Facebook’s dilemma over free speech and what they could be doing to keep elections fair

UPDATE: This long-read has been updated in the light of new developments and comments from a wide range of colleagues around the world. For the newer version, please see here.

 

Facebook’s election-related struggles are continuing to make the news. This time it is their decision not to seek to police the truth or otherwise of a Donald Trump advert claiming that potential 2020 opponent Joe Biden used leverage over $1bn of foreign aid to Ukraine to persuade the country to push out the official running an inquiry into his son. 

CNN has already taken the decision not to air the advert which is says has been comprehensively disproved by journalists and organisations such as factcheck.org. However, Facebook, alongside Youtube, Twitter and Fox News, have all run it saying they do not want to get involved in issues of free speech and that the advert does not violate company policies.

“Our approach is grounded in Facebook’s fundamental belief in free expression, respect for the democratic process, and the belief that, in mature democracies with a free press, political speech is arguably the most scrutinized speech there is,” wrote Katie Harbath, Facebook’s head of global elections policy to the Biden campaign. 

Elizabeth Warren’s fake news advert

In response, Elizabeth Warren, another of the leading Democratic candidates has produced her own Facebook advert claiming that Mark Zuckerberg and Facebook are openly backing Donald Trump’s re-election. This is not true, of course, as she acknowledges, but she says the advert goes to show how the platform’s decision could be used in the coming contest.

Facebook’s dilemma

In truth, the Facebook decision is broadly in line with the situation in the UK. Political, election and candidate adverts (where they are allowed) are subject to different regulation from washing powder or supermarkets. Whereas regular adverts can be judged by Ofcom or the Advertising Standards Authority (depending on the medium), political adverts are subject only to the broader oversight of courts concerned with obscenity, incitement and defamation.

It also highlights the almost impossible task facing the company. If they choose to intervene and judge the truthfulness or otherwise of political statements (either directly or via third parties) then they will be accused by Trump and others of interfering in the right to free speech. If they do not intervene then they will be labelled as allowing lies and distortion to affect the election.

As a colleague puts it:

“The UK tradition about political advertising has traditionally been a balance between two considerations. One was that normally the truth-value of a political claim was usually harder to judge than with commercial claims; particularly when the political claim relates to things that will happen in the future. Therefore, claims about how much Labour would put up your taxes if they won, a staple of Conservative election campaigning forever, or the abolition of the NHS, were all debatable. Parties rarely resorted to outright, provable lies about observable facts. But also, political ads were excluded from the ban on ‘knocking copy’ – comparative advertising saying your product or shop is best. But there was a presumption that if a party stepped over an ethical (but not regulatory) line, then another party had the right to a response that was stronger than would normally be permitted in advertising.

That sort of worked, although the partisan press subverted it a bit and there wasn’t a level playing field with campaigning resources (the Conservatives got away with some pretty bad scare stuff in 1924 and 1931, while Labour’s dodgy ‘whose finger on the trigger?’ campaign in 1951 met significant blowback, although it still seemed to be effective).

The problem now is that without a unified media the same process where dodgy claim is met with comparative advertising no longer happens, and with what is left of public service media or media of record afraid to adjudicate on truth value it doesn’t get done. And Facebook’s business model probably makes the exposure to comparative, critical takes even less likely.

And alongside the rise of this, there’s the rise in shameless lying – like terrorism, there’s not much a civilised society can do about bad faith actors in positions of political leadership without subverting its own civilised values.

Facebook is different from the Baldwin era press barons who used their power to pursue their own hobby-horses. It’s power without responsibility for rent – pay enough, or have enough power already, and there aren’t really any barriers. In conditions of extreme upper-end wealth and income concentration, it’s a recipe for abuse.”

What could be done?

Could it be different? Certainly. There are many countries where the law states that political adverts and promotions must be truthful in the same way as commercial adverts are. And whilst Ms Harbath’s comments were reflective only of the situation in the USA, they raise a whole set of questions as regards countries which are not mature democracies, where most people get their news from social media and where the rules of elections are simply different from the USA or UK.

In the past, the platform set different rules for advertisers as opposed to regular posters. They banned adverts containing “deceptive, false or misleading content”, a much stronger restriction than its general rules around non-paid for posts. However, Facebook has now announced that it will allow political adverts to run, regardless of falsehoods they might contain, with the exception, perhaps, of posts that contain links to previously debunked third party content.

Clegg sets out Facebook’s view

Nick Clegg, now Facebook’s VP of Global Affairs and Communications, said in a recent speech:

“…we will not send organic content or ads from politicians to our third-party fact-checking partners for review. However, when a politician shares previously debunked content including links, videos and photos, we plan to demote that content, display related information from fact-checkers, and reject its inclusion in advertisements.”

Clegg goes on to discuss what Facebook refers to as a ‘newsworthiness’ exemption:

“This means that if someone makes a statement or shares a post which breaks our community standards we will still allow it on our platform if we believe the public interest in seeing it outweighs the risk of harm. Today, I announced that from now on we will treat speech from politicians as newsworthy content that should, as a general rule, be seen and heard. However, in keeping with the principle that we apply different standards to content for which we receive payment, this will not apply to ads – if someone chooses to post an ad on Facebook, they must still fall within our Community Standards and our advertising policies.

