Cunning democracy

The general message of officials and pro-government commentators is that the establishment of democracy in Kazakhstan is a long-winded process fraught with serious problems, but that the authorities are continuously and successfully solving these problems. On the one hand, the argument is intended to explain the imperfections of legislation in the country, the formality of its democratic institutions, the limitations on the rights and freedoms of citizens and even the problems of the opposition and dissidents. On the other hand, it is intended to demonstrate to all that autocracy is the only way towards democracy.

Kazakhstan does not merely follow and repeat the experience of democratic countries. From the very beginning of the country’s independence, the authorities have sought to please everyone though their foreign policies, in exchange for support and recognition. Later, this has taken the shape of a multi-vector foreign policy.

Establishing a democratic image of Kazakhstan in the eyes of Europe and the US was a pre-requisite to gain support for president Nazarbayev’s many ambitious projects. Kazakhstan’s chairmanship of the OSCE, including the 2010 OSCE Summit in Astana, its hosting the meetings of the Congress of World Religions, Asian Winter Games, EXPO-2017, applications to host the Olympic Games, regular attempts to nominate Nazarbayev for the Nobel Peace Prize and many other initiatives were and continue to be one of the strategic tasks of the Kazakhstani government in realizing the ambitions of its leader, President Nazarbayev.

Obviously, without certain steps taken towards democracy and without the establishment of its formal institutions, ambitious projects designed to magnify the importance of President Nazarbayev would have been far more difficult to realize. However, the model of democracy being developed in Kazakhstan can perhaps be coined a “cunning democracy”, based on the existence of a few democratic institutions which have been stripped of their democratic nature. As such, they have lost their original function, turning into formal instruments of autocracy.

One should warn against a simplistic understanding of what we mean by “cunning democracy”. The cunning here lies not only in the government’s claim that the country is moving towards democracy, while at the same denying its citizens democratic rights. It is also found in the contradictory measures the government takes to promote democracy. This deserves a closer look.

It is undeniable that the government of Kazakhstan initiates certain democratic processes, establishes democratic political institutions and brings legislation into accordance with international standards and so forth. However, within all these processes there is a certain point past which the authorities will not cross under any circumstances. In their understanding, a real division of power would doom the current political system to principled change, something that is not in the interest of government representatives and is seen as a threat to their own position.

In everyday life, this is evident through the political control of all democratic institutions. This form of control eliminates the risk of political parties, civil society or popular initiatives having any real impact on the political situation in the country. This is the core of what we call Kazakh-style “cunning democracy”.

The greatest cunning of all is the country’s Constitution. Or, perhaps more to the point, in the way its norms are realized in practice. Formally based on the Constitution of France, the main legal document of Kazakhstan establishes all basic democratic principles of the state and its institutions: The principle of division of power, free elections, political pluralism, the rule of law, human rights and freedoms; its parliament, courts and media.

However, the question of whether a state is democratic or not is decided not formally, through normative rights, but in practice – through its social, moral, economic realities and especially its political realities. In Kazakhstan’s case, the difference between what has been established in the Constitution and how these rights are realized in everyday life is in itself proof of the authoritarian cunning at play.

For instance, the Constitution guarantees freedom of speech and the right to unhindered access to information[1]. However, it is impossible to start a TV channel if public officials are of the opinion that the owner of the channel is not loyal to the political regime. Not one single Kazakhstani TV-channel will permit criticism of the current president of the country. The phrase “Nazarbayev should go” has never been heard on television. With a few minor exceptions, the same goes for printed media. A textbook example is the case of the opposition journalist Ermurat Bapi[2], who has tried seven times to register a newspaper, who has been rejected every time for different reasons, and who still has not been able to register.

A few oppositional papers with small circulation are the exceptions. These papers have been able to find judicial loopholes and avoid official obstacles. Some managed to circumvent the registration process; some bought their license from owners of old papers. However, the activities of these newspapers are associated with a continuous risk of being held administratively, legally and criminally responsible, something that limits their ability to grow and for readers to purchase their paper. At the same time, the fact that they do exist gives the authorities a chance to speak of “alternative views in the media”, and hence to declare that freedom of speech exists in Kazakhstan. The cunning lies in the fact that this form of freedom of speech is so limited that the majority of the population has no access to alternative information, while those who spread information is under continuous pressure from the government.

