What is left of the Orange Revolution?

The long “Orange year” that began in December 2004 with the victory of the political opposition in the Ukrainian presidential elections – the first year of the Ukrainian revolution – is finally coming to an end. On 26 March 2006, Ukrainians will elect a new parliament. The results of these elections could further legitimize the reformist course of Viktor Yushchenko. Or, just the opposite, they could open the way for a revanche of “anti-Orange” forces. In an additional twist, this will be the first parliament elected in line with the constitutional reform. The reform, the result of a compromise made in order to allow the re-running of the controversial second round of the 2004 presidential elections, substantially reduces the power of the president in favour of the power of the parliament and the prime minister. The polls indicate that none of the three leading parties – Our Ukraine (Yushchenko), Party of Regions (Yanukovich), and the Yulia Timoshenko Bloc – will have a majority in the new parliament. What kind of coalition government will be formed and who will go into opposition? Like in autumn 2004, much is at stake in Ukraine. Now, however, the public mood is quite different.

“It was worth it”

The Orange Revolution did not deliver the miracle it had promised. A year and a half after the storm that was supposed to radically clean up Ukrainian politics, Ukraine is still a poor, badly managed, and divided country. Instead of facing a wealthy democratic future, Ukraine is unwelcome as a prospective EU member. The leaders of the former opposition are caught up in quarrels and corruption scandals, the new officials often lack professionalism, and the old practice of nepotism still dominates appointment policy.

Yet even the harshest critics of Viktor Yushchenko cannot refute that Ukraine has become more democratic and open, that the media are no longer controlled by the presidential administration, that the political opposition is not harassed, and that the results of the elections are indeed unpredictable. Ukrainian society seems to be the main winner: despite widespread disillusionment, it has not fallen back into apathy. Most importantly, the feeling of empowerment is still there, at least in the active part of society. Expectations have been raised and the democratic standards required by Ukrainian citizens of their leaders are meanwhile the same as those in most European countries. And although Yushchenko is often criticized by his supporters for being “weak”, there is no nostalgia for a “strong hand”, as one might expect in such an unstable situation.

The forthcoming parliamentary elections demonstrate how much Ukraine’s political landscape has changed since the 1990s. Instead of a simple opposition of the Communists and the pro-presidential bloc, there are now several competing parties representing the whole political spectrum. Unlike in 2004, all candidates have equal access to the electorate. This time the notorious “administrative resource”1 used massively in the last elections seems to be limited. Even if used at the local or regional level, it cannot be compared with the “machine politics”2 coordinated by the Kuchma administration.

These positive signs shouldn’t be overestimated however. For the time being, it is political competition rather than established democratic institutions that guarantees a degree of transparency in Ukrainian politics. But competition is not yet democracy. Furthermore, the “feeling of empowerment” alone is not enough: a one-off mass political mobilization cannot replace a developed and economically independent civil society.

Part of the price that has been paid for democracy is the deepened political divide between the east and the west of the country. The new leadership has done very little to win the sympathies of eastern Ukrainians, and the “economic miracle” which could become a unifying factor has yet to take place.

Wasted moral credits

The widespread frustration soon after the Orange Revolution was foreseeable. Partly, it was an inevitable consequence of the high expectations raised by the unprecedented victory of the people over a corrupt regime. But nobody expected that disappointment would come so quickly and be so bitter.

The roots of this disappointment are deeper than just broken promises on the economy. A sector of the Ukrainian public that has actively supported the Orange Revolution and identified with the “values of the Maidan” can forgive their leaders mistakes and a lack of professionalism, but not the split of the Orange coalition and their dubious political compromises.

The hidden tensions between the Orange allies turned into open conflict in September 2005. After an interview with the then secretary of state Oleksandr Zinchenko, in which he famously accused the “presidential environment” of corruption, the disclosure of a series of scandals led to the dismissal of the Timoshenko’s government. The split in the Orange camp and the “kompromat war”3 between the Timoshenko Bloc and Yushchenko’s Our Ukraine party, which has become permanent since the beginning of the parliamentary election campaign, has disillusioned and partly disoriented the “Orange” electorate.

