UKRAINE: POLITICAL WILL, NOT LAWS, WILL DETERMINE

C O N F I D E N T I A L SECTION 01 OF 04 KYIV 001808

SIPDIS

SIPDIS

E.O. 12958: DECL: 07/24/2017
TAGS: PGOV PREL PINR UP
SUBJECT: UKRAINE: POLITICAL WILL, NOT LAWS, WILL DETERMINE
IF UKRAINE HAS CLEAN ELECTION


KYIV 00001808 001.2 OF 004


Classified By: Ambassador for reasons 1.4(b,d).


1. (C) Summary. Parliament (Rada) adopted a number of
amendments to the law on parliamentary elections June 1 as
part of the compromise to hold early parliamentary elections
on September 30. Some changes were needed, but a number of
others reintroduced loopholes that contributed to election
fraud during the 2004 presidential elections and that had
been eliminated before the 2006 Rada elections. On the plus
side, the newly amended election law clears up some technical
aspects of holding the election and provides an appropriate
timeline for the condensed 60-day schedule of early
elections. However, the new law raises questions about how
district and local election bodies will be formed and how the
voter lists will be compiled, eases restrictions on voting
from home, and introduces a 50-percent minimum voter turnout
requirement for the first time in independent Ukraine.
Various government bodies are now coming to terms with the
new rules, but the short time frame, the lack of answers for
many of these questions, and a Central Election Commission
(CEC) thus-far paralyzed by politicization greatly enhance
the likelihood that this election will be more problematic
than the March 2006 elections.


2. (C) Comment. The potential for abuse and fraud exists,
especially around the margins of the upcoming elections, but
whether parties will exploit this opportunity remains
unclear. The strategic benefits of holding a clean election,
as Ukraine did in 2006, have been mostly overshadowed by
2007's fierce battle for power. Any of the parties could
take advantage of the loopholes, although a lot of
responsibility for the quality of the election will rest with
the Party of Regions and the Presidential Administration.
Regions--which introduced many of the dubious amendments to
the law--will have the dominant position on every election
body from the Central Election Commission down to the polling
stations. In addition, they are the only one of the three
top parties not yet fully committed to the election--they
could still block the election via various means if they
chose to do so. At the same time, the Presidential team led
by Secretariat Head and Our Ukraine campaign manager Viktor
Baloha, known for his willingness to play dirty, could also
influence the outcome of voting through
presidentially-appointed governors and district (raion)
heads. We must continue to remind all parties that another
free and fair national election is integral to Ukraine's
burgeoning democratic reputation--a bad election could hurt
Ukraine's integrity and slow down its EuroAtlantic
aspirations. End summary and comment.

Parliamentary Election Law: Some Pros, Lots of Cons
-------------- --------------


3. (SBU) PolOffs received a readout of the OSCE's Office of
Democratic Institutions and Human Rights (ODIHR) assessment
mission to Ukraine July 11-13--designed to determine what the
main pitfalls might be in holding free and fair elections;
talked with two organizations that are closely monitoring the
election process--USAID implementing partner Democracy
Associates and election watchdog Committee of Voters of
Ukraine (CVU); and attended an election seminar with the CEC
commissioners and other experts to get a picture of the legal
framework governing the September 30 elections. Experts from
Democracy Associates and CVU head Ihor Popov told us that the
newly amended election law did have some positive aspects.
Prior to its adoption on June 1, there had been no language
in the election law to address early elections, which work on
a different timeline than normal Rada elections (60 days vice
120 days)--clarifications had been required. In addition,
the amended law clears up issues related to training
commissioners on the district election commissions (DECs) and
polling station commissions (PSCs). Popov also said that
some technical details on how to form DECs and how to print
ballots were clearer now than they had been in the previous
iteration of the law.


4. (C) However, they and the ODIHR mission all cautioned that
the new law also opened the door to confusion as well as
certain kinds of manipulation and abuse.

Formation and Staffing of Election Commissions
-------------- -


5. (SBU) Under the old system, the CEC established the 225
district election commissions (DECs),which in turn
established the almost 34,000 polling station commissions
(PSCs). Under the new law, the DECs from the 2006 elections,
the CEC, and some temporary new DECs will all take a role in
creating PSCs, creating confusion about who announces the
final list of PSCs. In addition, the law says that the list

KYIV 00001808 002.2 OF 004


of PSC commissioners, who are named by the five Rada
factions, should be announced 2 days prior to the
announcement of the PSCs themselves, meaning that PSC
staffing will be designated before the PSCs are established.
As a result the factions could end up inadvertently
announcing commissioners to PSCs that are not subsequently
formed or DECs could suddenly announce new PSCs to which the
Rada factions did not name commissioners.