When we make a determination as to newsworthiness, we evaluate the public interest value of the piece of speech against the risk of harm. When balancing these interests, we take a number of factors into consideration, including country-specific circumstances, like whether there is an election underway or the country is at war; the nature of the speech, including whether it relates to governance or politics; and the political structure of the country, including whether the country has a free press. In evaluating the risk of harm, we will consider the severity of the harm. Content that has the potential to incite violence, for example, may pose a safety risk that outweighs the public interest value. Each of these evaluations will be holistic and comprehensive in nature, and will account for international human rights standards.”

I’m afraid that I don’t quite know what this means. How is Facebook making a judgement about the risk of harm? How will the timing of an election or being at war affect their view? How will the existence of a free press affect the decision and what exactly constitutes a free press – it is often not a binary issue? Katie Harbath told me that:

“In terms of what might cause harm we are looking for things that may jeopardize physical safety. We work with trusted partners across the globe to help us identify if content might lead to real world harm. In terms of if a country has freedom of speech or press we use a few sources, but Freedom House’s rankings are a main one.”

Even if third party fact-checkers are used, they are generally small NGOs. They have limited time and few resources. They certainly aren’t able to deal with every claim made in a political Facebook advert during a big election such as a general election in the UK. They can pick and choose some of the biggest or boldest claims and subject them to scrutiny, but the need to be comprehensive and expert often means that the damage has been done and the conversation has moved on long before a third party group manages to convince Facebook to remove a false claim. If this sort of delayed action is to have any meaning then there needs to be some sort of consequence for the advertiser who makes false claims – either financial penalties or some form of suspension or ban.

Even if a third party fact checker has deemed a video or statement to be false, Facebook does not remove it entirely. Harbath told me:

“We reduce the reach (demote it) and add a treatment on it so people can see it has been marked fake. If a politician were to share content that already has that treatment then the label would remain.”

Donie O’Sullivan of CNN makes the point that:

“Facebook’s argument might be more convincing in a world without the platform. The company has helped to create and enhance ideological echo chambers. Some Facebook users only follow and engage with content with which they agree… Given how the Facebook News Feed is determined by an algorithm and the highly targeted nature of Facebook ads, it is entirely possible that a Facebook user could see a false ad from a campaign and not encounter a post that challenges or corrects it.”

Paid for vs organic content

And then there is the split between paid for advertisements and organic posts by candidates and others. Should there be a difference between how content that Facebook gets paid for are treated and those which are simply ‘community posts’. Harbath told me that content posted by people not directly connected to a candidate or campaign will be subject to fuller moderation than that which comes either from the candidate or a recognised group associated with them.

The bigger issue – who pays?

There is also another, often bigger issue. Who is actually behind the advertising that appears online? Particularly in countries other than the USA. Facebook now requires that all political adverts are labelled as such, but whilst some might be pretty obvious – it is badged with the name of the candidate or party – much comes from otherwise unknown individuals or organisations. 

In the UK, as in many other countries, campaigning is allowed by parties and candidates and by third party groups whose spending limits vary according to whether or not they are registered with the electoral commission. But Facebook doesn’t restrict advertising just to permitted participants. It takes the view that responsibility rests with the advertiser to conform with the law. And whilst countries such as India issue formal certificates to candidates which Facebook allows to be uploaded to the site as a guarantee of authenticity, the platform also allows other, non certificate holders, to pay for advertising.

One of the biggest concerns that election-watchers have is that foreign money is influencing elections. Facebook have pretty much shrugged their shoulders at this problem. They told me that whilst they can check for an official identity document from the country concerned and that the funds are paid in local currency and using a local billing address, they have no means of knowing the ultimate origin of the funding. It is also unclear how often such documentation is actually checked. The law in the UK requires that the original source of political funding must be a permissible donor. This can be investigated by the police and electoral commission in cases of doubt. Other countries have similar rules. But Facebook doesn’t even make a statement requiring this from political adverisers.

One size fits all

As I’ve written before, Facebook is not alone in this dilemma. Nor are they doing nothing. But what they have done is pretty much a one-size-fits-all approach, largely based on an American model. They require political advertisers to register and be identified as described above. They also release details of who has paid what amount on a regular basis.

Talking to Katie Harbath, I was told that the company employs 40 teams and 500 full time staff to cover elections across the world. She told me that for each election they start work about 18 months in advance to try to idientify the threats that might be involved and consider whether to reach out to the country’s election commission to discuss these threats. What they don’t do is seek to work with individual countries to ensure that Facebook’s rules align with the laws and regulations of each country. In many cases those laws are pretty out of date and were written for a pre-internet age, but they are still the law. Facebook could also be offering to work with parliaments and election commissions on a joint project to help re-shape the law to make it relevant to the current era. Whilst none of this appears to be happening yet, Facebook tell me they have signed memorandums of understanding with many electoral commissions in Latin America and in India, which is a significant step in the right direction. 

It’s also worth pointing out that the 18 month lead time is only any use if the election goes ahead as planned. Snap elections cause additional headaches and, whilst I presume Facebook might have thought in advance about the situation in the UK, I don’t know whether this would be the case in, say, Serbia or Malawi.

Fact checking vs profit

Facebook’s $7bn profits are made possible through the use of as much technology – the agorithms – as possible. Introducing more human beings to fact-check or adjudicate on the validity of political speech only serves to get in the way and cost more. CNN’s Donie O’Sullivan suggests that Facebook might be happy to accept the occasional letter of complaint from Joe Biden in return for not losing Trump’s $20 million of adverts since May 2018, an amount that can only rise as the election approaches. Others believe that the 2020 US elections will be the last in which the platform accepts political advertising.

