On October 31, 2021, by-elections of people's deputies will take place in two constituencies: No. 184 (Nova Kakhovka, Kherson region) and No. 197 (Zolotonosha, Cherkasy region). The election is scheduled due to the fact that the People's Deputy, Ihor Kolykhayev, became the mayor of Kherson in the local elections in 2020, and the People's Deputy Oleksandr Skichko was appointed the head of the Cherkasy Regional State Administration. According to the Law of Ukraine "On Elections of People's Deputies of Ukraine", valid for by-elections of people's deputies, the election process shall begin on September 1.
On the eve of the official start, the activity of politicians and parties has become widespread and OPORA observers note the actual beginning of the early campaign by a number of potential candidates in the constituencies. The concept of early campaigning is not regulated by the provisions of the election legislation, which creates conditions for excessive spending, shadowing of election finances, and negatively affects the equality of future electoral subjects. Formally, the campaigning shall be started by electoral actors on the next day upon their registration by the appropriate election commission. Therefore, any and all activities carried out by potential candidates and their costs are not covered by the election law before registration, and the CEC has no legal instruments to prohibit such activity.
The course and format of early campaigning measures highlight the problem of material incentives for voters, which is typical of elections in single-member majority constituencies. In their public activities, potential candidates are willing to provide (or promise to provide) voters with various useful benefits or valuable goods, focusing on the charitable rather than electoral nature of such services. Expenditures of budgetary resources and recorded examples of the use of official influence in favor of potential candidates, along with “pre-election charity,” demonstrate a real threat to restricting political competition in the by-elections.
A comprehensive analysis of various forms of public activity in August shows the de facto activity of 12 candidates: three – in constituency 184 and nine – in constituency 197. The main forms of public activity of potential candidates were direct communication with voters and the use of outdoor advertising media. To interact with voters, potential candidates focused on participating in public events, charities, and door-to-door campaigns. Advertising campaigns on social media, a popular way of communication in recent election periods, were common only to Cherkasy Oblast. There, almost all active potential candidates have used the mechanism. As to local media, they were used for early campaigning less frequently. Outdoor campaigning was there, too, which manifested itself in organizing rallies and setting up branded tents.
Some politicians who had expressed intentions or interest in campaigning in previous months had limited or curtailed their activities in the run-up to the by-elections, and the situation with regard to potential candidates had become more clear. Observations in August indicate a relatively calm campaign in the constituencies in terms of conflict, physical obstruction to campaigning, or black PR. Against this background, a resonant case of restriction of public activity was the requirement the of the municipal security of the city of Nova Kakhovka to present a special permit (constituency 184) to set up a campaigning tent of Ihor Tokovenko ("People's Power"). Nevertheless, the actions of the public administration with signs of obstruction were not systemic or recurrent in August. In the case of the spread of black PR, a potential candidate from the "Servant of the People" party, Vitaliy Voitsekhivsky (constituency 197), became a participant and object of such actions, and materials with signs of black PR appeared against him in the Khreschatyk online media. The publication referred to allegedly contradictory facts of his political biography and the media associated him, in a negative light, with the "Servant of the People" party and an oligarch Yuri Kosyuk.
The interim campaign is conducted in favorable conditions, without strict quarantine restrictions, and is characterized by intensive interaction of potential candidates and their teams with voters (including in the format of mass events), which carries risks to the health of citizens at later stages of the election process. Taking into account the epidemiological situation, election commissions, the Cabinet of Ministers of Ukraine, and local self-government bodies must implement anti-epidemiological measures in advance and in a coordinated manner, and they voters shall be properly informed about them.
The course of the early campaign
Constituency 184
Early activity in the Kherson region in August did not take a large scale. OPORA observers noted that three potential candidates have shown public activity: Hennadiy Lahuta ("We are here to live"), Ihor Tokovenko ("Popular Will"), and Ihor Yosypenko ("European Solidarity"). The most active potential candidate was Hennadiy Lahuta, whom Ihor Kolykhaev's party "We are here to live!" officially decided to nominate a candidate in the constituency in March.The main form of the candidate’s early campaign was direct communication with voters, which included a large number of pre-election charity events. Circus performances, organized medical check-ups and legal aid, support of holidays, sports and other events, as well as purchase of various goods were actively carried out during August through the Ihor Kolykhayev Charitable Foundation “We are here to live.” The charity fund has an extensive network of its representatives in the communities of constituency 184. They organize and run campaigns attended by a potential candidate, or accompanied by a message that the charity is supported by Hennady Lahuta. Another popular form of activity for a potential candidate was the outdoor advertising and media presence. Hennady Lahuta is supported in the media by Kherson Plus TV and Radio Company, which produced materials about the opening of a dinosaur park and the start of construction of a sports complex in the city of Nova Kakhovka. In addition, on the territory of the constituency, observers captured branded cars with the inscription “We are here to live, Hennady Lahuta.”
