ANALYTICAL DIGEST VILLAGE MAYOR (“STAROSTA”) IN AMALGAMATED COMMUNITIES: REGULATORY PROBLEMS 10 CONCLUSIONS CONCERNING THE REGULATORY CONDITIONS FOR PUBLIC INVOLVEMENT IN THE AC HOW DECENTRALIZATION IS SPREADING OVER UKRAINE – OPINION OF PEOPLE INVOLVED ASSESSMENT OF THE REFORM OF LOCAL SELF-GOVERNMENT BY COMMUNITY LEADERS Digest presents brief overviews of analytical notes and articles prepared by Association on the topical problems during implementation of local selfgovernment reform, self-organizartion development and forms of participatory democracy at the local level in Ukraine. Analytical surveys consist of problems analysis and recommendations to local, regional and central government.
VILLAGE MAYOR (“STAROSTA”) IN AMALGAMATED COMMUNITIES: REGULATORY PROBLEMS In the process of the voluntary association of local communities, the institution of village mayor is introduced for the first time in Ukraine. Its main function is to represent and protect the interests of the villages and towns that are included in the united communities. As of August 2016, headmen were selected in 84 communities, next in line is a number of amalgamated territorial communities (AC) where headman elections are already assigned. Therefore, the following issues have become increasingly (MLN. and UAH) how UAH) relevant: what is the position of the headman in the local(MLN. government system to effectively organize its election and activities? At the legislative level, the legal status and powers of headmen are resolved only in general terms. Therefore, it is necessary to obtain high-quality local legal and regulatory framework for the effective functioning of this institution: Charter of the territorial community, Statutes of headman, Regulations of the local Council and its executive bodies, which should clearly prescribe in detail all procedures relating to the activities of headmen. All-Ukrainian public organization “Association for Community Self-Organization Assistance” held a sustainable research of the institution of headman in Ukraine. It identified issues requiring decisions at the legislative level by amending the Law "On Local Self-Government in Ukraine" and other legislative acts. According to the reform, the position of headman should be imposed primarily on the level of the previous local communities, which had rural or village council and the relevant Chairman prior to the integration, except for the AC administrative center. But there is no requirement for introduction of headman position in the legislation. The solution of this problem is passed to the AC Council which can impose as many headman positions as deemed appropriate. In particular, one headman may be elected from several villages, included in the united communities, so some of the villages may be left without headmen. Conversely, the headmen can be selected in those settlements that had previously formed part of united communities. This model has the potential to ensure a broad representation of the periphery, although its application is justified only in the AC, where settlements are relatively large. Draft Law No. 4742 dated 01.06.2016 (authors – O. Dekhtyarchuk, V. Yanitskiy, T. Batenko, O. Musiy and others) proposes to implement a concept “Headman (“Starostynsky”) District” into the Law "On Local Self-Government in Ukraine", which
should determine the territory subject to the authority of one headman. It is also proposed that in the AC administrative center a Headman District is not formed and a headman is not elected. However, provisions on the Headman District inherent in the draft law are unclear. Therefore, there is a risk that a significant part of the peripheral territories of the AC will remain without representation through the headman. Therefore, the proposed definition of “Headman District� and the principles of its formation require clarification. One more conclusion: the powers and the levers of influence on decision-making, granted to headmen by the Law "On Local Self-Government in Ukraine", are not sufficient for the proper performance of their duties due to the fact that these functions are poorly provided with mechanisms for their implementation. In order to better regulate the headmen activities, AC councils are encouraged to adopt Statutes of headman, where his or her rights, obligations and other issues related to his/her activities will be clearly determined. These issues can be also identified in Charter of the territorial community. Draft Law No. 4742 proposes to significantly expand the list of headman powers, adding the opportunity to participate in the plenary sessions of the local council and its standing committees with the right of deliberative vote, advocate on matters affecting the interests of the inhabitants of the villages and towns of the corresponding Headman District, to coordinate the draft decisions of the local council, relating to the property of the territorial community, which is located on the territory of the respective Headman Districts. Draft Law No. 4742 also vest headmen with authority to monitor the state of the environment, of social and public infrastructure, the rule of law, the status of respect for the rights and legitimate interests of the residents in social and humanitarian aspects. In addition, the headmen acquire the right to receive information, documents and materials from the Council executive bodies, as well as contribute to the formation and activities of community organizations and other forms of public involvement in the settlements of their Headman District. On the other hand, the disadvantage of the Draft Law is that it actually contains an exhaustive list of the headman powers, while the current version of the Law "On Local Self-Government in Ukraine� admits that the Statutes of headman may assign him to other responsibilities. It is important to maintain the rule so that the council could delegate headmen the powers of their executive bodies.
