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07KYIV1808, UKRAINE: POLITICAL WILL, NOT LAWS, WILL DETERMINE

July 24, 2007

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07KYIV1808 2007-07-24 14:16 2011-08-30 01:44 CONFIDENTIAL Embassy Kyiv

VZCZCXRO1058
PP RUEHDBU
DE RUEHKV #1808/01 2051416
ZNY CCCCC ZZH
P 241416Z JUL 07
FM AMEMBASSY KYIV
TO RUEHC/SECSTATE WASHDC PRIORITY 3153
INFO RUEHZG/NATO EU COLLECTIVE
RUCNCIS/CIS COLLECTIVE
RUEHLMC/MILLENNIUM CHALLENGE CORP WASHDC

C O N F I D E N T I A L SECTION 01 OF 04 KYIV 001808 
 
SIPDIS 
 
SIPDIS 
 
E.O. 12958: DECL: 07/24/2017 
TAGS: PGOV PREL PINR UP
SUBJECT: UKRAINE: POLITICAL WILL, NOT LAWS, WILL DETERMINE 
IF UKRAINE HAS CLEAN ELECTION 
 
 
KYIV 00001808  001.2 OF 004 
 
 
Classified By: Ambassador for reasons 1.4(b,d). 
 
1. (C) Summary. Parliament (Rada) adopted a number of 
amendments to the law on parliamentary elections June 1 as 
part of the compromise to hold early parliamentary elections 
on September 30.  Some changes were needed, but a number of 
others reintroduced loopholes that contributed to election 
fraud during the 2004 presidential elections and that had 
been eliminated before the 2006 Rada elections.  On the plus 
side, the newly amended election law clears up some technical 
aspects of holding the election and provides an appropriate 
timeline for the condensed 60-day schedule of early 
elections.  However, the new law raises questions about how 
district and local election bodies will be formed and how the 
voter lists will be compiled, eases restrictions on voting 
from home, and introduces a 50-percent minimum voter turnout 
requirement for the first time in independent Ukraine. 
Various government bodies are now coming to terms with the 
new rules, but the short time frame, the lack of answers for 
many of these questions, and a Central Election Commission 
(CEC) thus-far paralyzed by politicization greatly enhance 
the likelihood that this election will be more problematic 
than the March 2006 elections. 
 
2. (C) Comment. The potential for abuse and fraud exists, 
especially around the margins of the upcoming elections, but 
whether parties will exploit this opportunity remains 
unclear.  The strategic benefits of holding a clean election, 
as Ukraine did in 2006, have been mostly overshadowed by 
2007's fierce battle for power.  Any of the parties could 
take advantage of the loopholes, although a lot of 
responsibility for the quality of the election will rest with 
the Party of Regions and the Presidential Administration. 
Regions--which introduced many of the dubious amendments to 
the law--will have the dominant position on every election 
body from the Central Election Commission down to the polling 
stations.  In addition, they are the only one of the three 
top parties not yet fully committed to the election--they 
could still block the election via various means if they 
chose to do so.  At the same time, the Presidential team led 
by Secretariat Head and Our Ukraine campaign manager Viktor 
Baloha, known for his willingness to play dirty, could also 
influence the outcome of voting through 
presidentially-appointed governors and district (raion) 
heads.  We must continue to remind all parties that another 
free and fair national election is integral to Ukraine's 
burgeoning democratic reputation--a bad election could hurt 
Ukraine's integrity and slow down its EuroAtlantic 
aspirations.  End summary and comment. 
 