A Memorandum of Understanding, signed between Yushchenko and his former competitor Viktor Yanukovych at the end of September 2005 in order to secure the appointment of the new prime minister Yury Yekhanurov, was perceived as an unnecessary and dubious compromise. The memorandum condemned “political repression of the opposition” and effectively granted amnesty to those officials of the former regime involved in the election fraud. Even more ambiguously, as a part of the compromise, a new law granted legal immunity to the officials at all levels, encouraging criminals and dishonest businessmen to enter politics.

In the eyes of its supporters, the Orange Revolution has betrayed its own promises to bring justice. None of Kuchma’s high level officials have been charged, and some 4 got Russian citizenship and escaped to Russia. Progress in the Gongadze case5 has been very slow, despite its symbolic significance for the Orange movement and its being under the personal control of the president. Although the killers have been identified and were brought to court in March 2005, those higher up who gave the order to murder the journalist will probably never be found. The mysterious case of Yushchenko’s poisoning in autumn 2004, which had an international resonance and helped him to mobilize his electorate, seems to have been forgotten, something that has given cause for speculation in Ukraine and abroad.

An important reason for the ambiguity of the results of the first year of the Orange government was the unfortunate political schedule. From day one, the shadow of the approaching parliamentary elections in March 2006 (along with the constitutional reform) has determined Ukraine’s political life. Political partners see each other as future rivals, and the government has been pushed towards populist politics. By changing the institutional arrangements of Ukrainian politics, the constitutional reform has forced politicians to adopt a short-term perspective, and has thus blocked long-term reforms.

But a more serious problem is that the programme of the Orange Revolution contained contradictory promises and principles. This is well illustrated by the recent debate between Anders �slund and Taras Kuzio in the Kyiv Post.6 Was, as �slund claims, the re-privatization campaign of the Timoshenko government merely a populist policy that has undermined investments and hindered economic growth, a breach of private property rights and a “betrayal of the revolution”? Or was it, as Kuzio argues, Timoshenko’s commitment to justice, her anti-oligarchic and anti-corruption programme, that mobilized the Orange movement? The myth of the Colour Revolutions that democracy and capitalism, justice and the free market, will come together in harmony is, unfortunately, untrue.

Business and political power

The term “corruption”, often used in the West to characterize Kuchma’s regime, is not specific enough. It lumps together a university rector who accepts bribes from his students and an oligarchy that controls state institutions and owns political parties. Profiting from cheap Russian gas and receiving privileged access to the privatization process, Ukrainian oligarchs obtained direct control over politics and obstructed democratic development. On the other hand, internal tensions and conflicts of interest between the various oligarchies prevented the Ukrainian regime from becoming fully authoritarian. “Arenas of democratic contestation”7 such as political opposition in the parliament, a partially free media, and courts, which existed in Ukraine due to the plurality of business interests, made the Orange Revolution possible.

This leads to another contradiction of the Orange Revolution. One of its promises was to separate business and politics, to establish clear guidelines that would prevent private interests from directly interfering in politics. But the oligarchs who supported the Orange Revolution financially and in their media naturally hoped to profit from the change of power and to continue to play according to the old rules.

This has meant that the “fight against corruption” declared by the Orange government has had mixed results. One of the most controversial policies of Timoshenko’s new government was its plan to re-privatize a number of companies that had been privatized under Kuchma without open competition and illegally. Furthermore, Timoshenko tried to clean up the customs control service, while the new minister of internal affairs went so far as to disband the notoriously corrupt traffic police. Some new Orange politicians and officials that were recruited from business, such as the governor of Kharkiv region Arsen Avakov, announced their departure from business.

But corruption scandals in the Orange team since September 2005 have demonstrated that the separation of business and politics is not an easy task. With the Yekhanurov government, the “Jacobinian phase” of the revolution seems have been replaced by a pragmatic approach to accept the status quo and not to scare investors. Little remains of the revolution’s populist motto “Bandits to prison!” – now the public concern is to prevent the “bandits” getting into the new parliament. A list of candidates with a criminal past was recently made public, but will it help? Rinat Akhmetov, the richest oligarch in the country, whose name is linked with the assassination of Ukrainian businessmen in the 1990s, has returned after spending half a year abroad. He now is on the Party of Regions list, and theoretically can even become a prime minister.

