Tuesday, September 18, 2012

Observations about Ukraine's Upcoming Election, Part 2

On Monday, I had an opportunity to speak with a member of Ukraine's Central Electoral Commission about several issues related to administration in the upcoming election. In the Skype chat, Commissioner Mykhailo Okhendovskyy answered all of my questions about the upcoming elections, providing detailed and nuanced answers.

Following is a summary of our session, not a transcript. The answers paraphrase the Commissioner's comments which are in blue. For the most part, I present the summarized remarks without comment, but on occasion I weigh in with purple text to provide my interpretation. A lack of commentary on my part should not be construed as consent with or dissent from the Commissioner's comments.

Q: Could you give me a general impression, from the CEC perspective, of the challenges of re-establishing the mixed electoral system after conducting the last two elections under nationwide Proportional Representation?

The main challenge was in the process of registering candidates for constituency races. In 1998 and 2002, territorial commissions managed the process, but the new version of the law required the CEC to conduct the process. The CEC had nineteen days to evaluate around 7,000 candidates.

Q: The CEC had to make decisions about district apportionment by oblast, and also district boundaries. Could you describe the process for creating the boundaries of SMD districts? Also, could you comment on the concerns about non-contiguous boundaries for some districts (especially noted in the joint report by the CVU and IFES)?

The current law does not require election districts to be contiguous. The baseline for district delimitation in the upcoming election was not the 2002 boundaries, but rather the territorial boundaries for the 2010 presidential election. Boundaries may vary from the baseline, but they are close. 

The first step of the process is to establish the number of registered voters; Ukraine has an excellent voter registry. The second step is to use the distribution of registered voters to establish districts; they can only vary by 12% from the average number of voters in the districts, which is around 161,000. The reapportionment process took away some districts from the east and reassigned them to areas where the population has grown. The final step is boundary delimitation for the districts, and the CEC had twenty days for this process. Some issues arose with out-of-country voting and a proposal to assign out-of-country voters to Kyiv (which would have given Kyiv 16 districts). In the end, Kyiv received 13 districts. The region with perhaps the greatest challenges due to non-contiguous districts is Luhansk. The process was completed on the 28th of April, and none of the parties were happy with the result, showing that it was objective. A challenge was leveled, but it was denied in the courts.

Q: Legislation was passed to install webcams in polling stations and to transmit live feeds of election day activities. A colleague at the CEC indicated that the law would be implemented, but he did think that webcams were useful. Please discuss your impressions of the advantages/disadvantages of webcam monitoring.

The decision to install webcams was a political one, and they will only be put in place at the 32,188 regular polling places. The remaining polling sites are "special" polling places like hospitals and prisons where webcams will not be installed. Two webcams will be placed in each station. One will focus on the table where voters receive their ballots and one will focus on the ballot boxes. They will begin transmitting at 6:45am when the polling station commissions begin their work, and they will transmit through the opening of the polls at 8:00 am until the close at 8:00 pm. The cameras will continue to record footage, but the vote count process will not be broadcast on the Internet. It will be available for courts, the CEC, and law enforcement and will be stored for one year. The Ministry of Infrastructure, not the CEC, will manage the installation of the cameras. The ruling gave the CEC only three months, so having another institution manage them was helpful. 

Despite his initial skepticism, the Commissioner noted that the installation of webcams could have two advantages. First, it could increase the credibility of the elections. The elections in Ukraine have been transparent, but the public does not trust the process and the results after the presidential elections in 2004. This lack of trust is due, in part, to campaign strategies in past elections that have encouraged mistrust of elections. Second, webcams could serve as a deterrent to improper behavior by officials and other stakeholders.

[EH: An underlying implication of this comment was that the perception of improper administration, advanced by some parties or partisan actors, was greater than the actual level of improper administration on the ground. The preponderance of evidence in 2004 suggests that this was not the case; substantial levels of fraud were in evidence. In later elections, such as the 2010 presidential election, partisans raised the specter of fraud but misdeeds were not widespread or decisive. Indeed, elections in 2006, 2007, and 2010 received high marks for the quality of administration.]

Q: A recent poll, reported by Zerkalo Nedeli late last week, suggests that 73% of Ukrainians do not believe that the election process will be free and fair. How is the CEC working to change expectations about the elections?  

The new electoral law is able to produce free and fair elections. The CEC is involved in civic education activities about electoral processes that may increase public confidence. But, public confidence has been eroded by strategies that blamed unfair election practices for losses at the polls. The atmosphere is important, and the atmosphere has been deteriorating. After this election, some parties may declare victory and use the lack of trust in elections as an explanation for why official results are different from what they claim they should have received. 

Q: Civil society has developed extensive reporting of alleged violations (e.g., Maidan Monitoring and the CVU). How do these activities by civil society help or hinder the CEC in its work? 
Many of the Ukrainian so-called non-governmental organizations are paid for - by candidates, parties, and foreign governments. No one trusts these organizations. They only report allegations, and just allegations that are useful for their candidates. The CEC, courts, and law enforcement only address official notifications of violations. These allegations are never submitted to the authorities; the organizations hold press conferences, but do not officially file the allegations for scrutiny. There is a problem with civil society development in Ukraine - it is paid for and not truly independent.