The end of paid-for social media advertising?

It is worth noting that other social media platforms have taken the decision not to allow political advertising (although they do allow political content). Notably, TikTok has said it won’t accept political ads on its platform, declaring last week that “the nature of paid political ads is not something we believe fits the TikTok platform experience” and that political ads don’t support the platform’s mission “to inspire creativity and build joy.”

Even if paid-for adverts are no longer allowed, it seems improbable that Facebook or any other social media platform will ban politicians or the sharing of political content. And that means they will continue to play a significant role in elections, especially for those people who get most of their news from sociel media.

Proposals

Technology platforms have a lot on their plate. Deepfakes, disruptive bad actors and co-ordinated inauthentic behaviour were all raised with me as challenges to be faced. But it remains a disappointment that the most high profile of these companies is still leaving the door so wide for illegal manipulation and are not doing more to recognise that many countries in the world operate elections on a model (and electoral regulation) far different from the US system. Here are a few things I think they could do while still adhering to the general principles of free speech:

  1. Respect the laws of the country Facebook is operating in rather than seeking to impose a single set of (largely Californian) values world-wide. Work with parliaments and election commissions to help to design political advertising rules for the platform that align with the individual laws of that country, and offer to work with these same bodies to modernise election law where it is deficient;
  2. Require all political advertisers to state that they are the original source of the money paying for the adverts or that they have raised it from permissible sources. Use the platform’s own technology to investigate whether this is the case as much as possible;
  3. In cases where national or platform rules are broken, have in place a system for financial penalties and/or platform bans and pledge to share all information with law enforcement bodies in the country concerned to enable investigation and prosecution.
  4. If reliance is to be placed on fact checking NGOs to counter the most egregious cases, then Facebook should be helping to set up and fund a network of such groups across all the democracies where the platform operates.

Ultimately, these suggestions may conflict with free speech ideals and some may worry that protesters in authoritarian states will have their details handed over to the authorities. I acknowledge that these are both legitimate concerns. However I would suggest that this only highlights the need to change the laws in those countries to make them into more mature democracies which embrace legitimate protest and free speech. But there cannot be one rule for us and another for ‘them’. If we want Facebook to take action to ensure that the Russians cannot interfere in elections in the US or UK, then we have to accept that the Russian election authorities will want to enforce the laws that exist in that country too. Facebook could consider prominent links to respected election observer reports (such as by OSCE/ODIHR , the OAS or EU) which highlight shortcomings in a country’s election structures and media freedom.

Election Round-Up 13th October 2019

There were three very significant elections taking place on Sunday 13th October.

  1. Hungary (locals)

Normally a set of local polls would not be top of this list, but the defeats for the ruling Fidesz Party of Prime Minister Viktor Orbán are very significant.

Orbán has gradually increased his grip on the country over the past decade and has transformed himself and his party from a once liberal and youth oriented programme (the party used to have an upper age limit) to an authoritarian platform which claims to seek to protect Hungary and Europe against Islam and has clashed regularly with the EU over migration and rule of law issues.

And with changes to electoral laws also having been put in place which were seen as assisting incumbents, nobody really predicted that the results in these local and mayoral polls would be anything other than another victory lap.

What changed this time was that opposition groups worked together in many areas and backed a single candidate to take on Fidesz or their chosen representative. The opposition bloc consists of two green, a socialist and two centrist parties, as well as Jobbik, a far right party, in some areas.

And in 10 of the 23 largest cities in the country, including Budapest, it worked. The new mayor of Budapest will be 44 year old centre-left challenger Gergely Karácsony. With 82% of the votes counted he led with 51% compared with 44% for incumbent Istvan Tarlos.

In the Budapest Assembly as a whole, the opposition will hold 18 seats, Fidesz 13 and there will be two independents. This will be the first time that Fidesz won’t have an overall majority for more than 15 years ago. When these elections were last held four years ago, Karácsony was the only opposition candidate to win a seat on the Assembly.

Karácsony has compared his victory to that of the opposition in Istanbul where Recep Tayyip Erdoğan’s chosen candidate was defeated in the mayoral election last month. “Istanbul voted against an aggressive illiberal power in many ways similar to Orbán’s regime,” Karácsony said before the vote.

In other cities, Fidesz found itself defeated either by the opposition bloc or by independents. The party fell from holding 19 out of 23 mayoralties to a dozen with the opposition taking four and independents seven. However in rural areas the ruling party maintained an iron grip with overall majorities in every county.

Fidesz, which brands itself as Christian-conservative, were damaged by a sex scandal involving a Fidesz mayor in the western city of Győr that came to light in the closing stages of the campaign. (The incumbent mayor of Győr, former Olympic gymnast Zsolt Borkai, held his seat)

Orbán had threatened to withhold cooperation from municipalities lost by his party, but issued a concilliatory message in a rally after the results became known, saying: “We acknowledge this decision in Budapest, and stand ready to cooperate.”

The challenge for those opposed to Orbán and Fidesz will be to translate local poll gains into victory in the Parliamentary elections due in 2022. Bringing parties of the left, centre and right together for Parliamentary elections may tax the negotiating skills of even the most vehement opponents of the current regime. 