The new electoral law of 2004 abolishes single-mandate districts and introduces a pure proportional, or party list, system. Together with the constitutional reform, this seems to increase incentives for businesses to engage in politics. Political parties based on single individuals rather than on mass support are tempted to sell places on their lists to any who can afford it. Today, representatives of big business can be found on the lists of virtually all the political parties.

While the first Orange year has had mixed outcomes, the relationship emerging between Ukrainian business and politics resembles neither the unlimited rule of oligarchs in Yeltsin’s Russia nor Putin’s bureaucratic capitalism. Probably more than in Russia, big business in Ukraine needs an efficient state with a modern European image that is able to lobby for its interests. Hopefully Ukrainian society, too, will benefit from a new and more civilized social contract between business and state.

This relationship takes the form of growing public activity of the Ukrainian oligarchs observable over the past year. It has been not only the gas crisis, but also the increased competitiveness and re-organization of political life, that has forced oligarchs such as Viktor Pinchuk, Sergey Taruta, and Volodymyr Boyko to articulate their interests and look for a dialogue with the public. Pinchuk, the son-in-law of ex-president Kuchma, who, it is said, lost a part of his fortune as a result of the Orange Revolution, published a statement on behalf of the “national capitalists” in a Ukrainian weekly calling for rehabilitation of the “oligarchs” and declaring their will to contribute to nation- and state-building. At the World Economic Forum in Davos he also called for Ukrainian business to show solidarity and support the European aspirations of the Ukrainian political leadership.

Constitutional reform

The constitutional reform, the unwanted child of the Orange Revolution, is another source of controversy in contemporary Ukrainian politics. Constitutional amendments were accepted by Yushchenko as a condition of the political compromise which allowed the re-run the second round of the 2004 presidential elections, thus making his victory possible. However, since spring 2005 Yushchenko has repeatedly criticized the reform and threatened to hold a referendum to suspend it. Olexandr Moroz, the leader of the Socialist Party and a long-term supporter of the constitutional reform, made it a condition of his coalition with Yushchenko. Yulia Timoshenko, then prime-minister, supported Yushchenko in his criticism, but later changed her position. After the dismissal of her government and the beginning of her parliamentary election campaign, she promised her supporters that she will return to office, this time as the elected “people’s prime-minister”.

In February 2006, Yushchenko once again called for the formation of a Constitutional Commission whose purpose would be to work out a draft for a new Constitution. However he is currently unable to appeal to the Constitutional Court over the legality of the December 2004 constitutional changes because the parliament presently blocks the formation of the Court.

The constitutional reform is supposed to have transformed Ukraine into a parliamentary system. Formerly, the president appointed the prime minister, who the parliament had to approve, who then formed a cabinet. With the constitutional reform, the prime minister is chosen by a parliamentary majority. The prime minister then nominates most cabinet members, who must be approved by the parliament. The president can only nominate the defence and the foreign minister, who the parliament must approve and can dismisses.

The president, however, retains a significant authority. He is able to nominate and initiate the dismissal of the prosecutor general, the heads of the SBU (security service), the National Bank, and the Central Electoral Commission, although parliament has to confirm these nominations. More importantly, the president keeps the sole right to appoint all regional governors. He is able to dissolve the parliament in some cases, and keeps the right to initiate legislation and dismiss the cabinet.

With this constitutional reform, Ukraine departs from the system of strong presidency typical for the post-Soviet countries (with the exception of Moldova and the Baltic countries), moving closer to the European model. In the long run it could indeed be more suitable for a regionally and linguistically diverse Ukrainian society, and might reduce internal east-west tensions. As US political scientist Paul D’Anieri has noted, “a strong presidency makes every election an all-or-nothing affair in which the incentives to extremism and cheating are very powerful.”8

However, while European politicians in principle welcome this change, legal experts are more critical. Analysts from the Venice Commission are concerned about how vaguely the amendments to the constitution are written. In D’Anieri’s words, “the problem with this arrangement is that it created overlapping powers rather than establishing a system of checks and balances and a separation of powers.”9

Domestic critics of the reform point to the dangers of weakening the presidential power in the present situation, where parliament is still largely inefficient and there is only an embryonic party system. A strong presidency would better meet external challenges and pressures, as the recent gas conflict with Russia demonstrated.