For instance, in the beginning of July 2013, the chief editor of the journal Adam Reader’s, Gulzhan Yergalieva, stated that the latest issue of the Kazakhstani journal could not be published because she could not find any printer who would print it. One press claimed the rejection was due to technical problems, others said that they did not print publications of a political nature. According to the editor, Adam Reader’s contacted around 24 printers in Almaty and Almaty Province and was rejected everywhere. Many oppositional newspapers have met with the same practice.

Another example:  the Constitution of Kazakhstan guarantees the right to vote and to be elected, as well as to participate in nationwide referendums[3]. However, no election in Kazakhstan has ever been held in accordance with the principles of democratic elections[4]. In the absence of alternative views, government-controlled media has been shaping public opinion to fit that of the government. In a sense, the public is being duped into the necessary result. It is impossible for opponents of the government to break through public opinion in the course of a one or two-month election campaign, especially considering that their chances of appearing on television are seriously limited. Secondly, people who to some extent are dependent on government officials (students, the military, doctors and employees of other state- funded institutions) are forced to vote for the preselected candidate. As a rule, a dependent person will not risk problems or enter into conflict, as it could cause him to get fired from his job. For this reason, he also keeps quiet about the pressure placed on him during elections, and does not take the matter to court. The situation is made even more difficult by the fact that Kazakhstani court system is cunning in its own right.

Kazakhstani judges are appointed (directly as well as indirectly through the Senate) by the President and do not enjoy political independence[5]. Twenty years of practice has shown that the judges serve the political interest of the authorities. When a case is politically motivated (trials against political opponents, human rights activists, journalists, and civil society activists) the courts rule in favor of the current political regime[6].

Regardless of the fact that all processes give an impression of a fair trial from a formal point of view, it is impossible to speak of fair trials in Kazakhstan. The cunning lies in the fact that in every such case, the judge is an obedient executor of the political will of the government. As such, Kazakhstani courts have become a universal instrument of the “cunning democracy”.

Another example of the “cunning democracy” is the constitutional right to peaceful assembly. The constitutional guarantee of freedom of assembly is formally in accordance with the definition found in the International Covenant on Civil and Political Rights (ICCPR)[7]. However, Kazakhstani authorities seriously curb the right of Kazakhstani citizens to meet peacefully and without weapons.

The ICCPR permits limitations to the freedom of association, but only as separate exceptions from the general right to use this freedom, without any form of limitation. In Kazakhstan, the limitations on the right to peaceful assembly extend far beyond such exceptions and are instead a widely used practice. The mere fact that persons who wish to hold an assembly can realize this right only after receiving permission from local authorities (the Akimat) is an impermissible limitation on the right to peaceful assembly. The absence of a permit automatically turns a peaceful assembly into an illegal one. In international practice, the legality or illegality of an assembly is decided primarily by its character – whether it is peaceful or not.

Another piece of cunning is the fact that in practically all large populated areas of Kazakhstan, the authorities have established special places where peaceful assemblies can be held[8]. When considering an application to hold a demonstration, the Akimat will suggest that the event should be held in a spot specifically designed for this purpose. And, as a rule, these places are located far away from the center of the city. Events taking place here go unnoticed by society at large and by those whose attention they are supposed to attract. If those who have gathered refuse to hold their demonstration at the designated spot, the Akimat will reject their application to hold the event in a public place altogether. If the applicant does not agree with the Akimat’s rejection, considering this a violation of his rights, he may of course take the matter to court – that universal instrument of “cunning democracy” – which will only confirm the decision of the authorities.

