PRELIMINARY STATEMENT OF THE NDI INTERNATIONAL ELECTION OBSERVER DELEGATION TO UKRAINE'S NOVEMBER 21, 2004 SECOND ROUND PRESIDENTIAL ELECTION Kyiv, November 23, 2004 This preliminary statement is offered by the international election observer delegation organized by the National Democratic Institute (NDI) to Ukraine's November 21, 2004, presidential runoff election. The delegation, totaling 35 observers from Europe, Canada and the United States, visited Ukraine from November 17-23. 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; David Collenette, former Minister of Defense and Minister of Transport of Canada; Alexander Longolius, former President Pro Tem of the Berlin House of Representatives; and Kenneth Wollack, President of NDI. The delegation also included members of parliament, other former members of Congress, former ambassadors, elections and human rights experts, civic leaders and regional specialists. The purposes of the delegation were to: demonstrate the international community's continued interest in and support for a democratic election process in Ukraine; and provide Ukrainians and the international community with an impartial and accurate assessment of the election process and the political environment surrounding it 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 and with credible international election observer missions coordinated by the OSCE/ODIHR and the European Network of Election Monitoring Organizations (ENEMO). For more than a decade NDI has conducted 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 process, given that the tabulation of results is not complete and that any electoral challenges and complaints will require monitoring through their completion. NDI does not seek to interfere in the election process. The Institute recognizes that, ultimately, it will be the people of Ukraine who determine the meaning and validity of the presidential election. SUMMARY OF OBSERVATIONS 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. 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 are among the critical flaws in the election process observed by this delegation and other credible domestic and international election observation missions concerning election day: Suspiciously high incidence of voting by the use of mobile ballot boxes in certain parts of the country; Incidents of intimidation and limited incidents of violence at polling stations, including unauthorized presence of police and other unauthorized persons inside the polls, as well as the presence of threatening groups of men outside polling stations; Widespread pressures against public sector employees and students to obtain absentee ballot certificates for themselves and members of their families and to turn the certificates over to employers or school officials, thus disenfranchising large numbers of voters; Organized movement of other persons to vote away from their homes, thus controlling their movements and creating the possibility for multiple voting by using numerous absentee ballot certificates; Disenfranchisement of significant numbers of voters due to their names being omitted from the voter lists or errors appearing in their personal information; Last minute dismissals by Territorial Election Commissions (TECs) of Precinct Election Commission (PEC) members representing opposition candidates; Refusal to admit international and domestic observers into PECs and TECs; Invalidation of polling site results under illegal or questionable circumstances; Failure of the law to accredit domestic nonpartisan election monitors, contrary to Ukraine's OSCE commitments under the 1990 Copenhagen Document. The following are among the key factors that undermined the credibility of the election process prior to November 21, which were noted by the delegation and other credible election observer efforts: Flagrant abuse of the powers of office by state officials to advance the interests of one candidate, including among other things pressuring government employees and students to vote for the prime minister; Frequent misuse of state resources for the political advantage of one candidate in disregard of legal requirements for separation of the state from partisan political interests; Bias of state-controlled news media favoring the candidacy of the prime minister, at times resulting from use of extra-legal "press guidelines" (temnyky); Distribution of bogus campaign materials, counterfeited in the name of one campaign as outlandish claims aimed to discredit the candidate, and bogus instructions to voters to boycott the polls, as well as bogus instructions to voters in the name of a civic organization telling them to cast ballots in a manner that would invalidate their vote for the opposition candidate; Intimidation and limited acts of violence in the election campaign periods directed against campaigners, election commissioners, journalists and election observers, both domestic and international; Delay by the Central Election Commission (CEC) in finalizing the first round election results, thus introducing uncertainty into the runoff campaign and shortening the period of clear competition; Lack of transparency in CEC actions by: not providing TEC and CEC totals together with PEC results, thus hindering verification of results by comparison of official copies of PEC protocols to TEC and CEC totals; and failing to release the numbers of ballots issued, absentee voting certificates used and the number of voters added to voter