Article by: Adrian Karmazyn
Just days before Ukraine held local elections experts gathered under the auspices of the Transatlantic Task Force on Ukraine for an online discussion on the state of Ukrainian reforms and politics. Experts stressed that the stakes are high in this local election, as oligarchs and pro-Russian forces are seen re-entering politics and while promising steps for reforms were made in the first months of Zelenskyy’s presidency, current prospects for such crucial sectors as the judicial and anti-corruption reforms are uncertain.
Oligarchs re-entrenching themselves back into politics
In his opening remarks, Jonathan Katz, a Senior Fellow and Director of Democracy Initiatives at the German Marshall Fund, said that “this is obviously a high-stakes election for Ukraine.” It is happening in the context of decentralization and as Ukraine’s international partners are concerned about the pandemic and “the impact of
disinformation, the impact of those parties within Ukraine that are closer to Moscow, but also oligarchs re-entrenching themselves back into politics.”
He noted that this series of transatlantic video-link discussions engaging experts in Washington, Kyiv, and Brussels was launched two years ago, in October 2018, as Ukraine began its presidential election campaign amid a stalling of reform efforts.
Mr. Katz added that there is again “concern amongst Ukraine’s partners about the reform effort” and that even having a parliamentary majority “the Zelenskyy government is not moving forward in the way that it should.”
Orest Deychakiwsky, Vice-Chair of the Board of the U.S.- Ukraine Foundation and a former senior policy advisor at the Helsinki Commission, noted that the Organization for Security and Cooperation in Europe, which normally focuses on national, not local elections, is fielding a mission to Ukraine for these elections – recognizing their importance.
He said that “there is a widespread perception here that judicial and anti-corruption reforms – both so essential to the rule of law — are faltering and oligarchic forces, especially those linked to Moscow, are enjoying a comeback – not that they ever completely went away.”
Mr. Deychakiwsky continued by saying that: “Those of us who have followed Ukraine for a long time fear that we’re seeing the repeat of an old movie – namely, a new president is elected, reforms are promised and some are even delivered, and then they stall and then there is even backsliding. We’re seeing this movie, perhaps, again. In the first more-or-less six months of the Zelenskyy Administration, especially with the new Rada, we saw progress. But since March, especially with the removal of reformers from key positions, the trajectory appears to be heading in the wrong direction. Frankly, one wonders whether Zelenskyy is squandering the decisive mandate that he received last year from the Ukrainian people.”
Ukraine’s local elections priority for the EU
Providing a Brussels perspective, Bruno Lété, Senior Fellow for Security and Defense at the German Marshall Fund, said that “Ukraine and the [local] elections are a priority for the EU and the political agenda, also by the simple fact that the European Union is already so much invested in Ukraine.”
Since 2014, over 15 billion euros have been given to Ukraine in terms of loans and grants, he explained, and there is optimism because “Ukraine has achieved so much” when it comes to reforms, public finance, the banking sector, energy and with many reforms also happening at the local level through decentralization.
However, Mr. Lete noted that “it looks like Zelenskyy’s political party is increasingly struggling to implement reforms” and that may be reflected in the results of the local elections since “none of the leading candidates or incumbents in Ukraine’s major cities will be running under a Zelenskyy party banner,” so the election results “may render Zelenskyy’s ability to implement reforms less secure.”
For the EU it is important to know that Zelenskyy’s reforms are backed by the population down to the local level, he said.
“No reasons to worry,” says Servant of the People MP
Yelyzaveta Yasko, a member of parliament, shared her perspective on Ukraine’s local elections, reforms, and the recent EU-Ukraine summit. She belongs to the president’s Servant of the People (Sluha Narodu) party and serves on the parliamentary committee on foreign relations.
She said that her party is a strong proponent of decentralization and in this year’s local elections we are seeing a uniquely competitive and dynamic campaign. Ms. Yasko acknowledged that according to the polls her Servant of the People party is losing some support.
But “the most dangerous thing is that, unfortunately, pro-Russian forces gain more and more support, especially in the East and in the South.” She called it “the number one danger and risk that we are currently facing,” adding that “we know what kind of values the people of Medvedchuk bring – that is really, really dangerous for Ukraine.”
Speaking about the recent EU-Ukraine summit she cited important achievements in terms of reaffirming EU-Ukraine cooperation and integration, deepening trade, and having the EU restate its commitment to Ukraine’s territorial integrity and nonrecognition of the annexation of Crimea and condemnation of Russian aggression in the Donbas.
When asked about how attempts to undermine the independence of the National Bank of Ukraine (NBU) and the National Anti-Corruption Bureau of Ukraine (NABU) might impact further assistance from the IMF and EU, Ms. Yasko acknowledged that “there are disagreements sometimes inside our team on this” but seemed confident that anti-corruption and judicial reforms will continue and that the independence of NBU and NABU will be preserved despite pressure from some interests. “I think there are no reasons, really, to worry,” she said.
However, representatives of the NGO groups that spoke during the video conference are, in fact, worried about President Zelenskyy’s leadership in thwarting oligarchs, implementing reforms that will strengthen the independence of the courts and anti-corruption infrastructure, and sustain the sound fiscal policy of the NBU.
Reforming High Council of Justice crucial step in judicial reform
For example, Halyna Chyzhyk, a judicial reform expert with the Anticorruption Action Centre said that: “Unfortunately we see that the course of reforms and especially judicial reform in Ukraine is moving in a negative direction. For the last year the political landscape in Ukraine has changed” in a major way and, notably, “four months have passed since Ukraine signed a memorandum with the IMF, but still relevant bills concerning judicial reform have not been even submitted to the parliament.”
