Analysis and Recommendations for the Apportionment of the Central Election Commission (CEC) of Ukraine
In June 2015, the terms of 12 of the 15 members of the Central Election Commission (CEC) of Ukraine expired. Ukrainian law requires that the President consults with Parliament to submit a list of candidates, and then Parliament either approves or disapproves the nominees. However, due to the October 2015 Local Elections, subsequent runoff elections held two weeks later in addition to internal political disagreements, no new nominees for the CEC were proposed by the President last year. When disagreements over the composition of the commission continued after the elections, the matter was postponed even further with the Special Parliamentary By-Elections of July 2016 serving as the latest impediment to prevent the appointment and confirmation of new CEC members.
This report explores the history of CEC appointments, analyzes the current process and makes recommendations to ensure a more efficient appointment process in the future.
The Central Election Commission of Ukraine was established by law in November 1997, following passage of the country’s Constitution in 1996. Its activities are governed by the Constitution, the Law on the Central Election Commission (2004) and the Law on the Election of People’s Deputies of Ukraine (2011). The independent body is tasked with administering elections and referendums as well as ensuring the “implementation and protection of the electoral rights” of Ukrainian citizens.
By law, the CEC consists of 15 members, who must meet the following legal requirements to be eligible to serve as a CEC member:
• Be a Ukrainian citizen who is at least 25 years old, and who has lived in Ukraine for at least five years and, “has a command of the state language.”
• Have no criminal record.
• Cannot simultaneously hold any elected or appointed government office.
• Cannot simultaneously be a candidate for elected office at any level.
• Cannot be a member of a political party.
From its inception in 1997 until late 2004, the CEC was a largely uncontroversial state institution. However, when widespread and credible allegations of election fraud in the November 21, 2004 Presidential Runoff Election were reported by both domestic and international monitors, four members of the CEC (Deputy Chairman Yaroslav Davydovych, Maryna Stavniychuk, Andriy Mahera, and Oleksandr Chupakhin) refused to sign the certification of “official results.” Shortly thereafter, the Supreme Court of Ukraine canceled the results of the November 2004 Presidential Runoff Election due to evidence of massive fraud. On December 8, 2004, Parliament then voted for a compromise to end the electoral crisis and schedule a new Presidential Runoff Election. As part of that compromise, four controversial CEC Members (including the Chairman at the time, Serhiy Kivalov) were removed and replaced by compromise candidates (Zhanna Usenko-Chorna, Valeriy Sheludko, Anatoliy Pysarenko, and Mykola Melnyk who would become the new Secretary of the CEC and serve until June 2007).
The new CEC functioned more transparently and efficiently than the previous one. Deputy Chairperson Yaroslav Davydovych was made Chairperson in December 2004 and served until June 2007 when he was replaced by Volodymyr Shapoval. Shapoval then served until July 2013 when he was dismissed by Parliament due to reaching the retirement age of 65 years. His replacement is the current Chairperson, Mykhailo Okhendovskiy. Chart 1 details the appointments and terms of current CEC members.
Chart 1: Current CEC Composition and Dates of Appointments
Article 30 of the Law on Central Election Commission states that the powers of CEC member can be terminated only based on the Parliament’s decision. If such decision is not adopted (even if there are grounds for termination of office, such as the expiry of a commissioner’s term of office), the CEC commissioner can exercise his/her powers until adoption of the respective decision by the Parliament. The 12 current members whose terms have expired but are serving until a replacement is named include:
• Chairman Mykhailo Okhendovskiy (age 42) was originally appointed in February 2004, and reappointed on June 1, 2007. He was elected as Chairman of the CEC in July 2013 with the support of then President Viktor Yanukovych and the Party of Regions.
• Deputy Chairman Andriy Mahera (age 41) was also appointed in February 2004 and reappointed on June 1, 2007. He was elected Deputy Chairman of the CEC in June 2007 and has held the position since that time. Mahera was originally supported by President Yushchenko’s Our Ukraine party.
• Secretary Zhanna Usenko-Chorna (age 43) was appointed on December 8, 2004 as a replacement candidate on the CEC in preparation for the Repeat Presidential Election Runoff. She was reappointed in June 2007 and has served as a Deputy Chairwoman since that time. Usenko-Chorna was selected from the quota of the Motherland Party.
• Tetyana Lukash (age 37) was appointed June 1, 2007 to the CEC. She was also elected as Secretary of the CEC and has served in that capacity since. Lukash was selected and elected as Secretary from the Party of Regions quota.
