C O N F I D E N T I A L SECTION 01 OF 04 KIEV 002900

SIPDIS

SIPDIS

E.O. 12958: DECL: 07/25/2016
TAGS: PGOV UP
SUBJECT: UKRAINE: WAYS OUT OF THE POLITICAL IMPASSE: FOUR
SCENARIOS FOR YUSHCHENKO

REF: A. KIEV 2855

B. KIEV 2805

C. KIEV 2888

D. KIEV 2677

E. KIEV 2899

Classified By: Ambassador, reason 1.4 (b,d)


1. (C) Summary: With the window for a Presidential decision
to disband the Rada now open and the "Anti-Crisis Coalition"
nomination of Viktor Yanukovych for PM on his desk,
Yushchenko and Ukraine face four scenarios: accept Yanukovych
as PM; reject Yanukovych's nomination but not dissolve the
Rada; dissolve the Rada and call new elections; or take no
action heading into the August break. Each scenario in turn
has two options: if Yushchenko accepted Yanukovych as PM, Our
Ukraine (OU) could either join the Regions-led coalition in
part or in whole, or remain in soft opposition; if he
rejected Yanukovych's nomination, Yushchenko could try to
convince Regions' financier Akhmetov to forward a new name or
face a constitutional crisis; if he dissolved the Rada and
called new elections, Yushchenko could face a rebellious rump
Rada or successfully call Speaker Moroz/Regions' bluff, with
new elections proceeding; if he took no action, Yushchenko
could try to convince all parties to use the traditional
August vacation time as a cooling off period or face a
determined Rada taking matters into its own hands.


2. (C) The absence of a Constitutional Court quorum,
competing claims of constitutionality, confusing legal moves
by the Rada, and fiery accusations and counter-charges by
Regions and Speaker Moroz on the one side and OU and
Tymoshenko bloc (BYuT) members on the other complicate the
current messy situation. The decision is ultimately
Yushchenko's to make, and his record is one of waiting until
the last possible moment to make difficult decisions. Moroz
told the evening session of the Rada July 25 that Yushchenko
had agreed to participate in a roundtable on the political
crisis with various political forces, academics, and
journalists at Maryinsky Palace at 2 pm July 26.
Yushchenko's deputy press spokesman clarified that Yushchenko
has agreed to the idea of such a meeting, but at a time and
place of his choosing. It appears for now Yushchenko

continues to weigh seriously both an agreement with Regions
and the dismissal option, with even OU insiders at a loss to
predict what his final decision will be. End Summary.

Scenario 1: Accept Yanukovych as PM after cutting a deal
-------------- --------------


3. (C) The Regions'-led coalition is placing heavy pressure
on Yushchenko to forward Yanukovych's nomination back to the
Rada for approval, thereby confirming Yanukovych as PM. This
is the most-talked about option. There are two sub-options:
parts or all of OU joins the coalition after negotiating
ministerial seats; or OU remains in soft opposition to a
Regions-Socialists-Communists coalition, perhaps with an
agreement on coordination.


4. (C) OU and Regions sources along with Rada Speaker Moroz
indicated to us July 24-25 that such coalition talks continue
in detail. Regions' deputy leader Makeyenko told us July 24
that Yushchenko met with three Regions deputy leaders
(Kluyev, Azarov, Bohatyrova) plus Socialist faction leader
Tsushko and OU leader Bezsmertny July 23. Regions financier

SIPDIS
Akhmetov expressed frustration to Ambassador July 24 over OU
demands to increase its share of Ministries in a possible
coalition. Moroz suggested to Ambassador early July 25 that
current discussions center around which party would get the
First Deputy PM and Ministry of Interior; current
Zaporizhzhya Governor and ex-Transport Minister Yevhen
Chervonenko is Yushchenko's preference for the latter job,
according to OU Rada staffer Petro Pynzenyk. Media reports
mid-day July 25, citing Regions sources, claim that
Yushchenko had told Regions he would submit Yanukovych's
nomination only if OU were given the posts of: First Deputy
PM, Minister of Interior; Minister of Justice; Minister of
Economy; Minister of Finance; and Minister of Industrial
Policy.


5. (C) Yushchenko and other key OU figures like Acting FM
Tarasyuk have repeatedly said publicly and privately since
the July 6 emergence of the Regions-Socialist-Communist
coalition that, despite French and Polish precedents, they
find the idea of cohabitation, with the President's party in
the parliamentary opposition, unnatural. That said, if
Regions rejects OU's portfolio demands, Yushchenko/OU could
still sign an agreement on coordinating activity with the
anti-crisis coalition without openly joining the coalition,
remaining in soft opposition. OU Leader Bezsmertny told the
press July 25 this was an active possibility. OU deputy

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leader Katerynchuk favors this option as well to give OU a
chance to rebuild (ref a). It is also possible that OU could
break up, with some factions joining the coalition and others
remaining in opposition.