We consider optional (as today) headmen membership in the executive committees of local councils to be an extremely negative aspect of the Draft Law No. 4742. As a result, it is possible that headmen will not be included in the executive committees at all, or only part of them will be included. This rule certainly will restrict their ability to perform their functions and will make them even more dependent on the Council of Deputies and Heads of AC, which may adversely affect the ability of headmen to take principled stands while defending the interests of the villages and towns from which they were elected. The term of the first headman election is not clearly defined in the legislation. As a result, these elections are being conducted at a very slow rate, and in some communities, there is a risk that they will not be held at all until the next regular local elections. Given that the headman's duties before the first election are fulfilled by a person exercising powers or the Chairman of rural or settlement council of the respective territorial community prior to the unification, but for the moment may not receive proper support from the community, solving this problem may be delayed considerably. As of August 1, 2016, the headmen elections were held in 84 united communities of Ukraine, of 177 formed at the moment. During August - October 2016, elections should be held in 11 communities more. The law stipulates that the elections should be financed out of local budgets. Therefore, many communities do not appoint such elections under the pretext of the lack of the necessary funds in the budget. Thus, there is a risk that the councils may postpone the headman election until the next local elections, appealing to a lack of funds. The legislation does not contain a clear mechanism of accountability and responsibility of headmen. In addition, it does not provide for the possibility of withdrawing the headman from his position by the voters. The Draft Law No. 4742 proposes to fill this gap, indicating that the headman is obliged to report on his work to the residents of the respective villages or settlements at an open meeting with residents at least once a year. Besides, at the request of not less than half of the deputies of the Council, he is obliged to report to the Council on his work at any time determined by the Council. Among the list of grounds for early termination of headman powers, proposed by the Draft Law No. 4742, is implementation of the mechanism for headman withdrawing on popular initiative, which is an innovation.
But serious "trap" for the headmen is a rule, proposed by the Draſt Law, whereby the powers of the headman can be prematurely terminated by a decision of the Council, if the headman violates the Constitution or the Laws of Ukraine, the rights and freedoms of citizens, and does not ensure the implementation of powers granted to him. The main risk of these provisions is that they actually provide the basis for the complete subordination of the headmen to the local AC Council, which would certainly reduce their ability to effectively defend the interests of peripheral communities where these headmen were elected.
RECOMMENDATIONS џ
in the concluding provisions of the law of Ukraine "On a voluntary association of local communities", to oblige the AC to hold first headman elections not later than six months aſter the first election of the Council and the Chairman of the AC
џ
to adopt the amendments to the Law of Ukraine "On Local Elections" (with respect to financing of the preparation and holding of the first headman elections) and make the appropriate changes to the Law "On the State Budget of Ukraine for 2016” in order to ensure financing of the first headman elections with the State Budget funds
џ
to amend the definition of Headman District, as well as to prescribe more clearly the criteria and procedure of its formation, in order to guarantee maximum coverage of the entire periphery of the united community by such districts, on the one hand, and on the other - to contribute to more or less even distribution of AC population between Headman Districts
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to delete a possibility to change the boundaries of the Headman District and its nonformation on the territory of the community, which became the AC administrative center, from Article 1 of the Draſt Law No. 4742
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to maintain the current wording of the relevant provisions of the Law "On Local SelfGovernment in Ukraine” according to which the headman is a member of the AC Council Executive Committee by virtue of his position, and provide for the delegation to him of certain powers of the Council executive bodies by the Council
џ
to delete the rule on the possibility of early termination of headman powers by the Council decision for violating the Constitution and Laws of Ukraine, the rights and freedoms of citizens, and non-implementation of powers granted to him.
