As we approach the 30^th anniversary of Kazakhstan’s independence this publication finds the country at an important inflection point in its history. The gradual passing of the torch from the First President (Nazarbayev) to President Tokayev, the growing articulation of social concerns in recent years as living standards have been squeezed for many, and the uncertain future that lies ahead for its economy given the global transition away from fossil fuels, all give cause for pause and reflection.

 

Over the last 30 years Kazakhstan’s ruling elite has delivered substantial economic growth – albeit particularly benefiting itself – and has mostly maintained stability between the country’s different ethnic groups. This has come at the clear cost of almost all political freedoms and many civil liberties. The Government and its supporters still argue that gradual change will enable Kazakhstan to transition to democracy and help ‘evolve’ the political culture in Kazakhstan. The Government’s critics, understandably point to the lack of change at the heart of the country’s political system over the last 30 years, where reforms have helped deliver improvements in the standards of living and the delivery of state services but have not lead to a meaningful transfer in political power from the elite to the citizen. The only political choice in Kazakhstan, such as Tokayev assuming the Presidency, is exercised by those already in power.

 

While President Tokayev has promised a ‘listening state’ and committed to delivering reforms that would improve freedoms and make the Government more responsive, so far change from what has gone before has been relatively limited. President Tokayev’s approach seems to be an updating of the existing path of modernisation without democratisation or reform within the system that improves state efficiency and outcomes while mostly retaining existing authoritarian power structures.

 

While the bulk of the population has so far broadly (if sometimes grudgingly) accepted the trade-off between stability and repression, the recent protest movements have highlighted that this cannot necessarily be taken for granted going forwards. The negative outlook for Kazakhstan’s oil and gas wealth, may further exacerbate the existing inequalities within society and frustration at the kleptocratic nature of the current system.[1]

 

So when examining how to try to achieve real change in Kazakhstan there are two main tracks that local activists are pursuing. As Colleen Wood puts in well in her essay ‘Some believe in incremental reform that is achieved through educating authorities and collaborating with government bodies. This involves close monitoring of abuses and going through proper legal channels to redress them; it involves going through the hoops required to register a political party, to try and run a campaign and to take a seat at the table.

 

Others prefer more expansive changes – the overhaul of Kazakhstan’s system of government from a superpresidential system to a parliamentary one, for example – to gradual reform. They opt for direct action and street protests over government working groups and committees, pointing to their constitutionally-protected right to peaceful assembly to justify skirting the required procedure for sanctioned protests. This ideological and tactical pluralism may not be ‘efficient,’ but securing the rights of all to participate in politics is central to improving Kazakhstan’s human rights record.’ 

 

What seems clear is that both approaches together are going to be needed in order to drive more fundamental change in Kazakhstan, both in terms of outcomes for citizens and in the nature of the system. Both sets of activists will need both increased local mobilisation and international support to help drive specific changes to make each path more navigable.

 

President Tokayev’s June 2021 Decree ‘On further human rights measures in Kazakhstan’ and the upcoming human rights action plan provide a helpful framework through which to assess the Government’s willingness to change its current course in response to input from local and international partners.^[2] Tokayev has committed the Government to take further steps to address:

• ‘The mechanisms of interaction with the UN treaty bodies and special procedures of the UN Human Rights Council;
• Ensuring the rights of victims of human trafficking;
• Human rights of citizens with disabilities;
• The elimination of discrimination against women;
• The right to freedom of association;
• The right to freedom of expression;
• The human right to life and public order;
• Increasing the efficiency of interaction with non-governmental organisations; and
• Human rights in criminal justice and enforcement, and prevention of torture and ill-treatment.’[3]

 

These are important topics but given past performance there is an understandable degree of skepticism that this will amount to substantive change in the more controversial aspects of this agenda. This publication has highlighted a number of key ways in which the Government of Kazakhstan could prove its sceptics wrong if it so chooses.

 

For example if the Government is genuine about wanting to build a partnership model with local civil society and to ‘increase the efficiency of its interactions’ with them it has to stop targeting NGOs with punitive tax inspections and it should reduce the deliberately burdensome reporting requirements created in 2015-16 designed to put pressure on such organisations. Their staff need to be protected from threats and harassment, with President Tokayev taking responsibility for the actions of his different ministries and agencies rather than allowing them to conflict with each other.

