CG/BUR (1) 11
Report of the CLRAE Mission to observe the municipal and regional elections in Ukraine (26 June 1994)
The Foreign Ministry of the Ukraine sent a letter to the Secretary General of the Council of Europe on 25 May last in which it invited the Council of Europe to monitor the presidential, local and regional elections due to take place in that country on June 26, 1994.
Composition of the CLRAE mission
Following this invitation, the Bureau of the Congress of Local and Regional Authorities of Europe decided on 3 June to send a mission. Five members of the CLRAE who had expressed their interest in participating in such a mission were appointed
· Mrs Olga Bennett (Ireland)
· Mrs Josephine Farrington (United Kingdom)
· Mrs Zyta Gilowska (Poland)
· Mr Alain Chenard (France)
· Mr Anthony Haggipavlu (Cyprus)
Mr Grau Tanner travelled with the delegation in his capacity as member of the CLRAE secretariat.
Several polls were to coincide on election day: the presidential elections and a series of local and regional elections. For each of the three administrative levels (city, district, and oblast) voters were called to elect a number of councillors, on the one hand, and, on the other hand, the President of the local or regional authority.
The number of international observers present at the election was much smaller than that of the previous legislative election held in March. All in all, according to the Central Electoral Commission, some two hundred and fifty observers had requested credentials from the Ukrainian authorities, compared to more than six hundred on the previous occasion.
The Presidential election attracted the most attention both from the electorate and from the media. There are two reasons to explain this: On the one hand, the parliamentary elections held earlier this year have not yet brought about a clear result. Some seats in the Parliament remain vacant and a majority of the elected MPs have run as independent candidates. Thus the result of the presidential election is seen as a key factor which may clarify the country's political future. This is of particular importance as the two main contenders hold conflicting views concerning economic integration with the Commonwealth of Independent States, an issue which some see as a threat to Ukraine's recent independence and others consider a basic prerequisite for economic recovery. International media reflected this mood and focused mainly on the presidential poll. Only the European Wall Street Journal of Friday, June 24, made a reference to the importance of what it called regional elections.
On top of being overshadowed by the presidential elections, the second reason for the relative lack of interest in the local and regional elections is the voters' perception of these authorities as lacking effective power. It is not clear what the functions of local and regional authorities are. In spite of the delegation's requests, it was impossible to obtain a copy of the law on territorial administration (if there is one). Furthermore, local and regional authorities seem to suffer from a serious lack of financial resources. In a country which is undergoing a deep economic crisis, the electorate does not attach much importance to a poor authority.
The working group in charge of international observers
As for previous elections, the Ukrainian authorities set up a special ad hoc working group in charge of organising the visit of foreign observers, chaired by Mr Evgenyi Novitsky. It is to be noted that none of the officials in the working group spoke any languages apart from Russian -and Ukrainian. The most experienced interpreters we met were two twenty-year-old university students. The Working Group could not provide us with an official translation of the electoral law either.
This made our mission all the more difficult. Prior to the delegation's departure to Kiev, the Working Group provided the CLRAE with very vague information. It was sent very late, too. Moreover, despite the Working Group's written assurances in this respect, they had not organised one single meeting with political parties and electoral commissions. In fact, upon arrival in Kiev, we were kindly driven to our hotel where our hosts bad us good-bye and left without any further explanations. Our questions about the promised schedule went unanswered.
In view of the situation, the delegation contacted the Council of Europe Department at the Foreign Ministry, which in turn managed to improvise a meeting with the Working Group and the Central Electoral Commission on Friday afternoon. The delegation wishes to record its sincerest gratitude to Mr Sergei Kislitsa, a junior diplomat of the Ministry's Council of Europe Department. His assistance proved essential for the mission's success.
A confusing electoral system
Both the electoral system in Ukraine and the administrative structure responsible for enforcing it are extremely confusing - at least as far as these elections are concerned.
Two sets of laws regulate the electoral procedure. One of them deals with the presidential election and another with the local and regional ones ("Law of Ukraine on elections of deputies and chairpersons of village, settlement, raion, city, city raion and oblast councils"). There are significant differences between both of them, e.g. as to quorums required to validate the election. To make things easier, the Ukrainian Parliament amended some articles of the latter a week before the election (see infra).
