Countries at the Crossroads 2006 - Kazakhstan

(Scores are based on a scale of 0 to 7, with 0 representing weakest and 7 representing strongest performance.)

Introduction

Kazakhstan's constitution provides for a highly centralized political system with a strong president who dominates the executive branch, shapes the judiciary, and influences the legislature. The political system is largely the creation of one man, Nursultan Nazarbayev, who first assumed power as Kazakhstan's Communist Party leader in 1989 and one year later became the country's president. He has held the post ever since, modifying the constitution in 1998 to enable himself to serve two additional seven-year terms.

Nazarbayev has often urged that Kazakhstan be viewed as a bridge between Asia and Europe. Politically, though, the leadership in Kazakhstan has been unwilling to commit to European norms for democratic governance. For example, the country has signed and ratified the International Covenant on Civil and Political Rights (ICCPR), but has yet to abide by the treaty's obligations. Kazakhstan is not a member of the Council of Europe, so it is neither bound by the European Convention on Human Rights nor subject to the jurisdiction of the European Court of Human Rights in Strasbourg.

Even more tellingly, Kazakhstan has campaigned hard for the 2009 chairmanship of the Organization for Security and Cooperation in Europe (OSCE), which will be awarded in 2006, but it has been willing to accept only limited OSCE guidance in reforming its legal and electoral systems. Consequently, Kazakhstan has yet to hold a major election that has met OSCE norms of freedom and fairness. Moreover, the state's media and nongovernmental organizations (NGOs) lack the legal protection expected in leading OSCE nations. Kazakhstan will, however, be one of the top ten oil and gas producers within a decade, and it seems as if President Nazarbayev believes the country's economic potential is sufficient to ensure its prominent place in the international community.

Kazakhstan has been Central Asia's strongest economic performer and one of the strongest performers of any of the Soviet successor states (excluding the three Baltic countries). Fueled by unexpectedly high oil prices, Kazakhstan's gross domestic product (GDP) reached $40.7 billion in 2004, with the World Bank projecting 8.2 percent annual growth for 2004 to 2008. The country has a favorable balance of trade; fuel and oil products made up just over half the country's total exports in 2004.¹ The Kazakh government has an ambitious program, outlined by President Nazarbayev in his 1998 "Kazakhstan – 2030" address and in a February 2005 message to the population, to develop other sectors of the economy over the next quarter century.² But it is far from clear that the government will have the skill and discipline necessary to translate these rather vague goals into well-executed policies.

Kazakhstan's small and medium enterprises are flourishing, but economic transparency is a major problem among the country's partially privatized large enterprises, which the government continues to favor disproportionately. Pervasive corruption and a weak judiciary have further slowed the country's growth and hampered investment, both domestic and foreign.

Despite these problems, some sectors have done very well in the transition period. Kazakhstan, for instance, has a strong banking sector, especially given how recently it was established. The country's principal banks all have international investment grade ratings and growing personal loan sectors, which cover both housing and auto loans. The country also has a National Fund, modeled after the Norwegian national oil fund, to invest a share of oil and other extractive industry income. It will grow to well over ten billion dollars in the next decade.³ The fund is intended to help the government cope with cyclical trends in the value of exported resources and should help mitigate some of the negative impact of continuing corruption in the extractive sectors.

Corruption notwithstanding, the government of Kazakhstan has done a comparatively good job of helping its citizens meet their basic human needs while simultaneously adapting its pension, education, and health-care systems to market conditions. The key objective of the Nazarbayev regime in working to achieve this result has been to prevent a "color" revolution. To this end, the regime has sought to channel public political activity in ways that strengthen the control of existing power holders while preserving the semblance of regime accountability. However, the regime has also sought to increase its popularity by addressing or making a show of addressing the bread-and-butter issues with which most Kazakhs are concerned, such as salaries, pensions, education, and health care.

Accountability and Public Voice – 2.51

Despite some minor improvements, elections in Kazakhstan fall short of OSCE norms. Opposition political groups continue to experience difficulty in registration, both as movements and as political parties, and the leadership and their families have been victims of more than a typical share of "random" violence. In early 2005, a split in the opposition party, Ak Zhol, led to the formation of Naghuz (the true) Ak Zhol, which failed to gain registration as a political party. Another opposition party, Democratic Choice of Kazakhstan (DVK), was ordered to disband in December 2004, formally because it breached the country's national security laws, but effectively because it was so critical of the president and the government. In January 2005, implementation of this decision led to a public protest during which seven party leaders were arrested for holding the unsanctioned demonstration and fined or sentenced to short prison terms.

Election administration in Kazakhstan is transparent but biased and flawed. The country has a four-tiered system of election commissions: one national, 16 regional, 204 district, and 9,580 precinct. Each has seven members, who serve five-year terms. The Majlis selects members of the national commission based on nominations by the president. Local Maslikhats (councils) select the members of local commissions based on nominations by political parties. Some 55 percent of precinct election commission members work directly for the state or for state enterprises.