 

The decision to allow independent candidates for local Akims is an important step forwards, though the pre-qualification restrictions are a cause of concern. Ultimately, however, even gradual change within the system will require improving ‘freedom of association’ by making it easier for political parties to register than the current requirements for 20,000 members and a 1,000 member initiating conference and a similar number of signatories. Aina Shormanbayeva and Amangeldy Shormanbayev suggest that a more suitable number for registration would be 200. Even more than the law on paper there needs to be a clear political signal from President Tokayev that those who participate in the founding of a political party will not be targeted for reprisals, enabling those currently unregistered or nascent political parties to become registered and stand at future elections. At present there is no indication that those in power wish to substantively alter the nature of Kazakhstan’s party system to allow genuine competition at any level of power. Therefore the direct elections taking place at a local level will struggle to deliver the gradual evolution of the political culture currently being claimed for them if all the positions are taken by those from within or affiliated with the existing power structures.

 

The situation with currently banned political parties is somewhat more complex, given that international best practice around sources of party funding generally prohibit money coming from abroad and place criteria around its provenance. However, what is clear is that peaceful activists seeking change to the political system are being targeted and harassed by the Government simply for membership of organisations that it has deemed extremist (on the basis of the link to Mukhtar Ablyazov) without any evidence that these activists wish to overthrow the Government by violent means, which been shared with the international community. The Government should reform its use of powers under Article 405 and Article 174 of the Criminal Code to stop targeting individual protestors or those liking posts about these banned groups (the QDT/DVK and Koshe) on social media, protecting both their rights to freedom of association and expression.[4]

 

Since the passage of reforms to the law on peaceful assembly passed in May 2020 the impact on improving freedom of assembly has been limited, though there have been some improvements such as the Women’s March being able to be held legally for the first time in 2021. Given that under the revised law both citizens and groups of citizens can give notice of a protest it seems unclear as to why there is a prohibition added to make it harder for unregistered parties and groups to exercise their right to free assembly given that they are a ‘group of adult citizens’.[5] The repeated harassment of activists from unregistered groups such as Oyan, Qazaqstan and the Democratic Party undermines President Tokayev’s promises for reform in the area of freedom of assembly and freedom of expression.

 

While the case for deeper reform of the laws on peaceful assemblies remains urgent, even within the framework of the current law there is more that could be done to create a clear guidance with list of duties that local authorities should fulfil to proactively enable peaceful protest rather than simply providing a list of demands for protestors. Both the Government of Kazakhstan and the international community should record the number of protests that have ended up being legally sanctioned. Making further improvements in this area should be a key part of improvements under the human rights action plan to fulfil the ‘right to freedom of association’ and the ‘right to freedom of expression’.

 

As Tatiana Chernobil writes in her essay ‘kettling’ is a police tactic designed for use in extreme circumstances where protests risk spiralling out of control into violence rather than as a routine policing procedure for peaceful protests. Its widespread use should be curtailed to ensure the application of ‘human rights in criminal justice and enforcement’. It should not be seen as a softer alternative to arrests and the use of administrative sentences against protestors, because peaceful protestors need to be able to freely exercise their rights to free assembly under both the Constitution and International Human Rights law without fear of either kettling or arrest.

 

One of the most insidious aspects of the Government of Kazakhstan’s efforts to clamp down on independent activism has been the growing use of ‘freedom restrictions’ as part of sentences or instead of custodial sentences that prevent activists from continuing their work criticising the Government. Even when activists have been released from dubious sentences after international pressure, the restriction on their blogging, political social or union activism often remains. It is a mechanism that keeps campaigners on a tight leash, casting a chilling effect across civil society whilst limiting much of the international outcry that accompanies imprisoning political, social and labour activists. The current approach clearly breaches ‘the right to freedom of association’, ‘the right to freedom of expression’ and ‘human rights in criminal justice and enforcement’. There are numerous examples listed in the introduction and individual essays of existing restrictions that should be removed from activists including Max Bokayev, Alnur Ilyashev, Asya Tulesova, Larisa Kharkova, Amin Eleusinov and Erlan Baltabay.

