Decent salaries for teachers and doctors, schools, and hospitals provided with everything you need, high-quality roads, and the transformation concentration of power in one hand into archaism of. All this was supposed to be the consequences of the introduction of local self-government, where finances, taxes, and distribution of income will be in charge of the “lower” level of government and where the main decisions will be made by the population.
Today, Ukraine marks 30 years since decentralization was proclaimed in the country by the corresponding law, adopted by the Supreme Soviet of the Ukrainian Soviet Republic.
How and why was decentralization introduced in Ukraine?
"Any state system will work without local self-government. Under Hitler, under Stalin, and under any king or emperor, schools were built, roads were laid, salaries were paid. And, perhaps, they did it much better, more responsibly, and more on-time than some democrats did. But the problem is that in a totalitarian or authoritarian society, a school or a hospital is being built today, and tomorrow it is being destroyed, and no one can resist. After all, no one asks the citizens' opinion," Mykhailo Pozhyvanov, MP of previous convocations and co-author of the XI section of the Constitution, states.
That is why a decentralization reform has begun in Ukraine. And if in Greece, Ireland, Finland, and Albania its implementation took a year, in our country this process will take decades.
In the Soviet Union, district and regional councils were elected within each republic. Executive committees worked under them. Of course, members of the Communist party became almost exclusively deputies at all levels. And the higher the level, the more captious attention to the elected officials was from the KGB. For a long time, the "Land of Soviets" remained almost untouched even under independent Ukraine. The conditional concept of "governors" was added, that is, chairmen of regional state administrations, and in general, the function of executive committees was assumed by state administrations.
“The trouble is not that we have so many levels of elective power,” Pozhyvanov continues. “Because Austria, for example, has even more levels but it is a de facto federal country, where each land has its own parliament and issues its own laws. In France, instead, only the parliament and local deputies are elected, while in Poland there is a three-tier system of administration: gmina - district - voivodeship. It seems to me that Ukraine took this model.”
Subsequently, Yushchenko, Poroshenko, and Zelensky tried to rethink the principles by which the population will choose how to live within their point on the map.
Under the premiership of Volodymyr Groysman, who took up decentralization with great enthusiasm, an innovation appeared – a community. It did not replace the district council but duplicated it. At the grassroots level, two types of elected authorities have emerged. And what is "above" remained untouched.
President Zelenskiy wanted to do his bit. The incumbent president wrote a very detailed bill, where there were many innovations related to local self-government, but then he withdrew it. He invented but did not implement the administrative triad: community – district – region. At the community and regional level, citizens were required to elect local councils, but at the district level, they were not. But at the district level, there should have been district prefects, who would be appointed by the president. And at the regional level, too. Regional prefects were to replace the chairmen of the regional state administrations, and the regional state administrations themselves were to be disbanded.
There were too many presidential prefects and little clarity in this scheme. Perhaps it is good that things never came to fruition. Now we have united territorial communities with their own administrative apparatus, district councils, regional councils, and, of course, the Verkhovna Rada.
Issue 1: involuntary associations and lack of understanding
But the licking went awry, because if the Constitution speaks of the voluntariness of the unification of citizens into communities, then the Cabinet of Ministers took by its resolution and independently determined the boundaries of future communities and their composition. In total, about 1,500 communities were approved.
It would be fair to clarify that the united communities had time to voluntarily unite at their own discretion. Those territorial communities that did not take advantage of this opportunity, the government included in the separate united territorial communities.
This happened because now in Ukraine there is no law on the administrative-territorial structure. But his absence does not justify the violation of the right of communities to coordinate their territorial boundaries, guaranteed by Article 7 of the Constitution of Ukraine. Therefore, such a decision cannot be called completely legal.
Issue 2: parallel existence of communities and district councils and waste of finances
Zelensky's reform, which was not implemented, assumed that the district would become a superstructure over the community. And each district would have 10-15 communities. There are no districts yet, but there are districts (the number of which was reduced from 490 to 136) and district councils.
And what is the difference between the united community council and the district council? In practice, there is no difference. On the legal plane, the difference is that districts and district councils are "sanctified" by the Constitution.
The possibility of uniting not only villages but also settlements and cities into territorial communities, introduced (back by Groisman), is not consistent with the first part of Article 140 of the Constitution of Ukraine, according to which a territorial community can only be "voluntary unification of residents of several villages into a rural community", which must have the status of an administrative-territorial unit.