The legislative elections for 77 seats in the Majlis (lower house) – 67 seats in single-mandate districts and ten seats chosen from party lists – took place in September 2004 with the propresidential parties winning nearly every seat. Otan (Fatherland) took 42 seats, the Agrarian-Industrial Union of Workers took 11, Dariga Nazarbayeva's Asar took four, and the Democratic Party of Kazakhstan took one. Opposition Ak Zhol won one seat, but the candidate refused to accept it, protesting the conduct of the elections. The remaining 18 seats went to independent candidates, but most of these were de facto affiliated with Otan.⁴

The OSCE/ODIHR election mission strongly criticized the Central Election Commission (CEC) for their actual conduct of the election, including some very confusing last-minute instructions regarding the country's experimental electronic voting system. The nonrepresentative makeup of local election commissions and their actions were also condemned. The results were tabulated with little transparency and much room for alterations.⁵ In fact, the process was so flawed that only a small observation team was sent to the second round, which was held on October 3.

The OSCE report praised the initial registration of parties and candidates but remarked that subsequent de-registrations were politically motivated. In most cases de-registered candidates received notice of the CEC's decision only after the legal deadline for reinstatement had already expired. The report also criticized the CEC and local election commissions for their handling of voter lists, which created the opportunity for widespread fraud. According to the OSCE, opposition parties faced "a pattern of interference" during the campaign. Police detained opposition activists, and the CEC attempted to pull opposition advertisements from television just before the election. The decisions of local officials consistently favored propresidential parties.⁶

The opposition tried to raise public ire over the results of the parliamentary poll but was unsuccessful, arguably due to public apathy and improving living conditions in the country's most important and populous cities. In November 2004, the opposition began a petition campaign to call for a referendum to invalidate the results of the election, but the CEC denied registration for the campaign and the Constitutional Council upheld this decision.

On December 4, 2005, Nursultan Nazarbayev was reelected president of Kazakhstan with 91 percent of the vote.⁷ Zharmakhan Tuyakbai, head of the For a Just Kazakhstan movement finished second at 6.6 percent.⁸ An International Republican Institute (IRI) exit poll had predicted 83.2 percent for Nazarbayev and 9.9 percent for Tuyakbai.⁹ The OSCE concluded that the 2005 ballot "did not meet a number of OSCE commitments and other international standards for democratic elections."¹⁰ Problems included bans on public demonstrations during the election period; restrictions on opposition candidates' campaign events; harassment and, in some cases, beating of opposition activists; use of legislative restrictions to limit press criticism of the incumbent president, resulting in the confiscation of newspapers on three occasions; and underrepresentation of opposition parties on election commissions.¹¹ These criticisms notwithstanding, OSCE cited several positive developments, including a live, televised debate between the country's principal candidates. President Nazarbayev did not participate in the debate, however. The CEC, which met in regular open session, took steps to improve the election process and promote voter education. Lower-level electoral commissions also improved their performance, and voter lists were somewhat more accurate than they had been in 2004.¹²

Nazarbayev's use of administrative resources dominated the campaign from its beginning on October 25, 2005. While the president did not officially campaign, he dominated media coverage and billboards throughout the country. Meanwhile, private companies and local officials told opposition candidates that there was no advertising space available, presumably as a result of government pressure. The Tuyakbai campaign complained that out of 51 requests for public meetings only 5 were granted. Nazarbayev's team was quick to find and report violations by other candidates, and courts sometimes imposed administrative penalties against them. In several cases the authorities intimidated opposition parties by videotaping their rallies.¹³ The OSCE confirmed reports of Tuyakbai's campaign representatives being beaten. On the positive side of the ledger, formal complaints from two candidates resulted in the provision of larger venues for meetings, though these were usually situated far from city centers.¹⁴

The media environment similarly favored the incumbent, Nazarbayev. Tuyakbai's campaign complained to the CEC that three channels on TV had established restrictive requirements relating to the minimum length of paid spots and their placement. Under Kazakhstan's election law each candidate was guaranteed 15 minutes of free airtime on television and 10 on radio, plus two free articles in print media, during the campaign. State media largely met these obligations, but opposition candidates alleged they were required to modify the content of their segments and articles. More damaging were legal restrictions on freedom of expression and dissemination of information, which prevented the electorate from making fully informed choices.¹⁵

The media remain heavily influenced by the government and pro-regime interests, and it can be quite lucrative for journalists to agree to write pieces that support various political or economic interest groups. Very few media outlets in the country are economically viable without government support.

President Nazarbayev's family still has extensive media holdings through the Khabar network.¹⁶ Independent media are subject to police harassment, especially when they violate legal and constitutional provisions against impugning the dignity of the president, thereby infringing Article 46 of the constitution. In October 2005, in the middle of the presidential election campaign, police seized 30,000 copies of an issue of the newspaper Svoboda Slova because it contained an article about the business activities of Nazarbayev's youngest daughter, Aliya. Just weeks before, in late September, editors of Svoboda Slova, Epokha, apta.kz, Zhuma-Times, and Azat held a hunger strike to protest the refusal of the Daur printing house to publish their newspapers. Daur relented three days later.

Systematic intimidation of opposition journalists has somewhat decreased; however, journalists suffer more than their share of street violence and traffic accidents, which have led to the death or injury of both progovernment and opposition journalists. The most suspicious incident of violence was against the editor of the provocative Internet journal Navigator, Ashkat Sharipjanov. Sharipjanov was hit by a car while crossing a street late at night in July 2004 and died of his injuries. The incident occurred shortly after Sharipjanov had completed an interview with Zamanbek Nurkadilov, former mayor of Almaty. Nurkadilov had allegedly given Sharipjanov compromising material about Nazarbayev for publication. The material was never found on Sharipjanov's computer.¹⁷ Nurkadilov died of what was ruled a suicide in November 2005, shortly before the date on which he had promised to release the same material.