10 CONCLUSIONS CONCERNING THE REGULATORY CONDITIONS FOR PUBLIC INVOLVEMENT IN THE AC “Association for Community Self-Organization Assistance” together with regional partners held a comprehensive inter-regional study of how the public participates in the processes of communities association and development. Based on the analysis of local normative legal acts adopted in the united territorial communities (AC), and access to the information, we have come to 10 conclusions regarding the regulatory conditions created with respect to public involvement. 1.
In AC, there are problems with access to public information. Only 17 communities (50%) of total 34 AC councils have official websites, and only 8 sites placed at least one legislative act on which the study was conducted. With regard to information requests, only 1/3 of the total number of Councils provided a response to the first request. As a result, we did not get nearly 40% of the information necessary for the research.
Recommendations: 1) For AC Councils – to adopt an internal document which will regulate the procedure for access to public information, to identify the persons responsible for the provision of public information and access to it. 2) For AC Councils with official websites - to publish drafts and acts adopted by the Council and the Executive Committee, subject to the provisions of the Law "On Access to Public Information". 3) For high level government authorities and civil society institutes (CSI) – to organize a series of training for AC officials on access to public information. 2.
There are different practices of regulations adoption by the AC Councils, which should, among other things, resolve public involvement. On average, the Councils provide the legal regulation of approximately 20-45% of the possible tools for public involvement.
Recommendations for AC Councils: 1) to adopt the procedure for holding public consultations with a view to creating legal opportunities for residents to participate in the formation of local policies; 2) to adopt the Regulations on the order of creation and activity of Public Self-Organization Bodies (PSOBs) - village committees, the Model Regulations on the PSOBs. The Regulations should prescribe the mechanisms of interaction of PSOBs - village committees with the AC Councils and headmen; 3) to adopt PSOBs promotion programme with the inclusion of rules on the provision of financial and logistical support. This Act will contribute to the establishment and development of these bodies in the AC villages. 4) to adopt the Regulations on the consultative and advisory bodies.
3.
About 35% of AC have approved the Statutes of territorial communities. These documents provide the ability to use the majority of local democracy mechanisms and the tools of public involvement. However, there are problems with the definition of procedures for the application of certain instruments of local democracy.
Recommendations: for AC – while developing the Statute, to determine the order of organization and conduct of general meetings (conferences) and the procedure of public hearings in separate annexes, which are an integral part of the Statute. 4.
Regarding the activities of the headmen, deputies of AC Council, PSOB - the newly approved Statutes of the communities identified specific areas of their activities and interaction with members of the community (rarely with Civil Service Institutes (CSI)), reporting to them, the grounds of early termination of the powers and the ability to initiate the termination of thepowers by residents.
Recommendations: for AC Councils – to consider the definition of objectives, targets, mechanisms of joint activities (interactions) of headmen, deputies of AC Councils, PSOB and CSI, members of a territorial community by a separate Regulation. 5.
Regarding the presentation of the local initiative – there were found cases of overstating the minimum number of signatures of a locality residents for the registration of local initiatives in the AC Council. None of the analyzed AC Councils has approved the procedure for local initiatives by separate Regulations (which is not annexed to the Statute of territorial community).
Recommendations: for AC Councils – to determine the required number of signatures for submission of local initiative in the percentage of the population (eg. 1%) in the Statute of territorial community, the Regulation on the submission of local initiative, or establish an average number of 15 to 50 people to villages and settlements. 6.
About 20% of the analyzed Statutes of territorial communities provide for consultative poll. However, there were detected gaps on defining norms of representation in consultative polls, as well as regarding entities authorized to carry out such polls.
Recommendations: for AC Councils – to provide for consultative polls, as it enables us to determine the opinion of the majority of residents on important issues. We recommend to adopt separate Regulations on the procedure of advisory polls. And the possibility and basic provisions for advisory polls are to be determined in the Statute of the community.
7.
Community development strategy in most of the analysed CTU is still under development. AC Councils use to involve public organizations, research centers, labor collectives, community activists and students in the strategies development process. This usually happens through the creation of specialized working groups, holding of public debates, focus group research, interviews.
Recommendations: for AC Councils – to include mechanisms for public participation in the implementation process into the development strategy. 8.
