Would a political agreement resolve all uncertainties surrounding the formation of Kosovo's institutions?

Although the Constitutional Court has clarified the legal dilemmas surrounding the formation of Kosovo's institutions through its rulings, the process of establishing the new authorities continues to face the risk of political deadlock. According to experts interviewed by Kosovo Online, future blockages may still occur—not because of constitutional ambiguities, but owing to the lack of political will and compromise among the political parties.

Written by: Milena Miladinovic

According to the Constitutional Court's interpretation, the procedure is clear: the deadline for constituting the Assembly of Kosovo is 7 August, after which the 30-day period for forming the Government of Kosovo and the 60-day deadline for electing a new President begin.

However, questions remain as to whether the Acting President may confer the mandate to form a new government, or whether this should instead be done by a duly elected President, as well as how the President is to be elected in practice.

Representatives of opposition parties in Kosovo have argued that, once the Assembly has been constituted, the President of Kosovo should be elected first, followed only then by the formation of the Government.

Since the issue of the presidency was the reason Kosovo returned to elections, the interlocutors interviewed by Kosovo Online likewise consider resolving that issue a priority over the formation of the Government. The question remains, however, whether the Self-Determination Movement (Vetëvendosje) will adopt such an approach or whether the Constitutional Court will once again be called upon to resolve political disputes.

Experts on Kosovo's political affairs told the portal that previous Constitutional Court rulings have resolved almost all legal uncertainties concerning the establishment of new institutions and the election of the President. Nevertheless, they argued that political parties continue to create constitutional crises that were never envisaged when Kosovo's Constitution was drafted.

In their view, a political agreement would eliminate the remaining uncertainties.

Legal Uncertainty or Lack of Political Will?

University professor Kolë Krasniqi stated that the Constitutional Court has clarified most of the procedures governing the constitution of Kosovo's Assembly, the formation of the Government and the election of the President, stressing that a distinction must be made between legal uncertainty and a lack of political will.

Speaking to Kosovo Online, Krasniqi said that, although the legal issues have largely been settled, the possibility of political deadlock remains because the Constitutional Court cannot compel political parties to reach a compromise.

"A distinction must be made between legal uncertainty and the lack of political will. Through its rulings, the Constitutional Court has clarified most of the procedures for constituting the Assembly, forming the Government and electing the President. It is now established that the Assembly is considered constituted only after the election of the Speaker and the five Deputy Speakers; that the first candidate for Prime Minister is nominated by the winning party; and that the Government is elected by at least 61 votes. Likewise, when the country does not have a President serving a full mandate, the procedure for electing a new President must begin after the Assembly has been constituted and must be completed within the constitutional deadline of 60 days. Otherwise, the Assembly is dissolved. Therefore, the principal legal dilemmas have been resolved. However, the risk of deadlock remains because the Court can determine procedures and deadlines, but it cannot compel political parties to secure a parliamentary majority or reach a political compromise."

According to Krasniqi, the Assembly of Kosovo should first be constituted in order to pave the way for the formation of the Government and the election of the President. Under the current circumstances, however, he believes the presidential issue should take priority.

"The institution that must first be constituted is the Assembly of Kosovo. Without its constitution, neither the presidential election procedure nor the vote on the Government can take place. Once the Assembly has been constituted, the Constitution does not clearly establish an absolute order between the election of the President and the formation of the Government. The Acting President may grant the mandate to a candidate for Prime Minister. However, under the current circumstances, the election of the President should have institutional priority because the office of President is currently exercised only on an acting basis and for a limited period. The incumbent Government continues to perform certain functions, whereas the absence of a President serving a full mandate affects the country's representation, constitutional appointments, foreign policy and security."

Nevertheless, Krasniqi believes that the optimal solution would be a comprehensive political agreement providing simultaneously for both the election of the President and the formation of the Government.
Regarding the presidential election procedure, he stressed that the freedom of members of parliament to vote must not be confused with a boycott of the process.

"According to the Constitutional Court's current interpretation, at least 80 members of parliament must participate in the first two rounds of voting. A candidate must receive 80 votes to be elected. In the third round, the participation of at least 61 members is required, and the candidate is elected with a minimum of 61 votes. Mere physical presence in the chamber is therefore insufficient; participation in the vote is mandatory. Legally, this is an obligatory requirement. In practice, however, it can become a mechanism for obstruction because, if 41 members refuse to vote, the procedure cannot proceed to the third round. Members of parliament cannot be compelled to vote for a particular candidate, but they do have a constitutional obligation to participate in the process. The freedom to vote against a candidate must be distinguished from boycotting the electoral process."

Krasniqi further noted that one of the most serious unresolved issues concerns the expiry of the six-month mandate of the Acting President of Kosovo.

He explained that, should a new Speaker of the Assembly be elected, the office of Acting President would pass to that person. However, the Constitutional Court has not clarified whether the six-month period would continue running or begin anew.

