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The Moulding of Ukraine

Kataryna Wolczuk

Chapter eight. Ukraine under the new constitution: the anatomy of a crisis

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  • 1 The terms of ‘upstream’ and ‘downstream’ were coined by Jon Elster in ‘Afterward: the making of po (...)

1The passage of the Basic Law constituted only the first, albeit pivotal, step in the process, of erecting the institutional edifice of the state; to complete the process numerous laws needed to be adopted on the basis of constitutional norms. It is believed that the ‘downstream’ process of learning to live under the new fundamental law is easier than the ‘upstream’ process of drafting the constitution:1 the expectations are that once the constitutional norms regulating inter-institutional relations were created, the ideological conflict would be contained by rules and procedures and, as a result, its intensity would be reduced. As such conflicts would be less destabilising than the struggle over kompetentzkompetentz, or, especially, than the emotion-arousing issues of nationhood. As the new constitution ‘constitutionalised’ the ‘national question’ by containing it in a set of constitutional rules, the ‘question’ was effectively taken out of day-to-day politics. However, hopes that the passage of the constitution would mark the advent of a new era in Ukrainian politics were soon dashed: the post-1996 period was characterised by an escalation of the conflict between the branches of power. The high point of the conflict was the referendum on the constitutional amendments in April 2000, initiated by Kuchma to emasculate the parliament. Even though this initiative failed, the relations have remained strained and unsettled. The inter-institutional strife, which became a feature of the post-constitutional scene, crippled the legislative process and effective policy-making.

  • 2 Mykola Tomenko, Samovyznachenia Ukrainy: vid istorii do polityky (The Self- Determination of Ukrai (...)

2The conspicuous failure of the constitution to bring constitutionalism to Ukraine, at least in the sphere of inter-institutional relations, tends to be attributed to the low level of political culture and the legal nihilism of the political elites.2 Political actors—with their notorious and habitual scoring of rules—conducted politics with disregard for the set of constitutional rules they themselves adopted. By focusing on the psychological and cultural predisposition of the elites, this explanation, however, implies that the constitution—as a set of constraining and enabling norms—was totally or largely ignored. Yet the constitution mattered. Far from being irrelevant, the constitution to a large extent induced inter-institutional competition by creating an array of constraints and opportunities, which guided the actors’ aims and strategies. This conflict-inducing propensity of the constitution was an unintended outcome of the constitution-making process. The desperate search for a form of government, which would satisfy the diverse agenda of the actors involved in constitution making, resulted in the poorly thought-out delineation of authority between the president and parliament. In particular, the lack of foresight and precision in the design of the presidency, which was conceived as a hybrid between the figurehead ‘head of state’ and the chief executive, fuelled intense competition over control of the executive branch. By creating a web of overlapping prerogatives of the president and the legislature, the constitution provided an impetus for these institutions to expand and consolidate their respective spheres of authority. Kuchma has taken the initiative in this contest. Even if the presidency did not succeed in permanently weakening the legislature in constitutional terms, its control of the administrative structure of the state and arbitrary interpretations of the constitution means that the institution has come to overshadow other state institutions.

3The chapter illuminates the way that the institutional framework, designed in the 1996 constitution, structured the political conflict in such a way that it brought about the challenges to the constitutional order itself. But even if institutional factors are prioritised in explaining political outcomes, the complex knot of social life can rarely be untied by using only one type of analytical instrument. Undoubtedly, beside the constitutional norms, the cross-sectional divisions in parliament, which persisted despite the introduction of a mixed, majoritarian–proportional system in 1998, accounted for the problems in clarifying the nature of executive–legislative relations. In particular, the ‘centre’ of the political spectrum, which throughout the 1990s did not develop into a coherent political orientation, was captured by powerful business interests. Having a vested interest in close co-operation with the executive branch, the so-called oligarchic factions have had a corrosive effect on Ukrainian parliament and politics in general. But while the importance of social cleavages, and the political culture of elites’ are not to be glossed over, the analysis of the post-constitutional developments vividly demonstrates the extent to which the particular distribution of institutional prerogatives outlined in the constitution contributed to the perpetuation of political instability in Ukraine.

4The first part of the chapter demonstrates how, after the passage of the constitution, the process of state building became a hostage in the ‘war at the top’, as the president and parliament neutralised each others’ actions. The second section examines the results of the 1998 parliamentary elections, the reasons for the perpetuation of the Supreme Council’s fragmentation, and the parliamentary crisis in early 2000. In the third section it is argued that, despite the creation of a parliamentary majority, the prospects for the reduction of inter-institutional strife by consensual means were ill fated after the re-election of the incumbent. Kuchma held a referendum to try to force the legislature into submission. It was called on moot constitutional grounds and was characterised by a gross abuse of the administrative structures of the state. Even though it failed to bear fruit, no resolution to the inter-institutional strife is in sight. It is concluded that in light of post-constitutional developments, the case of Ukraine can be seen as a powerful indictment of systems with directly elected, executive presidencies.


5The adoption of the 1996 constitution was marked by a shift of the main political cleavage in Ukraine. While the ideological conflict between the Right and Left did not lose its intensity, it came to be overshadowed by the institutional confrontation. Undoubtedly, the inter-institutional cleavage developed as a result of circumstances under which the constitution was promulgated. During constitution making the most important cleavage ran between the Left and ‘the rest’. The former blocked the passage of the constitution, while the centre-right deputies together with the president pushed the process forward. But the anti-Left, proconstitutional coalition in the 1994–1998 parliament was only a situational alliance of convenience and hence short-lived; it splintered once its main objective was achieved. Soon the particular form of government, president-parliamentary, adopted in the constitution fuelled the inter-institutional conflict over remits of power.

6This was a paradoxical outcome taking into account that Ukraine’s form of government was relatively balanced, especially in comparison to other post-Soviet states, including Russia. During constitution making, the pro-presidential spirit of the March draft induced the deputies to re-address the balance between the presidency and parliament resulting in a more even distribution of powers in the May, so-called Syrota, draft (see chapter 6). However, despite an apparent improvement on the autocratic March draft, the hastened pace of work prevented in-depth deliberations on the consequences of the particular distribution of powers in the final stages of constitution making. The more balanced form of government was achieved by the duplication rather than clear-cut separation of some areas of power between the president and legislature. In particular, their competencies overlapped in the following spheres:

  • oversight of the cabinet of ministers;
  • dismissal of the cabinet of ministers;
  • organisation of other bodies within the executive branch;
  • defining the general direction of the internal and foreign policy;
  • law making (although the presidential right to issue decrees in economic matters not regulated by laws was granted to the president for 3 years only and hence expired in June 1999).
  • 3 Author’s interview, London, December 1998.

7As was argued in chapter 7, despite defining the president as ‘the head of state’, the constitution allocated the president far-reaching executive powers. The discrepancy between the formal wording and the actual scope of prerogatives soon became apparent. The overlap in powers between the parliament and the president, combined with the vagueness of some of the constitutional norms, opened the door to diametrically diverging interpretations of the Basic Law. Oleksandr Lavrynovych, a member of parliament who was closely involved in drafting the constitution, commented ‘Even in their worst nightmares the constitution makers could not anticipate the present interpretations of the constitution [by the president]’.3 And yet such diverse interpretations shaped the president and parliament’s objectives and strategies. Kuchma attempted to usurp the powers that were denied to him during constitution making by biased interpretation of the constitution, presidential decrees and a plebiscite. At the same time, apart from the adjudication of the Constitutional Court, the constitution did not offer any tension-defusing devices, because of the independence of the presidency and legislature in terms of their survival (see chapter 7).

8The constitutional norms needed to be developed in a series of laws. Many of those laws, such as ‘On the Accounting Chamber of the Supreme Council’, ‘On the State Property Fund’, ‘On Local Self-government’, ‘On the Cabinet of Ministers’, or ‘On the Local State Administration’, were to further elaborate and clarify the constitutional prerogatives of the branches of power. Yet soon the legislative process was marred by the conflict between the president and parliament, both of which fiercely defended any encroachments onto what they came to view as their own constitutional prerogatives. This was most vividly demonstrated by the embroil surrounding the draft ‘Law on the Cabinet of Ministers’ in late 1997. It turned into a tug-of-war in which the prize was the strengthening of the ‘presidential’ and ‘parliamentary’ spheres of authority in the president-parliamentary form of government.