• Tamara Astakhova (age 40) was appointed to the CEC on June 1, 2007. She was selected for the appointment with the support of the ruling coalition at that time consisting of the Party of Regions, Socialists and Communists.
• Yuri Danylevskiy (age 61) was first appointed in April 1999, and then dismissed by Parliament on December 8, 2004. However, Danylevskiy was reappointed in June 2007 and has served since. He was selected in 2007 with his support of the Party of Regions.
• Igor Zhydenko (age 50) was appointed to the CEC on June 1, 2007. Prior to that he was elected to Parliament with the Bloc of Yuliya Tymoshenko in the March 2006 election.
• Bronislav Raykovskiy (age 59) was first appointed to the CEC in February 2004 from the Communist Party quota, and reappointed in June 2007.
• Oleksandr Chupakhin (age 61) was appointed to the CEC in February 2004 and reappointed in June 2007 with the support of the Socialist Party.
• Yuliya Shvets (age 36) was appointed to the CEC in June 2007. Shvets was supported by the Motherland Party.
• Oleksandr Shelestov (age 40) was appointed to the CEC in June 2007 with the support of the Party of Regions.
• Valeriy Sheludko (age 54) was appointed to the CEC on December 8, 2004 with the support of the Party of Regions. He was reappointed in June 2007.
These members were appointed to the CEC on June 1, 2007 in preparation for the snap Parliamentary elections that were called for September 30th of that year. Other members of the CEC are:
• Oleksandr Osadchuk (age 55) was appointed to the CEC in February 2010 with the support of the Bloc of Volodymyr Lytvyn. Osadchuk’s term will end in February 2017.
• Oleg Didenko (age 36) was appointed in April 2014 with the support of Vitaliy Klitchko’s UDAR (Ukrainian Democratic Alliance for Reforms) party. His term expires in April 2021.
• Kateryna Makhnitska (age 34) is the youngest member of the CEC and was appointed in April 2014 with the support of Svoboda Party. She is married to former Prosecutor General Oleg Makhnitskyi who is also a Svoboda member. Her term will end in April 2021. Makhnitska and Didenko are the first post-Euromaidan appointees to the CEC.
In June 2014, the terms of 12 of 15 CEC members were set to expire. However, at the time, Ukraine was engaged in a full-scale military conflict with Russian-backed forces in the Donbass and Parliamentary Elections were scheduled in just four months. Moreover, at that time, the Parliament consisted of a large number of Party of Regions deputies from the Yanukovych regime, and reaching consensus with them on the new candidates would have been problematic. As a result, the decision on replacing the CEC members with new nominees was postponed and existing members were allowed to continue in their posts.
After the Parliamentary elections in October 2014, replacement of the CEC members whose terms had expired continued to be delayed. When no action was taken to replace the expired terms of members, Radical Party leader Oleg Liashko filed a lawsuit in the summer of 2015 to force the President to take action. Ultimately the Higher Administrative Court of Ukraine acknowledged that the President failed to act in a timely manner, while simultaneously refusing to require the President to actually submit the list of nominees to Parliament.
Following the October 2014 Local Elections and subsequent runoffs in November, it appeared that the matter might be resolved in December of last year. The list of nominees from the Parliamentary factions were drafted and sent to the President for review. At that time, there was a belief by the Parliamentary factions that each faction should receive at least one representative from the dozen vacancies. Other factions like the Opposition Bloc, believed that since they were the primary opposition to the current government, they should split the twelve vacancies with the governing coalition.
For example, the Opposition Bloc initially proposed seven candidates including five current and former CEC members to fill vacancies at the CEC according to the lists circulated in the Parliament last December. The candidates were:
• Mykhailio Okhendovskiy, a two term member of the CEC the current Chairman since July 2013. Okhendovskiy, a lawyer by profession, was first appointed to the CEC in February 2004 by then President Leonid Kuchma. He is considered a close ally of former Kuchma Chief of Staff Viktor Medvedchuk, who is one of the chief negotiators for Ukraine in the Minsk Talks with Russia and the leaders of the occupied territories of Ukraine.
• Yuri Danylevskyi, a two-term member of the CEC (and the CEC member with the most years of experience with 14 years and 10 months of service) who has served since 1999. Danylevskyi was dismissed by Parliament on December 8, 2004 as part of the compromise to hold the third round of the Repeat Presidential Runoff election during the time of the Orange Revolution. However, Danylevksyi re-emerged in June 2007 as part of the quota of the Party of Regions.
