Countries at the Crossroads 2006 - Kyrgyzstan

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

Introduction

The Tulip Revolution of March 2005 brought 14 years of increasingly authoritarian and kleptocratic rule under President Askar Akaev to a swift and ignominious end. In the 1990s, Kyrgyzstan won plaudits as the most democratic, progressive country in Central Asia thanks to Akaev's comparative tolerance of opposition parties and free media, and his openness to market reforms. His credentials as a liberal reformer were severely tarnished by the 2000 presidential election, which was characterized by fraud and repression of the opposition, including the jailing of his foremost political challenger, former national security minister Feliks Kulov.

During the last five years of his rule, Akaev steadily consolidated power and misused it to neutralize rivals, intimidate independent media, and manipulate the judiciary. As the international spotlight moved to Central Asia in the aftermath of September 11, 2001, both the United States and Russia established airbases in Kyrgyzstan as responses to the war on terrorism. These developments raised Akaev's profile on the world stage and emboldened him to clamp down on his domestic opponents still further. Meanwhile corruption, nepotism, and graft flourished, blurring the boundaries between government and organized crime. The president's family and allies took control of many of the country's prime economic resources, hiding assets through dozens of shell companies, but their rapacity was growing blatant and their support was dwindling. igged elections, in which two of Akaev's children won seats in parliament, hinting at the possibility of a dynastic succession, were the last straw.

Akaev's regime collapsed in a matter of hours, but his legacy is taking longer to overcome. Opposition leader Kurmanbek Bakiev won an impressive mandate in a new presidential election, promising to accelerate democratic reforms, tackle poverty, and crack down on corruption. However, his administration faces numerous obstacles to implementing such an ambitious program, some of its own making. The parliament was chosen in fraudulent elections, meaning that Kyrgyzstan has a hybrid government of a fairly elected executive and an Akaev-era legislature. Many of the deputies are believed to have links with mafia groups. Powerful and prevalent, organized crime has emerged from the shadows as one of the country's most troubling issues.

Civil liberties have improved after the revolution, yet the new authorities have occasionally revealed instinctual tendencies, reminiscent of the old regime, to try to rein in critical journalists or limit protests. At the same time, the revolution, with its heady whiff of "people power," has unleashed forces of its own that menace social order and the stability of the state. Street demonstrations, the storming or blockading of government buildings, appointments of officials by popular acclamation – techniques all employed to good effect to topple Akaev's authoritarian rule – have outlasted their time and are now employed to lobby or defy Bakiev's democratically elected government. His weak administration is still struggling to bring the country under its control against a backdrop of low-level violence and outbreaks of anarchy in which organized crime, partnered by corrupt security forces, are playing an increasingly visible role.

Accountability and Public Voice – 4.17

Kyrgyzstan's March 2005 revolution was precipitated by street protests against fraudulent parliamentary elections held the previous month. The authorities had interfered in election campaigns and systematically rigged results to produce wins for political allies and family members of President Askar Akaev. Akaev fled the country on March 24 after demonstrators stormed the White House (main government building) in the capital, Bishkek. Opposition figures, led by Kurmanbek Bakiev, a former prime minister who had turned against the regime, took control of government. They faced the conundrum of all revolutionary leaders professing to stand for democratic governance and the rule of law: Their elevation to power was extraconstitutional and thus strictly speaking illegal. To their credit, they recognized the problem and the importance of observing legal niceties if the country was to be steered onto a more democratic course. Consequently, three key decisions were taken with a view to shoring up the new order's political legitimacy and preserving, as much as possible, the constitutional forms. First, Akaev was induced to sign an official letter of resignation, which he did on April 4; it was formally accepted by the legislature the following week. Second, a new presidential election was scheduled within three months of Akaev's resignation, as required by law; it was duly held on July 10. Third, and most controversially, fresh parliamentary elections were not called; the flawed results of the February/March balloting were allowed to stand. This meant overlooking the violations that had sparked the revolution in the first place. Yet the alternative – annulling the results, dissolving the new parliament, reinstating the old one, and extending its mandate on an ad hoc basis – would have been a political improvisation, taking government ever farther outside the constitutional framework. Accepting the legitimacy of the compromised parliament was seen as a devil's bargain, but it signaled a commitment not to change the system arbitrarily and to abide by law and precedent. As such, it brought the revolutionary phase of the political transition to a swift close.

Bakiev won the presidential election with 88.6 percent of the vote. Official voter turnout was 75 percent. The scale of Bakiev's victory owed much to the decision by his strongest potential opponent, leader of the Ar-Namys (Dignity) party and former dissident Feliks Kulov, not to run against him. Instead they campaigned as a tandem on the understanding, duly honored, that Kulov would become prime minister. While noting a small number of serious irregularities, especially in the counting and tabulation stages, international monitors declared the election free and mostly fair, and did not question the legitimacy of the result. The Organization for Security and Cooperation in Europe (OSCE) said Kyrgyzstan had made "tangible progress" in meeting its democratic commitments.