In August, Ihor Tokovenko, who represents the “Narodovladdya” (lit. – People’s Power) political party, focused more on the distribution of printed materials and street propaganda. The potential candidate set up ¸campaigning tents and organized public events. In particular, on Independence Day he staged a walk-out with the flag of Ukraine. Ihor Tokovenko has a small representation on outdoor media and occasionally appears in local media resources. The next potential candidate in terms of intensity of early campaigning is Ihor Yosypenko (“European Solidarity”). The potential candidate did not publicly announce his intention to run in the elections, but he began to be active in the form of charity and advertising on boards. Thus, at the weightlifting competitions in the village of Dudchany on August 22, he awarded the best participants of the competition and allocated funds for the development of the “Hercules” sports club. The potential candidate also began communicating with voters through the newly created “official page of Kherson Regional Council deputy, Ihor Yosypenko” (created in August).
Between June and July, observations indicated that six more candidates were likely to be nominated. In February 2021, the “Opposition Platform - For Life” party officially announced the nomination of Yehor Ustinov, First Deputy Chairman of the Kherson Regional Council, as a candidate for People’s Deputies. However, during August, the potential candidate did not show any significant public activity, although in June-July he was intensively represented in various segments of the early campaign. Ivan Vinnyk, a People’s Deputy of the 8th convocation from the “Petro Poroshenko Bloc” political party, announced his possible participation in the election campaign. Deputies of the Kherson Regional Council Serhiy Khlan, Mykola Dmytruk, Yuriy Odarchenko, and the leader of the “National Platform” party, Kateryna Odarchenko, were also named as probable candidates. However, in August it became known about the death of Mykola Dmytruk; other potential candidates did not show public activity over the last month.
|
Potential candidate |
Personal information |
The main forms of activity |
|
Hennady Lahuta
|
Deputy Chairman of the Kherson Regional Council |
Direct communication with voters by organizing a large number of charity events. Presented on outdoor advertising media. |
|
Ihor Tokovenko
|
Chairman of the Dnipropetrovsk branch of the “People’s Power” political party |
Temporary activity focuses on the distribution of propaganda products, the establishment of branded tents and the organization of public events and rallies. |
|
Ihor Yosypenko
|
Member of the Kherson Regional Council from the European Solidarity political party |
He started public activity in August. He distinguished himself with outdoor advertising and meetings with voters of the district. |
Constituency 197
In contrast to the Kherson region, in constituency 197, the activity of potential electoral subjects was more intensive in August. At various stages of the early campaign, a total of 17 candidates were active or directly declared their intention to stand in the elections. However, due to various circumstances, the public activity of a number of potential candidates completely disappeared in August. Public activity of Yevhen Kurbet, Volodymyr Netrebenko and former People’s Deputy from the constituency, Leonid Datsenko, has stopped. Serhiy Lisovy and Serhiy Dudka, who could be potential candidates from the “Servant of the People” at some stages of the early campaign, have not been active. The situation is similar with Valeria Bondarenko, who was predicted to be nominated by the “For the Future” party. In August, the activity of Serhiy Vasyliuk, from the “People’s Power” Party, and Ihor Shevchenko, from the “Successful Ukraine” Party, decreased.
A systematic analysis of various segments of public activity in August shows signs of premature campaigning for nine candidates. Vladyslav Holub, Vitaliy Voitsekhivsky, Andriy Ilyenko, Roman Sushchenko, and Ivan Stepanets joined the early campaign most actively. Vladyslav Holub holds direct meetings with voters, attends various celebrations in hromadas, uses outdoor advertising, advertising on social media, and is represented in the local media. The ex-deputy often mentioned the projects implemented in the constituency during his term, which were financed by subventions from the state budget. In August, a second cultural and educational center was opened in the constituency, where free courses are offered for senior citizens, such as “Smartphone is a Uuseful Aid” or “Financial Security and Literacy.” The initiative is carried out on behalf of a potential candidate and on behalf of the recently registered NGO “Together we are a powerful force”. The candidate was also involved in charity, in particular at the celebration of the Village Day in Moshny. There, he distributed school bags to children and reported on the installation of security cameras in a number of settlements in the constituency.
