President Volodymyr Zelensky's term in office is supposed to end on May 20, 2024 – but it won’t.
As Russia’s war delayed the elections and Zelensky's term is looking indefinite, Ukraine’s President’s Office is preparing to weather the storm of critics questioning the president’s legitimacy.
Officially, the administration stays away from the topic. Unofficially, its members have been warning allies for months that Russia was preparing a targeted campaign to undermine Zelensky’s legitimacy in the eyes of Ukrainians and the West.
Undermining Zelensky’s legitimacy is part of Russia’s multi-component plan to destabilize Ukraine, Deputy Chief of Military Intelligence Vadym Skibitsky told the Economist in a recent interview.
Two sources in the President’s Office, who spoke on condition of anonymity, said that the Western allies were aware of the threat and weren’t willing to push Ukraine toward presidential and parliamentary elections in the near future.
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The question of whether Zelensky can stay in office after May is debated in Ukraine, as well, albeit not massively. Zelensky’s critics argue that the Constitution does not authorize the extension of Zelensky's powers under martial law. However, constitutional lawyers say that such an extension is legal and complies with the Constitution.
While legality means compliance with the law, another issue is legitimacy – acceptance of the government by the population.
Zelensky's approval rating, boosted by his leadership during the war, has been falling, leading some to question his legitimacy. However, even after the fall, it stays above 50%.
Political analysts also say that there will be no genuine problems with Zelensky's legitimacy unless there are large-scale protests similar to the 2004 Orange Revolution and the 2014 EuroMaidan Revolution.
The Ukrainian authorities have denied the claim that there are problems with Zelensky’s legality or legitimacy, and have dismissed it as an artificial issue forced by Russia.
"This Russian narrative has no legal grounds," Speaker Ruslan Stefanchuk, formerly a legal scholar, said in March. "The Constitution's Article 108 clearly says that the president of Ukraine fulfills his duties until the next president takes office. This is the principle of the continuity of power."
Zelensky’s spokesman Serhiy Nikiforov told the Kyiv Independent that the president’s team does not comment on the issue.
Elections delayed
Zelensky was elected president in April 2019 and was inaugurated in May. If martial law had not been imposed, the next presidential election would be held on March 31, 2024, and Zelensky’s term would end on May 20.
Similarly, if not for martial law, a parliamentary election would have been held on Oct. 29, 2023, ending the term for the current parliament elected in July 2019.
But Ukraine introduced martial law after Russia launched its full-scale invasion on Feb. 24, 2022. The Martial Law Act explicitly bans presidential, parliamentary, and local elections.
The Ukrainian Constitution stipulates that the authority of the country's parliament must be extended until the expiry of martial law. However, the Constitution does not contain similar explicit provisions on presidential elections.
Domestic critics, Russian propaganda
Some of the president’s critics have argued that there is a legal collision between the Constitution and the martial law act. They claim that, since the Ukrainian Constitution is the supreme law, it overrides the martial law act, and presidential elections cannot be postponed.
Former Speaker Dmytro Razumkov, once an ally and now a critic and political opponent of Zelensky, claimed in February that the president's authority would expire in the spring of 2024, after which he must transfer his powers to the parliament speaker. The speaker would then remain acting president until a new president is elected.
This line of reasoning has been extensively used by Russian propaganda.
Vasily Nebenzia, Russia's ambassador to the UN, claimed in March that Zelensky's "decision not to hold presidential elections makes him illegitimate after May 21."
Russian Foreign Minister Sergey Lavrov was more ambiguous.
"As far as May 21 is concerned, let's live until it happens," he said. "Maybe we won't have to recognize (Zelensky as legitimate)."
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Political analyst Volodymyr Fesenko told the Kyiv Independent that “it’s an artificial problem” and that “Russian intelligence agencies are using it to destabilize the Ukrainian state.”
Their aim is to persuade the Ukrainian military not to carry out orders given by the authorities, he added.