A paradox of the revolution was that, while it breathed new life into the political system, the sweeping scale of Bakiev's victory temporarily sucked the air out of multiparty democracy. With Akaev gone and the opposition in power, there was no one to contest policies of the new government. However, opponents have now started to fractionate out of the pro-Bakiev camp. Two of his former top lieutenants – Roza Otunbaeva, interim foreign minister, and Azimbek Beknazarov, ex-prosecutor general – have now broken with him and declared themselves in political opposition. At present, though, beyond their personal disgruntlement it is unclear where they (or, for that matter, any of the political parties) fundamentally disagree with the government on a policy level and whether they have an alternative vision to offer. Of the 65 political parties in Kyrgyzstan, 23 came into being after the revolution. However, multiparty democracy is less developed or vibrant than those numbers imply. Instead of coalescing around a set of definable policies, most parties hover around a charismatic or wealthy leader and exist as a ragtag vehicle to promote his (rarely her) political ambitions. Campaign finance laws are nonfunctional; candidates reportedly secure many votes by simple handouts of cash or clannish promises of patronage. Parties are fragmented and disorganized. Even the anti-Akaev opposition forces, riven by competing strong personalities, could barely muster a united front in February and March 2005 and often seemed to have no particular platform beyond ousting the president.

Moreover, in February 2003, Akaev pushed through certain constitutional amendments tailor-made to weaken the role of parties. In place of a two-chamber legislature with a total of 105 deputies, the new system created a new unicameral body with 75 seats. In previous parliamentary elections, a quarter of the seats were determined on the basis of party lists, and the rest were single-mandate constituencies. Under the new rules, party lists were abolished and all the races took place in single-seat constituencies. Consequently, parties played almost no role in the February 2005 parliamentary elections, nominating a mere 18 percent of the candidates. However, in November 2005, the Constitutional Council (a body established after the revolution to draft constitutional amendments for public debate) proposed a return to a version of the pre-2003 system. A significant but currently unspecified number of seats in the legislature would again be awarded through party lists, on the basis of proportional representation. The rest of the seats would be competed for in single-mandate constituencies on the basis of a first-past-the-post system. The changes, which would be implemented in the next parliamentary elections in 2010, could vivify multiparty democracy by encouraging coalition-building and sharper definition of political programs. Meanwhile, parties need to build up national bases for politics to move beyond the excessive clannishness and narrow regionalism that currently hold sway, promoted by the single-mandate system.

While the constitution provides for checks and balances between the executive, the legislature, and the judiciary, Akaev steadily concentrated power in the presidency and controlled patronage to the point where his initiatives were rarely thwarted. The Constitutional Court was responsible for some decisions that mildly curtailed the government's freedom of action, as when it struck down certain restrictions on freedom of assembly in October 2004. The parliament was mostly supine before Akaev. The new parliament is feistier and flexed its muscles at once by turning down six out of Bakiev's original 16 cabinet nominations. Nonetheless, the president's power makes the office excessively strong. An original goal of the postrevolution Constitutional Council was to craft suggestions for trimming back the presidential powers; however, Bakiev seemed at times to be manipulating the Constitutional Council to grab more power for his office rather than give any up.

Civil society in Kyrgyzstan is lively. Even under Akaev there was never a concerted crackdown on nongovernmental organizations (NGOs), although some human rights activists suffered intimidation and arbitrary curtailments of their activities. Particular pressure was brought on the Kyrgyz Committee on Human Rights (KCHR): Its president was driven to self-imposed exile in Europe, his daughter in Bishkek was beaten up by unknown men in July 2004, and a car allegedly tried to run her over later that year. Civil society actors played a prominent public role during the revolution and have continued to do so. NGOs must register with the Ministry of Justice, but the process is not arduous (a group requires only three members to register, for example). In fact, no indigenous NGO is reported to have been denied registration in 2004-2005. Today an estimated 7,000 to 10,000 NGOs are registered in the country, although a mere fraction of that number are active and perhaps only 100 of them are financially self-sustaining. Organizations such as the Coalition for Democracy and Civil Society, an umbrella for some 170 NGOs nationwide, regularly offer vigorous and critical assessments of the government's actions and public affairs generally. The public has also been able to comment on pending legislation through the Constitutional Council, which was opened to suggestions on constitutional amendments from civic groups and individual citizens. In November 2005, Bakiev ordered the government to disseminate information on the draft changes and to conduct local-level public discussion about them until the end of the year. The amendments are due to be put to a national referendum in 2006.

