1. Evaluation of reform policies of the Parliament and Government during the period from September 2019 and its compliance with the Toronto Principles (based on the analysis of the Government Program, the plans of the ministries and the adopted/rejected regulatory acts)
The Electoral Code of Ukraine, the first draft of which was developed in the 2000s, was approved by the newly elected Verkhovna Rada of Ukraine (hereafter – the Parliament) on 19 December 2019. On 16 July 2020, for the third time in two years, the Parliament voted in the second reading on the Electoral Code of Ukraine. Prolonged work to improve election legislation involves both political confrontation between stakeholders during the two convocations of the Parliament and the practice of detailing the election laws.
Adoption of the Code is one of the steps towards the implementation of electoral reform. Key innovations include: abolition of the majority electoral system and introduction of a proportional electoral system with partially open lists in parliamentary elections and elections to local councils of large cities and local self-government bodies on regional level that are consistent with the Toronto Principles, which also include the introduction of a proportional system with open regional lists, an effective system of proportional punishment for electoral crimes, and transparency of political finances. However, the latest decisions of the Parliament in July 2020 on the partisanship of local self-government and the establishment of a monopoly of party organizations to nominate candidates in local elections in communities of 10,000 voters contradict international standards, both in terms of the electoral system and the fact of their adoption on the eve of elections.
The following important achievements in the area of electoral reform are worth noting:
- codification of electoral law – The Electoral Code of Ukraine has partially harmonized the provisions governing different types of elections - presidential, parliamentary and local;
- introduction of norms aimed at respecting citizens' rights based on the Electoral Code of Ukraine. Thus, the concept of "electoral address" and "registered place of residence" was specified for the first time at the legislative level, which allows internally displaced persons and migrant workers to exercise their voting rights, in particular, to vote at the place of actual residence. The Code also provides the basis for providing voters with disabilities with access to the electoral process. A gender quota of at least two representatives of the same sex in each of the five positions of the list is required to register the entire party list;
- The Central Election Commission (hereafter - CEC) received the right to create its own territorial offices, which would functionally support the work of the State Register of Voters locally and provide professional advice on the organization of elections;
- Legalization and extension of the powers of the CEC Training Centre, which will work in the field of special education;
- Introduction of general provisions for the use of IT technology in elections, including the introduction of electronic party reporting, electronic voter requests regarding the change of voting location or electoral address, as well as a mandatory procedure for verifying candidates' information by the CEC;
- Mandatory publication of election data in open format;
- Ensuring the inevitability of punishment for committing crimes against suffrage rights through amendments to the Criminal Code of Ukraine and the Code of Ukraine on Administrative Offenses.
2. Current challenges / issues in the relevant policy area
Despite the positive changes introduced by the Electoral Code of Ukraine, some issues have been left unaddressed and require immediate legislative regulation. Although the Code has introduced a proportional system with open regional lists, in fact the influence of voters on the election results is limited by the introduction of mandatory parliamentary seats for the "first nine candidates" from the party list that will get into the Parliament and the first candidate on the party list to run for the local council. In addition, the votes will affect only those candidates who will pass the barrier – 25% of the size of the electoral quota. The corresponding indicator should be reduced or the rating system should be abandoned altogether.
The issue of campaigning on the Internet and social networks, as well as their reporting, remains unsettled.
Another major issue is the over-funding of electoral campaigns. Thus, the 2019 election campaigns (presidential and parliamentary) reaffirmed the lack of transparency and the dependence of candidates and political parties on major donors. One of the regulatory mechanisms is to set the limits on electoral funds. If previously such restrictions were absent in the presidential and local elections, today the Code has also abolished the limits for electoral funds in the parliamentary elections. Such changes will make candidates and political parties more dependent on sponsors and lobbying for the interests of the sponsors of their electoral funds, rather than on the citizens whose interests should be represented by the parties and candidates. Although the size of the cash deposit in the local elections has been reduced, the requirement to pay a cash deposit to all candidates and parties in the local elections remains the obstacle to their participation.
The ability of the territorial election commission to analyze financial statements is low, which does not contribute to the transparency of the electoral campaigns. Many candidates ignore financial requirements, realizing their impunity. The legal framework that regulates party and election financing is imperfect. The issue of early campaigning, traditional in the Ukrainian elections, which allows to hide the real costs of the campaign, needs to be resolved. Furthermore, the operation of party headquarters and such issues as the remuneration of agitators and members of election commissions by the parties remains unsettled.
The credibility of the elections also depends on the correctness of the voter lists and the quality of the State Voter Register performance, which has never undergone an independent audit or evaluation since its introduction in 2009, and its data remains closed even to the participants of elections.
3. Recommendations for priority actions in 2020-2021, in particular, for the agenda of Parliament's second session
The key task for 2020-2021 should be to revise certain provisions of the code that apply to both national and local elections:
- review the levels of local elections which qualify for an exclusively proportional electoral system. Party monopoly is not natural for local self-government and contradicts international standards. In practice, Ukrainian political parties are often extremely poorly represented at the local level and do not have active local branches. Therefore, an approach where only political parties have a monopoly on nominating candidates in communities with more than 10,000 voters is inherently discriminatory against independent candidates;
- to abandon the current form of the imperative mandate, which should not create conditions for a party dictatorship;
- to settle the issue of agitation on the Internet and social networks. It is important to establish a fair and adequate maximum size of party / candidate election funds for all types of elections, as well as proper control over the financing of electoral campaigns.
Equally important is the internal reform of the CEC, which should include transparency and openness of decision-making, as well as the ability to ensure the safety of voters' personal data and counteract cyberattacks against information-analytical systems.