Who will manage the communities in the de-occupied territories?

The text of the Agency of Legislative Initiatives for LB.ua

The restoration of the de-occupied territories is, in fact, the return of Ukraine to its internationally recognised territory primarily in legal, administrative, social and other terms. This applies to all areas necessary for everyday activities – health care, education, budget payments, social and administrative services, etc. First, de-occupied cities, towns, and villages must have capable local self-government to coordinate the restoration of infrastructure, housing and the delivery of humanitarian aid.

In April, after the liberation of Kyiv Oblast from the Russian invaders, Ukraine already had the experience of restoring local power. However, the problem of Kharkiv region, Kherson region, and those territories still under temporary Russian occupation requires a different approach. First, these territories were under occupation for a long time – at least half a year. Secondly, there were and probably are collaborators working with the enemy in the local authorities. Since the beginning of the full-scale invasion, the Security Service of Ukraine has identified more than 700 people suspected of collaborative activities. Additional synergy with law enforcement agencies is needed to verify individuals and place collaborative intentions.

Therefore, at least three conditions are necessary to completely restore the functioning of local self-government in the de-occupied territories. First is the involvement of law enforcement agencies to identify and investigate persons suspected of collaborating with the enemy among local government representatives—second, the presence of a quorum and the ability to make decisions. Local self-government cannot function when the representatives of local government have left the region or even the country, or they are criminally responsible or have become victims of the terror of the Russian Federation (disappeared or kidnapped). Thirdly, it is necessary to hold elections. The community should elect its leaders — this is one of the principles of local self-government. First, this applies to those territories where the elected heads of communities cannot perform their functions. However, under martial law, the organization and holding of elections are prohibited by law.

An alternative option for restoring local governance is forming military administrations for the period of martial law, which combines all three listed conditions. After the liberation of part of the Kharkiv and Kherson regions, the President of Ukraine signed decrees on creating military administrations (MA) in populated areas. During October, 21 military administrations were formed in the Kharkiv region (6 urban, 8 villages, and 7 rural). There are 20 MAs in the Kherson region (2 urban, 9 villages, and 9 rural).

For the most part, the heads of military administrations were appointed to those persons who were elected as heads of communities in local elections in 2020. Exceptions are those communities in which community leaders are either suspected of collaborationism or have resigned from their positions.

In the Kherson region, in those military administrations formed during October 2022, in 15 out of 20 cases, those elected as heads of communities in 2020 in local elections were appointed as chiefs. In the Kharkiv region, 16 of the 21 formed military administrations are also headed by heads of communities who won local elections.

What are the functions of military administrations?

Military administrations are temporary state structures that are formed to defend the territory, maintain public order, and protect the rights and freedoms of individuals during the period of martial law or if the relevant councils in the region, district or community do not convene sessions and do not make decisions within the prescribed time limits. There are three levels of military administration: region, district and for settlements (i.e. urban, village, rural). Military administrations of payments are formed within the territory of territorial communities.

The regional state administration or military command decides on the need to form military administrations under its control, submits a proposal, and the President officially approves it.

Military administrations are integral and universal structures because they combine their staff employees of the military, law enforcement, and civil protection services. If military units are formed in the region, the construction and staff list of regional and local military units are approved by the heads of the relevant regional military administrations. And all personnel decisions are made by the head of the regional MA. Suppose an ordinary regional or district administration has acquired the status of a military one. In that case, the positions of civil servants in such administrations can be replaced by military personnel and law enforcement officers. Still, for this, the head of the regional administration must submit a request, which is then approved (or not) by the decree of the President.

Military administrations are also formed where local self-government bodies are unable to perform the functions assigned to them – to manage property, approve and control the budget and programmes, as well as to solve other urgent issues of local importance. The proposal to create a military administration for a specific settlement (community) is submitted by the head of the regional military administration, who is aware of all the nuances in the region or the military command. Importantly the law “On the legal regime of martial law” does not prohibit the appointment of a village, settlement, or city head as the head of the military administration of a settlement. However, the functions of the head of the community in normal times and the head of the military administration in wartime are significantly different. The authority of the head is much broader than that of the head of the community. The head of the military administration is, in fact, the head of the community, council and executive committee.