lists; Reluctance of the CEC to redress complaints and its limited referral of electoral violations for criminal prosecution. Many of these flaws were noted by credible domestic and international election observer missions concerning the October 31, first round, presidential election, and recommendations were offered for addressing them. The problems nonetheless continued during the inter-election period and several appeared to intensify, including abuse of office and state resources, pressure against public sector employees and students, and organized abuse of absentee voting certificates. Despite such obstacles, there were significant positive developments, particularly concerning political competition and the role of civil society organizations, including: Voters were presented with a range of candidates in the first round of the presidential election, representing pluralism in the political process; Voters were presented with a distinct choice in the second round; In certain PECs and TECs, polling officials, as well as candidate and media representatives, acted in an exemplary manner, demonstrating the capacity of Ukrainians to carry out a transparent and honest process; The political campaigns and political organizations of both candidates in the second round led to a strong contest, despite the flaws in the process; Citizens openly demonstrated their support for both candidates, even in face of apparent pressures against supporting the opposition; Civil society organizations participated vigorously in promoting citizen participation in the election process; Women were active in the political campaigns, civil society organizations and election administration; Citizen groups organized to monitor and promote electoral integrity, including the Committee of Voters of Ukraine (CVU), which mobilized approximately 10,000 people on each election day; Journalists protested openly about temnyky, and other citizens acted to defend their political rights; Bias, at least in certain private media, was reduced, and somewhat wider coverage was given to the opposition candidate in certain media in the second round; A presidential debate was carried on state-controlled UT1-TV, although a biased roundtable discussion concerning the candidates was broadcast immediately following it; The Supreme Court acted independently in granting relief for electoral violations concerning the first round, sometimes reversing the effects of rulings of electoral authorities; The CEC made efforts to address disenfranchisement due to omissions and mistakes in the voters list by issuing CEC Resolutions 155 and 1177, although implementation in many places was ineffective, and the media broadcast CVU's calls for citizens to check and correct their names on the voter lists. 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 and political parties and blocs that support them; the Chairman of the Central Election Commission; representatives of the news media; civic leaders, including leaders of the Committee of Voters of Ukraine (CVU), Equal Access Committee (a Ukrainian media monitoring project), Freedom of Choice Coalition, Znayu Civic Initiative and Ukrainian Committee on Human Rights Protection; the heads of the International Election Observation Mission to Ukraine coordinated by the OSCE; and the leaders of the European Network of Election Monitoring Organizations (ENEMO); as well as United States Senator Richard Lugar 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 election observation mission, ENEMO and CVU in Kyiv and in the regions. 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. NDI has a long standing relationship with the OSCE/ODIHR and is proud to have supported the efforts of CVU and the ENEMO observation efforts in Ukraine separate from this delegation's activities. BACKGROUND Legal Framework. The constitution grants strong presidential powers, although as President Leonid Kuchma decided not to seek another term there were attempts to amend the constitution to substantially weaken the presidency. While the legal framework for presidential elections includes some significant shortcomings, it provides a sufficient basis for a democratic election. Legal provisions, however, have not been satisfactorily implemented. The legal framework requires that a presidential candidate must receive an absolute majority of valid votes cast to win in the first round, including votes cast "against all" candidates. If that is not achieved, the top two candidates enter a second round runoff election, and the one that receives the most valid votes wins, as long as both remain in the contest. Twenty-four candidates contested the first round of the October 31, 2004 presidential election, which resulted in a virtual tie between Victor Yanukovich and Victor Yushchenko, both of whom finished well ahead of the others. On November 10, the CEC announced that they would face each other in a November 21 runoff, the winner of which is to take office no later than January 8, 2005. Election Administration. Election administration was controversial and uneven. The CEC's 15 members were selected by the President and approved by the parliament. More than two-thirds of the CEC's members were new to the Commission for the 2004 election. Each of the 24 presidential candidates was allowed one non-voting representative to the CEC, each of whom had a limited role. While the CEC sessions were conducted openly, it did not take a proactive approach to overseeing application of the legal