Media freedom has improved greatly since the revolution, but significant problems remain. Akaev's regime harassed critical journalists through various means: politically motivated tax inspections, defamation lawsuits (manipulating the courts to award penalties), or sudden power outages at the printing presses. Meanwhile, the improbable frequency with which journalists were attacked by anonymous street thugs strongly suggested the authorities were behind the incidents. Important sections of the media were controlled by Akaev family members, notably Akaev's son-in-law Adil Toigonbaev, whose business empire included Kyrgyz Public Educational Radio and Television (KOORT) and the newspaper Vechernii Bishkek. The president also appoints the director general of the state-owned National Television and Radio Company (NTRK).

Bakiev came to power vowing to rein in government influence over the media, but the record is mixed. Crude forms of intimidation by the government have ended: According to an IREX report on media freedoms, "[n]ot a single crime was committed against journalists in 2005." There is no censorship of the internet. Yet many journalists still practice self-censorship because they are not confident of state protections, and the fact that there is no statute of limitations on libel in the criminal code is a potent source of worry. There are indications that Bakiev's government is becoming less tolerant of criticism. Vechernii Bishkek, which was predictably hostile to the new order and continued to promote Akaev's interests, was wrested from Toigonbaev's control and put under the management of Aleksandr Kim, a Bakiev stalwart. KOORT also provided critical coverage of the government after the revolution. It too was prised from Toigonbaev; an October 2005 shareholders' meeting elected Kim to be KOORT chairman. A subsequent attempt to install a fresh management team consisting of government loyalists provoked a revolt by KOORT employees. In an open letter they complained that the new managers had ordered them to praise top officials in an analytical program. The popular independent station Piramida TV has also complained of government pressure.

Perhaps surprisingly, the government channel NTRK maintained the most unbiased editorial line throughout the year. In November 2005, the parliament considered a draft bill to transform NTRK into a public service broadcaster. Observers lauded the plan in principle as a way to expand freedom of information and expression, yet there were concerns that the bill, as written, did not contain guarantees against political and commercial interference. Because the president would appoint the director general and nominate all the advisory board members, NTRK's independence could clearly be in jeopardy. Other laws on media freedom drafted by parliamentary working groups have also disturbed international watchdog organizations, which have noted that "some restrictions are so vague that they could mean almost anything. The prohibition on printing 'unprintable expressions' is probably the best example of such restrictions."

Recommendations

• The people must be permitted to express their will about draft amendments to the constitution through a free and fair national referendum, following a sufficient period of informed public debate.
• The president should cooperate on legislative reforms to reduce the power of the executive in relation to other branches of government.
• The government must stop interfering, either directly or by proxy, in the workings of KOORT, Piramida, or other independent media to compel favorable coverage or suppress unfavorable coverage.
• The charter of NTRK as a public service broadcaster and the accompanying legislation must ensure the station's independence from pressure by political and commercial interests.

Civil Liberties – 4.17

Akaev's final year in power was characterized by growing autocracy and a commensurate erosion of civil liberties in Kyrgyzstan. The Ministry of Internal Affairs (MVD) and the National Security Service (SNB) were seen increasingly as instruments of state repression. Members of the opposition Ar-Namys (Dignity) party were persecuted and harassed or driven to quit the party under threat of losing their jobs. Human rights defenders were also subject to intimidation and surveillance by security agents. Such overt use of law enforcement to suppress political opponents has ceased under the Bakiev government. There have been no political prisoners in Kyrgyzstan since the release, during the revolution, of the Ar-Namys leader (now prime minister), Feliks Kulov. However, democratic slogans and personnel changes at the top (including reshuffles in the Ministry of Internal Affairs and a new Bishkek police chief) have not eliminated overnight the culture of abuse and brutality that seeped through the police and security organs during Akaev's lengthy rule.

Arbitrary arrest and detention without trial are forbidden by the Kyrgyz constitution (Article 18). However, numerous opponents of Akaev's regime were illegally jailed for short periods of time or underwent unwarranted hospitalization in retaliation for criticism or to prevent them from making public appearances. In November 2004, Tursunbek Akunov, the head of the Human Rights Movement of Kyrgyzstan and leader of a campaign for Akaev's impeachment, was summoned to a meeting with the police and vanished. He reappeared at a Bishkek hospital two weeks later, asserting that he had been abducted and kept in a basement during that period by SNB and MVD members. Opportunistic police officers have also been known to arrest citizens on false charges and then – in a form of state-sponsored kidnapping – offer to let them go in exchange for money.

In November 2003, the criminal code was amended specifically to prohibit torture (already outlawed by Article 18 of the constitution). Nevertheless, its use remained widespread, although not systematic, in both pretrial detention facilities and prisons. The MVD, taking its cue from a high-profile but brief anticorruption drive launched by Akaev in February 2004, reported that it had opened criminal cases against scores of police officers and disciplined many more in response to citizens' complaints. Yet notwithstanding some cosmetic changes and half-hearted measures, police corruption and impunity have remained serious problems. Officials have yet "to acknowledge the extent and gravity of Kyrgyzstan's torture problem or to formulate a plan to resolve it."

