The Kremlin Speculates on Zelenskyy’s Constitutional Status

Executive Summary:

• Ukrainian President Volodymyr Zelenskyy’s term technically expired in May, but the constitution and other laws allow him to continue until elections can be held, leading the Kremlin to speculate about Zelenskyy’s status and Ukraine’s presidency.
• Russian President Vladimir Putin aims to impose his “peace” terms and needs to deal with a legitimate Ukrainian president. Moscow would accept a presidential successor designated by Ukrainian state institutions to hold talks and eventually sign documents.
• Moscow aims to coerce Zelenskyy into some semblance of negotiations under military duress, which could signify an essential acceptance of territorial losses, compromise his hero status in Ukraine, and generate further instability in the country.

The Kremlin has aired “peace” overtures to Ukraine via Western media in recent weeks and has outlined its preconditions to halting the war, namely those it demanded in the spring of 2022, plus Russia’s territorial gains since then. These conditions constitute Ukrainian capitulation (see EDM, May 29, 30). Moscow is confident that the war on the ground, in the air, and on the economic and demographic fronts will evolve in its favor, but it cannot be sure for how long. The Kremlin apparently calculates that the time is right to impose its terms on Kyiv before the tide of war might turn again.  

Starting talks and eventually signing documents would require the cooperation of a legitimate Ukrainian president. President Volodymyr Zelenskyy’s quinquennial term in office technically expired on May 20 (the fifth anniversary of his inauguration), and the Ukrainian parliament’s quadrennial term expired in October 2023. Under Ukraine’s constitution, electoral code, and law on the state of war—in the combined effect of their various provisions—parliamentary and presidential elections are not allowed to be held during wartime but are postponed until after (see EDM, November 10, 2023).

Moscow seems willing to suspend the goal of regime change until further notice and has not ruled out talks with Zelenskyy, though it ceaselessly demonizes him. The Kremlin would, however, prefer to deal with a presidential successor designated by Ukraine’s state institutions, one empowered to hold talks and sign documents.

Russian President Vladimir Putin has not conclusively ruled out dealing with Zelenskyy, but other Russian officials have ferociously. Putin and his colleagues all believe that Zelenskyy’s expired term casts doubt on the value of holding talks and signing documents with him or his representatives. In this situation, top Kremlin officials find themselves lawyering in public about Ukraine’s constitutional and legal provisions that regulate presidential incumbency and succession. The discussion is narrowly focused on legal technicalities while denying Zelenskyy’s political legitimacy at all levels.

Putin has addressed this issue extensively in international settings, including four times in the past three weeks. Most recently, he did so at the opening of the St. Petersburg International Economic Forum on June 5 (Kremlin.ru; TASS, May 17, 24, 28, June 5). Putin’s concentration on this issue reveals a sense of urgency about talking “peace” with a Ukrainian president who is deemed legitimate domestically and internationally. Using almost identical wording in numerous statements, Putin said: 

• Ukraine’s head of state has ended his term in office. The questions about Zelenskyy’s continuation as president or identifying a presidential successor must be answered by Ukraine’s own political and legal systems. 
• Those assessments are, first and foremost, up to Ukraine’s constitutional court.
• Moscow needs complete clarity about who it will be dealing with in Kyiv and with whom it will sign documents if it comes to that, particularly legally binding documents.  
• Due to Ukraine being a parliamentary-presidential republic, with the parliament ranking above the presidency (Putin’s view), presidential powers should be transferred to the Verkhovna Rada’s (Ukrainian parliament) chairperson as acting head of state in the event that a president’s term expires, and no presidential election is held.  “As a preliminary assessment, I stress, preliminary, the parliament and its chairman are the sole remaining legitimate authority. … We need a serious, deep analysis regarding the Ukrainian authorities’ legitimacy.”
• Russia could sign a treaty with Ukraine if the latter agrees and transfers full powers to the parliament’s chairman, in this case, Ruslan Stefanchuk, as acting president.

Thus, Putin does not rule out dealing with Zelenskyy and entreats Zelenskyy’s close associate Stefanchuk to step in as a potential interlocutor to Moscow. He professes some agnosticism and flexibility about the succession and tries, however insincerely, to avoid being seen as dictating the solution to Ukrainians from the outside. 

Other Russian officials come across as much tougher. State Duma Chair Vyacheslav Volodin has issued three statements of his own within a week insisting that Zelenskyy “has become a nobody” in terms of holding any peace talks once his term expired. With Stefanchuk reaffirming that Zelenskyy is the fully legitimate president until elections can be held, Volodin stated they have “usurped power,” “are outside the law,” and “perpetrate a crime against the state”  (TASS,  May 26, 29, June 4). Foreign Ministry spokesperson Maria Zakharova dismissed Zelenskyy as “the Kyiv regime’s chieftain, whose legitimacy is a matter of dispute in Ukraine itself” (TASS, May 30).

Contrary to those claims, Zelenskyy’s legitimacy looks fairly solid in Ukraine at present. Recent opinion surveys register his approval rating in the range of at least 60 percent, and he faces no serious challenge to his legitimacy within the parliament. Stefanchuk and a cross-party parliamentary majority support the president’s continuation in office with full powers. Apart from the few remaining Russophile parliamentarians, Zelenskyy’s overt opponents in the Verkhovna Rada are his former teammates Oleksandr Razumkov (previous chairman of parliament) and Oleksandr Dubinsky (associate of the tycoon Ihor Kolomoyskyi, both currently under indictment).

Moscow has yet to decide whether to write off Zelenskyy as an interlocutor or, on the contrary, attempt to goad his representatives and, ultimately, Zelenskyy himself into some semblance of negotiations under military duress. Such talks, if held, would redound to Moscow’s advantage. They would signify an essential acceptance of territorial changes through military force, compromise Zelenskyy’s hero status in Ukraine, and trigger a backlash that could destabilize the country’s politics.