6. (C) Acting Interior Minister Lutsenko told Ambassador July
24 of the possibility of creating a cleaner, younger, new
pro-Presidential political force that could avoid the
inherent weaknesses of OU and, if given time, carve out space
between Regions and BYuT. Lutsenko estimated such a project,
tentatively called "Force Ukraine," might need 18 months to
establish itself, presuming an initial Yanukovych-led
government and an eventual Presidential dismissal of the Rada
to contest new elections (note: Socialist deputy leaders
Mendus and Rudkovsky claimed to us July 20 that the idea for
such a Lutsenko-led project was initiated by Yushchenko
himself in conjunction with Acting National Security and
Defense Council Secretary Horbulin, see ref A). Presidential
chief of staff Rybachuk told the Ambassador that he fully
supported Lutsenko's plan and would be prepared to join the
new party himself.

Scenario 2: Reject Yanukovych, no dismissal, but what then?
-------------- --------------


7. (C) Dismissal appears for now to be less likely.
Yushchenko and OU would dearly like to avoid accepting
Yanukovych as PM. They cling to an all-but-extinguished hope
that it might be possible to revert to a June 20 coalition
deal between Regions and OU, initialed but never consummated,
for Yuri Yekhanurov to serve as PM in a Regions-OU dominated
government (ref b). However, OU lost its leverage July 6
when Regions paired with the Socialists instead. Akhmetov
reiterated to Ambassador July 24 that Regions/coalition would
not change its position on Yanukovych's nomination. It is
extremely difficult to see how Yushchenko could reject
Yanukovych and realize OU's hope of claiming the PM slot.


8. (C) Yushchenko already rejected the first nomination of
Yanukovych July 11, citing a procedural technicality (the
defunct "Coalition of Democratic Forces" continued to exist
de jure for ten days, until July 17). The new coalition
resubmitted the nomination July 18; the fifteen days the
President has to put the nomination forward (in Ukrainian:
"vnositi") ends August 2, though Presidential spokeswoman
Herashchenko tried July 25 to push the clock back to August
5, claiming that the document submission on Yanukovych to the
Presidential Secretariat was not completed until July 21.


9. (C) Rejecting Yanukovych's candidacy a second time,
however, would enter untested constitutional ground and a
likely constitutional crisis in the absence of a
Constitutional Court able to rule on the matter. There
literally is no precedent, since the relevant constitutional
clause on the presidential nomination of the PM (Article 106,
subparagraph 9) was amended December 8, 2004, went into
effect only in January 2006, and does not lay out the precise
procedures in any detail (ref d). Article 106 lays out
Presidential powers, not obligations. After the enumeration
of 31 powers, it reads: "The President of Ukraine shall not
transfer his or her powers to other persons or bodies" --
suggesting, as OU has claimed, that any Rada effort to act on
his behalf or his absence would be an usurpation of
Presidential authority.

Scenario 3: Dismiss the Rada - crisis, or new elections?
-------------- --------------


10. (SBU) The second option Yushchenko appears to be
considering most seriously, besides accepting Yanukovych as
PM, is dismissing the Rada and calling new elections. His
power to do so in the Constitution is covered in Article 90,
in the event a (new) Cabinet of Ministers is not formed
within sixty days of the resignation of the (old) Cabinet of
Ministers. Regions/Moroz, for their part, have tried to
reject the validity of this constitutional right to dismiss
the Rada, based on manipulation of two legal terms in
Ukrainian which are both usually translated as resignation in
English (Ukrainian: "vidstavka" and "skladennya
povnovazhennya," the latter technically translated as
"divestiture of its powers"). To buttress their technical
case, the Regions-led majority passed a resolution late July
25 to revoke its January 10 resolution (Ukrainian:
"postanova") to dismiss the Yekhanurov government.


11. (SBU) The reason? Such a "postanova" combined with the
legally-mandated resignation (Ukrainian: "skladennya
novnovazhen") of the Yekhanurov government at the start of
the new Rada session May 25 is considered a completed
resignation ("vidstavka"), according to one reading of the
Rada Rules of Procedure. Article 90 uses the word

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"vidstavka," not "skladennya povnovazhen." It is not yet
clear whether this legal effort will succeed. Former MPs
involved in drafting laws and the Constitution say such
semantics do not carry legal weight, though strict
constructionalists would likely differ; in the absence of a
Constitutional Court ruling, no one can speak with legal
certainty.