The harsh and degrading conditions in Kyrgyzstan's prisons became a national scandal in 2005. The first attempts at penal reform came in 2002 with a decision to transfer authority over the prisons from the MVD to the Ministry of Justice. Despite some improvements since then, three waves of bloody prison riots swept the country in late 2005 as inmates protested against chronic overcrowding, starvation rations, and epidemics of hepatitis, tuberculosis, HIV, and other infectious diseases. The resulting publicity also threw a spotlight on entrenched corruption in the penitentiary system – a world where jailed criminal bosses lived in luxury with access to weapons and money and colluded with prison officials in running drugs. Bakiev vowed to restore order and improve conditions, but little money has been allocated to back up his promises.

Freedom of assembly is guaranteed by the constitution. Under Akaev, the authorities were relatively tolerant of rallies and protests (quite a common sight even outside the White House and the parliament) except when they were deemed to pose an unacceptable political threat. In such cases, the state could exploit ambiguities in the law – which required advance written notification and permission to hold public assemblies but did not spell out how to meet those requirements – to prohibit or disband gatherings. In April 2004, police forcefully intervened to stop dozens of demonstrators marching in support of then-jailed oppositionist Feliks Kulov. The use of excessive force against rallies has been a long-standing concern, most notoriously on display in the town of Aksy in March 2003 when police fired into a crowd of antigovernment protesters, killing five. Bakiev, incidentally, was prime minister at the time and initially backed the police, although he eventually resigned over the incident. As president, too, he has already courted controversy by deploying special forces, carrying large-caliber automatic weapons and grenade launchers, to crush a prison rebellion in November 2005. Amid the ensuing uproar, human rights ombudsman Tursunbai Bakir-uulu promised an investigation into the incident, in which least four inmates were killed and many more were said to be seriously injured.

However, such strong-arm tactics against public unrest and demonstrations have been the exception rather than the rule under Bakiev. For the most part, his weak government has been permissive to the point of helpless surrender in the face of protests and other manifestations of "people power" unleashed by the revolution. The question for Kyrgyzstan is not whether the state permits demonstrations and protests – they have continued almost nonstop around the country throughout the year – but whether it can possibly stop them. In November 2005, the new prosecutor general, Kambaraly Kongantiev, told the National Security Council there had been at least 1,200 unauthorized protests and 2,286 illegal public meetings since January. He echoed warnings by other officials that the ongoing chaos and anarchy could bring Kyrgyzstan to the brink of collapse. Thus a civil liberties issue, freedom of association and assembly, has blurred dangerously into a public-security issue. In October 2005, Kongrantiev (then a parliamentarian) floated a draconian proposal to impose a year-long ban on demonstrations, marches, and any public activity involving "calls for subversive action designed to destabilize the situation and hinder the work of government and law-enforcement bodies." The proposal was shelved after it provoked outrage among many rights activists and legislators.

Kyrgyz law accords equal status to men and women, and gender discrimination is prohibited by the constitution (Article 15). However, in February 2004, Akaev tacitly recognized that there were violations on paper and in practice when he decreed an analysis of all legislation from the standpoint of gender equity. This was followed by a government action plan, implemented in November 2004, to eradicate all forms of discrimination against women. While creditable as first steps, these measures have made limited headway against a real and growing problem. On the one hand, Kyrgyz women are well represented in the labor force and the white-collar professions. They comprise approximately one-third of the country's judges and are prominent as attorneys. The chief justice of the Constitutional Court, Cholpon Baekova, is female, and there were women ministers (and one vice prime minister) under Akaev. On the other hand, there is currently not a single female deputy in the parliament, and only one woman with a senior post in Bakiev's government-Aigul Ryskulova, who chairs the State Committee for Migration and Employment. Of the country's 65 political parties, only two are headed by women.

Kyrgyzstan's failing economy poses perhaps the greatest threat to women's equality. Paid less on average than their male counterparts, they are more likely to be unemployed and first to be laid off – even though more Kyrgyz women than men have higher education degrees. Women are particularly disadvantaged in the countryside, where poverty is rife and scarce socioeconomic resources such as jobs and educational opportunities are preferentially given to males. Moreover, many rural women must contend with traditional patriarchal attitudes that regard their proper place as the kitchen and the bedroom. The customary practice of bride-stealing – kidnapping and, in some cases, raping girls for forced marriage – has enjoyed something of a popular revival in rural areas since the collapse of the USSR. Although the practice is outlawed, local authorities have tended to turn a blind eye. Abuses have grown sufficiently widespread that, in December 2004, the government backed an NGO-sponsored Campaign Against Violence and Bride Kidnapping to educate young people, officials, and the police about the wrongs of the matter and sensitize them to domestic violence. Trafficking of women is another problem to which the state has belatedly awakened. An estimated 2,500 Kyrgyz women have been trafficked abroad for the purpose of sexual exploitation, 80 percent of them ending up in the United Arab Emirates. The U.S. State Department has listed Kyrgyzstan as a Tier 2 country, meaning that the government does not fully comply with the minimum standards of the Trafficking Victims Protection Act but, following the adoption of a new comprehensive anti-trafficking law in January 2005, is making significant efforts to do so.

