Why Zelensky is right to stay in office

Ukraine’s president Volodymyr Zelensky’s five-year term is up, but he’s staying put. Unsurprisingly, some of Zelensky’s critics — and the Kremlin — have questioned his legitimacy. But Zelensky, who marked five years in office on May 20, is right not to step down. The idea that, as a result, there has been some unprecedented outrage against democracy simply doesn’t stand up.

It is impossible to conduct a free, fair and representative presidential election

The practical problem in holding an election is obvious. Russia’s annexation of Crimea and its occupation of parts of Donetsk and Luhansk in 2014 gave it control of 16,000 square miles of Ukrainian territory. The full-scale military invasion in February 2022 saw Russian forces seize another 46,000 square miles, leaving about a quarter of Ukraine under occupation. Ukraine’s counterattacks in the summer and fall of 2022 liberated nearly 30,000 square miles of territory. Nevertheless, an assessment this week by the Council for Foreign Relations estimates that 18 percent of Ukraine is currently occupied by Russian military forces.

It is obviously impossible to conduct a free, fair and representative presidential election when a fifth of the country is controlled by the enemy. As late as last fall, Zelensky was considering whether there could somehow be a poll, making provision for votes to be cast abroad and for those in the armed forces to exercise their franchise, but the practical obstacles were too great. Even if elections were held in the four-fifths of the country not occupied, polling stations would be prime targets for Russian military strikes — and meaningful campaigning would be almost impossible.

In legal terms, the point is moot. President Zelensky declared a state of martial law on February 24, 2022, in response to the Russian invasion, according to the Constitution of Ukraine. One of the strictures of martial law is that elections cannot be held. Equally, Article 108 of the constitution makes it clear that the incumbent president remains in office until a successor is sworn in.

This is not a matter of autocratic disdain by the head of state: in November last year, all parties represented in the Verkhovna Rada, Ukraine’s parliament, agreed a memorandum agreeing that elections should be postponed until martial law comes to an end. It states that “future free and fair national elections (parliamentary, presidential) shall be held after the end of the war and the end of martial law with a period of time sufficient to prepare for elections (at least six months after the end of martial law).”

This accommodation of brutal military reality should not surprise us. In Britain, the Parliament Act 1911 set the length of a parliament at five years, but a general election was postponed during World War One, initially by the Parliament and Registration Act 1916 and then by other pieces of legislation. A poll was finally held in December 1918, only weeks after the armistice but eight years since the preceding general election.

Britain reached the same sensible conclusion during World War Two. The 1935 Parliament should have been dissolved in 1940, but the Prolongation of Parliament Act 1940 extended its life by a year. Similar acts were passed in the next four years of the conflict, and a general election was eventually held in July 1945, when the parliament was almost a decade old.

American critics argue that presidential elections have never been interrupted, and Franklin D. Roosevelt was subject to re-election in 1944 when the United States was still at war with Germany and Japan. But the comparison is fatuous: America was never occupied during World War Two, nor was there any serious suggestion that it might be invaded. So the electoral infrastructure was intact and unthreatened.

If a country is invaded and partially occupied by an aggressor, it changes the situation on the ground. That is practical politics — more fundamentally, it is an acceptance of reality. Zelensky used his constitutional to declare martial law, and he has carried the Verkhovna Rada with him. The legislature has agreed that elections should be held only when the war is over and robust voting arrangements can be put into place: a decision democracies, including our own, have regarded as inevitable in the past.

Unless you can provide a workable alternative, showing how a free and fair presidential poll can be conducted with Russia occupying a fifth of Ukraine, you are simply ceding the initiative to a genuine dictator, Vladimir Putin.

This article was originally published on The Spectator’s UK website.