6. (SBU) The election law says that the factions in the Rada
appoint the members of the DECs and PSCs, but some in the
coalition, led by Speaker Moroz and also including several
CEC members, have argued that there are only three Rada
factions because Our Ukraine and BYuT factions resigned.
While most people acknowledge that there are five factions,
Moroz's refusal to admit it could cause procedural problems
if he will not recognize Kyrylenko or Tymoshenko's signatures
on official Rada documents. In addition, the ratio of party
representation on the PSCs and DECs will match the ratio of
factions in the Rada, so the coalition will control 60
percent of all commissions, while the opposition will control
40 percent. This only becomes a problem should the majority
of commissioners choose not to provide a quorum (fifty
percent plus one) at polling stations on voting day--a
concern some observers held out as a potential Regions
spoiler.

Voter Lists and the Role of the Border Guards
--------------


7. (SBU) CEC Deputy Head Usenko-Chorna expressed concern at
an early July election seminar that the new election law does
not give the CEC the wide-ranging authority to oversee voter
lists that it did in 2006. The CEC will also not use a
centralized list, so it cannot make sure that the people are
not included more than once. In addition, the State Tax
Administration is now required to input names on voter lists,
but whereas the 2006 voter lists held about 37.5 million
people, the STA has more than 46 million people on its books,
including many dead people.


8. (SBU) Of particular concern to compilation of the voter
lists is that the law now requires the State Border Guard
Service (SBGS) to report to the DECs Ukrainian citizens who
leave Ukraine within three days of the election so that their
names can be removed from the voters lists. The SBGS lacks
the technical and institutional capability to successfully
notify the correct DECs within such a short timeframe and
according to Usenko-Chorna, there is no guidance on how DECs
get the information to the correct PSCs. This problem could
also have a regionally-imbalanced impact on the voting
results, as more people may be removed from voter lists in
Western Ukraine than in the East. Ukrainians crossing the
border into Russia and Belarus show their internal passports,
which have detailed information including patronymic and
residence, making it easy to cross out the correct voter.
Travelers to Poland and points West show their external
passports, which do not contain the pertinent information,
forcing the SBGS to send out more generic information to the
election officials, which could result in multiple people
with the same first and last name being removed from various
lists.


8. (SBU) ODIHR was also worried that reopening voter lists
for changes so close to the election, after they had already
been sent to the PSCs, could increase the chance of other
manipulations of the lists. Moreover, because it is legally
prohibited for voters to protest problems with the voter list
to the DECs or the courts within two days of the election,
people erroneously removed from the lists or who return from
neighboring countries before the election cannot be re-added
to the lists. According to Development Associates, this is
also more likely to effect those who live in Western Ukraine,
where there are more border crossings.


9. (C) In addition, the SBGS could be used by different
political groups in different regions to their advantage.
The Service itself is not seen as loyal to one specific
political party. although the head of the SBGS is Mykola
Lytvyn, brother of former Rada Speaker Volodymyr, whose
People's Party was on the cusp of the 3-percent barrier in
2006 and is running again.

Mobile voting
--------------


10. (SBU) The Rada also eased the restrictions on using a
mobile balloting box to vote from home (intended for
bedridden voters.) In 2004, mobile voting was a major source
of fraud in some oblasts--in Mykolayiv oblast in the South,

KYIV 00001808 003.2 OF 004


for example, 30 percent of voters voted from home in round
two of the presidential election. In June 2005, the law was
changed to require people to submit a doctor's note to the
PSC ahead of time and to require monitors to accompany the
mobile box on its rounds. As a result, in 2006, use of the
mobile box was low. In the new law, no doctor's note or
documentation to prove inability to travel to a polling
station is required, meaning anyone can vote at home.

Ban on Absentee Balloting
--------------


11. (SBU) All experts cited the new ban on absentee ballots
as more a violation of constitutional rights than an effort
to seriously limit voting (there were only 16,000 absentee
ballots in 2006). However, experts did voice concern that it
might hurt domestic observation, since observers do not
usually observe in their own districts and will now be
prohibited from voting. In addition, Popov said that voting
from abroad has become more difficult--whereas before voters
could register at Ukrainian consulates to vote, now they must
register with their home city. This is likely to have
greater impact on migrant workers from Western Ukraine.