In early 2004, Nazarbayev's government seemed intent to curtail press freedom even further. The president introduced a bill that would have given the state broad power to fire journalists or close opposition media outlets for insulting "the honor and dignity of a citizen, state organ, or other bodies."¹⁸ Following criticism of the bill from the West and the Kazakh opposition, Nazarbayev sent it to the constitutional court for review. The court found the bill violated Kazakhstan's basic law, and Nazarbayev later vetoed it.¹⁹

At the moment, the regime seems content with existing means of press control and resigned to relatively uncontrolled Internet journalism. Self-censorship remains a more serious problem than formal censorship, and both the progovernment and opposition press are very uneven with regard to their degree of professionalism; they are often more concerned with political advocacy than reporting, as understood in the Western context. Distribution networks for print media remain under heavy state control. Restrictions on defaming the honor of the president affect coverage of events within and outside the election cycle. Just before the election, some opposition newspapers disappeared along with some websites, and opposition websites such as Navigator have felt the need to move their operations out of the country.²⁰ The government applies little or no pressure on other forms of cultural expression. Music, art, and cinema, for example, all seem to be going through a revival.

Under strong international pressure, the government backed off legislation that would have severely limited the rights of independent nongovernmental groups when the Constitutional Council vetoed two laws on NGOs on August 23, 2005.²¹ But the position of foreign-supported nongovernmental groups remains potentially precarious, particularly for those with explicitly political agendas. The prodemocracy youth group Kahar was raided by the police in October 2005, allegedly because they were receiving unreported foreign financing.²² This raid was facilitated by changes in the law on national security passed in June 2005. There is also an implicit threat that the government may introduce restrictive legislation that would force the re-registration of NGOs under a more onerous registration process, and restrict foreign funding and participation.

Kazakhstan does have two very active international human rights groups, the Almaty Helsinki Committee (a member of the International Helsinki Federation for Human Rights) and the Kazakhstan International Bureau on Human Rights and Rule of Law. Their respective leaders, Ninel Fokina and Evgeny Zhovtis, are accepted figures in Kazakhstan's political landscape, able to meet foreigners at home and abroad fairly freely, but relegated to a marginal status in Kazakhstan.

Recommendations

• The government should provide enhanced legislative protection to ensure the freedom of nongovernmental organizations, including streamlined registration procedures. Timely legislation would allow these groups a meaningful role in national political debate in advance of the next national legislative cycle.
• The government should enact legislation that creates real legal protection of independent media, providing juridical protection for constitutional provisions.
• Kazakhstan should work to improve the electoral system. The central and local electoral commissions should be more balanced and diverse in their composition, and more attention should be given to the integrity of the vote-counting process.

Civil Liberties – 4.01

Despite some reform efforts, the penal system in Kazakhstan falls short of offering conditions respectful of human dignity. Although Kazakhstan has a large per capita prison population, prisons are filled to just 61.9 percent of capacity.²³ This is a legacy of Kazakhstan's large Soviet-era prison system, which once housed inmates convicted of crimes committed throughout the USSR. The Kazakhs have long-term plans for building new facilities and modernizing old ones, but the complexity of the plans outstrips the capacity of the government to execute them. Some were developed as the result of a three-year project on prison reform, run in cooperation with the International Centre for Prison Studies of King's College London. This project also included a prison health program designed to help address the spread of tuberculosis, HIV/AIDS, and illegal drug use among Kazakhstan's prison population.²⁴ But conditions in the prisons remain harsh, and in October 2004, a Russian press report revealed that 15 prisoners in Taraz had sliced their stomachs to protest inhumane treatment by prison officials.²⁵

The Kazakh government has not used torture or made frequent use of long-term detention as a tool of political control; however, pretrial detainees do account for 15.8 percent of the prison population. The question of torture in Kazakhstan has largely focused on the government's willingness to hand over people in custody who are at risk of torture in neighboring states. Kazakh behavior has been inconsistent, yielding to both Western and Russian, Uzbek, or Chinese influence on a case-by-case basis.

Kazakhstan's legal system offers little legal guarantee to political opponents of the ruling party that their peaceful protests will not result in arrest and detention. Leading opposition politicians remain targets of the regime. Bolat Abilov, a leader of For a Just Kazakhstan, was arrested for slander during the 2004 election campaign, which effectively disqualified him from running in the September 2004 elections.²⁶ Sergei Duvanov, who was arrested on rape charges after publishing compromising materials about President Nazarbayev's involvement in corruption, was released in January 2004 after serving one year of a three-and-a-half-year prison sentence.²⁷ The conviction, though, was not overturned. As of November 2005, Galymzhan Zhakiyanov is the country's only high-profile political prisoner. Zhakiyanov, the former governor of the northern Pavlodar region, became a prominent figure in Democratic Choice of Kazakhstan (DCK) in 2001. He attracted the support of entrepreneurs and staged a successful rally in Almaty. Alarmed by the DCK's gathering momentum, the Nazarbayev government cracked down on the group and its allies. Zhakiyanov and another important DCK politician, former energy minister Mukhtar Ablyazov, were arrested.²⁸ While Zhakiyanov's arrest was clearly political, the corruption charges levied against him may well have had some substance. In recent years, Kazakh authorities have done little to improve protection of citizens from abuse by private and nonstate actors or to enhance their capacity to petition effectively for redress when their rights have been violated.