frame work, which undermined public confidence in the CEC. The CEC also did not effectively redress many first round problems or problems in the campaign environment. While many members of subordinate commissions worked diligently to fulfill their obligations to properly administer the election process, a significant number of TECs and PECs failed to protect the integrity of the process. The OSCE observation mission noted that results from four PECs in Sumy oblast were incorrectly entered in to the TEC results, switching hundreds of votes from Victor Yushchenko to Victor Yanukovych. The CEC dismissed the members of TEC 100 in Kirovograd oblast on November 9 and the next day determined that the TEC results were not valid. Though the Supreme Court ruled that they should include the results, the CEC has failed to do so. The CEC has not released detailed results below the TEC level for the first round despite calls for this from international and domestic observers and others. This would allow verification of totals by polling station results. The CEC should release detailed elections results, by PEC, along with aggregated TEC and CEC totals immediately from both rounds. Voter Lists. As noted above, there were major problems with the voter lists in the first round. Although the law required the TECs to prepare new lists for the second round by November 11, the late determination of first round results on November 10 precluded this. While a few electoral authorities took initiatives to update the lists following the first round, and civic organizations attempted to mobilizes voters to check and correct the lists in some areas, the lists were not adequately updated in many areas. This set the stage for continued problems with both voter disenfranchisement due to omission of names and incorrect entry of personal information. Also, there were examples of names remaining that should have been removed from the lists in numerous places, which increased opportunities for illegal voting. For example: In TEC 1, PEC 34 (Crimea, a Tartar area and a PEC that voted 5 to 1 for the opposition candidate), NDI observers noted that the voters list for the first round was cut from 2,532 to 1,878, a 25 percent decrease in voters. The PEC subsequently re-added approximately 10 percent as a result of complaints. On November 21, about 100 people were turned away from PEC 34 because their names were not on the voters list, and only 15 to 20 of them returned to vote with court papers. In TEC 148, PEC 19 (Poltava oblast), the ENEMO observation mission reported that the number of registered voters increased from 430 in the first round to 1,420 in the second. The polling station is located near a military instillation, and the officials claimed that the increase was a result of new soldiers being assigned to the base. In TEC 82, PEC 46 (Melitopol, Zaporizhzhya oblast), CVU reported that the voter list contained the names of military personnel from detachments that were disbanded over a year ago. Intimidation and Violence in the Campaign and on Election Day. A disturbing level of intensity and frequency of attacks against campaign supporters and incidence of intimidation during the campaign and on election day were well documented by observer delegations. For example, on November 21, NDI observers noted: In TEC 42, PECs 8, 10 & 11 (Donetsk oblast) intimidating persons were reported inside and outside of the polling stations. A group of men inside the PEC credentialed as journalists but with no ties to the media were guarding the ballot boxes and filming voters, while a group outside checked voters' documents as they attempted to enter the polling station. In TEC 100 (Kirovograd oblast), the head of the commission asked NDI's interpreter why he was correctly interpreting for the observers and threatened him with violence if he returned with them to monitor the count. In violation of Article 28, Sections 9 and 10 of the Electoral Law of Ukraine, international observers reported the presence of police and militia men in polling stations during the voting process throughout Donetsk, Vinnitsa, Kyiv, Kirovograd, Zhaporizhzhya and Crimea. In TEC 136 (Odessa oblast), approximately 150 young men wearing arm bands with "Volunteer" written in Russian, were loaded onto buses and driven around the region. When questioned about their presence, observers were told the men were recruited by the rayon administrator for "election protection." Absentee Voting and Mobile Balloting. There were widespread abuses of absentee voting and mobile balloting reported by various observation missions. Among the examples noted by NDI observers were the following: In TEC 179, PEC 168 (Mospanove, Kharkiv oblast), the original voters list contained 730 people, but the PEC received 1,265 ballots. All of those ballots were cast, 238 of which were cast by using the mobile ballot box. A PEC member claimed that people came on Friday to pick corn in the region, which is why the polling station received the additional ballots. In TEC 179, PEC 165 (Kharkiv oblast) out of 1,600 registered voters, 523 requested to vote from home. Observers were told by an opposition PEC member that many of these persons did not apply themselves. In TEC 2, PEC 19 (Crimea oblast), 57 people voted by mobile ballot box in the first round; however, there were 324 requests for mobile voting for November 21. In TEC 78, PEC 19 (Zhaporizhzhya oblast), mobile voting applications increased from 14 in the first round to 51 in