Local self-government in Ukraine:
strategic priorities and problems of realization
Olena Babinova /Ukraine/
National Academy of Public Administration,
office of the President of Ukraine
This research was supported by Central European University Special and Extension Programs. The opinions expressed herein are the author’s own and do not necessarily express the views of ÑEU.
This article is dedicated to the issues of current state and some problems in Ukraine in the direction of development and reinforcement the system of local self-government as a display and the most important element of local democracy. In the context of reformation which now takes place in Ukraine this topic and relevant problems are very topical as an example of formation of local democracy on post-soviet space. A lot of these countries have the same problems as Ukraine. In this article are not only defined the main problems on the way of effective system of local self-government, but also the main possible ways of their solutions.
The main principles of local self-government and key factors of local democracy
Local self-government is a really democratic and very effective form of territorial development. Possibilities for local population independently solve local issues, in the limits of national legislation and policy is a basis for territorial prosperity and wellbeing.
Real and effective local self-government, local autonomy is an indicator of state of local democracy in any country. Recognition by a country of the principles of local self-government doesn’t automatically result in prosperity of communities, improvement of the process of service delivery and etc. It is requires the concrete and precise legislation with clearly defined possibilities, rights, responsibilities and mechanisms of control as well as political will and valuable support by the state.
The fall of Berlin wall in 1989 was the beginning of a new epoch in development of an open society. G. Soros (1994) defines an open society as “not only a democratically elected government but also a society that is not dominated by state; that means a strong civil society and the rule of law”.
Democracy is a main basis for development of society, for effective activity of government and real citizens’ participation in it. Democracy, in theoretical aspect, has some principles, elements and criteria. The main important components of it are freedom of speech, wide public participation in the process of decision-making, widespread network and free activity of non-governmental organizations, real and effective functioning of the system of local and regional self-government. Existence and effective functioning of these elements is an indicator of real state with democracy in the country.
Ilya Prizel in his article “Ukraine between proto-democracy and “soft” authoritarianism” (1997) is giving the following elements of democracy: civil liberties (freedom of speech, freedom of assembly, and so forth); an independent judicial system; public officials held accountable to the law; a vital, free press; and a political system which seeks legitimacy from the public via free, competitive elections.
James S. Fishkin (1991) has defined 3 main conditions for effective democracy. They are, by author’s opinion: political equality, nontyranny, and deliberation.
Robert A. Dahl (1989) in his “Democracy and its Critics” has proposed to divide the democracy on 3 types. All these types have their own elements and components. By author, 3 types of Democracy: Madisonian Democracy, Populistic Democracy, and Polyarchal Democracy. Scientist noted that “Democracy, it is frequently said, rests compromise. But democratic theory itself is full of compromises – compromises of clashing and antagonistic principles….
Local democracy is also very important for development of open society. Cooperation and partnership between local authorities and public is the main way to real democracy.
Procedural and institutional determinants of local democracy are successfully defined by Elena Gadjanova (2006). By author’s opinion, the institutional determinants of local democracy include the legal frameworks for the functioning of local government, electoral system and political formations at the local level, the local government institutions, as well as civil society and the media. And the procedural determinants of local democracy relate to the administrative capacity for ensuring the inclusiveness and fairness of elections held, degree of openness of local authorities, provisions for minority rights implementation and their effectiveness, as well as ability of citizens to influence local decision-making through various channels.
So, democracy is a basis for development of open society – society in which citizens have the real power to influence on the process of administration in the country, on the process of decision-making; in which governmental bodies are responsible and responsive to citizens’ needs; where the system of public control is effectively functioning.
The key factors of democracyare the active civil society, readiness of citizens to take active part in the process of decision-making in their countries; wide public participation in the process of decision-making (variety of forms of it, legal possibilities, etc.); free, honest, transparent elections; independent mass media; developed and strong system of local self-government, legal, fiscal, organizational autonomy of it, etc.
