Author: Vasil Vashchanka
Background
The establishment of a national EMB in newly independent Ukraine acquired importance with the organization of the first competitive legislative and presidential elections in the early 1990s. The Central Election Commission (CEC) was formed in 1997 and gradually strengthened its capacity to manage national electoral processes. In the 1998, 1999 and 2002 elections, international observers assessed the CEC’s performance as positive overall. Concerns were expressed, however, about its political independence and limited powers. In the 2004 presidential election, credible allegations of electoral fraud in what became known as the Orange Revolution led to the cancellation of results by the Supreme Court and a repeat of the second round of the vote. The CEC was implicated in tampering with election results and dismissed by Parliament, which appointed a new commission to administer the repeat vote. Since then the CEC has administered several election.
Legislative Framework
The 1997 constitution gives Parliament (Verhovna Rada) the power to appoint commissioners to the CEC, but does not give any details about its status and functions, which are described in the 2004 Law on Central Election Commission, which establishes the CEC as a ‘permanent collegial state body’. The law stipulates the main principles of CEC operation: rule of law, legality, independence, objectivity, competence, professionalism, collegial and reasoned in decision-making, openness and publicity. It also regulates CEC formation and work processes, as well as its powers and the status of the commissioners. The CEC has adopted its rules of procedure, which detail its internal organization and work procedures. Electoral legislation in Ukraine is not codified, so the CEC’s specific powers in national and local elections and referenda are further specified in the respective laws. The CEC adopts resolutions on matters within its competence that are legally binding for all participants in electoral processes.
Institutional Structure
CEC members elect a chairperson, two deputy chairpersons and a secretary from among themselves by a majority of votes. The chair heads the commission and the secretariat. The secretary prepares CEC meetings, manages its records and provides information to the mass media.
The commission’s work is supported by the secretariat, which employs around 250 permanent staff. The secretariat is divided into departments and units charged with different areas of CEC support, including the Organizational Department, Legal Department, IT Department, Procurement Department, Documentation Department and others. The State Voter Register (SVR) administered by the CEC is maintained by a separate support service. The CEC is located in the capital (Kyiv) and does not have regional structures, although it is entitled by law to establish regional representative offices within its budget if it deems it necessary.
The CEC is the only permanent election administration body. Lower-level district and precinct electoral commissions are formed for each election from the nominees of political contestants.
Powers and Responsibilities
The commission is required by law to ensure the realization and protection of citizens’ electoral rights and compliance with the legal framework for elections and referenda. This includes compliance by political parties and candidates with campaign finance regulations. The CEC is responsible for creating electoral districts and maintaining the SVR. It is also tasked with distributing information on electoral processes and has the authority to review petitions and complaints on all matters within its competence.
For national presidential and parliamentary elections, the CEC is responsible for organizing and managing the entire process, including establishing and controlling lower-level election commissions, registering candidates, monitoring campaign finance and announcing the results. For national referenda, the CEC likewise organizes the entire process, while for local referenda the commission approves the ballot format and performs an advisory role. For local elections the CEC performs primarily supervisory functions.
Composition and Appointment of Members
The commission consists of 15 members appointed for a seven-year term by Parliament upon nomination by the president. When nominating commissioners, the law requires the president to take into account the proposals of parliamentary factions and groups in Parliament.
Commissioners must be at least 25 years of age, know the state language and have resided in Ukraine for at least five years prior to their appointment. The chairperson, deputy chairpersons and at least five other CEC members must possess a university degree in law. Commissioners are not allowed to engage in political or business activities, and must suspend any party memberships. Commissioners are sworn in Parliament to uphold the law, maintain a non-partisan stance, and perform their duties fairly, objectively and impartially. Commissioners and staff of the CEC have the status of civil servants.
Financing and Accountability
The CEC, its secretariat and support services are financed directly from the state budget. The commission submits a yearly report on its expenses to the State Audit Chamber.
Complaints and Dispute Resolution
The commission is authorized by law to receive two kinds of applications: (1) petitions requesting CEC assistance in exercising electoral rights, clarifying electoral legislation or recommending improvements to the law; and (2) complaints alleging violations of electoral legislation and the rights of election participants. Election commissions and courts both have jurisdiction over complaints against the decisions or actions of lower-level commissions and election contestants. This overlapping jurisdiction has been criticized by international observers for its potential to result in unduly rejected claims and inconsistent decisions. Complaints that contain indications of electoral offences are forwarded by the CEC for investigation by law enforcement authorities.
