batkivshchyna), a lawyer, is a lecturer in the Department of Environmental Law at Shevchenko National University in Kyiv.

Some candidates on the list raise questions. Olha Lotiuk (BPP) is a notary and professor at the Taras Shevchenko University. Her father is Stepan Lotiuk, an ex-prosecutor involved in a case about property raids at Ukraine’s Armed Forces. The question is why would a successful notary want to work at CEC? There is little information about the steep career of Natalia Bernatska (NF) and her assets – she could not have possibly made them as a civil servant. She had been a lawyer in Odesa and a lecturer at the Law Academy before arriving in Kyiv in 2014 to become Government envoy to the European Court of Human Rights, then on to First Deputy Minister of Justice with no political background. Iryna Yefremova is another interesting NF candidate. She is an MP, head of the party’s Kharkiv branch and Arsen Avakov’s person. Her place on the list is interesting in terms of the possible plans of her patron rather than her own skeletons in the closet. 

When the president’s site first posted the list of nominees to the CEC on January 23, there were as many as there were vacancies: 13. The following morning there were suddenly 14 when Konopolskiy’s name was added. When the list was finally submitted to the VR two weeks later, it was changed, again. This time Yevstihnieyev’s name was added. Hopefully when the OppoBloc finally decides on its nominee, all the factions will be represented. At that point, all the accusations that the president is being very selective should end: he did meet all the technical requirements fully. The only catch is that there are still only 13 vacancies but 15 nominees, so two of them will not make it to the CEC, no matter how you slice it. Who these sacrificial lambs will be is not just a guessing game, it’s a serious problem. But it’s the Rada’s problem.

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According to the procedure laid out in the CEC regulations, first the Rada votes to dismiss the entire current CEC, then it votes on each individual candidate nominated to the new CEC. If the list is presented alphabetically, then 14 and 15 will be out of luck: the vote may not even get to them. There have been cases in the past when some nominees simply weren’t voted on. According to the rules, if one nominee is not approved, the president can nominate someone else, but the same candidate cannot be submitted a second time. Given the level of mutual mistrust in the Rada—it took three whole years to come up with a compromise solution—, the possibility of betrayal is not to be dismissed. For instance, the Vidrodzhennia faction could, after voting for their candidate, Basalayeva, who is first on the list, simply refuse to vote on any others. They got what they wanted and that’s that. What if Batkivshchyna gets Yevstihnieyev and stops voting for other candidates? Nothing happens. The most at risk is the Radical Party’s Yuzkova, being last on the list.

There are other possibilities that allow nominees to protect themselves against being ditched. This idea belongs to MP Ihor Popov (RPL), the former head of the Committee of Voters of Ukraine and known for his electoral smarts. In the VR Regulations, Art. 50 provides for an ad hoc procedure whereby it is permissible to deviate from the rules once and this, says Popov, is the saving straw. “Vote for all the nominees and then appoint the 13 with the highest rating as a group,” he says. “That’s how frenemies insure themselves from being dumped. And whoever is inconvenient simply won’t make it into the CEC.”

The last question is the CEC chair. Prior to the nomination of Bernatska, experts were betting on Kustova, but Bernatska is far stronger administratively. Whatever happens, these two will be in the management group, but the chair could easily go to someone outside the list. There’s an interesting supposition going round that this someone could be Oleksandr Chernenko (BPP), a one-time CVU chair. Rumor has it that he’s trying to finish his law degree at high speed. Maybe this is all just gossip, but why not? If Chernenko’s name is ever submitted, the question of who will chair the CEC will automatically be decided.

Translated by Lidia Wolanskyj  

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