Strasbourg, 11 February 1997
Monitoring Report 1997 CG BUR (3) 76
Report on the Situation of local self-government in Ukraine at the end of 1996
Bureau of the Congress
Expert: Dr. Heinrich HOFFSCHULTE (Germany)
1) Firstly, the "Constitutional Agreement" (the provisional constitution of 8 June 1995) that replaced the "Brezhnev" constitution from the Communist period) was superseded by a new Ukrainian Constitution, adopted 28 June 1996.
2) Secondly, new drafts of a Law on Local Self-Government in Ukraine are continually being presented to and debated by parliament.
In this situation, representatives and experts of the Council of Europe were invited in 1996 to take part in three further sets of talks and conferences on the latest developments:
a) Representatives of the National Foundation for Local Self-Government, an organisation close to the Ukraine government, issued invitations to talks on the drafts (submitted incomplete) in Kiev on 18/19 July 1996.
b) On 3 December 1996, the Parliamentary Committee for State Construction, the Role of the Councils and Local Self-Government), a select committee of the Ukraine parliament (Verkhovna Rada), conducted a hearing at which the undersigned was able to voice his views as a representative of the Council of Europe.
c) Before that, a conference billed as an "international conference on theory and practice" and entitled "European Charter of Local Self-Government and Problems of Ukrainian Local Government Reform" took place from 16 to 18 May 1996 at a state sanatorium complex near the Ukrainian capital.
I. Aspects of local self-government in the new Ukrainian constitution of June 1996
Under the heading "Local Self-Government", Chapter XI of the new constitution of 28 June 1996 now devotes seven articles (140-146) to villages and joint village authorities, settlements, cities, districts (rayony) and the 24 regions (oblasti).
This section is much shorter than the very detailed chapter contained in the provisional constitutional of 8 June 1995, which devoted 14 articles to this subject in chapter VII (Articles 46-59). A number of rules have been omitted and are now (only) to be the subject of ordinary (non-constitutional) law.
(I refer to my report on "the legal situation of local self-government in Ukraine" of 31 July 1995 [Council of Europe (CLRAE) document of 12 September 1995]).
The new constitution is characterised by the lengthy and heated negotiations between President Kuchma and the parliament, which only agreed to adopt the draft at a marathon 24-hour sitting on 27/28 June 1996, under the pressure of the President's announcement of a referendum on the constitution. In doing so, it agreed to and formulated compromises that have resulted in inconsistencies in the present constitution or have failed to eliminate contradictions contained in the drafts.
Article 7 states clearly and concisely that the constitution "recognises and guarantees local self-government in Ukraine", and Article 140 reaffirms that the right to local self-government is "the right to resolve matters of local importance independently". The constitution thus appears to want to fulfil the principle enshrined in the European Charter.
On the other hand, this wording falls far short of Article 47 of the provisional constitution, which states that the "local authorities shall have free discretion to decide, within the framework of the constitution and the ordinary laws of Ukraine, on all (!) local matters".
However, one advantage that needs to be pointed out is that the previous exhaustive enumeration of local authority functions or responsibilities (Article 49 of the provisional constitution of 1995) has not been deleted but extended by the addition of an "escape clause": after enumerating the most important responsibilities and functions of local government units, Article 143, paragraph 1, now states that these also include resolving "other issues of local importance that by law form part of their area of responsibility". A similar possibility of extending this scope is also contained in Article 143, paragraph 2, with regard to the regions and districts.
However, in both cases the constitution subjects the distribution of functions and responsibilities to statutory authorisation. This reservation is far removed from the clause granting full powers contained in the 1995 constitution and is thus a central-government inspired retrograde step on the way to achieving the autonomy of local authorities described in the 1985 Council of European Charter, which Ukraine undertook on its accession to observe. The achievement of the aim of placing "a substantial share of public affairs" under the responsibility of the local authorities (Article 3 of the Charter) is thus further away than 1995.
The European Charter also guarantees that the local authorities' right to govern themselves is exercised by democratically elected councils that possess executive organs, i.e. the relevant administrative bodies, that are accountable to them (!). However, this principle is violated by the present constitution. Villages, settlements and cities do, it is true, have "their (own) executive bodies" (Article 140, paragraph 3), and Article 140, paragraph 6, does place the organisation and administration of municipal districts under the authority of the city councils. However, the districts (rayony) and regions (oblasti), which the constitution (like the Constitutional Agreement of 1995) classifies as "bodies of local self-government" (Article 140, paragraph 4) and places on the same level as (local) bodies of the decentralised state administration, must employ the local state (!) administration to carry out their executive functions (Article 118: "Executive power in the regions and districts ... shall be exercised by the local state administrations"). The same is supposed to apply to the administrations of the cities of Kiev and Sebastopol, the "special features (of which) are governed by separate laws" - the drafts of which have still not been submitted (!). The staff of this decentralised "local state administration" is "formed and appointed" by its chief officer, who is "appointed to and dismissed from this position by the President of Ukraine on the recommendation of the Council of Ministers" (Article 118, paragraphs 3 and 4). Article 106 (10) explicitly repeats this right of appointment as one of the twenty-nine tasks of the President enumerated. In addition, it stresses that this right may not be transferred to other individuals or delegated as part of the state administration (Article 106, paragraph 2).
