Paul D'Anieri, Understanding Ukrainian Politics: Power, Politics, and Institutional Design, 2007.
The Evolution of Ukrainian Politics, 1989-2006
Many strands of institutional analysis focus on "path dependence," the notion that choices made at one time limit the range of choices down the road. In other words, once society chooses and moves along one path, it cannot go back to choose a different path. To the extent that this is true, understanding the historical evolution of Ukrainian political institutions is essential to understanding how Ukraine has gotten to its present state and why certain alternatives are difficult to achieve.
Adam Przeworski has straddled this argument. The main thesis of his important book Democracy and the Market is that countries in postauthoritarian transitions are all in the same situation because events in them "are determined by a common destination, not by different points of departure."1 Przeworski also admits, however, that new institutional arrangements almost always reflect the existing balance of power.2 We see this clearly in Ukraine, where the distribution of political power in 1991 was very different from that in most of the East European states at the time of their "revolutions" in 1989. In Ukraine, power was still held almost entirely in the hands of the Soviet bureaucracy, and opposition groups were weak.
This chapter therefore serves two purposes. The first is simply to provide an overview of the emergence and evolution of Ukrainian politics and political institutions since 1989.3 This overview should be useful especially to readers who have limited familiarity with these events. The second purpose is to try to connect in a single coherent narrative events that in subsequent chapters will be dealt with in distinction from one another for analytical purposes.
The most important theme of this chapter is that there was not a political revolution in Ukraine in 1991 when the Soviet Union collapsed. To state the case so starkly perhaps exaggerates the point, but it is necessary to qualify the widespread assumption that August 1991 marks a fundamental watershed in Ukrainian politics. In 1991, Ukraine suddenly became independent of Moscow and took an increasingly independent course. However, in the 1990s political change in Ukraine was as much evolutionary as revolutionary. Moreover, while there has been considerable evolution away from strictly Soviet institutions and forms of politics, that evolution has occurred not as a break from those institutions and forms, but as a modification of them. Speaking in 2001, Leonid Kuchma said, "Ukraine virtually lives in accordance with the laws of the former Ukrainian Soviet Socialist Republic."4
Two examples, which will be discussed in more detail below and in subsequent chapters, illustrate this basic theme. First, Ukraine's Soviet constitution remained in effect until 1996, when a new one was adopted. While the old constitution was amended repeatedly between 1991 and 1996, that course of action (amendment of the Soviet constitution rather than rejection of it) meant that both the process of the amendments, and the overall constitutional framework, continued to be constrained by the Soviet document, which cannot be considered "neutral" in any respect. Even the new 1996 constitution was adopted according to the methods prescribed in the Soviet version. This requirement had important effects on which actors had a say in the process and which did not. This stands in stark contrast to the "roundtable" talks held in some other postcommunist societies to open up the political process and to start from scratch in designing postcommunist constitutions.
Second, in part because the Soviet constitution remained in force, the Verkhovna Rada (literally "Supreme Council," or parliament) that had been elected under the Soviet regime in 1990 remained in office until 1994. Therefore, in both the institutional form and the personnel inhabiting key positions, there was no break at all in the legislature of Ukraine. It was this group that inhibited many proposed reforms in the early 1990s, and chose not to change the election law for 1994. Those interests continued to obstruct reform. In other words, the decision to retain Soviet institutional forms and personnel after independence in 1991 was not only a decision to change things gradually, but a decision to limit how far reform might go. These choices were not made by misguided reformers, but by self-interested actors who were already in power in the late Soviet era. That elite was never ejected from power. Just as scholars of U.S. politics attribute much concerning the current political arrangements to the decisions of "founding fathers" more than two centuries ago, the actions of elites of the late Soviet and early post-Soviet era have continued to condition politics in Ukraine.
The Demise of Soviet Rule in Ukraine, 1989-1992
After coming to power in 1985, Mikhail Gorbachev slowly loosened the constraints on political discourse in the Soviet Union. Gorbachev sought to use criticism of the existing system as a way to overcome the tremendous bureaucratic inertia that was impeding his efforts to restructure the economy (perestroika) and acceleration of economic growth (uskorenie).
In Ukraine, that inertia was immense. In many respects, Ukraine and the Communist Party of Ukraine (CPU) can be viewed as the birthplace and stronghold of Brezhnevism, the conservative and corrupt form of government that Gorbachev was trying to overcome. Brezhnev had risen through the party ranks in Dnipropetrovsk, as had Volodymyr Shcherbitsky, the conservative head of the CPU and member of the Soviet Politburo.5 The leaders of reform in the Soviet Union came out of Moscow and Leningrad (now St. Petersburg). In contrast, Kyiv, Dnipropetrovsk, and other Ukrainian cities were controlled by old style conservatives who were very effective at preserving their privileges even as economic growth slowed.6
Perhaps the most important aspect of the Soviet form of government, when considering it as a basis for a democratic successor, is that the Soviet system was based on the monopoly of power by the Communist Party, rather than a system of checks and balances.7 On paper, the Soviet Union had executive, legislative, and judicial branches. But there was no doctrine of the separation of powers. The opposite doctrine, unity of power, prevailed. Institutionally, that monopoly on power was exercised through a massive state bureaucracy, which was controlled by the powerful vertical authority structures of the Communist Party of the Soviet Union. There were no horizontal checks. This bureaucracy was passed intact from the Soviet Union to independent Ukraine, where it came under the control of the president.
Along with a hypertrophied executive structure, the Soviet Union possessed a weak and politicized judicial branch. Following Soviet insistence on monopolized rather than divided power, the judiciary was seen as serving, and not constraining, executive authority. In neither theory nor practice was there any notion that the judiciary protected citizens from the government or served as a safeguard against abuse of power. This institution as well was passed intact from Soviet to post-Soviet Ukraine.
Political power in the Soviet Union was legitimized by pseudodemocratic legislatures such as the USSR Congress of People's Deputies and the Verkhovna Rada of Ukraine. While these legislative bodies had little real power under Brezhnev, under Gorbachev they started to gain legitimacy as elections became more competitive and the Communist Party's monopoly on control weakened. In the Baltic states initially, and later in Ukraine, nationalists sought seats in republic-level parliaments as a way to pressure Soviet elites. But while these legislatures were used by opposition politicians to undermine the Soviet regime, they were not set up to be organs of democratic governance.
In elections held in 1990, candidates critical of the Soviet regime captured roughly 125 seats in the 450-seat Ukrainian parliament, despite the fact that the Rukh movement was registered too late to participate.8 In popular terms, this performance was seen as a great success. In institutional terms, however, the result was fundamentally conservative, for the process would continue to be controlled by the existing elite. While this election can be seen as marking the "beginning of the end" of the communist monopoly on power in Ukraine,9 it also marks the beginning of the process by which members of the old elite transformed the system without surrendering their positions in it. As Wolczuk points out, the Communist Party actually increased its representation in the parliament in this election.10 Roeder emphasizes that "The most important determinant of the subsequent development of these [post-Soviet] institutions was the composition of the parliamentary body elected in 1990"11 Thus, the fact that opposition forces showed their growing strength was less significant than the de facto majority retained by orthodox forces.
Attitudes in Ukraine toward the Soviet government in Moscow remained ambiguous. In a spring 1991 referendum, Ukrainian voters declared themselves to be in favor of both Ukrainian sovereignty and continued membership in the Soviet Union. This contradiction in views continued to characterize both public and elite opinions after independence. Nonetheless, the parliament became the center of "official" criticism of the Soviet government and the one institution of the Ukrainian government open to political opposition.
The government of the country was characterized by a parliament with little experience and a powerful bureaucratic apparatus. As Ukraine began to take a line distinct from that of Moscow in 1991, and to gather to itself more and more of the powers previously held by the central government, the speaker of the parliament naturally emerged as the de facto head of government and head of state. Once the Communist Party dissolved, there was no check on the executive branch.
Even prior to the coup attempt in Moscow in August 1991, Ukrainian opposition leaders, dominated by the nationalist opposition movement Rukh, faced a dilemma. Ideally, Rukh would have preferred a revolution in which Ukraine became independent from Moscow and the existing elite was overthrown in Kyiv. However, because the communist elites were still well entrenched, they could not be overthrown, and their support was crucial to obtaining independence. If declaring independence meant mat the elite would be ejected from power, then they would have no interest in it. The reformers' dilemma only intensified with the crisis in Moscow.
The elites had their own interest in breaking away from Russia. To the extent that the Soviet and Russian governments were coming under the control of serious economic and democratic reformers, it was in the interest of economic and political elites in Ukraine and the other republics to separate themselves from Russia. They did this not as an act of rebellion or revolution, but as a reactionary effort to preserve and extend their control over economic and political power in their regions. For Ukraine's elite, independence was a way to resist the unwelcome reforms being forced on them by Gorbachev. Thus, in the Ukrainian parliament, many deputies associated with the nomenklatura voted for independence, with only those most strongly committed to the unity of the Soviet Union and the preservation of communism opposing it.