  1. Poland

The general election in Poland went according to form with the PiS (Law and Justice) Party enhancing its majority slightly.

The background to these elections was a significant move by the government to tighten their grip on the state, altering the rules for the Constitutional Court and bringing state TV and radio under government control. In 2016 there were significant protests including the occupation of the Parliament by opposition groups.

The election was held under an open list system of proportional representation in multi-member constituencies. There is a 5% threshold for parties and 8% for coalitions, although these requirements do not apply to national minorities.

The initial results are based on exit polls and therefore come with all the usual caveats. However they show that Law and Justice won 43.5% of the vote and are likely to emerge with 239 or 240 seats, up from 235 last time. The main opposition Civic Coalition won 24.1% of the vote and will hold anything from 130 to 155 seats. This would be a significant boost for Law and Justice who won just 37.6% of the vote four years ago on a much lower turnout. Attendance this time was reported to be 61.6%, the highest in parliamentary elections since the fall of Communism in 1989.

The Left coalition (Lewica) has made a return to Parliament after winning around 12% of the vote which will translate to about 43 seats. Also in Parliament will be the Confederation (Konfederacja) which won about 6.4% of the vote and will hold 13 seats, up from 5 last time.

Ironically, Civic Platform’s leader, Grzegorz Schetyna campaigned with the slogan “There will be no Budapest in Warsaw!”, a reference to PiS leader Jarosław Kaczyński’s oft-quoted claim that his long-term intention was to emulate the so-called “illiberal democracy” pioneered by the Hungarian prime minister, Viktor Orbán. However he has seen his party fall on the same day as Orbán lost control of the city of Budapest.

UPDATE:

OSCE/ODIHR has held their press conference giving a preliminary statement on the election. As ever, this will be followed by a final report in around two months time.

Overall, the mission concluded that the election was professionally run and transparent, but highlighted specific concerns in three areas – media bias, the use of state resources to favour one side and the use of inflammatory rhetoric.

On media bias, they said that the media, although diverse, divided on political lines and, most worryingly, state media was used heavily to favour the ruling party. There was little opportunity for the media or voters to quiz candidates on their programmes or past performance. They said that other state resources were also used by the government and the line between official pronouncements and campaigning became blurred.

Although contestants were able to campaign freely, the mission highlighted the use of nationalist and homophobic language and other divisive rhetoric which they said was a serious concern in a democratic society.

Finally, they noted that many stakeholders express doubts about the impartiality of prosecuters and courts following judicial reforms.

  1. Tunisia

The second round of the Tunisian Presidential election was held on 13th October with a run off between the top two polling candidates from the first round held on 15th September. The polls had originally been due in November but were brought forward following the death of incumbent president Beji Caid Essebsi on 25 July to ensure that a new president would take office within 90 days, as required by the constitution.

On 18 June 2019, the Assembly of Representatives passed amendments to the country’s electoral law, accused by some of blocking candidates like Nabil Karoui and Olfa Terras from being eligible to run in the election. The amendments prohibited those with a criminal record, as well as those who run charitable organizations or received foreign funding for political advertising in the year preceding an election.

The results of the first round saw no candidate win more than 18.4% of the vote. Independent Kaïs Saïed topped the poll with Nabil Karoui coming second with 15.58%, having won a court case to get onto the ballot. Karoui was also arrested on corruption charges after the first round and only released shortly before the second round. Significant losers included Abdelfattah Mourou of the moderate islamist Ennahda Movement.

“The tremendous disappointment with the lack of economic reform was paramount on Tunisian voters’ minds,” said Safwan Masri, a professor of Middle Eastern and north African politics at Columbia University, quoted in the Guardian.

“The fact that presidential candidates such as the country’s defence minister or its prime minister didn’t do well sends a strong message that ‘we’re done with you, we’re done with the establishment and their failed promises’.”

In the run-off, Saïed is estimated to have gained more than 70% of the vote, easily defeating his challenger. The winner is a low-profile academic with a conservative platform. He polled very highly with younger voters, winning more than 90% of the votes of the youngest age group. His opponent, a high profile media magnate, had only recently been released from prison and complained that he had not been able to campaign freely. He has reserved the right to appeal the result. The verdict of International Observer missions such as the EU’s will be keenly watched.

Saied was considered the favourite and had the backing of the Islamist Ennahda party, which won the largest share of parliament though fell far short of claiming a majority. He has pledged to reform the country’s constitution to create a decentralised democracy although without a party in Parliament (where he will need a two thirds majority to push through his reforms), he may end up being a powerless figurehead.

UPDATE:

The joint IRI/NDI mission has released its statement of preliminary findings. Overall they give a positive report on the election but raise questions about the fairness of having a candidate in prison for much of the second round campaign, as well as making recommendations about campaign finance and media coverage.

Ukraine’s President gets what he wants out of Parliamentary polls but wants more

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A polling station in the Kherson region set up for voting in the Parliamentary elections

Ukraine’s president Volodymyr Zelensky got exactly what he wanted out of last weekend’s parliamentary elections – an overall majority for his Servant of the People party (Sluha Narodu), a good showing for other newcomers Holos (led by rock star Svyatoslav Vakarchuk) and the ousting of many of the oligarchs who have occupied seats in the Verkhovna Rada seemingly as of right for many years. Now he wants more and is seeking to bring forward local elections to this autumn.