In fact, the origins of the constitutional reform go back to President Leonid Kuchma and the head of his administration, Viktor Medvedchuk, who came up with the initial draft in March 2003. Critics at the time accused Kuchma of trying to weaken the presidency that he would be sure to lose anyway after the elections in October 2004. The Timoshenko Bloc and Yushchenko’s Our Ukraine party, then in opposition, were the most severe critics of the proposed amendments. The reform got the green light only as a last minute compromise during the decisive days of the Orange Revolution.

Critics of the reform say Kuchma intended it as a sort of insurance policy against the victory of the opposition, and indeed it has contributed to the instability and controversy of Ukrainian politics after the Orange Revolution.

Orange geopolitics?

The weaker Ukraine is internally, the stronger the Russian factor – this is the effect that James Sherr calls “Ukraine’s scissors”: “internal incapacity and external dependence have operated like the blades of a scissor, opening and closing in tandem.”10 The gas conflict with Russia demonstrated this effect very clearly. Not only did political fragmentation and lack of professionalism make Ukraine vulnerable to Russian pressure; external pressure provoked further political crisis, leading to the dismissal of Yekhanurov’s government by the parliament and strengthening the pro-Russian opposition. With the approaching parliamentary elections, any criticism of the gas agreements was instumentalized in the political fight. Timoshenko’s radical rejection of the gas deal with Russia further undermined the possibility of a renewed Orange coalition after the elections.

Overall, the ambiguous gas deal with Russia is detrimental to Ukraine. The modest achievements trumpeted by the Yushchenko administration (gas supply was guaranteed during the middle of the winter season; Ukraine kept control over its pipeline system) cannot outbalance the negative long term effects of the agreement: the price of gas is instable, the price agreed for transit is too low and unprofitable for Ukraine, and the obscure RosUkrEnergo becomes a monopolist on the Ukrainian market. The Ukrainian government played a minimal role in the negotiations: the decisions on crucial energy issues were non-transparent, unprofessional, and probably to the benefit of corrupt officials.

Moscow has recovered fairly quickly from the geopolitical defeat dealt by Yushchenko’s victory in 2004. One year ago it still looked like as if a wave of colour revolutions were threatening Russian influence in the post-Soviet space, and even the very stability of Putin’s regime. Today the Kremlin’s attitude is far from the hysterical support of Yanukovich at any price in 2004. In view of the growing frustration, corruption scandals, and economic decline in Ukraine, Moscow can afford to sit and wait for the “moment of truth” for the Orange forces.

The internal weakness has prevented the new Ukrainian leadership from living up to its initial ambition to become a democratic leader in the post-Soviet space. Ukraine and Georgia launched the Community of Democratic Choice (CDC) initiative with the aim to make the region of the “three seas” – Baltic, Black, and Caspian – an “area of democracy, stability, and security”. Meant as an alternative to the Russian-dominated Commonwealth of Independent States (CIS), the CDC initiative was supported by Washington and irritated Moscow. But like the earlier GU(U)AM initiative, the CDC has a mainly declarative character and lacks mechanisms of practical cooperation. In relation to the conflict issues in the post-Soviet space – above all Alexander Lukashenko’s regime in Belarus and the Transnistrian conflict in Moldova – Ukraine tends to back the EU and US approach. However, Ukrainian policy in this respect is not sufficiently coherent and consequent.

With Belarus, the Ukrainian official position in relation to Lukashenko’s regime has been contradictory: just a few months after Yekhanurov’s visit to Minsk followed by common declarations of friendship and cooperation, Ukraine joined European voices in harshly criticizing the Belarusian presidential election campaign. In March 2006, Kiev’s official reaction was sharp when several Ukrainian citizens taking part in demonstrations in Minsk were arrested and Ukrainian journalists harassed by the Belarusian authorities.

With Transnistria, Ukraine has repeatedly declared its will to cooperate with the EU in settling the conflict. In April 2005, on a visit to Moldovan capital Chisinau, Yushchenko suggested a peace plan backed by the EU. It features free elections in Transnistria under international supervision and an increase of the number of Ukrainian peacekeepers in the conflict zone. However free elections are not easy to organize in the absence of independent political parties and civil society. Moscow is also sceptical about Ukrainian efforts in Transnistria and sees Kiev as an agent of Western influence.

