Should Ukraine Conduct Local Elections along the Donbas Contact Line?

Current military-civil administration in eastern Ukrainian frontline districts need to be kept in place and partially reformed. Should the Donets Basin return to Ukrainian control, they could provide institutional templates for a temporary special regime within the currently occupied territories.

On October 25th this year, Ukraine will hold its first nation-wide local and regional elections following the completion of the first stage of decentralisation reforms that began in April 2014. This year’s vote will thus have deeper political impact than similar elections in the past. This is especially true with regard to local parliamentarians and village elders elected in October as part of the newly amalgamated territorial communities (ATCs) who will be responsible for a whole new set of tasks. The upcoming local and regional elections constitute a significant step for Ukraine’s ongoing democratisation, reform and Europeanisation.

Elections are inconceivable, however, in the Russian occupied territories of the Donets Basin (Donbas). Contrary to plans in Moscow and also to the ideas of some unsuspecting Western politicians, Ukraine should not conduct elections in an area over which it currently does not have full sovereignty. After five years of intense discussion, one can still find interpretations of the 2014-2015 Minsk Agreements suggesting that Kyiv hold elections on territories not yet under its control. In the best case, such demands are naive. In the worst case, they betray their proponents’ limited commitment to such principles as national sovereignty, the rule of law and liberal democracy. The control of a territory by one (and only one!) national government comes before elections and decentralisation. Securing local democracy and self-government for Ukraine’s occupied territories can only become a matter of practical implementation after the question regarding sovereign state control has been comprehensively resolved.

The instrument of provisional military-civilian rule

Yet what about local elections in the government-controlled areas of the Luhansk and Donetsk oblasts? What especially about those rayons, cities, and territorial communities that are in the immediate vicinity of the so-called “contact line”? Should elections be held along the artificial border created by the conflict?

Since 2015, the Donetsk and Luhansk oblasts, as well as most frontline settlements, have not been self-governed. Instead, they have been ruled by temporary so-called military-civil administration (MCAs). The key staff of the MCAs are directly appointed by Kyiv. They are subordinate to the Commander of Ukraine’s Joint Forces Operation (JFO) in the Donbas. Before officially enshrining MCAs in Ukrainian law, Petro Poroshenko argued in January 2015 that: “This will allow today to resolve the issue of the absence of power in the liberated territories from where in fact all the elected deputies of local councils who held separatist positions, committed crimes, and are hiding from justice have fled.”

Initially, the February 2015 Law “On Military-Civilian Administrations” was supposed to expire after one year. Yet, it has since been repeatedly prolonged and amended to meet changing circumstances. The number of municipal and sub-regional MCAs on the local and rayon levels has gradually increased. The MCAs hold all ordinary legislative and executive responsibilities, alongside some emergency powers, in the respective districts and settlements. Consequently, they have largely abolished local self-government and political life in these territories. The MCAs represent specific municipal or regional ‘hybrid regimes’, which merge the characteristics of ordinary centralised rule with elements of martial law. However, they do not yet constitute a full state of emergency.

The peculiar instrument of military-civil administration was and arguably still is a necessary intermediate solution to the immense problems in the territories. Classical local self-government is unsuitable in active or potential combat zones of low-intensity conflicts. Given the grave conditions of conflict-related political instability and economic deprivation in the area, the MCAs are an appropriate instrument to secure elementary order and to prevent Russian subversion across the contact line. Nevertheless, there is currently an intense debate within Ukraine regarding local elections in government-controlled areas of the Luhansk and Donetsk oblasts that are situated close to the so-called contact line separating Ukrainian and Russian-led forces. This was caused by the decision of the Central Electoral Commission to not conduct elections in 18 of these communities and to leave military-civilian administration in place there.

The MCAs clearly contradict Ukraine’s far-reaching decentralisation reforms since 2014. As Konstantin Reutski and Ioulia Shukan noted in one of the first papers on this topic: “In the absence of an elected representative body, collective decision-making and separation of legislative and executive functions, checks and balances are weak. The MCA heads exercise personal control over their administrations (Article 6 [of the law ‘On MCAs’]): they hire and fire MCA employees, oversee the entire operation and are personally responsible for all areas of the MCA’s performance. In addition to this, they are the sole managers of the MCA’s budget. The law on military-civil administrations does not require any community boards to be established in association with the MCAs, and this lack of external supervision further increases the personal power vested in the MCA head and removes all barriers to autocratic governance.”

The necessity of continued military-civilian rule

Under peaceful conditions, the October 2020 local and regional elections would have been a key opportunity to replace the MCAs with properly elected councils, elders and mayors. This is all the more so given their enlarged responsibilities within the newly established ATCs. However, holding elections in the frontline districts seems, for three reasons, premature. First, meaningful elections are technically difficult to conduct in settlements close to the so-called contact line. Many of the inhabitants of these villages and towns have temporarily left their homes and moved to other parts of Ukraine out of fear or/and desperation. It would be difficult to involve such internally displaced persons within these elections concerning their native communities. Moreover, the physical, social and human infrastructure of the frontline regions has been deeply damaged by the war. These and other special circumstances make normal electoral campaigns and legitimate voting processes in the frontline settlements a considerable challenge. 

