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08KYIV873, UKRAINE: CONSTITUTIONAL GAME HEATS UP

May 7, 2008

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08KYIV873 2008-05-07 14:29 2011-08-30 01:44 CONFIDENTIAL Embassy Kyiv

VZCZCXRO7517
PP RUEHBW
DE RUEHKV #0873/01 1281429
ZNY CCCCC ZZH
P 071429Z MAY 08
FM AMEMBASSY KYIV
TO RUEHC/SECSTATE WASHDC PRIORITY 5520
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 000873 
 
SIPDIS 
 
E.O. 12958: DECL: 05/07/2018 
TAGS: PGOV PREL PINR UP
SUBJECT: UKRAINE: CONSTITUTIONAL GAME HEATS UP 
 
KYIV 00000873  001.2 OF 004 
 
 
Classified By: Ambassador for reasons 1.4(b,d). 
 
1. (C) Summary.  Rada Speaker Yatsenyuk and adviser to the 
Prime Minister Zadorozhniy separately described to the 
Ambassador that BYuT-Regions collaboration on a new 
constitution was a reality that would move along quickly and 
that  cooperation between President Yushchenko and Prime 
Minister Tymoshenko would continue to be difficult at best. 
Yatsenyuk said that he had urged Yushchenko to reach out to 
opposition leader Yanukovych as a possible ally, but he 
believed the most likely scenario was that BYuT and Regions 
would move forward in the Rada with their efforts to reform 
the constitution (in a way that could limit presidential 
powers and result in early parliamentary and presidential 
elections) and that the President was running out of options. 
 Zadorozhniy confirmed that BYuT and Regions planned to 
submit separate, but very similar constitutional drafts to 
the Rada next week and the constitutional commission would be 
formed on May 13, but he said that this was still mostly a 
game to pressure the President into cooperation.  However, he 
admitted that if Yushchenko did not give in to one side or 
the other, Ukraine could have a new constitution as early as 
September.  Both said that the constitutional draft would 
give significant power to the opposition and move Ukraine 
closer to a two-party system.  Zadorozhniy also said the 
draft would significantly limit the President's power -- the 
one outstanding issue being whether the President would be 
elected by the public or the Rada.  Yatsenyuk warned that 
Tymoshenko and Yanukovych's work was being facilitated by 
former Kuchma Chief of Staff Viktor Medvedchuk -- the 
bogeyman of the 2004 presidential campaign -- and that the 
latter's participation indicated Russian involvement in this 
new tactical alliance.  Zadorozhniy confirmed that Medvedchuk 
was playing a role, but he implied it was a small role. 
 
2.(C) Comment.  BYuT and Regions are pushing full steam ahead 
on the constitution, and Yushchenko's team seems worried and 
disorganized.  Both the media and Zadorozhniy have commented 
on the fact that the President hit a major setback when the 
Constitutional Court ruled that he could not pass his own 
constitution via referendum, slowing the work of his National 
Constitutional Council (its draft has still not yet been 
publicly released) and his opponents may be taking advantage 
of this derailment of his strategy.  Yatsenyuk's comments 
about Tymoshenko's ambitions and her cooperation with 
Medvedchuk echo those made by Yushchenko and Baloha and may 
underscore that the presidential team is trying to send us 
this message.  In many ways, Yushchenko may have 
inadvertently pushed Tymoshenko towards Regions by his 
relentless efforts to discredit her and block the Cabinet's 
progress on her priorities.  However, no one believes that 
BYuT and Regions are headed towards any deep collaboration -- 
their mutual hatred is well established; they simply share a 
common enemy right now.  Tymoshenko and Regions may both 
still be hoping to get concessions, or even a broad coalition 
for the latter, from the President now that he seems backed 
into a corner.   End summary and comment. 
 
Yatsenyuk on BYuT-Regions Constitutional Collaboration 
--------------------------------------------- --------- 
 
3. (C) In a one-on-one meeting in his private office, 
Yatsenyuk told the Ambassador on May 6 that he was generally 
pessimistic about the political situation.  He said that 
Tymoshenko was going crazy, and that she wanted to be tsar. 
The Speaker claimed that he was supposed to meet with the PM 
on April 26, but she had stood him up because she was meeting 
with Medvedchuk.  This led Yatsenyuk to a discussion of what 
he saw as the plans for constitutional reform.  At one point 
Yatsenyuk referred to the new constitutional project as 
Medvedchuk's baby, another time he referred to Medvedchuk as 
the intermediary between Tymoshenko on one side and 
Yanukovych and Klyuyev on the other.  (Note.  Many in 
Yushchenko's camp and in the media have reported on 
Medvedchuk's involvement, but no one really knows what his 
role is.  Because Medvedchuk is so universally hated in Kyiv, 
the President's team may see linking him to the PM as a 
useful PR tool. End note.) 
 
