Previously I described how President Kassym-Jomart Tokayev of Kazakhstan had successfully consolidated his power, now it seems like he is trying to implement moderate constitutional reforms from a position of strength.
He is the heir to a dictator, who can be viewed as benevolent compared to his neighbours, under whom human rights abuses were less severe and the economy did better than the other Stan countries and arguably Russia.
He wants to change the country’s constitution and transform the super-presidential dictatorship into a state with a genuine balance of power along with a prohibition on presidential nepotism. While Russia and Belarus appear to have only become more authoritarian throughout the recent years, in Kazakhstan we are treated to an example of the opposite. It could be a really positive start for a broader trend throughout the entire Central Asian region if it works.
President Nazarbayev legacy and previous reform attempt
Nazarbayev was originally a reformist communist who successfully kept Kazakhstan out of the chaotic struggles Russia dealt with in the early 1990’s and avoided both the radical shock therapy of Yeltsin and the lack of market reform of Uzbekistan.
His political policies however were always more ad hoc and centred around presidential power, sort of like Lukashenko but with less (need to) resort to violence and more basic authoritarian repression methods. He also did end up creating a dominant party following Putin more closely in that regard. But even that was created ad hoc.
Trying to understand this process is rather difficult since no one except the makers of Borat appears to have really cared about Kazakhstan till recently. But if you read the various Wikipedia articles ten times and then google search some names you do actually get a rather clear picture.
Kazakhstan never really experienced democracy. Though not a hard-line Soviet State, it was a rather consistent authoritarian state.
While it didn’t remain a one-party state like Turkmenistan did, the communist party ruling elite had no desire to go the route of the Baltic states, nor was their massive popular pressure for them to do so. When the Soviet Union was crumbling, Kazakhstan’s Supreme Soviet made Nazarbayev, who was already first secretary of the communist party in Kazakhstan and before that had been prime minister, the first president and he was able to put into place his own government and then run in a presidential election unopposed so as to receive a mandate from the people.
After that a a constitution with a relatively strong presidency was created in 1993 and calls for a coalition government and input from opposition groups by pro-democracy groups were simply ignored.
A true multiparty system, rule of law or independent governmental institutions didn’t really develop, nor a strong civil sector. Though there was relative media freedom during the 90s but still limited by strict and broad libel laws.[1]
So far, the interests of Nazarbayev and the post-communist parliament had aligned. But the already rather powerful President ended up clashing with the former elite afterwards. Desiring stronger economic reforms and dismissing the old guard from the government.
This resulted in a power struggle and since the President enjoyed the support of the prime minister, the supreme soviet had no real mandate from elections yet and supreme soviet and later opposition leader Serikbolsyn Abdildin wished to avoid confrontation which could lead to stability, the President won.
But even after getting a more supportive parliament elected it wasn’t subservient enough and eventually held a vote of no confidence against his prime minister he ended up dissolving parliament, ruling by decree for a while and enacting a new constitution just 2 years after the previous one, all thanks to the Constitutional Court ruling the parliamentary elections invalid.
He pushed through some reforms like a bicameral instead of a unicameral parliament (good) and transforming the constitutional court that had been rather supportive of him and critical of parliament in the far less independent constitutional council (really, really bad).[2]
From 1995 onwards Kazakhstan was authoritarian but the president always flirted with some kind of democratisation. But examples included an unimplemented expansion of jury trials.
I honestly cannot question enough the push to introduce jury trials in countries where this has no real historical basis and where free media and knowledge regarding the rule of law are generally weak. Imitating the English-speaking world to become more democratic is rather silly, especially when most successful democracies in Eastern Europe never introduced jury trials.[3]
The introduction of jury trials into a broken judicial system risks making them into an extremely unpredictable factor.
In many former Soviet states, egalitarianism is a lot weaker and people tend to trust the authorities more, till they f**k up to massively and then they protest mainly to get better authorities.
The best reform for the judicial system is better judges. Thankfully that seems to be speeding up now! Although an expansion of jury trials is also contained in the new amendments. Things cannot be perfect I suppose.
