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The Moulding of Ukraine

Kataryna Wolczuk


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1Ukraine began its independence in 1991 able to draw on very limited experience of independent statehood and no experience of having to abide by a legitimate, effective and limiting constitutional framework. Hence constitution making after the demise of communism embodied both aspirations to build a polity capable of surviving, as well as the desire to encode a set of rules that would effectively govern the polity. As such, Ukraine’s constitutional process was not only inspired by a longing for constitutionalism, reflected in the idea of limited government, but also by the need to build a strong state. In other words, constitution making had multiple aims. This made the case of Ukraine qualitatively different from cases of established states, where constitution making aimed, above all, to provide the basis for the development of constitutionalism. This multiplicity of aims shaped the outcome of the process in Ukraine. The lack of a shared understanding of independence was reflected in the profound disagreement on the fundamental questions of statehood. This disagreement, illuminated by prolonged and hotly contested constitution drafting, cast a shadow over the legitimacy and viability of the state. Under such circumstances, state building became the main objective of the constitutional process. The evolution of the conception of statehood over time symbolised the gradual distancing by the elites from the Soviet constitutional model and a move towards a model of a European nation-state. Thus, upon its passage in 1996, the constitution was proclaimed a milestone in the process of state formation. The constitution was to assume a boundary-setting function: it set the parameters of political discourse on the fundamental questions of the polity, which, it was hoped, would either cease to be an object of contestation, or at least confine the contestation within clearly delineated rules and procedures. It was envisaged that stability would be the result of such boundary setting. However, ten years after independence and five after the passage of the constitution, Ukraine can hardly be regarded as a more stable and orderly country, either in the eyes of its own citizenry, the elites or the international community. This prolonged crisis grossly affected Ukraine’s chances of asserting its ‘Europeanness’ in institutional terms, as the European Union has kept Ukraine at arms’ length, abhorred by its internal turmoil. Thus the question emerges of why the passage of the constitution, despite the lofty declarations and high expectations, has failed to mark a breakthrough in the way politics are conducted in Ukraine. These concluding remarks will try to shed light on this question. This will be done, first of all, by reflecting on the evolution of thinking on statehood over 1990–1996 and the state-building role of the constitution, and, secondly, by considering why the constitution has not put an end to the debilitating pattern of political instability.

  • 1 Incidentally, there were some linguistic hurdles to be passed. There was no agreed Ukrainian trans (...)
  • 2 The dominant discourse on ‘normality’, ‘civilised practices’ and ‘universal models’ in the constit (...)

2The conception of statehood enshrined in the 1996 constitution differed radically from the one prevailing at the onset of the constitutional process. In 1990–1991, the system of soviets, reinforced by elements of presidentialism, was preferred. The political community was defined in territorial–political and not ethno-cultural terms, and the ‘socialist choice’ remained the cornerstone of the ideological superstructure of the state. Over 1990–1996, constitution making amounted to a gradual shift away from a vision of statehood anchored in the Soviet dogmas to the conception of a nation-state, described in the Western lingua franca of constitutional theory.1 What had been ‘radical’ and ‘nationalist’ views propagated by the opposition in 1990 had, by 1996, become the views of the majority (even if, in the case of some issues, only situational). In the shifting domestic and international context, the ideas of the previous opposition gained wider resonance and acceptance, while the Soviet-era models and concepts have loosened their pervasive grip on the key sections of the political elites.2 Constitution making represented an intensely ideological period of large-scale and fiercely contested change of the worldview of the key section of the elites (albeit without any outbreaks of violence). The constitution amounted to a landmark for the ‘European option’ in Ukrainian politics. This was despite the fact that the evolution from a ‘Soviet’ to a ‘European’ perspective was not achieved by all actors at the same time. A considerable proportion of the political elite with communist leanings never fully embraced an ideal of sovereign statehood, a ‘return to Europe’, and the ‘superiority’ of Western principles over the ‘indigenous Soviet’ tradition. Yet, the peaceful passage of the constitution, despite all the odds, was presented as yet more evidence of Ukrainians’ European provenience:

  • 3 Molod’ Ukrainy, 2 July 1996, p. 1.