Furthermore, the bodies responsible for implementing the electoral law follow different hierarchical structures. In both cases, the basic body is the polling station's electoral commission, which has to apply both laws on the election of the president and on local and regional elections. But the similarity ends there. As far as the presidential election is concerned, the next echelon is formed by 27 territorial electoral commissions, which in turn depend on the Central Electoral Commission in Kiev. As far as the local and regional electoral process is concerned, the body which comes above the polling station commission is the "okruh" electoral commission. The highest layer is made up of the 27 territorial commissions.
It was rather shocking to hear from Mr Yemets, Head of the Central Electoral Commission, that the Central Electoral Commission was not competent to deal with the local and regional elections. Why, then, did it issue the delegation's credentials? (By the way, these credentials were for observers to the presidential elections and did not contain any reference to the local and regional ones). And, if it was not competent, who was? Yet the Central Electoral Commission could not tell the CLRAE delegation whether there was an organ responsible for coordinating the 27 territorial committees and making sure that the electoral procedure was uniformly applied. The delegation's enquiries about who would listen to any complaints regarding the local elections went equally unanswered. Article 46.4 of the Law on Local and Regional Elections establishes that such complaints should be lodged with the territorial election committee, whose ruling can be appealed before a court of justice. Indeed, there is no reference to such a co-ordinating election committee, and hence there is room for an uneven implementation of the Law.
As far as the local and regional elections are concerned, it is worth noting that the law sets out a double requirement for the election of a candidate to the Chair of a Council to be valid. On the one hand, the minimum turnout is set at fifty percent of the registered voters. On the other hand, candidates to the Chair of a local or regional council must, on top of that, receive votes representing at least 25% of the registered voters in order to be declared elected. Candidates to the councils must only get a majority of the votes, but a runoff election is to be scheduled if there are more than two candidates running.
The procedure did not confuse foreign observers alone, but also the electorate. All in all, voters were required to cast up to seven ballot papers at the same time. In fact, the delegation observed that every citizen needed from five to seven minutes on average to vote.
Schedule of meetings on Saturday 25th June
The delegation managed to establish a schedule of meetings on Saturday 25th without the Working Group's help.
Meeting with IFES
On Saturday morning, the delegation met with a team of American legal experts working for the International Foundation of Electoral Systems, a non-profit NGO which has worked as a legal consultant to the Ukrainian Government. IFES has an office in Kiev and has been following the democratic process in Ukraine for quite some time. Their legal team is made up of Mr Bohdan Futey, Judge, United States Court of Federal Claims, Mr Randall Rader, Circuit Judge, United States Court of Appeals for the Federal Circuit and Mr Stephen Nix, an international lawyer of the Baker & Hostetler law firm in Washington DC.
The delegation was briefed on both the formal and practical aspects of the Ukrainian electoral system, of which the American legal team had a thorough knowledge. Their insight into the Ukrainian political situation and particularly the problems found in the implementation of the electoral procedure proved to be extremely helpful. IFES also provided the delegation with plenty of documents in English which made our work much easier.
Meeting with the Central Kiev Raion Electoral Commission
In the early afternoon, the delegation met with the Central Kiev Raion's Electoral Commission, which is responsible for organising the elections in downtown Kiev, an area with a population of around 600,000 people. Prof. Selivanov, Head of the Raion Commission, and his two assistants showed the same lack of co-operative spirit as the Central Electoral Commission did the day before.
The CLRAE delegation was warmly welcomed to their office, where it was informed that the Electoral Commission did not expect the slightest political, let alone technical problem on or after election day. Nor could they provide the delegation with an official list of the nineteen polling stations they were responsible for.
Meeting with the Socialist Party
The CLRAE delegation met next with two senior members of the Socialist Party, which at present holds fourteen seats in the Parliament and is Ukraine's fourth most voted one. The meeting took place in the afternoon at the headquarters of the Standing Committee of the Parliament of Ukraine - not at the party's headquarters.
The party officials insisted that their party should not be viewed as a reactionary party and that it did not defend a totalitarian platform. This, they said, was a common feature of all the parties belonging to what they called "the left block", which would include the Communist Party.
No particular complaints were expressed about the procedure established for the election. However, the officials expected some violations to take place and expressed their concern that a large number of violations may alter the results.
