Over the 30 years of independence, Ukraine has witnessed only 2 all-Ukrainian referenda (although there were many more attempts to declare them) and a series of local referenda. Currently, Ukraine is facing the establishment of the new legal framework on popular rule. In the early 2021, Verkhovna Rada had already adopted the law on the all-Ukrainian referendum. That is why it makes sense to look back at the history to explore into our own experience.
On December, 1, 1991, the history of the referenda started in Ukraine. On this day, the nationwide referendum took place on the territory of a former Ukrainian Soviet Socialist Republic about the declaration of independence of Ukraine. The decision on conducting the referendum was included in the Resolution of the Verkhovna Rada of USSR “POn Declaration of Independence of Ukraine” dated August, 24, 1991 (No 1427-ХІІ). The MPs started preparing for the referendum in October, finalized the procedures for conduct and the text of the ballot (Resolutions “On conducting the all-Ukrainian referendum on the declaration of independence of Ukraine” and “On the form of a ballot for voting at the all-Ukrainian referendum” of October, 11, 1991). At the same time, they approved the statement of deputies where they declared they trusted the wisdom and political maturity of Ukraine’s people, and consciously opted for the all-Ukrainian referendum: “We hereby urge you to support the Act of Declaration of Independence of Ukraine”. The vote count and establishment of voting results were administered by the Central Election Commission for election of people’s deputies of Ukraine; the Commission of the Crimean ASSR for election of people’s deputies of the Crimean ASSR; regional, district, city, city districts commissions for election of people’s deputies for local councils.
The referendum ballot included the text of the Act of Declaration of Independence of Ukraine and a question: “Do you support the Act of Declaration of Independence of Ukraine?” There were two options to answer: “Yes, I support” or “No, I do not support.”
Source: Історична правда
The first all-Ukrainian referendum took place in parallel with the Presidential elections in Ukraine. That is why the voting was organized by election commissions for presidential elections. The total of 31,891,742 citizens participated in the voting, or 84.18% of citizens entitled to vote in the referendum and in the Presidential elections (37.8 mln citizens).
How Ukrainians voted (photos):
The Act of Declaration of Independence of Ukraine was supported by 28,804,071 citizens, or 90.32% of voters attending the voting. The Act of Declaration of Independence of Ukraine was supported in all 27 administrative regions of Ukraine: 24 Oblasts, 1 autonomous republic, and 2 cities with a special status. For example, in Donetsk Oblast, the total of 2,957,372 persons voted, or 76.73% of citizens entitled to vote in the region. Of them, the independence of the Ukrainian state was supported by 2,481,157 persons, or 83.9%. 372,157 citizens, or 12.58%, voted against. 3.52% of ballot papers were declared invalid.
Results of the All-Ukrainian Referendum (documents):
Since the Central Election Commission as a standing authority was established as late as in 1997, and because it was not a successor to the Central Election Commission for people’s deputies of Ukraine, the CEC does not have any information on the vote count at the 1991 referendum. All the relevant documents are stored in the Central State Archives of Higher Authorities and Administration of Ukraine (TsDAVO).
The 1991 referendum had an imperative function, the decisions were binding and did not require any additional approval.
After December, 1, Ukraine started being recognized by other countries of the world. For example, on December, 2, it was recognized by Canada and Poland, on December, 3 – by Hungary. Throughout the month, Ukraine was recognized by over 40 countries in the world. Therefore, the results of the All-Ukrainian referendum provided a legal basis for transforming the declared state independence into the de facto status.
The following attempt to conduct the all-Ukrainian referendum was the initiative of people’s deputies in 1993. The decision is believed to have been made under the pressure from the miners’ industrial protests. On June, 17, 1993, over 90% of people’s deputies (“in favour” – 90.32%, “against” – 7.58%) supported the Resolution of Verkhovna Rada of Ukraine “On Conducting the All-Ukrainian Referendum on Confidence (Nonconfidence) to the President, and to Verkhovna Rada of Ukraine” . It was planned to have the referendum on September, 26, 1993. In case the September voting resulted in most voters expressing their nonconfidence, the Parliament would schedule the Presidential or parliamentary elections to take place.
Source: Голос України
However, two days before the referendum, on September, 24, the Verkhovna Rada passed the Law of Ukraine “On the Early Elections of Verkhovna Rada of Ukraine and the President of Ukraine”. The decision repealed the referendum, while scheduling the early elections of people’s deputies (for March, 1994) and the President of Ukraine (for July, 1994).