Well aware that previous efforts to obtain Ukrainian independence had failed in large part due to the inability of the Ukrainians to form a united front, Rukh and others acquiesced in an implicit deal that allowed the existing elite to remain in power, at least temporarily, in return for a decisive break with Russia. In retrospect, it is possible to trace the lack of genuine reform that plagued Ukraine after 1991 to this decision, but it is not clear that the opposition had a better choice. Given the uneven strength of the opposition movement across the country, it seems unlikely that an effort to oust the ruling elite would have succeeded, and the result might well have been that neither democracy nor Ukrainian independence were achieved. Taras Kuzio argues that given Ukraine's weak national identity, there was no basis for a national revolution in 1991. Instead, he contends, nation-building would have to follow rather than precede national independence.12 It therefore made sense to achieve independence on whatever terms were available. Moreover, it seemed reasonable to believe that separation from Russia would inevitably lead to democracy in Ukraine, since many believed that communism and authoritarianism were imposed from Russia, and had little indigenous support in Ukraine.
The groups that spearheaded the drive for independence were more concerned with the nationalist agenda than with the democratic agenda. Almost all of these groups were based in western Ukraine, and among their leaders were many former political prisoners who had been sent to the gulag primarily due to their nationalist activities. There was no contradiction between the national agenda and the democratic agenda -- in many ways they were complementary. The freedom of Ukrainians to worship as they wished and to publish their political views was closely related to the national agenda. But in cases where the two agendas did conflict, the national agenda was likely to triumph.
The strategy of the Ukrainian elites is also worth noting, because they did not simply react to changing circumstances, but actively took advantage of them. By allying themselves with the nationalists in declaring independence, they were able to rid themselves of oversight from Moscow, thus acquiring full control over the economic and political resources of the republic. The success of the communist elite in co-opting many of the dissidents' demands was ruefully acknowledged by Vyacheslav Chronovil in 1991, when he was asked during the presidential campaign about the differences between his platform and Kravchuk's. He replied, "Nothing. Except that my program is thirty years old, and Kravchuk's is three weeks old."13 By rejecting communist power (and banning the CPU), cagier elements of the entrenched elite gained credentials as nationalists and as reformers, and created at least some outward signs of a genuine revolution. They remained in full control of all economic and administrative levers, which meant that they, and not the national democrats, would control the pace, scope, and direction of any future changes in the country. This turned out to be crucial. As Roeder says of all the post-Soviet states: "The institutions employed in 1990 for 'democratization' of the Soviet system allowed politicians to shape the means by which they would be held accountable for their actions."14
In the election held in December 1991 for a president of the new country (a newly created position, to be discussed below), in which the leading candidates were Leonid Kravchuk, the sitting speaker of the Verkhovna Rada and Vyacheslav Chornovil, the leader of the Rukh movement, Kravchuk defeated Chornovil in a landslide. Kravchuk, the former ideology secretary of the CPU, showed how effectively the old nomenklatura could make the transition to new nomenklatura. By not only quitting the Communist Party but also jumping to the pro-independence movement, and declaring independence, Kravchuk managed to disassociate himself from his recent past, and to recast himself as a moderate nationalist. The ease with which Kravchuk made the transition is shown by the fact that in the 1994 presidential election, he gained large majorities in the parts of western Ukraine that voted almost unanimously for independence. Other elites throughout Ukraine did the same, embracing the notion that communism had been imposed from without and that they had had little to do with it, a myth that they bolstered by rapidly surrendering their party memberships. The Verkhovna Rada banned the CPU.
Institutionally, the evolution of the Ukrainian state apparatus from August to December 1991 laid the groundwork for problems that continue to plague the country to this day. As has already been mentioned, independent Ukraine inherited from Soviet Ukraine what appeared to be a pure model of parliamentary government. With no formally identified prime minister, the speaker of the parliament emerged as the de facto head of government, and there was no head of state. Following the declaration of independence, there was a rush to create all the formal trappings of a state, to leave no doubt domestically or internationally that this was a truly sovereign state that would have state-to-state relations with other states, including Russia.
In the fall of 1991, there were genuine doubts as to whether the state would actually become fully independent of Russia. The international community was withholding recognition until after the December independence referendum, and the Yeltsin government in Moscow was working feverishly to prevent complete state sovereignty for Ukraine. Ukraine's new institutions were thus created in haste. The primary goal was not to design the institutions of an effective liberal democracy, but to create the most convincing presentation to the international community that this was indeed an independent state. Therefore, the office of president was created as an official trapping of an independent state. Also in the fall of 1991, the office of prime minister was created to head the government, which meant that in a matter of months Ukraine went from having no separate head of the executive branch to having two.
Over the next decade, conflict between the president and prime minister over prerogatives plagued the exercise of executive power in Ukraine. In creating two powerful new offices, no workable constitutional provisions were made for either of the new offices or for the existing organs that were presumably giving up some responsibility to them. Thus from 1991 until the establishment of the 1996 constitution, Ukraine had a four-headed government, with executive authority unclearly divided among president, prime minister, parliament, and parliamentary speaker.
The creation of the institution of the presidency did not occur in a vacuum, a theme that recurs often throughout this book. Many members of the Verkhovna Rada, while understanding that a head of state was necessary, were concerned about surrendering their prerogatives, which at that point were enormous. Therefore, in creating the presidency, they instituted important levers by which the parliament could maintain control over the government. These included the parliamentary right to veto executive decrees, the right to override a presidential veto with only a simple majority vote (which effectively means no presidential veto), the right to reject the appointment of key ministers, and the right to dismiss the entire cabinet. The president had no right to dissolve the parliament or call new elections.15 Kravchuk complained to the parliament: "You want to put the president in a position where he would be walking around like a puppet, consulting with everyone about what he should do. That is not appropriate."16
The institution of prime minister was created to divide executive power even further. While the president would be head of state, the day-to-day workings of the executive branch would be controlled by the prime minister, who would be responsible to both the president and the parliament. This experiment with a "hybrid" presidential-parliamentary system was disastrous, despite being superficially based on the successful French model.17 Because the prerogatives of the separate offices were not clearly delineated (there was still no new constitution) and because there was, moreover, no functioning court system to sort things out, there ensued a pitched battle for control over the prime minister and the cabinet, with the prime minister trying to carve out some space for independence while the president and parliament each sought greater control at the other's expense.
The experience of Leonid Kuchma, prime minister from October 1992 to September 1993, illustrates the nature of the problem and shows why Kuchma, upon becoming president in July 1994, resolved to subordinate the prime minister to presidential authority, a task that took him a further four years. In mid-1992, the parliament forced out Vitold Fokin as prime minister because he was seen as too close to President Kravchuk. Kuchma was chosen because he was viewed as being more independent of Kravchuk, and therefore more easily controlled by the parliament.18 Instead of having a cabinet at odds with parliament, Ukraine now had a cabinet at odds with the president, which worked no better. Kuchma, as prime minister, sought independence from both overseers. In November 1992, he persuaded the parliament to grant him special powers for six months to enact drastically needed economic measures. He was given the power to issue decrees (subject to parliamentary veto) thus acquiring in important respects more power than the president, to whom he reported. Simultaneously, however, the parliament granted itself greater authority over selection of ministers and gave the cabinet authority over some functions previously held by the president. By increasing its own power over the cabinet and by giving the cabinet new powers, the parliament was seizing power at the president's expense.19 Before long, Kuchma, at odds with both the parliament and President Kravchuk, resigned in September 1993.
In making these changes, the parliament was making essentially constitutional decisions with a simple majority vote. This parliament, it should be recalled, consisted entirely of members elected under Soviet communism, many of whose democratic credentials were dubious at best.
To summarize, two forms of continuity between Soviet and post-Soviet Ukraine are crucial for our analysis. First, there was little turnover in elites, in contrast to many of the states in Eastern Europe and the Baltics, that have had more sustained democratic transitions. Second, there was substantial institutional continuity, despite the creation of the posts of president and prime minister. These processes were controlled by the parliament, which refused to surrender its legally dominant role. Perhaps the most important distinction between the East European states and Ukraine was that in the East European states pro-democracy forces were powerful enough to force change.20 In Ukraine, the opposition was not merely disorganized and divided, but it desperately wanted something that only the entrenched powers could grant: independence. It was thus in a much weaker bargaining position than was the case in other countries.
Given the political constellation of forces in Ukraine in 1991, "revolutionary" political change was impossible. Instead, the "new" forms of government were chosen by the same people, in much the same institutional setting, that had decided things under the Soviet regime.21 To say that these people sought to retain their positions would understate the situation. Rather, they used their existing power to seize even more control. To speak of "institutional design," in the sense of sitting down with a blank piece of paper to figure out the "best" form of government for the country, is something of a myth even in the best of circumstances, but Ukraine did not even approach this myth.
