Lawyers of the Civil Network OPORA have produced an analysis of the provisions of draft laws amending the Electoral Code of Ukraine to combat sexism in electoral processes and ensure balanced representation of women and men in the Verkhovna Rada of Ukraine and local councils.

Introduction

On May 27, 2024, the Parliament registered a draft law on amendments to the Electoral Code of Ukraine on combating sexism in electoral processes and ensuring balanced representation of women and men in the Verkhovna Rada of Ukraine and local councils (reg. No.11300) (hereinafter referred to as the main draft law), and on June 5 of the same year, an alternative to it came up (reg. No.11300-1) (hereinafter referred to as the alternative draft law). 

It must be remembered that the registration of the main draft law was the result of long work. Thus, some of the provisions were developed in 2021 by a working subgroup, which included representatives of various non-governmental organizations dealing with gender issues. At that time, amendments to the legislation were prepared, aimed primarily at overcoming the identified problems in regulating gender-balanced representation and combating discrimination during the 2020 local elections and taking into account the recommendations of the OSCE/ODIHR. Other changes related to the residency requirement were jointly developed in the first year of the full-scale invasion and reflected in the CEC Resolution of September 27, 2022 № 102 “On proposals for improving the legislation of Ukraine aimed at ensuring the preparation and conduct of elections after the termination or lifting of martial law in Ukraine”. The purpose of these proposals was to find ways to offset the impact of the consequences of the war on elections in the post-conflict period. 

Some consensus on these issues was reached between MPs, CEC members and representatives of NGOs during the round table “Ensuring the involvement of women in political processes in Ukraine” which was held by the Committee on the Organization of State Power, Local Self-Government, Regional Development and Urban Planning on May 20, 2024, with the assistance of the All-Ukrainian NGO “Civil Network OPORA”, the International Foundation for Electoral Systems (IFES) in Ukraine and the Council of Europe Project “Support for Democratic Post-War Elections in Ukraine” in cooperation with the Central Election Commission. In fact, following the activity, the main draft law was registered.

What does the main draft law propose?

As stated in the Explanatory Note, the purpose of adopting the draft Law of Ukraine “On Amendments to the Electoral Code of Ukraine on Combating Sexism in Electoral Processes and Ensuring Balanced Representation of Women and Men in the Verkhovna Rada of Ukraine and Local Councils” is to prohibit restrictions, gender-based discrimination of candidates in national and local elections, including through sexism, in particular by disseminating relevant campaign materials. It is also about settling the residency requirement, taking into account forced migration abroad, and strengthening the gender quota to stimulate an increase in the level of representation of women at the national and local levels.

The main draft law provides for the following:

• strengthening the gender quota by maintaining the numbering in the electoral lists in case of withdrawal of the candidate, as well as by replacing the deputy with the next in line of the same gender;
• defining the concept of “sexism” during the election process and establishing a ban on the distribution of campaign materials that either contain signs of sexism or incite it;
• clarification of the residency requirement — staying abroad during martial law is not a reason for refusing to register a candidate for the President of Ukraine or for an MP. 

What is the difference between the main and alternative drafts?

The alternative draft law fully reproduces the provisions of the main one with the exception of some changes: 

1. it rejected the amendments proposed in the main draft law to Articles 75 and 134 of the Electoral Code on the regulation of residency requirements for candidates in parliamentary and presidential elections, and also propose to exclude the stay abroad during vacation from the list of exceptions for compliance with the residency requirements provided for by the current electoral legislation;
2. changes in election campaigning are formulated with minor differences: Part 3 of Art. 57 of the Electoral Code proposes to prohibit the dissemination of information that humiliates or disrespects not only the state language (as provided for in the main draft law), but also the languages of national minorities (communities) living in Ukraine.

Gender Balanced Representation

The practice of holding local elections in 2020 showed that, despite the legal obligation to comply with the gender quota, some electoral subjects tried to ignore it during the nomination and registration of candidates or bypass it, encouraging women to refuse to run after the registration of the electoral list by the relevant election commission or from the representative mandate, which ultimately contributed to the election of more men. In addition, judicial practice was widespread where non-compliance with the gender quota was often interpreted as a technical error and it was allowed to correct it.

The introduction of a gender quota in the legislation undoubtedly contributed to the fact that political parties began to target more women and include them in the lists in a certain order. At the same time, as indicated in the Report on the findings of OPORA’s study on women’s participation in the 2020 local elections, this number did not always indicate the inclusive approach of parties: there were cases of involvement of “technical” candidates (i.e., they were included in the list for the formal implementation of the legislative requirement rather than full involvement in the election campaign). Only 5 female respondents admitted that they were involved as “technical candidates” from the beginning, but as many as 120 women respondents (more than 41%) said they were aware of cases of such involvement by other political forces. The authors of the report conclude that such a discrepancy may (although not necessarily) indicate that the share of formal inclusion of women in the electoral lists could actually be quite high.