Women and ethnic minorities still encounter various degrees of discrimination, yet they remain reluctant to seek legal redress. Traditional cultural values continue to reinforce the perception of many women that they are not entitled to the same jobs as men, while members of ethnic minority communities remain nervous about putting forward claims because they believe the system is biased against them.

Women remain underrepresented in public life. There is only one woman in the cabinet, the minister of justice, and there are no female akims (governors). One of the president's daughters, Dariga Nazarbayeva, is the only female head of a political party. Women hold six of 67 single-mandate seats and three out of every 10 in the list system in the Majlis, the lower house of parliament; the latter figure reflects the government's effort to compensate for their underrepresentation and show its commitment to gender equality. Ethnic minorities are also underrepresented, although the country's largest minority, the Russians, remains very visible in public life. Only one current member of government, the minister of energy, and two akims are ethnic Russians. The chairman of the Constitutional Council is also ethnic Russian.²⁹

In recent years, Kazakhstan has made some progressive efforts toward combating trafficking in women. In 2003, the country's assessment in the U.S. State Department's Trafficking in Persons Report improved, moving from a Tier 3 to Tier 2, due to measures including the adoption of anti-trafficking legislation and the establishment of anti-trafficking law enforcement. However, the government still does not meet minimum standards for elimination of trafficking, and Kazakhstan is considered a "source, transit, and destination country for people trafficked for the purposes of sexual exploitation and forced labor."³⁰

The constitution of Kazakhstan upholds freedom of conscience (Article 22). To date, the changing legal environment has not led to the deterioration of conditions for religious believers. The government continues to make its purported support for religious tolerance a tool in foreign policy toward the United States, Israel, and India, among others. If anything, the government has been more tolerant than in previous years, allowing a group of Jehovah's Witnesses in Northern Kazakhstan previously denied registration to register. Legislation introduced in 2004 simplified the process of registration for religious groups but also essentially made registration mandatory. Despite this change, a number of unregistered groups (mostly Christian sects) continue to operate freely in the country.³¹

While disabled persons are nominally a protected group under the Kazakh constitution and the 1991 law "On Social Protection of Disabled Persons in the Republic of Kazakhstan," their needs are typically not accommodated in practice.³² One reporter called the disabled "the most disadvantaged stratum of society."³³

The state does not meet its constitutional obligations to ensure freedom of association and assembly. The April 2005 amendment to the elections law bans all public rallies following elections until the results are announced. The Law on National Security prohibits any unauthorized assemblies, protests, or public meetings that might affect political stability. The state has threatened and occasionally used force to break up demonstrations without permits. Further, in several instances, organizers of such rallies were fined. The government has also hampered the development of independent trade union movements.

The regime has continued its efforts to compete with the independent NGO sector by sponsoring progovernment organizations. Many of the progovernment NGOs lack large numbers of active members, although President Nazarbayev has promised increased state funding to help them become better rivals of independent groups.³⁴ In some areas, such as women's issues, health, and ecology, the NGO sector seems to function harmoniously, with regime-allied groups working well alongside independent groups. The government is relatively supportive of organizations designed to advance the interests of ethnic minority groups, save those with overly political or potentially secessionist agendas. Political parties cannot be organized explicitly along ethnic or religious lines, and nongovernmental groups cannot incite ethnic or religious hatred.

Recommendations

• The Kazakh government should increase its efforts to eliminate torture and promote prison reform generally.
• The Kazakh government should expand its educational efforts in support of gender equality. It should also increase outreach efforts to educate adults about their legal right to use the courts to redress grievances of gender or ethnic discrimination.
• The Kazakhs need to do a better job of addressing informal patterns of ethnic prejudice that remain prevalent in the state sector. The government should also consider offering probationary periods of employment for otherwise qualified candidates who lack adequate Kazakh (or Russian) language skills.
• The Kazakh government should repeal all restrictions on freedom of assembly.

Rule of Law – 2.62

Kazakhstan lacks an independent judiciary, and the executive branch continues to dominate the courts. Although plans to move toward a jury system are regularly discussed, the Kazakhs have been slow to employ them. There is a moratorium on the death penalty, but it has not yet been permanently banned. Legislative and executive authorities generally comply with judicial decisions, but control of the procuracy and legal appeals allows the government significant influence over the judicial process. Local governments tend to exploit appeals more than the regional or federal governments. The president sets the number of judges and their salaries. He appoints all judges, save for members of the Supreme Court, who are appointed by the Senate based on presidential nomination. The president receives recommendations from the Higher Judicial Council for the 48 Supreme Court judges and 572 oblast (provincial) judges; the Ministry of Justice recommends the 1,851 rayon (local) judges. All appointments are quasi-competitive, with anywhere from a few to 25 candidates per post.

