On June 3, 2016, the President of Ukraine submitted a proposal to the Parliament to dismiss 12 members of the Central Election Commission (CEC) whose terms in office expired in June 2014 and to appoint 11 new CEC members.
Many national experts are adamant that 10 of the 11 proposed candidates are affiliated with parties that established a coalition in the Parliament. Among the CEC members proposed by the Present there are no nominees from Oleh Liashko’s Radical Party, Batkivshchyna, Narodovladdia and from the Opposition Bloc, even though the candidates from these parliamentary groups have previously (the end of 2015 and early 2016) been proposed. Should Parliament approve all 11 nominees suggested by the President, 11 out of 14 CEC members would be affiliated with the ruling coalition (further information on the proposed candidates can be found here). With such potential polarity in the CEC, many experts have expressed concern to whether the Commission would be able to perform as an independent, electoral management body (EMB) as required by the Law on Central Election Commission. Independence of any EMB in any country, be it governmental, independent or mixed is a cornerstone of its operations. The need for ensuring EMB independence is specifically highlighted in the Venice Commission’s Code of Good Practice in Electoral Matters, among other multilateral agreements.
While the President came up with a slate of proposed CEC members in June 2016, none of the nominees have been considered by the legislature so far. Hence, 12 out of 15 CEC commissioners continue holding their positions even though they should have been replaced in 2014.
Key steps to strengthen independence of Ukraine’s Central Election Commission
1. Representation of all party groups in the parliament while replacing the CEC members
Once the President has submitted his slate of 11 nominees to the CEC, it is the Parliament who should consider the candidates and adopt decisions on replacement. However, the proposed candidates cannot be considered without prior decision to terminate the powers of the incumbent Commissioners with expired terms. Therefore, the Parliament should immediately consider termination of office of the twelve commissioners with the expired terms and, subsequently, consider the President’s slate of nominees.
While considering the President’s list of candidates (or, in the case the list is rejected by the Parliament, and further negotiations between the President and the Parliament on candidates are held), the Verkhovna Rada of Ukraine should take into account the Venice Commission’s standards governing CEC appointments. According to the Venice Commission’s Code of Good Practice in Electoral Matters, the Central Election Commission and lower-level commissions should include at least one representative from each party represented in the parliament. Should the CEC be dominated by members affiliated with the ruling coalition, it could impede its ability to exercise impartially in its operations, as required by international standards. Therefore, each party group in the Rada should have representation in the CEC – either on an equal basis or in proportion to the number of its respective seats in Parliament. To prevent the risk of the CEC being dominated by certain parties, consideration should also be given to appointing CEC members not affiliated with any political party, for example representatives of civil society, independent experts, etc. However, in the latter case the legal criteria for the selection of non-party affiliated members should aim to prevent selection of candidates from potentially marginal NGOs, or individuals who lack knowledge of elections, or are otherwise operators of special interest.
2. Constitutional and legal amendments aimed to strengthen the CEC’s independence
Once the new CEC composition is approved by Parliament, the Verkhovna Rada should consider the amendments to the Constitution and to the Law on the Central Election Commission that seek to strengthen the independence of the Commission and enforce Commissioners to hold their posts and observe the legally established terms of office.
The first step to preventing CEC members with expired terms from holding on to their posts could be an amendment to the Law on Central Election Commission. For example, a CEC Commissioner with an expired term would not be allowed to participate in CEC meetings, nor consider the issues falling within the scope of competence of the Commission, or participate in any decision-making in the Commission once the term of his/her office has expired. If such amendments are introduced to the Law on Central Election Commission, it would encourage both the President and the Parliament to launch negotiations on the proposed replacements of Commissioners, well in advance of the day of expiry.
Second, reforming the method in which CEC is formed could significantly strengthen its independence.
A number of European states have taken measures aimed at ensuring the independence of election management bodies (EMBs) composed of party representatives. For instance, in some countries (including Hungary) EMB members are appointed by 2/3 majority of the votes in the Parliament. Such an approach ensures that the interests of both, the opposition and the ruling coalition/party are considered while appointing EMB members. However, requiring a significant number of votes to appoint EMB members poses the risk that no decision is made with respect to the appointments, for instance when the opposition and ruling coalition/party fail to reach consensus on the names of the prospective commissioners. Given Ukraine’s political context, the use of the Hungarian approach might result in a situation when the Rada fails to appoint CEC members due to the lack of the required number of votes (i.e., qualified majority). If the Ukrainian Parliament chooses to introduce such an appointment procedure, it would need to consider amending the Constitution first, as only six decisions require qualified majority of the MP votes (approval of the National Anthem, approval of the National Flag, approval of the National Coat of Arms, President’s veto override, impeachment of the President, and constitutional amendments), while all other decisions can be adopted by the absolute majority of MP votes (i.e. by 226 votes).
