Why Volodymyr Zelensky's Legitimacy is Null and Void

Ukrainian constitutional experts have cast doubt on Volodymyr Zelensky's continued claim to the country's presidency.

Zelensky refused to hold the constitutionally-mandated presidential election in March this year, on the pretext of martial law.

That has prompted a heated debate over his legitimacy after his five-year long term ended earlier this month.

Ruslan Stefanchuk, chairman of the Verkhovna Rada — Ukraine's parliament — argues that Zelensky retains legitimacy under Article 108 of the Ukrainian Constitution, which stipulates that the incumbent president performs his duties until a newly elected president assumes office.

However, Ukrainian MP Alina Zagoruyko, the head of the parliamentary sub-committee on elections and referendums, told the BBC last November that the extension of Zelensky's term under Article 108 may become "a problem" if the conflict drags on longer and the parliament would "need to explore possibilities of holding elections," even under martial law.

The controversy surrounding Article 108 stems from the fact that Article 103 sets a clear five-year limit to the president's tenure. In the wake of the February 2014 coup d'etat in Kiev, the Constitutional Court of Ukraine ruled in May 2014 that regardless of the type of election — regular or snap — a five-year term is the only constitutionally established period for which the president is elected.

Another problem haunting Zelensky is the fact that the Constitution provides only for the extension of powers of the parliament if the elections cannot be held under martial law in accordance with Article 83.

But it does not give a clear definition on the continuity of presidential power — under Article 108 — in the event of martial law, nor does it provide for the extension of those powers in such a case.

The dilemma could have been resolved by the Constitutional Court. Zelensky's predecessor Petro Poroshenko requested the court's clarification regarding his own legitimacy on several occasions.

But or whatever reason, Zelensky and his party have not sought the court's opinion so far. While it takes a minimum of 10 percent of Verkhovna Rada deputies to launch an appeal with the court, neither the government nor the opposition has rushed to seek a definitive ruling.

But Zelensky had already sabotaged the court, rendering it almost incapable of doing its job, according to former Ukrainian Prime Minister Nikolay Azarov.

Ukrainian media commentators argue that the Constitutional Court is unable to solve the dilemma of Zelensky's legitimacy because it is "hindered by vacancies and politicization."

"Consequently, it’s uncertain how a Constitutional Court interpretation would unfold," the Kyiv Independent reported on May 22. "While 10 judges are sufficient to issue a binding decision, five of the 18 seats are vacant. Of the remaining 13, four were directly nominated by Poroshenko, one by the previous Verkhovna Rada, and four by two judicial conventions."

While it seems that Zelensky's regime fears the court will deprive their leader of the last veneer of legitimacy, the media rumours it could soon have a new head appointed, as the power of the previous chairman has expired.

The authority to appoint a new chair resides with the presidency. There is speculation that Zelensky could choose parliamentary speaker Stefanchuk himself for the role — but that assumes that he still has the legitimacy to do so.

Without the Constitutional Court's clarification, Zelensky's legitimacy remains in question. If he is no longer president then Stefanchuk, as Verkhovna Rada chairman, could assume the duties of the head of the state under Article 112 of the Ukrainian Constitution.

Russian President Vladimir Putin cast doubt on Zelensky's legitimacy after May 20, pointing out that under the present vague situation only the Verkhovna Rada and its speaker retain clear authority in the absence of nation-wide elections.