  • 4 Zerkalo Nedeli, 27 July 1996.
  • 5 Ukrnews, 23 January 1997.

9The draft ‘Law on the Cabinet of Ministers’ was designed by the parliamentary Committee on Legal Reforms to clarify the structure of the executive branch by limiting the role of the president to that of a figurehead and defining the role of the cabinet of ministers as that of the supreme executive organ dependent on a parliamentary majority. The deputies relied on the wording of the constitution, according to which, as the then chairman of parliament Moroz emphasised, ‘the president is the head of state’; this meant, by implication, ‘He is not the chief executive’.4 Through the law on the cabinet of ministers, for the first time the parliament endeavoured to institutionalise the parliamentary majority. According to the law, the president was to submit a candidate for the post of prime minister for parliament’s approval, after the candidate had been agreed on by the chairman of parliament and the parliamentary groups and factions. If the Supreme Council did not approve the agreed on president’s candidate, then it was required to nominate the prime minister by a two-thirds majority; if it failed, the president could appoint the prime minister without parliament’s consent. Although, according to the constitution, the president could dismiss the prime minister unilaterally, the draft stipulated that he had to inform parliament of the reasons for such a dismissal. As Volodymyr Stretovych, the head of the parliamentary commission for legal reform, explained: ‘Drafting the law, we counted on the fact that any prime minister will be a person of the parliamentary majority. Thus parliament must be told why the prime minister whom it supports failed to execute his duties properly’.5 Although that draft did not break the norms of the constitution per se, it elaborated on procedures unanticipated by the Fundamental Law. By allocating a key role to the parliamentary majority, the institution that was absent in the constitution, parliament endeavoured to assert its control over the cabinet of ministers by obliging the president to respect the preferences of the parliamentary majority. Yet, without presidential consent, legislative measures to raise the profile of the parliamentary majority were doomed to fail. Not unexpectedly, Kuchma vetoed the law. Despite repeated efforts, the law has not been enforced, and, as a result, the status and procedures governing the functioning of the cabinet of ministers have remained unclear and by 2001 are still regulated by presidential decrees and the internal acts of the government.

  • 6 The law was published in Uriadovyi Kurier, 14 June 1997.

10The fate of the ‘Law of the Cabinet of Ministers’ was symptomatic of any attempts to delineate the spheres of responsibility and procedures for exercising constitutional powers of the president and the Supreme Council. Virtually each major law, which was adopted by the Supreme Council to develop the constitutional norms has been objected to (mostly through a formal veto or filing a case in the Constitutional Court) by the president. The ‘Law on Local Self-government’ was vetoed three times and returned to parliament before the president finally capitulated and signed it.6 The ‘Law on Local State Administration’ had not been enacted for two years, despite the fact that the parliament overrode the presidential veto by a two-thirds majority on no fewer than four occasions, although, as Kuchma pointed out, this was achieved by violating the constitution and Reglament, something he, the guarantor of the constitution, could not tolerate. Unable to force the parliament to include his proposals, Kuchma exploited loopholes in the constitution: even if a presidential veto is overridden by a constitutional majority, the law still needs to be signed by the president to come into force. So the president did not sign the document for two years (the law came into force only in April 1999). The ‘Law on the Accounting Chamber of the Supreme Council’ was vetoed by Kuchma three times, then signed and subsequently challenged by him in the Constitutional Court. The ‘Law on Privatisation of State Property’, which was adopted by parliament in February 1997, subordinated the State Property Fund to the Supreme Council. On the basis that it impinged on president’s constitutional powers, Kuchma challenged the law in the Constitutional Court, which ruled in favour of the president and invalidated the relevant section of the law.

11As can be seen, the Constitutional Court turned into an arbiter between the legislature and presidency. Its creation was a major success story after the passage of the constitution, although it did not happen without violating the 3-month deadline stipulated in the ‘transitional provisions’. The ‘Law on the Constitutional Court’ was adopted on 16 October 1996 after renewed opposition from the left-wing factions, which continued to uphold the supremacy of the Supreme Council and oppose the removal of parliament’s Soviet-era right to interpret the constitution. According to the constitution and the ‘Law on the Constitutional Court’, Ukraine adopted what could be defined as the ‘European model’ of constitutional review: concentrated, abstract, ex post and final. The prerogative of constitutional review was vested in one body, the Constitutional Court, which was given sole authority not only to interpret the constitution, but also to rule on the unconstitutionality of laws and normative acts; such a ruling brought about a default sanction of the invalidation of the relevant sections of the act in question. Apart from special matters, the Court can only consider laws and normative acts in force. The Court performs abstract reviews of laws and legal acts, while the consideration of the legality of decisions of bodies of state power and local government fall under the authority of courts of general jurisdiction. The Court’s rulings are final and are binding on the territory of Ukraine. The Court consists of 18 judges nominated for 9 years, without the possibility of re-appointment for a second term. The president, parliament and the Congress of Judges appoint six judges each.

  • 7 Kataryna Wolczuk, ‘The Constitutional Court in Ukraine’ in Wojciech Sadurski (ed.), Constitutional (...)

12Like in other post-communist states, despite, or rather because of, the lack of tradition of judicial review, in Ukraine the Constitutional Court was conceived as a powerful institution. Yet, the power of the Ukrainian Constitutional Court was a double-edge sword: while it was granted power to deliver a final resolution in disputes between state institutions, the ill-conceived design of the constitutional framework led to the flooding of the Constitutional Court with cases which were essentially not judicable in purely legal terms. Although the Court has portrayed itself as a humble interpreter and defender of the constitution, its rulings were concerned with the most pivotal and controversial political and social issues.7 Therefore, since its creation in 1996, the Court has come to play a pivotal stone in the institutional arch of Ukrainian politics by assuming the role of an adjudicator in inter-institutional conflict. The Constitutional Court came to compensate for the lack of a majority in parliament and in congruence between the political profile of the legislative and executive branches. At the same time, the Court found itself in a highly precarious and vulnerable position. To avoid challenges from any sides, the Court’s adjudication strategy was characterised by moderation, restraint, and a degree of ‘judicial reluctance’ as the Court tended to refrain from issuing rulings on the most difficult issues unless it was forced to take a stance. Despite the frequent invalidation of, at least some provisions of, legal acts, the Court often strove to limit the impact of its rulings by carefully seeking out the middle ground. Nevertheless, this strategy still did not protect it from criticism, especially by parliament, which found itself at the receiving end of the Court’s reluctant adjudication, instigated by the president who was proactive in filing cases in the Court. This ‘middle ground’ strategy, however, began to fail when the presidential offensive on the powers of parliament curtailed the Court’s room for manoeuvre. In fact, the Court only mitigated the worst excesses of the presidency but did not use its powers to prevent the onslaught on the legislature. By the fourth year of the Court’s existence, its rulings began to bear more clear signs of concession to political expediency (see below).

13Overall, the rulings of the Court calmed but did not eliminate interinstitutional strife and the relations between the president and parliament remained tense. Both institutions engaged in mutual incriminations and accusations of usurpation of powers. Volodymyr Lytvyn, the then presidential adviser blamed the parliamentarians for the on-going conflict:

  • 8 Holos Ukrainy, 18 November 1998, p. 3.

If only some people’s deputies finally find the courage to realise that they have not only a lot of power but also a big responsibility; they should not avoid responsibility or usurp competencies depending on what is going on.8

14The parliament, in turn, imputed the personality of the president. One of the authors of the constitution, Volodymyr Stretovych, put the blame on the personal qualities of the incumbent:

  • 9 Visnyk Programmy Spryiania Parlamentovi Ukrainy, Nos. 2–3 (37–8), 9 June 1999, p. 11.

When preparing the Constitution of 1996, we started with the premise that the president is head of state, who stands above the branches of power, is a superior arbiter and a guarantor of the Constitution. Today, our problem lies in the purely subjective factor of the [current] president of Ukraine, and not the presidency as an institution, which exists in many countries.9

  • 10 Vasyl Kremen’, ‘Resurs vlady (Resources of Power)’, Uriadovyi Kurier, 8 July 1997.

