A letter from Mychailo Wynnyckyj Ph.D.

A letter from Mychailo Wynnyckyj Ph.D. Kyiv, Ukraine

In a possible testament to the fact that my previous reports from Kyiv, and myinterviews on both CBC and Radio Liberty have not been to someone's liking, this morning my home telephone line suddenly ceased to function for severalhours. My access to email has unfortunately become somewhat limited as aesult. I will of course continue to write, but the frequency of my reports may decrease.

Kyiv, Dec 2 - 8pm

The "end game" begins? Today I spent a fair bit of time talking with a group of reporters who work for a well-known western newspaper. Last night they spent about 3 hours meetingwith an individual who is among the closest advisors of Leonid Kuchma, andtoday, they met with a very highly placed western diplomat. I have promised tokeep their sources confidential, but I can report that both sources claimed that the final negotiations concerning the methods by which power will be transferred from Kuchma to Yushchenko have commenced.

The reporters' source within the Kuchma "family" confirmed that the regime nolonger places any political stock in Yanukovych. Kuchma has not publiclyannounced his agreement with Parliament's dismissal of the PM simply because he wants to keep this as a bargaining point. In other words, during the next few days Yanukovych's dismissal will be offered by Kuchma in negotiations, and something will be asked for it in return from Yushchenko.

The source within the Kuchma "family" also claimed that the regime is ready to give up power (confirmed by the highly placed western diplomat), but that Kuchma himself wants to make sure that the constitutional reform project is accepted before he leaves office. According to the sources in question, Kuchma is prepared to give up the idea of new elections in exchange for constitutional reform. In other words, if constitutional reform is accepted, the Kuchma family is prepared to accept a 3rd round (rather than new elections) which Yushchenko would surely win against Yanukovych. A reminder to readers: the constitutional reform project effectively enacts a "German-model" system of government in Ukraine according to which the President has purely symbolic powers while real executive power is held by a PM who is selected by the Parliamentary majority.

Corollary questions that need to be negotiated in conjunction with the enactment of constitutional reform include:

a) the date when the reforms are to go into effect (Yushchenko promised Moroz a date of January 2006 during negotiations between the two Presidential candidates in early November). The Kuchma camp would like the reforms enacted immediately, so as to reduce Yushchenko's real power after being sworn in.

b) the date of Parliamentary elections, and their format (full proportional representation or a mixed proportional and "first-past-the-post" system as exists now). Parliament has already passed an election law according to which the next Parliamentary election will be based on a 100% proportional system, but at this point all bets are off, and everything is on the table. NB: the "first-past-the-post" system is preferred by the current regime because they believe that they can get more people elected by "buying" local votes rather than through a national party-based campaign.

c) the composition of the Cabinet of Ministers during the interim period before the next Presidential election. The Kuchma camp will push hard to maintain control over certain key ministries during the transition period (e.g. energy, finance, Head of the State Property Fund, Head of the State Tax Administration, Prosecutor General). Any constitutional reform proposal will require a minimum of 300 votes to pass through Parliament, so what will the Parliamentary factions of the Communists and Regions (Yanukovych supporters) with their approximately 60 votes each, ask for in exchange for their support?

d) the composition of the Central Election Commission, and the text of a modified election law: i.e. the mechanism for absentee voting, etc.

e) the exit strategy of Kuchma and his inner circle (Pinchuk, Medvedchuk, Surkis, etc.) including guarantees of their immunity from prosecution etc. I'm sure no one in the Yushchenko camp will have any problem giving Kuchma immunity (they've offered it many times in the past in exchange for having the President leave power), but if I were in their shoes, I would use this as a bargaining chip by first pushing to rescind Article 80 of the current Constitution (the article that grants immunity to all Members of Parliament). If we are amending the Constitution, why not go all out? Kuchma's immediate advisors would react very badly to such a proposal from the Yushchenko camp, and that makes such a proposal a powerful bargaining chip that can and should be used - in my opinion.

The Kuchma camp will push hard to hold new elections during the negotiations. This option would allow Tyhipko to replace Yanukovych as the preferred candidate of the regime. The alternative option, a 3rd round between Yushchenko and Yanukovych, is likely to be acceptable to the regime (even though Yanukovych would be guaranteed to lose), but they will require some significant concessions from Yushchenko on this point. Last night, Yushchenko may well have been prepared to hold new elections, but the reaction of the people on Maidan after yesterday's press conference with Solana & Co. present made it very clear to him that holding new elections was not an acceptable compromise to his own supporters (Tymoshenko included). According to the highly placed sources that the western reporters spoke with today and yesterday, the Kuchma camp now recognizes that new elections are no longer an option. This realization however, does not mean that they will not try to bargain hard for new elections during their negotiations with Yushchenko - including having Putin publicly ridicule the idea of a 3rd round during his press conference with Kuchma today. It is an unfortunate fact (that became very obvious last night) that Yushchenko is not a very skilled negotiator. I would instead characterize him as a romantic idealist who is guided by a genuine desire to see life in Ukraine improved, and the country's power structures democratized. He is not, however, versed in "Realpolitik'" and this may be his primary weakness at the moment.