The Road to Parliamentary and Presidential Elections: 1993-1994
The political crisis that followed Kuchma's resignation in September 1993 was resolved temporarily by an agreement between President Kravchuk and the parliament that both would stand for reelection in 1994, the parliament in the spring and the president in the summer. The outcome of these elections was a highly fragmented parliament, with the largest single bloc (but far short of a majority) controlled by the relegalized Communist Party of Ukraine. Kuchma, the former prime minister, defeated Kravchuk, the incumbent president. These elections, and especially the presidential contest, constituted the high point of Ukrainian democracy until 2006.
There were substantial shortcomings in the laws by which the parliamentary elections were conducted, but the elections themselves were widely viewed as being free and fair. The plethora of candidates (an average of more than thirteen for every seat) made it very difficult for voters to know who was a viable candidate and who was not. A large number of incumbents either chose not to run or else lost, in many cases being replaced by other elites who had accumulated the economic resources needed to triumph in the new conditions.
The 1994 elections indicated that Ukraine was moving toward competitive elections. At the time Kuchma won the presidency, there was no fear that he was not a democrat. Rather the fear was that he would be very pro-Russian, which worried many in Ukraine and in the West. This election, therefore, sets the backdrop for the key problem addressed in this book. The puzzle is not just that Ukraine became authoritarian, but that it did so after the democratic elections of 1994.
Part of the explanation lies in the parliament elected in 1994, and in the institutional gridlock that emerged. The immobility and corruption, as well as the leftist dominance, that characterized the 1994-1998 parUament, helped convince many that increased executive power was necessary for reform to succeed. The problems with parliament were in part directly attributable to the election law.
As a result of the electoral law, which compounded rather than mitigated regional divisions, the parliament elected in 1994 had no chance of forming a working majority (the problems witii that law are detailed in Chapter Seven). The largest coalition, formed by the CPU, the Socialist Party, and the Agrarian Party, controlled 118 seats after the first two rounds of balloting.22 The next largest coalition was the national democrats (Rukh and its allies), who together controlled just 35 seats. The largest "bloc" of candidates was the 163 unaffiliated candidates who had been elected solely on their local power base. This group was referred to in the Ukrainian media as the boloto (swamp) due to its amorphous character.23 With the parliament ineffectual, attention increasingly focused on revising the division of power between the president and parliament.
The 1995 "Law on Power" and the 1996 Constitution
Under Leonid Kuchma, economic affairs improved slightly. While gross domestic product continued to drop, inflation came under control as the state reduced its emission of currency. Viktor Yushchenko, who at that time was head of the National Bank of Ukraine, deserved much of the credit. Yet the parliament continued to block any substantial efforts at privatization and continued to enact irresponsible budget measures.24 To many in the West as well as within Ukraine, the problem increasingly seemed to rest with parliament. Not only was the parliament fragmented, but its largest group was leftist (the speaker, who tightly controlled the agenda, was Oleksandr Moroz of the Socialist Party). Because no one was optimistic about the prospects for a fundamental change in parliament, many, including former president Kravchuk and Kuchma, supported shifting power from the parliament to the president. Kuchma made this a high priority in his inaugural address:Without a doubt, the conditions, without which reforms or any movement forward are impossible, are the formation of a strong and effective state power. This envisages strengthening of a single executive vertical structure as the fundamental instrument for implementing statewide policy. At the same time, relations between all branches of power should be stabilized.25
His justification was that strengthening the presidency would break the deadlock between the executive and legislature and circumvent the logjam in parliament. Russia's redistribution of powers in its 1993 constitution seemed to provide a good model (leaving aside the fact that the process by which the Russian constitution was revised was of dubious legality).
The distribution of powers was essentially a constitutional question, but at this time Ukraine was still operating under a modified version of its old Soviet constitution.26 Kuchma recognized that he was unlikely to achieve the two-thirds vote in parliament required to adopt a new constitution, and was impatient for change. So while constitutional discussions continued, he sought to pass (with the normal parliamentary requirement of a simple majority) a package of measures subsequently known as the "Law on Power," to revise the distribution of power in the system.
Kuchma proposed putting the prime minister and Cabinet of Ministers under the control of the president (the proposals are discussed in more detail in Chapter Six). The parliament, not surprisingly, rejected this plan. Kuchma, in order to pressure the parliament, threatened to take the matter to a referendum. The proposed referendum, in addition to considering the "Law on Power," would contain a vote of no confidence in the parliament. While there was no legal provision for such a vote, the parliament was immensely unpopular, and recognized that, legal or not, this referendum would give Kuchma political cover to dissolve the parliament. Under this threat, the "Law on Power" was adopted in July 2005.
A similar process was repeated regarding the constitution in 1996. With the "Law on Power" due to expire in June 1996, and progress on a new constitution moving slowly, Kuchma used the same tactics again. He put forth a draft constitution that gave the president powers roughly similar to those in the "Law on Power." When parliament balked, he threatened a referendum to adopt an even less balanced arrangement. Again, there was no legal or constitutional basis to amend the constitution through a referendum, but parliamentarians understood that, in practical terms, Kuchma could get away with this. The parliamentary speaker, Oleksandr Moroz, chose what he perceived as the lesser of two evils, and ramrodded the new constitution through parliament.27
At each step of this process, Kuchma went outside of the existing legal framework to force the confrontation into areas where he had greater de facto power. When he could not successfully pass a new constitution, he sought instead to circumvent the whole constitutional process by passing the "Law on Power." Then, when he could not get the law that he desired through parliament, he threatened to use extralegal means, namely, the referendum (there was no provision in the constitution for legislation via referendum). That he ended up not needing to do so is immaterial. What is significant is that he made the threat and that it was obviously considered credible. Having succeeded in 1995 with these tactics, he used them again in 1996. The existing constitution clearly specified that the constitution could be amended only by parliament. Nonetheless, Kuchma successfully threatened to ignore that requirement if he did not get his way.
As a final measure to put pressure on the parliament, Kuchma planned to put to a referendum not the most recent draft compromise, but rather an earlier version that gave him much more power. This was a masterful tactical stroke. While he could get a very favorable constitution passed via a referendum, doing so would have provoked a substantial backlash from parliament, and may have endangered the subsequent legitimacy of the new constitution. Instead, he offered to accept a slightly less imbalanced constitution if the parliament would approve it through constitutional methods. The threat of "war" was used to achieve an agreement, which, because it was reached through constitutional means, had increased legitimacy.
The way in which the constitution was adopted was much more important than its content. Ostensibly, this was a constitutional process, in the sense that it took place within the constraints of the existing constitution. And yet, at critical junctures in the process, Kuchma was able credibly to threaten to go outside the constitutional process. This, not the advent of a constitutional order, was the key outcome. Two related points emerge from these facts. First, there is significant variation in the ability of legal rules in Ukraine to constrain actors. Second, the actors powerful enough to make the rules apply to others but not to themselves will prevail in political conflicts.
While many saw the adoption of the 1996 constitution as a triumph for Ukrainian democracy, because the new document was superior on paper to what it replaced, it was in fact the beginning of the end of constitutional government, for the process by which it was adopted showed that constitutionalism as a form of government -- a form in which no actor can seriously consider disregarding the constitution -- was losing ground. When the constitution can be ignored by the president, or when he can credibly threaten to ignore it, the quality and details of the constitutional provisions lose their importance.
The 1998 Parliamentary Elections
The period from the adoption of the constitution in June 1996 until the parliamentary elections of 1998 was one of great hope in Ukraine. In addition to gaining a new constitution that promised effective and stable government, Ukrainians gained a new currency, the hryvnya, under the supervision of Viktor Yushchenko, head of the National Bank of Ukraine. Despite these achievements, however, progress both in politics and the economy seemed unable to gain momentum.
A new "mixed" election law was adopted for the 1998 elections (the details are discussed in Chapter Seven), but it led to familiar results: the parliamentary leadership was controlled by leftist parties, but the parliament as a whole was controlled by no one. Again there was no majority coalition or party, and the parliament was fragmented into numerous small factions. By early 2000, the chaos and fragmentation would again lead Kuchma to seek to fundamentally revise the constitutional order in Ukraine.
After the 1998 election, months passed before a parliamentary leadership could be elected and the parliament could begin its work. For reasons that are still unclear, the center-right parties were unable to come to agreement. Part of this fractiousness centered on disagreement over whether to support or oppose President Kuchma. Some of the "national democratic" parties sought to form an opposition majority, while many of the independents, under the strong influence of the presidential administration, were determined to build a pro-presidential majority. Rivalry between rightists and centrists over who would gain the all-important speaker's position was also an issue. Finally, a deal was brokered between leftist and pro-presidential deputies to select Oleksandr Tkachenko, head of the small, left-wing, Agrarian Party, as speaker. It apparently took a great deal of pressure and no small amount of bribery to put together the 226 votes to install him, along with several pro-Kuchma centrists in deputy speaker slots. While the majority that put Tkachenko in power could not be sustained, no new majority could be mustered to oust him, so he remained in power. Reform would continue to lag, the parliament would continue to lack effectiveness, and the public would continue to lose confidence in the institution.
