Is it necessary to amend the Constitution to complete decentralisation? Why has not it been done yet? What are the changes proposed by the Government? When can changes be accepted and when will they start working? We tried to find out.
The Government insisted on the amendments to the Constitution in terms of decentralisation in 2014, when it adopted the Concept of reforming local self-government and territorial organisation of power in Ukraine.
The draft amendments to the Constitution were developed as planned by the end of 2014. Experts, specialists, scientists were involved in the drafting of the bill. It was made public and discussed at all levels. The proposed changes were also highly appreciated by the Venice Commission. In 2015, the President of Ukraine submitted this draft amendments to the Parliament. But in August 2015, due to the fact that the bill introduced politically sensitive provisions on the peculiarities of local self-government in some rayons of the Donetsk and Luhansk Oblasts, the voting ended with tragic events near the Verkhovna Rada. The Parliament has pre-approved the bill and no longer returned to its consideration...
But the reform of local self-government and territorial organisation of power – decentralisation – has not ended. The changes continued within the current Constitution…
All these years, the Government has been continuously reminding that the Constitution would have to be amended in terms of decentralisation, if the President and Parliament are not only declaring, but indeed planning to bring the reform to a logical end. According to the government officials and most experts, it is possible to continue decentralisation within the current Constitution, but not to complete it. Rayon and oblast councils under the current Constitution should continue to delegate their powers to rayon and oblast administrations that resolve local issues, use local budget money, and control themselves. This is illogical and wrong in a decentralised governance system.
When it became apparent that Parliament of the 8th convocation was not going to return to the 2015 bill and the President was not planning to introduce a new one, the Government in early 2019 (already more to the new Parliament) proposed its own revision of the Constitution in the part of decentralisation that did not contain contradictory provisions, since the issues crucial for the reform remained there.
Experts, local self-government representatives and their associations were involved in the preparation and support of these proposals. And the party planning to form a new parliamentary majority has already stated the need for amendments to the Constitution, creation of a prefect institute, etc.
This Verkhovna Rada may, in the first year of its work, enter in history, as the one that has enshrined the decentralisation course in the Constitution.
What do changes imply?
Major changes affect the oblast and rayon levels. It is envisaged that oblast and rayon councils will no longer delegate their powers to oblast and rayon state administrations, but will create their own executive committees.
According to the draft law, there will be no oblast and rayon state administrations. Instead, the prefect will represent the state in the rayons and oblast. Their main function is to ensure that local governments comply with the laws and the Constitution of Ukraine, and to respond quickly to violations. In addition, prefects will ensure the implementation of state programmes on the ground, as well as coordinate the activities of territorial bodies of central executive authorities and oversee their compliance with the Constitution and laws.
The 2019 draft stipulates that the prefect appoints and dismisses the Cabinet of Ministers of Ukraine, not the President at the request of the Government, as was the case in the 2015 draft law.
The changes offer constant prefect rotation to prevent them from accumulating profitable contacts: in one rayon or oblast, the prefect will work for a maximum of three years.
It is also important that the amendments to the Constitution will allow the concept of "hromada" to be enshrined in the Ukrainian legislation.
The bill also enshrines the principles of ubiquity, which in effect mean the need to transfer land to local governments throughout their territory, i.e. including outside settlements.
What will happen after changes and when
If the Verkhovna Rada starts considering the Constitutional amendments this autumn, theoretically, within a year – in the autumn of 2020, it will be able to reach the final vote.
But it is important that once the constitutional amendments on decentralisation are adopted, nothing will happen immediately. That is, the amendments will enshrine the philosophy of decentralisation in the Constitution, but will not implement it automatically.
There will be a transition period that will last several years. In order for the changes to work, it will be necessary to align the legislation with the new rules of the Basic Law.
Prefects will not appear immediately as well, as it will take some time to find and train specialists and create the legislative framework for their activities.
Therefore, adopting amendments to the Constitution does not mean immediate changes in the governance system.
It is believed that now, in time of war, political instability or immaturity, uncohesive society, these constitutional changes are unnecessary and even dangerous. It may be so, but, as noted, the changes will not happen quickly and automatically after the voting in Parliament – it will take several years to form a new system. But if we delay the adoption of the constitutional changes, the country will continue to waste time getting stuck in an unreformed system of territorial governance, and decentralisation opponents will continue to spread horror stories about the possibility of the reform abolishment...
The article was prepared within the framework of the Project of the Ukrainian Association of Rayon and Oblast Councils “Modeling of the Administrative and Territorial System at the Subregional Level”, implemented with the support of the Council of Europe Programme “Decentralisation and Local Government Reform in Ukraine”.
The full version is available in Ukrainian – please click HERE
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