Constitutional chaos ’s politi cal paralysis will never be resolved unti l the consti tuti on is changed COMMENT

Peter Dickinson Business Ukraine

Ukraine’s politi cians depart for their annual summer break in early July with uncertainty, with diff erent offi ces seemingly able to spend their ti me cancelling the presidenti al electi ons looming on the horizon and no end in sight tothe out the work of others or overruling one another. consti tuti onal confusion which conti nues to paralyze the functi oning ofthe country’s government. The latest eff ort to resolve this chaos came to nothing in The parliamentary/presidenti al fault line early June, when feverish negoti ati ons to form a consti tuti onal majority in parlia- Ukraine’s inability to determine whether it should adopt a parliamentary or ment between Yulia Tymoshenko’s BYUT facti on and the Viktor Yanukovych-led presidenti al system of government is fi tti ng given the country’s status as the Party of Regions collapsed amid yet more backbiti ng and acrimony. As per usual, great borderland of the former Eastern Bloc. Both in terms of geography and both sides claimed that their collecti ve failure was enti rely the other party’s fault, geopoliti cs, this huge country lies in the no man’s land which separates the new while President Yushchenko weighed in by democracies and neo-autocracies which expressing how deeply concerned he was emerged from the wreckage of the old about the whole thing. The collapse of this Soviet Empire. Immediately to the West of most recent bid to unravel the country’s Ukraine the former socialist countries of consti tuti onal contradicti ons means that Central Europe have unanimously opted for in all probability we will now enter into the parliamentary democracies, with presidents presidenti al electi on campaign with the serving a purely ceremonial role. To the East current deeply fl awed consti tuti on sti ll in of Ukraine there lies nothing but presidenti al place. In other words the new president, systems across the whole of Eurasia. whoever they may be, will inherit a country which will be just as ungovernable as it is Is Ukraine ready for today. parliamentary democracy? Advocates of a Ukrainian parliamentary Land of confusion system argue that this form of government This consti tuti onal chaos is not a new has been instrumental in allowing the problem, nor is it excepti onal in a country country’s Central European neighbours to where laws routi nely contradict one reform their governments and economies another, rival interpretati ons of history do before setti ng out along the road to even- batt le on a daily basis and even the streets tual EU membership. Criti cs, meanwhile, themselves can oft en have two or three point out that Ukraine’s existi ng politi cal diff erent names in current usage. The prob- culture remains essenti ally Soviet in nature lems Ukraine faces with its consti tuti on are and as such is more naturally suited to the in many ways an extension of the identi ty strong leadership of a presidenti al system. crisis the country has experienced ever Disappointi ngly, they seem to think that since gaining independence in 1991, while Ukraine is not politi cally mature enough the somewhat muddled and unsati sfactory to become a successful parliamentary manner in which it has addressed these republic and will instead lose directi on. Sad problems has been very much in line with Ukraine’s progress in general. and bitt er memories of 1990s-style democracy conti nue to fuel such pessimism, Ukraine adopted its fi rst consti tuti on back in 1996 and the document has while the pugilisti c populism of the post-Orange era has provided even the most been subject to calls for revision ever since. Initi ally the terms of the consti tuti on ardent advocate of parliamentarianism with plenty of food for thought. Such appeared to favour the presidency, but crucially it failed to give the executi ve fatalisti c thinking has done much to bolster the positi on of authoritarian regimes enough power for Ukraine to be considered a truly presidenti al republic. The throughout the Soviet space, but despite the enduring appeal of Soviet-style consti tuti on was later amended in the other directi on, restricti ng the powers of promises about putti ng an end to disorder, there is litt le sign that Ukrainians the president and taking Ukraine towards parliamentary republic status. These are parti cularly tempted. However, amid all the confusion and consti tuti onal reforms were introduced during the Orange Revoluti on as part of a far-ranging contradicti ons of today’s nobody has yet managed to secure the legisla- compromise agreement with the existi ng authoriti es which candidate Yush- ti ve changes that would transform Ukraine into Europe’s newest parliamentary chenko had happily entered into at the ti me but would soon come to regret. republic. It remains to be seen what role the issue of consti tuti onal reform will The new post-revoluti onary consti tuti on, which is actually based on proposed play in the forthcoming electi on campaign, but it is highly unlikely the anything steps towards a parliamentary system fi rst put forward by President Kuchma in will now be resolved so close to the vote, making this one of the top prioriti es for early 2004, failed to adequately separate the diff erent branches of power, leading the incoming president once they take offi ce in January 2010. Unti l the country’s to much overlapping and room for general mischief. The end result has been consti tuti onal chaos is defi niti vely resolved one way or the other, it is diffi cult to to leave Ukraine’s state structures stranded in a quagmire of legal turmoil and see how any future government can expect to make much headway.