The 1999 Presidential Election
By 1999 Kuchma's leadership had become a central question, but left-right and regional cleavages continued to divide the various opposition groups. Kuchma's tactics in the months before the election showed that he had learned much from Boris Yeltsin's 1996 reelection campaign in Russia, and several of Yeltsin's campaign strategists came to Kyiv to advise Kuchma. Well in advance of the elections, efforts to control the media were stepped up. Newspapers that were critical of Kuchma had a variety of measures taken against them by the executive apparatus. It was relatively easy either to force a newspaper to close or to use the threat of such measures to persuade editors to modify their coverage. State-controlled television and radio also came under tighter control, with Kuchma given increasing coverage and his opponents largely ignored.
Opposition to Kuchma became a focal point in the campaign. Four opposition candidates, two on the right and two on the left, formed an alliance, promising that three of them would drop out and support the fourth. The four candidates were Vyacheslav Chornovil, the former dissident and leader of Rukh, Yevhen Marchuk, former head of the Security Service of Ukraine and former prime minister, Oleksandr Moroz, head of the Socialist Party of Ukraine (SPU), and Volodymyr Oliynyk, mayor of Cherkassy. The allies to some extent represented incompatible constituencies, leading to considerable skepticism that the alliance would last. It was easier to agree that an alliance was needed to defeat Kuchma than to agree who would lead it. While Oliynyk was somewhat less prominent, each of the other three had some claim to be "the" candidate, and each had long-standing presidential ambitions. No one was surprised, therefore, when the alliance collapsed.
As in 1994, the election used a two-round runoff formula. Considerable polling data, in addition to reasoned analysis, indicated that Moroz was the most likely to beat Kuchma in the second round (and probably would do so). Moroz led the Socialist Party, but was regarded as more of a "social democrat" than a socialist, and was not closely linked to the communists. This made him more tolerable to rightists and nationalists. His solid nationalist credentials and a rare reputation for honesty made him an even stronger candidate across multiple constituencies. However, he could not defeat Kuchma if he did not reach the second round. Thus, the fragmentation of forces in the first round, and especially the fragmentation of leftist forces, became crucial. Kuchma's hope was that he would face Petro Symonenko, the unreformed communist, rather than Moroz, in the second round.28 While Moroz could compete with Kuchma for both center and right, Symonenko could do neither.
In a highly fragmented first-round vote, Kuchma finished first and Symonenko, rather than Moroz, finished second. This result is largely attributable to the steadfast unwillingness of other candidates to drop out in favor of Moroz. Again, opposition fragmentation made Kuchma's path easier. Kuchma did not simply passively benefit from this fragmentation, but rather promoted it, most notably by covertly funding the campaign of Natalia Vitrenko of the Progressive Socialist Party in order to split Moroz's socialist vote.
Securing a second-round contest against Symonenko guaranteed Kuchma's victory. Even in the western regions of the country, where he was least popular and had polled most poorly in 1994, he dominated the vote. While Kuchma was seen as bad, Symonenko was anathema to many, both due to his loyalty to the Communist Party and to his apparent support for rejoining Ukraine to Russia.
The Path to Hyperpresidentialism: The Fallout from Kuchma's Election Victory
Kuchma stated during the election campaign that, if reelected, he would seek to increase the president's power. Thus the 1999 presidential election created the scene for yet another confrontation between the president and the parliament. The immediate cause of the conflict was the parliament's refusal to reapprove Valeriy Pustovoitenko as prime minister.
According to the constitution, a newly elected (or reelected) president was required to have his candidate for prime minister approved by the parliament. Therefore, Prime Minister Valeriy Pustovoitenko had to be reconfirmed. On December 14, 1999, the parliament voted 206 to 44 in favor of Pustovoitenko, with 21 abstentions, 10 deputies not voting, and 169 members not present.29 Because the constitution required a majority of all deputies (226 of 450), not just a majority of those present, for confirmation, this seemingly positive vote was in effect a rejection of Pustovoitenko.30
In response, Kuchma immediately threatened to discipline the parliament by reducing its powers or even dismissing it. "If there is a constructive majority let [the parliament] work until 2002. If there is no such majority, the country does not need this parliament."31 He threatened a referendum on, among other things, a declaration of "no confidence" in the current parliament and a constitutional revision giving the president the right to dismiss parliament. Even though such a referendum seemed to contravene the constitution, the threat was taken seriously. Kuchma's close ally, Oleksandr Volkov, had already funded a campaign to collect sufficient signatures for a referendum. Kuchma's threat had the intended effect on centrist and rightist parties in the parliament, and work began on constructing a pro-presidential majority coalition. Such a coalition had always been theoretically possible, but had never materialized, due to a mix of institutional disincentives, political disagreements, and petty jealousies.
This assault on parliament was closely intertwined with another development: an effort by rightist and centrist deputies to forge a pro-presidential majority in parliament that would eject the leftist leadership team led by Tkachenko. Kuchma's desire to weaken the parliament stemmed in part from its inability and unwillingness to pass legislation acceptable to the president. The willingness of the center-right parties in parliament to make the compromises needed to form a coalition was driven in large part by their desire to avoid another constitutional showdown with Kuchma.
Both processes accelerated in January 2000. On January 13, eleven center-right parties announced the formation of a coalition that would include a majority (241 of 450) of members of parliament. The coalition, led by former president Leonid Kravchuk, was explicitly aimed at becoming a "pro-presidential" majority. Kravchuk appealed to Kuchma to promise to allow the parliament to continue in its existing form. It is important to note that this appeal was made despite the fact that neither the constitution nor any law gave the president the right to disband the parliament, or any right to amend the constitution through a referendum. Kravchuk's appeal shows that even at this early stage, many in parliament recognized that extra-constitutional means were very much a part of the game.
Following the formation of me majority, two dramas unfolded. The first concerned Kuchma's plans to change the constitution through a referendum. The new majority coalition sought to persuade Kuchma that measures to weaken the parliament were no longer needed, since Kuchma now had a majority favorable to him. He was unmoved: on January 15, he signed a decree scheduling the referendum for April 16. Perhaps Kuchma was not confident that the majority would last. It seems, however, that he had already made up his mind to pursue a more decisive solution, amendment of the constitution.
The second drama concerned the struggle for domination of the parliament, which quickly spiraled out of control. On January 18, at the opening of the new session of the parliament, the new majority put to a vote a resolution electing a new leadership. The motion was passed, but Viktor Omelych, the head of the parliament's Ethics and Standing Order Committee, charged that nine electronic voting cards of absent deputies had been used. As a result, the vote was rendered invalid. It is difficult to assess the veracity of Omelych's accusation in this instance, but in general the practice of voting on behalf of absent colleagues was widely acknowledged. The new majority's effort to take control of the parliament was temporarily stymied.
When the vote to replace the leadership was declared invalid, the center-right majority coalition left the parliament in protest, depriving parliament of a quorum. In the following days, the majority coalition sought to push through changes in procedure, most notably the institution of roll-call voting, which would make it easier to vote the leadership out. When Tkachenko's team repeatedly rebuffed these attempts, the majority coalition raised the stakes. On January 21, the 241 deputies of the new majority coalition met in the Ukrainian House in central Kyiv, declared their gathering the legitimate parliament, and passed resolutions ousting Tkachenko's leadership team. The remainder of the deputies (those loyal to Tkachenko, mostly leftists) continued to meet in the parliament building, declaring that they were the legitimate parliament. The parliament effectively split in two.32
The split put Kuchma in a position to tip the balance of power. He was able to resolve the crisis to his liking because only the executive branch could resolve the dispute. One might expect the question of which parliament was the legal one to be a matter for the courts. Instead, the executive branch jumped into the conflict, via the Ministry of Justice. When the new majority, still meeting in the Ukrainian House, passed measures depriving the old leadership, still in the parliament building, of bodyguards, cars, and telephones, it was up to the executive to decide whether or not to implement these measures. On February 4, Kuchma signed into law two bills passed by the new majority, in effect recognizing this group, not the leftist rump in the parliament building, as the legitimate parliament.33 On February 8, officers of the Security Service of Ukraine, along with members of the majority coalition, took over the parliament building and ejected the leftists. It was a much more peaceful version of what had happened in Russia in 1993. Initially, the leftist deputies boycotted the parliament under its new leadership, but when they realized their boycott was being ignored and that it deprived them of any influence, they acknowledged their defeat and returned to parliament.
The key factor in deciding this conflict in favor of the pro-Kuchma forces was Kuchma's control of the "means of coercion," in particular the Security Service forces that led the new majority back into the parliament building. Had Kuchma supported the other faction, he easily could have had the Security Service eject the new majority from the Ukrainian House. He could have chosen to enforce the measures passed by the leftist leadership rather than the center-right group. Had some portion of the police, interior, or military forces ignored Kuchma's views, and gone to the defense of the leftist faction, the situation might have resembled the standoffs that occurred in Moscow in 1991 and 1993. The parliamentary split, combined with Kuchma's reliable control over the executive branch, put him in complete control. This episode shows how, prior to 2004, Kuchma was able to resolve such crises to his satisfaction.
