PRELIMINARY STATEMENT OF THE NDI INTERNATIONAL ELECTION OBSERVER DELEGATION TO UKRAINE'S DECEMBER 26, 2004 REPEAT OF THE PRESIDENTIAL RUNOFF ELECTION
Kyiv, December 27, 2004
This preliminary statement is offered by the international election observer delegation organized by the National Democratic Institute (NDI) to Ukraine's December 26 repeat of the presidential runoff election. The delegation, totaling 35 observers from seven countries in Europe and North America, visited Ukraine from December 22-28. The delegation is part of NDI's ongoing monitoring of Ukraine's election process, which began prior to the first round of the election and will continue until the next president of Ukraine is installed in office. NDI may issue additional statements on this repeat election and will publish a final report on the overall election process in the near future.
The delegation was led by: Abner Mikva, former member of the United States Congress, White House Counsel and Chief Judge of a U.S. Court of Appeal; Bronislaw Geremek, Member of the European Parliament, former Foreign Minister of Poland and Member of the Polish Sejm (Parliament); and Patrick Merloe, NDI Senior Associate and Director of Electoral Programs. The delegation also included other current and former legislators, former ambassadors, elections and human rights experts, civic leaders and regional specialists.
The purposes of the delegation were twofold: to demonstrate the international community's continued interest in and support for the development of a democratic election process in Ukraine, in the context of this repeat election; and to provide Ukrainians and the international community with an impartial and accurate assessment of the election process and the political environment surrounding the repeat election to date. The delegation conducted its assessment on the basis of international principles for election observation, comparative practices for democratic elections and Ukrainian law. The delegation worked in cooperation with Ukrainian nonpartisan election monitoring organizations, particularly the Committee of Voters of Ukraine (CVU), and with credible international election observer missions coordinated by the OSCE/ODIHR, the European Network of Election Monitoring Organizations (ENEMO) and other international organizations. For more than a decade, NDI has conducted, on a nonpartisan basis and across the political spectrum, programs to support the development of democratic institutions and processes in Ukraine.
The delegation wishes to emphasize that at this point NDI does not intend to render a conclusive assessment of the repeat election process, given that the tabulation of results is not complete and that any electoral challenges and complaints will require monitoring through their completion.
SUMMARY OF OBSERVATIONS
Ukraine's December 26 election promises to cross the democratic threshold, opening a new era in the country's political history and breaking a decade-old pattern of seriously flawed elections. This is a major accomplishment, the credit for which belongs to the Ukrainian people.
Over the course of the last 37 days, Ukraine experienced a fraudulent presidential runoff election, hundreds of thousands of citizens coming into its streets independently and spontaneously to peacefully defend their right to an honest election, the nullification by Ukraine's Supreme Court of the November 21 poll, the negotiation by the country's political leaders of a solution to the national crisis caused by the fraud, and the repeat on December 26 of the presidential runoff. These extraordinary events, driven by Ukrainians' demand that their will should determine who would have the authority and legitimacy to be their president, earned the world's admiration and changed the country. As the election process is completed and if the will of the people expressed at the ballot box is honored, Ukraine will have passed through a critical challenge and taken its place in the community of democracies.
The December 26 election was peaceful across the country and orderly in most places. Voter turnout was high, as citizens went to the polls for the third time in less than two months to select the next president of Ukraine. The Central Election Commission (CEC) has operated transparently. Overall, the thousands of election officials appointed by both candidates demonstrated their capacity to work together to promote integrity in the electoral process. Though the process was not without problems, no systematic or large-scale fraud or irregularities have emerged to date that would bring its credibility into question.
There are crucial challenges facing Ukraine's new president, its other political leaders and Ukrainian civil society. Political polarization must be followed by effective national reconciliation and preservation of national unity. Meeting public expectations for reform and progress will demand concerted action by all political, business and civic leaders. Political reforms will require continued strengthening of judicial independence and the rule of law, as well as governmental openness and accountability.
The extraordinary awakening and actions by Ukrainian citizens to defend their fundamental political rights, often referred to as the phenomenon of the Maidan, will require leaders to act quickly and responsibly to consolidate this expression of political will into constructive engagement of citizens in governmental and public affairs. Achieving democratic governance requires democratic elections, and the awareness developed in the electoral context must be transformed into active and continuing citizen participation. Ukraine's experience presents a critical opportunity to translate public interest into public policy and governmental action that reflects the long-term interests of the citizenry.
NDI and others in the international community stand ready to continue to assist Ukrainians' efforts to achieve such goals.