Ukraine yet again proved that it is not Russia. Even in the most difficult of times, [Ukrainian] politicians are capable of finding lawful solutions, without resorting to the use of tanks. And such a civilised route meant that we are, nevertheless, Eastern Europe and not Western Asia.3

3Undoubtedly, the idealised conception of Ukraine as a nation-state was filtered through and ‘enriched’ by various individual, institutional and group interests. But even if the interests gave shape to many specific institutional solutions, in general, they tended to reinforce, rather than weaken, the shift away from the Soviet legacy, the interests of the presidency were especially instrumental in that respect. Even though the proponents of the old order remained numerous and vocal, they failed to reach across the ideological gap to co-operate with those centrist forces, which opposed the ethno-national assertion of statehood. Coerced by the president, a critical mass in favour of the new constitution was mastered, even if the merits of specific constitutional norms were questioned by some deputies.

  • 4 Whereas 90 deputies refused to take an oath of allegiance to the new constitution in July 1996, by (...)

4The passage of the constitution crystallised the situation in fundamental terms: those in favour and those against a sovereign Ukraine. The group of parliamentarians, who voted for the constitution and then swore an oath of allegiance to it, effectively came to symbolise the strength of the pro-statehood orientation in Ukrainian politics.4 An overarching consensus on the primacy of Ukrainian sovereignty was symbolically sanctioned in the formalised procedure of voting by a constitutional majority in parliament. Arguably, Ukraine required six years of a constitutional process to finalise its passage to independence; that is to come to terms with the meaning of independence and hammer out a conception of statehood.

  • 5 A public holiday was established on 28 June to mark the day of the passage of the constitution. Th (...)

5Therefore, the passage of the constitution was instantly proclaimed as the most important event in Ukraine since the referendum on independence in 1991. The constitution has been canonised in public discourse, public holidays, anniversaries of independence, the school curriculum and so forth.5 It acquired the status of a symbolic attribute of sovereignty and a ‘secular catechism of the state’. This celebrated status reflected the constitution’s perceived role in state building, something which was expressed by a Ukrainian constitutional lawyer on the eve of its passage:

  • 6 Comments by professor Petro Martynenko, a constitutional law expert who participated in the drafti (...)

There is no state without a constitution. The construction of statehood begins from the time of the adoption of a constitution. What we have now—is a transitional period. To finish that period, we have to adopt a constitution and to resolve all political issues among parties, political convictions, and political values within the frameworks of a national state, which will be built.6

6To this end, the role of the constitution in post-Soviet Ukraine was predominantly viewed through the prism of state building. This preoccupation was hardly new or surprising. Attainment of statehood constituted the Ariadne’s thread of Ukraine’s history in the twentieth century:

  • 7 Mykola Tomenko, Samovyznachenia Ukrainy: vid istorii do polityky, pp. 127–8.

The motives for national self-determination through a constitution animated the actions of the authors of the [constitutional] documents of UNR, ZUNR, Hetman Skoropadskyi and Directory, and the leaders of the national-liberation movement and dissidents. The constitutional debates of the contemporary Ukrainian state also took place under the banner of national liberation, while the content of the document and its legal justification was of secondary importance … The historic struggle for the constitution was most of all a struggle for a national ideology, a national idea, and not for the Basic Law of the state and its citizens.7

  • 8 On constitution making in Poland see Mark Brzezinski, The Struggle for Constitutionalism in Poland(...)