The president can discipline judges, but this procedure is nontransparent. At lower levels disciplinary panels enforce norms of judicial behavior and their proceedings are published. Judges can face punishment for having too many of their decisions overturnedm but not all of the criteria for judicial censure are clearly elaborated. The Union of Judges of Kazakhstan has an ethics committee that holds hearings, runs training sessions, and sets ethical norms. Judicial oversight is increasing, and an attempt is being made through both government and private publications to create legal debate on the Kazakh court system.³⁵

Judicial incompetence is one of the main obstacles preventing citizens from receiving a fair hearing before an impartial tribunal. By law, defendants are presumed innocent, but this protection often means little in practice. All verdicts, and the vast majority of trial proceedings, must be conducted in public. However, judges have violated this law in the past and have occasionally excluded the public or the press from judicial proceedings.³⁶ While the constitution provides for a right to counsel, Kazakhstan has yet to implement a competent and universally accessible public defender system. Defense lawyers are generally at a disadvantage relative to prosecutors and need greater authority to collect evidence.³⁷

The primary law governing the judiciary is Constitutional Law No. 132 of December 25, 2000. It does not establish an independent judiciary, but it moves Kazakhstan away from the Soviet judicial system toward a more Western-style system in several respects: by reducing the power of the procuracy, reforming the system of court funding, giving judges tenure, and establishing minimum qualifications and ethical standards for judges. The 2004 Central European and Eurasian Law Initiative (CEELI) study, the most comprehensive evaluation of Kazakhstan's judiciary available, criticized the Kazakh system for lack of accountability and transparency but praised its level of funding and efficiency.³⁸

Kazakhstan is modernizing its courts by adding professional staff and introducing computers. Judges receive high salaries by the standards of the Kazakh civil service. All new judges now must complete a two-year training program, run by the Judicial Academy, which graduates 45 judges annually. The number of law schools is increasing rapidly, but the number of qualified instructors is not increasing apace. Kazakhstan has approximately 150 schools offering legal training (as compared to a mere two during Soviet times), with some 65,000 law students. In July 2004, a mandatory exam for state certification was introduced; however, insufficient attention has been paid to the development of an advocatura (defense bar).³⁹

Courts are divided into civil, criminal, and supervisory (administrative) sections.

The seven-member Constitutional Council, which replaced the constitutional court in 1995, decides the constitutionality of legislation and decrees. Decisions of the Constitutional Council can be vetoed by the president, but the council can override a veto with a two-thirds vote and generally finds in favor of the president's public positions, as when it ruled in favor of Nazarbayev on whether the constitution permitted him to set the election date in December 2005.⁴⁰ It avoids controversial issues and has no direct right to rule on presidential decrees. The president, the heads of the two houses of parliament, and the prime minister can bring cases to the council. The parliament may also bring a case if at least one-fifth of deputies vote in favor.⁴¹

Much of the legal system is still a hybrid from Soviet times. Private citizens may prosecute not only minor assaults and batteries (similar to tort cases in the United State) but also rape, a serious crime that should clearly be of direct interest to the state. As the CEELI study notes, "the procuracy seems to be intervening in cases where the state may not have a real interest, but where it may be able to solicit bribes, while at the same time failing to provide protection to citizens whose cases seem less important to the local authorities...."⁴²

Kazakhstan has reformed the procuracy far less than the judiciary. Prosecutors can still intervene in any civil or commercial matter and routinely appeal when judgments go in favor of the defendant.

Prosecutors, rather than judges, issue arrest, search, and detention warrants, and the acquittal rate is very low (1 to 2 percent).⁴² Reform has already created tension between judges and procurators because the latter feel the former are impinging on their traditional prerogatives.

While all Kazakh citizens enjoy equal protection under the law, the biggest problem is that courts are subject to undue influence from state powers and private economic interests. There is no difficulty in finding a judge willing to deliver a "proper" verdict for a high-profile case. No real mechanism exists through which the public can register complaints of judicial misconduct. There is a national ombudsman, who has successfully remedied civil rights violations, enforced provision of pensions and social benefits, and obtained recognition of previously ignored court decisions.⁴³ However, there is little public expectation that he can render independent judgments in high-profile cases.

Still, judicial oversight of administrative practice is improving. The CEELI study reported that one administrative judge overturned the judgments of tax authorities in 90 percent of cases, and in 80 percent of these cases, they accepted his judgment.⁴⁴

The Kazakhs have made little progress toward effective civilian and democratic control of the police or organs of internal security. Military reform is proceeding on a separate and faster track. The police, military, and security services are fully subject to the president and do not serve as an independent political force. While these groups have never been systematically held accountable for corruption or other abuses of power, the state frequently singles out individuals for punishment to maintain legitimacy. The Kazakh security services do not flagrantly ignore human rights, but their practices do not meet OSCE standards.

The Zhakiyanov case mentioned above epitomizes the pattern of anticorruption prosecutions in Kazakhstan. The targets of such prosecutions have in some cases engaged in corruption, but the impetus behind the cases is invariably political. While all trial information in Kazakhstan is public, scarcely any discussion of corruption cases occurs at the local level.

While the legal system gives everyone the right to own individual property (with the exception that foreigners cannot own agricultural land), the courts do an inadequate job of protecting property rights. The biases in the legal system work to the advantage of the indigenous Kazakhs and against the minority populations that entered the country during the Soviet period, as only the Kazakhs enjoy the right to be repatriated and resettled with property awards.⁴⁵ The state sometimes violates property rights to pursue a political agenda, as in the cases against Abilov and Zhakiyanov. However, the government is currently trying to create a legislative and juridical environment friendlier to private property, albeit one that is likely to continue to privilege those with close ties to government officials.