The 2000 Constitutional Referendum
The parliamentary crisis played into Kuchma's hands in his effort to force a highly questionable revision of the constitution. Despite their recent and bitter battle, both the left and center-right leaders in parliament initially opposed the referendum (in a rare display of institutional unity in Ukraine), and attempted to block it. Ex-speaker Tkachenko said that the referendum had "no other goals than installing an unlimited presidential authority, destroying the parliament, and limiting the rights and freedoms of all Ukrainian citizens."34 First, the parliament passed a moratorium on referenda (which Kuchma vetoed). Ivan Pliushch, the new parliamentary speaker, was more restrained in his rhetoric, but opposed any changes that would require new elections,35 and stated that the referendum was unconstitutional.36
Articles 155 and 156 of the 1996 Ukrainian Constitution specify procedures for amendment of the constitution, and clearly do not allow referenda as such a means.37 Those articles specify that amendments to the constitution must first be approved by a two-thirds majority of the parliament. This had been clearly spelled out in order to avoid the situation that had arisen in 1995 and again in 1996, where Kuchma threatened to hold a constitutional referendum. Presumably, by formally setting out provisions for amendment that excluded referenda, the matter was foreclosed. That Kuchma's 2000 referendum plan succeeded, even against constitutional measures designed specifically to prevent it, is powerful evidence of the weakness of constitutional order in Ukraine.
Serhiy Holovatyi, an independent member of parliament, petitioned Ukraine's Constitutional Court, arguing that the planned referendum violated the constitution. On March 29, the Constitutional Court issued its ruling, finding two of the six questions on the referendum unconstitutional, and allowing the other four to go forward. It ruled that the president could not disband the parliament, and that the parliament could not be disbanded by a referendum. It also ruled that the constitution could not be amended by referendum. In invalidating this portion of the referendum, the court, on the surface, delivered a blow to Kuchma's plans.
But what the court took away from Kuchma with one ruling, it gave back with another, bizarre ruling. Speaking for the court on March 29, Judge Pavlo Yehrafov asserted that the referendum was binding on the parliament.38 The "logic" behind this ruling was that since the constitution makes no provision for a "consultative" referendum, by default the referendum must be binding.39 This was asserted by the court despite the fact that the referendum itself was based on a Soviet-era law. "This is not and cannot be a consultative referendum. It has an imperative character. The Verkhovna Rada, the Cabinet of Ministers, and the presidential administration must implement and adhere to the results."40 In other words, the referendum could not directly change the constitution, but it could do so indirectly, by legally obliging the parliament to do so. If the people passed by referendum a resolution to change the constitution, the court ruled, the parliament was legally obligated to enact the corresponding legislation. The ruling gave Kuchma exactly what he wanted: its convoluted logic effectively allowed the constitution to be modified by referendum, despite specific constitutional provisions to the contrary.
Once the referendum was legalized, there was little doubt about how it would turn out. Polls showed large majorities in favor of all the provisions, and it is not hard to understand why. The recent implosion of the parliament, on top of widespread perceptions of corruption in the parliament, led many voters to support Kuchma's efforts to "fix" the parliament. Moreover, the Constitutional Court ruling effectively removed the charge that the referendum was unconstitutional. The state apparatus used every means at its disposal to ensure passage of the four remaining questions, and allegations of fraud were widespread.41 Zakarpatskia Oblast in western Ukraine reported 97.93 percent voter turnout, and over 90 percent "yes" votes on all four questions.42 Overall, all four provisions were passed with more than 80 percent of the vote. A typical tactic was to threaten employees of government agencies, including schools, with the loss of their jobs if they did not vote "yes."43
With passage of the referendum, focus shifted to two problems that were envisioned immediately after the Constitutional Court's ruling: First, what if the parliament did not pass legislation to amend the constitution along the lines of the referendum? Second, the referendum did not contain actual text of changes to the constitution, or even specify which articles needed to be amended. So someone had to figure out exactly what needed to be amended (it was estimated that at least thirty-two articles should be changed) and draft the actual text of the amendments.44 The presidential representative to parliament, Roman Bezsmertnyi, envisioned a "constitutional crisis" after the referendum," a view later shared by leader of the majority and former president Leonid Kravchuk.45 Kuchma threatened to amend the constitution by fiat if the parliament did not do so.46
On July 13, 2000, Kuchma's bill to amend the constitution passed in the parliament on its first reading with 251 votes. While Kuchma's supporters were clearly pleased, the vote foreshadowed the battle to come: in order to pass on its second reading, a bill amending the constitution must have 300 votes (two-thirds of the members). Yury Murashev, chairman of Ukraine's Helsinki Committee, stated, "Attempts to blackmail deputies into amending the constitution in the name of a 'tongue-less' public are leading Ukraine down the same path as Kazakhstan, Uzbekistan, and Belarus."47
The Gongadze Affair
With Kuchma very close to winning his battle to revise the constitution, a crisis arose that supplanted the constitutional question on Ukraine's political agenda and halted further work on constitutional revision. On September 16, 2000, a journalist named Heorhiy Gongadze disappeared. Journalists in Ukraine had been routinely subject to harassment and intimidation, so initially there was nothing new here. When Gongadze's body was discovered, decapitated, the sense of outrage grew. Very questionable handling of the body and the autopsy created the impression that someone was trying to hide something, and suspicion focused on Kuchma's government. The true crisis did not ensue, however, until the Socialist Party leader Oleksandr Moroz released tape recordings, apparently made in Kuchma's office, in which Kuchma could be heard, in rather foul language, ordering the interior ministry to get rid of Gongadze.
The "Melnychenko" tapes, as they have come to be known (named for the Security Service officer apparently responsible for making and releasing the recordings), initiated a crisis in Ukrainian politics that really ended only in 2004. From this point on, efforts by oppositionists to oust Kuchma gained increasing prominence. The Gongadze affair represented a watershed in two respects. First, those in opposition to Kuchma became increasingly able to put aside their differences to collaborate on forcing his ouster. Second, Kuchma's popularity began a downward trend that culminated in the Orange Revolution.
However, in the short term, left-right differences allowed Kuchma to continue to divide and rule. Both left and right attacked him, but the key unanswered question was who would come to power if he were deposed. As long as the answer was Viktor Yushchenko, the nationalist and market-oriented prime minister, the communists supported Kuchma. They preferred a corrupt and authoritarian Kuchma in power to any kind of nationalist/liberal. For his part, Yushchenko steadfastly avoided forming a common front with other opposition forces, rejecting not only the hard left, represented by the CPU, but also Oleksandr Moroz's socialists and the influential Yulia Tymoshenko, who was wealthy and charismatic, but also populist and tainted by corruption. Yushchenko, Moroz, and Tymoshenko joined forces only in 2004, and when they did they brought Kuchma down.
Parliamentary Elections, 2002
The parliamentary elections that were held in April 2002 were widely viewed as a referendum on Kuchma. If parties in opposition to Kuchma could gain a majority of seats in parliament, they could begin to put serious pressure on him, not only legislatively but also by seriously investigating the allegations of his misdeeds. That would require, however, not only that these parties collectively win a majority, but that they be able to put aside their differences. The election was carried out according to the same "mixed system" that had been used in 1998, with half of the seats allocated according to party lists and half in single-member plurality districts.
The most significant development in this period was the emergence of two new political "blocs," or coalitions of parties. Kuchma and his supporters organized Za Yedinu Ukrainu (For a United Ukraine). This marked the first time that a president in Ukraine clearly linked himself with a party (though Kuchma did not declare himself to be a member). This party had all the resources of the state at its disposal, and therefore had the advantages of extensive favorable media coverage, coercion of state employees, and ample money. The party did not have a particular ideological agenda, but rather was the "party of power." Most of its candidates were government officials or businessmen close to the government. Its campaign strategy was based on using state money and state control of the media to persuade voters, and on using patronage to coerce them.
Viktor Yushchenko, former head of the National Bank and former prime minister, formed Nasha Ukraina (Our Ukraine), an alliance of previously fragmented rightist parties united primarily in their opposition to Kuchma and convinced that the best person to lead the campaign to oust him was Viktor Yushchenko. The emergence of Our Ukraine was significant in that it appeared to overcome the fatal weakness of the Ukrainian right: its tendency to split. Many felt that a united rightist bloc would win enough seats to be able to play a key role in forming a parliamentary majority, and that Yushchenko would be well placed to run against Kuchma for the presidency in 2004. Yushchenko's swelling popularity was recognized by other anti-Kuchma forces, including the SPU, led by Moroz, and the "Bloc of Yulia Tymoshenko." Yushchenko, however, was reluctant to adopt a decisively anti-Kuchma position, perhaps fearing the sort of coercion (including imprisonment) that had been inflicted upon Tymoshenko, or perhaps being reluctant to make deals that he might later regret. For whatever reason, the success of bringing the right together did not carry over into the formation of a "united front" of anti-Kuchma forces across the spectrum. This occurred only later, in 2004.