Fifty-percent Voter Turnout Requirement
--------------


12. (C) This is the first time independent Ukraine has had
such a Soviet-style requirement. Most political analysts
believe that it was added to the law as a back-up option,
should Regions and its coalition partners decide that they
wanted to scuttle the elections at the last minute by simply
telling their voters not to show up. However, most people we
talked to said this was not a serious concern because, if
voting day arrives, then Regions will already have decided to
participate. In addition, it would be easier for Regions to
block quorums on the CEC, DECs, and PSCs, than to try to get
voters not to vote. A second, perhaps unintended problem may
be that if the ballots of voters who choose "against all" are
counted as invalid, the turnout level will drop.

How Likely is Fraud and Abuse?
--------------


13. (C) Everyone we spoke with agreed that although the
loopholes were worrisome, massive fraud was unlikely.
Instead, they emphasized that the changes were undemocratic
and unconstitutional, in large part because they could
deprive many Ukrainian citizens of the right to vote.
Whether there are abuses and/or manipulations around the
margins of the vote will depend on how the parties decide to
conduct themselves. For example, Democratic Associates
observers said that on voting day 2006 although all the PSCs
and DECs were formed in accordance with the law, there were
violations in Odesa, Crimea, and Donetsk, and even pressure
in KYIV oblast--the commissions simply responded to political
orders.


14. (C) Comment. We are concerned that in 2006 the major
political parties attached more value to the elections being
free and fair, but that this time parties believe that they
have more to lose. In addition, there may not be enough time
or good will to hold a well-run, clean election. It is clear
that any of the top-tier parties, and even some from the
second tier, could use these loopholes to their advantage on
a local level. For example, Presidential Secretariat Head
Baloha is known for his hardball tactics and was involved in
a very dirty mayoral election in the Zarkapatiya town of
Mukacheve in April 2004. Development Associates said that
across the board most Ukrainian politicians simply do not
think strategically enough to see how a bad election could
harm Ukraine's and their personal long-term interests. They
are focused on short-term calculations and how to amass
power. Even some who understand to a greater degree about
possible negative impact on Ukraine's EuroAtlantic
aspirations may be hopeful that the West will be forgiving if
the outcome of the elections is appealing. Those few who
truly get it may have trouble convincing their allies that
the difference between a March 2006 election and a November
2004 matters. End comment.

Regions Holds the Key
--------------


15. (C) Regions's decision to fully and actively participate
in the elections will be key because the coalition controls
the majority on every election commission from the CEC to the
PSCs and Regions controls most of those. So far, the Party
is preparing for the elections, but continuing to explore
alternatives to a new vote, suggesting they still consider

KYIV 00001808 004.2 OF 004


all options open at this point. For example, BYuT MP Nemyria
told Ambassador July 20 that three senior members of
Regions--DPM Kluyev, Environment Minister Dzharty, and MP
Sivkovych met with coalition allies to discuss the
possibility of finding enough opposition defectors to recant
their Rada resignations to keep the parliament's quorum
intact. (Note. On July 24, Dzharty asserted to Ambassador
that Regions was going forward with election preparations.
End note.)


16. (C) Moreover, there may be a split within Regions between
the business wing that sees a continuation of the political
crisis as harmful to their business interests and those that
see winning at all costs as most important and believe that
they can get away with it. Regions is still home to many of
the perpetrators of electoral fraud in 2004. In particular,
the rumors about the return to Regions of Viktor Medvedchuk,
one of the authors of the fraudulent 2004 elections, and the
continued leadership of DPM Andriy Kluyev, who ran the dirty
tricks office in Yanukovych's 2004 campaign, suggest that
there are people on that side willing to play dirty.

Composition of the CEC also Causing Problems
--------------


17. (C) The remaining question mark is whether the CEC--which
will play such an integral role in whether the elections go
well--can work productively. They have held only one meting
since the new composition was announced in late May. ODIHR,
Popov, and others have noted the CEC's sharp polarization
between the coalition-nominated and opposition-nominated
members, many arguing that it is not a neutral body that can
make independent decisions and that the politicization is
inhibiting work. Popov also expressed concern that there
could be more sick-outs to block the body from making
decisions. One example of the CEC's current political
paralysis is its continued avoidance of making a decision
about dissolving the Our Ukraine party list despite the fact
that the KYIV Appeals Court ruled June 16 that it could and
the High Administrative Court upheld the ruling July 17. The
CEC has attempted to discuss with the Border Guards its role
in the upcoming elections--they met in a working group format
June 14--but there is still much work needed to be done in
this area. The CEC has also tried to adopt some aspects now
of the new voter registry law, which does not come into
effect until October.


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