In this regard, OPORA emphasized in the Final Report on the results of observation of the Civil Network OPORA in the 2020 local elections that a separate focus of the next stage of electoral reform should be the improvement of procedures for ensuring the gender quota in the electoral lists of local organizations of political parties at the stage of their registration, the cancellation of the registration of individual candidates from such lists and the preservation of gender balance to elected authorities during the distribution of mandates. 

The OSCE Office for Democratic Institutions and Human Rights (ODIHR) also drew attention to this problem in their Report of the monitoring mission on the observation  findings at the 2020 local elections. It recommends that Ukraine consider adhering to the gender quota for candidate lists at all stages of the election process, especially during nomination and registration. 

Also, as emphasized in the Explanatory Note to the main and alternative draft laws, the European Commission in its report on Ukraine within the framework of the Enlargement Package adopted in November 2023 indicated that Ukraine should continue the reform of the electoral legislative framework in order to implement the outstanding recommendations of the OSCE Office for Democratic Institutions and Human Rights (ODIHR).

The proposed amendments are designed to counteract “abuse” regarding the non-fulfillment of the gender quota, in particular, in the event that a person fails to submit documents for their registration as a people’s deputy or replaces people’s deputies whose powers were prematurely terminated (in such cases, the main draft law provides that after the distribution under the regional electoral list, distribution according to the national list shall take place, where the next candidate for deputy of the same sex shall be considered elected). A similar approach is proposed in both draft laws for local elections of deputies to the Verkhovna Rada of the Autonomous Republic of Crimea, oblast, raion, city district councils, as well as deputies to city, village, and settlement councils (territorial communities with 10,000 or more voters). In addition, the changes are aimed at preventing non-compliance with the gender quota by admitting an error.

Thus, the adoption of changes in this part will comply with the recommendations of the OSCE/ODIHR and will indicate the fulfillment of the requirements of the European Commission for further integration of Ukraine into the European Union.

Anti-discrimination

The line to counteract discrimination was proclaimed back in 2005 — with the adoption of the Law of Ukraine “On Ensuring Equal Rights and Opportunities for Women and Men”. It contained a definition of the concept of “gender discrimination” but it did not provide any sufficient tools to counteract it. Although this law has undergone changes over time, its provisions on ensuring equal rights and opportunities for women and men in the electoral process are glaringly outdated: they mention “electoral blocs” and balloting exclusively in a “multi-member nationwide constituency”, which does not comply with the provisions of the current Electoral Code of Ukraine.

Civil Network OPORA also highlighted the problem of gender discrimination in the exercise of political rights. In particular, OPORA’s 2020 Report on Women’s Participation in Local Elections highlighted cases of discrimination based on gender and other related grounds due to women’s participation in elections. The vast majority of the candidates surveyed (over 90%) admitted the barriers to women’s access to political activity, which demonstrates persistently alarming data of stereotypical and sometimes hostile attitudes towards women politicians. At the same time, when asked whether women experienced manifestations of sexism in connection with their participation in the elections, more than 90% of respondents denied such a negative experience. Only a few respondents indicated that they felt disrespectful or mistrustful attitude on the part of voters, and sometimes from colleagues. A little more, 53 candidates (18.3%), reported that they were subjected to “black PR”. In addition, 17 women (6%) experienced ageism, both when they were young (predominantly under 30) and when they were over 60. At that time, OPORA recommended to the Parliament to amend the Electoral Code — to include it in the list of restrictions on campaigning set out in Art. 57 the prohibition of the use of materials containing sexist statements, images or other manifestations of sexism in election campaigning in any form, in campaigning of electoral subjects.

In fact, these proposals are reflected in both bills. In particular, it is proposed to include in the list of restrictions on campaigning set out in Art. 57 of the Electoral Code, the prohibition to use the materials, in any form, containing sexist statements, images or other manifestations of sexism in campaigning for electoral subjects. Also, for the first time in the history of Ukrainian electoral legislation, these draft laws propose to enshrine the definition of sexism in the Electoral Code.

The conclusion of the Main Research and Expert Department emphasizes the problems of legal certainty in the definition of sexism, on the correlation with the concept of “gender discrimination” and the need to enshrine it in basic regulatory legal acts (that is, in the field-specific rather than electoral law). 

Despite the relevance of some remarks, it is worth noting that restrictions on campaigning are naturally enshrined in the electoral legislation. At the same time, the establishment of restrictions without providing a definition of sexism will generate significant legal uncertainty in the activities of electoral subjects and law enforcement practice of courts, law enforcement agencies and election commissions. That is why the setting of restrictions should take place simultaneously with the provision of a definition of sexism, which can be included in this draft law in the Electoral Code of Ukraine, and in the future it could be transferred to basic legal acts (such as the Laws of Ukraine “On Ensuring Equal Rights and Opportunities for Women and Men” and “On the Principles of Preventing and Combating Discrimination in Ukraine”). The definition itself can be improved during the finalization of the draft law for the second reading.

