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Analysis: The electoral reform in Ukraine - quo vadis?

Steffen Halling

Steffen Halling is a doctoral candidate at the Research Center for Eastern Europe at the University of Bremen and visiting scholar in the research group Eastern Europe and Eurasia at the Science and Politics Foundation in Berlin. He researches oligarchs in Ukraine and their legitimation strategies. For the "European Platform for Democratic Elections" (EPDE) he observes the Ukrainian electoral reform (https://www.epde.org/en/documents/category/ukraine.html).

What does the current Ukrainian electoral system look like and what are its weaknesses? What improvements do proponents of electoral reform in Ukraine hope to see? An overview of the developments in recent years and the chances of success of the reform concern.

Supporters of electoral reform at a rally in Lviv in May 2018. (& copy picture-alliance / dpa, Sputnik)

Summary

A major reform concern, which has been supported by Ukrainian civil society, reform-minded politicians and international actors for years, is the change in the electoral system with which the members of the Ukrainian parliament are elected. If the proponents of a reform of the electoral law have their way, the parliament should in future be elected according to a purely proportional system on the basis of loosely bound regional party lists, which in Ukraine are called "open" lists. The reform of the Ukrainian electoral law is certainly not a panacea, but it could support the fight against political corruption, lead to a better representation of the will of the electorate and thus strengthen the institution of free and fair elections as an essential part of the democratization of Ukraine. However, it is uncertain whether the reform will be implemented in time for the parliamentary elections in October 2019.

Ukraine has held seven parliamentary elections since independence from the Soviet Union. The respective electoral legislation has undergone dozen changes, and three different electoral systems have been in use since 1994. Changes and revisions of individual electoral laws in the run-up to elections are generally regarded in Ukraine as an attempt by the respective ruling political force to gain advantages. There is no question that frequent changes in electoral legislation have a negative impact on trust in the elections as an institution, both among the population and among political actors. In the first free parliamentary elections in 1994, all members of the Verkhovna Rada were initially elected by direct majority voting in single-constituencies. In order to enter parliament, a candidate (either in the first ballot or in a runoff) had to get more than half of the votes cast. The turnout had to be more than 50 percent. These provisions meant that the elections had to be repeated several times in some constituencies and that not all constituencies were represented by a member of parliament even after the newly elected parliament was constituted. In 1998 and 2002, the elected representatives were then elected through a mixed electoral system, in which half of the parliamentary seats were filled by proportional representation according to uniform and rigid party lists, the other half by majority vote in single-constituencies. For the parliamentary elections in 2006 and the early elections in 2007, the legislation then provided for pure proportional representation on the basis of nationwide lists of candidates drawn up by parties and electoral alliances. The last metamorphosis of the electoral system so far took place in 2011 when a new parliamentary election law was passed in the run-up to the parliamentary elections in 2012. This electoral law provided for a return to the mixed electoral system of 1998 and 2002 and was last applied in 2014.

Deficits in the current electoral system

The parliamentary election law passed for the parliamentary elections in 2012, which is still valid today, caused harsh criticism when it was passed. Among other things, it was criticized at the time that the law was passed by the then ruling coalition led by the Party of Regions and with a majority of the opposition's votes in a non-transparent and extremely urgent procedure (see also the Ukraine Analysis No. 99 from January 24th). 2012). In addition, Ukrainian non-governmental organizations specializing in electoral legislation - such as the Committee of Voters of Ukraine (Komitet Wyborziw Ukrajiny / KWU) and OPORA - as well as the European Union and the Venice Commission of the Council of Europe had already spoken out in advance against the reintroduction of the mixed electoral system. The objection to this electoral system has several reasons in the context of the political system in Ukraine. These can be summarized as follows:

Firstly, the mixed electoral system in Ukraine means that many of the votes of Ukrainian voters are not taken into account in the majority election, through which half of the MPs are elected. Unlike in Germany, for example, direct mandates in Ukraine are not counted towards list mandates. This means that majority voting and proportional representation stand side by side in Ukraine and are used without offsetting. This voting system is therefore also referred to as the "trench voting system".