No legal troubles
Stanislav Shevchuk, a former head of the Constitutional Court, and Yulia Kyrychenko, a constitutional law expert at Ukraine's Center of Policy and Legal Reform, dismiss statements that Zelensky’s legality and legitimacy are at risk.
They believe that there is no legal collision, and the Constitution implicitly authorizes postponing presidential elections as well.
"Since the Constitution bans any elections during martial law, this approach should be applied to presidential elections because elections are a unified process in a democratic state," Shevchuk told the Kyiv Independent.
He argued that the Constitution also envisages the principle of "government continuity."
"According to Article 108 of the Constitution, the president fulfills his duties until the next president takes office," Shevchuk added. "There can be no vacuum of power during peacetime or wartime - this is guaranteed by the Constitution of Ukraine."
One of the reasons why the postponement of elections is legal is that it is impossible to hold them during a full-scale war, according to lawyers.
"During martial law, elections cannot be held, and voters' rights cannot be protected," Kyrychenko told the Kyiv Independent. "The freedom of speech and freedom of assembly are restricted under martial law, and a competitive environment for the opposition is impossible."
She also said that voters' security cannot be ensured during the full-scale invasion.
Some lawyers, including former Public Integrity Council head Vitaly Tytych, believe that the Constitutional Court must rule on the issue of whether the postponement of presidential elections is legal. This would settle the issue once and for all and dispel any doubts, Tytych added.
Kyrychenko agreed that it would make sense for the Constitutional Court to rule on the issue.
She added, however, that currently the court is short of members, and it would be better to wait until five more vacancies at the court are filled and then file a motion on the constitutionality of the martial law act.
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As of May, there are only 13 judges appointed to the 18-member Constitutional Court.
Shevchuk said that, according to the "presumption of constitutionality," laws – including the martial law act – are considered constitutional until they are ruled to be unconstitutional.
Legitimacy
The issue of legality – compliance with the law – is separate from legitimacy – the issue of whether a government is accepted by the people.
"Legitimacy is when a president is recognized externally by foreign governments and internally by the citizens," Fesenko told the Kyiv Independent.
He added that there have been no complaints from Ukraine's foreign partners about the issue.
Zelensky's critics have questioned his legitimacy based on his falling approval rating. However, it still remains relatively high.
According to a Rating Group poll conducted in February 2024, 63% of the respondents approved of Zelensky's performance, while 33% disapproved.
This does contrast with September 2023, when Zelensky's approval rating amounted to 82%. However, no Ukrainian president has ever enjoyed an over 50% approval five years into his presidency.
Since more than half of the people approve of Zelensky, his rating disproves doubts about his legitimacy, Fesenko argued. He admitted, however, that it may fall further.
The parliament is much less popular.
Its approval rating plummeted from 27% in September 2023 to 19% in February 2024, while its disapproval rating soared from 67% to 77%, according to the Rating Group.
However, arguably the most important poll indicator is that 65% of the respondents did not support holding a presidential election in wartime, and only 39% supported it, according to Rating Group's February numbers.
Meanwhile, 63% of those interviewed were against holding parliamentary elections, and 33% approved of the idea.
Future legitimacy
Fesenko and political analyst Vitaly Bala said that the government's legitimacy could only be at risk if there is a major defeat on the front line or a controversial peace deal.
If a political crisis is caused by a defeat on the front line, this could become a “catastrophe," Fesenko said.
"If there is a crisis due to a military defeat, we could lose our state," he said. "Russia will use the internal crisis."
A controversial peace deal could also lead to unrest and problems with legitimacy, Fesenko argued.
"There will be a split in society (if a peace deal is signed)," he said. "Part of society will be categorically against any peace deal, and a part may support it due to the difficult situation. A crisis may ensue."
Bala said that one way to solve potential legitimacy issues in the future would be creating a coalition government with opposition parties.
He cited the example of Israel, which created a national unity government in wartime after Hamas launched a major attack in October 2023.
A similar wartime coalition government was created in the U.K. in 1940.
"The authorities should change their human resource policy," Bala said. "To remain in power, they must share power but they are doing the opposite – concentrating all power in their hands."
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