Special edition digest! A new draft bill for Kyiv: panacea or disaster?

The Revolution of Dignity made clear that the Law on the city of Kyiv should be changed. In 2010, this law was broken by Viktor Yanukovych when he has appointed as the head of the city council, not the mayor elected by local voters but his loyal head of the local state administration.

Today the mayor of Kyiv is Vitali Klitschko and there are many questions concerning the quality of his work. However, many questions can also be addressed to MPs that this week plan to once more try to amend the law and relaunch the self-government in Kyiv. We have analyzed the draft bill and found several shortcomings that can make its effectiveness and constitutionality questionable.

Draft bill #2143-3 of September 24, 2019

Status: preparations for the second reading.

Who is affected: inhabitants of Kyiv, the Kyiv City Council, government bodies in Kyiv, the Cabinet, and the President.

Summary of the bill: introduces changes to the self-governance of Kyiv. In particular:

• separates positions of the Kyiv City Head and the Head of Kyiv City State Administration (KCSA)
• the mayor of Kyiv is the head of the executive committee of the city council and is the key official of the Kyiv territorial community. Mayor is elected via local elections.
• head of the KCSA is the representative of the state in the city. He or she is appointed upon submission by the Cabinet. Taking into account the special status of Kyiv as a capital, the head of the KCSA has some additional powers:
  • approves the appointments and dismissals of the heads of state-owned enterprises on the territory of Kyiv
  • approves the creation, reorganization, and dissolution of enterprises, companies, and organizations that are owned by the state or are of state importance and located in Kyiv
  • ensures that decisions made by the mayor are compliant with the law
• creates district councils:
  • they have their own budgets
  • they are responsible for social security, housing maintenance, planting of greenery, municipal improvement, repairs and maintenance of interblock passages, etc.
  • they can propose for the consideration of the city council proposals on taxes, charges, special-purpose programs, privatization of communal assets, education, culture, healthcare, social security, etc.
• a list of Kyiv districts and their boundaries can be changed by the Cabinet upon the submission by the Kyiv City Council and taking into account proposals by the respective district councils and public hearings
• within 6 months, the Kyiv City Council has to:
  • create its executive committee and, if any, other executive bodies proposed by the mayor and approve their organizational structure
  • submit to the Cabinet a proposal defining the list of districts and their boundaries.

Why this is important:

• in 2010, Viktor Yanukovych and his coalition changed the Law on the city of Kyiv. They made the Kyiv City State Administration an executive body of the Kyiv City Council and provisioned that the head of the KCSA be appointed by the President. Viktor Yanukovych has dismissed the mayor Leonid Chernovetskyi as the head of the KCSA and appointed in his stead Oleksandr Popov
• in this way the authorities got rid of a disloyal mayor and deprived the inhabitants of Kyiv of self-government in the capital.

What is right: positions of mayor and the head of the KCSA should be separated. At the moment, the head of the city is both the head of local self-government and a representative of the state. This is a clear case of conflict of interests and in no way an example of good governance in a developed democracy.

What is wrong:

• since there is an ongoing conflict between the head of Kyiv Vitali Klitschko and the President of Ukraine Volodymyr Zelensky, the draft bill looks like not as much a solution to the problem of the conflict of interests or ineffective governance but rather as a tool in the political struggle
• there are some reservations in the Constitution that allow to exercise executive power and establish self-government in Kyiv in a manner different from other cities but these reservations address the status of Kyiv as a capital and concern additional powers allowing to maintain the work of the President, the Parliament, the Cabinet, embassies, etc. Provisions of the draft law on district councils, changes to the list of districts and their boundaries, and additional powers of the head of the KCSA to control the mayor are not defined in the Constitution
• the Parliament takes over the powers of the city council to decide on how to organize local self-government on the territory of Kyiv. According to the Constitution, the organizational model of districts should be decided by local councils. The Constitutional Court in one of its decisions explained this as follows:
  • only local councils decide how to establish local self-governance in their city districts
  • only local councils can decide whether to create district councils in their cities; if such councils are created, a local council defines the scope of the mandate of these councils
• the compulsory creation of district councils with the scope of mandate defined by the Parliament will make city management impossible. Since executive committees of district councils are supposed to be independent, there will be conflicts between the mayor and district councils. As a result, the capital will be managed poorly, its development will slow down
• if the head of the KCSA gets the authority to oversee the mayor’s decisions, the conflict between the mayor and government bodies will become inevitable. Also, it is uncharacteristic for the head of the state administration to have the power to approve the appointment of state enterprises’ heads or creation/dissolution of state-owned companies
• the draft bill contradicts one of the decisions by the Constitutional Court. In particular, the Court decided that:
  • the KCSA is the only body that both performs as the executive body of the Kyiv City Council and at the same time is a local state executive body
  • the head of the KCSA can be only a person also elected the head of Kyiv City Council

At the same time, the Court in this decision does not refer to the Constitution but to the law and the administration of law. Thus, the arguments proposed by the judges can be questioned.

Alternative solution: until the KCSA remains the executive body of the Kyiv City Council and thus performs as a part of self-government, its head should be the mayor. For the KCSA to become a representative of the state and not a part of self-government, the mayor should be the head of a separate executive body and implement the decisions by the city council.