 

Similarly in the realm of ‘freedom of expression’ the human rights action plan should look at reforming Kazakhstan’s laws on the ‘Public insult and other infringement on honour and dignity’ of politicians and other public figures. These restrictions, which carry potential prison terms of up to three years in jail for ‘insults’ spread online, are widely used to restrict political criticism.[6] Galiya Azhenova’s essay shows how the reforms to transfer defamation legislation from the Criminal to the Administrative code has led to local police issuing lots of administrative violations against journalists, showing the need for better training and oversight in the short term and the need for further reform to make defamation a civil matter. The targeting of journalist by police when going about their work also needs to be addressed.

 

Ongoing restrictions on independent trade unions, as outlined in Mihra Rittmann’s essay, need to be lifted including the current suspension the Industrial Trade Union of Fuel and Energy Workers, and independent confederations need to be able to register and operate without interference. These restrictions and those on the right to strike, including Article 402 of the Criminal Code noted by Rittmann, are in breach of the ‘right to freedom of association’ as well as the right to organise and should be replaced with measures that ensures that peaceful industrial action is recognised as being a legal right, in line with ILO conventions and the conclusions adopted repeatedly by the ILO Committee on the Application of Standards.

 

In order to fulfil the President’s stated objectives on the ‘the elimination of discrimination against women’ it will be important to make progress on the stalled legislative efforts to create a new law on domestic violence and to improve the response of law enforcement and local authorities in addressing it. Steps should also be taken to move forward with legislative action on sexual harassment that has also stalled. The current efforts to remove the concept of gender equality from Kazakhstan’s legislation, as set out in Aigerim Kamidola’s essay, risks emboldening forces in the country’s politics that may undermine both women’s and LGBTQ+ rights and lead to an increase in hate crime. Making this change is also likely to breach its international obligations under Articles 2 of ICCPR and ICESCR and Article 1 of CEDAW. As Kamidola argues in her essay accelerating the ratification and implementation of the Council of Europe (Istanbul) Convention on preventing and combating violence against women and domestic violence would be an important step that would not only assist Kazakhstan’s efforts towards the ‘the elimination of discrimination against women’, but also on ‘ensuring the rights of victims of human trafficking’.

 

The themes addressed by Anna Gussarova’s essay around human rights in Kazakhstan’s digital space cut across a number of themes within the President’s Decree and perhaps should be addressed as a specific action area within the human rights action plan. She makes a number of important arguments about improving legislation (such as a functioning privacy law), building state capacity (such as strengthening the Information Security Committee of the Ministry of Digital Development, Innovation and Aerospace Industry to become a more powerful Data Protection Agency to act as the guardian of Kazakhstan’s digital rights) and increasing the transparency with which it operates in the digital space. She rightly warns of adopting surveillance technology and tactics from Kazakhstan’s Chinese and Russian neighbours but instead urges it strengthen collaboration with EU Member States, US and UK agencies responsible for data protection. She recommends that Kazakhstan should develop regulations on data protection and management along the lines of the EU’s GDPR system.

 

Beyond the framework of the President’s Human Rights Decree there is a lot more work to be done to fulfil his pledge to make Kazakhstan a ‘listening state’. There is scope for the reforms to local government by the direct election of local Akims, that are starting this month at a village level and then expanding up to higher tiers of local Government in future years, to significantly improve governance standards and local accountability. However, this will only happen if there is genuine electoral competition with true independents allowed to stand and (following on from any changes to registration suggested above) new parties able to compete. Without this, more open political environment the shift to direct election would simply replace a system where local officials are accountable to the central state rather than local people through the means of appointment and replace it with officials owing their position to higher-ups with Nur-Otan or other pro-Government parties. At a national level, as already noted, there is a long-way to go until political pluralism is realistic prospect but there should still be scope within the current system to further strengthen the role of the Mazhils and official oversight bodies such as the Office of the Human Rights Ombudsman to make more limited improvements. The essay by Aina Shormanbayeva and Amangeldy Shormanbayev of the International Legal Initiative Foundation sets out a more expansive vision of possible structural reform through creating smaller local regions and transferring significant powers from the President to Parliament. They believe these proposals should be incorporated in a widespread reform of the constitution.