Another right which has been cunningly stolen from the citizens by the current government is the right to establish political parties. The Constitution states that “Citizens of the Republic of Kazakhstan shall have the right to freedom of forming associations”[9]. However, the realization of this right lies in the hands of government officials, who have established legislation that makes registration of a political party highly difficult. In the case of oppositional parties, the law has become an insurmountable barrier. Not only does an opposition under administrative pressure have to find 40,000 members, they also have to observe complicated procedures for holding the meetings required to formally establish their party. For every step, government officials will find innumerable reasons to withhold registration for unspecified periods of time. In order to reject an application for registration, it is sufficient to find a few persons who are willing to withdraw their signature, or who have died or left the country. This practice was used against the opposition party Alga!, whose party members wandered the offices of government officials for seven years, trying every conceivable way to get registered, but not succeeding in doing so. Such a practice in relation to the right to association looks more like an outright ban on political activity.

The above-mentioned are examples of Kazakhstani authorities’ intent to remove democratic content from the norms of the Constitution, to disavow them on the level of laws and regulations. For this reason, the Kazakhstani state, which externally is seen as democratic, is instead Potemkin villages raised to fool those who do not have the possibility to see the true situation with regards to human rights in Kazakhstan.

A perfect example of this is the realization of the National Action Plan on Human Rights for 2009-2012.

On 5 May 2009, the president of Kazakhstan approved the National Human Rights Action Plan for 2009-2012, which contains a program intended to guarantee human rights in Kazakhstan by bringing national legislation and legal practice into correspondence with international standards, including timeframes for the realization of these measures. It also specifies which departments are responsible for carrying them out.  The recommendations of the National Action Plan concern the development of mechanisms for realizing the constitutional rights of citizens. Particular attention was paid to the strengthening of the court system, the development of non-judicial mechanisms of protection of human rights and protection of civil and political rights on the level of international standards.

Up until Kazakhstan’s chairing in the Organization of Security and Cooperation in Europe (OSCE), this document was considered one of the main indicators that the government of Kazakhstan was intent on keeping course on further democratization of the country. The plan was presented as a serious mechanism for the promotion of democratic principles in Kazakhstan, and received approval by the governments of a number of countries as well as international governmental and non-governmental organizations.

During the four years of realization of the National Action Plan, only 23% of the recommendations included in its main chapters have been fulfilled, and only those which are of secondary importance to the fundamental human rights situation. The cunning is to be found in the fulfillment of only those recommendations which do not influence the actual situation. However, it gives the government the chance to speak about how much they are doing to promote democratic principles, pointing to a general “positive tendency” in the realization of the Action Plan. However, out of 14 points in the plan, each of which regards one concrete human right or freedom, the situation with regards to 8 human rights (8 parts of the plan) has remained unchanged, whereas the situation with regards to 5 human rights (5 parts of the plan) has worsened[10].

According to monitoring carried out by human rights activists[11], improvement has only been observed with regards to the rights of the child, while a worsening situation has been noted with regards to respect for fundamental rights and freedoms. Certainly, an improvement of the rights of the child is a very important point. However, this cannot conceal the fact that the situation has worsened with regards to freedom of speech, including peaceful assembly, civil and political rights, the right to freedom of religion or belief and many others. This is a result of one of one the greatest cunnings of the past few years – the realization of the National Human Rights Action Plan for 2009-2012.

It is highly unfortunate that hypocrisy has become the main characteristic of Kazakhstani authorities’ attempts at “promoting democracy”. Moreover, under the pretext of bringing democratic institutes into line with the mentality and traditions of the population, these have been transformed into openly authoritarian instruments, through which attacks on human rights and freedoms are being carried out. In the name of the fight against extremism, the authorities crack down on peaceful strikers. While realizing the program “The road to Europe” opposition parties and media were closed down. Within the framework of the realization of the National Human Rights Action Plan, the authorities pass an openly repressive law on religious communities.

The current governments’ particular cunning lies in the fact that among its achievements it does not consider the welfare of the population, not the production potential of the country, not the level of public health or education, but rather membership and chairmanship in various international organizations, the hosting of international forums and award ceremonies.

This can hardly be called an achievement.