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Rigid Lines and Elections in Donbas

Elections in Donbas are to be held. 

Sooner or later, under the Minsk Agreements or otherwise, if, of course, the authorities and society seek to return territories and people. 

Local self-government bodies are not appointed by senior authorities, from outside or from abroad, they are elected by the residents of territorial communities. IRL. With an identical electoral system for all regions of Ukraine and without any discrimination as to the residency requirement for the voters and candidates. No pressure, no threats, no intimidation or deception. And this is obviously a problem. The election does not mean a resolution of the conflict, but a mere final stage of return of the temporarily occupied territories to Ukraine in terms of legal framework.

On October 7, 2019, Anastacio Matavel, the leader of a non-governmental election observation mission, was killed in Gaza Province in southern Mozambique. He left the premises of the building where activists were trained before the elections. 10 bullets were fired in Anastacio. The attackers fled by car and caused a major accident, in which 2 of them were killed and the other two fled. In 2 hours, the human rights activist died in a local hospital. This was done to suspend the work of an independent mission that suspected 300,000 “ghost voters” on the voter lists and planned to carefully investigate the validity of the suspicions on the election day.

Unfortunately for the world and fortunately for us, we are accustomed to more civilized confrontations during elections, and international standards are identical for peace states and territories, as well as areas of armed conflict. The red lines claimed by the authorities at the highest level should not be drawn in disappearing ink, as Senator John McCain once blamed President Barack Obama on the absence of tough reactions after the use of chemical weapons by government forces in Syria. Red lines are the lines that outline and defend with no allowance being made for circumstances, moods of our Western partners or Russians.

The elections should be organized in accordance with Ukrainian legislation and OSCE standards. This is enshrined in the Minsk Agreements and wide discussions of the Steinmeier’s formula. For some, these are just words, and for professionals who understand that suffrage is an integral part of the UN Universal Declaration of Human Rights, something can be read between the lines and in reference to European standards. Each of the 57 OSCE Member States has undertaken to equally interpret and apply the principles of fair, democratic, competitive and free elections. And every country must respect the right of its citizens to participate in governing the country either directly or through elected representatives in genuine elections. However, as early as 1990, the OSCE States recognized and enshrined in the Copenhagen Document “their responsibility to defend and protect, in accordance with their laws, their international human rights obligations and their international commitments, the democratic order freely established through the will of the people against the activities of persons, groups or organizations that engage in or refuse to renounce terrorism or violence aimed at the overthrow of that order or of that of another participating State”.  That is, 29 years ago, the Organization for Security and Co-operation in Europe and all the member states recognized that security is not a matter of weather, but of terrorism, violence and attempts to destroy the democratic order through participation or for the benefit of a third party. These proved to be oracular utterances. Probably, if this document had been adopted in the 21st century, we would have a strongly-worded position against a country that managed to master the methods of influencing states, territories, peoples not only by means of direct military aggression, but also by interference with elections, cyberattacks and total propaganda, to which the open civilized world is as susceptible as never before.

The OSCE faces enormous challenges in making joint decisions as an organization comprised of states with different values. The OSCE uses the principle of decision-making by consensus or by unanimous consent of all parties. The number of approved framework documents is minimal, the organization does not have as much as articles of association. Nonetheless, election standards make it possible to evaluate the preparation for election day and the very expression of will. Never before has OSCE-ODIHR report (Office for Democratic Institutions and Human Rights, Warsaw) been so important in establishing a specific local self-government order in certain areas of Donetsk and Luhansk regions. Therefore, this challenge is immense not only for Ukraine, but also for the organization itself, which can become a target of Russian propaganda, suffer reputational blow and complete marginalization.

It is possible that this is one of the added effects that the Russian Federation expects from the war in our territory.

At the same time, Ukraine cannot afford to embark on a political phase without a clear understanding of how well the homework has been done. Donbas should be returned to the jurisdiction of the state step-by-step in order to protect the rights and freedoms of citizens who have been held hostage there by the aggressor country and its middle and lower level executives on the ground. Simplifying the picture of those who remained there only helps the Russian Federation to build a clear picture of “civil conflict”. Not only militants, but also citizens of Ukraine, who are governed and cornered by Russia, are living and dying there. And Russia simply cannot accept our country’s independence provoking emotional turmoil first in every corner of its country and then in Ukraine. The occupied Donbas is characterized not only by the Russian army and finances, assimilation passports, propaganda against Ukraine, but also the rejection of the new government, president and “mono” majority. The Ukrainian authorities emotionally, sometimes flirtatiously, state that they are not self-perpetuating. This does no credit to them, as they have many powers and resources not to turn the state into ruin and to go through the Russian minefield being well-informed, prepared and mobilized. We have no other country and we will never have one if we fail to hold on now. In this matter, the arguments and confrontation between politicians are very symptomatic. A state cannot negotiate effectively and stay within the red lines unless the political class finally feels its unprecedented responsibility for getting on with each other in the President-Parliament-Society triangle. Only Russia will be the final beneficiary of the confrontation.