Regulations of the councils and their executive bodies, as a rule, provide the opportunity for public involvement. In practice, however, these mechanisms are difficult to detect without detailed analysis because they are "scattered" over the articles of the Regulations. Also, it does not always clearly define procedure for public participation in the Council activity.
Recommendations: for AC Councils – to determine the mechanisms of public involvement as a separate item in the regulations, and refine their process in the relevant articles. Based on the analysis of existing regulations of the Councils and executive bodies we offer 7 stages of public involvement: 1) collecting information on the needs of society, 2) planning Council activity, 3) development and submission of draft decisions, 4) discussion of draft decisions, 5) forming the agenda, 6) sessions publicity, 7) public participation in the plenary sessions. 9.
Mechanisms of interaction between headmen and community, as defined in the Regulations on the headman, are sufficient for dialogue. For example: 1) residents reception, 2) assisting the residents to prepare necessary documentation, 3) accepting applications addressed to AC Council, 4) participating in the organization and holding of the general meetings at place of residence, 5) interacting with PSOB, 6) reporting to the community, 7) providing proposals on the personal membership of public control inspections, etc.
Recommendations: for AC Councils – to develop mechanisms of cooperation of headmen with PSOB and other CSI, deputies of AC Council and its executive bodies, etc. 10. Civil Society Development Program was adopted only in one of 34 analyzed AC (according to the responses to information requests).
Recommendations: for AC Councils – to practice the adoption of Civil Society Development Programs in the communities.
CONCLUSION There are different practices with regard to the regulatory provision for public participation at the local level. The development of these processes largely depends on the chairman, deputies, headmen and active citizenship of AC residents. At the same time, the issue of statutory regulation of PSOB activity, holding general meetings of the members of the territorial community at place of residence, mandatory adoption of the Statute of territorial community by the local Council – all above depends on the priorities of the Verkhovna Rada of Ukraine (Ukrainian Parliament) and the adoption of necessary laws that would contribute to the development of local democracy.
HOW DECENTRALIZATION IS SPREADING OVER UKRAINE – OPINION OF PEOPLE INVOLVED In order to study the progress of local self-government reform in Ukraine and to identify features of the voluntary association of communities, specialists of the Odessa Institute of Social Technologies, All-Ukrainian public organization “Association for Community Self-Organization Assistance� and regional partner organizations, during July-August 2016, conducted an expert survey of representatives of territorial communities located in the Volyn , Dnipropetrovsk, Odessa, Luhansk, Lviv and Mykolayiv regions. The expert survey revealed the features of the process of voluntary association of communities. The study examined three different types of communities: the united territorial communities; community preparing to associate; communities with unsuccessful attempt to associate. The study was conducted by interviewing 597 local experts (government officials, civil society activists): 342 members of united territorial communities (57.3%); 138 members of communities preparing to associate (23.1%); 117 members of communities with unsuccessful attempt to associate (19.6%). Among the above-mentioned number of respondents 297 or 49.3% represented the public and 300 or 50.3% represented the power structures. Although each group was examined separately and had certain characteristics, we can identify some trends in the experts estimates on the progress of local selfgovernment reform in Ukraine, in particular: The experts provide ambiguous assessment of whether community representatives were involved in the development of perspective plans of formation of capable territorial communities by Regional State Administration (RSA) or not. Even if they were involved, they represented the local Council. The representatives of the authorities, rural (village, city) Chairman and deputies of rural (village, city) Council, primarily initiated associations of territorial communities. Public discussions were actively carried out in the communities. The most common form of discussions in the territorial communities were general meeting of the residents. According to the experts, people heard of the reform, but still do not fully understand its essence. The main source of information on the decentralization reform is the local authority: the head of the community and local deputies, in the second place - the media. However, the Reforms Office and the Ministry for Regional Development were