The main important form of local democracy and its display is a local self-government. Local self-government is one of the most important elements of a democratic system in any country. The development of a country depends from the development of communities and only democratic power on local level can give to citizens the quality of services and quality of life.
In the European Charter of local self-government (ECLSG) defined (1985) that “The safeguarding and reinforcement of local self-government in the different European countries is an important contribution to the construction of a Europe based on the principles of democracy…” /Preamble/.
As has noted Gerry Stoker (1991):
More generally the establishment of viable local government in Eastern Europe is seen as central to the establishment and maintenance of a democratic process. It is also seen as an appropriate level for effective government intervention to meet welfare needs and stimulate economic efficiency.
Local self-government is understood as guaranteed by the state the right of territorial communities to take the decision on local matters autonomously and under their own responsibility within the framework of national legislation.
Alan Norton (1991) has defined 2 main doctrines of local government: doctrine of general competence and doctrine of subsidiarity. He has noted that the doctrine of general competence – the principle that local authorities have a general power of jurisdiction over the affairs of their areas and inhabitants subject to the law – is the norm in continental Europe. The doctrine of subsidiarity provides a justification for the special position of local government. This lies down that the responsibility for carrying out tasks should be held at the lowest level of government competent to undertake them and that where necessary higher authorities should give support to enable them to fulfill the responsibilities that are appropriately theirs under this doctrine.
In the European Charter of Local Self-Government (1985) are formulated the basic principles of local self-government. They are the principle of legal, organizational and financial autonomy of local self-governmental authorities.
Legal autonomy of a local self-governmental bodies means that this authority has its own power which are specified by the Constitution and the law of the respective state.
Organizational autonomy means that the local self-governmental bodies can be free of determine their own structure in such way that would be fully correspond to local requirements and provide effective administration.
Financial autonomy of local self-government means the right of local self-government’s bodies to possess and administer their own financial resources. These resources should be enough sufficient for the authority for execution of its functions and responsibilities.
The state of execution of these principles, their functioning in the system of local self-government in any country is the main indicator of the state of local democracy and state and development of local self-government.
Current state and problems in Ukraine with realization of the main principles of local self-government in accordance with ECLSG
Ukraine has a lot of positive aspects in realization of local self-government in the country. The bodies of local self-government are effectively cooperating with local population. Such from as public hearings is defined in national legislation as obligation for local authorities. However, there are some significant problems with real self-administration of the citizens and real autonomy of local self-governmental bodies. We will consider it here, because their solution is very important for further development of local self-government in the country as display and main element of local democracy.
In Ukraine the right of territorial communities independently solve local issues is guaranteed by its Basic Law – Constitution of Ukraine. This right is determined and recognized as local self-government (art. 140).
Principle of independence and autonomy of territorial communities, which proclaimed in Constitution in practice, unfortunately, not always realized. The mechanisms of achievement of independence and autonomy of local self-governmental bodies, particularly in the process of decision-making are not precisely defined. And the definition “issues of local significance” (art. 140 of the Constitution) needs in more precise amplification. In Constitution of Ukraine they are not determined concretely.
Constitution of Ukraine has recognized organizational, financial, legal autonomy of local self-governmental bodies, in accordance with European Charter of local self-government, but in the real life these principles are not always finds their practical implementation. The basic laws which regulate the realization of local self-government in the country, are the Laws of Ukraine “On local self-government in Ukraine” (21.05.1997), “On the bodies of self-organization of citizens” (11.07.2001) and “On Local State Administrations” (09.04.1999). The law of Ukraine “On local self-government in Ukraine” (1997) determines basic principles of activity of local self-government bodies but, at the same time, does not determine the ways of achievement and providing of real independence of territorial communities. The article 4 of the above-mentioned law determines basic principles of local self-government among which legal, organizational and financial independence of it. At the same time, this law does not determine the concrete scopes and forms of independence, mechanisms and instruments of its realization and providing.
