New election commission will soon be put to test
After dragging their feet since the tenure of the Central Election Commission’s composition expired in 2014, Ukrainian authorities have finally appointed new commission members in September.
But the question remains as to whether the commission’s current composition is going to be more independent and more trustworthy than the previous one.
President Petro Poroshenko’s critics argue that he has the commission under his control, which will allow him to influence the 2019 presidential and parliamentary elections.
The Presidential Administration did not respond to a request for comment, while Central Election Commission spokesman Kostyantyn Khivrenko said he could not comment on the issue.
The commission said its head, Tetiana Slipachuk, is not available to be interviewed.
Another problem, according to some observers, is the Verkhovna Rada’s apparent failure to introduce a fairer election law in the run-up to the 2019 elections.
Civil society groups have demanded the scrapping of single-mandate districts, which are seen as a vehicle of political corruption.
The Central Election Commission triggered controversy on Oct. 5 by banning journalists from a meeting in which it selected Slipachuk as its chairwoman.
The Opora election watchdog lambasted the decision.
“Opora is attracting the new Central Election Commission’s attention to the unlawfulness of its restrictions on media at all of its meetings and its violation of publicity and transparency principles,” the watchdog said.
Khivrenko, from the Central Election Commission, argued that the ban on journalists did not contradict the law.
The previous members of the commission had been discredited because the powers of most of them expired in 2014, and the Verkhovna Rada passed a law extending their authority. Some lawyers, including Yulia Kyrychenko from the Reanimation Package of Reforms, argued that the authorities’ failure to replace them for years was illegal.
The previous commission was also dominated by representatives of ex-President Viktor Yanukovych’s now defunct Party of Regions.
Slipachuk’s predecessor as head of the commission, Mykhailo Okhendovsky, was charged by the National Anti-Corruption Bureau of Ukraine in 2016 with receiving bribes worth $100,000 in 2010 and $61,000 in 2012 from the Party of Regions.
In June 2017, the Anti-Corruption Prosecutor’s Office suspended the case, claiming it was waiting for documents from abroad. Meanwhile, the NABU accused anti-corruption prosecutors of sabotaging the case.
Negotiations to replace the Central Election Commission had been going on for four years but were derailed and blocked until September.
Poroshenko's critics had accused him of obstructing the process by trying to nominate a majority that he completely controls, which was rejected by the Rada. Poroshenko's supporters, in turn, accused opposition factions in the Rada of sabotaging the process.
The problem was resolved in September when parliament increased the number of commission members from 15 to 17.
“Poroshenko has been obsessed with the idea that he must keep control over the Central Election Commission and that’s why he wanted to increase the number of members,” lawmaker Sergii Leshchenko told the
Kyiv Post. “The law was tailor-made for one person — Poroshenko.”
The new commission includes six representatives from the Poroshenko Bloc which, with 135 members in parliament, is the dominant faction.
Oleh Didenko was delegated in 2014 by the UDAR party, which has merged into the Poroshenko Bloc, and is seen as loyal to the Presidential Administration.
Slipachuk was delegated by the People's Will faction, which has often voted in the interests of the Presidential Administration. In 2016 Slipachuk was delegated by Poroshenko to the commission for selecting the leadership of the State Investigation Bureau.
Meanwhile, Slipachuk and Oleksiy Filatov, who is currently a deputy chief of staff for Poroshenko, used to be partners at law firm Vasyl Kysyl and Partners.
Slipachuk has also been accused of ties to Poroshenko Bloc lawmaker Oleksandr Hranovsky, who has denied promoting the candidacy for the commission’s head. In 2015 she praised Hranovsky in a comment under a Facebook post.
Alla Basalayeva from the Vidrodzhennya faction, an ex-judge at Kyiv's Darnitsa District Court, and Kateryna Makhnitska, the wife of ex-Prosecutor General Oleh Makhnitsky delegated by the Svoboda national party, have also been accused of links to the Presidential Administration. Olga Aivazovska from the Opora watchdog disputed those claims.
Based on different assessments, Poroshenko has a majority in the Central Election Commission ranging from eight to 10 members.
Along with three representatives of the People’s Front party, the ruling coalition has an absolute majority on the commission.
Aivazovska argued, however, that Poroshenko would not be able to completely control the commission.
“The competition between the Poroshenko Bloc and the People’s Front will ensure a balance between different interest groups,” she said.
One of the People’s Front representatives is ex-Deputy Justice Minister Natalia Bernatska (nee Sevostianova), who became the Central Election Commission’s secretary. She was the secretary of the controversial commission that selected top officials of the State Investigation Bureau and was accused by anti-corruption activists of rigging the selection, although it denied the accusations.
Bernatska was also the chairwoman of the commission that chose the leadership of the National Agency for Preventing Corruption, which has been accused of large-scale corruption by whistleblowers within the agency and has so far failed to punish any top officials. The agency denies the accusations.
Bernatska has also triggered controversies by declaring $358,000 in different currencies in cash and two cars worth about $77,000, as well as by helping a top tax official escape the 2014 lustration law on the dismissal of officials who served Yanukovych.
Bernatska has denied the accusations of wrongdoing.
The opposition is represented by Yevhen Radchenko from Samopomich and Tetiana Yuzkova from populist Oleh Lyashko’s Radical Party.
One seat on the commission is still vacant and is reserved for the Opposition Bloc faction, an offshoot of Yanukovych’s Party of Regions. The Opposition Bloc has insisted, however, that it is entitled to two members based on its number of Verkhovna Rada members — 43 out of 423.
Due to conflicting groups within the Opposition Bloc, it is unlikely to delegate its representative before the presidential election, Aivazovska said.
Influence on elections
Whether the new commission is better and more independent than the previous one has yet to be seen.
Potentially, the Central Election Commission can manipulate elections through various methods.
For example, the commission can refuse to register candidates due to different legal interpretations of the 10-year residence requirement for presidential candidates, Aivazovska said.
The commission can also influence elections through appointments to district election commissions, considering or failing to consider complaints and reacting or failing to react to violations of campaign rules, she added. And finally, the commission has a lot of power over the integrity of the voting and vote count.
Meanwhile, the new Central Election Commission is likely to work under the old election law.
In November 2017 the Verkhovna Rada passed in first reading a bill to scrap single-mandate election districts and leave only party-list proportional representation. Geographic constituencies are prone to corruption, with wealthy candidates buying votes and controlling access to media.
The bill also seeks to introduce “open party lists,” which means that citizens will vote not only for parties themselves, but also for specific candidates nominated by the parties. The candidates who get more votes will move closer to the top of party lists, and be more likely to be elected. Under the current system, party leaders can arbitrarily choose the order in which candidates appear on party lists, thus determining the order of those elected.
Since last year, the Verkhovna Rada has failed to consider the bill in the second reading. Parliament’s legal committee has considered about 60 percent of draft amendments to the bill.
“Poroshenko won’t (adopt this law),” Leshchenko said. “Maybe this will happen under a new president.”
New leadership of the Central Election Commission, from left: deputy head of the commission Oleg Konopolskiy, head of the commission Tetiana Slipachuk, deputy head of the commission Yevhen Radchenko, and the commission's secretary Natalia Bernatska give their first press conference on Nov. 13 after having been appointed in October. (UNIAN)
Protesters stand by a banner showing a collage of President Petro Poroshenko and ex-President Viktor Yanukovych during the rally demanding the new election legislation near the parliament building in Kyiv, on Sept. 6, 2018. (Volodymyr Petrov)