Ousting Yanukovych

There’s still some argument about the overall process whereby Yanukovych has been removed from power in Ukraine. Both Russia and the West seem to be jumping to two radically different conclusions regarding the events that took place less than two weeks ago. While Russia is calling it a coup, the West is mostly recognising it as a legitimate transfer of power – though the frequent use of the word “ouster” also conveys a sense that it wasn’t quite as neat as everybody would like. Personally, I’m still thinking of it as a revolution, but it seems the media at large is suffering from Revolution Fatigue.

Another word that has been used quite a bit in both the Russian and English language media is impeachment. This is a process whereby a President is removed from office, if he is shown – by tribunal or other investigative committee – to have committed treason or other crimes. Remember when Clinton was impeached for perjury, and acquitted? According to the impeachment theory, it follows that Yanukovych would still be president – at least until he stands trial. So why are people saying he’s not?

Here’s a run-down of events relating to Yanukovych’s de facto removal from office, with links to relevant documents (mostly in Russian/Ukrainian). Thanks to certain people – you know who you are! – for drawing my attention to some of these. I want to emphasise that the argument here is still under construction. This is an initial assembling of facts, and translations are very much uncertified.

February 21

Yanukovych signs a “peace agreement” with opposition leaders, which is witnessed by EU representatives. The first point in the agreement is that certain laws will be passed, signed and activated allowing a return to 2004 Constitution (i.e. from Presidential-Parliamentary to Parliamentary-Presidential system) within 48 hours.

A legislative majority of deputies convene in Parliament, including a number who have defected from Yanukovuch’s own party.

A bill is submitted to parliament to impeach Yanukovych. If passed, the bill would lead to the setting up of an inquiry into Yanukovych’s abuse of office, under Article 111 of the 2004 Constitution. However, according to the website of the Verkhovna Rada, it’s still under review – all 22 pages of it.

Night of Feb 21-22:  Yanukovych disappears (eventually surfacing at a press conference in Russia a few days later).

February 22

Parliament meets again and sets about putting the agreement into place. The relevant bills are signed by the Speaker. Yanukovych, being AWOL, does not sign. Under the 2004 Constitution, the President cannot veto a bill, so all these bills would eventually pass anyway – unless Yanek decided to renege on the February 21 agreement. However, yes, this Catch-22 is the weakest spot in the constitutional transition process, as far as I can see.

A bill is put before Parliament “On the withdrawal of the President of Ukraine from the execution of constitutional powers and calling for early Presidential Elections in Ukraine.” It states that Yanukovych has withdrawn from his constitutional duties [remember, the Presidential Estate is abandoned and there are rumours that he’s left the country altogether], threatening the running of the state [no one there to sign the bills] and its territorial integrity and sovereignty [there have been some separatist declarations from deputies in the eastern part of the country] and potentially leading to mass human rights violations [don’t forget that 100 people have already died in the violence in Kiev, and the security forces are still divided]. Since he has failed to fulfil his constitutional obligations, it is proposed that early presidential elections be called for May 25, 2014, in accordance with Article 85, Paragraph 7 of the constitution [which allows parliament to call early presidential elections]. It also says that this law will come into force immediately.

The law is passed unanimously by 328 deputies, who then sing the national anthem spontaneously. A large number of deputies are absent from the vote, but this is still about a hundred votes over the legislative quorum.

Note: this bill doesn’t mention the word “impeachment” once. That’s something that was attributed to it by headlines such as this from Al Jazeera. It uses the word “самоусунення”, which would literally translate to something like “self-removal”. In my reading of it, the aim of passing this law was to avoid constitutional and legislative limbo (as well as to capitalise on Yanukovych’s absence and placate protesters with the promise of early elections).

A few days later, Ukraine puts out an international warrant for Yanukovych’s arrest. At his press conference in Rostov-on-Don, Yanukovych announces that he is still the legitimate president of Ukraine.

At the moment, therefore, it seems that there is a lot of grey area. From my own point of view, this is a fascinating case study on how institutions respond to conflict – legally, morally, and opportunistically – and a good argument for a performative reading of the law in international relations.

What next?

Russia is still insisting that the opposition have violated the February 21 agreement. I would agree with the Ukrainian Ministry of Foreign Affairs that by fleeing the capital and refusing to sign bills into law, it was Yanukovych who violated the agreement. Here’s an important point about “peace agreements” anyway: they’re not always binding. They have to be made into law once they’re signed.

Practically speaking, Yanukovych has three options:

1. He returns to Kiev, signs the bills into law (if anyone still cares about that) – and goes on trial for abuse of office. Let’s call this the Louis XVI scenario.

or

2. He resigns, takes up political asylum in Russia, and avoids trial.

or

3. He continues insisting this is a coup, declares himself a political exile in Russia or elsewhere. If Russia continues to annex the southeast (I think it’s unlikely this would go further than that) then perhaps he might be installed there as president.

However, since the Russian administration is distancing itself from Yanukovych (at least, insofar as Dmitri Medvedev wrote on Facebook that his credibility was effectively destroyed), it’s more likely they’ll choose someone else for the role of lead separatist. That’s if the situation in Crimea isn’t resolved, and quickly.

All three lead to the same thing: presumably, a new president will be elected on May 25. Someone needs to do some serious negotiating with Russia to ensure that all sides will recognise those elections as legitimate. The problem: the West has already picked a side. That makes playing the role of impartial mediator a lot more difficult.

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2 thoughts on “Ousting Yanukovych

  1. I would point out another weak spot, constitutionally: how can it be the case that the 2004 version of the Constitution has come into force? Surely the president needed to sign the bill to make that happen?

    Also, what’s all this about Russia ‘annexing’ the south-east? I don’t know this is true. The western press seems to keep repeating this in the hope that it will come true… But it hasn’t actually happened, as far as I know.

    • Thanks Iain!

      On your first point – it all comes back to whether one accepts Parliament’s decision to move forward on the basis of the February 21st agreement following Yanukovych’s disappearance. If they were right to move forward then we can accept that they were right to revert to the old constitution. If we think they were wrong, then I suppose it’s a case of hanging a sheep instead of a lamb.

      On the second, I would describe what’s happening in Crimea as annexation-in-progress. Russian troops have broken the bounds of the agreed bases and spread out over the territory, effectively gaining military control. And now it seems we’re to be treated to a sudden, propaganda-fuelled referendum in which a majority will probably vote for reunification with Russia, because independence is not an option. The question is whether this will spread to other cities in the SE, where there’s still a lot of separatism in the air – and, as we know, pro-Kremlin ‘tourists’ mingling with local protesters. I understand that Russia has interests in Ukraine and I understand that an awful lot of Ukrainians have an interest in staying close to Russia, but this is not the way that those interests should be expressed, in my opinion.

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