Kazakhstan needs to change the paradigm of development from crony capitalism and the monopolisation of all important spheres (starting from the economy through to civil society) in one hand and dependence of the people on the state to a new paradigm of free economic development with rule of law and an independent civil society which protects the public interest.

The consolidation of power by Nazarbayev has led to a lack of real political opposition and independent media, a strengthening of the repressive apparatus (police, prosecutors, courts, and national security agencies) and a dramatic shrinking of civic space in Kazakhstan. This process has lasted for the past 25 years. In result, the society, consisting of people dependent on the state, is vulnerable and unable to control its country or defend its interests. Dependence on the state takes many different forms, from pensions, to scholarships and grants for students, benefits and allowances for large families, and people with disabilities, as well as unemployment benefits. This means, in our view, that there is economic dependence as there are limited possibilities to find a job for independent people in this monopolised economy.

Currently political power in Kazakhstan is split between the oligarchic groups with the support of law enforcement. In our view, changes to this system should start with constitutional reform and then subsequent administrative and territorial reform to build a new system of self-governance, which will entail a radical reform of all other legislation, including the electoral system.

The constitution is the basis of legal system. Constitutional reform in Kazakhstan should include not only changing the Constitution of Kazakhstan, but changing the electoral legislation, the competence of the President and Parliament, the legislation about political parties, trade unions and the structure of the Government and other issues. To establish the real system of self-governance it is necessary to change the system of dividing the country’s territories into regions. In our opinion, the number of regions at the moment fully reflects the idea of centralisation and monopolisation of all financial flows in one hand. For example, the Karaganda region with a territory equal to the size of several European countries is governed by one person – the Akim of the region. We propose the creation of 44 regions instead of the current 19. In regards to the de-monopolisation of the political system, there is a need to divide the budget into central and local with a fairer division. It will allow the residents to participate in making decisions and governance, for example, to form the budget of their region or district. In our view, this will have a positive effect on infrastructure projects and give an impetus to the development of business independent from the center, as well as weaken the power and influence of the oligarchs. Rule of law and a strong civil society could be the limiting factor on the influence of oligarchs on the local level.

Different groups of Kazakhstani society (including political activists, non-registered political parties, NGOs, ordinary people) are discussing on the social media the issue of changing the presidential form of government to a parliamentary system. Part of society presents the parliamentary form as a panacea for dictatorship and the concentration of power in one hand. However, in the current conditions in Kazakhstan, a purely parliamentary form carries the risks of oligarchisation of the Parliament. We believe that at this historical moment, Kazakhstan needs a mixed, presidential-parliamentary form of government. It should be borne with Kazakh history in mind, that personality that has played and continues to play a large role. The society is constantly discussing the question of who can be the leader of the people in the transitional post-Nazarbayev period. The institutions of parliamentarism, by analogy with Europe, have not yet been formed, therefore, for the transitional period, we consider it necessary to retain the President and make a choice in favour of a mixed system of power, a presidential-parliamentary system.

Civil society could play the main role in expressing the public demands for change. In response to the request of society, our organisation has developed a draft of the new Constitution of the Republic of Kazakhstan (hereinafter referred to as the Draft), taking as a basis the current Constitution of the Republic of Kazakhstan. This draft is still in the works and is not yet published. Our draft at the moment is a concept of possible changes. During its preparation, the experience of modern constitutionalism of the US, Singapore, Poland, Ukraine and Kazakhstan were studied. At the same time, the Polish experience (not including recent changes by the current ruling party) gained priority due to the presence of a number of similar conditions (a unitary state, the former Soviet experience, and a successful integration into the European community).

The project proposes to create a mixed system of a presidential-parliamentary republic. Elections to the Mazhilis and the Senate are proposed to be made universal and direct, which implies the rejection of the proportional system (Mazhilis) and indirect elections (Senate). The elections would be held in single-mandate majoritarian constituencies. The role of parties in democratic systems is to unite people on the same ideological platform. The possibility to create a political party not dependent on the ruling power at present is close to zero, taking into account the barriers for registration of a party (currently the law requires you to have 20,000 members to register party).[1] For this, it will be necessary to additionally amend the law on parties and reduce the requirements from 20,000 people to 200. These changes are due to the fact that the current parties have failed to earn the trust of society and are artificial formations both in the pro-government and in the opposition camp. In this we see the psychological aspect as well. In our society, individuals are traditionally more trusted than organisations.

The project assumes that from now on a ‘strong’ President will exist not as a result of a super-concentration of powers, but as a person with real political authority. The separation of powers and responsibilities allows you to create a system of political competition. At the same time, the President has the right to dissolve Parliament in certain circumstances under our proposals. The Members of the Parliament (MPs) elected either as individuals or party representatives can create factions in the Parliament.

The Government will be created by the President and receive a vote of confidence from the Mazhilis. In our concept, the Government is accountable to Parliament. The powers of the Prosecutor General are transferred to the Minister of Justice (this should entail a reform of the prosecutor’s office). Also, norms on local self-governance have been introduced into the text of the Draft, without which it is impossible to start the process of effective cleansing of corruption at the local level.

At the moment, we do not see the desire of the President and current Parliament to carry out such modernisation through constitutional and regional reform, since their task is to preserve and maintain their current monopoly on power. In our opinion, society can be the trigger of such changes, which, depending on the situation, can be carried out smoothly or abruptly.