polotics.indd 4 03.07.2009 19:29:54 polotics.indd 5 03.07.2009 19:29:54 polotics.indd 6 03.07.2009 19:29:57 Ukraine and the re-set S C I T I L O P O E G Obama in Moscow and Biden in Kyiv as new geopoliti cal landscape begins to take shape

Taras Kuzio

President Barrack Obama’s July 6 visit to Moscow is giving Ukrainians the jitt ers. Some fear that his desire to re-set ti es with the Kremlin may lead to a lessening of support for Ukraine’s fl edgling democracy or Euro-Atlanti c integra- ti onist ambiti ons. Such concerns are nothing new. Seven years ago President George W. Bush visited Moscow and the then Ukrainian President and his entourage panicked at the thought that the US was about to throw in the towel and consign Ukraine to Russia’s sphere of interest. In both 2002 and 2009 there were calls in the US and Ukraine for Bush and Obama respec- ti vely to tack Ukraine on to their Russian visits. Obama will not be visiti ng Kyiv, but later in July he will be sending over his second-in-command Vice President Biden to visit Ukraine and Georgia in what is being widely interpreted as an att empt to assure both governments that their Euro-Atlanti c ambiti ons will not be thrown under the bus as part of att empts to improve relati ons with Moscow. In reality, the biggest threat to conti nued Western support for Ukraine is posed not by the saber- ratt ling Kremlin but by Ukraine’s own squabbling However, while the circumstances do not Ukraine’s territorial integrity, sovereignty, Euro- elites whose endless bickering and in-fi ghti ng has appear to favour Ukraine, there is litt le chance Atlanti c integrati on and democracy than has the done much to leave both US and EU leaders cold that this strategically crucial country will become EU. “In the past fi ve years those common values, and encourage the kind of hands-off approach a sacrifi cial lamb in the Obama regime’s eff orts values of democracy, values of free and fair elec- which characterized the early post-Soviet years. to mend fences with the Kremlin. Over the last ti ons, values of an independent press, indepen- two decades the US has enjoyed improved rela- dent media – those values have drawn us closer Geopoliti cal conditi ons do not ti ons with Russia at ti mes when it has either not together,” Ambassador Taylor added. favour Ukraine’s Westward march expressed much interest in Ukraine (1991-1993) Much has changed in Ukraine, Russia, the US or has had poor relati ons with Kyiv (2000-2004). Forcing Ukraine to get serious and internati onal politi cs since Bush’s 2002 visit While this may spark concern in Kyiv, in reality Obama’s overtures to the Kremlin may actually to Russia. Ukraine has gone through the Orange the US has never, and never will, dump Ukraine produce some positi ve results in Ukraine. Tradi- Revoluti on and fi ve years of President Yushchen- in the sense that Kuchma feared seven years ti onally, any sign of improving relati ons between ko’s questi onable leadership. Russia has played ago or some Ukrainians fear today. Even in the Moscow and Washington tends to provoke a musical chairs between the president and prime worst period of US-Ukraine relati ons following fl urry of geopoliti cal acti vity in Kyiv, although minister (Vladimir Puti n and Dmitri Medvedev) Kuchmagate and Kolchugagate (2000-2002), this is not always well-coordinated and has and has become more nati onalisti c, imperialisti c Ukraine, NATO and the US conti nued to deeply oft en been contradictory or plain confusing. Two (as seen in Georgia last year) and bellicose. The cooperate on security matt ers. Ukraine began months aft er Bush’s 2002 Moscow visit, Ukraine US, meanwhile, has exchanged the neo-con implementi ng yearly NATO-Ukraine Acti on Plans fi rst declared its intenti on to join NATO. Ukraine’s democracy promoter Bush for the liberal pragma- in 2003; the fi rst two were actually fulfi lled by the decision to seek NATO membership was not ti st Obama. Internati onally the world is in deep Yanukovych government, which now campaigns rescinded when in November of that year Viktor recession while the EU and US are increasingly rabidly against all NATO cooperati on. Yanukovych became prime minister, a positi on experiencing what could be termed as Ukraine- Departi ng US Ambassador to Ukraine William he held for the next two years. The Yanukovych fati gue. EU expansion has reached an impasse Taylor, who ended his tour in May, said that government then took Ukraine into Iraq in 2003 and popular oppositi on to mass immigrati on and US-Ukraine relati ons no longer depend on where Ukrainian forces became the third largest the loss of nati onal sovereignty is threatening to personaliti es. “They depend on common inter- conti ngent in the ‘Coaliti on of the Willing’ aft er undermine the Brussels push for even greater ests and common values,” he stressed. The US American and Briti sh forces. In 2004, Ukraine controls over member states. has always been more consistent in supporti ng found itself in the paradoxical situati on of having 

