Ukraine voters can put Ukraine on the path to democratic legitimacy

Ukraine's presidential election is the first step to solving its government's legitimacy problem

It has not been an easy start for Ukraine's new authorities, who have had to deal with annexation, armed insurgency, rescuing the national economy from the precipice and organising a presidential election no less. A baptism of fire by anyone's standards. The annexation of Crimea came when the new incumbents had barely sat at their desks. The violent provocations in the east and south of the country are unprecedented in Ukraine's 23 years of independence, whilst Russia has a 23 year track record of violence in the Caucasus and terrorism in its cities. Draw your own conclusions about where this outbreak of 'civil war' in Ukraine has in fact come from. 

 

To add to that, the current authorities have absurdly and maliciously been labeled a 'junta' by pro-Moscow tweeters and bloggers scratching around for a smear term (the only true junta that has ever existed in Eastern Europe was the early 80s junta in Poland, which was backed by the USSR), part of a well worn tradition of concept stretching by Russia. Kiev is not a 'junta' any more than Greenpeace activists are 'pirates' or 'hooligans', or indeed gay rights campaigners 'propagandists'. Despite this however, it is true enough to say that the government since its traumatic beginnings has lacked true democratic legitimacy, and therefore Sunday's presidential elections are the crucial first step in solving a legitimacy problem with Ukraine's governance which in fact goes back to 2010.

 

When Viktor Yanukovych was elected President in early 2010, parliament was still under the mandate of the 'orange parties' of Prime Minister Tymoshenko and former President Yushchenko. What then followed was a spectacular capitulation of the whole constitutional order. The Constitutional Court, re-stuffed with judges loyal to Yanukovych, ruled that parliamentary deputies could now switch sides, the problem being that, with Ukraine's closed list electoral system, this is  tantamount to your vote growing legs and walking away from you. The defectors were dubbed 'tushki', a term meaning animal corpse. The standard of parliamentarianism thereafter soon became abysmal, with 'piano playing' (deputies pressing the voting buttons of absent members), as in the Russian Duma, becoming standard practice, and even savage beatings meted out to Yanukovych opponents. Votes were sometimes registered for MPs who were not even in the country at the time. The 2012 parliamentary elections followed electoral reforms designed to favour the President's Party of Regions. The introduction of a proportion of constituency MPs favoured the ruling parties, and electoral commissions were staffed by personnel from these same ruling parties. Unlike the previous three national elections (two parliamentary, one presidential, the election was not judged internationally to have been free and fair.

 

Fast forward to February this year, and whilst the voice of the people was finally being heard, the speed with which MPs hurriedly switched sides again following Yanukovych's exit in February was, constitutionally speaking, little better than the 'tushki' of four years earlier. Just as in 2010 a 'winner takes all' mentality saw now vulnerable deputies scrambling to save their careers and positions. There was of course a huge difference however. The new authorities from the outset took power on the promise of elections. We must remember that if not for Euromaidan, Ukraine might now have been looking ahead to years or decades without such free elections, the situation which predominates in the countries of the Customs Union that Yanukovych would have taken them into, Belarus, Russia and Kazakhstan 

 

What must follow these elections is constitutional reform that will guard against the monopolisation and abuse of power of the past several years. Ukraine should adopt a parliamentary system, the kind which has lead successful reforms in the likes of Poland or Czech Republic, and resist the urge to revert to the presidential model which has in contrast failed its citizens so miserably in the post-Soviet space. Ukraine must also figure out how it manages its multiculturalism without allowing the country to disintegrate. There is scope for delegating local language and schooling policy to muncipal level, as well as the dvisive issue of historical commemorations, but Ukraine lacks the political maturity for full blown federalism, so this should wait for now. Fears about Ukraine becoming a series of fiefdoms under that scenario are well founded.

 

It is also a sobering reality that they will have to face their challenges largely without the backing of the international community. Whilst the European Union has rightly put on the table a deal to allow Ukraine to access the internal market, there is plenty from member states to suggest that the EU's backing can't be relied upon, owing to the EU member states' deep ties to Russia. Whether it be German industry, French warships, Spanish ports or London's financial sector, there is little suggest that these countries will do very much to support the freedom of Ukrainians. Ukraine's road ahead looks a lonely one. The new President will need all the collective wisdom he can muster.