The Mannerheim Line

The citizens of Ukraine are at the heart as a source of power. 18-year-olds are the parties to the electoral process who participate in the campaign directly or as the representatives of political parties. Not only voters but also candidates, commission members and observers are participants in the election process.

At the same time, the Constitution (Article 37) clearly states that the formation and activities of political parties and organizations whose program goals and actions are aimed at liquidating Ukraine’s independence, changing the constitutional order through violence, violating sovereignty and territorial integrity, undermining its security, promoting war and violence are prohibited. The compliance of elections with the Ukrainian law should also be ensured by the Basic Law, and not just the specific one. While Russia’s strategy is quite predictable in this matter, and it will use militants for the purpose of demonstrating civil strife, Ukraine should be concerned about preventing such groups from being institutionalized in the political space under the Constitution. And this is not a political whim of the current elites at Bankova or Hrushevskoho Streets, but rather a demand on the state and its obligation enshrined in the Constitution and OSCE election standards. All citizens are equal before the law, not lawlessness. End of story. If one begins his or her election campaign with the antithesis of the aforementioned article of the Constitution, this poses a threat to peacekeeping, to the civilian population who want to end the hostilities and gunfights. Therefore, such groups should be removed from the political campaign on our own and with the involvement of international professional expertise. The OSCE only observes the elections and cannot provide expertise and technical support for the campaign, as there will be a likely conflict of interest. At the same time, no one prohibits the creation of an international panel with the relevant evaluation powers, which will give ad hoc opinions on the election participants, their programs, and the content of campaign materials. This is not a tactical and technical aspect, but an independent assessment of the participants and events that will form the basis of official decisions to be made by the supreme body of the electoral process administration, consisting exclusively of citizens of Ukraine, on the registration and deregistration of candidates and parties. This group may include invited experts on election issues and political parties of the Venice Commission, the UN, and there might be a need to engage an EU electoral mission that does not work in the OSCE region, but we should give it a try.

Equal and free

Random enforcement of the law, exclusive conditions for particular groups, or intentional interference with opponents is a violation of the principle of equality in the electoral process. Fair elections are not about ballot tabulation after they are cast in transparent boxes, but about equal conditions for participants, regardless of age, gender, political beliefs, access to material resources. These conditions should be ensured in advance rather than amid the political conflict during the election stage. A third party, for example, a special monitoring and analysis group of international organizations, which are not even partially funded by the aggressor country, should evaluate the election situation and issue opinions and recommendations on specific adjustments for Russia and Ukraine. The analysis should focus on non-discrimination and hate speech, freedom of speech, unhindered access of potential candidates to the voters, the activity of the media on a full-fledged basis not later than one year before the start of the election process. Propaganda should be eliminated from the information field altogether, as this factor constitutes a significant impediment to the freedom of political without any pressure, intimidation and deception.

Among other things, equal conditions are not possible without transparency of election funding and election campaigning. All expenses for the organization of elections must be paid in a non-cash form through an official banking system. The latter requires its restoration at the level of infrastructure and qualified personnel, the return of the Ukrainian hryvnia as the official currency in the territories of the certain districts of Donetsk and Luhansk regions where the Russian ruble is currently used. The legislation of Ukraine prohibits the financing of political parties and election campaigns, or even participation in campaigning by foreign citizens. Here, the issue of passportization and acquisition of citizenship of the Russian Federation under the simplified system by the residents of certain districts of Donetsk and Luhansk regions should be addressed. But the biggest problem is the issuance of Ukrainian passports to the young people who have Ukrainian  birth certificates but have not received an official Ukrainian passport. The Accounting Chamber of Ukraine oversees the budgetary expenditures on elections, and the National Anti-Corruption Agency analyzes the election fund reports in the structure of annual reports of political parties (if they were filled in by the latter). Also important is the role of banks, which must record and inform election fund managers about the receipt of funds from their anonymous donors and foreign nationals. Campaign expenditures from outside the electoral funds are not allowed, as they cannot be tracked, which undermines confidence in the electoral process. It should also be kept in mind that a criminal offense is a violation of the procedure for financing political parties and election campaigning. It is also necessary, with the help of our Western partners, to develop rules and a mechanism to suspend Russian funding for political groups and potential elections, as well as to ensure monitoring with harsh sanctions in the event of Russian funds being detected in these and any other elections. All citizens of Ukraine have equal voting rights and other rights; the imposition of sanctions cannot be simplified for the election process in the CDDLR, so the regulations of the Criminal Code of Ukraine on crimes against electoral rights should be updated as required by the public since 2016.