In many respects, the election was a victory for Yushchenko and a defeat for Kuchma, but again, Kuchma's control of state resources prevented the victory from being anywhere near complete. Our Ukraine considerably outpolled United Ukraine in the party list vote (Our Ukraine won 23.5 percent to United Ukraine's 12.0 percent, with the Communist Party finishing second with 20.0 percent). This implied that if they went head to head, Yushchenko could defeat Kuchma or a chosen successor. Moreover, as the winner in the party list vote, Yushchenko's bloc was seen as the "winner" of the elections, and seemed in a strong position to form a majority coalition.
The elections could be called fair only in the broadest stretching of that term. While the results were not falsified wholesale, the preelection advantages yielded by the application of state resources on behalf of United Ukraine were dramatic. They were supplemented by strategic coercion of voters, and in some cases fraud, in key places (the details of this will be discussed in Chapter Nine). It was not easy for such measures to have a large impact on the party list vote, but in close single-member district races, the ability to manipulate a few thousand votes could easily shift a seat from the opposition to Kuchma, and international observers reported a multitude of such cases, using a fascinating variety of methods.48
As a result of their advantage in the single-member districts, the single largest bloc of delegates turned out to belong not to Yushchenko's Our Ukraine, but to Kuchma's United Ukraine. In the ensuing battle to win control of parliament, a familiar scenario was played out. The opposition had a great deal of difficulty uniting behind a parliamentary leadership slate. At the same time, Kuchma was able to use various sorts of coercion to begin picking off members from opposition parties and winning their support for his candidate for speaker. As a result, on May 29, 2002, a pro-presidential majority coalition under the speakership of Volodymyr Lytvyn was announced.
The Orange Revolution49
The 2002 parliamentary elections and their aftermath helped polarize Ukraine's political landscape. The blatant use of "administrative resources" and outright fraud clarified the increasingly authoritarian nature of Kuchma's regime.50 This helped galvanize opposition forces behind Viktor Yushchenko, whose performance in the election solidified his status as leader of the opposition.
Late that year, the Melnychenko tapes further undermined Kuchma's standing, when it was revealed that he had approved the sale of Kolchuga passive radar systems to Iraq. While it appears in retrospect that the weapons were never delivered, the revelation set the U.S. government, previously rather tolerant of Kuchma's behavior, firmly against him. It also solidified the perception in Ukraine that Kuchma was gathering power not for the purpose of building the state, but to enrich his friends.
By early 2004, two major uncertainties dominated Ukrainian politics. First, who would the "party of power" run against Yushchenko? Many suspected that Kuchma would find a way to avoid the constitutional two-term limit. An opinion was obtained from the Constitutional Court stating that, since Kuchma's first term had begun before the 1996 constitution was adopted, Kuchma's first term did not "count." Ultimately, however, Kuchma chose not to run, and instead put forth Prime Minister Viktor Yanukovych, former governor of Donetsk Oblast.
A second issue that dominated the early maneuvering was an attempt to revise the constitution to substantially reduce the powers of the presidency. In May 2004, the parliament voted on a proposal to amend the constitution to transfer many of the president's powers to the prime minister. For Yushchenko and his supporters, the plan was an obvious effort to gut the presidency in anticipation that Yushchenko would soon win that office. It was also feared that an enhanced prime minister's position would become an alternate means for Kuchma to extend his rule (with no term limit). The motion attracted the support not only of many of the pro-Kuchma factions, but also of the communists and socialists, both of which had long supported a shift to a parliamentary system. For the communists, this would represent a return of power to the Soviets (councils), a long-held tenet of their ideology. However, despite all this support, a small number of deputies from the "party of power," surprisingly, defected, narrowly defeating the measure. These defections may have stemmed from Yanukovych, who assumed that he would win the presidency, and could not have been any more pleased than Yushchenko at the prospect of reducing its powers. With this bill defeated, and a very strong presidency on the line, the campaign intensified.
The campaign was full of intrigue.51 State controlled media nearly excluded Yushchenko from coverage, while running hagiographic stories on Yanukovych. Various plans to commit voting fraud and to falsify the results were revealed well in advance. The use of open violence and judicial manipulation by Kuchma's camp to steal a mayoral election in Mukachiv left no doubt what was in store for November. By summertime, opposition leaders were planning to protest the results of the elections.52 The intrigue climaxed in September, when Viktor Yushchenko was taken to a Vienna hospital suffering from dioxin poisoning. It remains unclear exactly who perpetrated the crime, how they did it, or whether it was intended to kill Yushchenko or merely incapacitate him, but the effect was to further polarize the situation. The last scene in the preelectoral campaign was provided by Russia's president, Vladimir Putin, who spent two days in Kyiv the week before the first round, explicitly endorsing Yanukovych and appearing along aside him at a Soviet-style military parade.
In the first round of the election, on October 31, Yanukovych was declared the winner, less than 3 percent ahead of Yushchenko, with a host of minor candidates far behind. Since neither candidate received 50 percent, the second round would be held three weeks later, on November 21. Even prior to the first round, both sides were gearing up for the protests that were soon to engulf the capital. A week before the first round, over 100,000 protestors gathered at the Central Election Commission (CEC) to demonstrate their strength and to insist on a fair vote count. Barricades were erected around the building and water cannon deployed. The very close vote in the first round indicated either that Yanukovych and his team had not yet deployed all of their tricks, or that they were in much more dire straits than anticipated. Both of those things turned out to be true.
In the second round of the election, reports of fraud streamed in from around the country from two distinct armies of observers, those trained by the opposition parties and those provided by the Organization for Security and Co-operation in Europe and related international organizations. Even publicly available information, such as the alleged 95 percent voter turnout in Donetsk Oblast, pointed to massive fraud. Early in the day on November 22, the Central Election Commission announced that Yanukovych had won, with 49.5 percent of the vote to Yushchenko's 46.6 percent. Putin quickly congratulated Yanukovych on his victory, but almost no one else was willing to accept it.
Within hours, the Orange Revolution was underway. Kyiv's Independence Square (Maidan Nezalezhnosti, which came to be referred to around the world simply as "the Maidan") filled with orange-clad protestors. While many marveled at the initiative of people to protest and at the organization of the opposition in providing logistical support, the role of various parts of the elite in spurring the protests has gone underemphasized.53 Key groups in the elite either refrained from obstructing the protests, or sent messages guaranteeing the safety of protestors, or encouraged them in other ways. Without this participation, sometimes active, sometimes passive, the Orange Revolution might well have failed.54
For example, early on November 22, the Kyiv City Council, led by the powerful and popular mayor, Oleksandr Omelchenko, issued a statement rejecting the legitimacy of the elections. Besides contributing legitimacy to the protests, the statement sent a signal that protestors would not be hampered in Kyiv. There was almost no effort to prevent protestors from getting into Kyiv from around the country, from moving around the city on public transportation, or from massing in the city center. This stood in stark contrast to the 2001 "Ukraine without Kuchma" protests, which were foiled in large part by blocking roads, halting trains, and obstructing access to central Kyiv. Someone made very conscious decisions not to repeat these successful tactics. In the following days, representatives of the Security Service of Ukraine, presumably a key part of any plan to quash the protests, spoke to crowds on the Maidan, urging lawful behavior on the part of the security forces, and implying that force would not be deployed. Moreover, most of the major media outlets issued emotional announcements that they would no longer broadcast biased news, as they had been in recent years, and began giving prominent coverage to the protests.
Other elites defected in short order, leaving Yanukovych's position untenable. On November 29, Yanukovych's campaign manager, Serhiy Tyhypko resigned, admitting that large-scale election fraud had taken place.55 On the same day, President Kuchma himself announced support for a rerun of the second round of the election, destroying what remained of Yanukovych's position.56
While it became increasingly clear that Yanukovych's "victory" would not stand, it was not clear how to get from the prevailing impasse to a Yushchenko presidency. Most of the key actors were committed to a solution that remained within the existing legal framework, but it was unclear how legally to invalidate the results announced by the CEC. One alternative would have been to step outside the rules, and negotiate an elite "pact" as had been done in Poland in 1989. Another would have been the seizure of power by Yushchenko's supporters, a genuine revolution. The final resolution remained within existing rules, but also had elements of "pacting."57
On December 3, Ukraine's Supreme Court provided a legal way forward (and struck a blow for judicial independence in the country) by ruling that the election had been fraudulent, and that the second round would be rerun on December 26. However, for that to happen, new legislation had to be passed setting the rules for the election and reconstituting the CEC. At this point, Kuchma's supporters reasserted themselves in the parliament, conditioning their votes on the necessary election legislation on constitutional changes weakening the presidency. Their proposal threatened to split the opposition. Some in the opposition, most notably the socialists, supported the constitutional changes, and therefore were happy to side with Kuchma's supporters to pressure Yushchenko. Others, most notably Yulia Tymoshenko, opposed such a compromise, and advocated using the hundreds of thousands of people in the street to force the authorities to cave in. Ultimately, Yushchenko reluctantly agreed to the compromise. This opened the path to his presidency, but also gave Kuchma much of what he had sought back in the spring of 2004. The big loser, of course, was Yanukovych, whose last hopes of gaining the presidency were fading away.