 

The presidential election must be followed as soon as possible by a parliamentary one. A proportion of constituency mandates must be maintained to represent occupied Crimea and the districts currently ravaged by the Russian-sponsored insurgency. The new parliament must adhere to new standards of parliamentarianism so that the abuses of the past four years cannot be repeated. If it does this, the legitimacy problem can finally be consigned to history.

Europe's New Northern Cyprus?

Non-recognition of Crimea's status as part of Russia must be more than just words

If it looks like a duck and quacks like a duck, it's a duck. Western leaders have all been quick to proclaim non-recognition of Russia's annexation of Crimea. Yet just days after what could only very charitably be called a referendum on Crimea joining Russia (including a creditable 123% vote in favour in Simferopol and minus any option to remain in the country it has existed in for the past two decades) it seems the world is grudgingly accepting the inevitable, having offered only meagre sanctions, and apparently relieved that Russia appears to have settled for 'only Crimea'. If they're not careful their 'no business as usual' mantra will soon sound as tired and hollow as their 'red lines'.

In truth, Russia would probably have annexed it or set up a breakaway state there along with Transnistria, South Ossetia and Abkhazia in the early '90s had it not massively underestimated Ukraine's divergent political direction from that of Russia. It's difficult to see whether this will fulfil Putin's aim of bringing Ukraine as a whole 'back into the fold'; the two countries now have different sides of a historical grievance to rally around.


In the here and now, clearly the most immediate pressing concern is Ukraine's isolated military units in the peninsula. Whilst both their fortitude and restraint are commendable, there is no international military backing for them whatsoever, and if more of their lives are to be spared, it seems inevitable they will have to withdraw.

Then we must consider the issue of status. There is little prospect of a treaty or formal agreement here. Making any such agreement with Russia would be a catch 22, as making any new agreement would involve formally tearing up a previous one (the 1994 Budapest Memorandum). In so doing, what possible validity could a new agreement have if it could be torn up so easily? Therefore non-recognition seems the only way forward.

For this non-recognition to make any sense however we need to figure out what non-recognition will mean in practice. Non-recognition is absolutely right, but the problem is that if Crimea is treated as a part of the Russian Federation it basically will be.  So the wherewithal of non-recognition and how it could work needs to be figured out quite quickly. As an example, Northern Cyprus is never shown on basic maps as anything other than part of the Republic of Cyprus, and this has never lapsed in 40 years. There was for a long time even a trade ban on the export of Northern Cyprus products, abolished only in 2003. Here Greece was the force to push this forward. Ukraine will be in a stronger position to push once the DCFTA with the EU is up and running.

As regards measures on the ground, non-recognition might involve cutting transport links. It seems to me that it would be adding insult to injury to allow Russian Railways to continue to operate trains to Crimea, merely 'transiting' Ukraine proper, and this is an obvious means of sanctioning the tourism industry there. There is a case for cutting rail links between Crimea and mainland Ukraine altogether in fact. In the case of Northern Cyprus, only flights from Turkey can fly into the territory. The same blockade might be enacted by the international community here. Alternative connections could be built up via, for example, Odessa.

Energy and water are also key issues. Many have pointed out that, with the ability to cut off the peninsula's water and electricity, Kiev has a potential card to play. If the prospect of a gas cut off rears its head once more, this is obviously an option. There will have to be some restraint however. A closure of the border similar to the closure the Spanish inflicted on Gibraltar for many years would only hurt families on both sides.

There should be vigorous public campaigns against organisations endorsing the change. For example, early rumours that National Geographic is to change its map may be the start of a capitulation that must be resisted through any means available. Disregarding all other arguments, it can simply be pointed out that no major power has recognised the occupation and that the case is yet to go before the International Court of Justice.