• Oleksandr Chupakhin, a two term member of the CEC who has served since December 8, 2004. Chupakhin was previously part of the Socialist Party quota to the CEC, but following the coalition between the Socialists and the Party of Regions in the summer of 2006, Chupakhin has been more closely associated with the Party of Regions and now their successor, the Opposition Bloc.
• Oleksandr Shelestov a first term CEC member since June 1, 2007. Prior to his appointment to the CEC, Shelestov worked as the Head of the Legal Department for the Party of Regions.
• Serhiy Dubovyk, who was the Secretary of the CEC from December 2004 until June 2007. After he was not re-nominated, CEC Chairman Okhendovskiy appointed him as an adviser and Deputy Chairman to the CEC Secretariat in October 2013.
• Serhiy Rumpa a Member of the Board of the National Depository of Ukraine. Rumpa is considered to be close to oligarch Rinat Akhmetov, one of the original founders and financiers of the Opposition Bloc.
• Vitaliy Zhuravsky, a three-time former Member of Parliament (most recently elected from Zhytomyr District #66 in Malyn in September 2012) and member of the Party of Regions. Zhuravsky’s legislative career is mostly remembered for drafting the controversial “libel and defamation law” which made him “One of the Ten Greatest Enemies of the Ukrainian Press,” according to the Institute of Media and Independent Media Trade Union.
The People’s Front faction, headed by then Prime Minister Arseniy Yatsenyuk, proposed three candidates for the vacancies. Their rationale for proposing three candidates rather than one was their important position as the second largest faction overall and being the junior coalition partner with the Bloc of Petro Poroshenko in the Parliament. The initial nominees were:
• Andriy Mahera, the incumbent Deputy Chairman who is serving his third term and was originally appointed in February 2004. Andriy Mahera was one of the four CEC members who refused to sign the final protocol announcing the results of the November 2004 Presidential Runoff Election. In June 2007, Mahera was named as the Deputy Chairman of the CEC and has served in that capacity since. Mahera is viewed as pro-government but with an independent streak. Last October for example, he openly disagreed with the Presidential Administration’s handling of the Pavlohrad Mayoral Election. In addition, Mahera has strong support from civil society organizations like the Reanimation Packet of Reforms.
• Leontiy Shypilov a constitutional lawyer and an adviser to Deputy Speaker Andriy Parubiy. Shypilov teaches international law at Kyiv Mohyla Academy and has the support of “Maidan Self-Defense” deputies in Parliament. (which are also associated with Speaker Parubiy). Shypilov previously was a candidate for parliament with Klitchko’s UDAR party.
• Hanna Onishchenko who was the Minister to the Cabinet of Ministers from May 2014 until April 2016. Prior to that, Onishchenko served two months as Deputy Justice Minister (March to May 2014) and for ten years as a lawyer for the firm A-Lex, which represented both Privatbank and UkrNafta (both businesses largely controlled by oligarch Ihor Kolomoyskyi). She is also viewed as an ally of Justice Minister Petro Petrenko.
All other factions except the President’s Bloc of Petro Poroshenko, proposed one nominee each. The candidates proposed by the factions included:
• Oleksiy Kocharmin from the Radical Party, who is an assistant to MP and party leader Oleg Lyashko. Kocharmin worked in the Crimea Prosecutor’s Office in 2013 supervising observance of laws in the defense sector.
• Incumbent, two term CEC member and current Deputy Chairwoman, Zhanna Usenko-Chorna, was proposed for reappointment by Motherland Party. Usenko-Chorna has served on the CEC since December 8, 2004, and from June 2007 she has served as Deputy Chairwoman of the CEC.
• Vitaliy Maksymyak was proposed by the People’s Will faction. Maksymyak is the Head of the Parliamentary Secretariat’s Human Resources Department since 2011. Maksymyak is a native of the Volyn region where he served as Deputy Chief of Staff to the Governor in 2010. The People’s Will faction is closely associated to the late MP Ihor Yeremeyev (who died in a horse riding accident last summer), and his business partner MP Stefan Ivakhiv who both were elected from single mandate districts in Volyn oblast.
• Alla Baslayeva was nominated by the Renaissance faction. The 35 year-old is currently a Darnytsya Rayon Judge (in Kyiv City), and is the former Head Legal Consultant to the Secretariat of the CEC, which represented that body to the courts.