In Ukraine there is some legislative basis for independence of local authorities in relation to budgetary policy - they can make decision about setting local taxes and fees, but their common amount in Ukraine just 2,5 - 3,5 % from all amount of taxes. The accepted Budget Code of Ukraine enabled to the regions to pursue a more independent fiscal policy, however it did not solve all of local financial problems, particularly financial independence of local self-governmental bodies. The proclaimed principle of independence of local budgets in practice not realized to a full degree, that generates a lot of negative tendencies at all stages of local budgeting.
The financial autonomy of local self-governmental bodies means that these bodies should have a right to collect and distribute their own financial resources independently. These resources should be enough for effective realization by local self-government bodies their functions and power. Some part from these resources must enter to local budgets by local taxes and fees. Local self-government bodies must have a right to determine the rates of it independently, but within the framework, foreseen by the national legislation. It is necessary to notice, that without regard to the proclaimed principle of independence of territorial communities in Ukraine, the real mechanisms of providing of this independence it is extremely not enough.
In practice, often take place the situations, when the local state authorities (local state administrations) interfere in the activity of bodies of local self-government. It takes place because there are serious contradictions in 2 main laws on activity of local authorities in Ukraine: “On Local Self-Government in Ukraine” (1997) and “On local state administrations” (1999). To make sure in this, it is enough to compare these 2 laws, particularly the responsibilities of local self-governmental bodies and local state administrations:
Responsibilities of Local State Administrations
/in accordance with law “On Local State Administration”/
Responsibilities of Local Self-Government bodies
/in accordance with law “on Local Self-Government in Ukraine”/
Art. 17. Responsibilities in the sphere of social-economical development.
Local State Administration:
1) develops the projects of programs of social-economical development…, provides their implementation.
2) provides effective utilization of natural, human and financial resources.
3) forming of necessary for administration of social-economical development on current territory balances of human, materially-financial and other resources
Art. 27. Responsibilities in the sphere of social-economical and cultural development
1)preparation of the program of social-economical and cultural development of villages, towns and cities…, providing of their implementation.
2) providing of balanced economical and social development of current territory, effective utilization of natural, human and financial resources
3) providing of forming of balances of financial, human resources, which necessary for administration of social-economical and cultural development on current territory
This is showing that issue of clear and precise division of local powers is the most important task for Ukraine on this stage of its development.
Duplication of powers between local state administrations and bodies of local self-government, for today, is one of major problem that needs the most rapid solution. Already about five or six years in Ukraine goes a talk about the necessity of clear division of powers, jurisdiction and responsibility between foregoing bodies, but the real steps, which finally would decide the noted issue are not realized yet. This problem was defined on many conferences and in different letters of the mayors of Ukrainian cities to the Cabinet of Ministers, etc. The first documents in which was defined this problem were Conception of state regional policy, which was ratified by Decree of President of Ukraine from May, 25, 2001 and Program of state support of development of local self-government in Ukraine, which was ratified by Decree of President of Ukraine from August, 30, 2001. All above-mentioned documents emphasized the necessity of clear division of power and responsibility between the bodies of territorial power. Was defined that these bodies can and must work together on the solutions of local problems, but also must have their own functions and powers. It is also clear defined in the European Charter of Local Self-Government:
Powers given to local authorities shall normally be full and exclusive. They may not be undermined or limited by another, central or regional, authority except as provided for by the law /art. 4/.
Now Ukraine is continuing to conduct a reformation. On the basis of all above-mentioned we can clear define the main problems in Ukraine in the direction of effective local self-government in the country, which require its solutions, as well as methodological and theoretical support, are the next:
- The democratic system of regional self-government, directly representing the interests of communities at an intermediate level between local and state authorities is not functioning effectively. The mechanisms of representation of communities on this level as well as a clear distinction of local from regional self-government and the latter from peripheral state executive powers still require its constitutional recognition.
- In Ukraine as before there is the problem of a clear definition of functions and responsibilities of local self-government and local executive bodies as well as between local and regional authorities. The subsidiarity principle of local power is not realized.