Moreover, paragraph 5 of Article 118 emphasises that these "heads of local state administrations are, in the exercise of their functions, accountable to the President of Ukraine and the Council of Ministers of Ukraine by virtue of the fact that they answer to, and are under the control of, the administrative bodies (immediately) above them". Paragraph 6 only qualifies this by stating that local state administrations are accountable to, and under the control of, the councils with regard to the functions assigned to them by the councils of the districts and regions.
In the case of elections a distinction is also made, on the one hand, between villages, administrative associations of villages, settlements and cities, in which the chairman or chairwoman of the council is at the same time head of the administration. He or she is directly elected by the population by secret ballot on the basis of universal suffrage for a period of four years (Article 141, paragraph 2). On the other hand, in districts and regions the chairman or chairwoman of the council who - as pointed out [Article 118] - is not head of the executive but is the chairman or chairwoman of an administrative committee (executive committee) is elected by the council of the territory concerned (Article 141, paragraph 4 of the constitution).
The confusion with regard to the distinction made between local government and state responsibilities is intensified by Article 119 of the constitution, which, although it provides for "co-operation with bodies of self-government", ensures that the "local state administrations in the appropriate territories (!)" not only observe the constitution and ordinary laws but also the decisions ("acts") of the President and the Cabinet and even those of "the other executive bodies" (clause 1).
In the final analysis, there is still a deep suspicion of democratically elected local bodies responsible to and run by themselves, and there is still no overall change to the tightly organised, centralised state administration and, as a result - quite apart from financial dependence - the dominance of state administration over local self-government, whose responsibilities are described in very general terms. This applies all the more where, as in the case of the districts and regions, responsibility for the appointment and dismissal of executive staff remains to a very large extent in state hands.
II. Successive drafts of a Ukrainian law on local self-government
After Ukraine's independence and up to 1995, the most important laws on local public administration and local self-government were:
- the Law on Elected Local Councils and Local and Regional Self-Government, of 26 March 1992
- the Law on the Formation of Local Administrative Authorities, of 3 February 1994
- the Law on the Status of Members of Elected Local Councils, of February 1994, and
- the Law on the Election of People's Representatives to Local Councils (right to vote and eligibility for election)
These laws have up to now governed the beginnings of democratic structural change in local self-government, although it was hardly possible to bring them into line with the 1978 constitution (the "Brezhnev" constitution"), which was still valid at the time and was therefore suspended, in accordance with the legislators' wishes. In addition to the new structures of local self-government there was, and still is, a hierarchical structure of state representatives at the local level, the so-called "President's representatives", who are assigned the responsibility of running the state administration as local administrative bodies. However, the Law on the Formation of Local Administrative Authorities, of 3 February 1994, abolished the institution of the President's representatives with effect from 24 June 1994. Here the path was taken, and consistently followed, of assigning state functions to local authority administrative bodies. At the same time, however, the central government "agencies", i.e. state authorities with branches in the regions, administrative districts and cities, were retained. In the new constitution of 1996 the fact that the head of the local state authorities (e.g. in the districts and regions) will also be appointed in the future by the President (Articles 106 and 118, paragraphs 3 and 4) reminds one of the erstwhile "representatives of the President".
The above laws were, however, already out of date with the entry into force of the "Constitutional Agreement" of June 1995, the so-called provisional constitution, which set much farther-reaching goals with regard to democratisation, decentralisation and the strengthening of local and regional self-government. Accordingly, various attempts were made to revise a draft "Ukrainian Law on the Local Councils and People's Representatives", of December 1994, and a special law for the capital city of Kiev and the surrounding regions. The task was all the more urgent as office-holders had in many instances not yet been replaced by people who had been democratically elected.
This draft was revised by the Association of Ukrainian Cities after the adoption of the new constitution of 28 June 1996.
Since June 1996 too, this draft has, in turn, been revised by a working group of the Ukrainian Ministry of Justice under the chairmanship of Justice Minister Golovatyi, in accordance with a decision of the Ukrainian Prime Minister. The further revision of the new version was then assigned to a working group operating in accordance with instructions issued on 13 August 1996 by the head of the Office of the President, with a group of experts of the (above-mentioned) Association of Ukrainian Cities available for consultation.
These working texts were subsequently included in the deliberations of the parliament from September 1996 onwards.
As was to be expected, the parliament was unable to ignore the inconsistencies in the new constitution (see section I above):
1. The existence side by side of (decentralised) state administrations and state bodies with local responsibilities, on the one hand, and self-governing local authorities, on the other, cannot fail to result in a lack of clarity in the new law too.