15According to Stretovych, the incumbent’s disregard for the constitutional delimitation of his role as ‘head of state’ lay at the root of the tensions. Symptomatically, the presidential entourage has not challenged the assertion that the president was merely the ‘head of state’, it simply imbued the term with a different meaning. Rather than being an apolitical figurehead, the presidency was at the centre of politics as the supreme political institution of the state. According to Vasyl Kremen’, the head of the Internal Affairs Department of the Presidential Administration, ‘in terms of his prerogative, he [the president] does not belong to any branch of power, but plays an important role in functioning of each of them’ (emphasis added).10 Hence, the ill-conceived, hybrid role of the ‘head of state’ (according to the formal wording of the constitution), and the ‘head of the executive branch’ (in the light of the president’s actual constitutional prerogatives) allowed the presidency to double as the ‘guarantor of the constitution’ and the ‘chief executive’.


16The 1998 parliamentary elections, which took place under the new, mixed electoral system, raised hopes for a breakthrough in the structurisation of parliament, hopes, which, despite some initial advances, remained unrealised. When, however, a concerted effort was made to create a majority, it was overshadowed by Kuchma’s determination to win the upper hand over the volatile legislature.

  • 11 As a result the system became less preferential for the political parties. However, as the ruling (...)

17According to the ‘Law on the Elections’, which was passed in autumn 1997, half of the deputies (225) were elected in single mandate districts using a ‘first past the post’ formula, and the other half from national party lists in accordance with the principle of proportional representation for those parties which cleared the 4 percent threshold. The deliberation on the electoral law took place amidst a political struggle between the president and the non-party based factions, on the one hand, and the party-based factions, such as Rukh and the CPU, on the other. The law was challenged in the Constitutional Court, which ruled that 21 provisions of the law were unconstitutional, mainly those that privileged political parties over candidates in single mandate constituencies. Despite lingering fears, the Court did not strike down the principle of proportional representation.11

18Overall, 30 parties and electoral blocs registered for the elections. With the exception of well-known players with clearly identifiable ideological platforms, such as Rukh and CPU, the elections prompted much re-shuffling on the political spectrum. The Socialists and Peasants formed the ‘For Truth, People and Ukraine’ bloc, while the Progressive Socialist Party of Ukraine remained as a political outcast and competed alone. The centre of the political spectrum was reshaped by the appearance of several reincarnated parties. The parties that until then had lingered on the edges of the political life, turned their marginal position into an electoral asset by portraying themselves as ‘clean’, that was untainted by collaboration with the power structures. The Green Party, which had been created in the hey-day of perestroika, but then led a dormant existence, became a haven for business people interested in gaining a parliamentary mandate (this was an important consideration for many business people seeking a mandate which offered parliamentary immunity from prosecution at a time when the deputies of regional and local radas were being deprived immunity). Hromada (Community), which was created in 1993, was taken over by Pavlo Lazarenko in 1996, when he was still a prime minister. As relations with Kuchma worsened, Lazarenko used Hromada as his independent powerbase. Another party, which emerged from obscurity, was the Social Democratic Party of Ukraine (United), one of many offshoots of the original Social-Democratic Party of early 1990s. It was used as an electoral vehicle by such well-known statesmen as Leonid Kravchuk and Yevhen Marchuk, and two prominent businesspeople, who sponsored the campaign, Viktor Medvedchuk and Hryhoriy Surkiz. There were also relatively new arrivals on the political landscape, such as the People’s Democratic Party, which was formed in February 1996. Closely associated with the presidential administration and nicknamed the ‘party of power’, it was to become the main pro-presidential force in the new parliament in order to boost Kuchma’s chances of being re-elected in the 1999 presidential elections. While the centre of the political spectrum reached a low level of institutionalisation during the term of the 1994–1998 parliament (see chapters 5 and 6), the introduction of the mixed electoral system spawned frantic attempts to enter this previously almost uncharted territory, but the new ‘centre’ has proven anything but a stabilising factor in Ukrainian politics in general, and in executive– legislative relations in particular.

19Nevertheless, while the mixed system had a noticeable mobilising effect, it failed to deliver a clear-cut winner. Only eight of the parties and blocs cleared the threshold of 4 percent (amongst those only 5 passed the threshold in at least two thirds of oblasts, whereas Hromada, PSPU and SDP(U) benefited from high popularity in certain oblasts only, namely Dnipropetrovsk, Sumy and Zakarpattia, respectively). Many more parties got in on the majoritarian list. The majoritarian pool of seats was divided between 22 parties and blocs, 9 of which had only 1 deputy. Hence, the 1998 parliament became populated by more parties than its predecessor (Table 8.1). In terms of the structurisation and transparency of the party system, the preservation of the majoritarian system for 225 seats offset the gains from the introduction of the proportional representation.

Table 8.1. Results of the March 1998 Parliamentary Elections

Table 8.1. Results of the March 1998 Parliamentary Elections

20Source: The Central Electoral Commission of Ukraine.

21At first sight, the winner was the CPU and, more generally, the leftwing parties, including the anti-presidential Hromada, which controlled approximately 42–44 percent of seats. Yet the Left emerged with plurality but not majority. In a far cry from the threats of the ‘red revenge’, the CPU managed to obtain 24.68 percent of the vote, far below the expected 35 percent. The Socialists, despite being in tandem with the Peasants, obtained fewer seats (8.54 percent) than they did alone in 1994. Moreover, in contrast to the 1994 parliament, by 1998 the leftwing was far less united, as the passage of the constitution deepened the cleavage between the CPU and SPU/SelPU, especially as the SPU continued edging towards a social-democratic platform. The conspicuous losers, however, were those who failed to climb over the threshold of 4 percent, which included ‘Reforms and Order’, the party, based on the parliamentary faction ‘Reforms’, which won 3.13 percent, the pro-reform and pro-presidential Agrarian Party of Ukraine (3.67 percent), or the bloc ‘National Front’, which included, amongst others, the Republican Party of Ukraine (2.72 percent). Nevertheless, even those who did clear the barrier could hardly consider the elections a victory. Despite coming second in the elections, Rukh’s 10 percent of seats signified its inability to reach out beyond its stronghold in Western Ukraine, while the People’s Democratic Party’s performance with 5 percent amounted to a dismal failure of the ‘party of power’, which enjoyed the backing of the state structures in the electoral campaign. If anybody could be crowned the winners, it would be the ‘reincarnated’ parties, especially, the Greens and the Social-Democrats, which, despite their relatively low score (5.4 and 4.01 percent, respectively), emerged from almost total obscurity to parties with a nation-wide profile, and, as it turned out, exerted considerable influence in the Supreme Council, thanks to their close links with the executive branch and financial resources.

22Despite the elections of a large contingent of independents (114 deputies), the parties set the tone in the new legislature. According to the change to the Reglament of 13 May 1998, factions could only be created on the basis of parties which cleared the 4 percent barrier on the party list (as 4 percent was equivalent to 14 seats, the latter number became minimum for registering a faction), and only formally registered factions had the right to participate in the formation of internal bodies. This decision allowed the party-based factions to compete for hearts of non-party deputies (often by lining their pockets). The ranks of the PDP swelled four times, and Hromada’s—two-fold. The ‘Left-centre’ faction of the SPU and SelPU initially attracted 35 deputies (May 1998), but already in October a separate faction of SelPU of 15 deputies was formed (‘Left-centre’ retained 3 SelPU deputies amongst its 24 members) (Table 8.2).


23Initially the formation of eight party-based factions in the newly elected Verkhovna Rada suggested a marked improvement compared to the 1994–98 parliament (see Table 8.2). Yet, despite official proclamations in early 2000, a consolidated parliamentary majority failed to emerge in parliament by 2001. This failure can be explained by three factors: the hanging balance of power because of the ‘fuzzy bi-polarity’, the ruling of the Constitutional Court, and the lack of a structural incentive to form such a majority.

Table 8.2. The Composition of the Ukrainian Parliament (1998–2001)

Table 8.2. The Composition of the Ukrainian Parliament (1998–2001)

24Source: Verkhovna Rada of Ukraine, Romyr Report (Spring 1999), Post-Postup, 20 April 2000, BBC Monitoring Global Newsline Former Soviet Union Political File, 6 June 2001.

  • 12 The Supreme Council failed to adopt the new Rules of Procedures (Reglament), so the old Reglament (...)