The main accusation made by the Socialist Party regarded the way media coverage was being granted. According to them, Ukraine's state-run television was granting unequal coverage to the various candidates and was making blatant propaganda for Mr Kravchuk. This statement seemed to be in line with similar accusations made by the international press.
The delegation informed the two party officials of the Kiev Election Commission's refusal to hand us any information regarding the location of polling station in its constituency. They appeared to be shocked and offered the delegation a complete list of their contacts in the various constituencies, while inviting us to meet with them.
Meeting with the Ukrainian Republican Party
At two o'clock the delegation met with Mr Mykhailo Horyn, Leader of the Ukrainian Republican Party, and a group of four high ranking officials of this party at its Kiev headquarters. The Ukrainian Republican Party is a small party of the opposition. At present it has eight MPs, which makes it the fifth most voted party in the last parliamentary elections.
The party officials expressed their opinion of the present electoral system in a very frank way. For the first time, the delegation heard very concrete accusations of fraud in the last parliamentary elections and was given a detailed description of some of the methods which, according to the party, may be used to falsify the results, and which deal mostly with the way votes are counted (for instance, in some polling stations the minutes of the election are said to have been written with a pencil). They also complained that long-established political networks still control the electoral administration in most regions. Finally, they accused the Central Electoral Commission of turning down the complaints they had addressed to it by the party without studying them.
The CLRAE delegation listened to these accusations and even agreed to be handed a document in Ukrainian in which are listed a series of accusations of fraud. The CLRAE delegation, however, informed the party that it had come to Ukraine to monitor the local elections, not to judge the fairness of the last parliamentary elections, which our hosts understood and accepted.
As to the coming elections, the party's officials raised their concern that more irregularities may take place during these elections and pointed out the Zytomir oblast as an area in which they might be more frequent. They also complained that they had been unable to gain any access to the media for the last two days.
Election day - June 26
The law on local elections required polling stations to be open from 7 am until 8 p.m. Because of its complexity, the counting of the votes was expected to last for several hours, in some cases until late in the morning.
The CLRAE delegation, accompanied by three interpreters, split into three different teams. They set off for different polling stations in Kiev city in order to attend their opening and make sure that ballot boxes were duly sealed according to the legal requirements. After this, they travelled in different directions and visited polling stations at random and without announcing their visit beforehand. All in all, the delegation visited thirty-five polling stations.
Mr Haggipavlu and Mrs Farrington set off for Zytomir and then travelled north to the Chernobyl exclusion zone. They visited nine polling stations in Kiev, Berezovski, Zytomir, Korostein, Naradici, Poleskoja, and Dymer, and attended the first stages of the counting in Vichnjovoje near Kiev, before heading back for the capital.
Mrs Bennett and Mrs Gilowska drove eastward along the Poltava road. They visited fourteen polling stations in Kiev, Borispol, Berezan, Sernionovka, Leliakan, Jagotyn, Pereiaslav, and Rohotiv.
Mr Chenard and Mr Grau Tanner drove southwards towards Belaja Cerkov, then east to Zytomir where they attended the closing of the polling station. They also held meetings with the okruh election committees of Belaja Cerkov and Zytomir. Among the polling stations they visited was one located inside a military base in Kalinivka, south of Kiev. They visited eleven polling stations and followed a mobile polling box in the Belaja Cerkov district.
The CLRAE observers were, generally speaking, welcomed at the polling stations they visited. At the military base in Kalinivka, it took some lengthy negotiations to convince the officers in charge of the base's security to allow two civilian foreign observers in, but eventually all obstacles to their presence were removed.
The CLRAE observers met again in Kiev around 11 p.m. in order to exchange their impressions.
On Monday, June 27, the delegation met again with the IFES legal team in order to compare notes. Some telephone contacts with embassies of member states were established for the same purpose.
In view of the complexity of the elections, the delegation decided not to take part in the press conferences organised by the Ukrainian Parliament and the Ministry of Foreign Affairs on Monday.
During their visits, the members of the CLRAE team did not find evidence of manipulative fraud but observed a series of irregularities which should be taken into account.