The powers of the ordinary councils are suspended for the duration of the military administration. But local self-government bodies, which existed before the MA, do not disappear forever. Deputies, the council, and the mayor retain their rights and guarantees, and when everything stabilises, they will return to work.

Meanwhile, the head of the military administration alone makes the decisions that the council made in peacetime. In particular, he

  • organises the work of the military administration and bears personal responsibility for it
  • appoints and dismisses employees of the military administration
  • manages and distributes community budget funds
  • on behalf of the community concludes agreements on cooperation, co-financing of programmes, etc. — that is, fully represents the community in relations with state bodies, local self-government bodies, public associations
  • has the right to go to court if certain official documents of the community are illegal or the rights of the community are violated
  • issues orders and decrees, which have the same legal force as the decisions of the corresponding council because the powers of the councils are terminated
  • conducts personal reception of citizens, and considers appeals from the community and public associations. Previously, this function was performed by deputies, but during the period of martial law, their role is more public than political.

On the one hand, the construction of a management line in the form of military administrations will increase the efficiency of officials, given that decision-making will require less time. But on the other hand, individual decisions of the heads of military administrations, who are, in fact, the vertical of the President, can increase the risk of corruption.

In addition, it is difficult to respond to residents’ problems and requests from the population’s numbers point of view. If the community has tens of thousands of residents, it isn’t easy to consider the appeal of all citizens to one chief. Also considering the fact that the requests of citizens have also changed, because if earlier the solution to the community’s problems concerned, for example, help in difficult life circumstances, the issue of domestic violence and other social problems, then today many citizens are left without housing or some basic things for a living, and these questions cannot be postponed.

Formation of the MA as a transitional stage to the restoration of local self-government bodies?

The appointment of heads of communities by heads of military administrations in de-occupied settlements is a positive trend from the point of view of preserving the principles of local self-government. After all, just as in restoring local government in the Kyiv region, the duties of heads of military administrations are performed by local government representatives elected by the community in local elections in 2020.

The alternative to military administrations is positive from a security perspective. After all, firstly, many settlements in Kharkiv, Kherson, and other regions are territorially close to the border with the Russian aggressor. Secondly, these cities, towns, and villages are at a greater distance from the territories that are in the rear. Accordingly, it is more challenging to deliver the necessary basic humanitarian aid to residents. Therefore, to minimise security risks, such a management line, where the military command, law enforcement agencies and civil protection services work in the same structure, is more effective.

However, the operation of such a vertical also carries certain corruption risks, as well as the threat of abuse of power. For example, when you are accepted for service, you do not need to hold contests, submit a declaration or pass a particular check, or submit a document confirming proficiency in the state language. All these procedures and submission of documents are postponed to peacetime.

Procedures related to the law “On access to public information” also do not apply. Acts of local self-government bodies or officials are not subject to publication requirements. In addition, during martial law, the central government’s influence is also possible at the level of communities because the President makes decisions on the appointment of leaders in regions and communities. Therefore, after the end of martial law, it is essential to restore local self-government based on the principles of decentralisation and the ability of the community to elect local leaders.

Military administrations in settlements will function during the period of martial law as well as 30 days after the official end of this regime. And only then will we be able to return to the complete restoration of local self-government bodies – through the return to work of previously elected representatives of local self-government bodies or holding democratic elections. If, for example, the old local authorities were or are collaborators, the head of the military administration will continue to exercise the powers of the local authorities.

Author: Tetiana Lukeria, analyst of the Agency for Legislative Initiatives

This material was prepared within the framework of the project “Civil society for post-war recovery of Ukraine and readiness for the EU”, which is implemented with the financial support of the European Union. Its content is the sole responsibility of the Agency for Legislative Initiatives and does not necessarily reflect the views of the European Union.