25Firstly, in contrast to the 1994 parliament, which was characterised by the presence of two ideological blocs, the Left and the nationaldemocrats, and a large amorphous centre, initially the 1998 parliament, was characterised by the ‘fuzzy bi-polarity’, that is the presence of two loose and unstable multi-party coalitions. Although both left-centre and centre-right had about 210 votes, each bloc lacked the strength to adopt laws (which still required a 226 majority under the 1994 Reglament),12 but could block each others initiatives. Attitudes to economic reforms constituted the main, but not the only, cleavage within the new parliament. The centre-right parties, such as Rukh, Social-Democrats (United), the People’s Democratic Party and the Greens favoured a market economy, whereas the left-centre, that is the communists, Socialists/ Agrarians, Progressive Socialists, and to a lesser extent, Hromada, advocated the restoration of the command economy. However, Hromada’s anti-reformist stance stemmed from its abhorrence of the president rather than from a coherently elaborated ideological programme. Hence, the pro- and anti-reform cleavages cut across president Kuchma’s support within parliament. President Kuchma’s confrontational style of politics tended to alienate even the most ardent reformers in parliament. Although the main pro-presidential faction, centred on the People’s Democratic Party, grew in strength by attracting many nonaffiliated deputies, it failed to become a beacon of the structured majority, because of its image of the ‘party of power’ serving the interests of presidential and governmental circles, as well as the ongoing power struggle within the party between the ‘nomenklatura’ and ‘ideological’ wings, which advocated divergent goals for the party.

  • 13 This was most vividly demonstrated in the vote Tkachenko orchestrated on Ukraine’s entry to politi (...)
  • 14 Oleksiy Haran’ and Oleksandr Maiboroda, Obrannia Oleksandra Tkachenka spikerom i perehrupyvannia l (...)

26The hanging balance of power stifled the competition for posts, which resulted in the prolonged elections of the chairman of parliament. Despite 18 rounds of voting over two months, neither candidates of the left, such as Moroz, Symonenko, nor from the centre-right, such as Ivan Pliushch, could master the requisite 226 votes. Finally, with the consent of the presidential side (which, above all, feared the election of Oleksandr Moroz), Oleksandr Tkachenko, the deputy head of the SelPU, was elected thanks to the crucial extra votes from the PDP, Greens and the SDP(U). Victor Medvedchuk from the Social-Democratic Party of Ukraine (United) and Adam Martyniuk from the CPU became the deputy speakers. Rather than the expected figurehead, Tkachenko turned out to be a highly problematic ally of the president. Even if the second half of 1998 witnessed an unprecedented degree of co-operation between the two (undoubtedly smoothed by the writing-off of the debt of Tkachenko’s company Zemlia i Ludy), the Tkachenko–Kuchma tandem fell apart. Tkachenko pushed his own policy line, especially on foreign affairs,13 and developed leadership ambitions (in a self-aggrandising manner, he named himself the ‘head of the legislative branch of power’).14 At the same time, Tkachenko’s heavy-handed style of leadership antagonised the deputies of the centre-right, who grew increasingly frustrated with his treatment of parliament as a personal fiefdom and rampant violations of the parliamentary Reglament. The chairman’s elections revealed the presidential strategy towards the parliament: rather than fostering unity in the centre-right bloc and building a majority through the ‘party of power’, the People’s Democratic Party, the president pitched the centre-right factions against each other by striking separate deals with individual factions or even their members.

  • 15 Visnyk Programmy Spryiania Parlamentovi Ukrainy, No. 1(36) (10 February 1999), p. 8.

27The second reason, which explains why an emergence of a majority was thwarted, was that the early gains of a more structured parliament were nullified by a ruling by the Constitutional Court in December 1998. The Court ruled on the unconstitutionality of the changes to the ‘Rules of Procedures’ of the Supreme Council (Reglament) of May 1998, according to which only factions which cleared the 4 percent barrier on the party lists had the right to form a faction. The relaxation of rules on faction-formation spawned a rapid proliferation of new factions and en masse movement of deputies (see Table 8.2). In March 1999, the powerful oligarch and Kuchma’s close ally, Oleksandr Volkov, created a new faction ‘Revival of the Regions’, which later became the basis for two separate factions, ‘Ukrainian Regions’ and ‘Democratic Union’. The PDP, torn between its pro-presidential and pro-reformist wings, began to lose deputies to both ‘oligarchic’ and ‘ideological’ factions. The split affected Rukh, the second largest party, in early 1999. Because of the disagreement on the leadership role of Chornovil and priorities of the party, most importantly for relations with the president, Rukh split into two factions: one led by Yuriy Kostenko, the former Minister of Environment, and the other by Viacheslav Chornovil. Despite the fact that neither faction departed from the national- democratic ideological platform, the split deepened after Chornovil’s death in a road accident, when Udovenko, the former Minister of Foreign Affairs, replaced him; this move cemented rather than helped to overcome the split, especially as Udovenko and Kostenko threw their hats into the ring for the 1999 presidential elections. In the aftermath of Lazarenko’s detention in Switzerland on money laundering charges, Hromada’s ranks were decimated by the outflow of deputies to the ‘Fatherland’ faction headed by Yulia Tymoshenko. Hromada was subsequently struck off the official register of factions in early 2000. In addition, at that time three other factions, the Progressive Socialist Party, the Peasant Party of Ukraine, and Independents, were also struck off because their size fell below the required minimum of 14 deputies. A new, left-of-centre faction, ‘Solidarity’, headed by Ivan Chyzh, attracted some deputies from the faction of Socialists, thereby meeting the presidential aim of weakening the Socialists. In the autumn of 2000, another small ‘oligarchic’ faction, the so-called Yabluko, was created by Mykhailo Brodskyi, a businessman who fell out of favour with Kuchma. The proliferation of factions perpetuated the chaotic parliamentary politics. While the strongest party-based factions, the CPU and to a lesser extent, the right-wing factions, maintained their ideological cohesion and voting discipline,15 the voting patterns of most centrist factions reflected the fact that, despite their nominal party membership, they were groupings bonded most of all by corporate interests rather than ideological closeness.

  • 16 See ‘Kontrolni funktsii Parlamentu (The Overseeing Functions of the Parliament)’, Visnyk Programmy (...)

28The third reason for the poor structurisation of parliament was that the Supreme Council lacked a strong incentive to form a majority in light of parliament’s weak appointive powers vis-à-vis the president. The Council only had the constitutional right to approve the prime minister and had no say in the appointment of vice-prime ministers and ministers. Moreover, while parliament’s right to dismiss the prime minister unilaterally was qualified (see chapter 7), the president’s equivalent prerogative was not only unconstrained by any constitutional qualifications, but he could also dismiss individual ministers as well as the prime minister. The institutional separation of powers was demonstrated when, in line with the constitutional rules, the creation of the new parliament was not followed by the automatic resignation of the cabinet. Hence, the government headed by Valerii Pustovoitenko, Kuchma’s loyal ally (who replaced Pavlo Lazarenko under the previous parliament in 1997), stayed in office after the 1998 elections. The president’s promise to include some nominees of the parliamentary factions in the cabinet came to nothing, not only because of the lack of agreement on the parties’ role in the formation of the cabinet but also because of the parties’s reluctance to associate themselves with the unpopular government on the eve of the presidential elections. The overall continuity in membership of the cabinet after the elections emphasised the lack of constitutional instruments for the parliament to effectively oversee the executive branch.16 Two years after the parliamentary elections, the expectation that the introduction of the new electoral system would stabilise the composition of the parliament and lead to a formation majority-backed cabinet proved unfounded.

29The hanging balance of power between the two broad, multi-party blocs in parliament, the left and centre-right, culminated in a dramatic stand-off in January 2000. Upon announcing the creation of a parliamentary majority, deputies from the 11 centre-right factions attempted to dismiss Tkachenko as parliamentary chairman. As Tkachenko resisted by violating parliamentary rules, the majority (243 deputies from a 450-deputy house) walked out and assembled in a separate session in another building. It left behind the minority with the chairman but no quorum. During the two weeks of parallel existence, the majority elected a new speaker, Ivan Pliushch, and replaced the left-wing heads of all the parliamentary committees. It also amended its Reglament to give recognition to the institutions of the parliamentary majority and opposition. By storming into the building on the 1 February, the majority (by that time consisting of 259 deputies) took over the parliament’s premises. The ‘new’ Council adopted a series of symbolic gestures, such as renaming itself the Rada of the 3rd convocation (instead of the Supreme Council of the 14th convocation, which symbolised the continuity with Soviet-era Councils) and voted to remove Soviet-era symbols from the façade of the building of the Council. Despite the abuses of its position (including the removal of left-wing heads of parliament’s committees), the proclamation of the formation of a parliamentary majority appeared to be a milestone along the road towards a more structured and transparently organised legislature.