- The accepted Budget Code of Ukraine enabled the regions to pursue a more independent fiscal policy, however it did not solve all local financial problems, particularly financial independence of local authorities. The proclaimed principle of independence of local budgets in practice to a full degree not realized, that generates a lot of negative tendencies at all stages of local budgeting.
- In Ukraine the right for territorial communities independently solve local issues is guaranteed by its Basic Law – Constitution of Ukraine. The principle of independence and autonomy of territorial communities, which is proclaimed in Constitution in practice, is not always realized, because there are serious contradictions in current legislation and there is no concrete definition of the measures and ways of real achievement of local autonomy.
By M.Pyhtinskij (2009) has defined the main economical problems of current reformation in Ukraine. By author opinion they are the next:
- Lack of financial resources for development of territorial communities;
- Ineffective interbudget relations;
- Insufficient orientation of state policy on local development;
- Absence of solutions of dividing of public and communal property;
- Ineffective tax basis of local budgets.
However, current state of reformation in Ukraine requires not only financial support and has not only economical problems. For solution of the main current problems of local self-government in the country it is not need significant financial resources, because their solutions requiring, first of all, legal support and political will for it. All main problems of current state of local self-government in Ukraine are in the sphere of legislation. Practically every year in the country organizing different working groups on these issues, which preparing different proposals, developing of the conceptions and drafts of law, changes to current laws, but the final solution have to be make by Supreme Council of Ukraine. In some cases they are not taking into account the previous proposals and changes of previous working groups. As defined in the expert report on the draft of law “On main basis of state regional policy in Ukraine” by the experts of Council of Europe (2009), new conception and law have to be prepared with taking into account previous laws and all current legislation.
In 2001, by Council of Europe was accomplished the complex assessment of the system of local and regional self-administration as well as the state of local and regional democracy in Ukraine, results of which were reflected in the relevant recommendations – Recommendation 102 (2001) “On Local and Regional democracy in Ukraine”. Significant part of this Recommendation is dedicated not only to the issues of development of local democracy, but to the problems and ways of creation and providing conditions for thorough development of local and regional self-government as the main element and display of real democracy.
The main proposals and recommendations of the Council of Europe were related to:
- administrative and territorial organization of the country and introduction of a system of regional self-government;
- division of power and responsibilities between local authorities: bodies of executive power and local self-government;
- providing of local self-governmental bodies with necessary resources for execution of their responsibilities;
- improvement of the system of legal protection of local self-government, etc.
Implementation of the Recommendations of the Council of Europe is very important for any country, because it can really help to improve the state of local and regional democracy in the country.
Unfortunately, almost all points of this Recommendation didn’t find practical implementation in Ukraine. The Municipal Code /its creation was one of the recommendations/, which can unit an exaggerated number of legal acts, which in some cases are contradictory, and solve a lot of legal problems of local self-government, first of all in the direction of clear division of local power, is not adopted. Its adoption could help to avoid significant contradictions in current legislation as duplication of power on local and regional levels of government etc.
The democratic system of regional self-government, directly representing the interests of communities at an intermediate level between local and state authorities is not functioning effectively. The mechanisms of representation of communities on this level (regional) as well as a clear distinction of local from regional self-government and the latter from peripheral state executive powers still require its constitutional recognition.
In Ukraine as before there is the problem of a clear definition of functions and responsibilities of local self-government and local executive bodies as well as between local and regional authorities as was noted before. The subsidiarity principle of local power is not realized in full measure. The delegated responsibilities usually do not receive the relevant financial support. This problem is discussed on many conferences on local decision-making, in most reports of the mayors of Ukrainian cities, but final solution is not adopted.
The local self-government bodies of Ukraine have some power in the process of local decision-making, but they do not have real independence to make their own decisions as independently forming their organizational structure, create additional services for public for additional sources of revenues to local budgets, exercise their initiative with regard to any matter which is not excluded from their competence. The mechanisms of realization of independence and autonomy of local self-government, particularly in the process of decision-making are not precisely defined.