The rights and needs of people with disabilities, recognized on paper, are usually neglected by the state, citing scarce resources. Wheelchair ramps are a rarity; mental hospitals are in shambles; discrimination against people with disabilities is common in the job market. Numerous NGOs have stepped into the vacuum left by the government and work to train and support people with disabilities, particularly children. However, their work inevitably reaches only a small proportion of the disabled population, about whose numbers no reliable statistics exist.

Kyrgyzstan is a multiethnic state of 5.1 million people, of whom ethnic Kyrgyz comprise 67.4 percent. Ethnic Russians (10.3 percent) are concentrated in the north of the country, while ethnic Uzbeks (14.2 percent) have their stronghold in the south. Although the law proscribes discrimination on the basis of race or ethnicity, non-Kyrgyz have been consistently underrepresented in government posts. Russians in particular allege they are treated unfairly in the private sector as well. This perception of a glass ceiling has contributed to their mass emigration (Russians made up a fifth of the country's population in 1990). To encourage them to stay, Akaev's government had Russian designated in the constitution, beside Kyrgyz, as the official state language; still, the status of Russian has been periodically challenged by nationalist groups keen to promote wider use of Kyrgyz. When another public row erupted over the issue in November 2005, Bakiev (whose wife is Russian) had to intervene in support of retaining Russian's official status.

By contrast, a petition in 2002 by the Uzbek community to have their language upgraded to a state language was ignored. Many Uzbeks supported Akaev nonetheless as a bulwark against Kyrgyz nationalism and were correspondingly tepid in their support for the revolution. Uzbeks have warmed to Bakiev's administration since its handling of the refugee crisis in spring-summer 2005, when hundreds of Uzbek citizens sought asylum in Kyrgyzstan after the bloody suppression of a demonstration in the Uzbek town of Andijon. The government upheld, for the most part, its obligations under international law not to repatriate them and eventually allowed 450 Uzbek citizens (many of whom had family ties to ethnic Uzbeks in Kyrgyzstan) to be airlifted to third countries.

Kyrgyzstan is a secular state in which freedom of religion is legally guaranteed and mostly respected in practice. About 80 percent of the inhabitants (essentially, the Kyrgyz and Uzbeks) are Sunni Muslims. Russians tend to follow the Russian Orthodox faith, at least nominally, although a small number have been attracted by a diverse group of Protestant denominations whose missionaries operate with minimal state inference. All religious organizations must register first with the State Commission on Religious Affairs (SCRA) and then with the Ministry of Justice; the process is cumbersome and can take over a month but is basically pro forma only, as almost all unregistered groups report that they can function freely. The exceptions to this pattern of tolerance are restrictions on radical Islamic groups regarded by the state as threatening to security and stability. Foremost among them is Hizb ut-Tahrir, banned in 2003, which agitates for the establishment of Islamic rule and has an estimated 3,000 clandestine followers in the south of the country. Its members, arrested typically for distributing propaganda leaflets and literature, have sometimes been fined or let off with a warning, but the trend now is toward less tolerance and more imprisonments. The charges are usually inciting religious, ethnic, or racial hatred. In the first half of 2005, prosecutors opened 34 criminal cases and held 36 individuals on charges of extremism. Meanwhile the government, acting through the muftiate (the official Islamic spiritual leadership), has started taking steps to monitor the preaching of itinerant Muslim preachers. The very first law signed by Bakiev as president in August 2005 was "On Combating Extremist Activity," whereby merely "to assert" certain views may be punishable.

Recommendations

• The penal system must be reformed to humanize conditions for ordinary prisoners and provide for their welfare, eliminate the privileges accorded to criminal bosses, and punish corrupt prison officials.
• Allegations of state torture must be investigated promptly, impartially, and fully, and the government should ensure appropriate prosecution and punishment.
• The president should demonstrate his commitment to combat discrimination by promoting more women and minorities, particularly ethnic Uzbeks, to senior offices.
• The government should bring its new anti-trafficking legislation into force and expand efforts to clamp down on the trafficking in persons.

