Constitutional reform was a key part of the Minsk II ceasefire agreement back last February, but the problem is that it was never clearly defined in the Minsk agreement what exactly this entailed. Partly this was the fault of the Western Normandy powers (France and Germany) who, after an all-night session with Russian President Vladimir Putin and Ukrainian President Petro Poroshenko, appeared just eager to get the two sides to sign anything that might bring a moderation in fighting, and to buy time for more substantive peace talks to bear fruit – classic can kicking.
These talks have followed in the contact group format in Minsk, but with little progress, and news that former President Leonid Kuchma now wants to resign as the Ukrainian representative is hardly encouraging, and a sign that little progress has been made.
That said, at Minsk there was general acceptance that more power should be given to Ukraine’s regions, but there is a broad spectrum of possibilities from modest decentralization as talked about/favored by Poroshenko, to the federal solution as supported by Moscow, and something in between which now appears to be favored by the Opposition Party in Ukraine, and perhaps also by other oligarchic groups in Ukraine (who think they can dominate local government again, if not national politics). Essentially Moscow wants a solution where regions have some veto over national policy – as in effect Moscow wants influence over national policy in Ukraine, to stall its further Western orientation and to keep Ukraine within its sphere of influence.
The problem for Poroshenko is that the federal solution, as pushed by Moscow, is simply unsellable in Ukraine – as everyone understands what this likely means, i.e. likely the end of Ukraine’s current westwards orientation and indeed more likely the start of centrifugal forces which could see the disintegration of the country.
Instead, and to show Western powers that Ukraine is complying with its part of Minsk II, Poroshenko tabled a decentralization bill earlier this year before the Rada, which entails modest decentralization of powers to the regions (oblasts).
This secured majority support from the reform coalition in August, in a first reading, but fell well short of the two-thirds (300) constitutional backing needed in a second reading and to become law (after being then signed off by Poroshenko). Securing the two-thirds backing now for this bill seems nigh on impossible – as both the Opposition Party and other elements in the Rada have sought to exploit the issue to bring a reformulation of the ruling coalition. The Opposition Party has pushed for the devolution of even greater powers – partly a reflection of its stronger showing in local elections in October, and, hence, presumably it assumes that the party can rebuild its power base again from the local level (the party hailed from former Regions’ party of Yanukovych origins.
Yulia Tymoshenko’s Batkyivchyna Party (formally in the ruling coalition) also seems unlikely to back the bill unless Poroshenko agrees for her call for early parliamentary elections, which are also being pushed for not by the Opposition Party, and likely also supported by Moscow – which assumes that the Opposition Party would now return to government in Kyiv, given the widespread disillusion now felt amongst the pro-EU reform vote.
Unfortunately for Poroshenko, the clock is ticking, as there are suggestions that the constitutional reform bill has to be approved at second reading by the first week of February, or then face a one-year cooling off period before the bill can be re-tabled under at least one interpretation of Rada rules. This could then leave Kyiv facing accusations of being non0-Minsk II compliant. But trying to push the bill through the Rada at this point in time would risk an embarrassing defeat in the Rada for Poroshenko, and then perhaps calls for early elections, which the Poroshenko/Yatseniuk coalition might actually lose. Constitutional lawyers are currently reviewing whether the second vote on Constitutional reform bill can be delayed until later in the year – there is therein some debate about what constitutes a Rada session as per Minsk II requirements.
A further complication over the past week came with pressure from Western Normandy officials who hinted during a visit to Kyiv, that the failure of the Rada to approval constitutional amendments, decentralizing power to the region, would suggest that Kyiv was in breach of Minsk II commitments, which would risk undermining unity within the EU for the maintenance of sanctions on Russia, over its military intervention in Donbas.
Our sense at this stage is that the Poroshenko administration is willing to take the risks with European Union unity over sanctions as it knows that trying to push an unpopular constitutional reform draft through the Verkhovna Rada has the potential to bring down his reform administration, force early elections, and then to bring in a less EU-reform minded government.
The stakes for Poroshenko are simply too high.
The strategy now seems to be to buy time – trying to push the decision out until later this year, presumably hoping that by that time Ukrainian reforms will have further bedded down, creating something of a feel-good factor, which might be reflected then in improved poll support for the ruling parties in Kyiv. There is also a willingness to call the EU’s bluff – would it really want to force Kyiv to push through unpopular constitutional reforms which have the potential to bring down the coalition and derail the hard won pro-EU reform gains secured over the past two years. And, in a worst case I think Kyiv is willing to live with the consequences where the EU lifts sanctions, cognizant of the fact that without Russian Minsk II compliance (troop withdrawal and allowing Ukraine control over its borders) the US is unlikely to lift sanctions anyway (U.S. Secretary of State Kerry’s comments over the weekend were in my mind just aimed at trying to encourage Moscow to comply/compromise without offering up any real concessions from Washington itself).
A further nuance of the line from Kyiv also came with Prime Minister Arseniy Yatsenyuk’s call again over the weekend for any constitutional reforms to be put to a nationwide referendum. The latter would likely stall EU criticism while various opinion polls suggesting very limited support for any constitutional reform scenario which hints of federalism. However, given the current broad disillusion with the political class in Ukraine, and politics in general, I am not sure that any constitutional reform draft would bring a sufficiently large turnout in a nationwide referendum to win approval – it might if this was sold as the opportunity to reject a Russian Federalist draft, albeit Russia might then look to block any such vote. It could end up being torturous in terms of getting agreement over any question tabled in such a referendum.
Moscow’s game plan in all this seems to be to try and expose Kyiv for failing to meet its commitments to Minsk II, and as a result to secure the erosion of support in the EU and West for the maintenance of sanctions, which are viewed as exponentially painful in an environment of very low oil prices.