In spite of existence of some problems, Ukraine has some positive examples and good practices of local decision-making. An activity of the local self-governmental authorities now is more transparent then some years ago. Ukraine has the examples of effective collaboration of the municipalities with public in the day-to-day work. However, really effective activity of local self-government bodies and local state authorities in Ukraine will be possible only with clear legislative division of their powers and responsibility. Now in the country there is a necessity of introduction of relevant changes to current laws of Ukraine "On local self-government in Ukraine" and "On local state administrations", and an acceptance of new laws, in particular, “On regional self-government”, “On territorial community”, “On the administrative-territorial reform” and other.
On the current stage of development of Ukraine, the local self-government bodies do not have sufficient powers for effective activity on the relevant territories. For today it is extremely important to give more independence to the local self-government bodies, but they should operate within the framework of law and have significant responsibility for this activity. Within the framework of local self-government must be carried out the administration of local and some national affairs by delegation of powers. However, together with this delegation, it is necessary to more expressly define the financial resources as well as responsibilities and mechanisms of control.
In this connection it will need to give to local self-government’ bodies wide power for solution of the issues of local development and to grant the local state administrations especially control-observant functions as representatives of state on the local level.
Public participation in local decision-making in Ukraine
Public participation in the process of decision-making is an important element of the transparency of the power and development of democracy and the indicator of level and quality of democracy in any country.
The issue of public participation in the process of decision-making is a very important for Ukraine now. Ukraine is trying to build the democratic society and going in the direction of the strengthening and development of democracy in the country. For this purpose it is need to make some legislative and organizational changes.
The Constitution of Ukraine was recognized by the Venetian Commission “For democracy through the law” as one of the most democratic. And Ukrainian Constitution really gives wide opportunities for public participation, particularly on the local level of government. For example, in the item 5 of the Constitution of Ukraine you can see that the only one of main sources of power in Ukraine is the people. People are implementing their power directly and by the bodies of public administration and local self-government.
For development of civil society in Ukraine is important the item 36 of the Constitution in which Ukrainian citizens have the right and opportunity to unit into political parties, non-governmental associations and professional units. By item 40 citizens have an opportunity to circulate to bodies of public administration and local self-government for solutions of their problems. In item 69 are appointed the forms of people’s wills: “The people will is realized by the elections, referendum and other forms of direct democracy”. There are some laws of Ukraine in which provided different opportunities for public participation in local decision-making.
They are the next:
- “On Local Self-Government in Ukraine”;
- “On state local administrations”;
- “On appeals of the citizens”;
- “On information”;
- “On order of covering the activity of Public Administration and Local Government’s bodies of Ukraine in the media”;
- “On status of deputies of local councils”;
- “On bodies of self-organization of the citizens” etc.
Also country has some international documents in the sphere of the transparency of power and development the democracy, which are ratified by Ukraine and therefore they are the part of national legislation.
- European Charter of Local Government (ratified in 1997).
- Convention about protection of citizen’s rights and main freedoms (European Convention of citizen’s rights), (ratified in 1997).
- Common Convention of citizen’s rights (ratified in 1950).
- Convention about access to the information, public participation in the process of decision-making… (ratified in 1999) etc.
In general, Ukrainian legislation corresponds to international and, in particular, to the European norms of democracy, local self-government, defense of human rights and public participation in the process of decision-making. However, in the same time, there are some problems in the country in this sphere. A lot of points of legislation now only are “on the paper”, they are not working, because the mechanisms, instruments of its realization as well as the control of its execution, in most cases, are absent. Some of important points of Constitution and laws do not use effectively, in particular so important form of local democracy as local referendum etc.
In spite of existence of the legislative opportunities for public participation in local decision-making, not all from local governmental bodies used it. It has some reasons:
- the disinclination of power authorities and representatives of power to open their activity for public;
- the absence of legislative obligation and responsibility (not only opportunity) for Local Government bodies to involve public in the process of decision-making;
- the dread of public servants that citizens by their participation will delayed the process of decision making;
- the lack of necessary knowledge and skills for active participation in Ukrainian civil society;
- the lack of information about governmental activity.