Yushchenko must realize that Western mediators will not help him negotiate a stronger position - they will merely bring the parties to the table. Even the EU Parliament's resolution calling for a 3rd round of elections in Ukraine (passed today) carries little weight once the doors of the negotiation room are closed.

In terms of the pressures on Yushchenko, there seem to be three Distinct factions whose interests need to be taken into account (my opinions below):

a) the Tymoshenko block which has the support of most of the people currently on Maidan (I stress currently, because those that have remained are the most radical), who are not enthralled by the idea of constitutional reform. Their reasons, firstly, is their desire to enact real regime change at all levels of government as quickly as possible (for this they need a strong Presidency), and secondly, they see Yushchenko as being obligated to the people on Maidan to come to power outright - without compromise with the current regime.

b) the Moroz block which has traditionally pushed for constitutional reform, and are ideologically biased towards increasing the powers of Parliament.

c) the business interests within the Yushchenko camp, who frankly could care less about constitutional reform, but do not want to see a prolonged period of instability in the country, and therefore refuse to accept the option of new elections (with a 90 day election campaign). The actions of this group are primarily guided by their interest in breaking up the existing oligarchic monopolies, possibly re-examining some of the recent privatization deals, and most importantly, ending the extortionist pressures placed on them by the State Tax Administration during the past number of years. And they want to do this ASAP.

From what I can see, the third group seems to have the most influence on Yushchenko currently, and therefore, I have little doubt that Yushchenko will accept the constitutional reform proposals of the Kuchma regime, as long as there are guarantees that the regime really does leave power quickly. In other words, they will trade constitutional reform for a 3rd round to be held before the end of the year.

So, why did Kuchma go to Moscow today? Two possibilities:

a) to negotiate an exit strategy with Putin
b) to inform Putin as to what he is doing

The first option is clearly more desirable from the point of view of a Yushchenko supporter. There is little doubt that, regardless of the guarantees received by Kuchma from Yushchenko as to his own immunity from prosecution, his personal safety can be better guaranteed in Russia than in Ukraine.

However, the second option may in fact be true. If we recall Marchuk's publicstatement approximately a week ago (taped and delivered anonymously to Channel 5 at 5:30am), at that time the former KGB/SBU general, and former Secretary of the National Security Council stated that he had information that led him to be concerned about the "objectivity" of the information being passed from the Russian embassy in Kyiv to the Kremlin. During his address, Marchukspecifically addressed Chernomyrdin (the Russian ambassador to Ukraine) with a request to make sure that the information passed to Putin is accurate.

During the round table discussions yesterday with Solana and Kwasniewski, Gryzlov (Speaker of the Russian Duma) arrived late. Is it possible that Putin has realized that his people on the ground in Kyiv are incompetent, and that he needs to speak to Kuchma personally? One of Putin's main questions might be:

"why has my candidate (Yanukovych) been dumped?"

A third option is a continuation of the first: before exiting, Kuchma needs to have a strong negotiating position. In order to balance the influence of the EU Parliament's call for a 3rd round, Kuchma went to Moscow in order to hold a press conference during which Putin expressed direct support for repeat elections. He got what he came for.

The Supreme Court hearing continues. The sides have begun closing arguments, so it is quite likely that we will have a decision tomorrow. In my opinion (somewhat biased) the evidence of falsification presented to the Court has been overwhelming, and given that the Yanukovych side has filed its own complaint alleging falsifications in Western Ukraine (in favor of Yushchenko), I think there is little doubt that the Court will declare the results of the election invalid.

Although no final deal can be made between Yushchenko and Kuchma before the verdict, given the complexity of the negotiations that need to be held it would be a good idea to begin the talks sooner rather than later (and for Yushchenko to inform his supporters regularly as to their progress). It would also be helpful to the Yushchenko side to increase their numbers on Maidan on Saturday and Sunday. If the Supreme Court decision is really announced tomorrow, the weekend will be the key time for the end game to conclude.

History shows us that revolutions generally end on a weekend. Let's hope Yushchenko realizes that the key weekend is the coming one. I'm not sure that the peaceful protestors on Maidan will maintain their unbelievable discipline for another week.

Mychailo Wynnyckyj Ph.D.
Kyiv, Ukraine