Zelensky
© STR/NurPhoto/Getty ImagesUkraine President Volodymyr Zelensky at a press conference in Kyiv • December 19, 2023
As Ukraine approaches the tenth anniversary of the event that led to the overthrow of its President Viktor Yanukovych - the 20 February 2014 false flag, snipers' terrorist attack organized by the Maidan protests' ultranationalist and neofascist elements - Kiev is moving seemingly inexorably to yet another illegal or at least extralegal overthrow of its leadership. Indeed, with the passing of the baton by the post-Soviet Kravchuk-Kuchma generation, Ukraine has been moving for nearly two decades from one illegal seizure of power to another: the 2004 'orange revolution', the February 2014 Maidan protests and violent revolt, and now the impending regime change. The impending change of power can occur by one of several or a combination of transformative paths.
Author's note: see also:
None of these modalities will have much if any legal, constitutional basis. Ukraine is facing a grave legitimacy and constitutional crisis, the likes of which it has never faced before that, moreover, is occurring not just during a war but one that is being lost and at a time the battle fronts and even army are on the verge of collapse.

Zaluzhny zelensky ukraine military
Ukrainian President Volodymyr Zelensky and Commander-in-Chief General Valery Zaluzhny
The latest deterioration or the political and constitutional order occurred on January 31st, when, according to reports, President Volodomyr Zelenskiy attempted to fire his top military commander, Gen. Valeriy Zaluzhniy. The general refused, even in the face of reported blandishments such as an ambassadorship in a Western country and the post of Defense and security Council Secretary. Zaluzhniy reportedly at a minimum refused to resign and at a maximum refused to be fired. Either way, the event marks a disastrous decay in Ukrainian civil-military relations. The latter would indicate a pre-coup situation, indeed a potentially revolutionary situation, in which two competing groups claim sovereignty within the country. To this grave picture must be added the accompanying reports that Ukraine's second-most influential general, Gen. Oleksandr Syrskiy, and GRU Director Kirill Budanov both refused Zelenskiy's offers to succeed Zaluzhniy. This suggests that almost all, if not all the top military leadership is opposed to Zelenskiy or in the case of the latter two persons at least do not want to be associated with the beleaguered president, as his stock continues to decline. Recent reports indicate that Zelenskiy us preparing to pull the trigger and finally dismiss Zaluzhniy without the requested or demanded resignation letter. The smell of a military or some other form of palace coup hangs in Kiev's air. US Deputy Secretary of State Victoria Nuland's sudden recent trip to Kiev the next day suggests the US has got involved in the crisis in one way or another. There were reports that Washington intervened to stop Zaluzhniy's firing and Nuland's bearing missiles (rather than 'cookies') to the faltering Maidan regime she helped to establish were probably intended to stabilize or otherwise influence the intra-elite infighting. Thus, a general illegitimacy and illegality of the Maidan regime under Zelenskiy are already in motion.

An additional legitimacy crisis that is emerging could force the hands of potential coup-plotters such as Zaluzhniy, Budanov, former President Petro Poroshenko, mayor of Kiev Vitaliy Klichko, and various far right, ultranationalist and neofascist actors to act to somehow salvage the situation from an increasingly unpopular, delusional, and feckless president. The larger legitimacy-constitutional crisis, which acts as a pressure cooker on the situational crisis, was created by Zelenskiy himself when he cancelled the presidential elections scheduled for March 30th. Of course, Zelenskiy has the option of changing his mind and setting a new election date perhaps by as late as mid-March, but this is unlikely given his narcissism and lack of judgement. If he did so, he could possibly arrest the present de-legitimization process. For example, he could set a new date of April 20th, the date he was elected in 2019, or perhaps even as late as the first decade of May, since his term legally expires on May 20th. A May 10th election would require a campaign beginning no later than April 10th, providing for a month-long campaign. In this scenario, Zelenskiy has a larger window of opportunity to act, but he would suffer another blow to his authority by reversing his previous decision to cancel the presidential election (for which neither the constitution nor the law on martial law allows). In sum, realization of this scenario is highly unlikely.

Article 19 of the 2015 basic law 'On the Legal Regime of Martial law' bans elections during martial law. The same law establishes the president as top commander-in-chief of the armed forces with the right to form military bodies and make appointments of military personne. Thus, if Zaluzhniy refused to be fired, he will have violated martial law and could be subject to arrest. As he is already the subject of a treason allegation for supposedly failing to defend Kherson in the first weeks of the war, Zaluzhniy's position becomes dangerously tenuous. These legal facts or at least briefs cannot but raise the temperature of the overall Zelenskiy-Zaluzhniy, civil-military conflict.