Tasks of the new constitutional reform

• Choosing a model: Preserving a super-presidential republic, reducing the powers of the President in favour of Parliament, or creating a parliamentary republic. This requires the preservation of all the basic institutions of the supreme power, except for the Government. The Government will become part of the Cabinet of Ministers under the President.
• Restoration of the separation of powers into three branches of government, namely:
  • The executive branch – the President and his cabinet;
  • Legislature – the Senate and Mazhilis; and
  • The judiciary is the Supreme Court with the power to hear cases of violation of constitutional norms.
• Checks and balances: The branches of government could be achieved by clarifying powers, including in relation to each other, for which it is necessary to clarify the procedure for dissolving Parliament, the right of veto, impeachment, and resignation of members of the cabinet of ministers under the President.
• Administrative and territorial reform as a tool for solving a number of tasks related to the formation of branches of government. In this matter, we propose to radically change the territorial division of Kazakhstan. As a result of the reform, 44 territorial communities are formed instead of 19 regions and cities of republican significance. Additionally, it will be necessary to adopt a law on local self-government (LSG) and amend the law on local government to form local authorities and create LSG bodies.
• Restoration of the representative function of the Parliament, for which we propose to increase the number of Senate deputies to 88. Senate deputies will be directly elected by citizens, two from each territorial community, the number of which would now be 44. We also propose the number of Mazhilis deputies to be 219 people. Elections to the Mazhilis are held in majoritarian multi-member constituencies in proportion to the number of voters.
• Elimination of the imperative mandate of the deputies: The mandate of a deputy is valid for the entire term of office, regardless of his party affiliation. The deputy must be allowed to act independently both from the party faction in Parliament and from pressure from the executive branch.
• Restoring the legislative function of Parliament: Provide MPs with the right to initiate legislation on all bills, except for the draft budget law. This proposal should be implemented in the second wave of changes only after the imperative mandate of the deputies is eliminated.
• Judicial reform: We propose to reduce the number of judges of the Supreme Court to nine judges. At the same time, three subjects will be able to nominate judges to the Supreme Court – the President (two judges), the Mazhilis (four judges), and the Senate (three judges). As part of the judicial reform, we propose to implement the following:
  • Enhancing the role of the courts in declaring laws unconstitutional;
  • Enhancing the role of courts in recognising acts of executive authorities, state agencies, councils and enterprises as illegal;
  • The introduction of rules allowing for the filing of claims in the interests of an unlimited number of persons – in defense of public interests; and
  • Liquidation of the prosecutor’s office and its affiliation to the Ministry of Justice. In this case, in order to prevent concentration of powers, the Committee of the Penitentiary System, which was proposed to be subordinated to the Ministry of Justice, should be made an independent body created or established by the Parliament.
• Restoring the powers of the branches of government by aligning the powers of subsidiary bodies – the Security Council, the Legal Policy Council, etc. The activities of such subsidiary bodies must be brought in line with the principle of separation of powers and not violate the constitutional prerogative of the bodies and branches of government.
• Strengthening the role of society and the individual citizen in decision-making and participation in the management of state affairs. This requires the restoration of self-nomination during the presidential elections, as well as the restoration of majoritarian elections to maslikhats (local representative bodies) and the new LSG bodies.
• Reducing the state apparatus and bringing the decision-making level closer to citizens where they live. As a result of the administrative-territorial reform, the regional and district levels of government will be liquidated. Instead, a three-tier system of local territorial and self-governance will be created, namely Territorial community (TC), Aul District and Aul (Aul in Kazakh means village). At the level of the Territorial community and the Aul District there will be their own budgets and maslikhats.
• Public administration will remain for some state functions at the TC level and above at the interregional level in the form of offices or departments. For example the border or customs service.
• Disputes between government agencies and the TCs on issues of competence will be resolved in interdistrict courts of administrative justice.

In our opinion, judicial reform is the most important part of Kazakhstan’s modernisation.

There is a need to support grassroots initiatives in business. Using modern digital technologies to do business will allow people to be less dependent on the state. Independent people create an independent civil society. In parallel to these processes the active part of civil society should push the Government to reform the justice system. In the last hundred years the power has been in the hands of NKVD (currently MIA) and BCHK (KGB – Committee of national security), whose aim is to protect power and privileges. This repressive system needs to be destroyed and new law enforcement systems need to be built on the basis of human rights which are the common values for all the people without discrimination. All these changes will make the change of paradigm that Kazakhstan so desperately needs.

Aina Shormanbayeva and Amangeldy Shormanbayev are human rights defenders at the International Legal Initiative (ILI) with more than 20 years’ experience in protecting human rights in Kazakhstan. Since 2010 they are working in International Legal Initiative, one of the leading independent human rights defending organisations of Kazakhstan. Amangeldy Shormanbayev is a specialist on constitutional law, election, rule of law and political rights. Aina Shormanbayeva is a specialist on civil rights, as well as economic and social rights.

[1] Article 10(6) of the Law of Republic of Kazakhstan about political parties #344-II of 15 July 2002. See (in Russian) https://online.zakon.kz/Document/?doc_id=1032141&doc_id2=1032141#activate_doc=2&pos=22;-188&pos2=4;-80