In addition to not taking into account all those votes that are allotted to inferior direct candidates in a simple majority vote, the electoral system secondly means that individual parliamentary groups, in particular those of the respective "party of power", both through direct candidates who are nominated by one party and supposedly independent candidates can be strongly overrepresented compared to the national result. In the context of a political system characterized by corruption, there is the serious problem that the direct election of members of parliament in single-electoral districts favors the use of administrative resources and the purchase of votes because they can be operated more effectively than in a proportional representation. Above all, oligarchs and other financially strong business people can benefit from this, because they use financial resources and "purchase a constituency" to distort political competition and allow themselves or personal representatives to be elected to parliament. This is done primarily through direct mandates who often declare an "independent" candidacy, but join the government majority after the election to secure economic interests. This perpetuates practices that are harmful to democracy, such as corruption and clientelism.

Thirdly, the current proportional representation, through which the other half of the MPs are elected, has also been criticized for years. The lack of consolidation in the Ukrainian party system and inadequate democratic structures within the parties must be taken into account. The compilation of the nationwide party lists is usually highly non-transparent. Because voters only have a nationwide party list en bloc can vote, it must be assumed that in particular those list positions that are below the radar of public and media attention, but are at the same time promising enough to enable entry into parliament, will be traded. The system of rigid party lists thus also represents a vehicle for the exertion of influence by oligarchs and business people and encourages political corruption.

The reform process after the Euromaidan

In order to counter the deficits of the current parliamentary election system, electoral law experts from Ukrainian non-governmental organizations such as OPORA and KWU as well as international organizations - such as the Venice Commission of the Council of Europe and the Office for Democratic Institutions and Human Rights of the OSCE (ODIHR) - are calling for the introduction of a purely proportional representation based on loosely bound regional lists (called "open" lists in Ukraine). In contrast to rigid lists, in which the order of the candidates is determined by party committees, loosely bound lists leave the electorate to decide on the election of a candidate for a party. The preferences expressed by the voters are decisive for the final order of candidates when filling the parliamentary seats.

The idea of ​​a corresponding reform is that the pure proportional representation system could better reflect the will of the electorate and at the same time make the use of administrative resources and the purchase of votes more difficult. Furthermore, regional electoral lists, which give voters the opportunity to prefer certain candidates, could strengthen competition within the party, increase transparency and reduce the attractiveness of selling places on the list. Such an electoral system is also supported by the population. According to a survey by the Razumkov Center in December 2017, 34.5 percent of those questioned are in favor of introducing pure proportional representation with "open" party lists (see Figure 1 at the end of the text). However, 17.2 percent prefer to keep the mixed electoral system. A pure majority vote of direct candidates in single-electoral districts, as was the case in 1994, is supported by 16.1 percent and a pure proportional representation with rigid or "closed" party lists following the example of the 2006 and 2007 parliamentary elections only 5.2 percent.

The call for the introduction of a purely proportional representation system for parliamentary elections is not new. In the wake of the early parliamentary elections in 2007 and in the course of the 2011 electoral reform, the Venice Commission pointed out that the introduction of purely proportional representation in regional constituencies could reduce the disadvantages that both the mixed electoral system and proportional representation in a national constituency would have accompanied. Under the administration of President Yanukovych, however, there was a lack of political will to abolish the mixed electoral system. After all, this had proven itself in the parliamentary elections in 2012 to secure the government majority of the Party of Regions. This system had previously been successfully tested by the Party of Regions in the 2010 local elections through a short-term amendment of the corresponding local election law (see also the Ukraine Analysis No. 82 of November 9, 2010).

As a result of the Euromaidan, the overthrow of Yanukovych and the collapse of the Party of Regions, the prospects for a change in Ukrainian electoral law seemed to have improved, especially with regard to the electoral system for parliamentary elections, also because the reform towards a purely proportional representation with "open" regional lists in the coalition agreement of 2014. At the same time, however, the dilemma that electoral legislation would ultimately have to be reformed by those MPs who were elected to the Verkhovna Rada in 2014 by the existing electoral law and who have benefited from it became apparent quite early on. This is particularly true of the direct candidates. It was not until three years after the parliamentary elections in 2014, in October 2017, when an alliance of various opposition parties, individual MPs and representatives of civil society called for large-scale demonstrations in front of Parliament and - in addition to the creation of an anti-corruption court and the abolition of MPs' immunity - the change of the electoral system as a key reform, the issue of electoral reform in general came on the parliamentary agenda. Two days after this demonstration, three legislative proposals, which had already been registered in December 2014, were placed on Parliament's agenda. All three legislative initiatives, including one that provided for the introduction of pure proportional representation with "open" lists, were rejected at the first reading at the same time.