Recommendations

• Kazakhstan should expand its legal retraining program for sitting judges; particular attention should be paid to the training in property rights.
• The government should develop a timetable for shifting responsibilities away from the procuracy, which currently investigates and prosecutes crimes, in order to strengthen the courts.
• The Kazakhs need to improve the role and quality of the defense counsel. In particular, greater effort needs to be made to improve the training of lawyers who work in remote regions. The Kazakh government should be encouraged in its effort to develop a strong public defender system.
• The Kazakh government should develop a jury system.
• The role of the ombudsman should be strengthened, in particular to make it a more effective check on legislative power.

Anticorruption and Transparency – 2.04

The government of Kazakhstan is unlikely to take decisive steps to eliminate corruption as long as Nursultan Nazarbayev remains president of the country. Most outside observers see him as part of the problem. It is hard to imagine that he will support a complete overhaul of the existing system, which has brought significant wealth to his family. Transparency International's 2005 Corruption Perceptions Index gives Kazakhstan a 2.6, placing the country in a 10 way tie for 107th place with nations such as Zimbabwe and Belarus. Nonetheless, this is a marked improvement for Kazakhstan, which ranked 122nd in 2004, with a score of 2.2.⁴⁶

The state does not systematically enforce existing legislation designed to promote integrity and punish corrupt public officials. Although the necessary laws are on the books, to date, the state has used them primarily to remove incompetent judges and local officials.⁴⁷ Victims of corruption have little effective recourse. They can turn to the ombudsman, but the power of this office is limited. President Nazarbayev continues to issue anticorruption decrees and create anticorruption agencies, such as the Disciplinary Committee and the Agency for Fighting Corruption; however, these institutions lack real teeth and remain subject to political pressure.⁴⁸

The press is biased in its coverage of corruption scandals, although the coverage does reflect a diversity of biases. The media is restrained by laws preventing it from impugning the dignity of the president. There is no environment of protection for anticorruption activists. At the same time, there have been positive developments. Dariga Nazarbayeva has formally relinquished control of the Khabar media network while serving as a deputy in the Majlis, although she still remains involved with the outlet. In addition, the president's son-in-law, Timur Kulibayev, stepped down as the number-two person at KazMunaiGaz, the state oil and gas company, in October 2005, nominally to pursue personal business interests.⁴⁹ Candidates for elected posts must file assets declarations, but other state officials rarely make financial disclosures.

Corruption in higher education remains widespread. In a 2002 World Bank study, one in four households containing a university student reported paying bribes. Of these bribes, 69 percent were for admission and 10 percent for better grades.⁵⁰ Despite this problem, talented young people still have many resources and opportunities open to them.

The U.S. State Department's 2005 Investment Climate Statement on Kazakhstan noted, "tax experts consider Kazakhstan's tax laws to be among the most comprehensive in the former Soviet Union," but also pointed out that foreign firms operating in the country frequently complain of unannounced inspections and other forms of harassment by the tax police.⁵¹ Kazakh entrepreneurs make similar complaints. The government has planned further reductions and rationalization of the tax structure; however, more work needs to be done to improve internal auditing and accountability.

The Kazakhs are making concerted, albeit slow, efforts to streamline bureaucratic regulatory processes. In some key sectors of the economy these efforts are leading to rules and regulations that provide for first arbitration in Kazakh courts rather than foreign or international ones. The state remains heavily involved in the economy, particularly the vital energy sector, where KazMunaiGaz dominates.

Some signs of progress in the effort to increase government transparency have appeared. Kazakhstan's government has remained committed to diverting a large portion of its income from extractive industries to the National Fund. However, the Open Society Institute has charged that the fund is insufficiently transparent, unaccountable, subject to excessive presidential control, and governed by unclear rules.⁵²

The executive budget process is still less transparent than the National Fund, largely escaping legislative scrutiny. The government publishes some accounting information, but it is often incomplete or difficult to interpret. Government contracting remains nontransparent. On the other hand, the government has made considerable progress in introducing international auditing mechanisms for programs funded by foreign aid.

In general, the Kazakhs are making strides in using the Internet to improve government accountability. All the major state agencies and ministries maintain bilingual websites. Several, including the Ministry of Internal Affairs,⁵³ have active, regularly maintained question-and-answer sections. These sites demonstrate the pressure exerted on the government from a very active Internet sector, which draws growing participation and lively debate.⁵⁴ The Kazakh government has also maintained the legacy of feedback mechanisms from the Soviet era – reception time and telephone complaints. The government publicizes the telephone numbers of officials and the hours when they are available, which is not to suggest public satisfaction with these interactions. Citizens have a legal right to obtain information, but finding out about how to do this is typically difficult, and the procedures are cumbersome. The state has made no effort to make information accessible to citizens with disabilities.

Recommendations

• The government should increase the pace of civil service reform, with special emphasis on increasing the transparency of government operations and educating citizens on their legal rights.
• The Kazakhstan government needs to hold corrupt officials accountable with stiff fines and jail terms imposed for infractions of the law.
• Kazakhs should continue their efforts to develop e-government and increase the transparency of government activities through the effective use of the Internet.
• The taxation and tax collection system should be further improved.
• Kazakh authorities need to streamline official registration procedures and bureaucratic oversight at all levels of the economy and society.

Author

Dr. Martha Brill Olcott is a Senior Associate at the Carnegie Endowment for International Peace, and most recently author of Central Asia's Second Chance.

Notes

1 Kazakhstan at a Glance (Washington, D.C.: World Bank, 20 September 2005), http://devdata.worldbank.org/AAG/kaz_aag.pdf.