 

When examining potential tools available to those in the international community wishing to exert influence to improve Kazakhstan’s performance on human rights there needs to be a recognition of both the opportunities and limitations at present. Kazakhstan’s position as an upper middle income country, therefore not a significant recipient of international aid (ODA), and with a well-developed multi-vector foreign and economic policy gives its leaders significant room for manoeuvre.[7] It has already had a new Enhanced Partnership and Cooperation Agreement enter into force with its largest trading partner-the EU- ahead of its regional neighbours.[8]

 

This is not however to imply that Kazakhstan in impervious to international influence or pressure on human rights. Its leadership, and particularly a number of younger generation officials and leaders, care about Kazakhstan’s reputation, something it has worked hard to promote itself internationally as a good partner and modern country. There is an ongoing desire from Kazakhstan to continue to receive foreign investment and support, particularly as the world transitions away from fossil fuels. It also remains extremely keen to balance out its relations with Russia and China, given concerns about encroachment and influence both historic and current. However, it is far from clear that these considerations could yet outweigh the desire to maintain the political and economic status quo, particularly amongst the upper echelons of the state and the security apparatus.

 

Nevertheless, as shown throughout this publication, interventions by Western Governments and pressure from international human rights groups in support of local campaigns can make a difference in particular cases of egregious human rights abuse and to free political prisoners. The EU has a structured human rights dialogue with Kazakhstan which has long argued gives it some ability to influence behaviour in a setting behind closed doors, though some activists remain skeptical about the use of the mechanism. It is to be hoped that the UK can seek to replicate a structured human rights dialogue as part of the new bilateral deal it is negotiating to replace the EU EPCA.[9]

 

Kazakhstan remains keen to receive international technical assistance to help it modernise the state and its delivery of public services to achieve reform within the current system, with a more limited impact on the core nature of political power. Kazakhstan also currently receives significant lending from International Financial Institutions with the World Bank’s $4.15 billion for 13 projects and Regional Development Banks such as the EBRD whose current portfolio totals €2.43bn.[10] Again this mixture of finance and technical expertise can help improve specific outcomes and provide a small degree of leverage if the international community chose to use it in that way but these figures need to be set in the context of the $62 billion reserves in Kazakhstan’s National Oil Fund.[11]

 

As set out in the previous ‘Retreating Rights’ publications on Kyrgyzstan and Tajikistan, the gradual progress of global anti-corruption measures (such as the UK’s Unexplained Wealth Orders) and both corruption and human rights focused ‘Magnitsky’ sanctions provides opportunities for Western countries to hold the elites to authoritarian and kleptocratic states to account. At present Magnitsky sanctions have not been deployed by the US, EU or UK in relation to Kazakhstan. For both practical and diplomatic reasons the UK National Crime Agency may be reticent, in the wake of the failure of its case against Dariga Nazarbayeva, to take on new Unexplained Wealth Order cases that relate to Kazakhstan, but it is important to ensure it is given the support to move forward with future cases where it believes the evidence warrants further action.

 

A further measure the UK and other countries are currently debating is reform of so-called ‘golden visas’ for investors. At present there are at least 205 Kazakhstani holders of these investor visas but less than one million pounds of FDI was coming in to the UK from Kazakhstan in the last recorded year (2019) which suggests that the UK is being used predominantly to store personal wealth in the luxury property market rather than as a wider opportunity for economically productive investment.[12] The UK delivering on its long-overdue commitments to produce a beneficial ownership register for property and reforms to the reporting requirements of its overseas territory tax havens would also help increase transparency about the extent of the wealth accrued by Kazakhstan’s ruling elite.

 

So this publication finds that Kazakhstan is passing through a period of transition with its present and future looking somewhat more unsettled than its recent past. The extent of Kazakhstan’s human rights challenges are substantial, particularly as they relate to anything that could upset the existing political and economic order that the countries’ ruling elite benefit from so substantially. President Tokayev’s stated commitments to create a ‘listening state’, his recent human rights decree and wider promises of reform give benchmarks against which performance can be measured. It will be hugely important to support local civil society in holding him to these commitments, supported by a mix of international pressure (both for systemic change and on specific abuses) and continued technical support, the latter which may still improve outcomes for Kazakhstani citizens even within the current system of modernisation without democratisation. Reforms to transparency and anti-corruption measures in Western jurisdictions can hopefully assist in holding those who have abused the current system to a measure of account.