• Yevhen Radchenko was the candidate from the Samopomich faction. Radchenko is currently the Development Director at Internews Ukraine and previously held key positions with the Organization for Security and Cooperation in Europe (OSCE), and Committee of Voters of Ukraine (CVU), an election watchdog organization. Radchenko is also a Member of the Venice Commission since 2009 and has strong support from the Western donor and assistance community.
From the beginning of the nomination process, the President and his bloc in Parliament have proposed enough candidates to fill all 12 vacancies with their candidates. In fact, according to the list circulating Parliament last December, the Bloc of Petro Poroshenko actually proposed 13 candidates for the 12 expired positions. While this was likely a negotiating tactic, it does accentuate the ambiguity of the selection process under the law, which states that the President must “consult” with Parliament on the nominees and then the Parliament must take a vote. The original list of Poroshenko Bloc nominees included the following individuals:
• Svitlana Kustova, an Honored Lawyer of Ukraine. Kustova, age 37, served as Poroshenko’s Representative to the CEC during the 2014 Presidential Election, and may be nominated to serve as the new Chairwoman of the CEC if Parliament confirms her appointment. The Chairperson, Deputy Chairperson and Secretary positions at the CEC are all elected by fellow CEC members. Kustova currently works for the law firm Moor and Partners. Previously Kustova has been a Deputy’s Assistant to MP’s Mykola Katerynchuk, Roman Zvarych, Petro Poroshenko, and Iryna Friz.
• Vitaliy Holovchuk is a law professor at the Research Institute of Management, Administration and Law of Vinnitsya National Agrarian University. In addition to Holovchuk hailing from President’s hometown, his candidacy has the support of former Yushchenko Deputy of Chief of staff Anatoliy Matviyenko who is another Vinnitsya native.
• Serhiy Repetskyi is a lawyer for Status Law Firm. Repetskiy ran unsuccessfully for Kyiv city council as a candidate with Solidarity Party in 2015.
• Bohdan Dubas is a Lviv native who was passed up for appointment as the regions’ Governor last year. Dubas’ appointment is supported by First Deputy Prime Minister and Minister of Economic Development and Trade, Stefan Kubiv. Kubiv is a close personal friend of the President and formerly served as the Presidential Representative in Parliament and National Bank Chairman. Dubas formerly served as Deputy Prime Minister of Crimea under Yushchenko, and as Deputy Mayor of Kyiv in 2014.
• Iryna Shvets is the Acting Director of the Stolytsia communal enterprise (“Capital”). In 2014 she served as a Member of the Kyiv City Election Commission for the UDAR Party, and her candidacy has the support of the incumbent Kyiv Mayor Vitaliy Klitchko.
• Yuliya Kyrychenko a constitutional lawyer and expert with the Reanimation Packet of Reforms NGO. Kyrychenko has experience working at both the Constitutional Court and Supreme Court of Ukraine. She also worked in Yushchenko’s Presidential Secretariat as the Head of Constitutional Reform in 2006.
• Alina Zahoruyko is an assistant to current CEC member Yuliya Shvets (whose term has expired). Prior to that Zahoruyko worked from 2007-2012 as a Specialist to Parliament on Legislative Support for Law Enforcement, which was headed by Shvet’s father, Viktor Shvets. Viktor Shvets has worked as a lawyer to Yuliya Tymoshenko in the past.
• Olesiya Zubrytska is an assistant to Poroshenko Bloc MP Oleksandr Tretyakov (Kyiv District #129 Svyatoshyn Rayon and former Deputy Chief of Staff to Yushchenko). Zubrytska, age 36, campaigned unsuccessfully for city council in Kyiv last October as a Solidarity Party candidate.
• Semen Stetsenko is the First Deputy at the Institute of the Penitentiary Service. Stetsenko graduated from the Kirov Military Medical Academy in Saint Petersburg in 1997. In 1998 he was the Head of the Medical Service Training Center and Military Academy of the Ministry of Defense of the Russian Federation in Saint Petersburg. In 1999, Stetsenko served as the Head of the Research Laboratory of the State Institute for Advanced Training of the Ministry of Defense of the Russian Federation in Moscow. Stetsenko began his work in Ukraine in 2004 when he became the Head of the Department of Administrative Law and Management of Internal Affairs, at the Kyiv National University of Internal Affairs. In 2007 he switched to become Head of the Theory of State and Law Department of Legal Disciplines of the National Prosecution Academy of Ukraine. Finally in 2013 he joined the Institute of the Penitentiary Service in his current post. Stetsenko’s candidacy has been one of the more controversial nominations given his lack of connection to election administration, as well as his long career with the Russian Ministry of Defense.
