UKRAINE: NATO REFERENDUM ON HOLD AFTER

C O N F I D E N T I A L SECTION 01 OF 02 KYIV 000211

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E.O. 12958: DECL: 01/29/2017
TAGS: PGOV PREL NATO UP
SUBJECT: UKRAINE: NATO REFERENDUM ON HOLD AFTER
CONSTITUTIONAL COURT APPEAL

REF: 06 KYIV 4679

Classified By: Political Counselor Kent Logsdon for reasons 1.4(a,b,d).


1. (C) Summary. President Yushchenko's January 26 decision
to refer two constitutional articles on holding a referendum
to the Constitutional Court for clarification effectively
pushes down the road the need to decide whether there will be
a referendum on membership in NATO and the Single Economic
Space (SES) in 2007. Given the Court's heavy caseload and
the recent January 18 start on hearing its first case, we do
not expect a ruling for at least six months, if not longer.
Although the President has the constitutional authority to
decline the petition for the referendum, buying time from the
Court better suits his aversion to confrontation. Comments
from the Prime Minister's team, the Presidential Secretariat,
and outside experts suggest that all parts of the GoU would
prefer to delay holding a vote that they know will fail if
conducted too soon. The most vocal MP in the Rada
(parliament) previously pushing the referendum, the late
Regions MP Kushanaryov, died unexpectedly January 17 in a
hunting accident, which may reduce pressure in the Rada in
favor of an early referendum.


2. (C) Comment: PM Yanukovych's role in this saga is
important. His team, notably Chief of Staff Lyovochkin, told
the Ambassador that it is not in the PM's interests to hold a
referendum in the near future. Yanukovych could help take
the pressure off the President by making a public statement
regarding the inadvisability of holding the referendum in
conjunction with the comprehensive NATO information campaign
of the sort he indicated was necessary while in Brussels
September 14. However, it is also possible that he could use
Yushchenko's strong desire for Ukraine to join NATO, and the
referendum wildcard, as a way to extract political
concessions on other issues. End summary and comment.

Legal Questions
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3. (SBU) Since the Central Election Commission announced on
December 29 that it had approved as valid more than 4 million
signatures in support of a referendum on NATO/Single Economic
Space (SES) membership (see reftel for details),a number of
legalities surrounding the proposed referendum have arisen.
Deputy Head of the Presidential Secretariat for legal affairs
Ihor Pukshyn, who chaired a working group to examine the CEC
protocol, announced on January 26 that the Presidential
Secretariat had asked the Constitutional Court to interpret

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the relevant constitutional articles on conducting a
referendum. In particular, he said that Court should clarify
what could be asked in a referendum. Based on the
Presidential Secretariat's read of the constitution, a
referendum's questions must relate to a normative or legal
act; therefore the proposed question: "Do you agree that
Ukraine should become a member of NATO?" does not fit into
that category.


4. (SBU) There also has been a debate about whether the
President is under any time limit to make a decision on
calling a referendum. Most experts believe he is not.
However, the 1991 law on referendums, which predates the 1996
constitution by five years and was adopted expressly to allow
the Rada to hold a referendum on Ukraine's independence from
the Soviet Union, says that the Rada must make a decision on
referendum petitions within 30 days of receipt. While most
analysts agree that the 1991 law is outdated and contradicts
the constitution, some claim this clause from the 1991 law
should oblige Yushchenko also to make a decision within 30
days.


5. (C) Political analyst Oleksandr Sushko, a pro-NATO
think-tanker and one of the country's leading foreign policy
experts, cited potential signature fraud to us in late
December 2006 as another reason why there should be no
referendum in 2007. The Presidential Secretariat could
challenge the validity of the signatures in court, he
maintained. There had not been a noticeable campaign in late
2005-early 2006 to get Ukrainians to sign the referendum
petition, he noted; how could anyone have collected over four
million signatures without anyone noticing? Sushko concluded
that this was indirect evidence of forged signatures. (Note:
the last serious referendum signature collection effort in
2000 under President Kuchma was marred by forged signatures
and exposed by investigative journalist Heorhiy Gongadze.)
Moreover, the CEC's method of using a limited random sampling
of signatures, which resulted in 200,000 signatures being
disallowed, was not a valid way to verify the signatures.

Political Considerations - where does Regions stand?
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6. (C) Comments from Prime Minister Yanukovych and his team
have generally leaned against holding a referendum in the
near future. PM Chief of Staff Lyovochkin told the
Ambassador on January 22 that in his view, and the PM,s
view, it was not time for a NATO referendum. He took note of
the Ambassador's suggestion that it was important for the PM
to show leadership on this issue.


7. (SBU) Publicly, Yanukovych said that the referendum
ideally would be held in a "calmer environment," when the
regional clefts from 2004 had healed and after more pressing
social and economic needs had been addressed. He pledged to
create conditions for an "honest and open discussion" of the
referendum's questions, since the public needed to be
educated before making such an important decision. (Note:
Septel will address the state of the 2007 NATO information
campaign.) In addition, Segodnya, a high-circulation
newspaper owned by Regions' MP and financier Rinat Akhmetov,
argued on January 3 that there is no law that compels the
President to consider a referendum within a certain
timeframe.


8. (C) Regions' most vocal anti-NATO voice, so-called "Rada
radical" Yevhen Kushnaryov, forcibly supported moving forward
on the referendum after the CEC certification of signatures.
However, Kushnaryov died unexpectedly January 17 after a
hunting accident, removing him from the political equation.
While others in Regions no doubt share Kushnaryov's views,
none come close to his prominence or force of personality.
Opposition leader Yuliya Tymoshenko told Ambassador January
19 that the departure of Kushnaryov the most prominent
non-Donetsk figure in Regions, left the party that much more
in the hands of what she described as Regions' "iron Donetsk
triangle" of decisionmakers: Akhmetov, Yanukovych, and DPM
Kluyev.


9. (SBU) Political analyst Vadym Karasyov, an advocate of
Ukrainian neutrality in the past, said to the press on
January 3 that he believes the referendum will not take place
because neither Yanukovych nor Yushchenko wants it to happen.
He argued that the PM wants to remain in good standing with
Washington in order to influence relations between Ukraine
and the U.S. Moreover, in his view, Regions, Our Ukraine,
and the Socialists are concerned that conducting a referendum
in the near term would give a platform to the anti-NATO
Progressive Socialist Party, led by Nataliya Vitrenko, and to
SDPU(o),led by pro-Russian former Chief of Staff Medvedchuk,
both currently marginalized without parliamentary
representation. (Note: the SPDU(o) led the referendum
signature drive but failed in its attempt to time it to
coincide with the March 2006 parliamentary and local
elections.)


10. (C) On the other hand, Sushko maintained that NATO
membership was primarily a bargaining tool for Yanukovych.
The PM had no strong feeling for or against NATO membership,
but since he knew that Yushchenko really desired it, he could
use the referendum issue to extract concessions from the
President on other issues. Supporting Sushko's theory was
Yanukovych's comment, issued on the Party of Regions website,
that he is "forced to honor the CEC decision," leaving an
opening to push the referendum if needed. Sushko also argued
that Yanukovych thought he could use American and European
desire for Ukraine to join NATO to his advantage. Finally,
and separately, Sushko blamed Russia for pushing the
referendum in order to keep Ukraine out of NATO.


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