Sport is also a factor. UEFA could play a useful role in non-recognition of Crimea's Russian status. Tavriya Simferopol and FK Sevastopol currently play in the Ukrainian Premier League and should continue to do so, and UEFA has the power to make such decisions. In in albeit more innocuous example, France's Evian TG FC were refused permission to play home games across the Swiss border in Geneva as it was in another state. On this basis UEFA should refuse to allow any teams from Crimea to participate in the Russian league structure, and threaten trouble if they do, with Russia's participation in the 2014 and hosting of the 2018 tournament potentially at risk. FIFA has always taken a hard line on political interference in the running of football (at least with African countries) so it should be difficult for Russia to force UEFA's or FIFA's hand. 

Finally, there is the question of the endgame. Even the most optimistic would be hard pressed to think that Crimea will ever truly return to Ukrainian rule. Whilst before the Russian intervention it seems there wasn't a majority in favour of Russian rule, it will be equally difficult several years down the line to expect a majority to be in favour of Ukrainian rule. But it is reasonable to hope for a more legitimate settlement in Crimea in future. Little will be possible without democracy, and with Putin's situation apparently strengthened, there is little hope for the time being, but this illustrates the need for non-recognition to be maintained, for decades if need be, as with Northern Cyprus.

What Crimeans need to realise is that the dismantling of the Ukrainian letters on the front of the Verkhovna Rada of Crimea represents, in effect, the dismantling of autonomy. The Russian Federation is a federation in name only, and Putin has progressively abolished autonomy across the country during his rule. A once ambitious plan for Kaliningrad, for example, to be a 'Baltic Republic' using both the rouble and the Euro and forming a gateway to the EU was, with Putin's accession to power, promptly shelved. Look at Kaliningrad now-a neglected backwater from which Russians flock across the border to shop at cheaper Polish supermarkets. Crimea is also, for now, doomed to become such a backwater, and they will see that last week's fake foray into democracy bears little relation to the future, where elections will offer no genuine choice and factual information, from a media which has moved from bias to full on North Korea style propaganda, will be scarce.

In a post-Putin scenario however, the issue will almost certainly be revisited. It could be argued that, in a democratised Russia, if given true autonomy, with full language rights for minorities, there would be little reason to complain about Russian rule. If Tatar, for example, appeared on bilingual street signs alongside Russian, few could complain. Another proposal might be independence, and a parallel might be drawn with Slovakia, where a 10% Hungarian minority, despite many tensions, ensures that the rights of minorities are addressed. An independent Crimea would have a 15% Tatar minority and a significant Ukrainian population, so in a democratic scenario, the communities would each have to be taken seriously. If by then however the non-recognition policy has lapsed, that opportunity will be lost.

Remember that after three decades of occupation, the Turkish population of Northern Cyprus in 2004 actually voted in favour of reunion with the south. Many of them have taken Republic of Cyprus citizenship (not surprisingly as this is also EU citizenship). Ukraine should consider changing the law to allow dual citizenship for all those in Crimea who wish to remain Ukrainian (it would also be in the wider interests of a country which has consistently lost citizens since 1991). A lot depends on the capacity of Ukrainians to build a successful country that will weaken the will of Crimeans to keep it in Putin's prison. If the EU follows through and grants visa free travel to Ukrainians, as it will do for Moldovans this May, the idea of having a 'Russkiy pasport' already begins to lose its appeal. For Crimea, it might be the beginning of a long road back.

How to hurt Putin

Sign the Association Agreement

The best thing the EU could do is get Acting President Turchynov on a plane to Brussels as soon as possible and sign the Association Agreement. The EU has shown itself over the past 3 months to be an utterly incompetent foreign policy actor. The extra powers won at Lisbon look ill-deserved, the posts of Foreign Policy Representative and EU President worthy of abolition at the next treaty change. However, the EU still has a massive tool at its disposal. The whole point of the Kremlin’s crusade all along has been to prevent the signing of the AA and to ensure Ukraine was on the path to the Eurasian Union, so signing the agreement would be a blow to Putin in no uncertain terms. It might even stabilise the situation across Ukraine and give opponents of the occupiers in Crimea a concrete reason to hang on to their Ukrainian passports. The Kremlin delights in knowing the west will never act so quickly and decisively. Oh that we could.