4. (C) Yatsenyuk explained what he saw as the motivation for 
the two parties to overcome their mutual antipathy and 
collaborate on this constitutional project.  Tymoshenko was a 
sprinter, she wanted either immediate constitutional change 
or early elections.  For his part, Yanukovych hated being in 
the opposition.  The proposed constitutional draft -- which 
Yatsenyuk claimed to have seen parts of -- would give the 
opposition real power and move Ukraine towards a two-party 
system.  The opposition would get control of the Speakership 
and the Accounting Chamber (which controls privatization 
inflows and reports to the Rada on management of budget 
funds).  The President would still be directly elected, but 
 
KYIV 00000873  002.2 OF 004 
 
 
would have no real power.  Yatsenyuk made reference to a new 
two-round pa
rliamentary election system, which was described 
in detail in an article in respected newspaper Dzerkalo 
Tyzhnya.  (Note.  According to DT, if no party won an 
outright majority of seats in the first round, the two 
highest vote-getting parties would participate in a run-off, 
the winner of which would automatically get 226 seats in the 
new Rada and therefore the premiership and government.  The 
remaining 224 seats would be distributed on a proportional 
basis to all other parties that crossed the election 
threshold in the first round.  End note.)  Yatsenyuk said 
that the only benefit to this new system is that it would 
eliminate the Communists.  He also noted that Lytvyn was no 
longer a player.  He added, however, that there were still 
some disagreements on text. 
 
5. (C) Yatsenyuk also believed that there was a Russian angle 
to the BYuT-Regions cooperation.  The Speaker argued that 
Moscow would benefit from the new system, presumably because 
it would cause more chaos in Ukraine and reduce Yushchenko's 
influence.  (Note.  In a related comment, Yatsenyuk said that 
if Ukraine blew its chance to get MAP in December, it may 
never get MAP, because Russia would keep getting richer and 
more influential, and its neighbors, including Ukraine, would 
get weaker.  End note.)  Yatsenyuk believed that Medvedchuk 
was the main conduit for the Kremlin, but that Tymoshenko had 
also cut a deal during her trip to Moscow, part of which was 
a promise to support a partnership with NATO that fell short 
of MAP, as Yanukovych had done in 2006, stressing practical 
cooperation rather than actual membership.  Yatsenyuk also 
thought Tymoshenko, whom he termed "the best gas dealer in 
Ukraine," would also soon reach accommodation with Moscow on 
energy supplies.  (Comment.  While Tymoshenko has never been 
as openly supportive of NATO membership as Yushchenko, she 
seems equally suspicious of Moscow.  She may have come to 
some terms with the Russians in hopes of resolving the gas 
relationship, but Yatsenyuk's accusations of a deeper 
alliance seem exaggerated.  Even he recalled her "Containing 
Russia" article in Foreign Affairs.  End comment.) 
 
Urging the President to be Proactive 
------------------------------------ 
 
6. (C) Yatsenyuk said he had met with Yushchenko and urged 
him to stop playing the constitutional game because it was 
too dangerous.  He believed the President had opened a 
Pandora's box by initiating reform and must now close it. 
With regard to the Rada Commission on the Constitution, 
Yatsenyuk said that he had made the suggestion that he lead 
it (in order to control it) to the President, but that the 
President had not wanted to hear this option and turned him 
down.  Yatsenyuk also thought that one possible solution to 
Yushchenko's reelection quandary would be to reach consensus 
with Yanukovych and Akhmetov.  The Speaker said he had urged 
the President to reach out to Yanukovych and ask him to end 
cooperation with Tymoshenko.  (Comment.  Presumably 
Yanukovych would entertain cooperation with Yushchenko if the 
President offered him something concrete, such as the 
premiership.  However, Yatsenyuk did not indicate that 
Yushchenko was willing to do this.  End comment.)  The 
Speaker said that in a OU-Regions cooperation scenario a new 
leader would be needed; however, he didn't think they would 
reach consensus.  Yatsenyuk said he had also offered himself 
up as an intermediary between Yushchenko and Tymoshenko to 
try to keep the coalition going.  In the end, he believed 
BYuT and Regions moving forward on constitutional reform was 
the most likely scenario. 
 
7. (C) Yatsenyuk also offered a few comments on Chief of 
Staff Baloha, his former boss when he was also at the 
Presidential Secretariat.  The Speaker said that Baloha had 
gone from being part of the solution to being part of the 
problem.  He said that Baloha came to all of the three-way 
meetings between President, PM, and Speaker, and always 
caused problems, which was one reason there had not been a 
three-way meeting in the past three weeks.  Baloha was a 
smart tactician, but had no strategy. Yatsenyuk also said it 
was Baloha who had lost the Constitutional Court ruling on 
passing a constitution via referendum, but he offered no 
details other than to say his strategy had been "stupid". 
 
Zadorozhniy: Draft Coming, but Still a Tool in the Game 
--------------------------------------------- ---------- 
 
8. (C) Tymoshenko adviser Oleksandr Zadorozhniy confirmed to 
the Ambassador on May 7 that BYuT was readying a 
constitutional draft to be submitted to the parliament on May 
12.  He anticipated that on May 13, the Rada would vote to 
establish a constitutional commission.  In terms of 
procedure, Zadorozhniy said that the commission would have 
two weeks to review any drafts and recommend one.  The Rada 
 
KYIV 00000873  003.2 OF 004 
 
 
needed a majority vote to send the draft to the 
Constitutional Court, which could take more than a month to 
review the draft to ensure that the amendments do not violate 
articles 157 and 158 (which state amendments cannot restrict 
human and citizen's rights.)  Then the Rada will have about 
two weeks left before the summer recess to hold the first, 
simple majority vote on the new constitution.  Assuming they 
get 226 votes, the required 300-member second (2/3 majority) 
vote could be held as early as September.  On May 7, 
Tymoshenko said publicly that she hoped the first vote would 
be held next week. 
 
