‘Zajednica’ poses no threat to Kosovo

On Monday, March 26, almost five years after the initial agreement on the ‘Zajednica,’ or the Association/ Community of Serb-majority Municipalities, ASM, was reached, and three years after it was further defined in a separate agreement(General Principles), the Kosovo government finally took to commencing the process of its establishment by organizing a meeting and agreeing to establish cross-institutional working groups that would be in charge of establishing ‘Zajednica’ with the support of the OSCE mission in Kosovo. In perfect keeping with the flow of negotiations so far, Kosovo Serb political representatives were not part of this decision. On the contrary, they were far from Prishtina, convening to meet and discuss with the Serbian government officials the future of negotiations.

By the end of the day, what might have been a historic moment in the relationship between Kosovo’s Serb and Albanian communities turned into a spectacle of provocations, excessive use of force, threats and flirting with yet another ethnic conflict (also with the potential to be historic, but it has happened so often that by now it has grown old).

The result: thorough humiliation of both Serbian and Kosovo governments and a return of the type of rhetoric that has not been heard since 2004. The possible reasons: many, and none good enough to risk what was risked last Monday.

Interestingly, although deeply unsettling, Djuric’s entering Kosovo without the permission of Kosovo authorities and his spectacular arrest that took place last Monday intentionally or unintentionally marked another game-changer in the Brussels dialogue. The special unit of Kosovo Police played the same role back in 2011 when their interventions in Zubin Potok and Leposavic gave the first push to the implementation of the first agreement, the agreement on IBM (which stands for, depending on who is talking, Integrated Border Management or Integrated Boundary Line Management).

Although it is too difficult to exclude the possibility that this is just a indication of what is cooking up to be the beginning of an unprecedented institutional coup by the Kosovo President, it does look like after this intervention the first push for the establishment of the Association/Community was made. Even the differences between the two interventions are mirrored: one happened at the beginning of the process, this one happened towards its end, the first exerted pressure on Serbia to implement the IBM, this one exerts pressure on Kosovo to establish the ‘Zajednica’. Both were most probably ordered by Hashim Thaci, but from different governing positions. The one thing that was different this time was the response of the Kosovo Serb community, which, compared to 2011, was far more reserved.

Unlike the deadly outcome and two years of barricades that followed the first special unit intervention in the north, in the aftermath of the newest intervention, Srpska Lista was seen, for the first time in their four-year engagement in central level institutions, to take a proactive approach to achieving what they profess to be the single most important goal of their policy – the establishment of ‘Zajednica’ which they promised to initiate by April 20. Meanwhile, on April 5, the Kosovo government reactivated the Management Team promising to draft the Statute of the Association/Community in four months time.

The move was not received well by Srpska Lista’s coalition partners and, I must say, unrightfully so, given that the initiative came from a political entity played by two different coalition partners and humiliated and beaten up by the Special Police with orders from the latest government they helped form.

What was overlooked from the very beginning (even by the Constitutional Court and most likely because of its original title in the agreement “Association/Community of Serb-majority municipalities in Kosovo”) is that ‘Zajednica’ is not necessarily envisaged as an Association as defined by the Articles 31 and 32 of the Law on Local-self-government, LLSG, but that it makes far more sense as a form of inter-municipal cooperation, as envisaged by Article 28 and 29 of the LLSG, and it is a considerably different form of cooperation than that realized through an association. Most notable difference is the fact that the employees of the administrative body are public servants appointed by the member municipalities (Article 11, paragraph 7 of Law No.04/L –010 on Inter-Municipal Cooperation, LIMC).

The signed agreements, as it was concluded many times before, were very vague about the legal framework and can be excruciatingly frustrating to analyze, but here is an attempt:

1) The Association/Community of Serb majority municipalities in Kosovo is established as an association/community of municipalities as foreseen by the First Agreement, the Law on ratification of the First Agreement and Kosovo law.

2) On the basis of the First Agreement which recognizes its distinct character, the Kosovo Government will adopt a decree directly applicable, which will be reviewed by the Constitutional Court. The Community/Association will be a legal entity defined by its Statute, which will comprise at least the elements set out below.

3) The Statute will be adopted by a constituent assembly composed of the voted members of the assemblies of the participating municipalities.

As it is evident, except for the very broad definition of “Kosovo law,” the agreement does not specify which laws, so at this point it can either refer to the Law on freedom of Association in non-governmental organizations according to which the existing Association of Kosovo Municipalities, AKM, is formed, or the, LIMC, or any other law for that matter. Some clarity in regard to the legal framework is offered in the First Agreement where point 3 reads:

“The structures of the Association/ Community will be established on the same basis as the existing statute of the Association of Kosovo municipalities e.g. President, vice President, Assembly, Council.”