2 Nursultan Nazarbayev, "Message of the President of the Country to the People of Kazakhstan," Kazakhstan-2030 (London: Embassy of the Republic of Kazakhstan, 1998), http://www.kazakhstanembassy.org.uk/cgi-bin/index/145; Nursultan Nazarbayev, "Kazakhstan on the Road to Accelerated Economic, Social, and Political Modernization" (London: Embassy of the Republic of Kazakhstan, 18 February 2005), http://www.kazakhstanembassy.org.uk/cgi-bin/index/176. In general the website of the Embassy of Kazakhstan in the U.K. is a very useful source for up-to-date links to all branches of the Kazakh government.

3 It was valued at 902,180,696,000 tenge (~US$7.5 bn) on 1 December 2005; http://www.nationalfund.kz/index.php?uin=1120635107&chapter=1133927392&lang=rus.

4 OSCE/ODIHR Election Observation Mission Report, Republic of Kazakhstan, Parliamentary Elections, 19 September and 3 October 2004 (Warsaw: Organization for Security and Co-operation in Europe [OSCE], 2004), 24, http://www.osce.org/documents/odihr/2004/12/3990_en.pdf.

5 Ibid., 2.

6 Ibid., 10-12.

7 Gulnoza Saidazimova, "Kazakhstan: Officials Declare Nazarbayev Winner of Presidential Election" (Prague and Washington, D.C.: Radio Free Europe/Radio Liberty [RFE/RL], 5 December 2005), http://www.rferl.org/featuresarticle/2005/12/8db051d7-0afd-4ad0-b243-3c1eaac119f6.html.

8 Ibid.

9 "IRI-Gallup Poll Predicts 83.2% Win for Nazarbayev" (Washington, D.C.: International Republican Institute [IRI], 5 December 2005), http://www.iri.org/12-05-05-KazakhstanEO.asp.

10 Ibid., 1.

11 Ibid., 2-3.

12 International Election Observation Mission, Presidential Election, Republic of Kazakhstan – 4 December 2005, Statement of Preliminary Findings and Conclusions (Astana: OSCE, 5 December 2005), 2, www.osce.org/documents/odihr/2005/12/17232_en.pdf.

13 The opposition candidates were: Zharmakhan Tuyakbai (For a Just Kazakhstan), Alikhan Baimenov (Ak Zhol/"Bright Path"), Yerasyl Abylkasymov (Communist People's Party of Kazakhstan), and Mels Eleusizov, Tabighat/"Nature").

14 Ibid., 8-9.

15 Ibid., 9-10.

16 See IREX Media Guide for Kazakhstan, issued in 2004, for details, as well as a thorough introduction to the development of independent and government media and their penetration throughout the country. Media Sustainability Index 2004 (Washington, D.C.: International Research & Exchanges Board [IREX], 2004), 230, http://www.irex.org/msi/2004/MSI-2004-Kazakhstan.pdf.

17 "Attacks on the Press 2004: Kazakhstan" (New York: Committee to Protect Journalists, 2005), http://www.cpj.org/attacks04/europe04/kazak.html.

18 Bruce Pannier, "Kazakhstan: Journalists Concerned About Effects of Draft Media Law," RFE/RL, 16 January 2004, http://www.rferl.org/featuresarticle/2004/01/59608d31-d3ef-484c-9ad7-0f6efab3facd.html.

19 Erica Flynn, "Kazakhstan's Constitutional Council due to Rule on NGO-Related Legislation," Eurasia Insight (New York: EurasiaNet.org), 11 August 2005, http://www.eurasianet.org/departments/insight/articles/eav081105.shtml.

20 For instance, Eurasianet.org is occasionally blocked [IREX, 2005 Media Sustainability Index: 9]. The Navigator website, navi.kz, reported in May that it was being blocked by Kaztelecom, a state-owned Internet provider [Human Rights News, Human Rights Watch, Oct. 12, 2005].

21 "Kazakh Constitutional Council Pronounces NGO Laws 'Unconstitutional,'" Kazakhstan Daily Digest (EurasiaNet), 24 August 2005, http://www.eurasianet.org/resource/kazakhstan/hypermail/200508/0030.shtml.

22 Ibragim Alibekov, "Kazakhstan's President Shifts Tactics During Presidential Election Campaign," EurasiaNet, 2 November 2005, http://www.eurasianet.org/departments/civilsociety/articles/eav110205.shtml.

23 "Prison Brief for Kazakhstan" (London: Kings College London, International Centre for Prison Studies [ICPS], 14 December 2005), http://www.kcl.ac.uk/depsta/rel/icps/worldbrief/continental_asia_records.php?code=98.

24 Prison Reform in Kazakhstan (ICPS, 10 December 2005), http://www.kcl.ac.uk/depsta/rel/icps/kazakhstan.html.

25 "15 Kazakhskikh zakliuchennykh razrezali sebe zhivoty[15 Kazakh Inmates Slash Own Stomachs]," RusPortal.net, 10 April 2005, http://news.rusportal.net/rus/21529.html.

26 "Kazakhstan Votes," RFE/RL, http://www.rferl.org/specials/kazakh_votes/parties.aspx.

27 Kazakhstan 2004 Annual Report (Paris: Reporters Without Borders, 2005), http://www.rsf.org/article.php3?id_article=9963.