July 2009 7

polotics.indd 7 03.07.2009 19:30:03  a Yanukovych government which was offi cially US foreign policy will always be both ideological about Ukraine’s impending collapse was fi rst used seeking NATO membership while at the same and pragmati c. Looking to Obama’s Moscow visit, in 1993-1994 and has more to do with its own ti me the Yanukovych electi on campaign for the Ambassador Taylor said, “Ukrainians should not wishful thinking than any realisti c appraisal of the presidency undertook a Soviet-style anti -American be afraid that there will be any Ukrainian interests situati on in Ukraine today. Nevertheless, the fact and anti -NATO campaign. In a further apparent traded in any of these discussions. We support that such a relati vely signifi cant fi gure would go contradicti on, the pro-Western President Viktor Ukraine. We will conti nue to support Ukraine. The on record off ering up such theories is an indica- Yushchenko then withdrew Ukrainian troops Obama administrati on has repeatedly said that it ti on of how the Kremlin assesses their positi on in from Iraq almost as soon as he took offi ce. Since supports Ukraine.” the conti nuing geopoliti cal batt le being fought for 2005 the Party of Regions has placed itself in the Secondly, it remains highly likely that the control of their former Soviet empire. forefront of the anti -NATO campaign in Ukraine. att empt to re-set relati ons with the Kremlin will Nevertheless, it is important to keep things Today this is embodied in the American Insti tute fail, as it always does (as seen in the change in in perspecti ve. Russia is not about to invade of Ukraine which is led by right-wing isolati onist US-Russian relati ons in Bush’s second term). Ukraine, which is more militarily far formidable American Republicans with a Russophile and pro- US-Russian relati ons are always rosy when a than Georgia and has no ‘frozen confl icts’ that Serb bent. new leader comes to power but tend to quickly could give Russia a strategic advantage, as they Ukrainian fears about the US reducing its deteriorate. Russia is too imperialist, bellicose did in South Osseti a last year. The Crimea poses support for Ukraine is certainly not without and autocrati c to be a reliable partner for either a conti nued threat where local tensions between foundati on, but this actually has less to do with the US or the EU. There are far too many areas ethnic Russians and Crimean Tatar returnees a change in US president and more to do with of rivalry, diff erent worldviews and outright could potenti ally escalate, and Russia is said to be President Yushchenko and the growing sense confl ict between Russia and the US and EU. Vice distributi ng passports enthusiasti cally in a bid to of Ukraine fati gue throughout the West. Orest President Joseph Biden and Secretary of State lay the groundwork for a South Osseti an scenario Deychakiwsky, who has worked on Ukrainian Hilary Clinton have rejected Russia’s call for the in Ukraine’s paradise peninsula. Russia’s Black issues in Washington for a quarter of a century, US to recognize the former Soviet republics as Sea Fleet could also refuse to withdraw from its told Business Ukraine: “Support for Ukraine its exclusive sphere of interest. “Ukraine should Ukrainian base in Sevastopol in 2017 (or, more has diminished since the Orange Revoluti on, not worry that we are going to trade its sover- likely, the fl eet’s aging and rusted warships might due mostly to the politi cal turmoil stemming in eignty or its interests in an att empt to be bett er not actually be able to get out to sea). large part from the incessant squabbling among friends with the Russians,” Ambassador Taylor Sevastopol is certainly an emoti onally charged Ukraine’s politi cal leadership. However, I don’t assured. issue for Russians as it twice entered into the foresee that the US and the West in general mythology of Holy Russia as the scene of heroic will lose interest in the