Publication: Eurasia Daily Monitor Volume: 1 Issue: 140

The December 4 Ukrainian parliamentary session should have been a second day of victory for the opposition. Instead, Viktor Yushchenko and his allies failed to obtain what they sought and parliament voted to recess for 10 days. This means that it will only reconvene 12 days before the scheduled re-run of round two of the elections on December 26. Clearly, this may put the elections in jeopardy, as Central Election Commission (CEC) officials believe that they need between 21 and 45 days to prepare (Ukrayinska pravda, December 3).

A day earlier, the Supreme Court’s 21 judges had unanimously voted to annul the second round of the elections and re-hold them within three weeks. This decision went against President Leonid Kuchma and Russian President Vladimir Putin who, meeting only one earlier in Moscow, had both argued for a repeat of the entire election, not just the runoff. As the full election campaign is four months long, this would have meant an election day not earlier than April 2005 with Kuchma extending his time in office in the interim.

The authorities had already planned for this scenario with a new candidate waiting in the wings, Serhiy Tyhipko, who resigned on November 29 from his posts as chairman of the National Bank and head of Prime Minister Viktor Yanukovych’s campaign. Throughout the week, oligarch Viktor Pinchuk, Kuchma’s son-in-law from Dnipropetrovsk’s Labor Ukraine party led by Tyhipko, had lobbied for new elections with Tyhipko as the authorities’ new candidate (New York Times, December 1; The Times, December 3). Clearly, this move signaled that the authorities had dumped Yanukovych.

The authorities adopted three strategies.

First, they would lobby the Supreme Court as well as Western and Russian governments on the need to hold completely new elections. The West supported Yushchenko’s demand that there only be a repeat of round two. In the event of a new election, Tyhipko would replace Yanukovych, as the authorities believe he could be a more formidable challenger to Yushchenko.

Second, they would hint that in the event of a re-run of round two, Yanukovych would withdraw from the race. Tyhipko admitted that Yanukovych could not hope to win a second runoff, although he did not explain why. The most likely reasons would be both the “Orange Revolution” momentum in Yushchenko’s favor and also an end to censorship on Ukrainian national television channels and an inability to undertake most of the fraudulent methods used in both rounds of the elections. Yanukovych’s representative in the CEC, Stepan Havrysh, supports his withdrawal from another runoff.

With Yanukovych out of the race, Yushchenko could either run by himself (as Mikheil Saakashvili had in Georgia) or face Socialist leader Oleksandr Moroz who came third in round one (Ukrayinska pravda, December 3).

Third, they would try to trick Yushchenko into agreeing to support constitutional reforms in exchange for amendments to the law on presidential elections. Yushchenko walked into this trap on December 1 during negotiations brokered by the EU’s Foreign Policy chief Xavier Solana and Polish President Alexander Kwasniewski.

The seven-point plan agreed during these negotiations “shocked members of the Yushchenko camp” (Ukrayinska pravda, December 2). The plan accommodates most of the authorities demands’ while ignoring or side stepping most of those put forward by Yushchenko’s team.

The declaration agrees to simultaneously conduct constitutional reforms and change the presidential election law. For the authorities, transforming Ukraine from a semi-presidential to a parliamentary-presidential republic has nothing to do with any new impulse to ensure Ukraine’s democratization. Rather, they simply fear the extensive presidential powers that Yushchenko would inherit from Kuchma. As part of Moroz’s agreement to support Yushchenko in round two, Yushchenko had agreed to support constitutional reform on the condition that it would only take effect after the March 2006 parliamentary elections.

President Kuchma also must propose new members of the CEC, as the current composition has been discredited by a parliamentary vote of no confidence and by the Supreme Court ruling. The Yushchenko camp is demanding that the CEC’s representatives be evenly divided between themselves and Yanukovych’s supporters.

Yet changing the composition of the CEC would not resolve three key problems. First, during the elections the Yanukovych camp controlled two-thirds of the Territorial Election Commission (TEC) officials, and many of them have been corrupted by bribes or been themselves involved in election fraud. Changing the CEC will not change these local officials. Second, the Yushchenko camp wants CEC Chairman Sergei Kivalov and other officials involved in election fraud to be prosecuted. Third, the “transit server,” based in the presidential administration and used to manipulate votes coming from TECs, cannot be closed if the opposition cannot enter the presidential administration building.

Finally, Kuchma should act on parliament’s December 1 vote of no confidence in the Yanukovych government and dismiss it, thereby depriving Yanukovych of the opportunity to abuse “state-administrative resources” as prime minister. A provisional government would then steer Ukraine until the 2006 elections. Candidates touted for the post of prime minister include Moroz, Lytvyn, Yulia Tymoshenko, or Our Ukraine businessman Petro Poroshenko. The subtlety of this issue lies in the fact that if constitutional reform were introduced immediately after the election, the post of prime minister would have more power than the president.

Yushchenko has walked into a trap of his own making due to his poor negotiating and debating skills. This was seen both during the live television debate with Yanukovych on November 15, where he did badly, and during roundtable talks brokered by the EU and Poland. Yushchenko’s orange-clad supporters in the streets of Kyiv are highly unlikely to accept constitutional reforms that strip power from an elected President Yushchenko.