Referendum as Violence and Humiliation in Southeastern Ukraine

BY MYKHAILO MINAKOV

Ukrainian citizens in the temporarily occupied areas of Luhansk, Donetsk, Zaporizhzia, and Kherson oblasts have been put into yet another situation of survival and humiliation—this time, by the September 24–27 forced referenda on joining Russia. Under military occupation by a foreign power, with the everyday risk of being killed, in the absence of free media and other means of reasonable discussion of key political issues, the citizens of Ukraine are requested to answer the question: do they want their communities to join Russia and to become Russia’s citizens?

Under the wartime circumstances, the referendum—one of the core democratic procedures—has neither legitimacy nor legality. On the contrary, this question is an act of violence against people living under Russian occupation.

What is a referendum?

A referendum is an act of political decision-making made directly by citizens. This decision usually is of an extraordinary nature. For this reason, it is not representatives or political leadership that makes it, but the citizens themselves. Only after the citizens vote can a government implement the nation’s decision.

The democratic quality of a referendum comes from two factors that make the citizens’ decision legal and legitimate. First, for a referendum to be legal, there should be a law (or several laws) that prescribes how to initiate a referendum; how to define the question(s) on the ballot; how to prepare the polling places, counting commissions, and observers’ oversight over the voting and ballot counting; and how to translate the citizens’ decision into legal and political acts afterwards.

The second factor, legitimacy, is even more important. If a referendum is to be legitimate—to conform with justice, constitutional logic, and fundamental political norms—it must make sense as justified. This justification stems from the need for citizens to make informed decisions in a secure environment. A free media and open debates within a reasonable time frame are needed. The questions for a referendum should be simply and clearly phrased. In such cases the referendum process is a deliberative and direct democratic act of free citizens in their republic.

When citizens come to their polling stations, there must not be any legal or legitimate objections from society, branches of power, or guardians of the constitution. Only then is a referendum one of the fundamental acts of the functioning democracy.  

Illegality and illegitimacy of the Russia-imposed referenda in southeastern Ukraine

The referenda in southeastern Ukraine this week should be recognized as illegal and illegitimate.

From the legal point of view, these questions take place outside any national legal framework, be it Ukraine or Russia. The decisions on referenda were made by illegal administrations installed in the occupied territories of two Ukrainian oblasts (Zaporizhzhia and Kherson) and of two contested territories (controlled by the self-proclaimed governments of DNR and LNR). Neither Ukrainian, nor Russian legislation could be applied to these initiatives. From the outset, all four referenda do not have any legality behind them.

Since the occupants’ administrations cannot provide voters with secure voting, the casting of ballots is done not so much at the polling stations, but via voting at home. And the observers—local and foreign—who should guarantee the democratic quality of the process and the results come from organizations and governments that have no reliable record of proper oversight of voting; their list adds suspicions to the referenda rather than diminishes them.

There is also no legitimacy behind the referenda. The four of them were conducted without any discussion among citizens with regard to the legal reasons and consequences of the referendum results. All four decisions were made hurriedly as a result of the Ukrainian forces’ victory in Kharkiv oblast in the first half of the month. There were neither reasonable time frames for discussion nor reliable means to transmit information necessary for Ukrainian citizens to make up their minds regarding the forced referendum question.

The language of the question is highly dubious. For example, the ballot for the occupied territories of my native Zaporizhzhia oblast states in two languages (Russian and Ukrainian) the following: “Are you in favor of the withdrawal of Zaporizhzhia oblast from Ukraine, the formation of Zaporizhzhia oblast as an independent state and its incorporation into the Russian Federation as a subject of the Russian Federation?” As everyone can see, this formulation has basically three questions for which only one response—yes or no—is offered. This dodgy trick can hardly be regarded as a clear and fair definition of a question in the referendum.

It is not only formulation that is dubious, though. At the time I am writing this, the Russian army controls about 65 percent of Zaporizhzhia oblast, which is inhabited by not more than 25 percent of the oblast’s population. Such a small portion of the population cannot make any legitimate decision for the entire oblast.

In Kherson oblast, the question—and the context—is similar to the Zaporizhzhia one.

In the case of the self-proclaimed “Donetsk and Luhansk People’s Republics,” the formulation includes just one question, since the first two questions have already been responded to, in equally illegal and illegitimate referenda of 2014.

In any case, even if in the last two cases the language of the question is better, in all four cases, the decision is being made by a minority of the population forced to participate in the voting by local administrations, Russian forces, and local militia.

Finally, the figures that Russian official sources reported on the process and results of the referenda show their non-realistic quality. According to these sources, in the war-torn lands the turnout in Luhansk oblast was 92.6 percent of the oblasts population, in Zaporizhzhia oblast it was 85.4 percent, in Kherson oblast it was 76.86 percent, and in the Donetsk oblast the turnout was 97.51 percent. These ghost participants gave the positive response to the tricky question of the referenda organizers: the accession to Russia was allegedly supported by 98.69 percent of voters in Donetsk oblast, by 97.93 percent of those in Luhansk oblast, by 97.81 percent of those in Zaporizhzhia region, and by 96.75 percent of the voters in Kherson oblast. The both sets of data are highly unrealistic: there is no such level of population on the lands under Russian control, while the people remaining on these lands has no such unanimity.

Under all these conditions, neither legality nor legitimacy can be given to the process and the results of such forced referenda.

Referenda as raising the stakes and creating “new Russians”

If the referenda in southeastern Ukraine of 2022 clearly have no legal and legitimate grounds, why hold them? Indeed, even for Vladimir Putin’s KGB-style legalism, these referenda break any reasonable standard. In my opinion, there two reasons behind it. The first has to do with raising the stakes in the deepening conflict between Russia, on one side, and Ukraine and the West, on the other.

The second reason for such referenda is to start some sort of specific post-war nation-building. It is quite common among the post-Soviet power elites to see their populations as a kind of “bio-mass” from which they can form loyal subjects. In my many past conversations with the representatives of these elites, the issue of “bio-mass” was often brought up and justified by the example of Chechnya. Indeed, once a symbol of resistance to the Kremlin’s colonialism, today’s Chechnya is one of the biggest supporters of Putinism in Russia. It took less than 20 years to change mutineers into militant supporters of Kremlin imperialism. Later, this method was repeated in post-2014 Crimea, where super-loyalty was demonstrated in recent Russian elections, referenda, and the current mobilization into the Russian army. So the more violent, humiliating, illogical, and illegitimate are the referenda, the stronger the impulse to form new, loyal subjects out of the southeastern Ukrainian population.

The ongoing war, if not won by Ukraine and its Western allies, will close the prospect of political liberty and civic freedom for the peoples of Eastern Europe, Russia included, for another several generations.

The opinions expressed in this article are those solely of the author and do not reflect the views of the Kennan Institute.