Rule of Law – 3.38

Akaev dominated the judiciary to consolidate his rule. Two especially notorious decisions set the tone. In 1998, the Constitutional Court held that Akaev could run for a third term, notwithstanding the two-term limitation spelled out in the constitution. In January 2001, his chief political rival, Feliks Kulov, was found guilty of abuse of power, although the same charges against him had been dismissed the previous year; a further prosecution for embezzlement left him with a 10-year sentence. The judge who had initially dismissed the case was reassigned to a remote regional court. Kulov remained in prison until freed during the revolution, when he was cleared of all charges.

The justices on both of Kyrgyzstan's upper courts, the Supreme Court and the Constitutional Court, and all lower court judges are appointed by the president – a system ripe for compromising the independence of the judiciary, although judges must now also be confirmed by the parliament pursuant to constitutional amendments introduced in February 2003. Candidates are screened in a nontransparent fashion by qualification collegiums whose political independence is dubious. Judges must have a law degree and at least five years' experience in the legal profession (10 years to sit on the Supreme Court and Constitutional Court). The level of training available for judges has been evaluated as mostly adequate, although the complexities of the appointment process mean it is not always the best-qualified candidates who make it to the bench. All in all, the process has reportedly been plagued by corruption, with candidates often purchasing their judgeships or being chosen on political considerations. The participation of the parliament has had some effect as a check on the presidency (a few of whose judicial nominees have been rejected) but is not an unmitigated good, considering how frequently deputies themselves are litigants and how many of the present incumbents are believed to have ties to shady businesses and organized crime. Thus, the fear is that the judiciary, previously corrupted by only one branch of government, the executive, could now be actively subverted by two – "that bribes would now be paid to members of Parliament or that the members would 'call in favors' of those judges whom they had supported." The poor salaries of most judges (less than $200 a month) contribute to their susceptibility to improper influence.

Under Bakiev's chairmanship, the Constitutional Council has drafted a raft of constitutional amendments that would affect the judiciary. While they are intended ostensibly to improve and democratize Kyrgyzstan's legislation and institutions, some seem designed to remove curbs on the presidency by weakening the courts, especially a plan to abolish the Constitutional Court and make it a special chamber of the Supreme Court. The Constitutional Court decides the constitutionality of laws, determines the validity of presidential elections, and umpires jurisdiction between the institutions of state. Proponents of its abolition say the move would eliminate the danger that the two upper courts might contradict one another. Another draft amendment would make it easier to dismiss Supreme Court justices.

Defendants have the right to legal representation. Those who cannot afford an attorney are provided one at public expense. However, clients do not always gain access to their lawyers immediately and are sometimes interrogated in the absence of counsel. The criminal code was revised in March 2004 to render any statements made without an attorney present inadmissible in court. The law mandates the presumption of an accused person's innocence until proven guilty, yet in practice the judicial system frequently acts as if the opposite were true. Verdicts of not guilty are exceptionally rare: According to official statistics for 1998 to 2002, 98.7 percent of defendants were found guilty. Judges almost always defer to the powerful prosecutors who are in charge of criminal proceedings; it is the latter (not judges) who currently have the right to issue arrest warrants, order searches, or approve wiretaps. So-called telephone justice – late-night calls to the judge's home from the president's or the prosecutor general's office, telling him what verdict to hand down the next morning – frequently determined important political and financial cases under Akaev's regime. It is unclear how widespread political interference in the judiciary is nowadays. Even if cleaner government under Bakiev has put a lid on the practice, there is a range of nonstate actors, from oligarchs to mafia bosses, who probably know what telephone calls to place to make their influence felt.

During Akaev's rule, senior state officials and their allies were effectively above the law. After the revolution, however, the new prosecutor general, Azimbek Beknazarov, launched aggressive investigations into the alleged corruption and criminal activities of the Akaev clan and its entourage. Criminal charges were brought against Akaev's son-in-law (and prepared against his son) as well as numerous ex-officials including the former prime minister, presidential chief of staff, head of the national bank, and Central Electoral Commission chief. Beknazarov was also credited with efforts to turn the prosecutor general's office into a more independent body by distancing it from the executive branch. In September 2005, Bakiev abruptly fired him, supposedly for mishandling an investigation. An uproar ensued: Beknazarov supporters claimed the real reason for his dismissal was that his anticorruption crusade was getting too close to uncovering shady dealings of the current administration. Beknazarov announced to journalists that corruption was rampant at the highest level of government under Bakiev. The truth remains murky, but the incident has raised concerns about Bakiev's commitment to judicial independence and government accountability.

