The Ukrainian legislation on local elections has been undergoing continuous change over the last 30 years. Different electoral systems have been used: majority (absolute and relative majority, single- and multi-member constituencies), proportional representation (all of them of a closed type), and parallel systems, combining elements of majority and proportional representation systems.
The next local elections scheduled for 25 October 2020 will be held in accordance with the Electoral Code of Ukraine adopted on 19 December 2019, which is going to be applied for the first time.
The Electoral Code comprises provisions related to all kinds of elections in Ukraine: presidential, parliamentary, and local ones. Hence one could welcome the emergence of a single piece of legislation replacing three distinct laws on elections. That being said, the Code does not regulate the functioning of the Central Electoral Commission, the State Registry of Voters; nor does it contain any provisions dealing with nationwide and local referendums. One can say then that instead of an electoral code we are dealing rather with a compilation of laws on elections.
The amended law establishes as a crucial factor for choosing the electoral system to elect members of city councils and mayors the number of voters: it is different for constituencies with up to 90,000 people and to those with 90,000 people or more. This creates problems both with regard to the moment in time which should be taken into account in order to determine the number of voters and with regard to the body which shall announce the type of the electoral system to be applied for the election of particular city councils and mayors. In its turn, this approach of the legislator blurs the principle of legal certainty, which is an essential component of the rule of law. Therefore, at least two things should be clarified at the level of the Code. Firstly, the point in time when the number of voters in a local community is determined should be clearly specified. Secondly, the Code should specify which state body (apparently, the Central Electoral Commission) and when should announce which type of electoral system is to be applied in each city. Such an announcement should be made well in advance of the elections to ensure legal certainty.
There is great concern about the election of district councils. According to the Constitution, these local governments should seek to represent common interests of local communities of villages, settlements and towns of a district. Pursuant to the Code, the overall composition of a district council depends on the number of voters in the district and each local community of the district should elect two to four members of the district council, depending on the number of voters. There is a hidden problem here as by electing at least two members from each local community it will be impossible to arrive at a number fitting the total number of members of the district council, which is directly dependent on the overall number of voters in the district. In most cases, the overall number of council members will be significantly lower than required to ensure the presence of at least two members from each local community.
Another challenge for the 2020 local elections is the decentralisation process and the related administrative reform which are still underway. In particular, the Constitution has not yet been amended, the law on administrative division has not been adopted, and the Parliament has not changed the borders of districts. The legislation of Ukraine permits the amalgamation of local communities belonging to the same district or to different districts of the same region (oblast). It is not uncommon for the newly established local communities to be situated simultaneously in the territory of two or three existing districts. Therefore, it is not yet clear how the inhabitants of new amalgamated communities should elect district councils.
Under the proportional representation system, political parties have monopolised the right to nominate candidates. The Code does not provide for an alternative way of their nomination, for example by forming a list of independent candidates. The amount of the election deposit should be well-reasoned, and the election threshold should take into account the specifics of local elections, especially, the status of the bodies to be elected. The current situation when, for example, the amount of the deposit for the election of Kyiv city mayor is higher than the deposit for the election of the President of Ukraine hardly makes sense.
It is necessary to clarify the provisions of the Code on granting equal rights to parliamentary and non-parliamentary parties to create election commissions.
The Constitution of Ukraine has no restrictions regarding the right to stand as a candidate in local elections (for example in connection with previous convictions for certain categories of crime), therefore it may not be appropriate to introduce such restrictions at the level of the Code, as is currently the case.
It appears that the legislator should examine the issues highlighted in this briefing paper in order to amend the Electoral Code of Ukraine and provide better guarantees to the citizens of Ukraine so that they use their active and passive voting rights in the local elections scheduled for 25 October 2020.