• Olha Zheltova is the Deputy Head of the Secretariat of the Parliamentary Committee for Legal Policy and the Judiciary. Her candidacy is supported by the Chairman of the Committee, MP Ruslan Knyazevych (with the Bloc of Petro Poroshenko), who is also a former CEC member from 2004-2007. Zheltova (age 52) is also a former assistant to longtime MP Yuri Klyuchkovskiy, who authored many bills and legislation, particularly in the electoral field.
• Olha Aivazovska is the Director of the OPORA civic watchdog organization. However, upon learning of her nomination, Aivazovska quickly stated that she did not consent to be appointed and if elected, would not serve. Instead, Aivazovska endorsed the candidacy of Volodymyr Kovtunets and called on the reformers in Parliament to back his candidacy.
• Volodymyr Kovtunets is an election lawyer who previously worked as a top expert for a USAID funded election administration program (2001-2008). Kovtunets is well regarded by the Western donor and assistance community and his candidacy has the support of election related NGOs such as OPORA, CVU and the Reanimation Packet of Reforms.
• Mykhailo Verbenskyi (age 61) served as the Chief of Staff to Interior Ministry under Yuri Lutsenko from 2005-2010. Since March 2014 he has served as the Director of the Department of Monitoring and Organizational Inspection Work at the Interior Ministry. In September last year, he unsuccessfully submitted his name for consideration to serve in the Accounting Chamber.
Due to other legislative priorities, including the passage of the state budget for 2016, the vote on a new slate of CEC members was postponed until after the New Year. Following the confirmation of Volodymyr Groisman in April, the replacement of the CEC members was again on the agenda for mid-May. By that time, the nominees from the Poroshenko Bloc and the Opposition Bloc had somewhat changed reflecting new political realities. From the Poroshenko Bloc, there were three key changes:
• First, Nataliya Agafonova (age 39), a second term Member of Parliament was floated as a new CEC member and mentioned as the President’s choice to Chair the body (over Kustova who was previously being considered). While the CEC elects its own leadership, historically the President’s opinion weighs heavily on the selection of officers. For example, Kuchma supported Sergiy Kivalov in 2004, Yushchenko supported Yaroslav Davidovych in 2007 and Yanukovych supported Okhendovskiy in 2013. Agafonova, a lawyer, was first elected to Parliament in 2012 with Vitaly Klitchko’s UDAR, and re-elected with the Bloc of Petro Poroshenko in 2014. She taught constitutional law at Taras Shevchenko University in Kyiv and currently is the Chairwoman of the Parliamentary Subcommittee on Constitutional Law and Justice.
• Second, Olha Aivazovska (who rejected her nomination as it was not pre-approved by her) was replaced by Vitaliy Plukar. Vitaly Plukar (age 30) is currently the Head of the Department for Monitoring the Activities of Local Authorities for the Department of Local Government and Decentralization in the Presidential Administration. Plukar formerly served as a Deputy’s Assistant to MP Valeriy Karpuntsov, who formerly was the Head of the Legal Department for Klitchko’s UDAR party, and an Assistant to the Prosecutor General of Ukraine. Karpuntsov was nominated to the CEC by outgoing President Viktor Yushchenko in February 2010, but his candidacy was rejected by Parliament. Karpuntsov plays an influential role behind the scenes in the Poroshenko Bloc faction.
• Third, the controversial nominee Semen Stetsenko was replaced with Olha Lotyuk. Olha Lotyuk (age 43) is a constitutional lawyer. She campaigned for Mykola Onishchuk in the 2002 election when he was a candidate with President Kuchma’s “For a United Ukraine” Bloc. Onishchuk later became Justice Minister under President Victor Yushchenko from 2007-2010.
The other significant change to the pool of nominees came from the Opposition Bloc party. After initially proposing seven candidates but failing to receive adequate support for its position that the opposition should receive half of the positions, the Opposition Bloc consolidated all their support behind incumbent Chairman Mykhailo Okhendovskiy. The other six nominees were dropped.