12. (SBU) Tymoshenko strongly advocates the Rada dismissal
option, since she has nothing to lose and stands to gain at
OU's expense. BYuT has attempted to shape
perceptions/influence Yushchenko by staging a Rada walkout of
her faction, threatening a mass resignation in an attempt to
make the Rada inquorate, and having BYuT MP Lyashko hold a
July 24 press conference in which he alleged there are tape
recordings of conversations between Regions' heavyweight
Kluyev and a Russian citizen in which Kluyev discusses a $300
million payoff to Moroz to join Regions in a coalition and to
support an eventual impeachment motion against Yushchenko,
tentatively planned for December.


13. (C) One possible result of a dismissal is a full-fledged
constitutional crisis fueled by a rump Rada meeting in
defiance of the Presidential decision, possibly taking
actions to seat Yanukovych and a new government and daring
Yushchenko to use force to prevent them from doing so. The
Rada laid the groundwork for a rump session July 24 by
passing a resolution empowering Speaker Moroz to convene a
"special session" if Yushchenko moved towards a dismissal
option (ref C). Moroz followed that with a prime-time
appearance on state television in which he warned of the
possibility of civil conflict and bloodshed if there were to
be a Presidential-parliamentary showdown, twice citing the
Russia 1993 example (when then President Yeltsin used tanks
to quell the rebellious Russian Duma). Notably for someone
who stood on the Maidan stage as an ally of Yushchenko, Moroz
did not mention the peaceful resolution of Ukraine's own 2004
crisis/Orange Revolution, instead calling any potential
Yushchenko dismissal action anti-constitutional. Moroz
repeated that claim to Ambassador early July 25.


14. (C) Another option is that Moroz/Regions' tough talk
bluff would be called by a dismissal; rather than choosing
confrontation, Regions would contest new elections, confident
in its ability to secure an outright majority and form the
next government alone. Moroz told Ambassador July 25 that
Regions could secure 50 percent in the next election, with
the Socialists providing the balance. Kluyev told the press
July 25 that if new elections were called, Regions and the
Socialists would bloc together and might even include the
Communists. Such a bloc in theory could build out from
Yanukovych's 2004 Presidential showing, which surpassed
Regions' March 26 electoral results by a full ten percent.


15. (C) Yushchenko/OU's dilemma over new elections is that
their popular support has continued to plummet after OU's
dismal third place showing in the March 26 elections. A
significant number of Ukrainians place primary blame for the
collapse of the Orange Coalition on Yushchenko's indecision
and refusal to form an orange coalition quickly. New
elections risk OU's near total marginalization as a political
force and likely do not provide enough time for Lutsenko to
jump start the alternative political project he described to
Ambassador July 24.


16. (C) While Tymoshenko has publicly called for a union of
all national patriotic forces to contest a new election, she
has notably remained silent about the specifics of possible
cooperation with OU. It is clear that she would expect to
set the terms and head the union as the politician currently
leading the counter charge against the Regions-
Socialist-Communist majority. Indeed, in the current
standoff and street politics maneuvering, the total absence
of any orange/OU presence is striking. New elections would
likely accelerate Ukraine's move towards an effective
two-party system, with Regions and Tymoshenko the two
dominant forces, as they have been on the streets of Kiev
since July 7.

Scenario 4: Do nothing
--------------


17. (C) While Yushchenko has a track record of making tough
decisions at the very last moment, former Prime Minister
Yehkanurov and at least one prominent
commentator/businesswoman/politician, Inna Bohoslovska,
suggested to the Ambassador that Yushchenko might just not
make any decision at all (refs B, E). In such a scenario, as
Yekhanurov outlined, Yushchenko might try to convince
political forces to allow the traditional August vacation
break to pass by as a cooling-off period, pushing off

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resolution of the political impasse until September.
However, given the resoluteness of Speaker Moroz and Regions
to force a decision in the short term, the do nothing option
appears to us to be the least likely outcome. Were
Yushchenko to not act by August 2 or 5, i.e., within 15 days
of receiving the Yanukovych nomination, we believe that it
would more likely spark an constitutional crisis, including a
possible attempt by the Rada to take matters into its own
hands, such as seating a PM and government directly (refs A,
D).


18. (U) Visit Embassy Kiev's classified website at:
www.state.sgov.gov/p/eur/kiev.
Taylor