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15 February, 2020  ▪  Maksym Vikhrov

Unitarity under assault

In what way do Zelenskiy’s initiatives regarding decentralization, referenda and dual citizenship threaten the integrity of the Ukrainian state?

President Volodymyr Zelenskiy’s first attempt to deal with decentralization in turbo mode was a flop. Bill #2598, which proposed a number of amendments to the Constitution, failed to even find support at the committee level in the Verkhovna Rada. Public reaction was negative. The biggest opposition arose against the idea of a system of prefects, which was supposed to replace the oblast and county state administrations, institutions controlled by the president and operating in parallel to elected councils at the same level. Because of the much broader powers the prefects would wield, they were immediately christened “the president’s eyes and ears.” But the main threat from Bill #2598 lies elsewhere. Coupled with a number of related initiatives by this administration, it could pose a serious threat to the unitarity of the Ukrainian state and set the stage for unpredictable processes in the regions.

The bill includes provisions stating that Ukraine’s government “is based on unitarity,” but at the same time proposes amending the Constitution to establish that the country’s territory consists of communities that constitute the primary administrative territorial units and the primary subjects of local government, which will also be given the status of legal persons. The procedure for establishing and eliminating communities, their borders and names are supposed to be defined in separate legislation that has not been presented to the public or experts – in short, no one knows what it might be. This same will be applied to “circuits,” which are supposed to replace the current counties, and oblasts. Likewise, the ultimate status of mayors or heads of communities and elected council members has not been written into law, nor has the procedure for setting up community executive agencies and what their powers will be.

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In practice, this means that, once these amendments have been brought into force in the Constitution, giving ORDiLO special status should be much easier: all it will require is a separate bill. As long as there is a monomajority, that should not prove difficult to achieve. Yet it could be just the beginning of problems. If the precedent of “special status” is applied to occupied Donbas, it could become tempting to other regions as well. Right now, it’s almost impossible for a region to squeeze any privileges out of Kyiv, but if this bill is passed, it will mainly depend on whether the local leadership can offer a serious enough argument.

The bill also proposes amending the Constitution to have local government happen through, among others, local referenda. So far, there is no established procedure for holding such referenda but the Zelenskiy team promises to fix this gap. According to the president, a bill on national referenda will be passed shortly, mainly in order to decide the procedure for foreigners to buy land in Ukraine. But there’s an entire package of bills already waiting to be passed.

“This package includes bills on nationwide and statewide referenda, local referenda, and on public veto,” Speaker Dmytro Razumkov explained at the end of November. “Some other bills may be added to the list that I also expect to become law.” Incidentally, Viktor Medvedchuk, the main lobbyist for “people power” and federalization, has already expressed wholehearted support for all these bills proposed by the Zelenskiy government. It’s also possible that it’s not former Party of the Regions politicians who support this idea. In the battles over the land market, the idea of referenda was also promoted by Yulia Tymoshenko’s Batkivshchyna and a slew of other populist parties. One way or the other, organizing the mechanism for local and national referenda won’t be difficult – but its consequences could be bad, indeed.

In 2014, referenda became Russia’s cover for tearing down state government, first in Crimea and then in the Donbas. Of course, then it was just an imitation of “people power,” rather than genuine, legitimate plebiscites. But if the insurgents have a functioning and – more importantly – lawful mechanism for carrying out a referendum, Ukraine could see a series of local crises in the style of mini “brexits.” The facts so far point to the real likelihood of a negative scenario. The Agency for Legislative Initiatives has calculated that 178 applications for local referenda were registered over 1991-2012, some of which had a clearly anti-state purpose. It’s worth mentioning the 1994 plebiscite in the Donbas, which asked voters about federalization and a second state language. In 2002, Kharkiv City Council initiated an advisory referendum on a second state language and in 2006, the Verkhovna Rada of Crimea tried to do the same.

Clearly, not all of these where subversive for Ukraine, but it’s not worth assuming the possibility exists. The specter of “emergency councils” that populists continuously appeal to is easy enough to raise. In practice, it could simply strengthen local elites by giving them a powerful instrument for holding Kyiv hostage, while Kyiv will have an excuse to act generously and hand out privileges to the regions.