These changes were quickly overtaken after compromises by the President in mid-June. The President abandoned all but five of his original candidates. The remaining nominees included Svitlana Kustova, Olha Zheltova, Mykhailo Verbenskyi, Vitaly Plukar and Olha Lotyuk – with Kustova re-emerging as the leading candidate to be allegedly appointed to the chairwoman’s post. In addition to cutting the number of candidates from a high of 13 to five, the President also offered four positions to coalition partner the People’s Front. Previously only three positions had been offered to the junior coalition partner. However, the People’s Front changed all but one of their nominees (keeping just Leontiy Shypilov) from the original list, and even excluded Deputy CEC Chairman Andriy Mahera. The three new nominees included:
• Roman Greba (age 38) is a lawyer with a primarily business background. He served as a Deputy Chief of Staff to Prime Minister Arseniy Yatsenyuk before becoming a Deputy Prime Minister to the Cabinet of Ministers in December 2014.
• Oleg Konopolskiy (age 44) is a lawyer with extensive political experience. He worked for former Kyiv Mayor Oleksandr Omelchenko in the 2004 Presidential election, and was a proxy (“trusted person”) for Yatsenyuk in the 2010 Presidential Election. He has the distinction of being named an “Honored Lawyer of Ukraine.”
• Nadiya Synytsa (age 40) is also a lawyer by profession. She was a Deputy Minister to the Cabinet of Ministers from April until December 2014, when she was replaced by fellow CEC nominee Roman Greba.
The President’s list also included well regarded civil society activist Yevhen Radchenko who was nominated by Samopomich (despite Samopomich not being in the current governing coalition in Parliament), and Alla Baslayeva from the Renaissance faction. The Renaissance faction is also not part of the governing coalition but does provide key situational votes for the government. There was also one post which was left vacant on the President’s list, presumably to allow for negotiations. The Radical Party, Motherland, People’s Will and the Opposition Bloc were offered no places on the President’s proposed list. The exclusion of the incumbent Chairman Mykhailo Okhendovskiy, who was nominated by the Opposition Bloc, and of Deputy Chairman Andriy Mahera from the People’s Front were somewhat surprising. Sources close to the President explained that he desired “new faces” at the CEC, thus justifying the exclusion of two, veteran members from leadership positions. Mahera’s exclusion was particularly unexpected, but it should be noted that many civil society organizations opposed the re-appointment of Okhendovskiy due to his close association with the Yanukovych regime.
Due to the Special Parliamentary By-Elections in seven districts planned for mid-July, the Parliament decided not to change the CEC at that time. Instead a general agreement was reached to postpone the vote until at least September when Parliament returned from its summer break. Thus, when Parliament returns in early September, it is hoped that the 12 expired terms of CEC members will finally be filled with the new candidates.
International Good Practices:
A review of international good practices, particularly with an emphasis on European countries, provides ideas for Ukraine’s CEC selection process. In Iceland for example, the parliamentary factions nominate five candidates and alternates proportionate to their representation. These candidates are then approved to serve four-year terms at the national level and constituency (district) level. Thus, the local level commission composition mirrors that of the national. The alternates automatically take the place of members who are unable to serve their full four-year term.
In Latvia, the parliamentary parties nominate their candidates to fill eight positions on the CEC. The ninth member is a judge nominated by the Supreme Court. Using this method, the parties are not alone in having representation on the CEC, and the judge provides a theoretically independent, legal perspective on activities. Neighboring Lithuania has a 16-member CEC, with all seven parties which have received seats in the previous parliamentary election, receiving one member each on the commission. The Ministry of Justice selects four candidates and the Lithuanian Bar Association also selects four members. Finally, the Speaker of Parliament chooses the sixteenth and final member of the CEC who serves as the Chairperson. Accordingly, in Lithuania, at least half of the CEC members must be educated as lawyers.
The introduction of lawyers and members of the judicial branch into the CEC composition is a confidence-building measure in European countries. The nomination of alternates along with regular nominees (in Iceland) is an efficient mechanism for filling vacancies, promptly. Finally, provisions that allow each parliamentary faction to have representatives on the CEC is an effective to have “buy in” from the various political forces. While no single model is a one-size-fits-all solution, the experience of European countries with democratic traditions – and in some cases post-Soviet experiences – can be valuable for Ukraine.
The current process of selecting and approving CEC members needs improvement. More than 26 months have passed since the terms of 80% of the respective CEC members have expired. While Ukraine has faced a war and recession during that time period, it has also managed to hold two national elections, Mayoral runoff elections in 29 major cities, and a Special Parliamentary By-Elections in seven districts. Thus, if Ukraine is able to conduct elections that generally meet international standards – despite the difficulties of war and recession – then one can argue that it is also capable of filling vacancies in the supreme election administration body as well as passing legislation to improve the selection and approval process. Based on international good practices and the unique attributes of Ukraine’s electoral system, the following reforms to the selection and approval of CEC nominees could be recommended:
1. To safeguard institutional memory, the terms of CEC members should be staggered in future, so that at no more than two members per year have their terms expire.