Although the law guarantees property rights, the state has struggled at times to assert and protect them. Efforts by Beknazarov to renationalize factories and enterprises whose shares, he said, had been improperly acquired put him in conflict with powerful business interests and may have contributed to his ouster. Meanwhile the judiciary was sidelined in 2005 as two business rivals, Bayaman Erkinbaev (a member of parliament) and Abdalim Junusov, struggled to assert ownership of the Karasuu town bazaar. A local court confirmed Erkinbaev's ownership. Nonetheless, factions clashed on the streets, property was attacked, and eventually both men were shot dead in contract killings. In September 2005, a Karasuu court ruled that Erkinbaev's purchase of part of the bazaar had actually been illegal and ordered that it become state property. This ruling has not been complied with. The authorities have also been impotent in the seizure of the five Karakeche coal mines, four of which were privately owned. These were taken over in June 2005 by a local firebrand, Nurlan Motuev, saying their privatization had been illegal. Motuev is now producing and selling the coal himself.

Since 1998, citizens have had the right to own land. The authorities fueled land hunger by promising, perhaps unrealistically, to distribute plots to whoever needed them most. Available land in Kyrgyzstan is scarce (especially in the densely populated Ferghana Valley region in the south) and arable land even scarcer in a largely mountainous country. Distribution schemes under Akaev were loaded with bureaucracy and shot through with corruption and cronyism. Weeks after the revolution, in April 2005, at least 30,000 people took advantage of the authorities' impotence and the atmosphere of anarchy by beginning to seize land outside Bishkek. Bakiev's government promised to build apartment buildings and to seek legal solutions, but unlawful seizures continued with impunity through the summer and autumn. Meanwhile, the land's owners were deprived of their property; farmers in particular complained they had lost the year's crops. Not until October 2005 did the government unequivocally invoke the inviolability of private property and say that no land already established as private property would be redistributed. The standoff with squatters, unimpressed by legal technicalities and calling for social justice, was still unresolved in November 2005.

The Ministry of Internal Affairs (MVD) controls the police and a 4,000-strong paramilitary force for riot control and counterinsurgency operations. These forces have demonstrated brutality and indifference to human rights on multiple occasions, most notably in the March 2002 assault on peaceful demonstrators in Aksy. Yet when the revolution came, the interior forces were mostly bystanders and abandoned Akaev; crucially, they did not fire on the crowds. The Organization for Security and Cooperation in Europe (OSCE) subsequently took partial credit for their peaceable response, referencing a training project launched in 2003 to educate Kyrgyz police about human rights, community policing, and democratic accountability: "The value of the OSCE police assistance programme in Kyrgyzstan was clearly demonstrated by the restraint shown by the police in Bishkek in March 2005, despite the real threat of violence. This was in marked contrast to the behaviour of some police units during previous incidents in the country." This vision of conscientious policing in Kyrgyzstan may be too optimistic and is certainly premature. Prime Minister Kulov (who himself served as minister of national security under Akaev) struggled inconclusively through the autumn to bring the law enforcement bodies under tighter government control.

Recommendations

• The process by which judges are screened and appointed should be reformed to guarantee their independence; the powers of the courts should be strengthened in relation to those of state prosecutors.
• The presumption of innocence until proven guilty must be upheld and respected at all times by prosecutors, judges, and other parties (e.g., politicians).
• The government should act more forcefully and unequivocally to protect property rights and work to ensure that disputes are decided through the courts, not on the streets.

Anticorruption and Transparency – 2.54

Corruption pervaded the state under Akaev. He and his family set the pace, seeking to monopolize political and economic opportunities to enrich themselves. Government officials followed their example. In February 2004, Akaev launched a Good Governance Council to implement a high-profile government anticorruption program, but it was widely viewed as an exercise in hypocrisy. Whistle-blowing journalists who uncovered instances of corruption were persecuted, not thanked. In the same month that the Good Governance Council was formed, an official inquiry into the death of Ernis Nazalov – a journalist who had been investigating government corruption until his corpse was found in a river covered in bruises and stab wounds – concluded that he had drowned accidentally after a drunken party. Akaev's fall was hastened by the graft and greed that he exemplified. A February 2005 expose in an opposition newspaper, shedding light on his personal wealth and family's business interests, has been seen as one of the detonators of the revolution.

Bakiev promised measures to advance clean and transparent government significantly. He has fallen short of his promises. From the moment he assumed power, he squandered popular trust and sowed doubts about his integrity as he brought his own friends and relatives into the government to replace Akaev's. The media reported that some posts were being bought and sold as before. The interim finance minister, Akylbek Japarov, filled key positions in the customs service and financial police with his family members. Bakiev himself went on to appoint his three brothers, Marat, Adyl, and Jusupbek, to become, respectively, ambassador to Germany, trade representative in China, and deputy director of the Agency for Community Development and Investment.

In April, a commission headed by Deputy Prime Minister Daniyar Usenov was created to track down assets of dozens of companies apparently belonging to Akaev and his inner circle. Entities allegedly under their control included many of the country's major economic assets, including media outlets, shopping centers, restaurants, vacation resorts, factories, and an airport. However, it is discouraging that the Akaev investigation has been conducted without independent oversight. As the International Crisis Group has pointed out, the inquiries "are not by independent auditors so there is a possibility they will simply lead to a transfer of control to other political players."

