(IL)Legitimate power: Can Ukraine navigate legal complexities for elections amidst war?

Here's what you'll discover in this article:

• Is the president facing indecision? Unpacking the buzz surrounding the 2024 elections.
• "For" or "against.” Examining how Ukrainians responded to the possible presidential election.
• Power pursuit or Western demands? Assessing the suitability of holding elections during wartime.
• "It would be cunning and some form of legal trickery." Exploring the possibilities of conducting elections amidst a war.

Is the president facing indecision? Unpacking the buzz surrounding the 2024 elections

Two weeks have passed since Ukraine's scheduled parliamentary elections on October 29, 2023, amid the ongoing war with Russia. However, a new Verkhovna Rada composition has not been elected. The focus now shifts to the upcoming presidential elections, mandated by rules to take place on March 31, 2024.

President Volodymyr Zelenskyy addressed the situation on November 6, stating, "Now is the time of defense, the time of the battle that determines the fate of the state and people, not the time of manipulations, which only Russia expects from Ukraine. I believe that now is not the right time for elections."

The possibility of holding presidential elections next spring has been under discussion for months and especially recent weeks.

On November 2, an NV article claimed, "Zelenskyy is doing it again. The President’s Office and Verkhovna Rada have really started preparations for the presidential elections, and the war will not stop them." Reports suggest that the president's team aims to conduct the vote in spring, planning legislative changes to allow expression of will in front-line territories. They also intend to revamp the Central Election Commission, fearing that the legitimacy of the current head of state may be questioned otherwise.

On November 3, Ukrainian Foreign Minister Dmytro Kuleba told Reuters that President Zelenskyy is weighing the "pros" and "cons" of holding presidential elections next spring.

 "We are not closing this page. The president of Ukraine is considering, and weighing different pros and cons," Kuleba said, acknowledging the unprecedented challenges of holding elections during a war with Russia.

On November 5, Oleksiy Honcharenko, a people's deputy, shared on Espreso that President Zelenskyy has purportedly decided to hold presidential elections next year. 

According to Honcharenko, “Zelenskyy instructed the President’s Office to prepare for elections scheduled for March 31, 2024 – a constitutional deadline, the last Sunday of March. The rationale behind this decision is said to be attributed to Western partners' insistence, suggesting that Zelenskyy's legitimacy would be at risk if the elections were not conducted, especially in light of Putin's plans for March elections.”

In the April 2019 presidential election, Zelenskyy secured a remarkable victory, garnering over 73% of Ukrainian votes. Initially expressing a desire for a single term, Zelenskyy later, in May 2020, stated that one term wouldn't suffice to fulfill his promises. Some officials from the President's Office echoed the sentiment that Ukrainians desire Zelenskyy's re-election in 2024.

Zelenskyy, in a summer interview, skeptically considered the possibility of holding elections during wartime, emphasizing the challenges faced by observers in such conditions. He later clarified that he would only run for a second term if elections occurred during martial law during the ongoing war. "If the war continued - yes, if the war ended - no. I cannot run away during the war," Zelenskyy said. 

In the preceding month, Zelenskyy affirmed that elections could take place during martial law if the Verkhovna Rada and the government successfully addressed all challenges.

"For" or "against.” Examining how Ukrainians responded to the possible presidential election

According to Oleksiy Koshel, the head of the Committee of Voters of Ukraine, President Zelenskyy's change in talk about elections indicates his uncertainty. Koshel suggests that the president's team often uses the strategy of leaking information to gauge public reactions, a tactic they've employed since 2019.

"They seem willing to consider holding elections in conditions similar to 2014, during wartime. However, recent surveys reveal that Ukrainians are not ready for elections at the moment," Oleksiy Koshel told DW.

A nationwide survey by the Kyiv International Institute of Sociology (KIIS) in October 2023 found that 81% of respondents believe elections should happen after the war, not now. Only 16% support the idea of holding elections amidst the ongoing conflict.

Moreover, a majority of Ukrainians are skeptical about remote Internet voting due to concerns about fraud. 65% of respondents hold a negative view, while only 29% support the concept.

The International Republican Institute (IRI) recently conducted a survey in October regarding elections. According to the findings, over 60% of Ukrainians prefer holding elections after the war ends. Meanwhile, 20% believe that, despite the ongoing war, presidential elections should proceed, and 39% support parliamentary elections. Additionally, 15% advocate for local elections. A notable 19% of respondents oppose holding any elections in the country.

This evaluation of societal sentiments and reactions to election-related topics started during the summer, allowing authorities to gauge public readiness for the election process. Taras Rad, the coordinator of the Civic Network Opora in the Lviv region, notes that this approach helped authorities understand both societal and political opposition to elections.

"If at some point they discovered that 90% of people are in favor of the election, I think it would potentially give them the opportunity to have such a discussion. Although I assure you, the expert community would not change their position. But this is good, it means that we have a good civil society, and our public organizations are not amorphous. Of course, I do not overestimate our civil society, but still the stance is right. After three months of these, as it seems to me, futile discussions, after all, they came to the point that was already obvious: there is no need to hold elections," the expert explains.

Power pursuit or Western demands? Assessing the suitability of holding elections during wartime

At the start of this fall, 100 public organizations in Ukraine criticized the idea of holding elections during the ongoing war. They argued that maintaining real competition and achieving widely accepted results would be extremely difficult in the midst of hostilities.