9. (C) In terms of substance, Zadorozhniy said BYuT and 
Regions had their own drafts that were almost identical 
except for the question of whether the President should be 
directly elected or elected in the Rada (article 103).  BYuT 
favored the former -- although only after Zadorozhniy 
convinced Tymoshenko that this was the more publicly popular 
alternative -- while Regions supported the latter.  He said 
they were proposing to amend 58 of the constitution's 161 
articles and add three new ones -- most of the changes were 
Tymoshenko's ideas, which were then translated into legal-ese 
by a team of twenty lawyers, including Zadorozhniy.  The most 
striking changes were the drastic limitation of presidential 
powers -- leaving the president with the powers of veto and 
legislative initiative, the right to nominate the head of the 
SBU and ambassadors, and the chairmanship of the NSDC.  In 
addition, the opposition would get stronger powers, including 
the Speaker, the Accounting Chamber, one deputy prime 
minister, and the right to name deputy ministers and deputy 
governors.  Zadorozhniy thought this was a good idea, because 
it would force the opposition to be constructive, which would 
help unify the country.  Finally, he confirmed that the new 
draft laid out a two-round parliamentary election system, 
which he said was entirely Tymoshenko's idea -- her thinking 
had been that it would eliminate the need for a coalition by 
ensuring one party always had at least 226 seats.  (Comment. &
#x000A;In response to the Ambassador's question, Zadorozhniy 
reluctantly admitted that Medvedchuk was playing a role in 
this process; he would not elaborate on what the role was, 
but implied Medvedchuk was not a drafter, perhaps giving 
credence to the idea that Medvedchuk is a go-between for BYuT 
and Regions; and perhaps between BYuT and Moscow.  End 
comment.) 
 
10. (C) Despite all the work that had gone into preparing the 
draft constitution -- Tymoshenko had first gathered experts 
to discuss this document in late 2005 -- Zadorozhniy thought 
it was far from certain that a new constitution would 
actually be passed.  He thought both BYuT and Regions were 
playing a game and trying to blackmail Yushchenko into 
cooperation.  There was no guarantee that this would work -- 
the President was too hard to predict -- but Zadorozhniy's 
personal view was that Yushchenko would eventually choose to 
cooperate with either Tymoshenko or Regions.  Zadorozhniy 
suggested that the Presidential Secretariat was not helping 
matters by continually insulting the PM.  Senior Tymoshenko 
adviser Vitaliy Haiduk similarly commented to the Ambassador 
May 5 that it was not clear why Tymoshenko would want to 
reach agreement with Yushchenko -- Haiduk said the PM goes to 
meetings where she faces the President, Baloha, and 10 others 
from the Secretariat and all they do is criticize and rebuke 
her. 
 
11. (C) Zadorozhniy also said that there was also the 
question of whether Tymoshenko and Regions could resolve the 
dispute over how to elect the president.  Zadorozhniy said he 
had been in negotiations with different Regions groups and he 
thought eight of its ten leaders wanted the Rada to elect the 
president.  Only Akhmetov and Kolesnikov might see otherwise, 
but they were isolated and disengaged on this issue.  On the 
other hand, although Regions was stubborn, they had no 
ideological tie to any position, so they could change their 
view at any time.  At the same time, Tymoshenko might also be 
convinced to change her point of view.  What was important, 
according to Zadorozhniy, was that BYuT and Regions not reach 
agreement before their two drafts were submitted to the Rada 
commission.  The fact that the two parties had voted together 
to override the President's veto on the CabMin law, passed in 
January 2007, had hurt BYuT's, and Tymoshenko's public image. 
 For them to submit a unified constitutional draft would be 
more bad PR for the PM who would be seen as openly walking 
away from the orange coalition.  Zadorozhniy said that there 
were almost daily negotiations taking place and even 
Yushchenko was participating. 
 
12. (C) The final topic Zadorozhniy elaborated on was the 
transitional phase, should a new constitution be adopted.  He 
said that negotiations on this topic had not yet occurred, 
but that many believed a new constitution would bring early 
elections for the Rada and maybe even for the presidency. 
 
KYIV 00000873  004.2 OF 004 
 
 
(Note.  Haiduk said that he smelled new elections coming 
whether there is a new constitution or not. End note.) 
Zadorozhniy said his personal view was that they would agree 
to let Yushchenko serve out his term with his current powers 
and then the new constitution would come into force in early 
2010. 
 
13. (U) Visit Embassy Kyiv's classified website: 
www.state.sgov.gov/p/eur/kiev. 
Taylor

Wikileaks

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