marginal in the informing process. There are also a lot of questions most frequently posed to Reform Office representatives, local authorities and public bodies. The most repeated are the following: · What is the essence of the reform? What are its prospects? And, most importantly, what are its benefits and the need for the residents themselves?; · How the administrative services will be provided? in particular, the issuance of certificates; · What will be the way of budget allocation and financing of associated communities?; · Questions regarding the closure of budgetary institutions. The most encouraging argument for the residents to support the association – is the prospect of a more powerful budget. In communities with a failed attempt to associate and in those planning to associate the resistance was provided by residents themselves. In addition, it was possible to discover that sometimes the pressure on decision-making came from the highest levels of government, in particular, regional authorities and even separate people's deputies. The arguments against are very diverse, and most recurring are the following: · the danger of closing budgetary institutions and enterprises and, as a consequence, the loss of jobs; · all funds will remain in the center of the community, and peripheral villages will be declined; · distrust of the reform, the central government, fear of everything new, discouragement, lack of understanding of the prospects in general. Similar difficulties that arose during the association were identified in all groups, and in the case of communities with unsuccessful attempt to associate they became the reason for failure, in particular: · lack of information and dialogue, misunderstanding, mistrust; · refusal of one or more communities to associate; · isolation of some settlements in the absence of transport infrastructure; · PSOBs (village committees), in general, played a minor role in the process of association, they often have not even been formed in the communities. In the course of a voluntary association of local communities, the institute of headmen appeared in Ukraine. Now, in the researched united communities in most localities, headmen have been elected already, or their function is performed by other persons authorized by the local council. Questions, which are posed to headmen, are related primarily to the provision of certificates, registration of subsidies, improvements organization and utilities.
ASSESSMENT OF THE REFORM OF LOCAL SELF-GOVERNMENT BY COMMUNITY LEADERS In order to study the progress of local self-government reform in Ukraine and to identify features of the voluntary association of communities, specialists of the Odessa Institute of Social Technologies, All-Ukrainian public organization “Association for Community Self-Organization Assistance� and regional partner organizations, during July-August 2016, conducted semi-structured interviews with the heads of local selfgovernment bodies of the associated communities, communities planning to associate and communities with unsuccessful first attempt to associate. 69 senior officials of territorial communities were interviewed in total. Interviews were conducted in six regions of Ukraine: in Volyn (12 respondents), Dnipropetrovsk (5), Luhansk (10), Lviv (10), Mykolaiv (5) and Odessa (27). Below is a list of officials and the communities in which the interviews have been conducted.
THE MAIN RESULTS OF THE INTERVIEWS Most interviewed leaders of territorial communities positively assess the prospects for local self-government reform in Ukraine (51%). Part of the respondents are dissatisfied with the feeling of a certain pressure "from above" on local councils with the aim of "forced inducement" to the community association (17%). 22% of respondents believe that the weakest link of the reform is the lack of its complex regulatory support. The internal shortcomings that prevent AC to ensure their own ability include: financial, personnel and institutional insecurity, passivity of the residents, lack of authority (especially, the lack of opportunities to dispose of lands outside the settlements). Half of the respondents felt the resistance to reform at the local level, especially on the part of local government officials and representatives of the district authorities, who are afraid of losing power and jobs. The large majority of citizens are indifferent to the reform. The residents of communities, that are interested in the reform, take it as the last opportunity for social and economic development of their community and avoidance of its final decline and destruction.
More than half of the respondents consider the participation of residents in the implementation of the reform of local self-government productive and even necessary. The large majority of reform discussions were initiated by local chairmen and deputies. The greatest interest in discussing reform was demonstrated by the workers of budgetary sphere, local businessmen, farmers, local deputies and public organizations. A quarter of respondents do not consider productive participation of community residents in the reform. The local authorities tried to inform residents about the reform mostly through deputies, local newspapers and general meetings. As of today, PSOBs (rural committees) are not a common form of residents' selforganization in the communities, where the survey was conducted. Most respondents indicated that PSOBs in their settlements are not created and they know nothing about these authority bodies and their mission. However, a significant part of the respondents expressed their willingness to promote the self-organization in their community in the future. Three quarters of interviewed leaders of territorial communities believe that the interests of peripheral settlements are respected to the full extent. The large majority of respondents believe that the adoption of the Statute will contribute to the consolidation of a territorial community. It is in the Statute that the cooperation between AC members, the public and the authorities should be secured.