Residency requirement during the war

Full-scale Russian aggression led to occupation and hostilities in a large area of Ukraine, which led to massive displacement of citizens within the country and out of the country. At the same time, we emphasize that we are talking about forced migration caused by the war, which in democratic countries is the grounds for obtaining temporary protection. Staying outside their home country under such conditions creates significant obstacles to the exercise of passive suffrage, given the legal requirements for residency, which are set at 10 years for presidential candidatesin Ukraine and 5 years for MP⁠candidates.

It should be borne in mind that such obstacles are likely to affect primarily women, since women and children make up the vast majority of people displaced abroad (the largest share (13%) are women aged 35–44). In 2022, in the resolution “On proposals to improve the legislation of Ukraine aimed at ensuring the preparation and conduct of elections after the termination or abolition of martial law in Ukraine” dated September 27, 2022, No. 102, the CEC stressed that after the beginning of the full-scale armed invasion of russian troops in Ukraine, a significant number of people (holders of active and passive voting rights), fleeing the war, were forced to leave their homes and seek temporary protection in other countries of the world, without interrupting civil communication with Ukraine. Therefore, for a significant number of possible candidates in national elections, especially women, whose exercise of passive suffrage is currently legally protected by “gender quotas”, the period of stay abroad (from February 24, 2022) has already exceeded 90 days. In this regard, in order to prevent restrictions on the exercise of the relevant electoral rights in such circumstances, the Central Election Commission proposes to expand the provisions of the Electoral Code of Ukraine to exceptional cases that will not be considered a violation of the residency requirement for candidates in national elections.

Civil Network OPORA, together with the International Foundation for Electoral Systems (IFES), also stated in the Roadmap of Electoral Reform in Ukraine 2023 (in wartime) that staying abroad due to martial law should not be a reason for depriving persons of passive suffrage.

At the same time, according to the Main Research and Expert Department, since the legal regime of martial law has been on for the third year now, and the term of its expiration is unknown, the non-application of the residency requirement during this period is debatable, as well as questionable from the point of view of its constitutionality.

Although it is impossible to predict the duration of the war, it should be borne in mind that its consequences, such as the destruction of civilian infrastructure, in particular energy infrastructure, can only intensify migration. Thus, the Civil Network OPORA, in cooperation with the International Center for Ukrainian Victory and the telecommunications company Vodafone Ukraine, conducted a large-scale survey of the movement of Ukrainians in October 2022 — January 2023. It traces the connection between russian shelling and the departure of the population out of the country, and the estimates confirm that the strategic goal of russian actions is to depopulate Ukraine. 

Representatives of parliamentary factions and groups, in the format of the Jean Monnet Dialogues, in November 2023 reached an understanding that the elections should be held no earlier than 6 months after the end of the war and the lifting of the martial law. In this case, the requirement to stay in the country for a certain number of days will be applicable to citizens in the election year, and this may encourage Ukrainians to return to Ukraine. Thus, the extension of the residency requirement for the period of martial law will hinder the repatriation policy and may contribute to the efforts of the aggressor state to depopulate Ukraine.

As for the constitutionality of exceptions to the residency requirement, despite the fact that only the Constitutional Court of Ukraine is authorized to make a final decision on this issue, there is still a presumption of the constitutionality of laws and their provisions in our state (they are considered consistent with the Fundamental Law until the Constitutional Court of Ukraine decides otherwise). Since the Constitution establishes only a general framework of restrictions in the form of a residency requirement (duration of residence in Ukraine), the concept of “residency in Ukraine” is defined on the legislative level (a person is considered to be residing in Ukraine, in accordance with Part 1 of this Article, if their one-time travel abroad in private affairs did not exceed 90 days, and the period of stay outside Ukraine each year before the voting day in the relevant elections did not exceed 183 days) and the exceptions to this rule set out in the Electoral Code of Ukraine (in accordance with its Part 4 of Art. 75 and Part 4 of Art. 134, is not a violation of the requirement to reside in Ukraine, the departure of a person abroad on a business trip, to study, on vacation, or for treatment on the recommendation of the relevant medical institution). At the same time, in our opinion, the provision of the opportunity to go on vacation or study is not more reasonable and constitutional than the forced relocation abroad caused by the war.

Thus, if we allow for the possibility of legislative detailing of the provisions of the Fundamental Law in terms of the residency requirement, then the Parliament has the discretion to establish additional exceptions to those that are currently included in the electoral legislation. However, only the Constitutional Court of Ukraine will be able to mark a decisive end when checking the relevant provisions for constitutionality or interpretation of the provisions of the Fundamental Law.

And yet, we support the concerns of the Main Research and Expert Department about the risks of exclusion from the residency requirement of citizens who have been for a long time in a state that was recognized by the Verkhovna Rada of Ukraine as an aggressor or occupying state, and countries that contributed to such aggression/occupation.

Conclusions

Analysis of the draft laws allows us to conclude that the proposed changes are generally a positive step towards ensuring gender-balanced representation and combating discrimination in the electoral process. At the same time, it should be stated that the main draft law covers a wider range of gender aspects that need to be addressed in the electoral legislation. That is why we believe that it is the main draft law that needs to be recommended for consideration in the first reading, and some of its debatable provisions may be finalized before the second reading.