30Nevertheless, the majority’s role and hence survival could not be taken for granted in light of the distribution of power between the legislature and presidency and intra-parliamentary cleavages. The parliament’s basic problem of volatility did not go away, as the newly formed majority was crippled by the internal cross-cutting divisions between the pro-reform and pro-presidential factions, which broadly coincided with the party- and business-factions. One of the strongest proponents of the formation of the majority was actually the faction the ‘Revival of the Regions’ controlled by Volkov, a powerful oligarch with close connections to Kuchma; the majority was to serve as a powerbase of the presidency. Yet the support of other factions, such as the two Rukhs or Reforms-Centre was not automatic, as it depended on their support of the specific pro-reform measures of the executive branch. They insisted that the parliamentary majority could only support a cabinet over which they had some degree of control, rather than the presidency, which was an entirely autonomous institution, and hence unaccountable to parliament. Both the unreformed Left and, especially, the disintegrating Right could not lead the parliament singlehandedly. Yet co-operation with the ‘centre’ was frustrated by the latter’s prioritisation of the immediate interests of its leaders-cum-business persons. In particular, the oligarchs’ drive to ‘privatise the state’ required close association with the presidency.


31In Ukraine’s third presidential elections in the autumn of 1999, the incumbent, Leonid Kuchma, was re-elected for a second term. In the aftermath of his comfortable victory, Kuchma brought the question of the constitutional division of power straight back to the top of the political agenda. Hence, the completion of the electoral cycle not only failed to reduce the inter-institutional conflict, but actually intensified it when the president staged an assault on the Supreme Council under the smokescreen of ‘satisfying the popular will’. By launching an attack on the Council under the cover of a plebiscite, the president tried to emasculate the legislature.

32Rather than focussing on the president’s record in office and examining his ideological platform, the run up to the elections was a replication of the presidential elections in Russia of 1996 in Ukraine. Like Yeltsin, Kuchma started the campaign with less than a 10 percent popularity rating, yet successfully neutralised his toughest opponents and distracted attention from Ukraine’s dire economy by invoking the fear of a ‘red menace’. Like Yeltsin, Kuchma won by staging the final contest between himself and the hard-line leader of the Communist Party. As the incumbent faced the greatest challenge from the Left, Kuchma’s strategy was to split the left-wing bloc into competing camps, and to block Oleksandr Moroz, the leader of the Socialist Party of Ukraine, from getting to the second round. As a moderate left candidate, Moroz was capable of appealing to a considerably wider section of the electorate than the hard-liner Symonenko, who campaigned on the radical platform of stopping or partly reversing the privatisation of state property; reverting to central economic planning and resource allocation; and repudiating the Ukraine–NATO Charter of Distinct Partnership. Kuchma’s strategy succeeded because the divisions between the Left and Right thwarted a broad anti-incumbent alliance. In August 1999, four of Kuchma’s opponents—Moroz, Tkachenko, Marchuk and, the mayor of Cherkasy, Oliynyk—teamed up with the aim of nominating one candidate. Yet, despite the amount of publicity it gained, the so-called ‘Kaniv four’ failed to deliver a joint candidate. At the last minute, Tkachenko withdrew, but not in favour of any of his Kaniv allies but the leader of the Communist Party, Petro Symonenko.

33Kuchma’s strategy bore fruit. While collectively, the left-wing candidates won nearly 50 percent of the vote (Moroz, Tkachenko, Vit renko, Symonenko and other candidates), it was Symonenko with 22.24 who got to the second round, along with Kuchma, who scooped 36.49 percent. Before the second round, all the left-wing candidates threw their votes behind Symonenko, who also made a belated attempt to shift to the centre of the political spectrum, in particular by expressing his support for Ukraine’s independence. Yet, Symonenko’s platform proved too radical for many voters and his score of 37.8 percent in the second round was lower than for the leftist candidates in the first round, despite the fact that the candidates mobilised the rural votes in the central Ukrainian oblasts in support of Symonenko. In turn, Kuchma, who was reluctantly supported by Rukh and centrist candidates, enjoyed a comfortable victory with 56.25 percent.

34The elections demonstrated the radically altered political geography of Ukraine, as the ethno-linguistic cleavage did not seem to determine voters’ preferences, something which bodes better for the long-term ethnic truce in Ukraine. The elections challenged the traditional view of the political geography of Ukraine. In 1994 the election was marked by a clear-cut split into the Left- and Right-bank Ukraine. The line of division almost coincided with the line of partition of Ukraine in the mid-17 century. Kravchuk won in the West and Kuchma in the East, meaning that the political orientation correlated the ethno-linguistic divisions in Ukraine. However, the 1999 elections blurred this cleavage. The ‘red belt’ ran north to south from Chernihiv through Central Ukraine, Zaporizhia to the Crimea, that is through the agricultural oblasts of Ukraine. Russophone Ukraine voted for Kuchma, rather than Symonenko, despite the fact that he promised to grant Russian official status.

  • 17 The conduct of the elections was observed by the OSCE, the Council of Europe and European Institut (...)

35However, in terms of the general progress of democracy, the elections did not inspire optimism, because of widespread media intimidation, biased coverage in the state-controlled media, and interference in the campaign by the state apparatus at the regional and local level.17 The experience of running a heavy-handed electoral campaign was soon put into successful use for a referendum, when Kuchma embarked on strengthening the presidential powers in Ukraine’s president-parliamentary form of government.

  • 18 Oleksandr Holovko, ‘Winter Storms Ahead’, The Ukrainian Observer, Issue 27, No. 1 (23 December 199 (...)
  • 19 Kyiv Post, 3 November 1998.

36Out of 13 opponents of Kuchma in the elections all but one held parliamentary seats. Hence during the campaign, Kuchma did not spare harsh criticism of parliament and sent a clear warning signal: ‘either the parliament will be different or there will be no parliament’.18 In the autumn of 1998, during the crusade against his electoral opponent, the former prime minister Pavlo Lazarenko, Kuchma called for a referendum on the abolition of the immunity mandate of the deputies on the grounds that ‘some deputies belong not in parliament but behind bars’.19 During the electoral campaign, one of his pledges was to seek ‘the redistribution of power’ through a referendum. After his re-election, Kuchma refused to take the oath of allegiance in the building of the parliament as a way of symbolising that he was not bound by the legislature’s authority (The constitution was vague on this issue. Parliament reluctantly acceded to the president’s wish to take the oath in the Palace of Ukraine only hours before the ceremony was to start.) When after the presidential elections, parliament refused to re-confirm Valerii Pustovoitenko in the post of prime minister, Kuchma announced that if there was no pro-presidential majority in the Supreme Council, the country did not need such a parliament. Thereby, the president assumed the role of an arbiter on the utility of the Ukrainian legislature, using as the main criterion whether or not parliament supported the president. The parliament ‘passed the test’, when the centre-right deputies backed Kuchma’s pro-reform measures, by approving the chairman of the National Bank, Viktor Yushchenko, as prime minister with a 296 strong majority (out of 450) in December 1999, even if the largest faction, the communists, abstained from voting. However, the legislature ‘failed’ when it rejected the draft budget law in mid-January 2000.

37While the Supreme Council got entangled in an internal struggle (see above), on 15 January the president pushed for an expansion of presidential powers, by decreeing on a nation-wide referendum to be held on 16 April 2000. Despite the appearance of an act of ‘popular initiative’, the campaign of collecting signatures was initiated and closely co-ordinated by the local and regional state apparatus subordinated to the president. In a highly efficient process, over 3-million signatures were collected by January 2000 so that the president could decree on a referendum initiated by a ‘popular initiative’. According to the decree, the population was to be requested to approve a number of points:

  1. no-confidence in the current parliament and changes to art. 90 of the constitution giving the president the right to dissolve the legislature if a popular referendum votes on no-confidence in parliament;
  2. changes to art. 90 of the constitution granting the president the right to disband the parliament if it does not form a majority within one month after the elections, or approve the state budget within three months;
  3. the limitation of the immunity of deputies (and the appropriate changes to the art. 80 of the constitution);
  4. a reduction of the size of the lower chamber from 450 to 300 (and appropriate changes to art. 76);
  5. the creation of an upper chamber of legislature in order to represent regional interests; and
  6. consent to the constitution being amended in a nation-wide referendum.
  • 20 Ukrainian TV, UTN1, 14 April 2000.