Parliamentary Election Law: Some Pros, Lots of Cons 
--------------------------------------------- ------ 
 
3. (SBU) PolOffs received a readout of the OSCE's Office of 
Democratic Institutions and Human Rights (ODIHR) assessment 
mission to Ukraine July 11-13--designed to determine what the 
main pitfalls might be in holding free and fair elections; 
talked with two organizations that are closely monitoring the 
election process--USAID implementing partner Democracy 
Associates and election watchdog Committee of Voters of 
Ukraine (CVU); and attended an election seminar with the CEC 
commissioners and other experts to get a picture of the legal 
framework governing the September 30 elections.  Experts from 
Democracy Associates and CVU head Ihor Popov told us that the 
newly amended election law did have some positive aspects. 
Prior to its adoption on June 1, there had been no language 
in the election law to address early elections, which work on 
a different timeline than normal Rada elections (60 days vice 
120 days)--clarifications had been required.  In addition, 
the amended law clears up issues related to training 
commissioners on the district election commissions (DECs) and 
polling station commissions (PSCs).  Popov also said that 
some technical details on how to form DECs and how to print 
ballots were clearer now than they had been in the previous 
iteration of the law. 
 
4. (C) However, they and the ODIHR mission all cautioned that 
the new law also opened the door to confusion as well as 
certain kinds of manipulation and abuse. 
 
Formation and Staffing of Election Commissions 
--------------------------------------------- - 
 
5. (SBU) Under the old system, the CEC established the 225 
district election commissions (DECs), which in turn 
established the almost 34,000 polling station commissions 
(PSCs).  Under the new law, the DECs from the 2006 elections, 
the CEC, and some temporary new DECs will all take a role in 
creating PSCs, creating confusion about who announces the 
final list of PSCs.  In addition, the law says that the list 
 
KYIV 00001808  002.2 OF 004 
 
 
of PSC commissioners, who are named by the five Rada 
factions, should be announced 2 days prior to the 
announcement of the PSCs themselves, meaning that PSC &#x000A
;staffing will be designated before the PSCs are established. 
As a result the factions could end up inadvertently 
announcing commissioners to PSCs that are not subsequently 
formed or DECs could suddenly announce new PSCs to which the 
Rada factions did not name commissioners. 
 
6. (SBU) The election law says that the factions in the Rada 
appoint the members of the DECs and PSCs, but some in the 
coalition, led by Speaker Moroz and also including several 
CEC members, have argued that there are only three Rada 
factions because Our Ukraine and BYuT factions resigned. 
While most people acknowledge that there are five factions, 
Moroz's refusal to admit it could cause procedural problems 
if he will not recognize Kyrylenko or Tymoshenko's signatures 
on official Rada documents.  In addition, the ratio of party 
representation on the PSCs and DECs will match the ratio of 
factions in the Rada, so the coalition will control 60 
percent of all commissions, while the opposition will control 
40 percent.  This only becomes a problem should the majority 
of commissioners choose not to provide a quorum (fifty 
percent plus one) at polling stations on voting day--a 
concern some observers held out as a potential Regions 
spoiler. 
 
Voter Lists and the Role of the Border Guards 
--------------------------------------------- 
 
7. (SBU) CEC Deputy Head Usenko-Chorna expressed concern at 
an early July election seminar that the new election law does 
not give the CEC the wide-ranging authority to oversee voter 
lists that it did in 2006.  The CEC will also not use a 
centralized list, so it cannot make sure that the people are 
not included more than once.  In addition, the State Tax 
Administration is now required to input names on voter lists, 
but whereas the 2006 voter lists held about 37.5 million 
people, the STA has more than 46 million people on its books, 
including many dead people. 
 
8. (SBU) Of particular concern to compilation of the voter 
lists is that the law now requires the State Border Guard 
Service (SBGS) to report to the DECs Ukrainian citizens who 
leave Ukraine within three days of the election so that their 
names can be removed from the voters lists.  The SBGS lacks 
the technical and institutional capability to successfully 
notify the correct DECs within such a short timeframe and 
according to Usenko-Chorna, there is no guidance on how DECs 
get the information to the correct PSCs.  This problem could 
also have a regionally-imbalanced impact on the voting 
results, as more people may be removed from voter lists in 
Western Ukraine than in the East.  Ukrainians crossing the 
border into Russia and Belarus show their internal passports, 
which have detailed information including patronymic and 
residence, making it easy to cross out the correct voter. 
Travelers to Poland and points West show their external 
passports, which do not contain the pertinent information, 
forcing the SBGS to send out more generic information to the 
election officials, which could result in multiple people 
with the same first and last name being removed from various 
lists. 
 