The Lead-Up to November 21
While attention has focused on the November 21 fraudulent presidential runoff and the events that followed, the fundamentally flawed election process had developed for months in advance of the November poll. The lead-up to the November 21 runoff included pre-election developments and a troubled October 31 first round, in which no candidate won the required majority of votes. Among the key factors that undermined the credibility of the election process prior to November 21, were the following:
Respected international and domestic election observer organizations uniformly determined that the November 21 runoff was not credible. NDI's election observation delegation to the November runoff, found that: "Fundamental flaws in Ukraine's presidential election process subverted its legitimacy. The cumulative effects of systematic intimidation, overt manipulation and blatant fraud during the campaign and particularly on election day were designed to achieve a specific outcome irrespective of the will of the people." The delegation stressed that: "Ukraine's political leaders should enter into an urgent dialogue to consider how to rectify the corrosive effects of the abuses in the election process. A full range of remedies should be considered, including partial or new elections under democratic conditions. In addition, the election authorities and the courts should immediately provide relief for electoral violations. The delegation urges that, as redress is sought, all sides respect the rights of others and refrain from the use of violence."
The following were among the critical flaws in the election process observed by NDI's November delegation on election day:
The November 21 through December 25 Period
The world's attention focused on the political crisis in Ukraine that resulted from the fraudulent November 21 presidential runoff. Dramatic events unfolded in the streets, in Ukraine's parliament, the Supreme Court and through political negotiations. International leaders served as mediators, and the international community offered moral support. It was the Ukrainian people, their leaders and institutions, driven largely by the hundreds of thousands of citizens who came into the streets of Kyiv and other cities, however, who defended the right of Ukrainians to express their will as to who should have the authority and legitimacy to serve as their president. Despite extraordinary tension, they avoided the potential for violence and resolved the crisis in favor of fundamental rights that lie at the core of sovereignty.
Despite a large number of electoral complaints being filed, the findings of international and domestic nonpartisan election observers and thousands of Ukrainian citizens demonstrating against the preliminary results, the CEC certified a fraudulent election result on November 24. This took place less than 72 hours after the polls closed, even though the CEC took 10 days to certify the results of the first round and claimed it may need even more time to certify results of the runoff. The certification also took place before electoral disputes could be resolved in accordance with Ukrainian law. The CEC's action, rather than putting an end to the election process and causing citizens to give up their protests, catalyzed further dramatic developments.
Ukraine's Supreme Court ordered that the election results issued by the CEC not be published and opened a case reviewing the complaint filed by Viktor Yushchenko. This reinforced the resolve of those who were seeking to defend political rights. Ukraine's parliament, in a symbolic vote, rejected the election results. It also entered a vote of no confidence in the government of Prime Minister Yanukovych, though this vote was not accepted by President Kuchma. International leaders convened a roundtable to mediate political dialogue aimed at agreeing upon steps to be taken to resolving the crisis. On December 3, the Supreme Court nullified the November 21 runoff and ordered a re-run of that election on December 26. Political negotiations continued, as citizens remained on the streets, until the parliament passed a package of electoral reforms and constitutional changes on December 8. Thus, 17 days following the November poll and 18 days before the re-run, the stage was set for the December 26 vote.
Electoral Reforms. Temporary electoral reforms included, among others, the following elements:
Implementation Challenges. The 18-day period provided between the enactment of these legal reforms and the December 26 re-run highlighted challenges to effectively implementing them. As preparations were under way for the re-run, the legal reforms were contested before the Constitutional Court, which on December 25 ruled against new restrictions on use of mobile boxes for "home voting," while allowing the other provisions to stand. This decision left little time for expanding the number of persons who might apply for mobile ballot box voting, and confusion about who should be allowed to use mobile balloting ensued in some areas.
The reconstitution of the PSCs with membership parity between the two candidates created a challenge for both camps to provide the required number of commissioners. Allowing persons to be appointed from outside the TEC's boundaries gave both sides the opportunity to move people from their regions of strongest support to other areas, which facilitated appointment of PSC members. The appointment process, however, affected training of commissioners and delayed the work of many PSCs, the impact of which precluded public display and inspection of voter lists and other matters. The decision to use the problematic voter lists developed for the October 31 first round of the election as the basis for developing the December 26 voter lists, combined with the limited ability to inspect and correct the lists before the vote, posed the possibility of many voters needing to seek court orders permitting them to vote on election day.
The Campaign. The truncated campaign was robustly contested by both candidates, though on a somewhat diminished scale compared to the November 21 poll. While there were a few isolated instances of violence, the campaign was peaceful.
The media environment improved considerably over the prior polls. This improvement can be traced in significant part to the role TV Channel 5 played in covering citizens protesting in the streets, which encouraged other journalists and broadcasters to break from self-censorship and open their political coverage. Media monitoring efforts reported that coverage of the two candidates was generally more balanced than in the months leading to the October 31 and November 21 rounds, including on nationwide television networks. The leave of absence that Viktor Yanukovych took from being Prime Minister contributed to more balanced coverage of the candidates, as his official duties passed to the acting Prime Minister. A second televised debate between the two candidates took place, and the legally allocated free broadcast time was provided to both candidates on the state-funded television channel.