Among the monies apparently stolen by the Akaev family were funds that might have been earmarked for foreign assistance or investment to the country. Alam Service, a company that supplied fuel to American warplanes at Manas airport, belonged to Akaev's son-in-law, Toigonbaev, who apparently siphoned off at least $16.5 million from the contract with the U.S. government-cash that should have been paid into the state treasury. Another fuel supplier, Manas International Service, belonged to Akaev's son Aydar, who may have stolen $30 million per year. Competition for government contracts or other lucrative ventures was neither fair nor open in Akaev's Kyrgyzstan, where the best opportunities were steered towards family members and allies. It is of special concern to know what safeguards the Bakiev government intends to put in place against such diversions of funds in the future, now that the foreign donor community is ramping up financial assistance to Kyrgyzstan. In November 2005, Kyrgyzstan entered the threshold program of the Millennium Challenge Corporation for fiscal year 2006: a waiting-room for countries that have not yet qualified for Millennium Challenge Account (MCA) funding assistance but have demonstrated a significant commitment to improve their performance on the MCA eligibility criteria, which include a democratic political system and strong anticorruption credentials.

However, with its corruption-fighting energies focused on malfeasance under Akaev, the government has made no systematic effort to tackle corruption as it continues to exist on a day-to-day basis. There have been a few piecemeal measures. In November 2005, a new Financial Police Service was established to combat economic crimes and tax evasion. The Ministry of Finance is pursuing certain companies that were sheltered by Akaev's regime to force them to pay back taxes; the ministry also has claimed some successes in stanching the flow of illegal funds. The government has approved a program to root out corruption among the traffic police, a notoriously crooked institution despised by motorists. Yet these measures are merely chipping around the edges of a monolith of entrenched corruption. The Transparency International 2005 Corruption Perceptions Index ranked Kyrgyzstan 130 out of 159 countries, with a score of 2.3 on a scale from 0 ("highly corrupt") to 10 ("highly clean"). This is a meager improvement on the previous year's score of 2.2. Judges, doctors, civil servants, police officers, customs officers, teachers, university examiners and administrators, vendors of airline tickets, and tax inspectors – practically any state employee who controls the dispensation of goods or services regularly – require a bribe to do their job in a timely manner yielding a favorable result. Miserable state salaries impel, and to their mind justify, officials' rent-seeking behavior.

Probably nowhere is the conflict between public duty and private interest as obvious (and as unresolved) as in the legislature. Since March 2004, government officials have been required by law to disclose all sources of income. Yet in the current parliament sit numerous individuals whose enterprises are shady at best. Some are generally known to be connected with gangsters and have become deputies to protect their businesses better and because the status offers immunity from prosecution. Bakiev openly accused MPs of subverting the police and cooperating with organized crime in a speech in September 2005. Three MPs were murdered in 2005 – two in contract killings, one in a prison riot – for reasons believed to have to do with their business interests or criminal relations.

Economic growth is stymied by corruption; the bribes are frequently required during licensing procedures, dispute settlements, government procurement, regulatory activity, and taxation. It takes an average of 21 days to register a business, and business owners often need licenses from 20 different state agencies. The customs and tax inspectorate are reckoned to be the most corrupt institutions in the land. Formally, though, government involvement in the economy is relatively low (4.65 percent of revenues came from state-owned enterprises and government ownership of property in 2004) and diminishing. The Heritage Foundation rated the Kyrgyz economy in 2005 as "mostly free."

Citizens have the right to request information about government operations, and such requests are generally honored although state organs may take a long time to comply. The government's annual budgets are published in state newspapers, but statistics tend to lack the fine detail needed to make them very meaningful; actual tax expenditures are not given, for example. Under Akaev, annual budgets were crafted in the president's office through a nontransparent process, passed by the parliament with minimum dissension, and then routinely ignored by all the state institutions called on to implement them. Bakiev will not be able to push his first budget through so easily. It is sure to come in for sharp scrutiny from freshly empowered civic groups and is likely to face strong challenges in the parliament. This process is likely to further the cause of transparent, accountable government in Kyrgyzstan.

Recommendations

• The government must take measures to attack nepotism and cronyism in public life.
• The president and his colleagues must publicly declare their sources of income, as required by the disclosure laws for state officials, and should compel members of parliament to do the same, making the relevant documentation available for public scrutiny.
• The commission investigating assets allegedly belonging to Akaev and his allies should publicize its results, and the subsequent process of property redistribution should be conducted in a transparent fashion under the supervision of independent auditors.
• The state budget should be formulated openly and debated publicly; government expenditures should be declassified to the maximum extent possible and be published for public review.

Author

Adam Smith Albion is Director of Critical Areas Research for World Monitors, Inc., and Director of the Central Eurasia Leadership Academy (CELA)