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Thoughts from Kyiv – It’s Not Over Yet!

[infobox title=’Thoughts from Kyiv’]Thoughts from Kyiv is brought to you by Mychailo Wynnyckyj, Associate Professor of the Department of Sociology and Kyiv-Mohyla Business School, Director of the Doctoral School, National University of “Kyiv-Mohyla Academy”. Below are his thoughts and writings on the situation in Ukraine. [/infobox]

Today Ukraine mourns and celebrates simultaneously. In the rain, the ground on Maidan was particularly black and sticky – a stark reminder of the fires that burned throughout the city center for days just recently. Blood stains have been covered with flowers, and memorials set up at each spot where a person was killed during the fighting on Feb 19-20. The coffins of heroes who lost their lives to sniper fire and riot police grenades were brought to the stage in pairs all day today – each was sent off in a moving ceremony in the presence of tens of thousands of demonstrators.

The mood was somber, but at the same time joyful – yesterday and today, the revolution scored massive political victories: Yanukovych was stripped of his powers as President, and new Presidential elections have now been scheduled for May 25; Yulia Tymoshenko – the symbol of the political repressions of the regime – was released from jail; Interior Minister Valeriy Zakharchenko was removed from office together with Viktor Pshonka, the Prosecutor General; the amendments to Ukraine’s Constitution that had been cancelled by the Constitutional Court in 2010 were re-enacted. Even though the former opposition leaders tried very hard to implement all of these things legally, we live in revolutionary times, and these times call for some legislative innovativeness. Each one of the victories needs some commentary.

First of all: the Constitutional changes. Last night, Parliament voted to reenact the Constitutional amendments adopted under questionable procedural circumstances in the final days of the 2004 Orange Revolution. Accordingly, Ukraine became a parliamentary-presidential republic with significant powers transferred from the Presidency to Parliament. However, the bill that Parliament passed last night by a Constitutional majority has not yet been signed by Yanukovych, and indeed today, when asked about this bill during his televised interview from Kharkiv, he stated outright that he would not be signing it. Nevertheless, Parliament has decided to act as if the 2004 Constitution has been legally reinstated.

This morning, Parliament opened its session with an announcement by deputy speaker Koshulynsky (Svoboda) that Speaker Rybak (Party of Regions) and First Deputy Speaker Kaletnik (Communist) had both resigned. Nestor Shufrych – a close confidant of Viktor Medvedchuk, and a high ranking member of the government team – spoke from the Parliamentary rostrum, saying that because Ukraine has reenacted the 2004 Constitutional amendments last night, if the President resigns his functions are to be carried out by the Speaker of Parliament, and therefore the key issue before Parliament today is the election of a new Speaker. Within a few minutes, Koshulynsky announced that two candidates for the post of Speaker had been nominated: Turchynov (Batkivshchyna) and Poroshenko (Independent). Poroshenko immediately took the floor to state that he was taking his name off the ballot, and Tymoshenko confidant Turchynov was elected Speaker.

Given that Rybak resigned, and Turchynov was elected by a wide margin, no possible questions can be raised as to the legitimacy of Turchynov as Speaker. However, there is a question as to which version of the Constitution regulates Turchynov’s function as Speaker of Parliament. Specifically, according to the 1996/2010 Constitution, if the President is incapacitated or resigns, his powers are temporarily transferred to the Prime Minister. On the other hand, according to the 2004 version of the Constitution, the effective Vice President of Ukraine (i.e. the Acting President in case of incapacity or resignation) is the Speaker of Parliament. Ukraine is currently in a very unclear legal situation: which version of the constitution is valid? Technically, Parliament voted to reinstated the 2004 version last night. But the President did not sign that bill, so it’s not yet law. According to strict legal formality this means the 1996/2010 version of the Constitution is still in force, but Ukraine’s Acting Prime Minister Arbuzov was nowhere to be found today. When queried by a reporter on this issue, Yatseniuk was unequivocal: in his opinion, because Parliament has reinstated the 2004 Constitution by a Constitutional majority of over 300 votes, regardless of whether the bill has been signed or not, in case of incapacity or resignation, Speaker Turchynov would be Acting President.

After Turchynov’s election, Parliament proceeded cautiously: first MP’s voted to confirm Arsen Avakov (Batkivshchyna MP and former mayor of Kharkiv) as Acting Interior Minister. Then Pshonka was removed from the post of Prosecutor General, and Tymoshenko was freed from jail. All three of these votes were unquestionably legitimate and legal. Then Turchynov called a recess – apparently to arrange for Tymoshenko’s release, and to try to locate Yanukovych to notify him of the new political reality in the country. During this recess, Viacheslav Kirilenko (MP Batkivshchyna) was interviewed by the Parliamentary television station “Rada”. His claim that Yanukovych had signed his own resignation spread like wild fire, only to be dashed when the President’s television interview was broadcast at approximately 4pm.