Session of Verkhovna Rada of Ukraine, September, 24, 1993. In the center: Yaroslav Kendzior, Ihor Yukhnovskyi, Leonid Taniuk . Source: Голос України
Two years later, in 1996, in the heat of the constitutional crisis, the President of Ukraine Leonid Kuchma issued a Decree “On Conducting the All-Ukrainian Referendum on Adopting the New Constitution of Ukraine” of June, 26, 1996 No 467. It provided for the adoption of the draft Constitution of Ukraine. The text of the Constitution brought forward to the all-Ukrainian referendum was not attached, and the ballot was supposed to include one question only: “Do you approve the text of the new Constitution of Ukraine?” The two possible answers followed: “Yes, I do” and “No I do not.”
Among other things, the draft Constitution provided for the formation of a two-chamber parliament – the National Assembly of Ukraine (with a House of Deputies and a Senate). However, two days later people’s deputies voted in the session room for the new Constitution of Ukraine. The Decree on conducting the referendum was cancelled.
The second, and the last, as of February, 2021, all-Ukrainian referendum is the referendum on April, 16, 2000, upon popular initiative declared by the President Leonid Kuchma.
The initiative group to conduct the referendum was established on December, 7, 1999, at the convention of Zhytomyr city citizens. First, the Central Election Commission rejected the registration to the initiative group, claiming that certain provisions of the Law of Ukraine “On the all-Ukrainian and local referenda” did not meet the provisions of the Constitution of Ukraine.
However, on December, 21, Pechersk district court of Kyiv city declared the CEC Resolution unlawful and committed the commission to register the Zhytomyr initiative group. The CEC enforced the court decision on December, 23, 1999.
Pursuant to the decree of the President Leonid Kuchma “On the Declaration of the All-Ukrainian Referendum upon Popular Initiative,” the following four questions were put up for voting:
- “Do you support the proposals to add to Article 90 of the Constitution of Ukraine a new third part running as: “The President of Ukraine may also terminate the authority of the Verkhovna Rada of Ukraine prior to the expiration of term, if within thirty days it fails to form a parliamentary majority, or in case when within three months it fails to approve the State Budget of Ukraine duly drafted and submitted under the set procedures by the Cabinet of Ministers of Ukraine” that would establish additional grounds for the President of Ukraine to dissolve the Verkhovna Rada of Ukraine, and to add the respective fragment to paragraph 8 of part one of Article 106 of the Constitution of Ukraine: “and in other cases provided by the Constitution of Ukraine.”?”
- ‘Do you agree with the need to restrict the parliamentary immunity of people’s deputies of Ukraine and therefore exclude part three of Article 80 of the Constitution of Ukraine: “People’s deputies of Ukraine may not be brought to criminal liability, detained, or arrested with no consent from the Verkhovna Rada of Ukraine”?”
- “Do you agree with the reduction of the total number of people’s deputies of Ukraine, from 450 down to 300, and the associated replacement in part three of Article 76 of the Constitution of Ukraine of a phrase “four hundred and fifty” with the “three hundred,” and do you agree with the introduction of the respective changes to the electoral law?”
- “Do you support the need to form the two-chamber parliament in Ukraine, which one chamber would represent the interests of Ukraine’s regions and facilitate their satisfaction, and to introduce the respective changes to the Constitution of Ukraine and the electoral law?”
Initially, two questions more had been submitted for this referendum:
5. “Do you vote of non-confidence to the Verkhovna Rada of Ukraine of the 14th convocation and the associated addition to part two of Article 90 of the Constitution of Ukraine running as: “and also in case of the vote of non-confidence to the Verkhovna Rada of Ukraine at the all-Ukrainian referendum that provides grounds for the President of Ukraine to dissolve the Verkhovna Rada of Ukraine”?”
6. “Do you agree that the Constitution of Ukraine shall be adopted by the all-Ukrainian referendum?”
However, The Constitutional Court of Ukraine (CCU), under the constitutional submission 103 and 108 form people’s deputies of Ukraine, declared the questions not complaint with the Constitution of Ukraine, since the “current Constitution of Ukraine does not provide for the institution of non-confidence vote at the all-Ukrainian referendum, also declared upon the popular initiative, announced to the Verkhovna Rada of Ukraine or any other constitutional authorities of state power as a possible ground for the termination of their powers prior to the expiration of office.” Moreover, the “question listed under point 6 (“Do you agree that the Constitution of Ukraine shall be adopted by the all-Ukrainian referendum?”) shall be brought forward to the all-Ukrainian referendum without clarification of the popular will on the need to adopt a new Constitution of Ukraine, and thus, undermines the validity of the Basic Law of Ukraine, which may infringe on the foundations of the constitutional rule it sets in Ukraine, as well as human and citizen rights and freedoms.”