Those who signed a joint statement in September emphasized that "Elections and full-scale war are incompatible." They warned of the dangers, including the potential loss of legitimacy for both the election process and the elected bodies. The challenges outlined included the difficulty in forming political will during active war, the inability to ensure full participation of the military and voters abroad, and the restriction of political competition under martial law.

Political expert Oleksiy Koshel expressed skepticism about holding legitimate elections under martial law in an earlier interview. He hoped that unconventional and illegal election scenarios would not be implemented, as it would be detrimental.

Koshel, while not ruling out the possibility of presidential elections in the spring, emphasized that the question of legitimacy would depend on factors influencing public perception rather than solely on legal aspects. The Constitution of Ukraine allows the parliament to continue its powers during martial law, but the interpretation for the president is indirect. Koshel suggested seeking conclusions from the Constitutional Court, despite potential violations of the Constitution.

Political scientist Maksym Rozumnyi explained that those advocating wartime elections argue against the legitimacy of the current government, both domestically and internationally, in collaboration with Western partners.

The political scientist argues, "Our leaders wrongly emphasize this idea, especially regarding external partners. Western allies, with a legal mindset, understand that if there's a state of war, holding elections is prohibited. This legal rule should be followed. I don't believe delaying elections will create demand or change attitudes toward authorities. This argument doesn't hold."

Another opinion suggests that the government should consult with the people democratically to maintain legitimacy. However, this is deemed impractical as ensuring a full-fledged democratic expression of will nationwide is challenging. This implies the authorities will struggle to gain full public recognition.

The third key argument, according to Maksym Rozumnyi, is that in times of war, the population naturally rallies around supporting the authorities. The government may be tempted to confirm its legitimacy and seek reelection during war since doing so becomes more challenging post-war. 

Rozumnyi notes, "After the war, there'll be disappointments, dissatisfaction with results, economic and social problems, decreased Western support, making the government less popular. The chances of reelection are much lower. Hence, there's an attempt to capitalize on the current situation to extend their term in power. This perspective is evident in the political space, but it's often disguised under other arguments."

"It would be cunning and some form of legal trickery." Exploring the possibilities of conducting elections amidst a war

Conducting elections in a country at war carries more drawbacks than benefits, explains Taras Rad, coordinator of the civil network Opora in the Lviv region, in a comment to Espreso.

Echoing experts' views, he emphasizes that the legal constraints imposed during martial law conflict with democratic election principles, limiting the full participation of all election stakeholders.

"This involves media censorship, issues with voter communication, physical threats to both political entities and voters, and financial challenges. The question arises whether spending 5 billion during wartime on an election that won't yield the expected results is appropriate. In wartime, elections don't guarantee the legitimacy of a representative body. Those arguing for elections due to concerns about the illegitimacy of a representative body fail to grasp the legal extensions clearly outlined in legislation," explains Taras Rad.

He asserts that not holding elections during wartime does not undermine the legitimacy of Ukraine's parliament or president. Instead, he believes that abstaining from elections ensures trust and legitimacy. Holding elections, according to him, would be unconstitutional.

"The proposed elections would not only be unconstitutional, but, considering the mentioned limitations, the representative bodies—be it the Verkhovna Rada or the president—will undoubtedly face diminished legitimacy, as only 10% of voters are expected to participate in the elections. In contrast, the current parliament, with 60% voter support, holds more legitimacy than one elected under martial law. This appeal is to those who advocate for fair elections," stated the expert.

As the intensity of the war in Ukraine shifts, there's a potential rise in political tension. The temptation to use elections as a solution may arise. Taras Rad highlights a significant threat: authorities might temporarily lift martial law, claiming normalcy, and announce elections. However, this would be unlawful speculation.

Between 2014 and 2022, five elections occurred in Ukraine—two presidential, two parliamentary, and local. However, the wartime conditions during that period were drastically different.

"Martial law isn't always declared nationwide. If, hypothetically, martial law is applied only to certain regions due to front-line developments, it could legally permit national elections, particularly presidential ones. Parliamentary elections would involve special legislation. While this legal option doesn't guarantee elections, it opens the potential for seeking a democratic solution, provided it aligns with appropriateness and legitimacy. However, this discussion isn't feasible in the current context," emphasized Taras Rad.

Nevertheless, if authorities opt for elections in select Ukrainian territories where martial law is lifted, it would be a somewhat crafty but not entirely just move, according to political scientist Maksym Rozumnyi.

"This, indeed, would be a legal maneuver. Limiting martial law to specific regions near the front line would be cunning and some form of legal trickery. The ongoing conflict is evident throughout the country, as seen in the absence of air service over Ukraine," remarks a political expert.

As highlighted in the NV article, the Central Election Commission (CEC) and the specialized committee of the Verkhovna Rada are addressing issues in organizing the election process. This includes ensuring access for citizens, both at the front and abroad, to express their will. Efforts are underway to enhance the Register of Voters, increase polling stations abroad, and facilitate voting in front-line areas. Consequently, authorities are considering amendments to election laws, including the creation of a temporary special commission to decide on holding elections in specific territories. The proposed changes outline criteria for deeming a territory unfit for elections, providing flexibility to exclude any community from the electoral process.

Meanwhile, the Verkhovna Rada has extended martial law in the country until February. Election appointments, particularly for the President of Ukraine, require a resolution from the Verkhovna Rada. According to the schedule, the election process would have been expected to commence at the end of December.

Deputy Chairman of the CEC, Serhiy Dubovyk, emphasized that despite political speculations about the legitimacy of the parliament or the head of state after their term, the Constitution clearly mandates both the president and the Verkhovna Rada to fulfill their duties until the next elections.