The imminent crisis is posed by two impending deadlines: the expirations of the decree on martial law and of Zelenskiy's presidential term. The current decree establishing martial law, adopted on 14 February 2022 and renewed for 90 days nine times since, expires on 14 February 2024 and must be extended for the tenth time now through a presidential decree supported by a majority of deputies in the parliament or Verkhovna Rada (Rada) within two days after submission for a vote. If martial law is not extended by February 14th, the de facto military rule of the country and accompanying measures to ensure political stability and economic mobilization in support of the war effort will end. Ukrainians will have their civil rights restored, among them political demonstrations can be resumed and perhaps the many political parties banned by Zelenskiy after the beginning of the war could be reinstated. In addition, many of the martial law's measures for mobilizing the people and economy for the war will become invalid. This is important on the background of the crumbling front lines, shortage of weapons, personnel, and resources needed in order to maintain some semblance of a military effort. In sum, the end of martial law would hamper Zelenskiy's control over the armed forces, cripple the war effort further, and allow political mobilization against Zelenskiy's leadership and/or war effort.

Moreover, when martial law is due to be extended again on June 4th, Zelenskiy could be accused by his opponents of having no authority to do so, because there will be a less than clear basis for him to continue occupying the Office of the President of Ukraine, which the Ukrainian Constitution stipulates the president is elected for a five-year term. Presidential elections are legally mandated to occur within months if a presidential inauguration as required by the constitution is to take place by May 20th - the last day of Zelenskiy's five-year presidential term. Politically speaking, the election campaign should begin earlier (approximately now) rather than later, given the time needed for a campaign, elections, and pre-inaugural preparations. Thus, it will be clear to the political elite and populace soon that there will be no election unless Zelenskiy is forced to reverse his decision. By mid-April at the latest we can expect robust maneuvering - perhaps a coup of some sort - if no presidential election is being broached. This is not to say that the election issue will be the main driver for a coup, revolt, or, less likely, a revolution. It is to say that the issue could be used as a quasi-legal, quasi-constitutional argument to cast doubt on Zelenskiy's legitimacy by those hoping to execute a coup that will be accepted by the masses. Ukraine's weak legal culture, not to mention the incompetence and corruption of the Maidan regime, its ruling president and his allies. All this would form a matrix of arguable illegitimacy and if not forming a constitutional crisis. Again, by May 20th — five years from his 20 May 2019 inauguration - Zelenskiy has a conceivably arguable weak constitutional or legal status as president of Ukraine, upon which he can claim leadership either of the country under the constitution or of its armed forces under martial law under the law 'On the Legal Regime of Martial law' states. A November 2023 opinion survey carried out by Kiev's International Institute of Sociology showed more than 80% of respondents wanted to delay elections until the war has ended, but some Rada deputies seemed intent on revising the law in order to allow the holding of elections. Importantly, they did so in reference to the continuing war, the end of which appears even less near now and the outcome darker, with a president insisting on its pursuit and other delusional policies. At the same time, some of Kiev's most ardent Western sponsors were dissatisfied with Zelenskiy's decision to forego elections. In sum, Zelenskiy will be seen by some, indeed more and more opposition figures and average citizens, to be out of office and having no legitimate power no later than May 20th and perhaps a good deal earlier.

There are legal maneuvers Zelenskiy might try if opponents challenge his right to rule in court, however unlikely that might be. The Office of the President (OP) could argue to the Constitutional Court that Article 19 Ukraine's constitution clearly states that there will be no elections during a period of martial law. It also might argue that 'the constitution is not a suicide pact' and that its Article 83 stipulates that if a Rada term expires during martial law, then new parliamentary elections and convocation will occur after the cessation of martial law. Therefore, the argument would conclude by noting that this principle should be applied to the presidency as well, allowing for elections to be held soon after martial law ends. However, opponents would argue that if this principle was meant by the constitution's drafters to apply to the presidency, then the law 'On the Legal Regime of Martial Law' would have stipulated this point clearly as it did in regard to the Rada.

Alternatively, the OP could appeal to the Constitutional Court, which it can manipulate, to rule on which stipulation in the Ukrainian constitution prevails in the event that they contradict each other. The constitution states both that (1) elections take place on the last Sunday in October and that (2) in the case of the early cessation of a term mid-term elections must be held within three months - in our case, mid-term presidential elections were 'forced' by the Maidan overthrow of Yanukovych in February 2014 and held in May of that year rather than October. Much of this legal maneuvering by presidential and opposition operatives alike would involve clear distortions of the intent of the constitution, but this is Ukraine after all.

In political crises such as the one in Ukraine, the desire of those who may seek to seize power from Zelenskiy will be inclined to find the easiest legal path to justify their actions rather than waiting until May 21st by which time Ukraine's ruin will be advanced far beyond remedy. In order to act earlier, Zelenskiy's opponents may orient themselves around the dates of March 31st, when he may have violated the constitution by not holding presidential elections, or February 14th before Zelenskiy can renew martial law. Thus, it appears that we can orient ourselves around a month's time frame forward in expecting momentous events in Kiev. Could a Zaluzhniy-Poroshenko-Klichko alliance convince Rada deputies to vote against martial law, which in the absence of elections would then be required?