Free elections are elections where a citizen can form a political position, there is no compulsion to participate or not participate in the elections, everyone can freely voice their positions and the effective system opposes the violation. Therefore, not only campaigns with the freedom of speech and lack of administrative resources (which will unlikely support Ukraine) should be free, but also an effective law enforcement system. Obviously, its transitional format requires skilled police officers who will be responsible not only for public order, conflict prevention (dialogue police), but also for election crime investigations. We should not fantasize about the return of the Ukrainian police with full powers in short term, however, this must be sought. Interpol (the second largest organization in the world after UN, with 194 member states) should be engaged to carry out coordination functions; the mandate of the European Union Security Mission, which already operates in Ukraine-controlled territory, should be further extended. It will take up to two years to deploy the mission, approve the mandate, seek funding, and conduct training. Without this, it is also difficult to imagine the exercise of the right to peaceful assembly, which is a sign of fair and free elections.

The principle of respect for fundamental rights and freedoms, among other things, highlights the issue of participation in voting for internally displaced persons and the preparation of voter lists. The latter should be further verified manually through an official census in the territory of the temporarily occupied districts of Donbas, which should be integrated and coordinated with the system of accounting for internally displaced persons, as well as the State Voter Register, which can be managed only by the Ukrainian Central Election Commission. The latter has no right to transfer access to personal data to third parties, including international ones. At the same time, the state and its partners, which can provide international technical assistance, should carry out a large-scale awareness-raising campaign on such a census and mobilize citizens as much as possible to cooperate. It is necessary to mobilize internally displaced persons throughout Ukraine to participate in elections as voters and candidates. However, freedom of participation in voting should include various options for exercising suffrage, namely: change the election address to the community where the person resided during the conflict and not participate in the election of other communities; apply to the state registry departments throughout the country to put them on the voter lists before the election day in certain districts of Donbas; vote by means of physical return home or remotely at specially established polling stations; not participate in elections at their sole discretion.

An effective system for appealing electoral disputes and transitional justice is essential in order to ensure that the process is legal. The functioning of the judicial branch and its transitional format in Donbas should be one of the red lines, since the decision on the electoral process, protection of the legitimate interests of the participants must be made in the name of the state of Ukraine. Judges will face the biggest challenge, because they will have to deal with the issue of amnesty for those who lived under occupation and did not commit any unlawful acts, or the issue of sentencing war criminals. To ensure full independence, they must already be prepared to perform such functions under the protection of legitimate government forces. Our Western partners at the highest level have repeatedly reiterated their support for Ukraine’s sovereignty, and the support of the Ukrainian judiciary will test this statement. No commission, independent expert group, international panel of judges should assume the functions of a court other than those international processes already underway, in particular in The Hague, and concerning the conviction of the Russian Federation.

Equally important is that since 2012, no elections have been held in the territories of certain Donbas districts, so voters and potential candidates and members of the commissions should receive a large amount of high-quality educational information on election rules and procedures. At the same time, it is the responsibility of the Ministry of Justice of Ukraine and national parties to legally re-register local political organizations.

Not only Ukrainian journalists should return to Donbas physically, but also the media, while local ones should be evaluated by an independent body and either cease their activities or act within the Ukrainian legal framework. Instead, the Russian media must stop their aggressive work, which is aimed not only at the internal audience but also at the Ukrainian voter.

Instead of conclusions

This article is only the beginning of a polylogue on the prerequisites and preparatory measures for real steps forward in moving to the political stage of conflict resolution and ending the war. It does not have any military component, the content of election and local self-government law, pacification policies, forms of reintegration, details of forms and content of transitional justice, etc. But even an indirect reference to international standards and principles shows that we need at least two years of effective process without any interference and manipulation.

Olha Aivazovska for the Dzerkalo Tyzhnia Newspaper

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