38The legislative basis for the referendum was so inconsistent (the outdated 1991 law of referendum stayed in force only insofar as it did not contradict the 1996 constitution) that it could not function as a guide for conducting a referendum. The issue of the decree coincided with the intensification of the anti-parliamentary campaign in the state-controlled media. Amongst other indictments, Kuchma claimed that the Supreme Council was unrepresentative on the grounds that only 2 percent of the population were members of political parties, yet parties were allocated 50 percent seats in the 1998 parliament.20

39The decree led to consternation on the domestic scene and international condemnation of Ukraine. The parliamentary factions, ranging from Rukh to the CPU, condemned the idea of the plebiscite and the Supreme Council issued a moratorium on any plebiscites until the new law was passed. The president simply ignored it. The Council of Europe expressed its concern over the referendum, and, in particular, the lack of an appropriate legislative basis, and the encroachment on the parliament’s powers. Despite the ruling of the Constitutional Court (see below), in early April 2000 the Council of Europe recommended that Ukraine postpone the referendum until the new bill on referendum was adopted, and threatened to suspend Ukraine’s membership of the Council if the referendum was conducted unconstitutionally or the results were implemented in breach of the constitution. The recommendation was widely criticised in the state-controlled media by the presidential entourage, as an act of interference in Ukraine’s internal matters. Kuchma was not to back off on this occasion (as he did in 1995 and 1996). Yet, as on previous occasions, the president insisted that he only obeyed the ‘sovereign will of the people’ (see chapter 6).

40The legal consternation was reflected in the ruling of the Constitutional Court, which was drawn in as an adjudicator after a group of 108 deputies filed a case in the Court on the unconstitutionality of Kuchma’s decree. In the face of mounting tension and international critique, the Constitutional Court issued its pivotal ruling on 27 March 2000. The ruling endeavoured to square the circle by attempting to reconcile the principle of popular sovereignty (expressed in art. 5 ‘the people are the bearers of sovereignty and the only source of power in Ukraine’), on the one hand, with the doctrine of constitutionalism, according to which the ‘popular will’ was subject to constitutional limitations, on the other. The Court’s decision prioritised the former principle over the latter, although the power of the ‘popular will’ was somewhat curtailed. The Court decided to uphold four out of the six questions, despite the fact that the constitution specifies a procedure for the enactment of amendments to the constitution (according to article 156, the referendum is specified as one of the procedural requirements for changes to some chapters of the constitution, but takes place after the Supreme Council voted in favour of changes by a constitutional majority). The ruling, sketchy and contradictory in its spirit, nevertheless struck off the two questions which if supported by the population would have allowed for amendments to the constitution to be enacted on the sole basis of the referendum (hence by-passing the legislature altogether) and would have granted the president the right to dissolve the Supreme Council. The Court also stated that any changes to the constitution could only be made in accordance with Chapter XIII ‘Introducing Amendments to the Constitution’.

41Undoubtedly, the exclusion of the two questions eliminated the imminent and gravest threat to the constitutional order and principles of constitutionalism in Ukraine, and hence was welcome by the parliamentarians, who feared the onset of autocratic, presidential rule in Ukraine. Oleksandr Moroz, the leader of the Socialist Party of Ukraine, proclaimed it as a ‘victory of rule of law’. Serhiy Holovatyi, the most ardent anti-referendum campaigner in the Ukrainian delegation to the Council of Europe, reckoned that:

  • 21 RFE/RL Poland, Belarus, Ukraine Report, 31 March 2000.

The possibility of introducing a new constitution of Ukraine by using this referendum has been eliminated. That’s a blow against those forces that wanted to put Ukraine on the same track as [Belarussian president Aleksander] Lukashenka … By its decision, the Constitutional Court has supported parliament as an institution.21

42The ruling, however, did not eliminate the doubts over the constitutionality of the referendum. In particular, the Court’s insistence that the results of the referendum were ‘binding’ for all state institutions was difficult to square with its assertion that only parliament can change the constitution; in accordance with the principle of the separation of powers, no court or any other institution can order the legislature, as a sovereign branch of power, to approve any law. By ‘informing’ the legislature of its duties, the Court overstepped its authority. The Court’s arbitration on the referendum was an example of the precarious task of taming the power conflict by subjecting it to a judicial decision, when the legislative framework was patchy and hence open to conflicting interpretations. By being implicated and issuing a controversial ruling which tempered the worst excesses of the decree but essentially did not prevent the abuse of the contradictory legislative framework by the president, the Court did not escape the damning of its reputation, from which its dented image of a neutral arbiter is not likely to recover in the nearest future.

43The results of the referendum on the 16 April 2000 exceeded the most optimistic expectations of the presidential circles and hence indirectly confirmed the widespread interference of the state administration or even the outright falsification of results in some oblasts. Prior to the referendum, the opinion polls indicated that the Ukrainians would give approval to all the questions, yet, the turn-out would be low. Yet, the application of the ‘administrative measures’, that is various forms of pressure and intimidation by the state administration at the local level, secured the turn-out of 78.99 percent. According to the official results, the electorate gave overwhelming approval to all four proposals, with the reduction of the number of deputies from 450 to 300 gaining the highest rate of approval, 90 percent (Table 8.3).

Table 8.3. The Results of the Referendum in April 2000

Table 8.3. The Results of the Referendum in April 2000

44Source: Postup, 18 April 2000.

45The announcement of the results instantly sparked debates on how the results should be acted upon. The questions not only provided poor directions for constitutional amendments, despite the fact that their wording included what looked like ready-made phrases to amend the constitution, but a number of pivotal issues were remained unresolved. The question on bi-cameralism did not specify the powers, mode of creation and size of the upper chamber. The question about the reduction of the number of deputies did not specify which chamber that number applied to: the lower one or both. The question regarding the immunity mandate did not stipulate if immunity was to be abolished or only limited. In the light of the limited role of the Supreme Council in the appointment of the cabinet of ministers, it was unclear what role of parliamentary majority was to be apart from preventing the president from dissolving the legislature. Oleksandr Lavrynovych, a prominent deputy, commented:

  • 22 Den’, 18 April 2000, p. 4.

Regarding the question of the dissolution of the parliament if the Supreme Council cannot form a permanently functioning majority or approve a budget in three months, it is doubtful if such words can pretend to become legal norms. A majority can be created the day after the new parliament convenes, and 450 deputies can join it. And then this majority will not be capable of electing a speaker for a whole year or approve a prime minister, despite the fact that it formally exists.22

  • 23 For example, Udovenko’s Rukh was torn apart between the outright boycott and ‘negative answers’ to (...)
  • 24 A statement by a member of the ‘Revival of Regions’ faction, Oleksiy Kucharenko on STB Channel, 17 (...)

46The referendum vividly demonstrated the overwhelming domination of the presidency on the political landscape of Ukraine. Apart from evidencing the weakness of institutions such as the Central Electoral Commission, which proved a docile being in the president’s hands, the referendum also exposed the impotence of other actors. While many parties, ranging from the Communists, Socialists to Rukh and ‘Reforms and Order’, criticised the referendum, they not only failed to build an inclusive anti-referendum alliance, but even within individual parties internal dissent prevented them from adopting coherent strategies.23 The newly formed parliamentary majority was crippled by conflicts between the more principled, party-based factions, and factions advancing the interests and ambitions of the oligarchs, such as the ‘Revival of Regions’ and SDPU(U). Their diverse objectives came out into the open after the plebiscite. Factions, such as the two Rukhs and Reforms-Centre, conceded only to the limiting of the parliament immunity. The ‘Revival of Regions’ faction, in contrast, insisted that the president had a moral right to dissolve the Supreme Council in the event that it does not adopt all the changes to the constitution.24 It appeared that the ‘oligarchic’ factions adopted a course on the dissolution of parliament in the expectation that pre-term elections would provide a chance for stronger representation in the Supreme Council.