the second, while in PEC 34 the number increased from 31 to 58. In PEC 44, the number went from 30 to 62, and in PEC 45 it went from 41 to 99. In TEC 7, PEC 39 (Yalta, Crimea oblast), the number of mobile voting applications more than doubled from 33 to 68 and by 2:00 pm, the number of absentee voters was 50 percent higher than in the first round. Last Minute Removal of PEC Members. Another significant problem that appeared in both rounds of the presidential election was the last minute removal of PEC members. This creates instability in polling station administration and opens the possibility for manipulation of the election process. Among the examples noted by NDI observers were the following: In TEC 100 (Kirovograd oblast), on election day, the commission removed 469 PEC members representing the opposition. The decision was overturned by a court at approximately 7:00 pm, one hour before the polls closed, which was too late for the commissioners to participate in the voting process. In PEC 42, one commission member returned to the polling station to assist with the count, but the PEC refused to recognize the decision and re-instate the member. In TEC 42, PEC 10 (Donetsk oblast), the deputy chairperson of the commission was denied access to the polling station on Saturday night. Accompanied by NDI observers, she was later allowed into the station, where three other commissioners and numerous men were meeting. Although the commission lacked quorum, they ruled to remove her from the PEC. On election day, she was again denied access. Violations of Balloting and Counting Procedures. Throughout the country balloting procedures included voters placing their ballots, unfolded into transparent ballot boxes. This negated the secrecy of the vote, and numerous examples were witnessed by NDI and other observers of persons standing so that they could see marks on the ballots while they were in the voters' hands. In addition, there were significant instances of violations of balloting and voting procedures. Following are examples witnessed by NDI observers: In TEC 179 (Kharkiv oblast), at 10:00 am, the chairman claimed he received requests for additional ballots from five PECs in anticipation of additional voters. According to the TEC chair, PEC 168 requested 500 ballots, PEC 165 requested 200 ballots, PEC 169 requested 190, PEC 163 requested 30 and PEC 145 requested 20 ballots. After counting and sorting the additional unnumbered ballots, the TEC decided not to distribute them and placed them in the safe. PEC 165 chairman denied having made the request to the TEC, but did note that he requested 200 additional ballots for the first round. In TEC 216, PEC 103 (Kyiv), in a bizarre incident, at least one of the pens placed inside the voting booths was allegedly replaced with a pen containing ink that "disappeared" six minutes after it was applied to paper. NDI observers gained possession of one of the pens and verified this fact. During the count, 92 ballots from the PEC's ballot box were declared invalid, because they had no ink markings, although upon close inspection, physical marks from a pen were clearly evident, and the choice of the voter could be discerned. In TEC 42, PEC 10 (Donetsk oblast), the count was not transparent. Observers were physically prohibited from seeing the voters list, and the counting was done so quickly that it impaired the observers' ability to view the ballots. The observers called attention to 30 ballots credited to Yanukovich but clearly marked for Yuchshenko. In TEC 215, PEC 5 (Kyiv), the voting and counting processes were conducted without incident. The PEC chair reported in the morning to have a quorum of the PEC's 35 members. When the results were reported to the TEC at approximately 3:00 am, however, the TEC chair immediately challenged them, saying that the PEC had 40 members and therefore lacked a quorum by one person. It then became clear that the PEC chair had known that the number was 40, but had not sought to remedy the problem and protect the polling results. Over 2,000 votes were then invalidated over protests because of the legal technicality. CONCLUSION While Ukraine has the capacity to organize democratic elections, the government and electoral authorities have failed to demonstrate the political will to do so. The process surrounding Ukraine's presidential elections has failed to meet minimum international standards, many of the country's commitments through the OSCE and European organizations and the requirements of Ukrainian law. Since independence, Ukraine has held four presidential elections, most of which experienced problems similar to those identified in this one. The failures of the present election, therefore, represent a major step backward for the country's democratic development. Public opinion surveys in Ukraine have consistently shown that a vast majority of citizens lack faith in the credibility in the country's electoral process. Regrettably, the presidential election has failed to build the public confidence that has been lacking. The government, electoral authorities, courts and political leaders now face a central challenge: to act prudently in the nation's long-term interest by taking the necessary steps to address the failures in this election process and providing effective redress for electoral abuses. In many ways, the public's faith in the government and the future direction of the country depend on their wisdom and on their actions in the period immediately ahead.