Kazak Constitutional Reform Strengthens President

The constitutional changes which came into force in Kazakstan on May 21 have consolidated the president’s power, and do not represent significant progress towards democracy.



Political power remains excessively centralised, and the constitutional amendments largely amount to a redistribution of authority among branches of government.



One important change is that Nursultan Nazarbaev, as Kazakstan’s first and so far only president, can seek re-election as many times as he wants. In other words, he can seek a new term in 2012 and again in future ballots until such time he himself decides it is time to step down.



Although the changes have been advertised as strengthening political pluralism and the legislature, Nazarbaev will be able to use the parliamentary majority of his party Nur Otan to dominate both the legislative process and the government. Nur Otan has considerable public influence, not least because civil servants are more or less compelled to join it, as are the employees of private companies whose owners are Nazarbaev supporters.



The president’s influence over lawmakers is also boosted because nine seats in the lower house or Majilis will now be nominated by the Assembly of Peoples of Kazakstan, over which he has influence, and he will also appoint 15 members to the upper chamber or Senate instead of seven as was the case before.



In all likelihood, the main reason why Nazarbaev has pushed these changes through is because since he was re-elected in 2005, he appears to have lost some of his grip on the political elite in particular, and developments in the country as a whole.



Two clear signs of this were the murder of opposition politician Altynbek Sarsenbayuly in February last year and the current prosecution of the president’s son-in-law Rahat Aliev. Both incidents suggested not only that there was a crisis in the elite, but also that the authorities dealt poorly with such crises.



This turbulence may have prompted Nazarbaev to seek to regain control and restore the balance of forces within the regime.



The removal of limitations on the number of times Nazarbaev can be president will take the pressure off him as the 2012 election approaches. Although he still has the option of not standing, the possibility that he might should defuse some of the infighting in the elite over the succession issue.



At the same time as bolstering his own powers, President Nazarbaev has tried to show the world that these constitutional reforms represent progress on political reforms and that the system is moving ever closer to international democratic standards. That is of particular importance as Kazakstan is bidding to chair the Organisation for Security and Cooperation in Europe in 2009.



Some of the changes have certainly met with approval from the international community as well as the domestic constituency. One big shift is that the Majilis will be expanded from 77 to 107 seats, and all will be electable by proportional representation using the party list system, except the nine that are coopted by the Assembly of Peoples of Kazakstan.



Introducing proportional representation has some clear advantages. It will mean increased opportunities for political parties to take part in drafting legislation, and more chance that those parties that currently have no seats in the Majilis might be represented in future. Some parties may also try to adopt more distinct identities and start building up grassroots support.



However, the constitutional amendments fail to introduce mechanisms to ensure free and fair elections. Nor do they incorporate a proposal made by a government agency to lower the threshold for winning seats in parliament from seven to five per cent of the vote. Both omissions may make it harder for parties to win Majilis seats.



The use of a party-list system for almost all seats will prevent people from standing as independents.



The constitutional amendments largely failed to incorporate better protections for people’s civil and political rights and liberties, especially to defend them against unlawful actions committed by the state.



One exception is a provision whose wording de facto abolishes the death penalty. Capital punishment will now only be applied in convictions for particularly brutal crimes during war time and terrorist attacks that result in fatalities. The downside is that this could foster a sense of impunity among criminals and result in an increase in murder and other serious crimes.



Another potential area of ambiguity is the introduction of rules requiring the approval of a court before a formal arrest can be made, and allowing the accused to appeal against the decision. On the one hand, the law-enforcement agencies now have a legal framework within which to operate, but on the other, the high level of corruption in the judicial system could lead to abuses where arrests are sanctioned in pursuit of personal vendettas or as part of a conspiracy between judges and police.



Overall, the constitutional reform has both pros and cons. The fact that changes have been made for the first time since 1998 – overcoming initial opposition and then procrastination on the part of the authorities – can be seen as a step forward in itself.



However, the changes were simply passed by parliament rather than by asking the nation by means of a referendum. Nor was there any attempt to engage the public in a debated on the proposed amendments. As a result, the people of Kazakstan – from whom state power nominally emanates – were sidelined once again.



All in all, this latest reform does not even approximate to a genuine exercise in democracy-building for Kazakstan.



Andrei Chebotarev is a political scientist and director of the Alternativa think-tank.