47Nevertheless, there were some positive steps taken. Pro-reform factions responded to the initiative of the cabinet headed by Victor Yushchenko by signing a memorandum on mutual responsibility (solidarna vidpovidalnist) in April 2000. The memorandum envisaged closer cooperation between the government and parliament, including extra-constitutional instruments such as consultations and the presence of deputies at meetings of commissions of the cabinet in order to agree on a common position prior to tabling of draft laws. Yet, Yushchenko’s cabinet failed to win the support of the oligarchic factions, which found his reformist drive in the energy sector in particular, harmful to their business interests.


48Notwithstanding the flawed legitimacy of the referendum, it appeared to open the door to piecemeal constitutional reform. Yet a scandal which broke in the autumn 2000 weakened the president to the extent that his plans vis-à-vis the legislature has been floundered. However, while popular pressure has not been strong enough to oust Kuchma, neither has the parliament been capable of acting unanimously to bring about his downfall. While the international image of Ukraine has been given a serious blow by the fact that its head of state has been implicated in a murder of a journalist, the president survived, not least because of the determined use of the instruments of control over the media, judiciary, procuracy, as well as the support of the oligarchic factions in parliament.

  • 25 See the decision of the Constitutional Court of Ukraine, Re: Changes to Articles 76, 80, 90, 106 o (...)
  • 26 See the decision of the Constitutional Court of Ukraine, Re: Changes to the Constitution upon the (...)

49The ruptured Supreme Council seemed easy prey for the president’s hunt for more powers. This was especially so as Kuchma enjoyed the tacit backing of the Constitutional Court, the approval of which was crucial for any changes to the constitution to be enacted. In summer 2000, two alternative draft constitutional amendments were prepared by the president and parliamentary left wing. While the president sought to enact the changes approved in the referendum, the Left aimed at a more fundamental shift of the balance of power between the legislature and executive in favour of the former. The Court’s decision that the presidential draft satisfied the criteria of article 157,25 without announcing its decision on the second draft, revealed overtly political motives for the way the Court prioritised the cases. Under pressure from the parliament, the Court issued a ruling on the opposition’s draft in which it approved only the provisions that coincided with the narrow proposals in the president’s draft, on the grounds that other proposed amendments were not directly related to the questions addressed in the referendum.26 By insisting that only changes initiated in the president’s referendum could be incorporated into the constitution, the Court’s stance contravened the parliament’s power to initiate changes to the constitution at any time.

50The parliament’s fortunes were rescued by the temporary weakening of the presidency in the aftermath of the so-called Gongadze scandal. The release of audiocassettes by a former security guard, Mykola Melnychenko, of recordings allegedly from Kuchma’s office, implicated the president in the death of a opposition journalist critical of the regime, Hryhoriy Gongadze. He disappeared in September 2000 and his body was found two months later. The revelations sparked popular anti- Kuchma protests and prompted the creation of a number of antipresident oppositional organisations, such as the ‘National Salvation Forum’ and ‘For the Truth’ (Za Pravdu), aimed at pressuring Kuchma into resignation. While Kuchma succumbed to the pressure to remove some state officials discredited for their interference in the investigation of the Gongadze scandal, such as Yuriy Kravchenko, the Minister of Internal Affairs, he refused to step down himself. After a couple of months, the strength of mass demonstrations waned away, as the fragmented opposition proved unable to unite, let alone to galvanise the disillusioned and cynical Ukrainian citizenry into mass protests against the discredited head of state. Most importantly, the oppositional movements did not find the necessary backing amongst the parliamentarians. The legislature failed to initiate coherent steps against the president, because the oligarchic factions stood firmly behind Kuchma, linked by intricate business ties to the presidential administration. Impeachment procedures turned out too difficult to initiate not only because of the problems with mustering a sufficient number of votes but also because of the lack of an appropriate legislative framework. By the spring of 2001 as relations between the parliament and Yushchenko’s cabinet became the focus of attention, it appeared that Kuchma weathered the political storm. However, the issue of constitutional amendments to emasculate the parliament was removed from the parliamentary agenda as there was no prospect for a constitutional, two-thirds majority under the circumstances.

51The events of winter and spring 2001 revealed not only the extent of Kuchma’s control of the law enforcement forces in Ukraine but also his symbiotic relations with the oligarchic factions. The ousting of Yushchenko’s cabinet, the most reformist government Ukraine has had since independence, amply demonstrated the corrosive influence of the oligarchic factions on the parliament’s actions and the progress of economic reforms in Ukraine. While officially the centre-right majority, proclaimed in early 2000, still existed, the ‘centrist’ factions, such as the Social-Democratic Party of Ukraine, the Labour Ukraine, Yabluko, and the Democratic Union, allied with the Communists in their opposition to Yushchenko. As only the two Rukhs and the faction of the party ‘Reforms and Order’ stood behind the embattled prime minister, he was voted out of office with 263 votes in favour and 59 against. Even if the president refrained from dismissing Yushchenko himself, he swiftly acted upon his removal by the communist–oligarchic coalition and—as it turned out—scooped the benefits of the prime minister’s departure. Not only did he install a more compliant figure, Anatoliy Kinakh, the head of the Ukrainian Union of Industrialists and Entrepreneurs, in charge of government, but also assured more direct control over the cabinet.

52The role of the cabinet of ministers and its relations with the president and the parliament remained ill-defined, because of the president’s refusal to sign the ‘Law on the Cabinet of Ministers’. Still the Sovietera notion of the government as a technocratic collective body in charge of the implementation of socio-economic policies was difficult to sustain for much longer. The cabinet’s political accountability not only to the president but also to the parliament made its role a pivotal bone of contention between the parliament and the president since the passage of the constitution. While continuing to block the parliament’s legislation, the president once again decided to take the lead and tip the balance in his favour. By strengthening his control over the administrative structures of the cabinet and shifting the balance of power within the cabinet in favour of the administrative component of the cabinet, the president wanted to counteract the ongoing process of ‘politicisation’ of the cabinet. This process resulted from the tendency for the prime ministers to develop their political agenda irrespective of the president and for the parliament to exercise its control, however limited, over the government. In the decree ‘On Measures to Continue Carrying out Administrative Reform in Ukraine’, the president created a new institution of a state secretary, a post which was designed to provide greater stability in government ‘regardless of the political and economic situation’. According to the decree, state secretaries were to be appointed by the president for his term of office, five years, and their job was not to terminate with the change of government. By usurping the parliament’s right to regulate the organisation of the cabinet of ministers, the president’s decree readily exploited the loopholes in the constitution, blatantly disregarding the corresponding rights of the parliament (see above).

53With the implementation of the pro-presidential amendments to the constitution halted in late 2000, the prospects for constitutional reform leading to a creation of a super-presidential system have rescinded. This is despite the fact that Kuchma did not change his views and bemoaned his ‘limited’ powers:

  • 27 Ukrainian Television Second Programme, 12 June 2001 cited in BBC Monitoring Global Newsline—FSU Po (...)

I believe there must be a totally presidential form of rule during the transition period. [W]hy does the USA not reject the presidential form of rule and no one speaks about any sort of attacks on anything there? It appears that only the Ukrainian president has no opportunity to dissolve the parliament even when it is completely inefficient.27

54Yet even though he failed to expand his constitutional prerogatives, the informal distribution of power continues to make the president an unrivalled force on the Ukrainian political arena. There is no sign of the president voluntarily relinquishing his existing powers over the executive branch, which is a sine qua non for the gradual evolution of the political system in Ukraine towards a parliamentary form of government. Without a solution in sight, it appears that the shadow of the ill-thought institutional framework is bound to hunt Ukraine for the foreseeable future.


  • 28 On post-communist presidencies see Timothy J. Colton and Robert C. Tucker (eds.), Patterns of Post (...)
  • 29 See, for example, J. J. Linz and A. Valenzuela (eds.), The Failure of Presidential Democracy: Comp (...)

55In the aftermath of the collapse of the Soviet Union, the region witnessed a proliferation of powerful presidencies.28 That the institution came under the scrutiny is hardly surprising in light of the claims made regarding Latin America, where presidentialism was held responsible for the breakdown of nascent democracies because of its inherent structural problems, which had tended to trigger conflict and instability.29 Amongst post-Soviet states, Ukraine provides powerful ammunition for the critiques of systems with directly elected, executive presidencies.

  • 30 Matthew S. Shugart and John M. Carey, Presidents and Assemblies: Constitutional Design and Elector (...)
  • 31 Kataryna Wolczuk, ‘Presidentialism in Ukraine: A Mid-Term Review of the Second Presidency’, Democr (...)