Zelensky won the Presidency in April with 73% of the vote in the run-off against incumbent Petro Poroshenko. In his inauguration speech he immediately called for early elections to the country’s parliament. As a newcomer to the political scene – his experience until then had been as a comedian, TV producer and star of the Servant of the People show in which he played a school teacher who unexpectedly becomes President – he had no official support in the Rada and had no means of getting legislation through or enforcing his choices for many of the key positions running the country.

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A poster showing the party list and manifesto for Petro Poroshenko’s European Solidarity party on display at a polling station in the Kherson region

The challenge for Zelensky going into these elections was exactly how popular was he? Winning 73% of the vote in the run-off would indicate considerable popularity, but he only gained 30% in the first round and it was widely expected that he would need to form a coalition in order to govern. Most commentators assumed that the bulk of the second round votes came from those voting against the incumbent rather than positively for Zelensky. 

The Ukrainian electoral system was also stacked against him. Roughly half the seats are awarded on the basis of a national party list system – where Servant of the People could be assumed to do quite well. But the remainder would be awarded to the winners of first past the post single member constituencies. And many of the incumbents were well entrenched local oligarchs including factory and media owners and other local powerbrokers. In contrast, Servant of the People were putting forward completely new faces, many of whom were not even local to the districts they were seeking to represent. Whilst international election observers had not seen a great scale of electoral malpractice in the presidential poll, it was assumed that in these single mandate constituencies there would be more scope for bribery and other electoral malfeasance. Could Zelensky and his party turn their presidential ‘against the system’ message into a winning strategy for the Rada and overcome such barriers?

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A polling station in the Kherson region on Election Day

Well it turned out that they could do so in spades. The party not only topped the list vote, but won a majority of the single member seats too. Long time incumbents were unceremoniously defeated by political naifs and, even though OSCE/ODIHR and others reported instances of bribery, it appears that voters were savvy enough to take the cash or foodstuffs on offer and then vote for Servant of the People candidates anyway. Servant of the People won 16 out of 17 seats in Dnipropetrovsk, 8 out of 9 in Kyiv Oblast, 12 out of 14 in Kharkiv, and all 13 in Kyiv city. (1)

In the list vote, Servant of the People won in every region except three. In the far eastern regions bordering the rebel controlled areas of the Donbas, the Russia supporting Opposition Platform – For Life topped the poll and in Lviv region in the West it was Holos (Voice) that came top. But Servant of the People performed strongly in these too and came first in the remaining 22 regions.

Across the country, the list results were:

  • Servant of the People 43.2% 124 seats
  • Opposition Platform – For Life 13.1% 37 seats
  • Batkivshchyna (the party of Yulia Tymoshenko) 8.2% 24 seats
  • European Solidarity (the party of former President Poroshenko) 8.1% 23 seats
  • Holos 5.8% 17 seats

No other party won more than 5% and therefore did not exceed the threshold to win representation, although six other parties (2) gained more than 2% and so will receive some state funding for their activities.

In the single mandate constituencies, 

  • Servant of the People won 130 seats
  • Opposition Platform – For Life won 6 seats
  • European Solidarity won 2 seats
  • Batkivshchyna won 2 seats
  • Holos won 3 seats
  • Opposition Bloc won 6 seats
  • Svoboda won 1 seat
  • Self Reliance won 1 seat
  • and there were 48 independents and others elected

And so overall Servant of the People hold 253 of the 424 Rada seats (some 26 seats were not contested this time as they fall within Crimea and the Donbas areas which are not in government control).

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Defaced political posters in the Kherson region the day before Parliamentary elections

The scale of the transformation of the Rada cannot be over-stated. More than 300 of the MPs elected last week are new faces and not a single member on the government benches has served before. In one example, in the south-eastern Zaporizhzhya region, 29-year-old Serhiy Shtepa, a wedding photographer, defeated 80-year-old millionaire Vyacheslav Boguslayev, the owner of engine maker Motor Sich PJSC.

The elections were assessed positively overall by international observers including OSCE/ODIHR. They were competitive and respected fundamental freedoms with the voting and tabulation processes being assessed as transparent and smooth. Inevitably, it was not an error-free process and the country still has some improvements that could be made, but this was a general thumbs-up for these polls. The international community has also welcomed the results as being a positive mandate for continued reform.

 

At no time in Ukraine’s post-Soviet history has one party controlled a majority of the seats in the Rada. Such control now will allow Zelensky considerable leeway to mould the country in his image. But most commentators are still wondering what that image will look like. The President has made statements about wanting to end the war in the East, but Russia and the rebels are refusing meaningful engagement. A deal for a prisoner swap involving the sailors held by Russia since the Kerch Strait incident fell apart at the last minute as they had their incarceration period extended and the Ukraine court postponed a hearing to decide the fate of a Russian blogger. More recently, Ukraine has seized a Russian ship that it claims was involved in the blockade of the Kerch Strait. It appears that Zelensky is happy to ratchet up tensions with his biggest neighbour in order not to appear weak, although this might also make a deal more likely.

Domestically, Zelensky has made it clear that he wants to see the de-oligarchisation of the state. But his relationship with his patron (and oligarch) Ihor Kolomoisky is still unclear. Is this just a change of oligarchs with influence or is this a genuine clear out? Figures close to Kolomoisky such as Andriy Bogdan, who now serves as the president’s chief of staff, are heavily involved in policy-making and running the presidential administration. Ties to the former owner of PrivatBank may cast a shadow over Sluha Narodu’s fight against corruption, an issue many Ukrainians believe should be the top priority of the next parliament.