At the same time, the threat to Ukraine’s unitarity could come not just from local elites but also from foreign forces trying to damage the relationship between Kyiv and the regions. In the Donbas, that’s the Russian Federation, which is trying to arrange autonomy for ORDiLO by blackmailing the capital through war. The latest trick was issuing Russian passports to residents of the occupied territories. Meanwhile Hungary has been issuing its own passports for nearly two decades in Zakarpattia. The scandal in Berehomet in 2018, in which the local Hungarian consul was dismissed from Ukraine for issuing such passports – in contravention of Ukraine’s Constitution, which doesn’t recognize dual citizenship – did not lead to any fundamental breakthroughs. According to Ghennadiy Moskal, the former governor of the oblast, Hungary has been supposedly rescinding its passports on a fairly large scale. However, Ambassador Istvan Igyarto insists that these documents were issued in compliance with Hungarian law and this is “Hungary’s sovereign right.” In short, he doesn’t see any reason to stop this practice.

Just how many Zakarpattians have gained dual nationality so far is anybody’s guess. In 2015, the Hungarian Government mentioned 100,000. How many Ukrainians have taken Russian passports, voluntarily or under pressure, is also hard to say. But it’s obvious that the part of Ukraine’s population that has been “passportized” is clearly seen is providing the countries doing this with leverage against Ukraine, especially if the regions are given the right to hold their own referenda.

Meanwhile, the new government, rather than fighting dual citizenship, plans to legitimize it. In order to draw Ukrainians working and living abroad back to their homeland, Zelenskiy announced he would take this step, back during his election campaign. Later, he presented the idea of offering dual citizenship to ethnic Ukrainians in the diaspora. In mid-December, the necessary presidential bill, #2590, was submitted to the Verkhovna Rada for consideration. Rather than proposing that the rule about only one citizenship be removed from the Constitution, those taking out Ukrainian citizenship will no longer be required to abdicate their other citizenship. The State Migration Service has stated that this novelty is preparation for actually legalizing dual citizenship.

“You might say that dual citizenship is a program to attracting immigrants to Ukraine,” says SMS Director Maksym Sokoliuk. “There will be restrictions on certain countries, including Russia.” However, this could turn out to also be that the new administration is preparing in this way to “resolve” the problem of holders of Russian passports in ORDiLO: by simply legalizing their presence in the region. There’s no need to think long to realize that in this same way, Ukrainian citizenship will be diluted more than just in the Donbas. Although most people typically acquire foreign passports of practical considerations, rather than political ones, the growing number of Ukrainian citizens holding other passports will sooner or later become yet another challenge to the country’ unity.

In theory, Bill #2598 anticipates that the prefects will precisely be the preventive measure against unrest at the local level. Should a local government pass some legal act that is unconstitutional, the president will be able, at the request of the prefect, to immediately stop the effect of the law and to even cut the powers of that guilty agency and appoint a temporary proxy. If the Constitutional Court confirms the suspicion, the local government will have to call a snap election and those guilty of the ruling will be held responsible. 

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However, even this kind of set-up has weak spots, because theory doesn’t always work out as planned in practice. Oblast administrations were suppose to oversee the work of local governments in the past, but they proved completely ineffective, to use the Donbas in 2014 as an extreme example. How did that happen? The trouble is that relations between the capital and the regions often turn out to be based on mutual dependency, which inevitably leads to a wide range of compromises. Typically, Kyiv closes its eyes to local self-dealing in return for relative peace in the provinces, the support of local leadership in an election, and so on. This means that, whether they’re called governors or prefects – who will be appointed in exactly the same manner – they aren’t likely to give up the habit of compromise. The only difference is that these will now be determined by the political situation – and at times the parties involved could even be outside forces.

In this way, the president’s initiatives taken as a whole are quite likely to strengthen the old centrifugal trends and even generate new ones. If the entire set of reformist concepts of this administration take on a real life, Ukraine’s regions will have more opportunities to fight Kyiv for a variety of privileges, up to and including “special status” along the lines of what ORDiLO might still be granted. But the biggest threats are posed by the right to run local referenda and legal dual citizenship. At the moment, all this is only a handful of bills, but they need to be taken seriously. Having a monomajority at its services and itself inclined to operate in turbo mode, the government could unwittingly set in motion processes that will cost Ukraine dearly to clean up after the fact.

Translated by Lidia Wolanskyj

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