At the end of July, Oleksandr Kornienko, the head of the “Servant of the People” party, paid a working visit to Cherkasy and said that the party saw Zolotonosha Mayor, Vitaliy Voitsekhivsky, as their candidate in constituency 197. At the beginning of August, the potential candidate joined the early campaign with a large amount of outdoor advertising, publications with signs of paid articles in the print and online media of the constituency, and a significant amount of advertising on social media. Over the past month, a potential candidate has spent USD 1,118 on social media advertising. He has actively visited the hromadas of the constituency. His campaigners were active in the constituency – in “I support Voyciechivsky” T-shirts they had party tents in crowded places and collected signatures in support of a potential candidate, and handed out newspapers with his interviews and a list of achievements.
The People’s Deputy of Ukraine of the VII and VIII convocations from the “Svoboda” AU, Andriy Ilyenko, actively joined the early campaign. The potential candidate actively meets with voters, conducts door-to-door campaigning with the team, and attends celebrations and festivals in the constituency’s hromadas. He was concerned about some environmental issues and problems of school closure, in particular in the village of Shabelnyky, Zolotonosha district. He uses advertising on social media. Campaigning leaflets with a biography of a potential candidate are distributed in the constituency. He spent on advertising on social media USD 20.
The probable candidates, Roman Sushchenko and Ivan Stepanets, were relatively less active in August. Roman Sushchenko was featured on billboards congratulating people on Independence Day and focused on visits to the constituency’s communities. The potential candidate visited Helmazov, Moshny, Kaniv, Kropyvna. He took part in local holidays and discussions. He joined the organization of training for soldiers of the National Guard of Ukraine and presented party tickets of the “European Solidarity” to like-minded people of Moshny amalgamated hromada. Video blogs of the potential candidate are promoted on a paid basis on the Cherkasy NOW Facebook page. In August, it spent the total of about USD 60 on advertising. Ivan Stepanets, a deputy of the Cherkasy District Council of the previous convocation from the “Batkivshchyna” All-Ukrainian Union, had a similar type and level of activity. The potential candidate posted sporadic greetings on outdoor ad billboards on Independence Day in the constituency. He also attended various celebrations and festivals in the hromadas of the constituency. He posted greetings on the holidays in the local media.
OPORA observers note the noticeable activity in August of four more likely candidates – Mykola Tomenko, Maksym Zelensky, Yulia Hershun, and Ihor Zaychuk. At the same time, the public activity of potential candidates was limited to a small number of initiatives, which mainly included participation in public events.
|
Potential candidate |
Personal information |
The main forms of activity |
|
Vladyslav Holub
|
People’s Deputy of Ukraine of the VIII convocation |
The potential candidate actively holds meetings with voters; he is represented on outdoor advertising media; he uses advertising on social media. Free courses for the elderly are held on behalf of the candidate in cultural and educational centers. |
|
Vitaliy Voyciechovsky |
Mayor of Zolotonosha |
Early campaigning by the potential candidate is focused on advertising on social media and on outdoor advertising media. Campaigners work in favor of the candidate, campaigning tents are set up on the territory of the district. |
|
Andriy Illienko
|
People’s Deputy of Ukraine of VII and VIII convocations |
He uses a door-to-door campaign, campaign leaflets are distributed in the constituency, and advertising on social media is used in favor of a potential candidate. |
|
Roman Sushchenko
|
First Deputy Chairman of the Cherkasy Regional Council |
He focused on visits to local hromadas in the constituency; he has a representation on external media, video blogs of the potential candidate on Facebook are promoted. |
|
Ivan Stepanets
|
Member of the Cherkasy District Council of the XII convocation |
The main forms of activity of a potential candidate included direct work with voters during visits to settlements of the constituency, external campaigning, and the use of local media. |
|
Ihor Zaychuk
|
Representative of the National Corps Party |
He posted several promoted posts on social media asking for his support. He took part in a protest-performance during President Zelensky’s visit to Cherkasy region on Flag Day. |
|
Mykola Tomenko
|
Leader of the political party “Native Country Movement” |
He visited the Trakhtymyriv Reserve in the Kaniv Region and the anniversary of the Taras Shevchenko Museum in Kaniv, which was supported by the local TV channel. |