The mixed electoral system would seem to be on its way out. Zelensky has said that he wants to move to a single national list system – albeit an open list where voters can promote their favourite candidates rather than having to accept the order set by parties. It has also been suggested that there would be no threshold – leading to a plethora of small factions. Just before these polls the Rada passed a version of this system which the President said he was not happy with. It is set to come into force for the next parliamentary polls, but may well be changed again before that time.

And in order to complete his hold on power, Zelensky is turning his attention to local government. He has the power to dismiss figures such as the mayor of Kyiv, the former boxer Vitaliy Klitschko, but he also wants to see local elections brought forward. These are due to be held in October next year, but the President has said he wants to hold them this autumn instead. He faces some opposition in the form of the country’s constitution which mandates that local polls must be held on a fixed five year timetable. Changing the constitution would require two votes of the Rada in separate sessions, indicating that next spring is the earliest that polls could happen. But with a compliant parliament and a definite will, it seems likely that Zelensky will get his way even if it means backdating a constitutional change or holding local elections both this autumn and next.

Zelensky has been explicit in his backing for a western facing, pro European and pro NATO stance, but it is clear that the country will not become a member of NATO for many years yet. The alliance is unwilling to take on a new member which is de facto at war with a neighbouring state. Previous Ukrainian governments have also traded on their conflict with Russia, believing they can get away with a lot so long as they are battling the West’s main opponent. How long this situation can be taken for granted (if it ever could) is also in doubt. 

Zelensky will also be trying to change a system where a majority of voters may not actually support his ideology. According to a strategist for Holos:

“Most of Sluha Narodu’s voters did not support the president’s party because of its pro-market agenda, but because they expect the new ruling party to cut utility prices, raise salaries and improve social conditions in general.”

Despite his resounding success, it is clear that Zelensky will have to live up to the expectations of his backers if he is to have any hope of a second term. The Ukrainian people have shown how tired they are of the oligarch system. It will be a very difficult task to unpick it, but that must be the aim if Zelensky is not to prove a flash in the pan.

 

Notes:

(1) There was an issue with clone candidates who claimed to be part of Servant of the People but were not official candidates. OSCE/ODIHR believes that such candidates distorted the result in as many as nine constituencies. I will be writing about this as part of the wider ‘imposter’ phenomenon in elections at another time.

(2) The six other parties to gain more than 2% in the list vote and therefore be eligible for state funding are:

  • Radical Party of Oleg Lyashko
  • Strength and Honour
  • Opposition Bloc
  • Ukrainian Strategy of Groysman
  • Party of Shariy
  • Svoboda

Russian readmission to Council of Europe could have an impact on Ukraine’s Parliamentary election

UPDATE 28/6/19: Six more PACE delegations have walked out of the General Assembly in solidarity with Ukraine.

A row over the readmission of Russia to the Council of Europe could have repurcussions for the up-coming Parliamentary elections in Ukraine as the country’s foreign minister has suggested that an invitation to Council of Europe observers could be withdrawn.

The Council of Europe is a body created to promote democracy and human rights and with 47 members from across the continent. Russia withdrew three years ago following condemnation of the annexation of Crimea and Russian support for the rebels in Eastern Ukraine. Its membership was subsequently suspended. At its summer meeting this week, the Parliamentary Assembly of the Council of Europe (known as PACE) voted on a proposal which would see Russia readmitted. That vote was passed despite strong opposition from Ukraine, the Baltic states, Georgia and the UK delegations.

Proponents of readmission argue that the Council of Europe oversees the work of the European Court of Human Rights and that continued exclusion of Russia would threaten the rights of Russian citizens who regularly win judgements in that court. Those opposed to the measure say it will be seen as a relaxation of sanctions against Russia and a loss of determination over Russian actions against Ukraine and incidents such as the Salisbury poisoning.

New Ukrainian President Volodymyr Zelensky has condemned the vote and suggested that many countries’ words of support have not been matched by their actions. Ukraine’s delegation to PACE has temporarily withdrawn in protest and it’s ambassador recalled. 

James Nixey, the head of the Russia and Eurasia programme at Chatham House told TRT World:

“The Council of Europe has had a long and dishonourable record of conceding to Russian diplomacy, through a mixture of corruption, coercion and bribery. Even without these methods, there is also an innate desire in the PACE structures and many of its member states to allow Russia in.”

In a move that will surprise no one, Russia has proposed four people on the international sanctions list as members of their new PACE delegation and have even suggested that they will nominate someone from Crimea.

Now the Foreign Minister of Ukraine, Pavlo Klimkin, has suggested that the invitation issued to PACE to observe the Parliamentary elections on July 21st may be withdrawn. PACE delegations traditionally work alongside the OSCE/ODIHR mission which is the largest and most respected* of the international election observation missions in Ukraine.

There is no question that Ukraine is genuinely angry about the PACE decision. Although not a foreign policy-oriented President, Zelensky had made significant efforts in his relations with France and Germany and the wider EU with his first foreign visits being made to Brussels and then Berlin and Paris. He will feel that his efforts have not been rewarded as German and French delegates were at the forefront of the Council of Europe’s Russia decision. Zelensky’s next foreign trip is to Canada where more than a million citizens describe themselves as ‘Ukrainian-Canadian’. The diaspora there have traditionally been very nationalist and anti-Russian in their outlook.