2. The Central Election Commission needs greater balance and representation of different political forces.
3. To allow greater input from civil society on nominees, and/or include representatives from civil society organizations, and/or individuals selected by the judiciary or through the civil service system as CEC members.
4. Consideration should be given to ensuring gender balance in the CEC composition, as well as representation of marginalized groups, such as internally displaced persons, persons with disabilities, and minorities.
What are the benefits of such reforms? First:
• The terms of CEC members should be staggered in future so that at no more than two members have their terms expire at the same time.
It is clear that when the terms of 80% of the CEC membership expire at the same time, there is a real potential for the disruption of the EMB’s work. Replacing more than half of the CEC at any one time may have a negative impact on institutional memory of the Commission and on smooth leadership succession. In light of this, there are a number of states (such as South Africa, Mexico, Guam, and others) that use a staggered appointment system.
Therefore, once the CEC commissioners with the expired terms are replaced by the new 12 commissioners, the Parliament should consider amending the Law on the Central Election Commission to stagger the terms of the future CEC members. In particular, the Law on the Central Election Commission could provide for early termination of powers of certain number of commissioners (e.g., one-third or less of all the CEC members representing different political parties) with subsequent appointment of the new commissioners proposed to the President from the same parties based on consultations with political groups
Some of the benefits of such a staggered system include:
• Preserving institutional knowledge and election administration experience are not lost en masse, as the replacement of members is gradual.
• Ensuring a smooth transition of power when new members are appointed, since existing members will provide leadership and share experience with the newcomers. This improves the efficiency of the commission’s work.
• Prevent “stacking” of the CEC with loyalists from any one political force in a single vote.
• The gradual replacement of members allows the CEC to adapt to changing political realities on annual basis while simultaneously preserving its continuity.
• Ensuring the independence of the CEC members from partisan politics. The term of a CEC member is seven years versus a five-year term for the President and members of Parliament. This allows CEC members to make decisions independently without fear of mass changes in the composition of the commission
• Allow for changes in leadership positions to be staggered rather than occur simultaneously. This allows the new members elected to leadership positions to grow in their job by benefiting from the experience of peers.
The next recommendation for the CEC is:
• The Central Election Commission needs greater balance and representation of different political forces.
Currently the 15 member CEC has members who were nominated by the Parliamentary factions existing in 2007. These factions included the Party of Regions (Lukash, Shelestov, Danylevskyi, Sheludko, and Okhendovskiy), Socialists (Chupakhin), Motherland (Usenko-Chorna, Zhydenko, and Shvets), Our Ukraine (Mahera), the Communists (Raykovskyi), and the “coalition” of Party of Regions and Socialists from May 2007 (Astakhova). In 2010 a member (Osadchuk) was added from the Bloc of Volodymyr Lytvyn and in 2014 nominees proposed by UDAR (Didenko) and Svoboda (Makhnitska) were added. In short, there is a historically precedent for Parliamentary factions having representatives nominated to serve on the CEC. While CEC members must be non-partisan and resign from any political party posts upon taking their position, it is important that the factions represented in Parliament and elected by the Ukrainian people, have representation in the country’s supreme electoral administrative body.
At present, and unless the President changes his proposed list from June, the 12 new members will consist of five persons nominated by the Bloc of Petro Poroshenko, four persons nominated by the People’s Front, and one person nominated from Renaissance and Samopomich each. One other position will be determined later. Depending on one’s calculation, this would give the governing coalition a minimum of ten votes on the 15 member body – and perhaps even more. Thus, this plan would stack the CEC composition heavily in favor of the governing coalition. However, Western best practices normally divide the composition of electoral bodies on an even, or close to even basis. For example, the Venice Commission states, “The central electoral commission must be permanent in nature. It should include…representatives of parties already in parliament or having scored at least a given percentage of the vote.” The OSCE (ODIHR) Election Observation Handbook (Fifth Edition), page 37 also notes, “The independence of a central election commission is enhanced if it is composed of respected and suitably qualified individuals and nominated by a balance of interests.”
