Since the summer of 2023, the threats and challenges of holding elections under martial law have become a hot topic of legal and political debate. In this discourse, there should be less politics and more policy. This was stated by the Chair of the Board of Civil Network OPORA Olha Aivazovska during the presentation of White Book on the preparation and conduct of post-war elections, which was jointly organized by the Centre of Policy and Legal Reforms, Civil Network OPORA and their partners on January 25, 2024.
According to O. Aivazovska, the Russian Federation is waging a war so as to gain time rather than territory in an attempt to take Ukraine and the whole world back to the distant past when the values, principles, standards, and international law established after the Second World War were brought into question.
“As of today, my personal challenge is to say whether we are still living in the old paradigm of values and rules, given the dramatic changes that have taken place in the past few years, and whether we should be governed exclusively by these values and rules when proposing solutions. Ukraine needs creative solutions. We can’t just copy other country’s experience and put it into Ukrainian practice because it’s not only the time factor, but also the circumstances that should be taken into account. Ukraine was and, I hope, still is a democratic country even under martial law. I hope that every citizen of Ukraine still has the right to freedom of opinion and expression, despite the presence of “United News Telemarathon” in our media space, and any attempts to encroach upon the rights and liberties will draw reaction from our civil society. If public reaction influences the political decisions of state authorities, then it is safe to say that the elements of democracy have been preserved even under the conditions of martial law. If the civil society is deprived of freedom of expression or has no influence on the decision-making process, then this isn’t a democracy anymore. Democracy is all about exerting public influence on the state governance system directly by way of local self-government or through the agency of legally elected representatives. Fortunately, we have legally elected representatives and legitimate branches of government in Ukraine, and our partners have no doubt about that. So what is the solution in our case? Since we have already exhausted all creative options, the only solution is to prepare for extremely difficult post-war elections. Because we are living at the stage of new challenges”, Aivazovska emphasized.
OPORA’s expert argues that it would be a good idea to single out topical issues for priority consideration, propose a set of amendments to the Electoral Code, draw up a separate draft law, etc. However, it is necessary to collect the required amount of data when reconsidering an issue in a given area because any initiative must be supported with solid evidence: “We can’t just make a groundless supposition that a given solution would work better or worse for us. Our initiatives must be based on gathered data, the results of sociological surveys and focus groups, statistics, migration data, potential development of events scenarios under different security conditions in Ukraine and EU member states. We should also take due account of the most recent statements and discussions on the possibility of major war or attack on NATO allies and consider them as potential scenarios. NATO countries will face serious challenges”.
Furthermore, Aivazovska announced the presentation of results of a research carried out by representatives of Civil Network OPORA. “We decided to conduct a research investigation into how would the advanced democracies cope with the challenges facing Ukraine today. What legal frameworks would they use for holding elections under martial law, how would they respond to armed aggression, and what does their legislation say about this. It is interesting to note that Ukraine proved to be better prepared for military aggression than the developed nations, which is due to the fact that the latter have never faced such a hard test and they are living under civil rules. Therefore, I call on everyone to consider the case of Ukraine as a unique example and take due account of the fact that the neighboring countries are also facing the threat of military aggression while their Constitutions don’t give a clear answer to the question how to deal with elections during the period of martial law. There is no unified standard or approach to dealing with all these issues”, she underscored.
Aivazovska also outlined several proposals and recommendations to the state authorities of Ukraine that are worth taking into account in the process of planning of first post-war elections. In particular, the parliament of Ukraine should give an adequate response to Russia’s plan to hold so-called “elections” in the temporarily occupied territories of Ukraine, which are scheduled for March 17.
“I would suggest forging a common stance on this issue. We should not only stress the illegality of elections in the occupied territories of Ukraine, but also emphasize the fact that the Russian Federation hasn’t had a legitimate government for a long time due to the absence of legally elected representatives of the people. According to the Universal Declaration of Human Rights, elections must be fair, free, and held at periodic intervals. Holding elections on a periodic basis doesn’t automatically make them free and fair. The fact that Putin seeks his sixth presidential term also violates the recommendations of the Venice Commission and the Constitution of the Russian Federation. In my opinion, the international community’s response to Putin’s constitutional changes was inadequate. It should be realized that the president of Russia is self-proclaimed and illegitimate because he never won an election based on free and fair electoral competition”, OPORA’s expert emphasized.
Aivazovska also suggested that the Central Election Commission should come up with creative solutions rather than shift responsibility for organizing elections in the overseas electoral district to the Ministry of Foreign Affairs. In particular, the CEC should think about establishing representative offices at least in those countries that gave temporary protected status to the largest number of Ukrainian refugees.
“This is a geopolitical war, and therefore the first post-war electoral cycle will be organized with due regard to geopolitical environment. Migration is not just a matter of statistics. The cause-and-effect relations that we are witnessing now provide the basis for making forecasts and give us an idea of the current location of our citizens, their motivations to stay or leave the host country, to participate or refrain from participating in politics. But the key task for our state government is to ensure adequate communication with Ukrainians abroad so as to avoid ambiguous interpretations along the lines of “refugees or citizens” that may trigger negative reaction. In the context of post-war elections, it is worth to consider the possibility of allowing multiple citizenship as suggested by the President of Ukraine. This might be one of the few possible ways to preserve ties between the citizens residing in Ukraine and those who went abroad and decided to stay there for a longer time”, she said.
Olha Aivazovska recommended watching an interview with the Vice Speaker of the Verkhovna Rada of Ukraine Oleksandr Korniyenko, who talked about elections, mobilization, public perception of refugees, and our President’s attitude toward Ukrainians abroad. This interview is an episode of the series of visionary discussions initiated by Civil Network OPORA within the framework of video project “Power of Choice”. The episodes of this video project were published on YouTube channel “OPORA talks”.