 

Recommendations

Based on the findings of the research in this publication the Government of Kazakhstan should:

• Stop targeting NGOs with punitive tax inspections and burdensome reporting requirements;
• Make it easier for parties to register and protect political activists from state harassment;
• Consider opportunities for constitutional reform that would enhance the powers of Parliament and strengthen checks on executive power;
• End the use of anti-extremism legislation powers under Article 405 and Article 174 of the Criminal Code to target protestors or those liking or sharing opposition posts on social media;
• Further reform the law on public assembly to end restrictions on unregistered groups and improve guidance to local authorities;
• Stop using kettling as a policing tactic for peaceful demonstrations;
• End the use of ‘freedom restrictions’ in sentencing that prevent activists and bloggers from continuing their work. Remove the current restrictions from activists including Max Bokayev, Alnur Ilyashev, Asya Tulesova, Larisa Kharkova, Amin Eleusinov, and Erlan Baltabay;
• Stop the continued harassment of independent trade unions and striking workers;
• Remove laws on insulting the honour and dignity of public officials used to silence criticism;
• End police harassment of independent journalists and improve how officials treat them
• Improve data protection and privacy regulation and enforcement;
• Deliver on commitments to produce new laws on domestic violence and sexual harassment, while retaining protections on the right to gender equality; and
• Ensure that direct elections for local officials provide opportunities for accountability and pluralism. Consider further local government reforms to increase its connection to citizens.

 

To the international community:

• Raise systemic problems and individual cases of abuse both in private and in public; and
• Examine the use of international mechanisms for tacking corruption and kleptocracy, including improved transparency requirements, reform of ‘golden visas’, Magnitsky sanctions and anti-corruption tools such as Unexplained Wealth Orders where appropriate.

 

[1] Casey Michel, Nazarbayev and the Rise of the Kleptocrats, October 2016,  https://thediplomat.com/2016/10/nazarbayev-and-the-rise-of-the-kleptocrats/

[2] President of Kazakhstan, President Tokayev Signs a Decree on Further Measures of the Republic of Kazakhstan in the Field of Human Rights, June 2021, https://www.gov.kz/memleket/entities/mfa-delhi/press/news/details/215657?lang=kk

[3] Ibid.

[4] Legislationline, Criminal Code of the Republic of Kazakhstan (2014, amended 2016) (English version), https://www.legislationline.org/documents/section/criminal-codes/country/21/Kazakhstan/show

[5] Legislationline, On the procedure for organising and holding peaceful assemblies in the Republic of Kazakhstan, May 2020, https://www.legislationline.org/download/id/8924/file/Kazakhstan%20-%20Peaceful%20assemblies%20EN.pdf

[6] Legislationline, Criminal Code of the Republic of Kazakhstan (2014, amended 2016) (English version), https://www.legislationline.org/documents/section/criminal-codes/country/21/Kazakhstan/show

[7] For example Kazakhstan no longer receives bilateral allocations from the EU’s Development and Cooperation Instrument (DCI) but does have access to some funding from regional programmes. See EU DG International Partnerships, https://ec.europa.eu/international-partnerships/where-we-work/kazakhstan_en

[8] EU Commission, DG Trade, https://ec.europa.eu/trade/policy/countries-and-regions/countries/kazakhstan/index_en.htm

[9] It should be noted that the UK-Uzbekistan PCA contains human rights as a subset of the wider political dialogue but whatever the format there needs to be a specific process for addressing human rights challenges within the relationship.

[10] EBRD, Kazakhstan data, https://www.ebrd.com/kazakhstan-data.html

[11] Sam Bhutia, Tracking Kazakhstan’s sovereign wealth funds through the last oil slump, Eurasianet, January 2020, https://eurasianet.org/tracking-kazakhstans-sovereign-wealth-funds-through-the-last-oil-slump

[12] Department for International Trade, Kazakhstan Investment Factsheet, July 2021,  https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/998607/kazakhstan-trade-and-investment-factsheet-2021-07-07.pdf