The second round was rerun on December 26, and Yushchenko won, with 52 percent of the vote to 44 percent for Yanukovych. That Yanukovych garnered such a substantial share of the vote, even after having been completely discredited, demonstrated that much of the country remained steadfastly opposed to Yushchenko, and highlighted the challenges that lay ahead of him.58
The Orange Revolution led to a period of optimism in much of Ukraine bordering on euphoria (although it should be kept in mind that in much of eastern and southern Ukraine, where voters supported Viktor Yanukovych, even after his attempts to steal the election became clear, the Orange Revolution was seen as a disaster). It appeared the Kuchma and Yanukovych were decisively defeated, that Russia had finally been ejected from Ukraine's internal politics, and that Ukraine was on a short path toward membership in "the West," potentially including membership in the World Trade Organization, NATO, and the European Union. Viktor Yushchenko was feted around the globe for his courage.
By mid-2005, however, Yushchenko was under fire. By October 2005, the "Orange Coalition" had collapsed in mutual recrimination. By March 2006, Viktor Yanukovych and his Party of Regions had risen to take the largest share of votes (30 percent) in parliamentary elections. Our Ukraine finished third, with only 12 percent of the vote, far behind the parties of Yanukovych and Tymoshenko. Negotiations to form a parliamentary majority lasted nearly four months. Yushchenko and Tymoshenko were unable to agree on formation of a cabinet. Then the Socialist Party deserted the "Orange Coalition" as well, forging a coalition with the Party of Regions and the Communist Party to elect Oleksandr Moroz speaker of parliament. However, even that coalition could not forge an agreement to form a government before a constitutional deadline passed. Yushchenko could either dissolve parliament and call new elections, or agree to form a government with his nemesis, Viktor Yanukovych as prime minister. Understanding that new elections would likely weaken his Our Ukraine party even further, Yushchenko finally agreed to form a coalition with the Party of Regions, and nominated Yanukovych to be prime minister. Less than two years after the Orange Revolution, Viktor Yanukovych was returned to the position of prime minister, with considerably greater powers than the office had under Kuchma.
The inability, or rather unwillingness, of Yushchenko and Tymoshenko to reforge their 2004 partnership alienated their supporters. The 2006 parliamentary elections devastated Yushchenko and his Our Ukraine party. In the eyes of many voters, the leadership of the reform movement had shifted from Yushchenko to Tymoshenko. Disgust at Yushchenko's willingness to form a coalition with Yanukovych rather than Tymoshenko led many to question his ability to win reelection as president in 2009.
While at the time, most attention focused on the collapse of the Orange Coalition and the anguish this caused for its supporters, two other developments were more important with respect to the analysis in this book. First, Ukrainian politics became competitive again. The 2006 parliamentary elections were the most free and fair in Ukrainian history (though patronage continued to influence many votes). Control of the parliament was genuinely up for grabs. While many in the West were disappointed at Yanukovych's resurgence, it in fact indicates that the key facet of democracy may have been achieved: the ability of those who are defeated at one point in time to continue to compete, and to have hope of winning in the future.
Second, the institutional basis for politics in Ukraine changed dramatically, due to deals reached in 2004. The parliamentary election of 2006 was carried out according to a fully proportional election law, which had a powerful effect on party formation and consolidation. Presidential power was drastically reduced, with much control over the cabinet shifted to the prime minister, and, by extension, to the parliament. The intense bargaining that followed the 2006 election was ugly, but it did not differ significantly from what Germany had experienced the year before. It was a sign of the new importance of the position of the prime minister. These changes showed some promise of removing the institutional shortcomings that had led to authoritarianism under Kuchma, as the rest of this book shows.
It remained unclear, however, how those institutions would work in practice. It will take some time to determine whether the constitutional adjustments adopted in 2004, which went into effect 2006, will solve old problems, and whether they will create new problems. The results are not predetermined but, rather, will depend in large part on the interests of powerful actors and on the power they can wield in pursuing those interests. As the conclusion will point out, many things did not change in the Orange Revolution.
The beginning of this chapter stressed that Ukraine did not undergo a political revolution in 1991. Perhaps the 2004 Orange Revolution provided the changes that Ukraine needed. However, one might also fear that 2004 will, in retrospect, resemble 1994, in which competitive elections appeared to herald a rapid move to liberal democracy, but led instead to a lost decade.
Appendix 4.1: Key Figures in Ukrainian Politics, 1991-2006
Chornovil, Taras -- Former dissident and political prisoner, head of Rukh movement, 1989-2000; killed in a suspicious automobile accident.
Fokin, Vitold -- Prime minister, November 1990-September 1992.
Kinakh, Anatoliy -- Prime minister, April 2001-November 2002; previously head of the presidential administration.
Kostenko, Yuri -- Head of one branch of Rukh movement after 2000 split; previously minister of environment.
Kravchuk, Leonid -- President, 1991-1994; previously speaker of parliament.
Kuchma, Leonid -- Prime minister, October 1992-September 1993; president, July 1994-December 2004.
Lazarenko, Pavlo -- Prime minister, May 1996-July 1997; convicted in the United States and Switzerland on money-laundering charges.
Lytvyn, Volodymyr -- Speaker of parliament, 2002-2006.
Marchuk, Yevhen -- Prime minister, June 1995-May 1996; also head of the Security Service of Ukraine, chair of the National Security and Defense Council, minister of defense.
Masol, Vitaly -- Prime minister, 1987-1990, June 1994-April 1995.
Medvedchuk, Viktor -- Head of presidential administration under Leonid Kuchma; head of Social Democratic Party of Ukraine (United); leader of "Kyiv clan."
Moroz, Oleksandr -- Speaker of parliament, 1994-1998, 2006; head of Socialist Party of Ukraine.
Pliushch, Ivan -- Speaker of parliament, 1991-1994, 2000-2002.
Pustovoitenko, Valeriy -- Prime minister, July 1997-December 1999; later minister of transportation.
Symonenko, Petro -- Head of Communist Party of Ukraine, 1993-; finished second in 1998 presidential election.
Tarasyuk, Borys -- Foreign minister, 1998-2000, 2005- ; previously ambassador to NATO.
Tkachenko, Oleksandr -- Speaker of parliament, 1998-2000.
Tymoshenko, Yulia -- Minister for Oil and Gas, 1996-1997; deputy prime minister 1999-2001; leader of the Orange Revolution, prime minister, January-September 2005.
Yanukovych, Viktor -- Governor of Donetsk Oblast, 1997-2002; prime minister, 2002-2004, 2006; presidential candidate, 2004; previously governor of Donetsk Oblast.
Yushchenko, Viktor -- Head of the Central Bank of Ukraine, 1993-1999; prime minister, December 1999-April 2001; leader of the Orange Revolution; president, 2005- ; head of Nasha Ukraina political bloc.
Zviahilsky, Yukhim -- Prime minister, September 1993-June 1994.
Appendix 4.2: Political Leaders of Ukraine, 1991-2006
Presidents Leonid Kravchuk 1991-1994 Leonid Kuchma 1994-2004 Viktor Yushchenko 2005- Prime Ministers Vitaly Masol 1987-November 1990 VitoldFokin November 1990-September 1992 Leonid Kuchma October 1992-September 1993 Yukhim Zviahilsky September 1993-June 1994 Vitaly Masol June 1994-April 1995 Yevhen Marchuk June 1995-May 1996 Pavlo Lazarenko May 1996-July 1997 Valeriy Pustovoitenko July 1997-December 1999 Viktor Yushchenko December 1999-April 2001 Anatoly Kinakh May 2001-November 2002 Viktor Yanukovych 2002-December 2004 Yulia Tymoshenko January 2005-September 2005 Yuri Yekhanurov September 2005-March 2006 Viktor Yanukovych August 2006- Speakers of Parliament Leonid Kravchuk To December 1991 elections Ivan Pliushch December 1991-April 1994 Oleksandr Moroz April 1994-March 1998 Oleksandr Tkachenko May 1998-January 2000 Ivan Pliushch January 2000-March 2002 Volodymyr Lytvyn April 2002-March 2006 Oleksandr Moroz March 2006-
1. Adam Przeworski, Democracy and the Market: Political and Economic Reforms in Eastern Europe and Latin America (Cambridge: Cambridge University Press, 1991), 12.