Professionalism
The CEC is generally regarded as a competent body. A survey carried out prior to the 2012 parliamentary elections found that 64 per cent of respondents agreed with the statement that elections in Ukraine are competently administered. Yet international experts noted that the CEC was challenged by some issues, including the formation of lower-level commissions and the determination of boundaries for single-mandate electoral districts. They suggested that some operational shortcomings may result from the CEC’s practice of giving individual commissioners operational responsibility for particular issues and particular regions.
Observers from OSCE/ODIHR assessed the CEC’s performance in the 2012 parliamentary elections as adequate, but criticized it for not taking sufficient steps to regulate important aspects of the elections, specifically in ensuring transparency during the tabulation process, enforcing campaign rules, deterring indirect vote buying, addressing media-related violations and providing complainants with an efficient remedy. In the 2014 early presidential election, OSCE/ODIHR observers noted that the CEC operated independently, impartially, collegially and generally efficiently, despite the challenging environment and limited time for preparing the election.
Media Relations
The CEC is making some effort to be open in its activities and maintain ongoing contact with the media. It maintains a relatively well-developed website (http://www. cvk.gov.ua) but has not been active in social media. The current chairman has given regular interviews since his appointment in July 2013, including online Q&A sessions. After the 2012 parliamentary elections, observers criticized the CEC for insufficient transparency and for making decisions behind closed doors prior to the official sessions. These criticisms were not repeated in the 2014 early presidential election. The CEC was given credit for holding open sessions and for publishing its decisions, as well as thousands of lower-level district commission decisions, on its website.
The electoral laws contain guarantees of balanced media coverage during election campaigns and task the CEC with the allocation of mandatory coverage for election contestants in the public media. International observers in the 2012 parliamentary elections pointed out that the CEC rejected media-related complaints and disputes as falling outside its jurisdiction and referred the complainants to courts.
Relationships with Stakeholders
The commission maintains constructive engagement with the stakeholders in electoral processes. One of the persistent challenges facing the commission is overcoming the perception of partisan influences in its activities. These perceptions are influenced inter alia by the selection and appointment procedure, which leaves much room for political appointments based on partisan loyalty. The current CEC chairman repeatedly criticized the process in which political factions compete for their nominees to be appointed, and called for non-partisan nominations based on professional experience in election administration and civil society activities. In the 2014 early presidential election, partisan interferences were much less prominent due to more pressing security and political concerns, giving the CEC more space to strengthen its position as an impartial and politically independent authority.
Sustainability
The commission appears to be adequately funded and has not voiced concerns about the sustainability of its activities. Parliament has also made sufficient funding available for the recent elections, including repeat elections in five majoritarian districts after the CEC declared it was unable to determine their results in the October 2012 parliamentary elections. The commission reportedly carries out ‘lessons learned’ exercises after major electoral events, however their results are not published on the CEC website. For the 2014 early presidential election, the most pronounced challenges to the sustainability of election administration came from threats to the country’s territorial integrity and the deteriorating security situation in several regions.
Use of New Technologies
The law authorizes the CEC to use an ‘automated information system’ but stipulates that the information obtained from the system is provisional and does not entail legal consequences. The use of the Vybory system for vote tabulation has generally contributed to increased transparency in the electoral process. At the same time, international observers have expressed concerns about the tabulation process. In the 2010 presidential election, OSCE/ODIHR observers assessed the tabulation process positively in general, while noting the lack of full access to observe the entry of data into the Vybory system. In the 2012 parliamentary elections, OSCE/ODIHR assessed the tabulation process negatively in nearly half of the District Election Commissions (DEC) observed. In addition to the restricted transparency of data entry and overcrowding, the observers noted irregularities in the tabulation process including discrepancies between results protocols from polling stations and the data entered into the system. The CEC ended up ordering a repeat election in five districts, but serious irregularities were alleged in more constituencies. Observers recommended greater transparency and increased capacity for results processing at the DEC level. In the 2014 early presidential election the Vybory system collapsed due to cyber-attacks, causing disruptions to the receipt and processing of election material and a delay in the announcement of preliminary results. Domestic observers urged the CEC to strengthen its system security.
The second major area of technology use by the CEC is voter registration. In 2009 it launched a unified, centralized and computerized SVR, addressing a long-standing need to improve voter registration. The SVR was successfully used for the first time in the 2010 presidential election and earned compliments from observers in the 2012 parliamentary elections. The CEC chairman described the SVR as one of the most accurate voter registration systems in the world. The personal information of voters included in the SVR is updated monthly by over 750 local register maintenance bodies.