More specifically, the relatively open Ukrainian border with Transnistria, a site of smuggling and arms trafficking, is of major concern both to the EU and the US. For Transnistria, the open transit route via Ukrainian territory is a question of economic survival, since Transnistrian businesses are required to pay Moldovan taxes. In summer 2005, Ukrainian media speculated that Petro Poroshenko, then Secretary of the National Security and Defence Council, and one of Yushchenko’s closest allies, was likely to benefit from illegal trade. What ever the truth, on 5 March 2006 Ukraine changed its custom regulations so that goods coming to Ukraine from Transnistria may be cleared only if their clearance is certified by the Moldovan Customs Service. This decision, evidently motivated by the EU, was called by Tiraspol an “economic blockade” and denounced by Moscow as pressure on Transnistrian authorities. How long these new regulations will hold after Ukrainian parliamentary elections is still a question.

Most importantly, the first year of the Orange government has failed to bring decisive progress in the EU-Ukrainian relations, as the leadership hoped. 2005 was difficult for the European Union, and one can understand that Brussels did not want to complicate the situation further by making additional commitments. Ukraine signed, without enthusiasm, the EU Action Plan in the framework of the New Neighbourhood Programme. The Action Plan is intended to develop forms of cooperation between the EU and Ukraine not connected to prospective membership; in fact, it postpones Ukraine’s official membership application for three years. Although the Orange Revolution and the gas conflict in January 2006 have led the EU to recognize the need to develop a separate policy towards Ukraine, one not overshadowed by relations with Russia, no practical steps have yet been taken. Paradoxically, while Ukraine is interested in a democratic, pro-European Russia as its neighbour, only authoritarian tendencies in Russia and frustration with Kremlin policy can push Europe to appreciate the democratic achievements of Ukraine.

Uncertainty about EU membership together with a deterioration of relations with Russia forces Ukraine’s leaders to campaign for Nato membership more actively. Here, there are better perspectives, although a lack of consensus in Ukrainian society on Nato membership makes it a volatile issue, one that can divide the country along the east-west axis. Yushchenko recently agreed that a national referendum on the question of Nato membership is necessary, an idea initially put forward by leftwing parties and the pro-Russian opposition.

Despite the Bush administration’s growing problems at home and abroad, the US remains the most ardent supporter of the Orange Revolution. Of course, its motivation is more than simply support for democracy: geopolitical ambitions are the determining factor. The US government demonstrated its commitment to the Orange Revolution by finalizing the WTO-related agreement on market access in March 2006, moving Ukraine forward on the path to joining the WTO. On March 8, the US House of Representatives finally lifted the Jackson-Vanik trade restrictions on Ukraine, granting Ukraine normal trade relations status with the US. As regards the internal situation in Ukraine, the US factor is double-edged: while counterbalancing Russian dominance, it fuels internal tensions and divisions inside the Ukrainian society.

A myth without heroes

Despite the Orange coalition’s painful split, corruption scandals and mass frustration, the myth of the Orange Revolution lives on. However its popular version differs from the official one, which is cultivated and exploited by the new political elite. The popular myth is that of the “Maidan”, the utopian space where the ideal Ukrainian nation was born and where, in a brief moment of solidarity, regional, linguistic, and class differences were overcome. “Maidan” is the site of an unforgettable existential experience of freedom and empowerment, where everybody was able to feel a citizen of Ukraine – an experience Ukrainians had until then lacked.

Rather than making “heroes” of the leaders of revolution, this myth refers to the Ukrainian archetype of the “Hetman elections”. The Hetman is accountable to those who elected him, and has more power than that delegated by a general assembly. What’s more, he can be re-elected. During the last year, Ukrainian society often appeared more mature and responsible than its political elites. It desperately needs new leaders – patriotic, open-minded and professional, who are able to overcome party conflicts. For the time being, however, it is another cultural archetype, also deeply rooted Ukrainian history, that has become the point of reference: the “treason of the elites”.