A recent Chatham House paper argues that:

“Kyiv may find that unconditional European support for Ukraine can no longer be taken for granted, it will have to be won.”

The certainly seems to be the case at the moment. The question will be whether the new President and Parliament are prepared to carry on trying to woo Europe or whether they will revert to more traditional supporters.

 

*Declaration of interest – I work frequently for OSCE/ODIHR and was a long term observer for the mission to observe the Presidential elections in the Spring.

Kazakhstan election gets a failing grade from OSCE/ODIHR

Yesterday’s snap Presidential election in Kazakhstan has been assessed very negatively by OSCE/ODIHR, the most respected international group present in the country. The election was called after interim President Kassym-Jomart Tokayev called the poll having taken over from long time President Nursultan Nazarbayev .

The full OSCE/ODIHR statement can be found here. It is a preliminary statement and the final report will be issued in a couple of months once the election processes, including any complaints and appeals, have been dealt with.

In short, OSCE/ODIHR found that:

  • there were a few positives, including that the central election commission held its meetings in public;
  • the campaign environment was not equal, with huge bias being shown towards the incumbent;
  • although there were seven candidates, including one woman, there was no real choice available to voters;
  • restrictions on freedom of assembly and arrests of those who expressed views opposed to the incumbent regime meant there was not an open campaign environment;
  • there were indications of malfeasance on Election Day including of ballot box stuffing;
  • counting and tabulation procedures were particularly problematic with evidence of manipulation of the vote.

Mr Tokayev was declared the winner with 70.76% of the vote – well down on the 98% which his predecessor was recorded as having gained last time.

This report presents a challenge both to the Kazakh regime and to other governments. The Kazakh regime has shown in the past that it does not take much notice of OSCE/ODIHR reports. Will they do so this time? And similarly for the OSCE member governments that commissioned this mission – will they take any account of the problems with the election and will any action follow?

 

UPDATE: A Chatham House paper on the elections and what happens next is here.

 

Election Observation – how to get involved

I sometimes get asked about election observation missions – who organises them and how to get involved. So here is a short guide – mainly from a UK point of view, but also useful for those from other countries, I hope.

There are a number of organisations which run election observation missions. Some are domestic groups (ie they observe in their home country) and some are international groups. The major international groups include:

  • the Organisation for Security and Co-operation in Europe (OSCE) which consists of 57 member countries;
  • The EU (not just the 28 member states. Canada, Norway and Switzerland are among those who join in with missions and UK ministers have told me that they are minded to continue to participate in some missions after Brexit);
  • IRI and NDI which are US non-governmental organisations;
  • The African Union;
  • The Organisation of American States;
  • The Commonwealth of Independent States (CIS – many of the former Soviet Union states)
  • The Carter Center, a foundation set up by former US President Jimmy Carter.

In general, all groups organise missions in a similar way. They will have a core team of experts which may include people skilled in political affairs, in election systems and procedures, in election law, in gender and national minorities issues, in media, electoral finance and so on.

In addition to this, there will usually be a group of long term observers (LTOs). These are experienced observers who are deployed in teams of two across the country. Each team will have a defined region to cover and their job is to observe the political campaign and the preparations by local election administrators, NGOs, media and so on.

Most missions also have short term observers (STOs) whose task is to observe polling day itself by going from polling station to polling station and seeing what is happening there. They will also watch the count and tabulation process. STOs also work in pairs and mix nationalities in each team. Where possible, each team will have a man and a woman and a mixture of experience. 

Depending on which organisation and what country, missions might be larger or smaller. A big OSCE mission might have as many as 60 LTOs and 400 STOs. A small mission might just be a group of experts looking at a few key aspects of the process.

And yes, observation takes place in just about every country including the UK. The aim is to see whether a country has laws and processes in place that meet the internationally agreed standards to which they have signed up AND to see whether the conduct of the individual election meets the requirements of the law. People often ask whether a particular election was ‘free and fair’ and, whilst that is good shorthand, reports are always more nuanced than this. Even a positive report (such as that on the recent Armenian Parliamentary election) will contain suggestions for the future.

Each mission has an offical working language. At present, these are limited to English for OSCE missions and some EU, plus French, Spanish and Portuguese for other EU missions. If you want to apply for a mission where the language is not your native one then you will be asked to undertake a language test and the expected standard is C1 – ie complete fluency.

A key requirement for all observers is to be objective and neutral. Just because something is being done in a different way from your home country, doesn’t mean it is wrong. There is an internationally agreed code of conduct and standard for observation which all of the reputable organisations are signed up to. One of the requirements is not to have any conflicts of interest such as declared support for one of the participating candidates or parties.

From the UK perspective, both LTOs and STOs are seconded. In other words they are chosen by the Foreign Office and proposed to OSCE or the EU. The UK contracts out the management to three ‘focal points’:

British East West Centre (BEWC)

Society of Local Authority Chief Executives (SOLACE) – best to email davidkidgerassociates@btinternet.com and ask to be added to the database

Westminster Foundation for Democracy (WFD)

Both WFD and SOLACE run databases and prospective observers can register to receive emails as and when a mission is announced. BEWC advertises missions on its website. For both EU and OSCE missions, observers also need to be registered on their system.