upcoming electi ons in Muscle-fl exing in the Near Abroad fi ghti ng during the Crimean War in the 1850s and Ukraine.” Outgoing US Ambassador Taylor is An area of concern nevertheless does exist in almost one hundred years later during World War certainly disappointed by the many missed the unwillingness of Washington and Brussels II. At the same ti me, Russians should be politely opportuniti es of the last fi ve years, as are to face off Russia’s increasingly nati onalisti c and told that territories changing hands is nothing most Ukrainians. Five years of politi cal crises, chauvinisti c stance towards Ukraine, as evidenced new in modern history. Danzig (Gdansk) and instability, calls for further pre-term electi ons, by Russian PM Vladimir Puti n’s frequent depic- Lwow (Lviv) were also once highly-charged issues consti tuti onal instability, frequent changes in ti on of Ukraine as an arti fi cial and fragile state for Germans and Poles alike. The internati onal government and inter-elite squabbling have which is only held together by Russian goodwill. community must be united in telling Russia that paralyzed Ukrainian foreign policy and stymied These ti rades have been coupled by Russia’s it must get over its hurt feelings with regard to the country’s integrati on into the West. Ukrai- internati onal campaign to portray Ukraine as a Crimea and handle the loss of Sevastopol like a nian leaders need to act more maturely and failed state. Former Ukrainian Ambassador to the mature, 21st century nati on state. stop blaming outsiders for their own mistakes. US Yuriy Shcherbak recently condemned Russia’s Ulti mately, the key to dealing with Russia’s Ukraine has always demanded that NATO and depicti on of Ukraine as a failed state in an arti cle growing threat lies in greater domesti c unity in the EU give it a signal of future membership published in the Ukrainian newspaper Den. He Ukraine and has litt le to do with any re-set eff orts which NATO at least did do in 2006. Unfortu- wrote, “The topic of Ukraine as a failed state has by the US. When asked in a recent poll what posed nately, President Yushchenko failed to grasp the recently become especially fashionable among a the greatest threat to Ukraine, 56% of Ukrainians signal and the chance was lost to enter NATO’s certain circle of Russian politi cal scienti sts including said the ‘Ukrainian state’, twice as many as those Membership Acti on Plan. Once Ukraine gets its Sergey Karaganov, the head of the Presidium of who answered either Russia or NATO. Ukraine has house in order President Obama will no doubt Russia’s Council on Foreign and Defense Policy. no real need to fear President Obama’s visit to be supporti ve of Ukraine’s Euro-Atlanti c integra- He has expressed a number of views that must Moscow. What it does have to fear are elites who ti on. The onus is fi rst and foremost on Kyiv and draw the att enti on of those who care about the do not prioriti ze nati onal over personal interests. President Yushchenko needs to set an example. future of the Ukrainian state.” Shcherbak quotes While Moscow bullies and American allies steal As Ukrainians like to say, the fi sh rots from the Karaganov as referring to Ukraine as, “A case of the headlines, the biggest danger to Ukraine’s head downwards. state bankruptcy. Are there any possible limits to sovereignty remains its own leadership. desovereignizati on? Is the introducti on of external Obama’s Kremlin overtures governance possible?” Karaghanov is quoted as Dr. Taras Kuzio is a Senior Fellow ion the Chair likely to be fruitless posing the ominous questi on: “Can we, Russia and of Ukrainian Studies, University of Toronto and Ukrainians should also not fear the US re-setti ng Europe, permit the collapse of such a signifi cant Research Professor, Carleton University, Ott awa. the butt on with Russia for two reasons. Firstly, country?” This old canard employed by Russia He edits the bi-monthly Ukraine Analyst.