With Yanukovych’s location now established (although it is unclear whether the President had been contacted at this point) Turchynov tabled a resolution, the legitimacy of which will be hotly debated in coming months and years. Indeed Yuriy Miroshnichenko – Yanukovych’s representative in Parliament – stated outright today that the document voted on today was a “political” resolution rather than a strictly legal one. The issue revolves around Article 111 of the Constitution which defines an extremely cumbersome impeachment procedure: first, a special Parliamentary Investigative Commission must be created to investigate any crimes that the President is suspected of committing; then that commission submits its findings to both the Supreme Court and the Constitutional Courts, which both must rule, and only then Parliament can vote on impeachment. Ukraine’s “revolutionaries” – led by Turchynov and Yatseniuk – decided to take a short cut today. They tabled a simple resolution according to which the President is relieved of his duties, but not removed from office. In a testament to the mood in Parliament today, this resolution was supported by 328 MP’s. Accordingly, Yanukovych formally remains the President of Ukraine until a new President is elected on May 25, but with no powers.

Was this decision constitutional? Only the Constitutional Court can rule on this question, and such a ruling can only come if requested by at least 50 MPs. Under current circumstances, it is highly unlikely that 50 MPs will sign a request to the Court to rule within the next 3 months, and thereafter the point will be moot.

As it stands, Parliament is proceeding with the establishment of some semblance of order in the country. Formally, the deal signed by Yanukovych on 20.02.2014 (negotiated with the aid of EU mediators) requires the President to sign the Constitutional changes adopted by Parliament on Friday, by Sunday. When these amendments come into force, it will become fully legal for Parliament to form a majority coalition and then to begin voting on specific cabinet posts. Given the current mood, I have no doubt that regardless of whether the requisite bill is actually signed or not, when the deadline passes tomorrow, the new majority will vote on a new Prime Minister and cabinet. This is likely to happen tomorrow.

Of course as of today, another new reality (in addition to the effective ouster of Yanukovych) has come about in Ukrainian politics: Tymoshenko is free. When Tymoshenko was released tonight, she was asked whether she would be running for the Presidency and she answered that she would definitely be running. Personally I believe this would be a disastrous decision, but it is clear that her speech at Maidan tonight was largely orchestrated as a pre-election event. Rather than express my own opinion of Tymoshenko’s speech, I quote the following Facebook post:

“How sad, how truly sad to watch Tymoshenko trying so hard to rouse the crowd on Maidan whilst not knowing that the world she knew has changed beyond all recognition. Sadly she is now an out of date politician in a world she does not understand. If she runs for the Presidency I think she will unlikely get past the first round, better that she should just retire gracefully and write her memoires as there is no place in Ukrainian politics for her today.” (Martin Nunn – Facebook 22.02.2014)

Tymoshenko repeated several times that she is deeply saddened that she was unable to take part in the revolution, but that she now “guarantees” that she will “never let this happen to the people again.” The paradigm of this statement is clearly pre-revolutionary: Ukrainians today no longer believe that someone in government should be their “protector”. On the contrary, they have shown that they will not tolerate being “ruled” – they want representative rule-based government, and they are willing and able (as Klitschko painfully found out yesterday) to ensure that those in office govern in a way that is accountable to the people. Tymoshenko seems to believe that Ukrainians want/need to be “ruled”. I fear that if she actually wins the upcoming Presidential election, we may have another Maidan before her term is over.

If one is to judge by my Facebook stream (highly unrepresentative), Tymoshenko does not enjoy much popularity anymore, but realistically her victory in the upcoming Presidential election may be a very real possibility. Internet social media users tend to be from the educated middle class. Tymoshenko’s electorate is very similar to that of Yanukovych – except that hers hails from the western and central regions of the country, rather than the east. Tymoshenko voters tend to be aged 50+, poorly educated, and primarily from the working class. Although this is the most active segment of Ukraine’s electorate, after the Maidan it may no longer be decisive.

But the question of who will be Ukraine’s next President is a matter for future debates. Although tonight the Maidan celebrated its victories (and simultaneously mourned its dead), the revolution is not fully resolved just yet. Yanukovych is still alive and well, and on Ukrainian territory. He remains an important persona in Ukrainian politics. As I found out from many friends on Maidan today, last night I was not the only one tracking what was assumed to be the President’s plane on flightradar24.com until 4:30 am Kyiv time. The aircraft we were all watching on radar landed in the Arab Emirates, but as it turned out, Yanukovych was not on board. Today, Yanukovych was interviewed on television from Kharkiv. He called today’s events in Kyiv a “coup d’etat”, and reiterated that he remains the legally elected President of Ukraine.