The compliance of the referendum procedure and of the questions put up for the vote with the Constitution of Ukraine and international democratic standards was assessed by the Parliamentary Assembly of the Council of Europe (Recommendations of April, 4, 2000 ) and the European Commission (opinion of the Venice Commission “For Democracy Through Law’ of March, 31, 2000).
Almost 30 mln Ukrainians voted in the referendum. Most of them replied in the affirmative to all four questions asked in the ballot paper.
Having received the positive opinion from the Constitutional Court of Ukraine on the compliance of the draft Law of Ukraine “On Introducing Changes to the Constitution of Ukraine according to the returns of the all-Ukrainian Referendum upon popular initiative” with the requirements of Articles 157 and 158 of the Constitution of Ukraine (case on introducing changes to Articles 76, 80, 90, 106 of the Constitution of Ukraine,) the Verkhovna Rada of Ukraine preliminary approved the draft law submitted by the President of Ukraine (251 votes in favour). However, at the regular session, the dedicated line Committee submitted the updated draft Law eventually supported 163 MPs only. Therefore, the Verkhovna Rada of Ukraine failed to implement the results of the All-Ukrainian referendum of April, 16, 2000 on the reform of the government institutions.
The Attempts to Conduct the all-Ukrainian Referendum upon Popular Initiative
Pursuant to the reply from the Central Election Commission to the letter of the Committee on the Organization of State Power, Local Self-Government, Regional Development and Urban Planning dated April, 30, 2020, from 1998 to 2014, Ukraine had witnessed 27 attempts to initiate the all-Ukrainian referendum upon popular initiative on various issues. Notwithstanding, they all failed.
According to the Laboratory of Legislative Initiatives, from 1991 to 2012 178 initiatives were registered in Ukraine to conduct local referenda. The largest number of local referenda, such as 28 initiatives, were conducted in 2004. Most referenda concerned the administrative and territorial issues (32%), names of settlements (26%), and organizational issues (20%).
The first ever local referendum took place in Odesa (still as part of the Soviet Union) on December, 16, 1991. The following two questions were offered for citizens to consider: “On closing the environmentally hazardous production facility of the Portside Plant” and “On establishing a free economic zone in Odesa.” Over 450,000 voters from Odesa (ab 60%) voted in the referendum. Of them, supported the closure of the Portside Plant (83.4%), while 93.8% supported the free economic zone.
In most cases, Ukrainians showed the high level of solidarity and the high turnout at local referenda. 92% of decisions submitted for the vote were approved, whereas as little as 8% were rejected.
The constitutional right of citizens for the expression of will through referenda and crucial issues of its exercise are set in articles 38, 69, 70, 72, 73, 74, 92, 106, 138, 143, 155, 156 of the Constitution of Ukraine.
On July, 3, 1991, before the declaration of the Act of Independence of Ukraine on August, 24, 1991, they passed the Law “On Про всеукраїнський та місцеві референдуми» (№ 1286-XII). It was the law that regulated the conduct of the referenda by 2012. In November, 2012, the Law of Ukraine on Referendum (No 5475-VI), in breach of procedure, that was negatively assessed by national experts and by the Venice Commission. That is why the Constitutional Court of Ukraine responded to the submission from people’s deputies of Ukraine and accounted for the recommendations from the Venice Commission, and declared the Law unconstitutional (decision of 26.04.2018 No 4-р/2018).
Since that time, the parliament has registered a series of draft laws on referenda related matters. On January, 26, 2021 alone, the Verkhovna Rada of Ukraine passed in the second reading and in whole a Draft Law on the Popular Rule Through the All-Ukrainian Referendum” (No 3612). However, the issue of local referenda has not been regulated on a legislative level still today.
The institute of the referendum has its background. It is considered that it used to be practiced in the political life of the state in the Ancient Rome. However, the official date of having the first referendum is 1439. It took place in Switzerland, in the Bern canton. For historical reasons, Ukraine has not had any actual institutes of representative and direct democracy for a long time. However, some researchers qualify the popular assembly (viche) in the Kyivan Rus (late Х – early ХІ) as a prototype of a referendum. In the Soviet time, there was the Article 5 of the 1977 Constitution of the USSR differentiated between the concepts of “nation-wide discussion” and the “nation-wide vote” (USSR referendum). Further, the concept of a referendum institution was regulated in the Law “On Popular Vote (USSR referendum)” of December, 27, 1990: “people shall exercise state power both through the Councils of people’s deputies, and directly, also via a referendum” (Article 1). However, at the time, there were no efficient legal mechanisms to organize the conduct of the referenda.
By Yana Zolotariova