According to the memorandum, by the end of October, the relevant legislation has to be adopted.
“A year ago we saw that the president was really reform-oriented and in fact, he submitted a very good law on judicial reform to the parliament – it concerned the reform of judicial governance bodies, a High Qualification Commission of Judges and the High Council of Justice — but unfortunately the implementation of this law was blocked” by
the High Council of Justice itself and afterward ruled unconstitutional by the Constitutional Court.
Unless Ukraine properly reforms the High Council of Justice, the court system cannot be reformed because the HCJ decides on appointments and dismissal of judges, and takes disciplinary action.
Now we are in a situation, Halyna Chyzhyk says, when we need international partners to stress the importance of a proper and complex judicial reform which is a precondition for further cooperation with Ukraine. And, importantly, the joint statement of the European Union and Ukraine, which was issued after the latest summit in Brussels, specifically mentions the need for the reform of the High Council of Justice (HCJ) and not just generalities about supporting reform.
The lessons learned from the past six years, Ms. Chyzhyk continued, is that unless Ukraine properly reforms this body the court system cannot be reformed because the HCJ decides on appointments and dismissal of judges, takes disciplinary action – so the whole Ukrainian judiciary depends on decisions that are taken specifically in the High Council of Justice.
Over the past four years, she says, when judges made illegal or politically motivated decisions they were not dismissed. At the same time, they were promoted, even to the Supreme Court.
As Halyna Chyzyk explains, the IMF-Ukraine June memorandum suggests a model for renewing the membership of the High Council of Justice that would ensure its integrity, namely by establishing an independent panel which would include international experts that would make sure that current and future HCJ members meet standards of integrity.
If HCJ members meet standards of integrity, they are certain to appoint like-minded judges throughout the judicial system and dismiss those who are corrupt.
This model would not contradict Ukraine’s constitution. With the IMF deadline for adoption of such measures looming and with competing approaches in the Presidential Administration, cabinet and parliament, “the only working solution for judicial reform is a complex reform of the High Council of Justice and High Qualification Commission of Judges.”
This can only happen if international experts are granted a crucial role in the process, says Ms. Chyzhyk.
Of course, she adds, oligarchs “are interested in having corruption in courts and having judges who will consider cases in their favor” so they “do not want real judicial reform. We now have a situation when civil society along with international partners try to implement judicial reform — but the judicial mafia and oligarchs have allies in the President’s office and even in the president’s team, and they are doing their best trying to oppose reform.”
Prospects for anti-corruption reform uncertain
Andrii Borovyk, Executive Director of Transparency International Ukraine, also stressed the importance of Ukrainian civil society and international partners in driving the reform agenda in Ukraine: “Again, the main engine for the anti-corruption reforms is the international community, international organizations and civil society.”
Last autumn was “really good” with “lots of legislative changes” related to anti-corruption efforts and illicit enrichment being adopted in parliament. “But this was a year ago and now we have a reverse situation regarding anti-corruption infrastructure and a much higher level of uncertainty. Judicial reform is not done.” And there is not a reliable majority in parliament to support reforms.
Mr. Borovyk also said: “In my opinion oligarchs and pro-Russian forces usually act together and they have the same technical aim – it is to ruin anti-corruption infrastructure.”
He also sees a huge increase in media attacks on anti-corruption efforts and reformers but thinks they are resilient and will be able to withstand the pressure.
New local elections legislature adopted at the eleventh hour
Regarding the October 25th local elections, Olha Aivazovksa, Coordinator of Political Programs and Chair of the Board, Civil Network Opora, explained that one of the biggest complications is that parliament’s passage of a new 400-page electoral code just this past July has afforded election officials and candidates little time to master the new regulations: “That’s why many politically active people on the ground who wanted to participate in this election didn’t know [what] these rules will look like because we are talking not only about procedures, we are talking about a new electoral system less than two months before the start of official campaigning.”
She also expressed dissatisfaction with new rules that require registration of candidates through parties, thus curtailing the participation of independent candidates, and accused President Zelenskyy of using administrative resources to support his Servant of the People party in the election and called into question the legitimacy of a presidential poll that will take place within the framework of the election. She also cast doubt on whether election workers have sufficient personal protective equipment and training to handle voting during the coronavirus pandemic.
On the positive side, Ms. Aivazovska welcomed new requirements stipulating that at least 40% of candidates fielded by a party must be women and provisions making it easier for internally displaced persons from the war in the Donbas to vote where they currently reside.
Denys Kovryzhenko, Senior Legal Adviser, Ukraine, International Foundation for Electoral Systems, echoed some of the sentiments: “Currently we have a more-or-less effective legal framework that allows for free and democratic elections; however, it suffers from significant flaws as it was adopted at the 11th hour before the start of the electoral process.”
He sees improvements in procedures in vote counting, tabulation, and reporting of election results, and regarding the introduction of a gender quota, including sanctions for non-compliance. Still, there are flaws in campaign finance regulation and it remains to be seen how COVID will impact voter turnout, he said.
As Kyiv moderator Denys Davydenko of the Reanimation Package of Reforms stated: “These elections matter!” And, fortunately, millions of Ukrainians seem to embrace that attitude in every election held during the past three decades of independence.
Adrian Karmazyn, the author of this article, is Vice-Chair of the Friends of Ukraine Network Democracy and Civil Society Task Force.