Promising constitutional reforms
The constitutional amendments will transform the Constitutional Council back into the Constitutional Court (as it was before 1995) but its chairman while still nominated by the President will now need to be approved by the senate. Ordinary citizens will now also enjoy the possibility to appeal to the Constitutional Court in certain cases.
The head of the supreme judicial council would need senate confirmation as well. Since this is the council that nominates the judges for the lower courts and appeals courts, a share of power in nominating the head of this council between president and senate seems only necessary. The ordinary judiciary as well a whole and the constitutional court becoming more independent are obviously very good things.
Judges in general would be prohibited from party-membership along with members of the Central Election Commission.
The numbers of senators which the President may appoint would decrease making that body more independent and he would only get to nominate multiple candidates to serve as regional governors, he would no longer be able to appoint them without approval by the regional assemblies.
The President retains the ability to nominate governors and other regional executive authorities preventing rapid decentralisation during unstable times. He also keeps the ability to appoint a number of senators and the authority to nominate many of the highest judges. His powers remains very strong.
Yet the senate, the judiciary and the regional authorities all get some expanded power to check the President.
The Mazhilis, the lower house, the centre of mass democracy, the body of national representatives of the people, gets more influence over the national budget and initiating ordinary legislation.
Basically, they get some more influence on every day politics but not the judiciary or the constitutional court. The important stuff is reserved for the senate.
A constitutional law will ensure the independent functioning of the prosecutor’s office and the ombudsman will be granted immunity.
It are mainly checks and balances, a balance of powers (as opposed to a full separation) of powers, that are being expanded. A dictatorial trias. Not so much democracy.
A prohibition on nepotism by the president is a nice little bonus.
If these reforms are really implemented, we could see Kazakhstan stabilise through constitutional (semi?)-authoritarianism. Reform with still some continuity with the policies of President Nazarbayev. Precisely what Fraga attempted to do with the legacy of the Francoist authoritarian state in Spain.
These reforms if fully implemented can truly decrease corruption and unfairness within the prosecution and the courts, strengthen a balance with the regions and create a more stable long-term political climate.
Democracy and pluralism
The reforms however don’t really guarantee more democracy, fairer or especially genuinely competitive elections. While members of the Central Election Commission would no longer be allowed to be members of any party according to the constitutional amendments, but unless the appointment procedure is changed dramatically, this will be a largely cosmetic change. The state-owned media will likely continue to give the government an edge.
If the constitutional reforms aren’t mere window dressing, Tokayev will likely step down after his second term is over (he is currently in his first term but I take his re-election as a given). He has enough time to consolidate his reforms before he has to step down.
The question of succession is key to the durability of the reforms. He can try to pull a Putin-2008 and become prime minister, but even after the constitutional reforms the president remains a much more powerful figure and more importantly, the recent fate of his predecessor might make that a more dangerous gamble.
Will Tokayev find a successor who will be moderate (within the context of Kazakhstan) without being weak? The presidency remains essential. Unless Tokayev’s reforms truly shift enough power to the prime minister’s office but it doesn’t seem like it will do that. But the slight increase in parliamentary power and the question of future presidents raises the question of whether a stable group can be formed within the regime and within the ruling party.
In that case the state could develop from a presidential dictatorship in a strong presidential system mixed with a dominant party system, but that requires stable party leadership. Then a constitutional authoritarian state might become a hybrid regime. Moderate opposition parties will be accepted into the fold.
If the referendum is generally accepted as fair this will consolidate the regime further.
Sources:
- https://www.hrw.org/reports/1999/kazakhstan/Kaz1099b-02.htm
- https://www.cambridge.org/core/journals/law-and-social-inquiry/article/captured-courts-and-legitimized-autocrats-transforming-kazakhstans-constitutional-court/9FBA81335B393E06A7A49DA70F83278B
- https://cabar.asia/en/kazakhstan-why-the-institute-of-trial-jury-cannot-function-in-full-power
Ramon Giralt