28 Aldar Kusainov, "Domestic Crackdown in Kazakhstan Could Have Economic Consequences," EurasiaNet Business & Economics, 6 August 2002, http://www.eurasianet.org/departments/business/articles/eav080602.shtml.

29 See http://www.government.kzfor the full makeup of the government, photos, and bios.

30 "Kazakhstan" in Trafficking in Persons Report (Washington, D.C.: U.S. Department of State, 3 June 2005), http://www.state.gov/g/tip/rls/tiprpt/2005/46614.htm.

31 "Kazakhstan" in International Religious Freedom Report 2005 (U.S. Department of State, 8 November 2005), http://www.state.gov/g/drl/rls/irf/2005/51561.htm.

32 Zhanat Zakiyeva, "Disability Rights: The View from Kazakhstan," Disability World, Issue 21, November-December 2003.

33 Marat Yermukanov, "Bibi-Ana: NGO for Disabled Single Mothers in Kazakhstan," Central Asia-Caucasus Analyst, February 16, 2000, http://www.cacianalyst.org/view_article.php?articleid=371&SMSESSION=NO.

34 1 billion tenge – approximately US$7.5 million – has been promised: "Kazakh President Encourages, Warns NGOs," Kazakhstan Daily Digest (EurasiaNet), 13 September 2005, http://www.eurasianet.org/resource/kazakhstan/hypermail/200509/0006.shtml.

35 See http://www.supcourt.kzfor the range of publications, bulletins, and journals that are being supported in Russian and Kazakh. The content of this site is identical in Russian and Kazakh, but as is true of most Kazakh government sites, it is very incomplete in English.

36 For a comprehensive discussion on this, and details on judicial reform in Kazakhstan, see: Judicial Reform Index [JRI] for Kazakhstan (Chicago: American Bar Association, Central European and Eurasian Law Inititiative [ABA/CEELI], February 2004), 38, http://www.abanet.org/ceeli/publications/jri/jri_kazakhstan.pdf.

37 Ibid., 2.

38 Ibid., 5.

39 Ibid., 2.

40 "Postanovlenie Konstitutsionnovo Soveta RK ot 19 avgusta 2005 g. No 5 [Resolution of the Constitutional Council of the Republic of Kazakhstan, 19 August 2005, No. 5]" (Astana: Constitutional Council of the Republic of Kazakhstan), http://www.constcouncil.kz/rus/decisions/constitution/index.shtml?id_new=82. The English-language version of this website is very incomplete, while the Kazakh and Russian versions appear to be identical.

41 Constitution of Kazakhstan, Section VI, Article 72, http://www.kazakhstanembassy.org.uk/cgi-bin/index/227.

42 Ibid., 18.

43 JRI (ABA), 2.

44 Ina Iankulova, "Kazakhstan's Ombudsman Reports on First Six Months," Kazakhstan Daily Digest (EurasiaNet), 8 April 2003, http://www.eurasianet.org/resource/kazakhstan/hypermail/200304/0021.shtml.

45 Ibid., 13.

46 There is one exceptional minority, the Uzbeks, who are also indigenous to the country and enjoy legal protections virtually identical to those of the Kazakhs in fact, not just in law.

47 Corruption Perceptions Index 2004 and Corruption Perceptions Index 2005 (Berlin: Transparency International [TI], 2004-5). The 2005 score has a 90 percent confidence interval of 2.2-3.2 and is based on six different surveys. The 2004 score has a 90 percent confidence interval of 1.8-2.7, based on seven different surveys: http://www.transparency.org/policy_and_research/surveys_indices/cpi/2005; http://www.transparency.org/policy_and_research/surveys_indices/cpi/2004.

48 JRI (ABA), 30.

49 Marat Yermukanov, "Nazarbayev's Anti-corruption Campaign: Honest Effort or One-man Show?," Eurasia Daily Monitor (Washington, D.C.: Jamestown Foundation), 25 April 2005, http://www.jamestown.org/publications_details.php?volume_id=407&issue_id=3309&article_id=2369643.

50 Kulibayev was subsequently appointed deputy head of Samruk, a new state holding company. Arkady Dubnov, "Politics: President Nazabayev Brought His Son-in-law Timur Kulibayev to Moscow," Vremya novostei, 4 April 2006, http://enews.ferghana.ru/4printer.php?id=1353. "Kazakh President Orders Creation of Holding Company for State Assets," Kazakhstan Daily Digest (EurasiaNet), 3 February 2006, http://www.eurasianet.org/resource/kazakhstan/hypermail/200602/0003.shtml.

51 Nataliya Rumyantseva, "Higher Education in Kazakhstan: The Issue of Corruption" (Boston: Boston College, Center for International Higher Education, Fall 2004), http://www.bc.edu/bc_org/avp/soe/cihe/newsletter/News37/text013.htm.

52 2005 Investment Climate Statement – Kazakhstan (U.S. Department of State, February 2005), http://www.state.gov/e/eb/ifd/2005/42065.htm.

53 Svetlana Tsalik, Caspian Oil Windfalls: Who Will Benefit? (New York: Open Society Institute, 2003), 146-49, 155-57, http://www.eurasianet.org/caspian.oil.windfalls/full_report.pdf.

54 Ministry of Internal Affairs of the Republic of Kazakhstan, http://www.mvd.kz.

55 For examples, see "Navigator," http://www.mizinov.net, and "Kub," http://www.kub.kz.