56While considering the arguments that presidential democracy is prone to breakdown and leads to abuses of power in contrast to ‘be nevolent’ parliamentarism, Shugart and Carey stress the need for a clear distinction between two different types of ‘presidentialism’: firstly those with ‘presidential constitutions that are formally democratic but fail’, and secondly ‘those in which formal presidential dominance over other actors precludes workable checks and balances to begin with’.30 It is clear that the majority of the former Soviet republics, such as Belarus, Azerbaijan or Kazakhstan, fall into the second category. In those countries the constitutions were devised for particular office holders and never meant to provide a normative framework for genuinely pluralistic politics. Ukraine, however, belongs to the first category: its democratic ‘presidential constitution’ was lawfully passed by the country’s legislature and endeavoured to strike a balance between a desire for decisive leadership and asserting the role of the legislature. Yet soon such a design led to a crippling conflict between the legislature and president. To decisively tip the balance in his favour, the president launched an attack on the constitutional order. The most grave assault took the form of a constitutional plebiscite, during which Kuchma exploited his popular mandate and abused control over the administrative structures. Although the initiative failed to bear fruit, there are clear warning signals that Ukraine is on a slippery slope moving towards a system in which, even if it does not appear super-presidential in constitutional terms, the accumulation of informal mechanisms of pressure and populist instruments in the hands of the presidency contradicts the constitutional principle of limited government. Therefore, despite the overall positive balance sheet of the first couple years of Kuchma’s first presidency when the institution provided a much-needed sense of direction and impetus for reforms,31 the experience of Ukraine provides a powerful indictment of executive presidencies. The incumbent’s incessant drive to increase presidential powers rather than voluntarily relinquish them suggests that without a careful revision of the constitutional distribution of powers, the conflict is unlikely to abate. However, prospects for any constitutional revisions of that type are remote, to say the least. In this context, the strife between the president and parliament will continue to be a trademark of Ukrainian politics under the 1996 constitution.


1 The terms of ‘upstream’ and ‘downstream’ were coined by Jon Elster in ‘Afterward: the making of postcommunist presidencies’, in. Ray Taras (ed.), Postcommunist Presidents (Cambridge: Cambridge University Press, 1997), p. 225.

2 Mykola Tomenko, Samovyznachenia Ukrainy: vid istorii do polityky (The Self- Determination of Ukraine: from History to Politics) (Kyiv: Zapovit, 1998), p. 129.

3 Author’s interview, London, December 1998.

4 Zerkalo Nedeli, 27 July 1996.

5 Ukrnews, 23 January 1997.

6 The law was published in Uriadovyi Kurier, 14 June 1997.

7 Kataryna Wolczuk, ‘The Constitutional Court in Ukraine’ in Wojciech Sadurski (ed.), Constitutional Justice, East and West (Oxford: Oxford University Press, forthcoming).

8 Holos Ukrainy, 18 November 1998, p. 3.

9 Visnyk Programmy Spryiania Parlamentovi Ukrainy, Nos. 2–3 (37–8), 9 June 1999, p. 11.

10 Vasyl Kremen’, ‘Resurs vlady (Resources of Power)’, Uriadovyi Kurier, 8 July 1997.

11 As a result the system became less preferential for the political parties. However, as the ruling was announced when the campaign was in full swing and after the registration of all the candidates was completed, the parliament decided that the ruling could not be applied retrospectively, hence, it would apply to the future elections.

12 The Supreme Council failed to adopt the new Rules of Procedures (Reglament), so the old Reglament of July 1994, despite the fact that it was not passed as a law, was outdated and in many places contradicted the constitution, remained in force.

13 This was most vividly demonstrated in the vote Tkachenko orchestrated on Ukraine’s entry to political arm of the CIS, the Inter-Parliamentary Assembly in April 1999, in spite of the stance of the presidential administration.

14 Oleksiy Haran’ and Oleksandr Maiboroda, Obrannia Oleksandra Tkachenka spikerom i perehrupyvannia livykh syl (The Election of Oleksandr Tkachenko to the Post of the Speaker and the Reshuffle of Left-wing Forces), Mimeo, Centre for Studies of National Security, Kyiv, (September 1999).

15 Visnyk Programmy Spryiania Parlamentovi Ukrainy, No. 1(36) (10 February 1999), p. 8.

16 See ‘Kontrolni funktsii Parlamentu (The Overseeing Functions of the Parliament)’, Visnyk Programmy Spryiannia Parlamentovi Ukrainy, Nos. 2–3, (9 June 1999).

17 The conduct of the elections was observed by the OSCE, the Council of Europe and European Institute of Media. The OSCE condemned violations which took place on the voting days, such as multiple voting, the presence of security forces, falsification of voting attendance so in some electoral polling states it showed over 100 percent and so forth. But according to the OSCE, such violations were not widespread. The Organisation reserved the harshest criticism for what it called ‘comprehensive interference’ in the electoral campaign by the state apparatus and the heavy media bias. At the regional and local level, state employees were in charge of Kuchma’s campaign. Access to non-partisan information was limited, while state-controlled media were biased in favour of the incumbent, but others worked for a specific candidate as well (the private STB station harassed). Some analysts describe this situation as ‘mediated violation’: there were no gross violations on the polling day; everything happened in the run-up to the elections. However, the international organisations which monitored the elections did not challenge the results. See the OSCE report on the presidential elections (November 1999).

18 Oleksandr Holovko, ‘Winter Storms Ahead’, The Ukrainian Observer, Issue 27, No. 1 (23 December 1999).

19 Kyiv Post, 3 November 1998.

20 Ukrainian TV, UTN1, 14 April 2000.

21 RFE/RL Poland, Belarus, Ukraine Report, 31 March 2000.

22 Den’, 18 April 2000, p. 4.

23 For example, Udovenko’s Rukh was torn apart between the outright boycott and ‘negative answers’ to 3 questions and a positive one to the question of lifting the immunity mandate.

24 A statement by a member of the ‘Revival of Regions’ faction, Oleksiy Kucharenko on STB Channel, 17 April 2000.

25 See the decision of the Constitutional Court of Ukraine, Re: Changes to Articles 76, 80, 90, 106 of the Constitution of Ukraine, 27 June 2000, (N 1–38/2000).

26 See the decision of the Constitutional Court of Ukraine, Re: Changes to the Constitution upon the Initiative of the People’s Deputies of Ukraine, 11 July 2000, (N 1– 39/2000).

27 Ukrainian Television Second Programme, 12 June 2001 cited in BBC Monitoring Global Newsline—FSU Political, 12 June 2001.

28 On post-communist presidencies see Timothy J. Colton and Robert C. Tucker (eds.), Patterns of Post-Soviet Leadership (Boulder: Westview Press, 1995) and Ray Taras, ‘Separating power: keeping presidents in check’, in. Ray Taras (ed.), Postcommunist Presidents.

29 See, for example, J. J. Linz and A. Valenzuela (eds.), The Failure of Presidential Democracy: Comparative Perspective (Baltimore & London: The Johns Hopkins University Press, 1994); A. Lijphart, ‘Constitutional Choices for New Democracies’, Journal of Democracy, Vol. 2, No. 1 (Winter 1991), pp. 73–84; A. Lijphart, ‘Democracies: Forms, Performance, and Constitutional Engineering’, European Journal of Political Research, Vol. 25, No. 1 (January 1994), pp. 1–16; S. Mainwaring, ‘Presidentialism, Multipartism, and Democracy: the Difficult Combination’, Comparative Political Studies, Vol. 26, No. 2 (July 1993), pp. 198–222.

30 Matthew S. Shugart and John M. Carey, Presidents and Assemblies: Constitutional Design and Electoral Dynamics (Cambridge: Cambridge University Press, 1992), p. 36.

31 Kataryna Wolczuk, ‘Presidentialism in Ukraine: A Mid-Term Review of the Second Presidency’, Democratization, Vol. 4, No. 3 (Autumn 1997), pp. 152–71.

Table des illustrations

Titre Table 8.1. Results of the March 1998 Parliamentary Elections
Fichier image/jpeg, 193k
Titre Table 8.2. The Composition of the Ukrainian Parliament (1998–2001)
Fichier image/jpeg, 331k
Titre Table 8.3. The Results of the Referendum in April 2000
Fichier image/jpeg, 106k

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