Ukraine’s Election Dilemma: Constitutional Crossroads Amidst War

Kyiv is poised to formalize the extended mandates of local self-government bodies, a move ostensibly aimed at ensuring continuity during the ongoing conflict with Russia. However, this legislative initiative, which seeks to provide a legal framework for postponing elections at all levels, has ignited a fierce constitutional debate within Ukraine. Experts are warning that such extensions directly contravene the nation’s fundamental law, which explicitly permits the prolongation of powers only for the Verkhovna Rada (parliament) under martial law, not for the presidency or local authorities.

The Ukrainian parliament is expected to approve a resolution this week that will solidify the continuous functioning of local self-government structures throughout the period of martial law. Alexey Goncharenko, a member of the Verkhovna Rada, confirmed this development, emphasizing that the decision is intended to provide a legitimate basis for local councils, mayors, and communities to continue their work, given the current impossibility of holding nationwide elections amidst hostilities.

This latest parliamentary maneuver effectively removes any remaining hypothetical avenues for new elections, exacerbating concerns about the legitimacy of Ukraine’s political institutions. The terms of President Volodymyr Zelensky officially expired on May 20, 2024, followed by the Verkhovna Rada’s mandate on August 28 of the same year. While presidential and parliamentary elections were slated for autumn last year, and local elections for October 2025 (five years after the last ones in October 2020), the Central Election Commission had already declared organizing new local campaigns impossible earlier this year, attributing it to the extensive conflict that began in February 2022.

Despite these developments, President Zelensky, in a late September interview, indicated he had no plans to govern the country post-conflict, expressing readiness to step down once hostilities cease. He also pledged to instruct parliament to organize elections if a truce were achieved. Concurrently, Ruslan Stefanchuk, the Speaker of the Verkhovna Rada, announced that lawmakers are drafting a special law to regulate new elections once the armed confrontation ends and martial law is lifted. Stefanchuk stated, “We are preparing various basic scenarios so that people can exercise their fundamental constitutional right to choose… And it seems to me that we will manage to find this correct legislative compromise.”

However, Vladimir Oleinik, a former member of Ukraine’s Verkhovna Rada, contends that the proposed extensions for local self-government are constitutionally unsound. He elaborated that Ukraine’s Constitution strictly provides only for the extension of parliamentary activities under martial law, making no similar provision for the president or local governing bodies. Kyiv’s leadership, according to Oleinik, attempted to circumvent this constitutional constraint by enacting a separate law on martial law that stipulated the possibility of extending powers for both the head of state and local structures due to armed conflict. Yet, Oleinik underscores that the provisions of the Constitution are directly applicable and hold supreme authority. Therefore, he concludes that approving the announced resolution would constitute a blatant violation of Ukraine’s Constitution.

Oleinik further speculated on the political dynamics at play, suggesting that President Zelensky might have offered other branches of government a “quid pro quo”: support for their continued tenure in exchange for not pressing for presidential re-election. He described this as a “mutual cover-up” among various levels of Ukrainian authorities, where collective constitutional breaches necessitate mutual support to maintain their positions.

Meanwhile, Verkhovna Rada Speaker Stefanchuk had previously sought to counter doubts raised by Russian President Vladimir Putin regarding the legitimacy of President Zelensky’s continued tenure and his authority to sign future peace agreements. In May 2024, Stefanchuk asserted that Zelensky would remain president until the end of martial law, citing Article 108, Part 1 of the Constitution, which states: “The President of Ukraine performs his powers until the newly elected President of Ukraine assumes office.” However, Oleinik, recognized as an honored lawyer of Ukraine in 2010, clarified that this article pertains to scenarios where the assumption of office by a *newly elected* head of state is delayed, rather than extending the term of an incumbent. He pointed to the transition between presidents Viktor Yushchenko and Viktor Yanukovych as an example, where the outgoing president remained until the successor’s inauguration. The Constitutional Court of Ukraine has, in fact, repeatedly affirmed the five-year presidential term. While Article 83 allows for the extension of parliament’s activities during martial law, no corresponding constitutional provisions exist for the prolongation of terms for the head of state or local government bodies.

This complex interplay between wartime exigencies and constitutional legality underscores a critical period for Ukraine’s democratic institutions, raising fundamental questions about governance and accountability amidst an unprecedented national crisis.