The Ukranian regime that came into existence after President Yanukovich was removed from power on 22 February 2014 is illegitimate.

It is illegitimate because the Ukrainian parliament, the Verkhovna Rada, did not follow the procedure to impeach and remove a president from power set out in the Ukrainian constitution.

Impeachment procedure

Article 108 of the constitution specifies four circumstances in which a president may cease to exercise power before the end of his term.  Those are:

• resignation;
• inability to exercise his or her powers for reasons of health;
• removal from office by the procedure of impeachment;
• death.

The procedure for removal from office by impeachment is laid down in Article 111.  It is not unlike that required for the impeachment and removal from power of a US president, which could take months.  This makes sense, since it would be absurd to allow a parliament to remove a popularly elected president on a whim without proper consideration.

Thus, Article 111 obliges the Rada to establish a special investigatory commission to formulate charges against the president, seek evidence to justify the charges and come to conclusions about the president’s guilt for the Rada to consider.  To find the president guilty, at least two-thirds of Rada members must assent.

Prior to a final vote to remove the president from power, the procedure requires

• the Constitutional Court of Ukraine to review the case and certify that the constitutional procedure of investigation and consideration has been followed, and
• the Supreme Court of Ukraine to certify that the acts of which the President is accused are worthy of impeachment.

To remove the president from power, at least three-quarters of Rada members must assent.

The Rada didn’t follow this procedure at all.  No investigatory commission was established and the Courts were not involved.  On 22 February, the Rada simply passed a bill removing President Yanukovych from office. 

Furthermore, the bill wasn’t even supported by three-quarters of Rada members as required by Article 111 – it was supported by 328 members, when it required 338 (since the Rada has 450 members).

According to Article 94 of the constitution, laws passed by the Rada require the signature of the President to come into force, so no law passed by the Rada since 22 February has been properly enacted.

Putin on legitimacy of Kiev authorities

President Putin questioned the legitimacy of the authorities in Kiev at his press conference on 4 March:

“Are the current authorities legitimate? The Parliament is partially, but all the others are not. The current Acting President is definitely not legitimate. There is only one legitimate President, from a legal standpoint. Clearly, he has no power. However, as I have already said, and will repeat: Yanukovych is the only undoubtedly legitimate President.

“There are three ways of removing a President under Ukrainian law: one is his death, the other is when he personally steps down, and the third is impeachment. The latter is a well-deliberated constitutional norm. It has to involve the Constitutional Court, the Supreme Court and the Rada. This is a complicated and lengthy procedure. It was not carried out.  Therefore, from a legal perspective this is an undisputed fact.”

There is a fourth way – ill health – but, aside from that, Putin is undoubtedly correct.

Acting president not constitutional

The constitution was also breached when it came to the appointment of an Acting President.  Article 112 specifies that “the execution of duties of the President of Ukraine, for the period pending the elections and the assumption of office of the new President of Ukraine, is vested in the Prime Minister of Ukraine”.

On 22 February, there was no prime minister – Mykola Azarov had resigned as prime minister on 28 January 2014 (when efforts were being made by Yanukovych to bring the opposition into government) and he hadn’t been replaced.  Instead, the speaker of the Rada, Olexander Turchynov (a close ally of opposition leader and former prime minister Yulia Tymoshenko) was appointed as Acting President on 23 February.  He had become speaker the day before, upon the resignation of Volodymyr Rybak, an ally of Yanukovych, who resigned that morning because of ill health.  The BBC reported that, according to Yanukovych, Rybak “was forced to resign because he had been physically beaten”.  Whatever about that, Turchynov became speaker one day and Acting President the next, thereby securing the presidency for the opposition.

Government not representative of the east and southeast

The opposition then proceeded to set up a “government” which is not representative of the east and southeast of Ukraine.

What is more, the government contains five ministers, including the deputy prime minister, from the Svoboda (Freedom) party, led by Oleh Tyahnybok, which was described by the European Parliament as holding “racist, anti-Semitic and xenophobic views” that “go against the EU's fundamental values and principles”.  It seems to believe that Ukraine would be a better place without Russians and Jews.  According to the BBC, in 2005 its leader signed an open letter to Ukrainian leaders calling for the government to halt the "criminal activities" of "organised Jewry", which, the letter said, … ultimately wanted to commit "genocide" against the Ukrainian people (see Svoboda: The rise of Ukraine's ultra-nationalists, 26 December 2012).