|
Julia Hershun
|
Chairperson of the Charitable Foundation “Development of Gifted Children” |
Yulia Hershun donated 1,000 antigen tests and 10,000 respiratory masks to the Kaniv community. Reports on Facebook about visiting holidays in several communities of the constituency. She appeared with the region’s leadership at public events. She did not declare her intention to run in the elections. |
|
Maksym Zelensky
|
Assistant to People’s Deputy Serhiy Rudyk |
Together with the People’s Deputy Serhiy Rudyk (elected in constituency 198), he visited the constituency, studied the issues and mainly inspected educational institutions. He reported in the print media and social media on the funds allocated with the assistance of Serhiy Rudyk from the state subvention, for the installation of sports and children’s playgrounds and repairs in educational institutions in the constituencies. He did not declare his intention to run in the elections. |
Risks of Breaking Electoral Law
Analysis of the early campaign of potential candidates shows signs of material incentives for voters and public activity with elements of using the administrative resource. The informal stage of the election process motivates potential candidates to use political strategies aimed at providing a variety of services and goods to voters free of charge. After all, in the context of the election process and after the official registration of candidates, such “electoral charity” may include signs of voter bribery, which is expressly prohibited by election law and entails administrative or criminal liability.
The practice of involving NGOs and charitable foundations into an early campaign in order to provide material incentives for voters is an ethically unacceptable way to avoid legal liability at the official stage of elections, in addition to politicizing these entities. Since there are no regulatory provisions that classify the activities of charitable foundations affiliated with electoral entities as voter bribery in the Law of Ukraine “On Elections of People’s Deputies of Ukraine” (in contrast to the Electoral Code, Part 6 of Art. 57), there is a favorable ground for “legitimate” electoral charity. However, even in these circumstances, the reformed provisions of the legislation governing the investigation of electoral fraud contain effective mechanisms for implementing the principle of inescapable punishment, in particular as regards voter bribery. The fact of providing free services and goods, in the context of the legislative definition of campaigning, may be a reason to appeal to law enforcement agencies. At the same time, we hereby emphasize that the relevant Law of Ukraine “On Charity and Charitable Organizations” prohibits charitable organizations to provide charitable aid to political parties or on behalf of political parties, as well as to participate in election campaigning.
Furthermore, one of the obvious and unresolved risks to the democracy of the by-elections comes from the misuse of administrative resources. Potential candidates who are current officials of local self-government bodies – Vitaliy Voitsekhivsky, Roman Sushchenko, Hennadiy Lahuta, Yehor Ustinov – took an active part in various stages of the early campaign for the by-elections on October, 31. The key criterion for the implementation of the principle of equality of rights of future subjects of the election process is a clear distinction between the current activities of a local government official and their political activity, including at the stage of early campaigning. OPORA observers captured the cases of reposting publications in the local media of Cherkasy region on the inspection of the head of the regional state administration, Oleksandr Skichko, and Vitaliy Voytsechivsky, in Zolotonosha of one of the facilities of the President’s program “Big Construction,” and about the signing of a memorandum by the Zolotonosha City Council which are labeled as “political advertising” or “image-building materials.” There is no formal violation of the election law in the actions of a potential candidate, but established democratic standards have been ignored. After all, given the context (in the conditions of the announcement by the “Servant of the People” party of the decision on the participation of Zolotonosha city mayor in the election race) this gives electoral advantages to Vitaliy Voytsechivsky and negatively affects the competitiveness of the election process. International missions have repeatedly drawn attention to the need to minimize the practices employed by authorities that can be qualified as an administrative resource. In particular, the OSCE report on the observation of early parliamentary elections states: “Electoral subjects shall invest more efforts to avoid using the government-supported projects implemented by public authorities to obtain electoral advantages during the election campaign.”