7In the context of the prioritisation of state formation, the limiting function of the constitution stemming from the original telos of constitutionalism did not inspire the minds of the drafters to the same degree that state- and nation-building did. The idea of the constitution as a fundamental set of principles and correlated institutional arrangements that would restrict the arbitrary use of state power was put on the backburner. That the role of the constitution as an embodiment of constitutionalism was assigned a lower priority was evidenced in two ways. Firstly, under the acutely felt pressure of time, the profound ideological rift prevented systematic, detailed, legalistic deliberations on the consequences of particular norms adopted. This omission was especially evident when Ukraine is compared with other post-communist countries, such as Poland where constitution making took place almost simultaneously and culminated in 1997. In Poland, the tedious debates on the exact distribution of powers between the branches of power were inspired by the desire to craft a constitution that would safeguard constitutionalism. In particular, the experience of law-twisting excesses that characterised Lech Wałęsa’s presidency in the early 1990s prompted thorough deliberations on the possible interpretations and potential consequences of any particular norm.8 Yet, in Ukraine, politicians rather than lawyers had the final say over the content of the constitution with the result that the quality of the final product as the legal foundation of the polity, as opposed to a political manifesto, was much more dubious. Secondly, as the elites struggled to develop a conception of statehood out of diverse ideas and interests, the prioritisation of state building made the elites opt for an institutional framework, including the centralised territorial–administrative model and an executive presidency, which—as it soon turned out—was not necessarily conducive to promote the principles of constitutionalism.

8When it came to the institutional choices, the proclaimed focus on state building concealed an important divergence between aims of the various actors involved in the process. Under the banner of consolidation of the state, members of the post-communist elites succeeded in acquiring institutional prerogatives, which may have been otherwise denied to them. That the notion of the state building was exploited to pursue the narrow agenda of office holders was most amply demonstrated by president Kuchma. For the incumbent the passage of the constitution was merely a stage in the pursuit of unconstrained political domination on the political landscape. The poorly delineated executive powers of the presidency enabled him to consolidate power by exploiting constitutional loopholes in addition to other non-constitutional means. Therefore, the prioritisation of state building during constitution making facilitated not only the retention but the expansion of power by some members of the former nomenklatura elites.

9Many constitution drafters made a tacit, hopeful assumption that once the constitution had been adopted, the principles of constitutionalism, including structured and regulated interactions between the branches of power within their respective constitutional boundaries of authority, would follow suit. And yet as was demonstrated in the final chapter of this study, the dearth of legalistic foresight soon proved to have dire consequences for regulating executive–legislative relations. The design of the legislative–executive relations put the branches of government on a collision course, something, which jeopardised the constitutional order by inducing conflict and uncertainty. The ill-designed constitutional framework, beside all other factors, has contributed to the perpetuation of inter-institutional strife in Ukraine, which has crippled the country’s capacity to advance its political and economic transformation. With little progress made in the transformation, ten years after the proclamation of independence Ukraine remains weak and unstable.


1 Incidentally, there were some linguistic hurdles to be passed. There was no agreed Ukrainian translation of the ‘separation of powers’ which was translated as podil and rozpodil, and in the spring of 1996, while the constitution was drafted, linguistic experts stipulated that the podil should be used.

2 The dominant discourse on ‘normality’, ‘civilised practices’ and ‘universal models’ in the constitutional process forced even the Left to adjust its language; as a result they attempted to present the Soviet model in terms of ‘universal’ values of democratic accountability, human rights, prevention of dictatorship, popular sovereignty etc. See, for example, Holos Ukrainy, 26 December 1995.

3 Molod’ Ukrainy, 2 July 1996, p. 1.

4 Whereas 90 deputies refused to take an oath of allegiance to the new constitution in July 1996, by December only 57 communists and 6 other deputies had not sworn their allegiance (Den, 20 December 1996).

5 A public holiday was established on 28 June to mark the day of the passage of the constitution. The study of the constitution became a compulsory part of the national curriculum in secondary schools and higher education.

6 Comments by professor Petro Martynenko, a constitutional law expert who participated in the drafting of the constitution, during the TV Youth Political Talk Shaw organised to publicise the constitutional process in the spring of 1996. Transcripts of the show were kindly provided by the International Foundation of Electoral Systems, Kyiv.

7 Mykola Tomenko, Samovyznachenia Ukrainy: vid istorii do polityky, pp. 127–8.

8 On constitution making in Poland see Mark Brzezinski, The Struggle for Constitutionalism in Poland (Houndmills and London: Macmillan, 1998).

© Central European University Press, 2001

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