Close the Bosphorous to Russian shipping

Turkey has a role to play here, and a right to do so on a number of counts. Firstly, the Crimean Tatars, whose future inside a Russia with an awful minority rights record looks potentially appalling, are the Turks’ ethnic kin (as place names such as Kazantip or Bağçasaray bear clear testament to), so arguably Turkey has a moral obligation here, and the Crimean Tatar diaspora in Turkey itself would support this. Turkey's media is already claiming, rather in the way that Spain does with Gibraltar, that if Crimea breaks away, it should legally revert to Turkish rule. Although that's practically impossible, it does help to legtimise Turkish involvement. Secondly, Putin’s support for Assad has had direct consequences for Turkey, bringing with it massive refugee problems. Thirdly, Russia’s asserting itself on the Black Sea has major implications for the Black Sea security situation. Turkey should close off the Bosphorous to Russian shipping and insist on a place at the table if there is mediation. Or at the very least, Russian ships passing through the straits (there have been two in recent days) ought to be 'escorted' by their Turkish counterparts. One of two warships dispatched to the fringe of the region would also concentrate minds in Moscow. Erdoğan would probably appreciate a distraction from domestic issues, including a corruption probe. They might not have a spotless record themselves on human rights, but at the moment Ukraine should take all the help it can get.

Sanctions

An obvious one, but it took a very long time indeed and many deaths before it really looked like becoming a reality for the orchestrators of the violent crackdown in Kiev. It has been claimed however, by Mikhail Saakashvili for example, that it was the crystalising of the threat of sanctions that finally lead to the collapse of Yanukovych's house of cards. Sanctions against Russian officials might also try the patience of many of Putin's backers. There is also the potential for broader economic sanctions, and with the Russian economy now on the ropes, their impact might be felt quickly.

Parliamentary or bust

Ukraine’s new political system must be a radical departure from anything seen in the post-Soviet space

It’s not new for Ukrainians to want change. Just 9 years ago, it seemed the country was embarking on a change of direction and hopes were high. This time there is caution, and remembrance that the cost this time was far higher. The frosty reception Tymoshenko has received following her release is the clearest indication of a wholehearted desire to ‘clean house’. Ukrainians at least know what they don’t want. But May’s elections will come soon and somebody needs to be steering the ship, however imperfect. Ukraine has before it a fresh sheet of paper, but it cannot aspire to build anyone’s utopia. Inclusivity and compromise are now the keys to the country’s survival and future prosperity.

One massive challenge is to engender a culture of constitutionalism. The current authorities face a legitimacy crisis. The capitulation of the previous authorities and their voting in significant numbers for new laws has created a disconcerting reverse of the ‘tushki’ phenomenon of 2010. The relationship between deputies and their electoral mandates is now tenuous, not forgetting that the parliamentary elections of 2012 were held to poor democratic standards. If Freedom House were to assess the country today, it would not be classed as free. It obviously all depends now on the coming May elections.

The first lesson that has to be learned is that politics can’t be any more about the personalities. The post-Soviet reflex of looking to a ‘strong leader’ has had disastrous results across the region for all to see. It’s time to challenge the Eurasian myth that ‘we are different’. This myth has already cost too many people in Eurasia their lives and freedoms.

Ukraine has to adopt a wholly parliamentary system of government of the type found across most of Europe. The President should be left only with the power of veto and to call new elections. A strong Prime Minister can adopt a ‘presidential style’, like Margaret Thatcher or Tony Blair, but note Thatcher’s political demise in 1990. She was the ‘iron lady’, but when she lost the support of her party the power drained out of her overnight. It has been objectively shown that parliamentary systems, which have to by necessity take account of a wider range of stakeholders, have a better record of achieving reforms.

The party system needs reform too. Ukraine must ditch the ‘virtual parties’ which revolve solely around personalities and business interests, and embrace ideology. The high percentage of votes at the last election for the far left (Communists) and far right (Svoboda), although perhaps regrettable, told us that at least a quarter of Ukrainian voters chose to vote along ideological lines. We need to give the more moderate centre left and centre right populations that voice too. We will have to work with those who we may not totally agree with, but a party is a coalition of interests.