Second, the currently MCA-ruled regions and settlements are key targets for Russian infiltration and manipulation operations. Television and radio channels belonging to Russia and its two puppet states, the so-called Donetsk and Luhansk “people’s republics,” dominate mass media along the contact line. If Moscow has managed to interfere in voting process in France, Great Britain and the United States, then it is surely able and willing to try the same in Russian-speaking villages and towns located only a few miles away from its proxy troops and sattelite regimes in Donbas.

Thirdly and perhaps most importantly, questions still remain as to what newly elected bodies would be actually doing in many, if not most, of these towns and villages. Local self-government involves above all the collection and distribution of taxes and revenues within the community. Classical municipal administrations are also responsible for attracting domestic and foreign investment to their respective towns and territories. Yet, since spring 2014, these tasks have, as a result of the war, often become irrelevant to different degrees or even absent in settlements along the contact line. Normal economic, social, cultural and political life will likely remain greatly reduced in the frontline districts, for the time being.

Instead, the prevalent concerns along the contact line, from Stanytsa Luhanska in the north to Mariupol in the south, continue to involve issues of security and military affairs. Many of the frontline districts have checkpoints, whose functioning determines local economic life. Control over checkpoints is exercised by Kyiv, on the government-controlled side, and Russian proxy authorities in Luhansk and Donetsk on the occupied side. Local executives in frontline settlements are focused on how to best use scarce government subsidies to solve various competing infrastructure problems. These include the supply of electricity, water, heat and medicine, as well as the organisation of care for children, pensioners and the sick. There are also persisting issues with repairs to damaged residential houses and public buildings. In fact, some of these tasks have now been partially taken over by foreign organisations such as the International Red Cross, Norwegian Refugee Council, and “Doctors without Borders.” Under these circumstances, it is unclear what local self-government would actually mean along the frontline.

Instead of conducting risky and inconclusive local elections in the JFO area, Ukraine should maintain the MCAs as long as and where they are necessary. Kyiv should also introduce new legislation that would improve the functioning of these bodies. It may perhaps be even necessary to amend the Ukrainian constitution so as to legally embed these special intermediary local regimes. Currently, the MCAs are neither fully constitutional nor set up in a way so as to function over a longer period of time.

How to bring the MCAs closer to the people

Instead of conducting elections under uncertain circumstances, the current special regime has to be improved so as to set up alternative feedback mechanisms between the MCAs and local communities. MCA heads are often already in close contact with state-run institutions, such as hospitals and schools. Simultaneously, many also regularly interact with local NGOs, businesses, parties and media outlets. These relationships should be formalised through the creation of permanent advisory councils that are attached to the MCAs. The MCAs’ heads could be, by amending the law, forced to consider the opinion of these councils, which could be filled with NGO, business, party and media representatives. The authorities could be legally obliged to seek the advice of these councils in all decisions concerning municipal matters such as housing, transportation, education, public health, etc. (and less so with regard to security and military issues).

The Ukrainian government, civil society and their foreign partners should do more to support local conditions in Donbas, which have been weakened by the post-Euromaidan war and crisis more than any other region of Ukraine (except for Crimea). The improvement of administrative structures in the conflict-affected areas has a security-political dimension that goes beyond the usual demands of good governance. Particular attention needs to be paid to the development of new regional political and administrative elites. These groups could take over various leadership roles at municipal, rayon and regional levels in the Luhansk and Donetsk oblasts, following their return to Ukrainian control.

Arguably, it may make sense to include local communities, in one way or another, in the process of choosing appropriate candidates for the staffing of the MCAs. It could be also useful to set up an official complaint procedure through which local civic organisations, business groups, media outlets and political parties could report any misconduct by MCA representatives to the JFO headquarters. These complaints may concern cases of bribe-taking, nepotism or arbitrariness by MCA heads and staff members. While such changes would still not represent properly democratic and decentralised rule, it may be the only way to establish a sustainable regime in the region as long as the war continues.

The MCAs as templates for transitional rule in the occupied territories

Last but not least, these hybrid regimes could provide a model for responding to other emergency situations in the future. Above all, the MCAs could provide a template for how to govern the currently occupied territories of Donbas during a potential transition period between their liberation from Russian occupation, and eventually full participation in Ukraine’s general decentralised rule of local communities. The MCAs as a provisional model will be especially useful should the occupied territories not be temporarily controlled by an international UN peacekeeping operation, following a possible Russian withdrawal.

In such a scenario, Kyiv will need to first create an emergency regime in the territories of the former so-called “People’s Republics” in order to properly and peacefully demilitarize them, and to re-ukrainianize these areas’ economies, polities and societies, with the help of MCAs. The amalgamation of small municipal communities and local elections to newly defined organs of self-government will only make sense after the territories’ full re-integration into Ukraine. At that point, the currently occupied territories will become full parts of the decentralised Ukrainian state.

Should Ukraine conduct local elections along the Donbas contact line?