Membership of the local electoral committees
One outstanding problem with the Ukrainian electoral law is the composition of the local electoral committees. According to article 18 of the Law on Local Elections, polling station
commissions shall be formed by the Council or executive body of a village, settlement, city, raion with consideration of the suggestions of local branches of parties, public organisations, labour collectives which operate in the appropriate territory, and voter groups. The law thus requires a mere consultation with such groups or political parties, but nothing in the law establishes a proportion as to their representation within the commission. In fact, nothing prevents the local .authority from setting up a thoroughly homogeneous electoral commission.
In most of the polling stations the delegation visited, and particularly in rural areas, electoral commissions were made Lip of representatives of a labour committee elected by the members of that labour committee. In some cases all the commission's members came from the workers' committee of the village's only factory, or from its only school. The delegation deemed this a debatable practice, as it opens the possibility of exerting undue influence on the electoral commission. An alternative method of selection of the commission's members (e.g. random selection among listed voters) would be desirable in order to strengthen the electoral system.
Observers from political parties and candidates
Linked to the problem of local electoral commissions is the small number of independent observers present at polling stations. Although the law allows independent observers appointed by political parties and candidates to be present during the voting and the counting, the team found very few of them at the polling stations it visited. Some of these observers were travelling from one polling station to the other and spending only a few minutes at each of them. In some polling stations, the electoral commission informed the CLRAE observers that they had received requests from observers for them to be present at the counting after 8 pm. In fact, the delegations did not see any such observers at any of the three stations where it attended the counting, although this may have been a mere coincidence.
The reason for such a small presence of observers is the still weak nature of political parties in Ukraine. The Republican Party's total membership, for instance, adds up to around 2,000 people. That is fewer than there are polling stations in the whole of Ukraine, and literally prevents such small parties from carrying out a significant follow-up to the election.
It should be recorded that officers at the military base in Kalinivka insisted that no observers belonging to political parties would be allowed to be present at the counting, and that the only civilian observer would be a regional civil servant in his capacity as representative of the President of the Republic. This confusion between the State's administration and the candidate was rather shocking, as the President of the Republic was actually standing for office.
Lax and uneven application of the electoral procedure
The delegation observed that the way the electoral law is applied in practice can differ significantly from one area to another, particularly as far as electoral propaganda and some important formalities, such as the following, are concerned.
- Electoral propaganda at polling stations
According to the electoral law (Article 42. 1) "information about candidates", which usually consists of short biographies of each candidate standing for office and a summary of their manifesto, should be on display at each polling station on election day. This was the case in the polling stations in Kiev. In the countryside, however, electoral commissions had decided that this was unlawful "agitation" and had removed them. In a polling station in Kalinivka, all but one of the biographical notes had been removed. Upon the delegation's request, the only one left was remove, too.
- Use of identity documents
The electoral law also requires voters to show some identity document before the electoral commission can hand him the ballots (Article 42.3). Whereas in Kiev this requirement was respected, in small rural communities it was widely overlooked, which is, up to a point, understandable.
- Mobile ballot boxes
One of the most delicate aspects of the electoral law is the existence of so-called mobile polling boxes. People who cannot come to the polling station due to health "or other serious reasons" - which the law does not define - can request the local electoral committee to send a mobile ballot box to their homes (Article 42.5).
The delegation found the use of the mobile ballot box to differ substantially from one polling station to another. For instance, not all polling stations happened to have, as the law requires, a list of the constituency's voters having requested this service. In some cases, they said, the request would be made orally by some relative while voting at the polling station.
The number of members of the polling station's commission travelling with the mobile box also differed from case to case. Most electoral commissions told the delegation they would appoint three of its members to carry out this task in the afternoon. Actually, one of the teams followed a mobile box which was accompanied by two members of the election commission.
The delegation thought this procedure rather unusual. The guarantees as to the fairness of its use did not seem to be sufficient.
However, it must be recorded that in most polling stations having received a list of requests for the mobile box, the number of such requests represented a small fraction of the total number of voters registered there.
- Absentee ballots
Article 44 of the Law on Local Elections allows voters who change their place of residence during the period between the submission of the voters list for publication and election day to vote before election day. In such cases, the polling station commission issues a ballot to the voter upon presentation of an identity document. The voter then drops his vote into a scaled or stamped ballot box.