To have a parliamentary system also means adherence to parliamentary rules. Post-May 2014 there should be zero tolerance of ‘piano playing’, violence in the chamber, blocking the rostrum, or any such activities. Perhaps the Verkhovna Rada needs to be ‘refereed’, with deputies suspended for some time for breaches of protocol. Otherwise, the temptation to cut corners will be very acute, and we see clearly now the result.

To preserve the unity of Ukraine, we must think about how to bring all into the political process. There is a dilemma here. There is an imperative to establish new ground rules for politics in Ukraine, and that means a new constitution. Russia’s Ministry of Foreign Affairs is calling for the new constitution to be established only after elections, and for it to be subject to a referendum. That might sound reasonable enough, but there is a problem. If we look at how Yanukovych was able to take a wrecking ball to Ukraine’s constitutional structure in 2010, there is a strong argument for having the new rules in place first, but of course to have legitimacy, the whole country must be involved.

The oligarchs have a role to play here. They can continue to play a strong and influential role, just as wealthy backers of, for example, the Republicans do in America. However, in terms of the country’s assets they have to accept that their cup run is over. The EU could play a pivotal role here. Mikhael Saakashvili spoke recently about how the concrete threat of sanctions was a tipping point for many of Yanukovych’s supporters to pull the plug. If that threat hung over economic and political abuses more generally, this would limit the business elite to a role which was powerful but not excessive. What complicates this is the role of those oligarchs who failed to withdraw backing from the previous regime even as the situation deteriorated. It is more difficult to make a moral case for their continued involvement in the country’s politics, although we may find that it’s unavoidable.

How to accommodate the country’s regional differences needs much thought. At this time Ukraine lacks the political maturity for federalism, which would also leave parts of the country too vulnerable to outside interference. However, in issues such as language rights, it may make sense to allow some discretion at local level. In France, for example, minority languages can appear on street signs at the behest of local municipalities as long as the national language is also displayed (and the local municipality pays for it). This might actually be a good exercise in local democracy. Responsibility for celebrations of historical events, whether it be 9 May or the Ukrainian insurgency, should also be managed at local level, as nationally these issues have proved too divisive. Such emotive issues should not be propagandist fodder or tools for the country’s politicians any longer.

Some of the biggest issues still remain unanswered. Most significant is the threat to jobs in Eastern Ukraine from Putin’s now inevitable trade blockade. How do we explain to these people that this is not a reason to support Ukraine’s accession to the Customs Union, or to oppose democracy? Rather, it is an outrage that Putin is so content to exploit their jobs as a political tool, and they should be more angry about this than anyone. The impending gas price hikes are also a concern, although contingency plans such as reverse flow from Slovakia ought to now face fewer obstacles.

In dealings with Russia trust will be at an all time low, and Ukraine needs to protect itself. For the foreseeable future all high level talks between Ukraine and Russia should be hosted by a third country and adhere to diplomatic norms. We must not allow the degeneration into secret meetings and bullying that Putin-Yanukovych relations became. Plenty of work is needed into how to make Russia-Ukraine relations more transparent. The extent of Russian sabotage in Ukraine’s internal governance over the past several years is plain to see. More discussions need to be on the record and subjected to the greatest scrutiny.

Ukraine also needs to continue much of the patient hard work that in fact many of its institutions have already been doing. In the sphere of defence, it is rarely mentioned that the country, even under Yanukovych, was forming ever greater co-operation with NATO in many areas, and the previously announced transition to a professional army will probably now come to pass. European integration policy will also be salvageable after its 3 month hiatus, and with political will from the top the technical work will be able to proceed all the better.

Despite this, Ukrainians now realise that the future depends on them. The EU would be greatly welcomed as a guarantor to Ukraine’s European future, but it cannot be wholly relied upon. Following the logic of Saakashvili’s comments, had they acted earlier in the crisis, 100 more Ukrainians might still be alive today.