Potential participants in the elections in Cherkasy region were concerned about the transfer of the center of the district from Kaniv to Zolotonosha. In response to the CEC’s instructions, the Cherkasy Regional State Administration initiated the relocation of the DEC premises, due to its unsatisfactory condition. The regional state administration substantiated its proposal with an appeal from the executive committee of the Kaniv City Council, and also informed the highest election administration body about the lack of proper premises in the previous district center. In the context of the probable nomination of the mayor of Zolotonosha as a candidate from the pro-government party, the fact of the transfer was considered by some potential election participants as a manifestation of administrative interference and a threat of pressure on the commission. OPORA emphasizes the need for additional research on the validity of the applied criteria (including the actual condition of the former DEC premises) and the lack of alternatives to the decision (lack of adequate premises within Kaniv). It is noteworthy that earlier at the same meeting the CEC decided to approve the Procedure for the formation, change of boundaries and centers of territorial constituencies for national elections, which stipulated the criteria and procedure for transferring the district center. Although formally mentioned Decree does not apply to by-elections of people’s deputies (as it is adopted in compliance with the Electoral Code, while by-elections are held under the old Law “On Elections of People’s Deputies of Ukraine”), the algorithm proposed there was used to review the location of the center of constituency No. 197. Namely, the constituencies shall be located in the district centers, and the center of the constituency, which includes several districts, shall be the administrative center of one of the districts, equidistant (if possible) from the boundaries of the territorial constituency (para 2.8 of the approved Rules and Procedures). During the discussion at the meeting, CEC members agreed that Zolotonosha was the most suitable place to host the DEC. According to the election legislation, the center of the constituency shall be the administrative-territorial unit at the location of the DEC. The only precondition to not consider the DEC location a negative factor affecting the citizen voting process will come from the guarantees of non-interference in the work of the election commission. Electoral law prohibits interference in the activities of commissions, and criminal liability shall be provided for such actions. In decision-making, the commission is obliged to be guided exclusively by the law, the provisions of regulations, decisions of the CEC, or of the court. In this case, it is important not to repeat the situation with the establishment of voting results as in the district election commission No. 87 in the spring of 2021. It is vital to maintain confidence in the institution of elections and administrative bodies.
Another manifestation of breaking electoral standards, with signs of abusing the administrative resource, was the political positioning of some officials of the Kherson region. OPORA observers foundon the page of the Ihor Kolykhayev Charitable Foundation “We are here to live!” some public acknowledgements to the foundation and to the potential candidate Hennady Lahuta for the services and goods provided by the heads and hromada elders from the constituency. Outside the electoral process, the political neutrality of officials of state executive bodies and local self-government is regulated by the Laws of Ukraine “On Civil Service” and “On Prevention of Corruption.” In particular, persons other than those holding political office are obliged to avoid demonstrating in any way their own political beliefs or views, not to use their official powers in the interests of political parties, or their branches, or individual politicians. It should be noted that during the election process, local government officials are prohibited from performing actions that can be classified as campaigning during working hours. In addition, the impartiality of public administration bodies towards the subjects of the election process is also guaranteed by the election legislation, which is also stated in the special report of the Venice Commission on the abuse of administrative resources during the election process. Thus, the report noted the importance of leaving aside the electoral process of authorities at all levels to avoid any interference and to ensure fairness and impartiality throughout the electoral process.
Recommendations
To the Cabinet of Ministers of Ukraine and to local governments
- To plan and implement in advance a set of anti-epidemiological measures and provide for appropriate voter information aimed at ensuring the safe voting of citizens and the activities of election commissions in a pandemic.
To the National Police of Ukraine
- To provide prior training and education for police officers involved in law enforcement provision during the election process.
- To inform the public and the media on a regular basis about measures to prevent, avert, detect and investigate violations in the by-elections of people’s deputies of Ukraine.
To the Ministry of Internal Affairs of Ukraine, to the National Police of Ukraine
- In order to properly study the experience of applying the legislation amended on the eve of local elections, to prepare and publish an analysis of the effectiveness of the investigation of electoral fraud in the 2020 local elections and the by-elections of people’s deputies of Ukraine in 2021.
To the Central Election Commission
- To implement informational and awareness-building projects for voters of single-member constituencies on the specifics of the election process, on the liability for violations and the need to adhere to anti-epidemiological measures.
- To plan and implement measures to increase citizens’ access to open election data, including information on the composition of DECs and PECs.
- To strengthen control over the implementation of DECs’ powers to publish their decisions, including on the CEC’s official website.
To the President of Ukraine, to members of the Cabinet of Ministers of Ukraine, to officials of central and local authorities
- To promote the politically neutral nature of the activities of the public administration during the election process, providing real equal opportunities for candidates in the by-elections of people’s deputies of Ukraine.
- To clearly adhere to the distinction between one’s own official activities and the functioning of political parties and candidates, avoiding the use of central government and municipal resources in the electoral interests.