It seemed all the more surprising that a short time later, on November 7, 2017, the first reading of the draft of a comprehensive, uniform electoral code (see http://w1.c1.rada.gov.ua/pls/zweb2/webproc4_1? Pf3511 = 56671) was accepted. In contrast to the previously adopted new versions of individual electoral laws, this is a uniform codification that defines not only the legal framework for parliamentary elections, but also for local and presidential elections as well as for the work of the Central Electoral Commission and the central voter register. The electoral legislation should thus be harmonized as a whole. The adoption of the electoral law proposed by MPs Andrij Parubij, Leonid Jemez (both from the Popular Front Party) and Oleksandr Chernenko (Petro Poroshenko Bloc), which provides for proportional representation for parliamentary elections and the introduction of "open" lists in regional constituencies, came about primarily for this reason Surprising because only 124 of the total of 226 votes for the draft came from the government coalition (see http://w1.c1.rada.gov.ua/pls/radan_gs09/ns_golos?g_id=15333). Skeptical observers of the process assumed, due to the atypical voting behavior of the MPs, that the parliamentary vote was an "accident" and that especially MPs from the opposition bloc and direct mandates only voted in favor of the draft because of it were convinced that this would not be accepted anyway. At the same time, disillusionment quickly spread after it became known that more than 4,000 amendments to the draft electoral code had been tabled after adoption at first reading. These amendments are now being processed by a working group set up by the responsible committee for legal policy and justice in April 2018. By the end of May this working group had processed around 300 amendments. Only when the working group has examined all the amendments and has submitted a correspondingly revised version of the draft to the committee will it have to vote on the revised draft before it can be submitted to Parliament for the second reading. The parliamentary rules of procedure of the Verkhovna Rada do not stipulate any deadlines by when a referral in the committee or in the parliamentary plenary must take place.

Controversial points in the draft electoral code

The large number of amendments that were tabled after the first reading of the draft electoral code can be interpreted as a tactical measure which the opponents of the reform serve to slow down the reform process. At the same time, however, it must also be stated that the draft of the electoral code was drawn up in 2010 and therefore many provisions need to be changed, as these are no longer in line with current legislation and the political context in which Ukraine is now. These include, for example, provisions on complaint procedures, the procedure for registering voters and the question of how internally displaced persons should exercise their right to vote. In addition, there are several central points of contention or criticism with regard to the provisions on the election of parliament listed in the draft of the electoral code.

This includes, among other things, the question of the level of the threshold clause and the possibility of independent candidates to participate in parliamentary elections. In the course of the parliamentary election legislation of 2011, the threshold clause was increased from 3 to 5 percent. Higher thresholds allow larger parties to benefit and reduce the chances of small parties. The draft of the electoral code now provides for a threshold clause of 4 percent. At the same time, the draft does not provide for the possibility for independent candidates to take part in the elections. Ultimately, the established parties with well-developed structures in the regions would be strengthened.

Another point of contention is the question of the possibilities for women to be elected to parliament. The current percentage of women in the Verkhovna Rada of only about 12 percent is one of the lowest in Europe. A change in the electoral system could have positive effects on a more balanced gender ratio in parliament by abolishing majority voting for direct candidates. At the same time, however, "open" lists also tend to reduce women's opportunities to vote. The same applies to minorities or to technocrats. Current legislation has very weak provisions to increase women's chances of voting. Party lists must therefore consist of at least 30 percent men and women. There are no sanction mechanisms for violations. In addition, there are no regulations on which list places women or men must be placed. The draft of the electoral code promises improvement here by stipulating that only three out of five candidates on the "open" regional party lists may be of the same gender. This would result in a quota of women of at least 40 percent for the regional party lists.Nevertheless, simulations that were created on the basis of the election results of 2014 show that these provisions would also increase the actual proportion of women in the Verkhovna Rada in the worst case to only 20 percent (see https://gallery.mailchimp.com/8a39d40b8b64140d1e69644f5/ files / ab763f52-22e3-41ef-8f73-a462fb9b5a4b / IFES_Ukraine_Reynolds_and_Kovryzhenko_Report_on_ Open_List_PR_v1_2018_04_18_Eng.pdf).