The main common problems on the way of public participation in decision-making in Ukraine are the next:
- Lack of relevant experience;
- Lack of methodological and technological support;
- Insufficient and incomplete preparedness of power;
- Insufficient legislative support (particularly on the central level of government).
Significant problem on the way of local democracy in Ukraine in the last ten years was the very big centralization of power.
At the same time, an activity of the governmental authorities now is more transparent then some years ago. In Ukraine there are some cities which are the examples of effective collaboration with public in the day-to-day work. These cities are: Berdiansk, Komsomolsk, Slavytuch etc. The Mayors of Ukrainian cities can an opportunity to tell about their experience and good practice, to discuss their problems by the one of new project, which now working in Ukraine. It is the “Workshop of the municipal development”. This project has two directions:
- This workshop serves as a place where the Mayors of the cities and professionals in the field of Local Government and Public Administration can discuss the current problems, the ways of its solution and tell about practical experience of theirs cities, present new projects and programs.
- The young professionals in the field of local government’s activity and policy making have an opportunity to discuss their problems, successes, to develop and discuss their ideas about the ways of municipal development.
Positive aspects of public participation in local decision making in Ukraine:
- more effective and active public participation on the local level of government than on the central level;
- existence of necessary legislation’s basis;
- moral preparedness of citizens.
The famous fighter for democracy G. Soros has noted that democracy, first of all, is an open society – society in which real power are the citizens: “When I speak of open society, I mean a form of organization that can be loosely described as democracy. But the concept of open society is more comprehensive. It means not only a democratically elected government but also a society that is not dominated by state; that means a strong civil society and the rule of law”.
Ukraine is going in this direction, in direction of improvement of democracy in the country and reinforcement of local self-government and civil society. However, it is just the beginning of this difficult and very important way.
- Constitution of Ukraine (2006), Publishing house of Supreme Council of Ukraine, Kyiv
- Dahl Robert A. (1989). Democracy and its Critics. Yale University Press. – p.4
- European Charter of local self-government (1985). Council of Europe, Strasbourg
- Fishkin James S. (1991). Democracy and Deliberation/ New Directions for Democratic Reforms, Yale University Press. - p. 29.
- Gadjanova Elena (2006). The state of local democracy in the Western Balkans. – European Communities, Luxembourg. – pp. 6-7.
- Law of Ukraine “On local self-government in Ukraine” (1997), Publishing house of Supreme Council of Ukraine, Kyiv.
- Law of Ukraine “On local state administrations” (1999), Publishing house of Supreme Council of Ukraine, Kyiv.
- New Public Regional Policy of Ukraine (2009)/Editor V.S.Kyibida, Kyiv – pp. 75-78.
- Norton Alan (1991). Western European Local Government in Comparative Perspective. In R.Batley and G. Stoker (eds.)/ Local Government in Europe: Trends and Developments, Macmillan education ltd., London.
- Prizel Ilya (1997). Ukraine between proto-democracy and “soft” authoritarianism/ Democratic Changes and Authoritarian Reactions in Russia, Ukraine, Belarus, and Moldova / Edited by Karen Dawisha, Bruce Parrott, Cambridge University Press.– p. 330.
- Pyhtinskij Mikola (2009). Reformation of a system of local self-government/ Reform of Public Administration in Ukraine, Kyiv, NAPA Press
- Recommendation 102 (2001) On Local and Regional Democracy in Ukraine, Council of Europe, Congress of Local and Regional Authorities, Strasbourg.
- Soros George (1994). Dangers of Post-Communism./ Soros Foundation, New York, USA
- Stoker Gerry (1991). Introduction: Trends in European Local Government. In R.Batley and G. Stoker (eds.), Local Government in Europe: Trends and Developments, Macmillan education ltd., London.