Conditions to be met to hold a national referendum on security issues

In Ukraine, a national referendum on the issues of a security treaty can be called only by a popular initiative. For the referendum to be in accordance with the national legislation and democratic standards, Russian troops should withdraw from Ukraine, necessary infrastructure should be restored, and Ukrainian internal migrants and refugees should be given the possibility to vote.

The President of Ukraine and the members of the Ukrainian delegation to the talks with Russia have repeatedly stressed the importance of conducting a national referendum on the issues of a potential peace treaty (security guarantees). According to Volodymyr Zelensky, this referendum should happen after the leaders of Ukraine and Russia agree on the text of a treaty about security guarantees for Ukraine, the Russian army leaves Ukraine, and Ukraine signs and ratifies the treaty with the guarantor states.

President Zelensky argues that the implementation of these steps will allow Ukraine to hold a national referendum. Later, if Ukrainians support the proposed peace treaty, the parliament will amend the Constitution to incorporate the new security guarantees and, most likely, drop the provisions on Ukraine’s aspirations to join NATO. According to David Arakhamia, a member of the Ukrainian delegation, if Ukrainians do not agree to the peace treaty provisions in the referendum, either the states will continue negotiations, or the military activities will resume.

Civil Network OPORA contends that the Ukrainian state should address several interconnected legal, security, and organizational problems to hold such a national referendum.

Conduction of the referendum after the withdrawal of Russian troops from Ukraine will mitigate the risk of concluding the peace agreement by force or under threat. All citizens should have the right to vote for or against the treaty in a peaceful environment without the danger of renewed hostilities. Otherwise, voting under precarious security conditions will not be free and will violate the basic principle of a democratic referendum, i.e. equality of rights and opportunities for supporters and opponents of a referendum question.

The formula “no referendum – no implementation of the deal” restricts the possibility of Russia blackmailing Ukrainian political leaders and its delegation with threats of new military strikes or attacks against civilians.

In addition, the demand of the Ukrainian delegation regarding the exclusive right of the Ukrainian people to implement any peace deal with the aggressor country will be conducive to political and social stability inside Ukraine. Decisions that are critically important for the country’s future must not be made unilaterally or under pressure. Therefore, the post-deal referendum can be an important tool for maintaining consensus within Ukrainian society. Meanwhile, the referendum will also impair Russian propaganda that portrays the full-scale bloody war in Ukraine as a special “operation” against Ukraine’s leadership.

A national referendum cannot be held in the period of martial law or a state of emergency in Ukraine or any of its regions. However, both regimes can be lifted only if certain security conditions are met.

Therefore, it is crucial to stabilize the situation in all territories of Ukraine that are not recognized as temporarily occupied and avoid the scenario when martial law is lifted only on paper. Conducting the referendum in uncertain security circumstances will damage the legitimacy of its results in the eyes of Ukrainian citizens and foreign partners of Ukraine.

To recognize a referendum as valid, at least 50 percent of voters from the State Registry of Voters (SRV), including those residing in Crimea, the city of Sevastopol, and the temporarily occupied parts of Donetsk and Luhansk oblasts, should cast their votes. To make such a high turnout possible, security should be guaranteed in all territories of Ukraine, and all migrants should be allowed to return to their places of permanent stay.

A referendum on security issues can be held only by a popular initiative. Neither the President of Ukraine nor the Verkhovna Rada can initiate such a referendum.

An All-Ukrainian citizen-initiated referendum has a specific sequence of steps that can be implemented only if the state has enough time and can guarantee a stable security situation in all government-controlled territories.

A national referendum is organized in several steps:

• Creation of an initiative group in a citizens’ meeting and registration of the initiative group by the Central Election Commission (CEC)
• Collection of signatures in support of a referendum question that can last up to 90 days (at least 3 million signatures should be collected in at least two-thirds of oblasts given at least 100,000 signatures collected in each oblast)
• Calculation and verification of the signatures by the CEC
• Submission of a CEC decision about the results of signature collection to the President of Ukraine and announcement of the all-Ukrainian citizen-initiated referendum by the head of state

Given the impossibility to include more than one question in a referendum, the question should be formulated clearly and allow voters to understand the consequences of supporting it. While formulating the question, it is important to adhere to the Code of Good Practice on Referendums recommendations, especially on the procedural validity of the text submitted to a referendum.

If referendum participants vote in favor of a question of national importance, the government and its officials are obliged to implement the supported proposal. According to the current Law on All-Ukrainian Referendum, the Cabinet of Ministers should submit a draft law that will implement the voters’ decision to the parliament. However, to address the issues related to security guarantees, amendments should be made to the Constitution, and only the President or a third of MPs can initiate such constitutional amendments. To resolve this legal inconsistency, separate changes to the Constitutions should be voted upon.

The Ukrainian government should also address the security and organizational challenges of the process. After the withdrawal of Russian forces from Ukrainian territories that were not occupied before February 24, 2022, the primary attention should be given to allowing internal migrants and refugees to return to their homes, rebuilding basic infrastructure, restoring the operation of local authorities in those communities that were damaged due to the war, and providing citizens with the access to banking, administrative, and notarial services. These processes are crucial for satisfying national legal requirements and meeting international democratic standards. For instance, barring the restoration of security in all territories of Ukraine, it will be impossible to collect the necessary number of signatures in the necessary number of oblasts for initiating the referendum.

The government should also address the following organizational issues:

• Restore the operation of the SRV in all territories of Ukraine
• Provide enough time for voters to apply to the SRV territorial bodies to change their electoral address or temporarily change their place of voting without changing their electoral address, due to being internally displaced
• Increase the number of polling stations abroad to address the large number of Ukrainian refugees, which might require changes to the legal framework and additional financial expenses
• Restore the damaged and destroyed infrastructure where polling stations are located (schools, hospitals, and other social infrastructure buildings)
• Improve the capacity of the CEC, the National Agency on Corruption Prevention, the National Council of Television and Radio Broadcasting of Ukraine, the institutions dealing with cyber threats, and other agencies to resist foreign interference of any kind in the referendum process (illegal financing of the referendum participants, violating the rules of covering the referendum process in media, cyberattacks, etc.)

Given a large number of refugees and internal migrants, the government should treat the urge to introduce internet voting for these categories of voters with caution. First, in the conditions of the ongoing Russian aggression, there are no solid guarantees for internet voting security, and such experimental decisions can only be implemented after sustained testing, including under stress. So far, President Zelensky and the Ukrainian delegation members have repeatedly stressed the importance of giving Ukrainian refugees the possibility to vote in foreign polling stations. Second, voting via the internet happens in an uncontrolled environment vulnerable to illegal interference, especially in places of temporary residence of Ukrainian refugees on the territory of the aggressor state.