Thirdly, the proposed procedure by which votes are converted into parliamentary seats is controversial. In contrast to most parliamentary electoral systems, the draft Ukrainian electoral code does not stipulate that the number of seats a party can win in a region depends on the number of eligible voters there. Rather, the draft advocates that the number of parliamentary mandates that a party is entitled to in a region is based on the number of votes cast in the region. This would overrepresent parts of the country with high voter turnout and underrepresent parts of the country with lower voter turnout. In the current situation, the Donetsk and Luhansk Oblasts and Kherson Oblast, to which the Autonomous Republic of Crimea is assigned in the draft electoral code, would be negatively affected. In these three regions, due to internal displacement in connection with the war in the Donbas and the annexation of Crimea, the number of registered voters would be significantly higher than the number who could actually participate in a parliamentary election at the moment.

outlook

The introduction of a pure proportional representation with "open" party lists in regional constituencies in parliamentary elections is still one of the decisive reforms that can lead to a sustainable democratization of Ukraine. It is very uncertain whether the electoral system will be changed in time for the next regular parliamentary elections in October 2019. The Council of Europe's Venice Commission recommends that changes to the electoral system should be made at least one year before an election. The fact that a corresponding individual electoral law for parliamentary elections was rejected by parliament in October 2017, but at the same time a complex electoral code was adopted in first reading, has reduced the likelihood that a corresponding change in the electoral system will be passed this year. Nevertheless, the electoral code offers the possibility of harmonizing the previous legal framework. With a view to the planned abolition of the mixed electoral system, it should be noted that this abolition can lead to a better illustration of the will of the electorate and at the same time limit the scope for political corruption and the use of administrative resources.

However, simply changing the electoral system is not a panacea for addressing the weaknesses and problems of Ukraine's political system. After all, every electoral system must always be viewed in its overall political context. So that a change in the electoral system towards a pure proportional representation in regional constituencies does not ultimately only lead to a stronger shift of political corruption from the national to the regional level and so that administrative resources are not used in future to identify certain candidates (then no longer as direct candidates , but as candidates in "open" party lists) to provide advantages, above all a stronger legal regulation of the election campaign and the election campaign funding is required. Better legal framework conditions are also necessary in order to be able to prosecute and punish violations of electoral legislation. A corresponding bill with the number 8270 (see http://w1.c1.rada.gov.ua/pls/zweb2/webproc4_1?pf3511=63864), on which electoral law experts from the Ukrainian non-governmental organization OPORA worked, was recently registered in parliament. It aims to close existing loopholes in the law and is intended to counteract the factual impunity that has existed for serious violations of the electoral law.

The composition and working methods of the Central Election Commission will also be important for the institution of free and fair elections. The seven-year terms of office of 13 of the 15 members of the Central Electoral Commission have already expired since June 2014. In February 2018, President Poroshenko submitted a list of new nominations, which was approved by the responsible parliamentary committee for a vote in the Verkhovna Rada in April 2018. However, this list does not create the prerequisites for a politically balanced composition of the Commission, which plays a key role in the proper conduct of elections: firstly, the President's list of proposals does not contain a representative of the opposition bloc, which is currently the third largest group in Parliament. Second, although all other parliamentary groups and groups are represented in Poroshenko's list of proposals, the presidential party could ultimately control seven of the 15 members of the Central Electoral Commission. So far, however, the president's list of nominations has not received a majority, even within the governing coalition: at the beginning of July, Poroshenko's coalition partner, Popular Front, refused to support the replacement of the Central Electoral Commission in parliament. Since Poroshenko's list of nominations contains one too many candidates, Arseniy Yatsenjuk's party fears that one of their three candidates could lose out in a fighting vote in parliament. How this conflict over the replacement of the Central Electoral Commission will be resolved is unclear. A central electoral commission composed unilaterally in relation to the parties would increase doubts about the institution of elections among the population as well as mistrust among political actors.

Reading tips:

Websites of important NGOs:

  • The International Foundation for Electoral Systems (IFES), http://www.ifes.org
  • Civil Network OPORA, http://www.opora.org.ua/
  • Committee of Voters of Ukraine (Komitet Wyborziw Ukrajiny / KWU), http://www.cvu.org.ua

The Ukraine analyzes are jointly published by the Research Center for Eastern Europe at the University of Bremen, the German Society for Eastern European Studies, the German Poland Institute, the Leibniz Institute for Agricultural Development in Transition Economies, the Leibniz Institute for East and Southeast European Research and the Center for Eastern European and International Studies (ZOiS) gGmbH. The bpb publishes them as a licensed edition.