However, this point defines that ‘’Zajednica’’ will have the same structures as AKM, but not that it will be established in the same manner or have the same objectives. On the contrary, the very next point of the agreement states that “the participating municipalities shall be entitled to cooperate in exercising their powers through the Community / Association collectively.” This provision alone allows for far more competences than those foreseen by the statute of AKM and is possible only under LIMC where in the Article 5, paragraph 1.2 it is stated that municipal cooperation is based on “performance of one or more own or extended competences of the municipalities.”

Truth be told, inter-municipal cooperation is a form of cooperation that is closest to the body described in General principles, but does not encompass it fully. The correct recipe for ‘Zajednica’ cannot be found in the existing Kosovo laws, otherwise, its establishment would not have been discussed in the Brussels negotiation process and its formation would not be a subject of political controversy. A hybrid body between the administrative body formed according to the LIMC and structured in the same way as the existing AKM is the closest to what the agreements describe.

Now to the executive powers. Article 40 of LLSG states that the decision-making power of a municipal assembly cannot be delegated, but this does not mean that the body formed according to the LIMC cannot execute decisions made by the assemblies of member municipalities. In other words, the administrative body formed according to the LIMC cannot make decisions, but it  could execute the decisions made by a joint assembly of the municipalities, which have formalized their cooperation through this body. Let us now refer to the agreements.

The Principles foresee for  ‘Zajednica’ to have an assembly consisting of the delegated members chosen among the local assembly members of the participating municipalities.

If the 10 municipalities agreed to form a joint administrative body or a public institution in accordance with LIMC, and the joint assemblies of these municipalities were the ones to make decisions that would be implemented by the body, then the pool of people making the decisions will be the same as foreseen in the Brussels Agreement.

The main question is whether the ‘Zajednica’ will be established in such a way to make it possible for the members of the 10 municipal assemblies, delegated to the assembly of ‘Zajednica,’ to make joint decisions or adopt regulations to be executed by the joint administrative body (the catch of the Article 40 of LLSG). Also, it is questionable if all members of the 10 municipal assembly can hold a joint assembly session and make executive decisions (instead of just making recommendations). If it is not possible for the 10 municipal assemblies to hold joint sessions, there is always a possibility for the 10 municipalities to organize individual sessions with the same point of discussion and, should they all adopt a decision or a regulation, annex the agreement on inter-municipal cooperation (in this particular example, the agreement on inter-municipal cooperation is actually ‘the Statute’). Then the administrative body could execute the decision once Prishtina approves the amended Statute.

In this setup, ‘Zajednica’ would have all the competencies the municipalities have, including the crucially important extended competencies in education and provision of healthcare services. Of course, it would be impractical for ‘Zajednica’ to be entrusted with every single municipal competency, which is why its scope will probably just be limited to primary, secondary and tertiary healthcare and education, urban planning and infrastructural projects, cross-border cooperation and social services. It would also make sense to establish Public Utility Companies which would service several neighboring municipalities.

Finally, the agreements are shockingly unclear as to how ‘Zajednica’ should be formed, stating that the Kosovo Government will adopt a decree directly applicable.  But if we refer back to the law on inter-municipal cooperation, even though the final approval is up to the government, the initiative for forming inter-municipal cooperation can come either from the mayors of the member municipalities, 1/3 of the members of the municipal assemblies, five per cent of the enlisted voters of the participating municipalities, or the government. If the announced actions of Srpska Lista   will be limited to sending an initiative to the government with a draft Statute which defines the scope of partnership, competences to be performed under the joint administrative body, financing mode of the joint administrative body and procedures applicable for this particular body (refer to Article 11, paragraph 3 of LIMC), the move would be belated, but wise.

This would  pressure the Kosovo government to finally address the obligations taken on the First Agreement and General Principles without the risk of spurring further tensions. On the other hand, the government of Kosovo will have to be flexible as accommodating ‘Zajednica’ outlined in the General Principles into Kosovo’s legal framework will require serious amendments of the existing legislation, maybe even an adoption of a separate law on ‘Zajednica’. Unfortunately, given the recent developments and the dynamics between the coalition partners, this scenario is perhaps only wishful thinking.

With this being said there remains only one message to be sent to the majority population: ‘Zajednica’, however it might look once the process to create it is finished, is no threat to Kosovo. It will serve two purposes, one of them depressingly gloomy. First, it will provide Serbia with a face-saving bargain for any compromise that finds its way into the comprehensive normalization agreement. Second, it will provide the Kosovo Serb community with enough financial security to continue leaving Kosovo gradually and in a dignified, peaceful manner. In 50 years’ time there will barely be any Serbs in Kosovo left, and ‘Zajednica’ would look like a peaceful conclusion to the saga of the two nations that could not live together.

The opinions expressed in the opinion section are those of the authors only and do not necessarily reflect the views of BIRN.