Interaction between the government and public during AC’S formation 49 % RESPONDENTS REPORTED
The main initiators OF AMALGAMATION OF TERRITORIAL COMMUNITIES:
73% 35,7% 8,6%
THAT REGIONAL STATE ADMINISTRATION ATTRACTED COMMUNITY MEMBERS TO THE DISCUSSION OF LONG-TERM PLAN
HEAD OF THE COMMUNITY LOCAL DEPUTIES COMMUNITY MEMBERS THROUGH LOCAL INITIATIVES
39
% OF GOVERNMENT REPRESENTATIVES NOTED THAT THERE WERE NO PROBLEMS WITH RESIDENTS PARTICIPATON IN
ГCOMMUNITY DISCUSSIONS ABOUT AMAGLAMATION OF TERRITORIAL COMMUNITIES HELD ENOUGH ACTIVELY 1
78,8%
87% INTERVIEWEES CONFIRMED THAT PROSPECTS OF AMALGAMATION WERE DISCUSSED WITH NEIGHBORING COMMUNITIES
The main problems encountered1 during the AMALGAMATION of communities:
10,6%
IMPERFECTION OF LEGISLATIVE BASE –
RELUCTANCE, RESISTANCE OF DISTRICT AUTHORITIES –
6,4%
REMOTENESS FROM CENTER AND MAIN BUDGET INSTITUTIONS –
5,5%
PEOPLE’S INDIFFERENCE, PASSIVITY – LACK OF INFORMATION –
3,7%
3,2%
The interest of the parties in cooperation
33,3% PUBLIC EXPERTS BELIEVE THAT RESIDENTS ARE INTERESTED IN PARTICIPATION IN DECISION MAKING PROCESSES
42,4% OF GOVERNMENT REPRESENTATIVES BELIEVE THAT LOCAL COUNCIL CONSTANTLY CONSULTS WITH RESIDENTS
57%
25% RESPONDENTS
OF GOVERNMENT REPRESENTATIVES CONSIDER CONSTRUCTIVE AND NECESSARY CONSULTATIONS OF COMMUNITY RESIDENTS ON AMALGAMATION
CONSIDER CITIZENS PARTICIPATION IN REFORM NONPRODUCTIVE 2
9% PARTIALLY EFFICIENT
Forms of cooperation 64,9%
INTERVIEWED EXPERTS BELIEVE THAT DURING ALLOCATION OF FUNDS WERE TAKEN INTO ACCOUNT INTERESTS OF PERIPHERAL VILLAGES AND THEIR COMMUNITIES
43%
BELIEVE THAT IN VILLAGES MOST EFFECTIVE FORMS OF DIALOGUE BETWEEN AUTHORITIES AND RESIDENTS ARE GENERAL MEETINGS AND PUBLIC HEARINGS2
29% BELIEVE THAT SUCH FORMS ARE ROUNDTABLES, THEMATIC TALKS
68%
INTERVIEWED REPRESENTATIVES OF LOCAL AUTHORITIES NOTED THAT IN THEIR COMMUNITIES WERE NOT CREATED AND WOULD NOT CREATE SELF-ORGANIZATION BODIES
THEIR interests WERE taken into account THROUGH: 48%
DEPUTIES MEETING OF RESIDENTS OF PERIPHERAL COMMUNITIES RESEARCH OF PUBLIC OPINION
24%
36,9%
POLICY ANALYSTS OF ASSOCIATION:
Andrii Krupnyk expert on public administration and local government
Oleksndra Kalashnikova expert on community development, local government reform, participatory democracy
Mariya Dzupyn analyst, lawyer, expert on local democracy and local governance
Oleksii Kolesnikov expert on election law, local democracy, regional and global policies
samoorg.com.ua
This analytical paper has been prepared under the Think tank support initiative performed by the International Fund "Renaissance" (IRF) in collaboration with the OSF Think Tank Fund (TTF), which receives support from the Swedish International Development Cooperation Agency (SIDA) The opinions and views expressed in this research represent the position of the author and do not necessarily reect the position of the Swedish government.
Đ?SSOCIATION FOR COMMUNITY SELF-ORGANIZATION ASSISTANCE All-Ukrainian NGO that promotes the development of civil society in Ukraine through the self-organization and the creation of an effective system of public participation in the local governance.
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