KOSOVO: CONSTITUTION DRAFTING AND ELECTIONS TIMING

C O N F I D E N T I A L SECTION 01 OF 03 PRISTINA 000729

SIPDIS

SIPDIS

DEPT FOR DRL, INL, AND EUR/SCE, NSC FOR BRAUN, USUN FOR
DREW SCHUFLETOWSKI, USOSCE FOR STEVE STEGER

E.O. 12958: DECL: 08/26/2016
TAGS: PGOV PREL KDEM UNMIK YI
SUBJECT: KOSOVO: CONSTITUTION DRAFTING AND ELECTIONS TIMING
POST-STATUS


Classified By: COM TINA S. KAIDANOW FOR REASONS 1.4 (B) AND (D).


1. (C) SUMMARY. Discussion has begun, both locally and in
UNOSEK and Contact Group venues, on the important post-status
issues of constitution drafting and timing of elections. UN
Special Envoy Ahtisaari expressed to COM and EU reps in
Pristina his view that the constitution must be drafted with
the status settlement as its core, a belief we share,
precluding any pre-status effort to begin a drafting process.
UNOSEK has also indicated informally to Kosovar contacts
that it may stipulate within the settlement a procedural
framework for drafting the constitution; that framework could
involve convening a "constitutional assembly" composed of
members of the current Kosovo Assembly, which would be
empowered to consult extensively with civil society and then
vote on the new draft. We are dubious of the wisdom of
allowing the process to be led by parliamentarians, who have
more often than not proven fractious and politically-driven;
if the constitution is to be agreed and ratified in short
order, it will take a highly controlled process with strong
U.S. and EU/Council of Europe engagement. There has also
been debate over when to hold municipal and national
elections; both for logistical and political reasons, we
think an optimal scenario would be to hold both
simultaneously in the October-November 2007 timeframe, a view
shared by the EU liaison office here, UNMIK, and key Kosovar
interlocutors. Logistically, however, earlier municipal
elections could be possible. An important consideration
relates to the judgement of whether immediate or delayed
elections post-status improve the likelihood of Kosovo Serb
participation. End Summary.

The Constitution: How and When to Draft


2. (C) The process of drafting a constitution for the new,
post-status Kosovo will undoubtedly become the most neuralgic
and politically sensitive issue facing Kosovo's politicians
after the status decision is announced. There have been
previous efforts, largely sponsored by internationally-based
NGOs, to foster the drafting of a coherent constitutional
framework, but though several documents have been produced,
none have had significant Serb buy-in, and none contain what
will inevitably become the core of the new constitution: the
provisions for minority rights and decentralization that will
be outlined in UN Special Envoy Ahtisaari's eventual
settlement package. Ahtisaari made it clear to COM and EU
reps in Pristina during his August 24-28 visit that in his
view, constitution drafting cannot begin in earnest until
after the settlement is finalized; COM and EU head of office
Torbjorn Sohlstrom agreed and urged Ahtisaari to be as
prescriptive as possible in shaping the outlines of the
constitution within his settlement papers, pointing out that
without strong guidelines from UNOSEK, the EU/COE and the
U.S., Kosovars could easily fall into a vicious -- and
lengthy -- internecine battle over the shape and relative
strength of governing institutions.


3. (C) Ahtisaari is unlikely to draft a wholesale
constitutional framework within the body of his settlement
document. The gaps left open for the Kosovars to decide will
be wide, and correspondingly troublesome, as Kosovars
themselves acknowledge. Blerim Shala, Unity Team Coordinator
and an astute observer of the Kosovo political scene, has
drafted his own two-page document outlining the roles and
responsibilities of the Kosovars and the international
community in the immediate post-UNSCR transition period.
Shala notes bluntly in his paper that "very few" issues
should be left for the Kosovars to determine in the
constitutional drafting process because of the potential for
extreme political polarization at the very outset of the
all-important transition process. Shala (protect) told COM
he was disturbed by a recent phone conversation he had with
Albert Rohan, Ahtisaari's deputy, in which Rohan ruminated on
the possibility of UNOSEK stipluating an Assembly-led process
of drafting after "ample consultation" with civil society (an
idea inspired, as Rohan admitted to Shala, by recent
criticism of the U.S.-led constitutional reform effort in

PRISTINA 00000729 002 OF 003


Bosnia). Shala fretted to COM that this approach would be
nothing short of a disaster and would considerably lengthen
the time involved in drafting a constitution, if a product
could be agreed at all.


