ODIHR limited election observation mission

The 25 October 2020 local elections in Ukraine were particularly important following recent decentralization reforms that devolved significant powers and resources to local governments. The elections were conducted under a substantially revised legal framework which, despite some improvements, requires further refinement to address remaining shortcomings. The Central Election Commission administered the elections professionally and efficiently, despite the challenges posed by the COVID-19 pandemic, but the work of territorial commissions was often politicized and was negatively affected by frequent replacements of their members. Contestants were able to campaign freely, but cases of abuse of state resources and of office and widespread allegations of vote-buying were of concern. Private media failed to consistently provide unbiased and balanced coverage of electoral contestants, which detracted from the ability of voters to make a fully informed choice. In the limited number of polling stations visited by the ODIHR LEOM on election day, the process was generally calm, well-organized and transparent, and procedures were mostly followed.

The local elections were conducted under a substantially revised legal framework. In line with a long-standing ODIHR recommendation to consolidate several electoral laws, a new Election Code was adopted in December 2019, following an overall inclusive but politicized process. Subsequent amendments to the Code addressed some deficiencies that originated from its expeditious adoption while also introducing new substantive changes, including changes to the electoral system shortly prior to the elections, at odds with international good practice. The revised Code does not address a number of ODIHR’s long-standing priority recommendations, and the law does not ensure the integrity of key components of the electoral process. Some changes were criticized by interlocutors for increasing party influence over local self-governance. Positively, the revised legal framework introduced an inclusive gender quota for candidate lists, revised sanctions for electoral offences, and facilitated the change of electoral address, which eased the participation of citizens unable to vote at their registered address, including economic migrants and internally displaced persons (IDPs). The manner in which election districts were determined did not follow legal requirements and international standards, and did not always guarantee the equality of the vote.

The elections took place in the context of ongoing armed conflict and other hostilities in the east of the country and the illegal annexation of the Crimean peninsula by the Russian Federation. No elections were held in the Crimean peninsula and in parts of the Donetsk and Luhansk oblasts (regions), including in 18 government-controlled territorial communities. The legal framework for the decisions to not hold elections lacked transparent criteria and did not provide sufficient safeguards for suffrage rights, which impacted public trust.

Overall, the Central Election Commission (CEC) met all legal deadlines and operated in an impartial, open and transparent manner. However, the substantive and ongoing legislative changes, the recent administrative-territorial reforms and the public health crisis created challenges to the election administration at all levels. Lower-level commissions implemented most procedures adequately and on schedule, but often lacked professionalism and at times took politically motivated decisions. The extensive replacement of commission members by their nominating party negatively affected the independence, impartiality and operations of Territorial Election Commissions (TECs) and diminished the value of trainings on complex electoral procedures. Not all commissions received sufficient funds to implement the anti-epidemic measures promulgated by the government. Only 5 of 17 CEC members are women; women constituted a majority of lower commission members.

The State Voter Register is maintained by the CEC and regional maintenance bodies and its accuracy generally enjoyed confidence from stakeholders met by the ODIHR LEOM. Citizens declared incapacitated by a court on the basis of intellectual or psychosocial disability were not eligible to vote, at odds with international obligations. New legal provisions simplified the procedure for voters to change their electoral address, addressing previous ODIHR recommendations, but only 101,687 voters used this opportunity, and there were allegations of abuse. Concerns remain about the estimated 20,000–40,000 Roma citizens who are excluded from the voter register due to lack of identity documents.

Candidate registration was conducted in a largely inclusive manner, but TECs did not have a unified approach to registration documents and some rejections appeared politically motivated, contrary to OSCE commitments and international standards. Independent candidates could only stand for mayor, or for councilor in small communities, challenging OSCE commitments. Candidates from national minorities were nominated by the main national parties in addition to local parties. Positively, the new Election Code introduced stricter gender requirements for electoral lists in council elections, but due to a gap in its regulation, 977 lists were registered even though they did not comply with the gender quota.