[EH: Non-Governmental Organizations in the post-Soviet region, and in many other parts of the world, face a significant challenge in the perception of their independence. A 2011 survey conducted in Ukraine by IFES found that 22% of Ukrainians believed that NGOs represent "foreign interests that do not reflect the will of Ukrainians" while 37% disagreed (41% did not know). Attitudes about NGOs varied regionally, however: 12% of respondents in the west strongly/somewhat believed that NGOs represent foreign interests, 32% of respondents in the east and 37% in the south held this view. While the survey does not suggest that a majority hold this view, the plurality of respondents did not know or did not respond. 

Associations with foreign governments, partisan politicians, or businesspeople, render NGOs vulnerable to charges of bias. In Russia, new legislation labels groups that receive non-Russian monies as "foreign agents," strongly suggesting that these groups are acting in the interests of external forces. While private or government funding does not necessarily affect the findings of NGO-sponsored activities, maximizing the openness and transparency of the process and better educating the public about NGO activities could allay concerns and inform the public.]

Q: The international press has followed the cases of Yuliya Tymoshenko and Yuriy Lutsenko, including the CEC decision to deny registration on the party list ballot. Could you talk about the process that the CEC undertook to make this decision?

[The Commissioner noted that the rules do not permit a CEC member to talk about specific activities of parties or candidates, and the Commissioner was careful to comply with the law during our conversation.] In general, the law - written by members of the opposition and supported by 366 members of parliament from all sides - indicates in Article 9 that convicted criminals cannot be nominated, registered, or elected. Some parties included convicted persons on their lists in breach of the law, and registration of such candidates was rejected on this basis. Article 76 of the Constitution of Ukraine and Article 9 of the law support this decision. A notable example is that for the first time in Ukrainian election history, some other prisoners also submitted applications to be registered in districts and these were rejected.

[EH: Article 9 states that citizens who have been convicted of committing a crime may not be nominated and elected unless the criminal record has been canceled or withdrawn. In Ukrainian: "4. Не може бути висунутий кандидатом й обраний депутатом громадянин, який має судимість за вчинення умисного злочину, якщо ця судимість не погашена і не знята у встановленому законом порядку." The text of the law is available at: http://www.cvk.gov.ua/metod/kultura/npa/vnd.htm]

Q: Earlier, the Constitutional Court issued rulings on dual candidacy that were controversial. Could you talk about your position or the CEC’s position on dual candidacy?

A temporary ad hoc commission created the law in parliament and this process was managed by deputies without engagement with the CEC or outside experts. There is a saying that election laws in the region are a soft pillow under the heads of the party of power and a stone under the heads of the opposition. In Ukraine it is the opposite. We may suppose that deputies were really tempted to include dual candidacy for their own personal purposes. Even though the courts had ruled on this provision in the past, they were tempted to see if there was enough time for the court to rule. The Constitutional Court used the same language as before to rule dual candidacy unconstitutional. Briefly some thought that the law would allow candidates to contest in more than one constituency, but this perception was wrong.

Q: Could you comment on the likelihood of Ukraine introducing new voting technology for ballots (like optical scan ballots)? Also, could you comment on the effect of revisions to the language law on election administration?

The CEC has studied e-voting, but provisions in Ukrainian law determine how elections will be conducted. They are very detailed and provide specific instructions. The CEC cannot do more in terms of voting technology than the law allows. Regarding the language law, the statute did not refer to active electoral legislation, so there are no implications for this year's elections. In the future, both of these issues may be addressed by the next CEC. 

I want to thank Commissioner Okhendovskyy for being generous with his time and also for his willingness to address all of my questions. Also, thanks to the European Center for a Modern Ukraine for arranging the chat.

1 comment:

  1. Hi Erik!

    Thank you for mentioning our work in two blogs, it was a surprise and a pleasant one.

    Let me comment on Okhendovsky answer about NGOs.

    In short - BS.

    In details.

    Accoring to existing legislation NGOs in Ukraine cannot act in public interest, but only in the interest of their members. Thus we cannot file compalaints to the Prosecutor General or to the Police unless the electoral (or any other) rights of our members are violated personally.

    Alternatively we actively use the available tool of citizens' appeal (30 days for mandatory answer from a government authotirity) or request for information (5 days for the answer, but the amount of information available is limited).

    We have sent such requests to presecutors, legislators, regional administrations and to central election commission, though it was not Mr.Okhendovsky who responded.

    We have also sent information (officially) about our monitoring map to Prosecutor General, President's Administration, Cabinet of Ministers and the Police.

    Our map was mentioned as something that should be consulted during the meeting held by the President on September 18th dedicated the transparent election.

    The Police had *almost* directly referenced our map in the press release of their disfuctional monitoring map they modelled after us and even used the same term "interactive map of violations" we introduced.

    At the ombudsman's office our map is the start page with approriate branch that oversees election rights. The head of that branch actively participates in our monitoring groupd on facebook.

    To sum up I would say that our project is taken very seriously by the government authorities. Your interview was conducted before Sept 18th when it had become evident.

    Best wishes and hope to see you soon
    Natalka Zubar