The 2012 parliamentary elections also saw another use of new technologies: web cameras were installed in all polling stations to increase the transparency of the voting and counting processes. This initiative came from Parliament and involved significant financial implications (around EUR 100 million was reportedly allocated). Observers questioned the usefulness of this undertaking, which did not appear to significantly increase the integrity of the electoral process. The effectiveness of this single-use investment was also subsequently questioned by the Audit Chamber. A survey found that a significant number of voters regarded web camera surveillance with suspicion. The CEC chairman commented that the system did not enjoy the demand apparently expected by Parliament, and the CEC received only about two dozen requests to review video footage from the polling stations after the elections.
Electoral Reform Management
The commission is authorized by law to put forward proposals to improve electoral legislation, and it has made use of this mandate. The CEC has emphasized the need for stability and social consensus on electoral rules, and has urged political parties to avoid unnecessary changes. This position did not prevent it from working with Parliament to ensure the conduct of the 2014 early presidential election, which required amendments to the legal framework to address significant political and security challenges to the electoral process.
Gender
In 2014, five CEC members are women, including one of the two deputy chairpersons and the secretary. Some international observers previously noted that women were over- represented at the lowest-level Precinct Election Commissions, which they attributed to the low rates of pay for this work. The CEC does not have a publicly available gender policy. Women’s representation in Parliament remains low (10 per cent), and some analysts believe the CEC could do more to encourage political parties to nominate female candidates.
Challenges and Opportunities
Two sets of challenges are readily apparent for the CEC and electoral administration in Ukraine. The first set relates to the events that brought about the 2014 early presidential election. At the time of writing, security concerns and threats to the country’s territorial integrity pose immediate and grave challenges for the future of Ukrainian democracy. The conduct of the 2014 early presidential election was effectively impossible in Crimea due to its annexation by Russia, as well as in a number of constituencies in eastern Ukraine, where the electoral process was disrupted by armed guerrillas.
The second set of long-term challenges facing the CEC relates to the politization of election administration at all levels. Arguably, this may be an inevitable by-product of some of the most competitive elections held in post-Soviet countries. However, the worrying propensity of political contestants, especially incumbents, to seek electoral advantage through legally questionable or fraudulent activities has not created a favourable environment for overcoming partisanship in election administration.
Elections in independent Ukraine have generally been characterized by low levels of trust. A survey before the 2012 elections found that over half the voters expected the results to be falsified. While only about 34 per cent of respondents expressed confidence in the CEC, the commission still fared better than Parliament (23 per cent), the president (32 per cent) and the cabinet of ministers (28 per cent). As noted earlier, the CEC chairman has spoken against partisan-based nominations for the next commission and argued that the nominees should be chosen from the pool of experienced election administrators and civil society actors.
While the CEC is increasingly regarded as a professional and impartial authority, the professionalization of lower-level commissions remains difficult. Political contestants traditionally fiercely battle over their representation on lower-level election commissions, often resorting to ethically and legally dubious methods. In the words of IFES experts: ‘Any discussion of the formation of the election commissions should recognize the extent to which election commissions are politicized. All electoral participants seem to believe that their best defense against potential fraud committed by their competitors is to have representation on the committees.’ As a result, election commissions have tended to be large and prone to partisan conflict. Political contestants routinely manipulate and withdraw their nominees from election commissions, which jeopardizes efficient election administration. Proposals for improvements have included mandatory training for commission appointees prior to their appointment and increased incentives (including financial) for their autonomy from the nominating political actors. However, change in the partisan formation of election commissions is unlikely as long as the deficit of trust permeates political and social life.
Bibliography
International Foundation for Electoral Systems [IFES], Pre-Election Technical Assessment: 2012 Parliamentary Elections in Ukraine (Washington, D.C.: IFES, 2012)
International Foundation for Electoral Systems [IFES], Pre-Election Public Opinion in Ukraine: Survey Results (Washington, D.C.: IFES, 2013)
Mission Canada, Ukraine Parliamentary Elections, 2012
OSCE/ODIHR election observation reports from the 1998, 1999, 2002, 2004, 2006, 2007, 2010 and 2012 elections, available at http://www.osce.org/odihr/elections/ ukraine
OSCE/ODIHR, ‘Statement of Preliminary Findings and Conclusions’, 26 May 2014, available at http://www.osce.org/odihr/elections/ukraine/119078?download=true