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polotics.indd 8 03.07.2009 19:30:03 Timeline: US-Ukrainian relations S C I T I L O P O E G

America has consistently been one of independent Ukraine’s staunchest 2002 NATO goes French to snub Kuchma supporters, championing Ukrainian integrati on into everything from the World President Kuchma’s fortunes fell further in 2002 when he was accused of Trade Organisati on to NATO. However, relati ons over the past eighteen years selling Kolchuga anti -aircraft satellite equipment illegally to Saddam Hussein’s have not always been rosy, with plenty of ups and downs along the way. Iraqi dictatorship. Undeterred, He decided to travel to Prague to take part in an annual NATO summit despite being told he was not welcome. Panic set in when August 1991 Bush Snr. criti cal of ‘suicidal nati onalism’ it became clear that thanks to alphabeti cal ordering, Ukraine’s Kuchma would Just days before Ukraine declared be seated next to both the UK’s Tony Blair and the US’s George W. Bush. Luckily independence in 1991 American it was decided to reorganize the seati ng plan in French, thus sparing everyone’s President George H. W. Bush failed blushes. The event was widely writt en about in the internati onal press, high- to capture the historic mood of the lighti ng Kuchma’s pariah status and leaving him with litt le choice but to seek Ukrainian SSR while on a trip to Kyiv. accommodati on with Puti n’s Russia, paving the way for his policy of support for In a speech which was quickly dubbed an overly Kremlin-backed candidate in the 2004 presidenti al electi ons. as Bush’s ‘Chicken Kyiv’ moment and which soon became notorious for its perceived lack of support for the indepen- 2004 Anti -Americanism and the Orange Revoluti on dence movements within the , the US president famously stated: The 2004 presidenti al electi on “Freedom is not the same as independence. Americans will not support those who campaign featured an increasingly seek independence in order to replace a far-off tyranny with a local depoti sm. They hysterical strain of anti -American propa- will not aid those who promote a suicidal nati onalism based upon ethnic hatred.” ganda as government forces att empted He has since tried to justi fy this cauti ous approach, but the tribunal of history gave to portray the pro-democracy opposi- Bush Senior low marks for failing to grasp the inevitability of the coming declarati on ti on as stooges of US imperialism. This of independence, thus getti ng US-Ukrainian relati ons off to a stutt ering start. strategy was championed by Russian spin doctors sent down by the Kremlin 1994 American aid in return for nuclear disarmament to manage Viktor Yanukovych’s campaign, but it backfi red when the majority In the early 1990s the issue of how to secure the USSR’s enormous stockpiles of Ukrainians rejected such accusati ons as laughable and instead focused their of nuclear weapons caused headaches to statesmen the world over. Ukraine att enti on on government vote-rigging acti viti es. During the electi on campaign had inherited the second largest stockpile of weaponry but rather than att empt Ukraine’s fl edgling civil society, which American aid had done so much to help to pay for the upkeep of this potenti ally world-ending armoury offi cials in Kyiv foster throughout the preceding decade, came of age and played a key role in agreed to hand it over to Russia in return for an agreement whereby America, mobilizing the populati on to parti cipate fi rst as electi on observers and then in Britain and Russia guaranteed Ukraine’s territorial integrity. There are now ques- the mass street protests which became known as the Orange Revoluti on. Mean- ti on marks over the value of this agreement, with many foreign aff airs analysts while, Viktor Yanukovych’s wife provided one of the sati rical highlights of the arguing that it does not, in fact, provide any genuine guarantees that Britain revoluti on when she made a fi ery speech in which she alleged that the traditi on- and America would act in the event of Russian aggression. Of far more value to ally Slavonic felt boots being worn by protesters in Kyiv’s tent city were actually Ukraine was the US aid that came as part of the disarmament deal, with Kyiv American-made! She has rarely been seen in public since. consistently ranking in third place among America’s internati onal aid recipients throughout the 1990s, just behind Israel and Egypt. 2008 NATO push derailed despite Bush backing The year began well for Ukraine’s Euro-Atlanti c camp with an offi cial 2000 Journalist murder sparks new low applicati on to join NATO being sent in by the country’s newly reformatt ed Western pati ence with the regime of Leonid Kuchma was already wearing Orange coaliti on. However, despite vocal support from George W. Bush, thin when the then-President was directly implicated in the abducti on and European NATO members got cold feet following months of Kremlin rhetoric murder of outspoken oppositi on journalist Georgiy Gongadze in September and restricted themselves to issuing a vague memorandum on future NATO 2000. Gongadze had fi rst come to Kuchma’s att enti on aft er he staged a membership. This setback was compounded in August 2008 when Russian protest against the Ukrainian President’s att acks on press freedoms during tanks rolled into Georgia on the pretext of Kuchma’s state visit to New York, severely embarrassing the former Soviet protecti ng Russian passport holders rocket factory boss. Following Gongadze’s apparent abducti on and the in breakaway South Osseti a. The discovery of a headless corpse said to belong to the missing journalist, secret Russian invasion, which came in recordings emerged that allegedly showed Kuchma demanding that ministers direct defi ance of American inter- do something about the troublesome journalist. Within weeks mass protest ests in the region, was seen rallies erupted on the streets of Kyiv, providing pro-democracy campaigners as a sign of the changing with what was to prove a dress rehearsal for the 2004 Orange Revoluti on. balance of power in the The scandal proved hugely damaging to Kuchma’s internati onal standing and former Soviet sphere left the Ukrainian head of state more isolated than ever. In response to the and has led to renewed allegati ons, those close to the Kuchma regime made a number of counter- fears of Russian military accusati ons suggesti ng that the scandal was in fact a CIA plot to undermine interventi on in Ukraine Kuchma’s presidency. and beyond.

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polotics.indd 9 03.07.2009 19:30:10