Zelenskiy might seek to base his legitimacy and authority on a new, less 'rational-legal' basis, using the war or martial law as a pretext. For example, he could seek to buttress any continuation of his rule with a new basis of legitimacy connected with popular sovereignty, as is accepted practice in legitimate republics, or using the war establish some new 'temporary' order. For example, he might find an arguably, though not necessarily republicanist way of tapping into popular sovereignty through an election by parliament as part of a new article in the next martial law decree that must be approved by the Rada. Its own elections should be set for July at the latest to seat a new membership by the end of the present convocation's term in August. It should be noted that Zelenskiy and his Servants of the People party's Rada majority has suffered a rift, and Zelenskiy is known to be planning to create a new structure of military veterans or replace the party's deputies in any elections with the same. So the president's majority may already be a thing of the past.

Beyond the background of a failing war effort and grave dangers to the regime and state, the challenge to any moderate, more or less peaceful outcome in these multi-headed crisis - civil-military, legitimacy, legal-constitutional - is heightened by Ukrainian's political culture. It is plagued by three problems. The least important is the culture's anarchic strain or strand imbibed from the Cossack heritage that many Ukrainians share and the Maidan and previous post-Soviet governments have attempted to appropriate by establishing various Cossack Hetmans, such as Ivan Mazepa (1639-1709), as national heroes. The Cossacks are a kind of Ukrainian sub-ethnos characterized by a significant anarchism that eschews a state-based order and written laws and treaties. They lived in their heyday as a kind of raiding subculture resembling a mix of Russian wanderers (stranniki) and everyday pirates on the land. Later, Cossack hosts and 'hundreds' resembled more organized military formations but retained some of the disorderly, anarchic way of life and distaste of a formal state. This mixes with a second cultural element: the Stepan Banderist ultranationalism and neofascism of groups like Azov, Right Sector, and many more. The combination of Cossack legacy anarchism and Ukrainian Banderist neofascism produces a somewhat conflictive, if not violent element in the culture. While this might serve Ukraine in war fighting, it serves it badly in politics. Thirdly, there is the weakly institutionalized nature of today's Ukrainian state, burdened by its short lifespan, weak legal culture, society's weakly-rooted commitment to state institutions, state-renting oligarchs, corruption, criminality, and the like. Ukraine remains somewhat like Russia in the 'wild 1990s'.

These cultural factors lend Ukraine a metainstability that can rapidly devolve into division, internecine conflict, even civil war. Think Kiev and its environs during the Russian Revolution of 1917-1921. On the eve of the present NATO-Russia Ukrainian War, the US State Deptartment wrote a report on Ukraine, which detailed the semi-anarchy of the country, with its ubiquitous corruption, disappearances of politicians, murders of journalists, not to mention the rampant ultranationalist and neofascist violence and intimidation of state officials and institutions, including the courts

(See pp. 1-55 of the report).

Conclusion

On this legal background and the general situational context now extant in Ukraine, only scenarios damaging Zelenskiy's legitimacy and authority and those of Ukraine's political system and Maidan regime are possible, and they are likely to occur. With a war crisis and regime split, a power struggle over the state, regime, and war is intensifying. In such conditions, combined with a less than 'rational-legal' culture, as Max Weber put it, there is a good chance that the opposition coalescing against Zelenskiy will resort to quasi-legal arguments to further undermine the president's waning legitimacy.

But the legitimacy crisis in Ukraine goes far beyond Zelenskiy's failed leadership. The entire Maidan regime and elite are viewed by the population as being as corrupt and criminal as the pre-Maidan regime and Yanukovych government they replaced. What more can be thought about a regime so riven by corruption and criminality that its members steal weapons from brave and desperate troops fighting at the front in a war that the government chose over negotiations. Popular desperation, fear, and common sense will lead many Ukrainians to support a change of leadership by any means. Since martial law prohibits elections for accomplishing this task, either martial law must be repealed and elections held in war time, or the need for martial law must be obviated by a ceasefire and peace talks, or opposition forces must kick the game board over and start a new game by way of an illegal change of leadership. In pursuit of this goal, the emerging anti-Zelenskiy majority is likely to attempt to further undermine the legitimacy of the present government, if not the regime itself, by way of quasi-legal, quasi-constitutional arguments and maneuvers surrounding the martial law regime and lack of elections.

The legal legitimacy issue is not the main driver of Ukraine's pre-coup crisis politics, but it could be the straw that breaks the camel's back in the ongoing coup poker game. The next several months will tell if a coup is sparked.
Gordon M. Hahn, Ph.D., is an Expert Analyst at Corr Analytics, www.canalyt.com.

Dr. Hahn is the author of the new book: Russian Tselostnost': Wholeness in Russian Thought, Culture, History, and Politics (Europe Books, 2022). He has authored five previous, well-received books: The Russian Dilemma: Security, Vigilance, and Relations with the West from Ivan III to Putin (McFarland, 2021); Ukraine Over the Edge: Russia, the West, and the "New Cold War" (McFarland, 2018); The Caucasus Emirate Mujahedin: Global Jihadism in Russia's North Caucasus and Beyond (McFarland, 2014), Russia's Islamic Threat (Yale University Press, 2007), and Russia's Revolution From Above: Reform, Transition and Revolution in the Fall of the Soviet Communist Regime, 1985-2000 (Transaction, 2002). He also has published numerous think tank reports, academic articles, analyses, and commentaries in both English and Russian language media.