There were credible reports during the campaign of government officials pressuring students and public sector employees concerning the upcoming vote, campaigning for the Prime Minister, and otherwise abusing the powers of government office for political purposes, although the reports were diminished compared to the periods before October 31 and November 21 elections.
The December 26 Poll
Election day was peaceful throughout the country, and the election itself was conducted in an orderly process. Voter turnout was high, as citizens went to the polls for the third time in less than two months to select the next president of Ukraine.
Overall, election administration bodies demonstrated their capacity to promote integrity in the electoral process. This was a major improvement over the October 31 and November 21 polls and is all the more remarkable given the short time they had to organize the election. The newly reconstituted CEC released information in a timely fashion and conducted its activities in a more transparent manner than its predecessors. Across most of Ukraine, the hundreds of thousands of members of the TECs and PSCs, who were appointed by both presidential candidates, worked cooperatively to address issues of the day and election night.
A number of problems were noted by NDI observers, but no indication of major or systematic fraud or irregularities that could affect the core elements of electoral integrity were detected. There was confusion concerning who had properly qualified for use of the mobile ballot box, given the Constitutional Count's ruling on election eve and instructions from the CEC and TECs on how to implement that decision. In some areas, particularly in eastern and southern regions of the country, there appeared to be localized attempts to use the mobile ballot procedure to introduce illegal voting, as was done in the November 21 poll. However, the balanced composition of the PSCs provided an effective check in most cases, and the number of ballots cast through mobile box voting was far below the inflated November figures.
In various places, problems were noted with the voter lists, which were those used for the October 31 poll and for which there was little time to make corrections before election day. The incidence of problems seemed to be lower than those noted by observers of the October 31 poll. Procedures for obtaining a court order allowing persons to vote whose names were omitted from the voter lists appeared to function properly, and the balanced composition of the PSCs provided a basis to curtail illegal voting where duplicates of names appeared on the PSC voter list.
There were also reports of isolated incidents of vote-buying, intimidation and breach of ballot secrecy. In a few places, observers from the Committee of Voters of Ukraine, who operated with journalist credentials due to failures in the law to accredit nonpartisan Ukrainian observers, were denied entry to the polls, as were international observers in limited instances.
No major problems were reported concerning the counting process or in the transmission of results from PSCs to the TECs. The CEC quickly published preliminary results throughout the early morning hours of December 27 and thereafter, which demonstrated transparency and provided a basis for increased public confidence in the electoral process.
DELEGATION AND ITS WORK
NDI is an independent, nongovernmental organization that has conducted more than 100 impartial pre-election, election-day and post-election observations around the world. NDI recognizes that elections cannot be separated from the broader political process of which they are a part. The Institute's methodology for assessing elections is based on the premise that all aspects of the election process must be considered to accurately understand the nature of an election. Considerable weight must be assigned to the pre-election periods, as well as to the resolution of complaints and disputes following elections.
The delegation held meetings in Kyiv with: representatives of the two presidential candidates; the Speaker of Parliament; election administration officials; business leaders; representatives of the broadcast news media; civic leaders, including leaders of the Committee of Voters of Ukraine (CVU), Dosyt (Enough) and Pora (It's Time); the heads of the International Election Observation Mission (IEOM) to Ukraine coordinated by the OSCE, the European Network of Election Monitoring Organizations (ENEMO) and the Canadian election observer delegation, and representatives of the observer delegations of the Association of Former Members of Congress of the United States and the International Republican Institute (IRI); as well as the U.S. and other ambassadors and other representatives of the international community who are concerned with supporting a democratic election process in Ukraine.
Delegates divided into teams and were deployed around the country for meetings with governmental, electoral, political and civic leaders in their respective localities. On election day, the teams observed the voting, counting and tabulation processes in polling stations and TECs. Delegates then reconvened in Kyiv to debrief and develop this statement. The delegation expresses its gratitude to all with whom it met.
The delegation cooperated closely with the OSCE, ENEMO, and CVU observers in Kyiv and in the regions. The presence of our and other international observer delegations was a consequence of the accomplishments of the Helsinki process and in the particular commitments contained in the OSCE's 1990 Copenhagen Document. The delegation would like to emphasize that the work of these experienced, impartial organizations, as well as the dedicated professionals with worldwide experience who led their efforts, provided support and reliable exchanges of information that assisted this delegation's work, as was the case for NDI's November delegation. NDI and the other observer delegations noted above came to Ukraine to support a democratic election processa process that reflects the will of the Ukrainian people. They did not seek to advocate a particular electoral outcome or to interfere in the election process. The Institute and such groups recognize that it is the people of a country who ultimately judge the character of their elections.
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