2. Ibid., 94.
3. For more extensive coverage of this period, see Bohdan Harasymiw, Post-Communist Ukraine (Edmonton: Canadian Institute of Ukrainian Studies, 2002); Taras Kuzio, Ukraine: Perestroika to Independence, 2d ed. (London: Macmillan, 2000); and Bohdan Nahaylo, The Ukrainian Resurgence (Toronto: University of Toronto Press, 1999).
4. UNI AN, March 6, 2001, translated by BBC Monitoring Service, March 6, 2001, accessed through Lexis-Nexis, June 8, 2004.
5. For a thorough analysis of the "Dnipropetrovsk clan" and its influence in the Soviet Union and in post-Soviet Ukraine, see Dnipropetrovska Simia: Dovidnyk, 54 Biohrafii (Kyiv: Fond Demokratii, 1996).
6. See Borys Levitskyj, Politics and Society in Soviet Ukraine, 1953-1980 (Edmonton: Canadian Institute of Ukrainian Studies, 1984); and Kuzio, Ukraine, 43-51.
7. The differences between the Soviet system of rule by Soviets and Western parliamentarism are elaborated in Kataryna Wolczuk, The Moulding of Ukraine: The Constitutional Politics of State Formation (Budapest: Central European University Press, 2001), 47-50.
8. Wolczuk, The Moulding of Ukraine, 67.
9. Ibid., 66.
10. Ibid., 67.
11. Philip G. Roeder, "Varieties of Post-Soviet Authoritarian Regimes," Post-Soviet Affairs 10 (1994): 69, emphasis in original.
12. Kuzio, Ukraine, M-4,2.
13. Narodna Hazeta, no. 18 (December 1991), quoted in Kuzio, Ukraine, 63.
14. Roeder, "Varieties of Post-Soviet Authoritarian Regimes," 62.
15. Ihor Markov, "The Role of the President in the Ukrainian Political System," Radio Free Europe/Radio Liberty, Research Report 2, no. 48 (December 3,1993): 32.
16. See Kravchuk's interview in Pravda, February 11, 1992, 1-2, translated in FBIS-SOV-92-029, February 12,1992, 71.
17. Cindy Skach examines the shortcomings of the "French" model, including its role in the failure of the Weimar republic, in Borrowing Constitutional Designs: Constitutional Law in Weimar Germany and the French Fifth Republic (Princeton, NJ: Princeton University Press, 2006). Others have also argued that the "French" model works in France for reasons that are unlikely to obtain elsewhere. See Alfred Stepan and Ezra Suleiman, "The French Fifth Republic: A Model for Import? Reflections on Poland and Brazil," in Arguing Comparative Politics, ed. Stepan (Oxford: Oxford University Press, 2001), 257-75.
18. That it was viewed as unacceptable for the prime minister to be too close to the president shows how different Ukraine's system was from the French model. While the structures were similar, the politics were entirely different. In France, there is general agreement that the system works best when the president and prime minister are of the same party, and the problems arise during periods of "cohabitation" between a president and prime minister of different parties. There is no expectation in the French system that the prime minister will serve as a parliamentary check on presidential power. Yet in Ukraine this was seen as important due to the unresolved distribution of power between the branches of government.
19. Vladimir Skachko, "Three Centers of Power: Leonid Kravchuk Has Shared Power with the Government and He Is Now Prepared to Share It with Parliament and the Local Soviets," Nezavisimaya gazeta, November 7,1992, translated in FBIS-USR-92-155, December 4,1992,111-12. See also Vladimir Buyda, "Government's Supplementary Powers Confirmed. Parliament's Commissions Instructed to Enshrine Them in Current Constitution," Nezavisimaya gazeta, November 24, 1993, 3, translated in FBIS-USR-92-162, December 19,1992,130.
20. This is Michael McFaul's thesis. See Michael McFaul, "The Fourth Wave of Democracy and Dictatorship: Noncooperative Transitions in the Postcommunist World," in After the Collapse of Communism: Comparative Lessons of Transition, ed. McFaul and Kathryn Stoner-Weiss (Cambridge: Cambridge University Press, 2004).
21. On the role of the Soviet elite in post-Soviet Ukraine, see Vyacheslav Pikhovshek, et al., Politychnyi protses v Ukraini: suchasni tendentsii ta istorychnyi kontekst (Kyiv: Agenstvo Ukraina, 1999), ch. 4.
22. The election law (essentially unchanged from the Soviet era) required not only a runoff if no candidate received a majority of the vote, but a rerun of the runoff if turnout did not exceed 50 percent of registered voters. Several seats took over a year to fill.
23. Oleg Shmid, "Vybory staly pomstoiu," Post-Postup, April 15-24,1994,1.
24. See Robert Kravchuk, Ukrainian Political Economy: The First Ten Years (New York: Palgrave Macmillan, 2002), ch. 4-5.
25. See "Inauguration Speech by President Leonid Kuchma at the Supreme Council in Kiev—Live Relay," Radio Ukraine World Service, July 19, 1994, translated in FBIS-SOV-94-139, 20 July 1994, 36.
26. See Wolczuk, The Moulding of Ukraine, ch. 5, on these plans.
27. Ibid., 228.
28. Kuchma's strategy in 1999 echoed that of Boris Yeltsin in 1996. As unpopular as Yeltsin was, his strategists correctly calculated that he could triumph against an unreformed communist, such as Gennadi Zyuganov.
29. Radio Free Europe/Radio Liberty (RFE/RL), Newsline, Part II, December 15, 1999.
30. Voting rules such as these have made it much harder than it might otherwise be to pass legislation. In effect, an absence, for any reason, is equivalent to a "no" vote. See pp. 185-86.
31. RFE/RL, Newsline, Part II, December 15,1999.
32. RFE/RL, Newsline, Part II, January 25-31, 2000.
33. RFE/RL, Newsline, Part II, February 7, 2000.
34. RFE/RL, Newsline, Part II, January 9, 2000.
35. RFE/RL, Newsline, Part II, January 31, 2000.
36. RFE/RL, Newsline, Part II, February 28, 2000.
37. On the constitutional issues, see Peter Byrne, "Governing by Referendum No Way to Govern," Kyiv Post, January 20, 2000, p. 5.
38. Askold Krushelnycky, "Council of Europe to Debate Ukraine's Suspension," RFE/RL Newsline, Part II, March 31, 2000.
39. Ukrainian Center for Independent Political Research Research, Update, April 17,2000.
40. Quoted in Roman Woronowycz, "Constitutional Court Rejects Two Questions of Ukraine's Controversial National Referendum," Ukrainian Weekly, April 2,2000.
41. Viktor Luhovyk, "Rada Poll a No-Brainer," Kyiv Post, April 20, 2000, p. 1.
42. Ukraine Today, April 17,2000.
43. Interviews with voters from around Ukraine, May 2000. These tactics are addressed further in Chapter Nine.
44. Ukrainian Center for Independent Political Research, Update, April 17,2000.
45. RFE/RL, Newsline, Part H, April 11; April 17, 2000.
46. RFE/RL, Newsline, May 18, 2000.
47. Peter Byrne, "Rada Rubber-Stamps Kuchma Power Play," Kyiv Post, July 20, 2000, p. 1.
48. See Andrew Wilson, Virtual Politics: Faking Democracy in the Post-Soviet World (New Haven, CT: Yale University Press, 2005).
49. For detailed accounts and analyses of the Orange Revolution, see Anders Aslund and Michael McFaul, Revolution in Orange: Origins of Ukraine's Democratic Breakthrough (Washington, DC: Carnegie Endowment for International Peace, 2006); and Andrew Wilson, Ukraine's Orange Revolution (New Haven, CT: Yale University Press, 2005).
50. See James Sherr, "Ukraine's Parliamentary Elections: The Limits of Manipulation," CSRC Occasional Brief, April 21, 2002.
51. This is captured in great detail in Wilson, Ukraine's Orange Revolution.
52. Interviews in Lviv, June 2004.
53. See Paul D'Anieri, "Explaining the Success and Failure of Post-Communist Revolutions," paper presented at the annual convention of the Association for the Study of Nationalities, Columbia University, New York, March 23, 2006.
54. One attempt to explore the role of the security services is C.J. Chivers, "How Top Spies in Ukraine Changed the Nation's Path," New York Times, January 17,2005, p. 1. For additional analysis and a critique of Chivers's view, see Taras Kuzio, "Did Ukraine's Security Services Really Prevent Bloodshed during the Orange Revolution?" Eurasia Daily Monitor, January 24, 2005, at http://www.taraskuzio.net/elec-tions2004/revolution_sbu.pdf, accessed July 10,2006.
55. Interfax, November 29,2004; BBC Monitoring International Reports, November 29, 2004.
56. Financial Times, November 30, 2004.
57. See Michael McFaul, 'Transitions from Postcommunism," Journal of Democracy 16, no. 3 (July 2005): 17-18.
58. Even if we assume that Yanukovych still benefited in the rerun from the measures that had been applied in the first two rounds, it is difficult to avoid the conclusion that most of the votes for him were legitimate.