4. (C) Our local EU colleagues also concur that a
tightly-held process, perhaps an extension of the current
Unity Team structure, with ample Council of Europe and U.S.
guidance, would be better suited to pushing through a
constitution in short order. Even with strong international
engagement, estimates on how long the drafting might take
vary from three to six months (or more). The length of the
drafting period is important, because many other processes
will depend on the establishment of a constitutional
framework, including the passage of laws on a whole host of
transition-related items -- most critically, the laws
governing elections and the competencies of local governments.

Elections Timing


5. (C) Opinion among international actors in Kosovo and key
Kosovars has also begun to coalesce around the idea of
simultaneous municipal and national elections in the
October-November 2007 timeframe, though again informal
soundings suggest that UNOSEK might push for a considerably
earlier set of national elections. Logistics would make this
latter idea difficult, especially if the constitution
drafting process drags on and the shape of Kosovo's new
institutions remains unclear for some months. Assuming a
June 2007 finish date for the constitution, elections could
take place within 90-100 days after completion, a timeframe
supported by UNMIK in its recent transition "Roadmap" and one
which OSCE agrees is doable within the scope of logistical
preparations. Kosovo's current assembly has a mandate that
will continue throughout 2007, making its protracted
existence legitimate if less than fully desirable.
Simultaneous elections would offer cost benefits and would
avoid the need to prepare twice, in a busy political year,
for all-consuming elections.


6. (C) There is, however, the possibility of holding
municipal elections sooner if deemed important for political
reasons. Local elections in Kosovo, after much heated debate
among local political parties and to the disgruntlement of
the opposition, were postponed in June 2006 by former UNMIK
SRSG Jessen-Petersen. (Note: Jessen-Petersen ordered that
elections be held no earlier than three months and no later
than six months after the date of any UNSC decision on
Kosovo's final status, but stipulated expressly that the
delay not exceed twelve months (elections were due in October
2006).) If the political imperative dictates an early
demonstration to Kosovo Serbs that the provisions of
Ahtisaari's settlement are being implemented as quickly as
possible, an election law and a law on local self-government
could be passed even without a constitutional framework in
place, allowing for municipal elections as soon as June 2007.
Such laws would eventually have to be reharmonized with the
new constitution, not an ideal way to proceed. Even more
problematic, however, is the question of Kosovo Serb
participation in elections during the immediate
post-settlement period; much will depend on their readiness,
and Belgrade's encouragement, to take part in the redrawing
of Kosovo's municipal boundaries via legislation and the
subsequent registration and election process.


7. (C) In one key logistical note, Kosovo's municipal and
general elections are currently conducted in a closed-list,
proportional representation system in which political parties
determine lists of candidates and the number of votes for
each party determines how many members of a list enter the
general and municipal assemblies. Kosovo's largest ethnic
Albanian political parties have called for a change to an
open list system, particularly the direct election of mayors.
While this change would complicate logistics, the OSCE has
told us that an open-list, direct election system could be
implemented within a 90-day window. Experts from the
International Foundation for Electoral Systems (IFES) agree

PRISTINA 00000729 003 OF 003


that local authorities could probably meet this window so
long as work on a new voter registration list was undertaken
immediately post-status.

Comment


8. (C) There are no easy or perfect answers to the question
of timing for constitution drafting and elections in the
post-status period. In our view, two goals remain paramount:
ratifying a new constitution as speedily as possible, and
preparing for elections in a way that places the emphasis on
sound planning and full participation. There is some
flexibility for alternative scenarios, but they would have to
be decided on early in the planning process and
implementation could be complex. We will continue to advise
on local thinking regarding these issues and provide input
from a practical standpoint on how to achieve Washington
objectives.


9. (U) U.S. Office Pristina does not/not clear this cable for
release to U.N. Special Envoy for Kosovo Martti Ahtisaari.
KAIDANOW