The CLRAE observers realised that the practice here was also lax. In some cases, ballot boxes had been completely sealed (including their slot) before election day. Not in other cases. The problem stems from the fact that votes contained in the 'absentee' ballot box were not counted separately in order to check whether they matched the electoral list, thus giving, hypothetically at least, some room for fraud.
Again, it must be recorded that in most polling stations the number of officially recorded pre-term votes was relatively small. However, the delegation thought this procedure should be regulated in a more detailed way in order to prevent any possibility of intentional misuse.
- Multiple votes and other irregularities
The law is strict here. Article 42.4 clearly prohibits voting for another person and declares that 'every voter shall vote personally'. Yet the practice is different. Members of the delegation saw husbands voting for their wives, and in some cases several signatures appeared beside a name on the voters list, indicating that he had received ballots for several people.
The law also bans other persons from being present while a voter completes his ballot. In practice, though, families would openly discuss their choices in public and on many occasions the delegation saw several people inside the same polling booth. This behaviour seems to respond to rather deeply rooted social habits.
Here, too, the commission's staff should be directed to take a tougher stance. May it be recorded, again, that these legal requirements were better implemented in the Kiev polling stations visited by the delegation than in those located in rural areas.
- Display of nationalistic signs
On a minor note, it is to be recorded that the delegation found many signs of nationalist attitudes at polling stations. Many polling stations were displaying pictures of a national Ukrainian poet. Two cases are worth mentioning: In a small polling station, the whole electoral commission wore national costumes. In another, near Belaja Cerkov, the voting was interrupted for around fifteen minutes by a choir of women who sang (very beautifully) traditional Ukrainian songs. This pattern was fairly common throughout the region visited by the delegation.
The polling stations visited by the delegation closed as scheduled at 8 pm sharp. The counting started immediately afterwards. It was to be a lengthy and cumbersome process, as members of the electoral commissions had to group seven different ballot papers, count the unused ones, find out whether those number coincided with their records, and, last but not least, count the votes received by each of the many candidates.
Members of the local commissions at most polling stations admitted to the CLRAE observers that counting would last well into the early hours of the morning. Their predictions proved true. At a polling station in Zytomir, the CLRAE team decided to leave after realising that only the counting of unused ballots and the grouping of the different types of used ballots had taken the officials nearly two hours. The delegation made sure that all unused ballots had been voided by cutting their upper right-hand corner.
The delegation was generally satisfied with the way the first stages of the counting were carried out. The members of the local electoral committees seemed to know the procedure for it and executed it smoothly. However, as previously said, the votes in the different ballot boxes (particularly the absentee ballots and the ballots in the mobile box) were not counted separately, thus foregoing the chance to check their conformity to the records. Moreover, the fact that all ballots - for the local and the presidential elections - were dropped into the same boxes made the counting all the more difficult.
Results of the elections
At the time of writing this report, the CLRAE had not yet received the official results of the elections.
In conclusion, the CLRAE observer delegation did not witness any major fraud. The delegation is convinced that the Ukrainian authorities are making a sincere effort to go ahead with their reforms in spite of the difficult political and economical environment. However, the delegation spotted a number of irregularities which require further attention, as they could potentially lead to fraud.
The observers should like to submit to the CLRAE's approval the following suggestions on how to strengthen the Ukrainian electoral system:
- The structure of the administration in charge of the local elections should be reformed in order to include a central coordinating authority competent for interpreting the law and investigating irregularities, subject to judicial review.
- The appointment of polling station electoral commissions should be reviewed in order to make sure that there is a wide representation of the political and social movements represented in the commission's constituency.
- The requirement set out in Article 26 of the Law on Local and Regional Elections that candidates make a deposit ranging between five and fifteen minimum wages should be lowered.
- Civilian observers representing independent candidates or political parties should be allowed to be present at the counting of the votes in all polling stations, including those located inside military facilities.
- The number of elections taking place in one day should be reduced in order to simplify the counting of the votes and allow for a prompt announcement of results.
- The law should define with the utmost precision the cases in which electors may request the mobile ballot box, if that voting procedure is to be kept.
- Members of the polling stations' commissions should require all voters to produce some sort of identity document.
- Members of polling stations electoral commissions should make sure that voting takes place inside polling booths and that no more than one voter uses the polling booth at the same time.
- The practice of voting on behalf of other people should be eradicated.
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