It must have been exceptionally painful for Yanukovych to watch his precious Mezhyhiriya residence opened to journalists and ordinary citizens today. There, they found evidence of hasty packing, and multiple works of art and collectibles (e.g. a collection of vintage cars) that were left behind. They also recovered documents that demonstrate the scope of Yanukovych’s massive corruption machine, and others that show his regime was systematically targeting opposition journalists and civil society activists. In Yanukovych’s private quarters, they found his famous golden toilet, and also a Viagra equivalent at his bedside. Strolling through the gardens, the private zoo, and the golf course, journalists gasped at the opulence of the palatial mansion and grounds. Amazingly, given the extreme security measures in place at this site previously, the guards at the entrance to Mezhyhiriya simply allowed journalists to enter today – without even suggesting the need for special permission. Clearly, they were just as fed up with his regime as the Maidan revolutionaries.

In the wake of today’s events, and after having lost all support from Ukraine’s police and security forces, it is difficult to see how Yanukovych could possibly return to effective office as President. However, it is conceivable that Yanukovych could (for example) try to establish himself as the leader of an erzats-Ukraine that includes the three eastern Ukrainian oblasts (Kharkiv, Luhansk and Donetsk) and the Crimean republic. Clearly this would require him to regain the loyalty of local elites and to negotiate Russian support, but such a turn of events cannot be discarded yet.

The above scenario is heavily dependent on the decisions eastern Ukrainians will make as to their own self-identities during the coming days. The Maidan in Kyiv was heavily supported by western Ukrainians who were prepared to fight and die for a Ukraine defined by its current borders, with its capital is in Kyiv. However, few central and western Ukrainians are prepared to fight for Donetsk or Kharkiv to be a part of Ukraine if the residents of these cities are not themselves interested. Eastern Ukrainians have traditionally demonstrated very strong regional identities (e.g. in multiple surveys), and now they themselves must decide whether these regional identities are stronger than their Ukrainian national identity. During his interview today, Yanukovych clearly stated that he would be travelling throughout the southeastern oblasts in the immediate future, and would be “trying to find answers to the current crisis from those who have remained calm in the face of violence and banditry in Kyiv.”

Yanukovych remains dangerous. He can continue to claim to be the legitimately elected President – at least until the May 25 election. The interim government in Kyiv faces massive economic problems, and Yanukovych could use this to his advantage – conducting a campaign in the east that paints the revolutionaries as a band of crooks who have overthrown the legitimate government, and then mismanaged the country. This will be an exceptionally difficult story to sell to the eastern Ukrainian electorate, but with Russian help and advice, it could yet conceivably be done. Furthermore, many of the hired thugs (“titushky”) that the Yanukovych regime imported into Kyiv during the past few weeks reportedly are still here, and they could still cause significant disturbances (e.g. burglary, car fires, street fights) that could be used to perpetrate the image of a descent into anarchy as a result of the “revolution”.

Destabilizing the situation in Kyiv, and simultaneously playing up the regional identity of the east while positioning himself as the “legitimate President whose country was robbed from him”, could be a successful strategy for Yanukovych if sufficient Russian support could be arranged. The best that he could hope for if this strategy is successful would be a lifelong Presidency in a criminalized buffer state on the Ukrainian-Russian border (similar to Abkhazia, TransDnistria, or Kaliningrad oblast). But even this option, from Yanukovych’s perspective, is likely preferable to exile or trial.

Unfortunately, this option is likely also in Putin’s interests. Today’s events must be seen as absolutely disastrous for/by the Kremlin. Yuriy Lutsenko actually verbalized the threat today from the stage of Maidan when he wished that Russians would soon feel the same taste of freedom as Ukrainians experienced tonight. For Putin, Maidan is a deadly threat to his own regime because a domino effect is inevitable: the average Russian will now ask “if the Ukrainians could throw off their authoritarian regime, why can’t we do the same with ours?” And so, the Kremlin is likely to try to undermine the image of revolutionary success in Ukraine in whatever way it can during the coming weeks and months. One obvious way of doing this would be to help Yanukovych establish himself as the “President-in-exile” in a Ukraine that includes only the eastern regions of the country, but claims legitimacy over the rest. In reality, such a Yanukovych-led “Ukraine” would only control three eastern oblasts, and the government would be fully dependent on the Kremlin, but it could be “spun” in the Russian media as the “legitimate Ukraine” (in contrast to the “bandit Ukraine”), and therefore worthy of protection and a better example to the Russian people than the revolutionary government in Kyiv.

I sincerely hope I’m wrong because such a split of the country will unlikely occur without some violence – not in Kyiv, but certainly in the east. In any case, as long as Yanukovych is alive and/or in Ukraine, the revolution is not yet complete.

Sorry for the pessimism, but in my opinion, the fat lady is clearing her throat, but not yet singing. In other words, this revolution is far from over yet…

God help us!

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