2. As pointed out in the above-mentioned report of 31 July 1995/12 September 1995, there is too much emphasis on mere decentralisation within state authorities. The relevant responsibilities and functions are not under the control of the LOCAL AUTHORITIES, i.e. the latter are not given the necessary autonomy to carry out these tasks.
3. Local Self-Government also presupposes control over the appointment of EXECUTIVE STAFF. When the local authorities are assigned the relevant responsibilities and functions staff must be accountable to them. The appointment and supervision of new staff must be the responsibility of the local council or an administrative body responsible to it.
4. The foreseeable conflicts in the legislative procedure are currently described as follows: some members of parliament would like the local authority executive to have more power, whilst others want more power for the representative bodies (councils) elected by the citizens. This also becomes clear from the conflict surrounding the mayor of the capital city and his position. After the 1994 elections he was chairman of the city council for one year (July 1995 to July 1996) and, in his capacity as chairman of the (executive) Administrative Committee, head of the administration. The new constitution splits the two functions, and political agreement or disagreement with the president may play an (additional) role. Now everyone is waiting for a special law on self-government for the capital, for which there has been provision in the constitution for some time (Article 140, paragraph 2, and, before that, in the 1995 Constitutional Agreement).
5. A problem that was repeatedly mentioned by the Ukrainians to whom we spoke is the lack of political pressure for genuine change. Democratic thinking, they pointed out, was suppressed for over seventy years, and democratic action was impossible from the "occupation" by Russian troops in 1920 until the political changes in 1990/91. A high-ranking member of the Legislative Commission said: "Public opinion and local staff are more likely to have a negative view of everything being discussed under the heading of local self-government".
To aggravate the problem, they say, at times of economic change and structural crises, decentralisation or even the assignment to local authorities of functions that have previously been "central" state functions - especially in the area of social welfare - is dismissed as an attempt on the part of the political leadership to dispose of problems by re-assigning responsibility.
This mistrust is currently leading to a cry for more state intervention and action, especially in the area of local authority functions and services. A representative of the "Foundation for Local Self-Government" pointed out: "It is tremendously important today to alter people's attitudes. We need to do missionary work".
6. This lack of pressure at grass roots level becomes clear in the rather sluggish legislative procedure. Those who would prefer to restore the old system and see local executive power as more the state's responsibility and part of its administrative functions are rapidly gaining the upper hand, especially when executive bodies are supplemented by formally democratically elected councils whose actual scope for action remains dependent from the point of view of organisation, finance and personnel on state-appointed, hierarchically oriented administrative bodies that are controlled through their subordination to the state. (The mayor of Kiev Kosakovski commented on 3 December 1996: "We cannot yet speak of democracy in local self-government".)
7. The select committee appointed by the parliament, with a total of twenty-two members, appears to have no clear majorities. It is chaired by Viktor Mursiyaka (of the independent "centre"), one of the vice-presidents of the parliament (Verkhovna Rada - the "Supreme Council"). At least six (old) communists belong to it.
In a total of eight votes held (up to 3 December) no majority was achieved for the different drafts submitted, so that it remained unclear which draft would finally be presented to the full parliament.
1. The constitution and local government legislation must make a clear distinction between the functions and responsibilities of state and local government bodies.
2. Decentralisation must lead, in a manner consistent with the principle of subsidiarity, to the placing under local authority control of functions and responsibilities, as well as administrative, organisational and staff resources.
3. The freedom of action of local authorities, districts and regions must be strengthened by means of a clear separation of local and regional budgets, on the one hand, and state budgets (including grants), on the other.
4. The constitution and ordinary laws must assign to the districts and regions, which are defined in the former as "bodies of local self-government", the responsibilities, funds and human resources that are guaranteed such authorities in the Council of Europe's European Charter of Local Self-Government, of 15 October 1985.
5. In its report of 12 September 1996, the working group consisting of representatives of the Cabinet (the Minister of Justice), the President, the "Foundation for Local Self-Government" and the Association of Ukrainian Cities mentions as additional objectives "the further development of the democratisation of Ukrainian society", "the strengthening of local self-government as one of the fundamental elements of Ukrainian society", "the development of public awareness and an increase in the responsibility of the citizens in their own area and local economy".
6. It appears doubtful whether a course correction can be achieved by merely making the appropriate changes to the drafts of a new law on local self-government that have been discussed in parliament. As pointed out above, it will probably be necessary to clarify and make corrections to parts of the constitution of 28 June 1996.
7. An important step in this direction could be the early ratification of the European Charter of Local Self-Government, because this would provide the opportunity to interpret the imprecise parts of the constitution in the light of its provisions and revise the legislation on this basis.
8. The Council of Europe, and in particular the Congress of Local and Regional Authorities of Europe (CLRAE), should continue with, and increase its support for, the efforts to strengthen local democracy, which, although they have already been clearly formulated, are still being considerably impeded. A main point of emphasis will need to be co-operation with the local authority associations and the foundations, as well as co-operation in their efforts to raise awareness with regard to the importance of local democracy.
Münster, 20 December 1996
Dr Heinrich Hoffschulte
(President of the German section of the CEMR)