From Amalgamation of Local Communities to a New Governance System in Post-Euromaidan Ukraine
Ukraine’s decentralisation reforms are changing the organisational structure of the country. What about its Constitution?
During the last three years, the primary topic of debate around Ukraine’s decentralisation reforms has been how fast and successful hitherto small local communities (sing.: hromada, plur.: hromady) have been amalgamating into larger so-called “unified territorial communities” (ob’’ednanni terytorial’ni hromady). The logic underlying Ukraine’s effort to consolidate hromady into larger entities is that – with an average population of ca. 1,500 people — many of the old communities were or still are too minor to organise, finance or deliver basic public services to their citizens. While small may be beautiful, tiny makes it impossible for local governments to effectively build roads or run schools, ultimately making decentralisation and self-government meaningless.
Beginning in 2015, the government of Ukraine has allowed the local hromady to voluntarily unite and form themselves into larger amalgamated territorial communities (ATCs). The government has encouraged this voluntary process by providing ATCs with significant shares of national taxes, and by making them eligible to receive state transfers for social sector functions, most importantly the running of schools. The national government has also stimulated amalgamation by providing ATCs with significant new investment grants and by giving them access to the State Regional Development Fund (SRDF).
By March 2018, this had resulted in the amalgamation of 3,372 smaller communities into 725 larger ATCs. Today, approximately 6.3 million individuals – 14.9 per cent of the population – live in the new ATCs. They have been given substantial new revenues as well as greater control over local land use planning and permitting, local fees and charges, and the running of local schools. For the first time, local communities have the legal authority and, more and more, also the human capital to design, build, run and own larger infrastructural projects, and to receive SRDF grants to help financing them.
The ATCs have started to also actively use the new legal possibilities for inter-communal cooperation that were introduced as part of the decentralisation drive. These agreements allow the delegation of particular tasks and respective resources from one community to another; consolidating resources to implement common projects; jointly financing common infrastructure and creating common executive bodies for realizing common tasks. As of today, 487 communities have concluded such cooperation agreements between each other in such areas as education, health care, fire protection, and others.
But as promising as the spontaneous formation of ATCs has been, the voluntary nature of the amalgamation process has also its problems. The voluntariness of the hromady’s unification has slowed the process of decentralizing real control over basic public services to communities large enough to provide these services by themselves. As a result, in areas where hromady have not yet amalgamated, they remain under the administrative and financial tutelage of the rayons (sub-regional administrative districts) and oblasts whose executive bodies are not democratically elected.
The ongoing unification of hromady has so far also been accompanied by a peculiar “legal invisibility” of the new ATCs. As the national parliament has so far not passed legislation mandating obligatory creation of ATCs, the central authorities have also not yet defined the exact role of the new communities in the country’s overall system of governance. Older legislation concerning local self-government still does no mention ATCs. Although an Association of Amalgamated Territorial Communities, with its own Facebook page, was created in November 2016, the exact place, prerogatives and role of this association as well as other collective representation organs of the ATCs in Ukraine’s system of intergovernmental relations remain so far unclear. The continued absence a new legal regime based on the idea that one day there will be ATCs everywhere has made it impossible to determine what exact role the old rayons (sub-regional governmental districts) should have once most of their functions have been transferred to the ATCs. This lack of clarity about the future structure of Ukraine’s territorial administration has complicated efforts to reform the education system and restructure the country’s health care system.
While not yet complete and suffering from various challenges, Ukraine is moving forward relatively quickly with its decentralisation. Unlike other supposed reforms since the Euromaidan revolution, decentralisation has already produced some real structural changes in the way Ukraine is governed and has led to substantial changes in people’s daily lives during the last four years. That said there remain fundamental problems with the reform. Most importantly, a clear vision of Ukraine’s system of public administration – including the exact division of powers across all levels and sectors of government — has yet to be reflected in the text of Ukraine’s Constitution and national law. Parliament has failed to adopt a variety of constitutional amendments related to decentralisation, because the government has been unable to muster the super majority necessary for their passage. Sometimes, the government has been unable to muster even the simple majorities needed to pass certain ordinary laws on local self-government.
The major reason for the failure to change the Constitution is that the amendments related to local governance reform and a change of the administrative-territorial order of Ukraine were, in summer 2015, currently bundled together, in accordance with the Minsk Agreements between Russia and Ukraine, with a new constitutional clause about the special status of the eastern Donbas areas currently not under Kyiv’s control. To be sure, this brief clause only makes scant reference to certain peculiarities of governance in the temporarily occupied territories and does not by itself enshrine a special status for these areas. Nevertheless, even this cautious formulation led to violent protests in front of Ukraine’s parliament in August 2015 when five soldiers of the Ukrainian National Guard were killed during street clashes related to this attempted constitutional reform.
It is worrisome that Ukraine’s Constitution does not yet reflect the new state of real affairs being created by the amalgamation of communities, their cooperation agreements, the new territorial-administrative order, the new revenue sources of communities’, the changed delimitation of authority between local self-government and state administrations, as well as some other decentralisation-related novelties in Ukrainian political and social life. So far, the Constitution fails to follow the current systemic changes in the organisation of domestic power in Ukraine.