8. (SBU) ODIHR was also worried that reopening voter lists 
for changes so close to the election, after they had already 
been sent to the PSCs, could increase the chance of other 
manipulations of the lists.  Moreover, because it is legally 
prohibited for voters to protest problems with the voter list 
to the DECs or the courts within two days of the election, 
people erroneously removed from the lists or who return from 
neighboring countries before the election cannot be re-added 
to the lists.  According to Development Associates, this is 
also more likely to effect those who live in Western Ukraine, 
where there are more border crossings. 
 
9. (C) In addition, the SBGS could be used by different 
political groups in different regions to their advantage. 
The Service itself is not seen as loyal to one specific 
political party. although the head of the SBGS is Mykola 
Lytvyn, brother of former Rada Speaker Volodymyr, whose 
People's Party was on the cusp of the 3-percent barrier in 
2006 and is running again. 
 
Mobile voting 
------------- 
 
10. (SBU) The Rada also eased the restrictions on using a 
mobile balloting box to vote from home (intended for 
bedridden voters.)  In 2004, mobile voting was a major source 
of fraud in some oblasts--in Mykolayiv oblast in the South, 
 
KYIV 00001808  003.2 OF 004 
 
 
for example, 30 percent of voters voted from home in round 
two of the presidential election.  In June 2005, the law was 
changed to require people to submit a doctor's note to the 
PSC ahead of time and to require monitors to accompany the 
mobile box on its rounds.  As a result, in 2006, use of the 
mobile box was low.  In the new law, no doctor's note or 
documentation to prove inability to travel to a polling 
station is required, meaning anyone can vote at home. 
 
Ban on Absentee Balloting 
------------------------- 
 
11. (SBU) All experts cited the new ban on absentee ballots 
as more a violation of constitutional rights than an effort 
to seriously limit voting (there were only 16,000 absentee 
ballots in 2006).  However, experts did voice concern that it 
might hurt domestic observation, since observers do not 
usually observe in their own districts and will now be 
prohibited from voting.  In addition, Popov said that voting 
from abroad has become more difficult--whereas before voters 
could register at Ukrainian consulates to vote, now they must 
register with their home city.  This is likely to have 
greater impact on migrant workers from Western Ukraine. 
 
Fifty-percent Voter Turnout Requirement 
--------------------------------------- 
 
12. (C)   This is the first time independent Ukraine has had 
such a Soviet-style requirement.  Most political analysts 
believe that it was added to the law as a back-up option, 
should Regions and its coalition partners decide that they 
wanted to scuttle the elections at the last minute by simply 
telling their voters not to show up.  However, most people we 
talked to said this was not a serious concern because, if 
voting day arrives, then Regions will already have decided to 
participate.  In addition, it would be easier for Regions to 
block quorums on the CEC, DECs, and PSCs, than to try to get 
voters not to vote.  A second, perhaps unintended problem may 
be that if the ballots of voters who choose "against all" are 
counted as invalid, the turnout level will drop. 
 
How Likely is Fraud and Abuse? 
------------------------------ 
 
13. (C) Everyone we spoke with agreed that although the 
loopholes were worrisome, massive fraud was unlikely. 
Instead, they emphasized that the changes were undemocratic 
and unconstitutional, in large part because they could 
deprive many Ukrainian citizens of the right to vote.

Whether there are abuses and/or manipulations around the 
margins of the vote will depend on how the parties decide to 
conduct themselves.  For example, Democratic Associates 
observers said that on voting day 2006 although all the PSCs 
and DECs were formed in accordance with the law, there were 
violations in Odesa, Crimea, and Donetsk, and even pressure 
in Kyiv oblast--the commissions simply responded to political 
orders. 
 