"This remains one of the most serious and least regulated issues under the Constitution. Article 90 provides that the acting exercise of the presidential mandate may not exceed six months. In this case, that period expires on 4 October 2026. If a new Speaker of the Assembly is elected in the meantime, the office of Acting President may pass to that individual because it is attached to the office rather than the person. However, changing the Speaker should not trigger a new six-month period, as that would allow the temporary arrangement to continue indefinitely. The Constitution does not specify who assumes the office once the six-month period expires. Therefore, if a President is not elected in time, a constitutional vacuum could arise. In such circumstances, an urgent interpretation by the Constitutional Court would be required."

He concluded that the most sustainable solution would be to elect the President within the constitutional deadline and amend the Constitution to include clear provisions governing the continuity of the presidential office.

President First, Then Government

Dušan Radakovic, Executive Director of the Advocacy Center for Democratic Culture (ACDC), believes that once the election results have been certified, the Assembly should first be constituted, followed by the election of the President of Kosovo, with the formation of the Government coming only afterwards.
Speaking to Kosovo Online, Radakovic argued that the presidential election was precisely the issue that led Kosovo to early elections and therefore must be resolved immediately after the Assembly has been constituted.

"The Constitutional Court clearly explained both the procedure and the reasons for the fall of the previous government, namely the issue of the President. My interpretation, shared by legal experts who follow Kosovo's judiciary and legislation, especially constitutional law, is that the Assembly must first be constituted. Only then can the primary issue that gave rise to these elections—the election of the President—be resolved. Based on the legislation, the Assembly must first be constituted, after which the presidential election should immediately follow in three rounds. If no President is elected in those three rounds, the Government cannot be formed. The elections were called because there were not enough members of parliament—80—to elect the President. The sequence is therefore: Assembly, President, and only then the vote on the Government."

He added that the Constitutional Court has clearly established the presidential election procedure: in the first and second rounds the candidate must secure 80 votes, while in the third round 61 votes are sufficient, provided that 80 members of parliament are present.

"Lawyers may interpret the provisions differently, but the Constitutional Court has been very clear, and this procedure has been confirmed on several occasions. If there are fewer than 80 members present in the third round, or if 80 are present but the candidate fails to obtain at least 61 votes, new parliamentary elections are automatically called, and the process is repeated until the conditions for electing a President are met."

Further Deadlocks Remain Possible

Political analyst Ognjen Gogic believes that the dilemmas surrounding the formation of Kosovo's institutions have arisen not because the Constitution is unclear, but because political parties have created constitutional crises.

Speaking to Kosovo Online, Gogic argued that every major impasse has stemmed from the parties' unwillingness to resolve political disagreements.

"The dilemmas that accompanied the formation of institutions over the past two years are not the result of constitutional ambiguity. Political parties created situations that the Constitution never envisaged. Their inability to reach agreement, delays in forming institutions and parliamentary blockades created constitutional gaps because these were circumstances no one anticipated when the Constitution and legislation were drafted. That necessitated intervention by the Constitutional Court to propose ways of unblocking the process. Responsibility therefore lies with the political parties, which remain unwilling to compromise and instead create constitutional crises that the Court is then required to resolve."
With regard to the election of Deputy Speakers representing non-majority communities, Gogic said the Constitutional Court has already clarified the relevant procedure, although this does not eliminate the possibility of future political deadlocks.

He added that the principal issue now concerns whether the Acting President of Kosovo has the authority to confer the mandate to form a new government, recalling the situation in 2021 when Glauk Konjufca simultaneously served as Speaker of the Assembly and Acting President.

According to Gogic, this question may again come before the Constitutional Court.

"This would once again simply be a consequence of the absence of political agreement in parliament. Had the parties reached an agreement on both the Government and the President, this issue would never have arisen."

He warned that Kosovo is once again entering legally uncharted territory.

"If political parties continue acting in this manner, Kosovo may once again find itself in unexplored legal territory, where it becomes unclear which constitutional provisions apply and how they should be interpreted."

Regarding the presidential election, Gogic noted that, according to the Constitutional Court, a quorum is required during the first two rounds of voting and that this interpretation has long been accepted.
Nevertheless, he warned that additional blockages remain possible because the Constitutional Court has not prescribed sanctions either for failing to complete the constitutive session of the Assembly within the statutory deadline or for members of parliament who refuse to participate in parliamentary proceedings.

"The Constitutional Court repeatedly emphasises that members of parliament are obliged to participate in parliamentary proceedings—to vote either in favour or against—but above all to take part in the work of parliament. They fail to do so and thereby obstruct the election of the President. Yet there are no sanctions, even though such conduct violates both the spirit and the letter of the Constitution. Consequently, new situations are likely to arise that will once again require the Constitutional Court to intervene."

Gogic added that another issue likely to become the subject of constitutional litigation concerns the 60-day deadline for electing a new President of Kosovo.