In many countries, EMBs are comprised of party appointees and independent members who are not affiliated with any political parties. These independent members can represent civil society, academia, independent associations (such as associations of the lawyers) or judiciary. The advantage of this approach is that EMBs comprised of political appointees and experts could achieve a greater balance between political and technical considerations. If Ukraine decides to use such an approach towards appointing CEC members, the Law on the Central Election Commission should be amended to specify the number of independent members, as well as procedures for their appointment.
In future, it is also recommended that the Law on the Central Election Commission should make it clear that the remaining posts on the CEC are distributed between the parties which established their factions in the Parliament in accordance to their weight in the legislature. If Ukraine chooses to switch to this model, the President should not be allowed to reject candidates for the CEC who are proposed by factions (either by the majority or by the opposition factions) and other nominating subjects, unless the proposed names fail to comply with certain legal requirements, such as minimum age, Ukrainian nationality, command of the Ukrainian language, previous background, and so on. Furthermore, to reduce the risk of arbitrary appointments, candidates who are proposed by the President should be approved through a single decision via Parliament, rather than by separate decisions with respect to each proposed name. If each appointment requires a separate decision, the Parliament could vote for certain candidates (for instance, those loyal to the Government) and reject others, which could lead to an increase of political influence in the appointment process. However, given that under the current legal framework one single decision to appoint the CEC is not allowed, the expected changes in the CEC composition in 2016 are likely to be introduced through several, separate decisions.
In the future, another way of ensuring the independence of the EMB could be an establishment of an independent panel comprised of 5-7 independent election experts and civil society representatives to select a pool of candidates; the President would select (and propose, if the Parliament is involved in the appointment process) candidates from this pool. Such an approach towards appointing the CEC (especially, if the Parliament is not involved in appointing or discharging CEC members from office) could potentially contribute to the de-politicization of the Commission and push the current, “party-based” EMB model in Ukraine to a “expert-based” model. However, before introducing such an appointment procedure, the Parliament should carefully consider the mechanisms aimed to ensure real independence and transparency of the independent panel in charge of pre-selecting the CEC members. This approach proved to be effective in a number of cases when establish agencies with significant levels of operational independence from both the Parliament, Cabinet and President, in Ukraine. For example, this strategy was utilized when conducting appointments for the National Anti-Corruption Bureau.
Importantly, the independence of the CEC depends not only on appointment procedures, but also on procedures for discharging Commissioners from office, as well as on provisions governing the operations of the Commission.
Currently, the Law on Central Election Commission allows Parliament to hold a no-confidence vote directed at the CEC at any time, if the respective decision is supported by a 2/3 majority (i.e., by 300 MP votes) in Parliament. In 2007, implementation of this provision was politically motivated and resulted in the termination of powers of all CEC members and led to the appointment of a new Commission. As has been mentioned above, the possibility of “impeaching” the CEC for any reasons at will of the President and 300 MPs might have a negative impact on the level of independence and impartiality of the Commission as an EMB. While in principle the Parliament and President should have the right to dismiss a discredited Commission and appoint new 15 members, the possibility of voting no confidence with the Commission should be limited to strongly compelling reasons, such as repeated grave violations of the laws or repeated failures to enforce court decisions.
Articles 11 and 12 of the Law on Central Election Commission make it clear that the Commission can hold its meeting if at least 10 members of the CEC are present at the meeting, while the decision of the Commission is considered adopted if 8 members vote for it. In fact, the Commission can be deemed legitimate if only 10 its members are appointed. This particular provision can encourage the Parliament not to appoint all of the commissioners for political considerations, for instance, if certain political balance within the Commission is needed. While this provision is understandable and is aimed to prevent blocking the operations of the Commission if a certain number of members are not appointed, consideration should be given to reviewing it to increase the number of the Commissioners required to be present at Commission meetings. For certain important decisions, such as establishment of election results, adoption of the internal regulations for the CEC (such as Rules of Procedure) the Law on Central Election Commission could and should consider requiring higher numbers of votes of the Commissioners, up to two-third majority. These amendments could also strengthen the independence of the CEC if current appointment procedures are maintained.
One of the positive international best-practices is to ensure representation of women and marginalized groups (people with disabilities, IDPs etc.) in the EMB. These international standards should also be carefully considered while amending the Law on Central Election Commission.
The termination of powers of most of the CEC members at one time has a negative impact on the institutional memory of the institution and has the potential to paralyze its operations, such as Parliament for failing to appoint new CEC Commissioners and replace those with expired terms. In the short to medium-term, consideration should be given to amending the Law on Central Election Commission aimed at ensuring that terms in office of Commissioners are staggered, and are gradually replaced (for instance, one-third of the CEC members every two years). In addition to retaining the institutional memory of the CEC, such a provision providing staggered terms could adapt the political configuration of the CEC to that of the Parliament, if it has changed. It is the opinion of this work that these reforms be implemented at the CEC no later than the early 2020’s.
The considerations expressed herein were drafted by the International Foundation for Electoral Systems (IFES) and OPORA Civic Network and do not necessarily reflect the views of USAID, Global Affairs Canada, the United States Government or the Government of Canada.