Thus, a more equitable distribution of the expired seats between the governing coalition and opposition could be reached by splitting the positions equally, or on a two to one basis. If the seats were distributed according to the ratio of the size of the factions, then the Bloc of Petro Poroshenko would receive four seats, the People’s Front would receive two seats, and the Opposition Bloc, Samopomich, Renaissance, People’s Will, Motherland and Radical Party factions would each receive one CEC member. At the moment, this is the closest option to the President’s proposed list. However the problem with this approach is that the Parliamentary factions are often switching between the governing coalition and the opposition so any division would only reflect the division within Parliament at that time.
However a rotation system could also be used that was based on the size of the factions. The largest faction (Bloc of Petro Poroshenko) would get to name the first nominee, followed the second largest faction (People’s Front), then the third largest faction (Opposition Bloc), the fourth largest faction (Samopomich), continuing until the eighth and smallest faction (Motherland). After that, the process would begin from the largest again. In this manner, the Bloc of Petro Poroshenko, People’s Front, Opposition Bloc, and Samopomich would have two members each, while Renaissance, the Radical Party, People’s Will and Motherland would have one member each. Alternatively, the President could agree separately with each faction on the number of and names of candidates, and then Parliament could pass the legislation to appoint them en masse. This single resolution approach between the President and Parliament was used in June 2007, so there is a precedent for the system.
Longer term, by merging “staggered terms” with need for representation of different political parties, a rotation system would be an ideal and fair methodology. As terms of CEC members expire, a rotation system would be used to determine which faction in Parliament gets to make the next selection of their nominee. The largest faction gets to make the first selection for a expiring CEC position, followed by the second largest faction for the next post, the third largest faction for the next open post, etc. However, after successfully installing a nominee on the CEC, the particular faction who made the selection would not be eligible to install another nominee for a period of one year. This provision is a safeguard against situations where there are few Parliamentary factions and thus prevents the stacking of the CEC by a single political force. In such a case, the post would remain vacant until the one year period was fulfilled, and then the faction could offer their nominee. By combining the staggered terms decided by drawing lots, and the rotation system, an unpredictable but just methodology would be utilized.
Finally, while political parties are well represented in the CEC, civil society actors are not. Therefore it can be recommended:
• To allow greater input from civil society on nominees, and/or include representatives from civil society organizations, and/or individuals selected by the judiciary or through the civil service system as CEC members.
For example, if every fifth member of the CEC was selected from civil society, it would help to bridge the societal gap between government and the people. A selection process could be legislated by Parliament as an amendment to the “Law on the Central Election Commission”. Such a process should include a nomination procedure for candidates from civil society, public hearings organized by the government, and a civil service procedure for finalization of the nominees. The State Civil Service Commission could select the candidate with the highest test scores and/or ranking within the system of eligible individuals. Having a quota of representation for candidates from civil society organizations is a practice used in some countries and recommended by the June 26, 2014 Policy Directive from the United Nations for Support to the Design or Reform of Electoral Management Bodies. The addition of civil society leaders into the CEC membership will further distance the commission from partisan politics and expand the body’s independence.
As mentioned previously, it is an international best practice to include positions on their central election commissions for nominees selected by the judiciary (typically the Supreme Court). This is also a way to depoliticize the appointment process. As Ukraine makes progress towards full judicial independence, this may be a model to pursue.
Lastly, as an evolving, modernizing institution that is responsive to all of its citizens, consideration should be given to ensuring greater gender balance in the CEC’s composition as well as the representation of marginalized groups, including internally displaced persons, persons with disabilities, and minorities. The full participation of women and men in political and decision-making processes as voters, candidates, elected officials and EMB staff is crucial. It is important that EMBs intentionally and proactively take gender into account in the analysis, planning and implementation of all their activities, as well as in their interactions with other stakeholders involved in electoral processes. Therefore:
• Consideration should be given to ensuring gender balance in the CEC’s composition, as well as the representation of marginalized groups, such as internally displaced persons, persons with disabilities, and minorities.
The Law on Central Election Commission could make it clear that certain number of seats on the Commission must be occupied by women. Currently, the Law states that eight CEC commissioners, including Chair, Deputy Chair and Secretary of the Commission must have legal background. The Law could be amended to clearly state that the representatives of the same gender cannot hold more than 2/3 or, ideally 60% of the seats on the CEC. The need for representation of marginalized group also means that the certain number of seats on the Commission could and should be reserved for the representatives of such groups, including persons with disabilities, internally displaced persons, and minorities.