14. (C) Comment.  We are concerned that in 2006 the major 
political parties attached more value to the elections being 
free and fair, but that this time parties believe that they 
have more to lose.  In addition, there may not be enough time 
or good will to hold a well-run, clean election.  It is clear 
that any of the top-tier parties, and even some from the 
second tier, could use these loopholes to their advantage on 
a local level.  For example, Presidential Secretariat Head 
Baloha is known for his hardball tactics and was involved in 
a very dirty mayoral election in the Zarkapatiya town of 
Mukacheve in April 2004.  Development Associates said that 
across the board most Ukrainian politicians simply do not 
think strategically enough to see how a bad election could 
harm Ukraine's and their personal long-term interests.  They 
are focused on short-term calculations and how to amass 
power.  Even some who understand to a greater degree about 
possible negative impact on Ukraine's EuroAtlantic 
aspirations may be hopeful that the West will be forgiving if 
the outcome of the elections is appealing.  Those few who 
truly get it may have trouble convincing their allies that 
the difference between a March 2006 election and a November 
2004 matters.  End comment. 
 
Regions Holds the Key 
--------------------- 
 
15. (C) Regions's decision to fully and actively participate 
in the elections will be key because the coalition controls 
the majority on every election commission from the CEC to the 
PSCs and Regions controls most of those.  So far, the Party 
is preparing for the elections, but continuing to explore 
alternatives to a new vote, suggesting they still consider 
 
KYIV 00001808  004.2 OF 004 
 
 
all options open at this point.  For example, BYuT MP Nemyria 
told Ambassador July 20 that three senior members of 
Regions--DPM Kluyev, Environment Minister Dzharty, and MP 
Sivkovych met with coalition allies to discuss the 
possibility of finding enough opposition defectors to recant 
their Rada resignations to keep the parliament's quorum 
intact.  (Note.  On July 24, Dzharty asserted to Ambassador 
that Regions was going forward with election preparations. 
End note.) 
 
16. (C) Moreover, there may be a split within Regions between 
the business wing that sees a continuation of the political 
crisis as harmful to their business interests and those that 
see winning at all costs as most important and believe that 
they can get away with it.  Regions is still home to many of 
the perpetrators of electoral fraud in 2004.  In particular, 
the rumors about the return to Regions of Viktor Medvedchuk, 
one of the authors of the fraudulent 2004 elections, and the 
continued leadership of DPM Andriy Kluyev, who ran the dirty 
tricks office in Yanukovych's 2004 campaign, suggest that 
there are people on that side willing to play dirty. 
 
Composition of the CEC also Causing Problems 
-------------------------------------------- 
 
17. (C) The remaining question mark is whether the CEC--which 
will play such an integral role in whether the elections go 
well--can work productively.  They have held only one meting 
since the new composition was announced in late May.  ODIHR, 
Popov, and others have noted the CEC's sharp polarization 
between the coalition-nominated and opposition-nominated 
members, many arguing that it is not a neutral body that can 
make independent decisions and that the politicization is 
inhibiting work.  Popov also expressed concern that there 
could be more sick-outs to block the body from making 
decisions.  One example of the CEC's current political 
paralysis is its continued avoidance of making a decision 
about dissolving the Our Ukraine party list despite the fact 
that the Kyiv Appeals Court ruled June 16 that it could and 
the High Administrative Court upheld the ruling July 17.  The 
CEC has attempted to discuss with the Border Guards its role 
in the upcoming elections--they met in a working group format 
June 14--but there is still much work needed to be done in 
this area.  The CEC has also tried to adopt some aspects now 
of the new voter registry law, which does not come into 
effect until October. 
 
18. (U) Visit Embassy Kyiv's classified website: 
www.state.sgov.gov/p/eur/kiev. 
Taylor

Wikileaks

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