21 February agreement

Despite its illegitimacy and the ultra-nationalist credentials of some of its ministers, and the fact that it is not representative of the east and south-east of Ukraine, the EU (and the US) has backed the new authorities in Kiev wholeheartedly and the “prime minister”, Arseney Yatsenyuk, has been feted in Brussels (and Washington).

It is now virtually forgotten that on 21 February, the day before the President was overthrown, the foreign ministers of France, Germany and Poland (Laurent Fabius, Frank-Walter Steinmeier and Radoslaw Sikorski) acting on behalf of EU foreign policy chief Catherine Ashton (who was in Iran) had brokered an agreement which provided for very different governing arrangements for Ukraine.  These arrangements included:

• Within 48 hours, re-introduction of 2004 constitution thereby reducing presidential powers

• Within 10 days, creation of a “national unity government”
• Constitutional reform “balancing the powers of the President, the government and parliament” to be completed in September 2014
• Presidential elections, once a new constitution is agreed
• A 3rd amnesty for participants in the recent disturbances

The implementation of these arrangements would not have involved any action in breach of the Ukranian constitution, unlike the removal from power of the President on 22 February.

This agreement was signed by President Yanukovych and three opposition leaders and supported by Russia – and it was wholeheartedly endorsed by Catherine Ashton on behalf of the EU:

“I welcome the agreement reached today by the President and the opposition leaders. This agreement opens the way for a political solution to the crisis in Ukraine. A democratic and peaceful solution is the only way forward.  The EU has been very much engaged in all the efforts that led to this important breakthrough. I particularly commend the important work on my behalf of the Foreign Ministers of France, Germany and Poland who facilitated this agreement. Implementation is now key. I call upon all signatories to respect the agreement and recall full Ukrainian ownership and responsibility for its immediate implementation.”

EU backs illegitimate regime

The opposition signatories did not honour the agreement and proceed to its immediate implementation.  Instead, the day after they signed it, they reneged on it and backed the unconstitutional overthrow of a co-signatory to the agreement, President Yanukovych, and the establishment of a “government” representative of the opposition, and not a “national unity government” provided for in the agreement.

And what did the EU do then?  It backed the new authorities, led by people who had made a deal on 21 February and reneged on it a day later.  In a press conference, on a visit to Ukraine on 25 February, Catherine Ashton never mentioned the EU brokered deal of 4 days earlier in her opening statement, a deal which 4 days earlier she had said “opens the way for a political solution to the crisis in Ukraine”.

When she was asked about the deal, she muttered that “the situation has moved on”.  Indeed it had, a President had been overthrown by unconstitutional means, which had it happened in other parts of the world the EU would most likely have condemned it.  When asked if she agreed with the Russian government that “the situation in Ukraine is illegal”, she avoided answering the question.

Putin raises interesting questions

At his press conference on 4 March, President Putin queried why the 21 February agreement hadn’t been implemented:

 “I would like to draw your attention to the fact that President Yanukovych, through the mediation of the Foreign Ministers of three European countries – Poland, Germany and France – and in the presence of my representative (this was the Russian Human Rights Commissioner Vladimir Lukin) signed an agreement with the opposition on February 21.

“I would like to stress that under that agreement (I am not saying this was good or bad, just stating the fact) Mr Yanukovych actually handed over power. He agreed to all the opposition’s demands: he agreed to early parliamentary elections, to early presidential elections, and to return to the 2004 Constitution, as demanded by the opposition. He gave a positive response to our request, the request of western countries and, first of all, of the opposition not to use force. He did not issue a single illegal order to shoot at the poor demonstrators. Moreover, he issued orders to withdraw all police forces from the capital, and they complied. He went to Kharkov to attend an event, and as soon as he left, instead of releasing the occupied administrative buildings, they immediately occupied the President’s residence and the Government building – all that instead of acting on the agreement.

“I ask myself, what was the purpose of all this? I want to understand why this was done. He had in fact given up his power already, and as I believe, as I told him, he had no chance of being re-elected. Everybody agrees on this, everyone I have been speaking to on the telephone these past few days. What was the purpose of all those illegal, unconstitutional actions, why did they have to create this chaos in the country? Armed and masked militants are still roaming the streets of Kiev. This is a question to which there is no answer. Did they wish to humiliate someone and show their power? I think these actions are absolutely foolish. The result is the absolute opposite of what they expected, because their actions have significantly destabilised the east and southeast of Ukraine.”

President Putin raises interesting questions.

David Morrison
12 March 2014