As for money, international election observation (outside of core team roles) is not going to provide enough for a living, but you will not be out of pocket for individual missions either. UK observers receive a per diem to cover accommodation and food and this amount depends on the country where you are working. It can range from about €100 to €240 per day. Any per diem that you don’t spend can be kept. You will also receive money to pay for drivers and interpreters (who are chosen for you), fuel and so on. Flights and insurance is also taken care of. On top of this, LTOs (but not STOs) receive a small wage.

That’s basically it. If you have any questions, please don’t hesitate to get in touch – alexfolkes@gmail.com 

Massive swing in Armenian elections sees ruling party swept from power

IMG_5178

A poster at an Armenian polling station urges voters not to sell their vote ‘for her future’

The major takeaway from the Armenian general election is the sheer dominance of the My Step Alliance of Prime Minister Nikol Pashinyan. The group won just over 70% of the votes cast albeit on a turnout of only 48.6% – some 12% down on the last election.

The voting system is a national list with half the seats allocated according to preferences cast in the 13 regions. The results are as follows (1):

My Step Alliance 884,456 70.43%

Prosperous Armenia 103,824 8.27%

Bright Armenia 80,024 6.37%

Republican Party of Armenia 59,059 4.70%

Armenian Revolutionary Federation 48,811 3.89%

We Alliance 25,174 2.00%

Sasna Tsrer 22,862 1.82%

Rule of Law 12,389 0.99%

Citizen’s Decision 8,530 0.68%

Christian Democratic Rebirth Party 6,456 0.51%

National Progress Party 4,122 0.33%

Invalid Votes 5,133

Total 1,260,840

Various peculiarities of the voting system and electoral law apply to thisArmenia 7 result. Firstly, there is a 5% threshold applied to individual parties and a 7% threshold for alliances. But the Armenian electoral code requires that at least three factions are represented in Parliament. If the result does not provide for this then the threshold will be lowered until three factions qualify. In this case three factions will be represented and so the threshold will apply.

Second, the code requires that a faction that wins more than 50% of the votes cast shall receive a working majority in the Parliament (defined as 54% of MPs). That is clearly the case for My Step Alliance here.

Conversely, the code also limits the parliamentary majority that a single faction may enjoy. No group may have more than two thirds of the MPs. Stripping out the parties which failed to pass the threshold, the raw votes would have entitled My Step Alliance to 84 seats, Prosperous Armenia to 10 seats and Bright Armenia to 7 seats in the 101 seat Parliament. In order to ensure a working opposition, the code requires that additional mandates are created for the opposition to limit the governing party to the two-thirds threshold. Thus My Step Alliance will hold 88 seats, Prosperous Armenia 26 and Bright Armenia 18 in a Parliament of 132. Four seats are reserved for national minorities and, of these, My Step Alliance won 3 and Prosperous Armenia 1. (2)

Armenia 11I wrote about the background to the election here. It followed a largely peaceful revolution in April this year which saw the Republican Party of Armenia lose power and Nikol Pashinyan become Prime Minister. The RPA remained the dominant faction in Parliament, however, with 58 seats. Following these elections, they will have no MPs at all.

The small number of invalid ballots can mainly be explained by the voting system used. Each voter is given an envelope and 11 ballot papers, each representing an individual party. They choose their preferred party and insert that ballot paper in the envelope. The corner of the envelope has been removed to expose a small section of the ballot paper to which a validating sticker is attached before the vote is cast. Thus, if an envelope contains more than one ballot paper then only the one with the sticker attached is deemed valid and an envelope with no ballot paper will have no sticker and will be ignored rather than considered blank or invalid. Invalid votes will be those which have been written on – a comparatively rare event.

The OSCE/ODIHR election observation mission covering these elections produced a broadly positive report on the proceedings, although identified some remaining shortcomings in the areas of campaign finance, the legal system, transparency and gender representation.

The future for Pashinyan’s government will be challenging. Whilst critics from within the Republican Party (not surprisingly) dismiss the new rulers as populists who will ruin their works, the public view of the Republican Party is at an all time low. Other critics, however, point out the lack of governmental experience.

One of Pashinyan’s early moves was an overture towards Turkey. The two countries have had a glacial relationship over the issue of the Armenian genocide. However the Turkish newspaper Hurriyet reported the comments by the new Prime Minister word for word and this will be taken as a positive response.

Another large neighbour – Russia – fired a shot across the bows of Pashinyan in the form of an article in Sputnik News claiming to raise issues about the past history of government members. Russia has a large military base just outside the Armenian second city of Gyumri and, whilst Pashinyan has made no comments which would seem to threaten the future of that base, he does appear willing to upset the status quo in many respects. Laurence Broers of Chatham House has said Armenia is set for future political change in overturning former semi-authoritarian and oligarchic regimes.

“How to do that while maintaining the close alliance with Russia will test the Armenian-Russian relationship severely. But any dismantling of Armenia’s oligarchic ties in many major sectors of the economy, including energy and transport, will inevitably bring Pashinyan into conflict with their deep penetration by Russian state and commercial actors, and their local Armenian clients.”

  1. These totals have now been confirmed by Territorial Electoral Commissions and the Central Election Commission but may be subject to court challenges.
  2. This section has been updated with the correct number of seats awarded rather than estimates