The whole point here is that the structure of territorial communities corresponds to the system of administrative-territorial structure, and not vice versa. The situation could be rectified by the adoption of a law on the administrative-territorial structure, which has not been done so far since 1996.
What do we have as a result? Only that the bureaucratic apparatus has not shrunk, but, on the contrary, has grown. And in Ukraine, there is already a large percentage of civil servants in comparison with those citizens who produce a specific product or service that is subject to taxation and serves to fill the state treasury.
And here's what's interesting: the Ministry of Development of Communities and Territories of Ukraine has an official website called "Decentralization", where director of the Institute for Development of Territories Yuriy Ganushchak writes in black and white: district councils are not needed! Mentioning them in the Constitution does not sacralize this link, it must be removed as only creating additional problems.
Again, there is a problem with taking funds to finance the apparatus of the district council, Ganushchak emphasizes.
"The amounts are relatively small, but demonstrative because the very fact of allocating such funds from the budgets of communities or regional budgets will indicate a political interest in keeping the central government in constant tension. And if from the budget – also about the suicidal tendencies of the central government," he notes.
Therefore, the united community must learn to interact with district councils: both new, that is, which will be formed after the reduction of districts, and old - which, on the contrary, will be disbanded.
Issue 3: land owned by united communities were created in violation
But this, perhaps, is not the biggest problem. Because there is a problem with the land, which Pozhyvanov talks about.
“This whole game in the united community was started for the sake of being able to dispose of the land,” he suggests. “Until now, small communities within one village or settlement could only dispose of the territory of this village or settlement. But at the junction of the villages, on the borderland, there was a significant array of agricultural land. The very land for which they are now breaking spears. Once they were under the jurisdiction of district councils, but now they were transferred to the united territorial communities. This is what the communities bought. This is how they shut their mouths to those who could now speak of unconstitutionality such a situation."
"Kuchma is to blame for the situation, who, with his 1997-1998 and 2002 decrees on the unsealing of land, laid a mine under the state," he adds.
Viktor Shyshkin, former Ukrainian Prosecutor General, Leonid Kuchma is also reproached by of Ukraine and a former judge of the Constitutional Court. Kuchma’s decrees led to the fact that large latifundists concentrated in their hands 500 or more hectares of land.
The corruption scheme, according to Pozhyvanov, continues with the current self-government and the creation of the united communities. He has serious fears that not entirely honest people have come to power in the communities. And this is because the process of formation of communities and elections in them, which took place before October 25, 2020, were spontaneous and sporadic.
"Already having control over the district councils, certain politicians or political forces are now gaining a lever of influence in the form of a united territorial community. So Ukraine is confidently moving towards not so much decentralization as feudalization," he notes.
Issue 4: taxes are not assigned to local authorities
Officially, of course, the alpha and omega of decentralization is the financial independence of the regions. And there are certain problems with this. Back in the days of Kuchma, Finance Minister Mityukov noted the need to transfer 13 types of taxes to local budgets. But things are still there because no one gave anything to anyone.
Pozhyvanov in this context recalls Poland, which is close to us mentally and territorially. The expert emphasizes: Poles have types of deductions fixed at the local level, which always remain at the disposal of the community. And proceeding from this, the community forms its budget without waiting for subventions. And we have a completely different budgetary vertical that needs to be brought into line with the existing hierarchy.
"Now the average mayor has no funds for anything, except perhaps for the payment of salaries to state employees and subsidies for the utilities. But at the same time, he has to puzzle over how to finance, for example, a health program, which the state obliged him to fulfill," Pozhyvanov notes.
He is convinced: leaving to the state and the central government all the functions that it should perform by definition - protecting the borders, ensuring the country's integrity, combating crime, the function of justice, ensuring democracy and freedom of speech, and many other obligations - we must transfer the right to manage finances communities. By the way, in order to resolve the issue of money "locally," it is not at all necessary to amend the Constitution and strain to seek 300 votes. It is enough just to correct the Budget Code.
In October 2020, President Zelensky has already signed the law "On Amendments to the Budget Code of Ukraine" No. 907-IX, but this has changed little. This law declared the redistribution of the budget between communities and districts but did not touch on deeper relationships - the "community - state" level.
Meanwhile, the lack of money on the local level is especially acute in the current pandemic times, when the regions lack funds not only for the repair of schools but also for the purchase of oxygen concentrates for seriously ill patients.