The election campaign was generally calm and all contestants were able to campaign freely. However, the COVID-19 pandemic impacted the campaign environment and limited contestants’ ability to conduct larger-scale campaign events, resulting in an extended use of social media and online advertising. The ODIHR LEOM noted cases of abuse of state resources and of office, including by oblast and city administrations, and received widespread allegations of vote-buying. President Volodymyr Zelenskyy introduced opinion polls at polling stations on election day, funded by his party and related to his administration’s policy initiatives, which appeared to create an undue political advantage and blurred the separation of state and party.

The campaign finance regulatory framework does not ensure accurate reporting, timely disclosure, meaningful oversight, or accountability for irregularities. Campaign materials often lacked required information, which prevented traceability of related expenditures. ODIHR LEOM interlocutors pointed to the frequent use of charity funds and NGOs affiliated with candidates for campaign purposes, which is prohibited by law. Donation limits could be easily circumvented and the absence of campaign expenditure ceilings provided no safeguards against excessive spending, at odds with international good practice. TECs must receive, analyze, and publish contestants’ campaign finance reports but did not generally possess the required capacity or expertise. Not all TECs or local party organizations published interim reports as required by law, reducing transparency. The oversight role of the National Agency for Prevention of Corruption was limited due to an overall lack of capacity and the absence of regional offices, which undermined effective oversight.

The media landscape is diverse but characterized by a high concentration of politically vested ownership at both national and regional levels, which contributes to the political polarization of reporting and lack of trust in the media sector. The Constitution guarantees the freedom of expression and prohibits censorship, and the legal framework provides for general media freedoms and conditions for equitable and unbiased coverage of electoral contestants. The new Election Code failed to expand the enforcement tools of the media regulator as previously recommended by ODIHR. Private media monitored by the LEOM failed to consistently comply with legal obligations for unbiased and balanced coverage of electoral contestants, which together with a high volume of unmarked promotional materials in broadcast media detracted from the ability of voters to make a fully informed choice.

Mechanisms for electoral dispute resolution are in place, but lack of transparency, public distrust in the judiciary, and inconsistent implementation of law reduced its effectiveness. Concurrent jurisdiction of courts and election commissions for most complaints allows applicants’ discretion, and voters’ legal standing in election-related disputes is limited to protection of individual rights, contrary to international good practice and long-standing ODIHR recommendations. Courts generally adhered to expedited deadlines for election dispute resolution. However, strict admissibility requirements for complaints resulted in the dismissal of most complaints by the CEC, limiting effective legal redress. Police initiated many criminal cases concerning alleged vote-buying, candidate bribery and obstruction of voting rights, a majority of which did not reach courts prior to election day.

The Election Code provides for citizen and international election observation. In addition to recognized citizen observer organizations, the large majority of registered national organizations appeared to be linked to political parties or candidates, contradicting principles for non-partisan citizen election observation. Citizens of countries determined by the parliament to be aggressor or occupying states are prohibited from registering as international observers, contrary to OSCE commitments.

In line with ODIHR methodology, the ODIHR LEOM did not observe election-day proceedings in a systematic or comprehensive manner. In the limited number of polling stations visited, the voting process was generally calm, well-organized and transparent, and prescribed procedures were mostly followed. Mitigating measures against COVID-19 were in place, but social distancing was not always respected, and personal protective equipment was not consistently used. The vote counts observed were often lengthy, but mostly orderly and transparent, with procedures generally followed. In the few cases observed, the initial stages of the tabulation process were mostly assessed as organized and calm. Party observers participated in the counting process in several cases. Voter turnout, as announced by the CEC on election night, was 36.99 per cent.

Quelle: OSCE, Ukraine, Local Elections, 25 October 2020: Statement of Preliminary Findings and Conclusions, 26. Oktober 2020, https://www.osce.org/odihr/elections/468249.

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