Institute of Modern Russia

IMR’s note: The protests that began on January 2 in the Zhanaozen oil-mining region due to a sudden increase in gas prices quickly spread all over Kazakhstan. Just as quickly, the protesters’ demands became political, calling for the government to resign and Nursultan Nazarbaev to leave his position of power and be stripped of immunity. Even though these demands have been met, and the current president Kasym-Zhomart Tokaev even claimed that he was ready to conduct political reforms, by January 5 the situation in Kazakhstan was of control: mass protests turned into mass riots marked by clashes with police, shooting, seizure of administrative buildings, arson, and looting. According even to the official data, dozens of people have died.

The rapid escalation forced the Kazakhstan president to request military help through the Collective Security Treaty Organization—the first time in its history. While political analysts point out that the Kazakhstan protests were driven by various factors—corruption, social stratification, declining living standards—the central motive was the accumulated public discontent with the country’s authoritarian system led by the perennial “Leader of the Nation” Nazarbaev. So far, the main result of the protests seems to be the collapse of the power transit launched by Nazarbaev in 2019, which should serve as a warning signal to the Kremlin.

And things were going so well! The screws were being tightened so consistently. Kazakhstan was moving through its economic reforms so confidently without paying attention to democratic transformation. Nursultan Nazarbaev, who had served as head of Kazakhstan since 1989, followed a policy that saw economic growth as preceding political liberalization. From the very beginning, Kazakhstan’s administration actively cultivated a market economy and made the country quite attractive for foreign investments. Together with Kyrgyzstan, Kazakhstan was viewed as the quickest and most effective reformer of the Central Asian region, although these two countries “were polar opposites in many ways at the initial stage of the transformation”. [1] Kazakhstan’s assets included its much richer natural resources and more diversified economic structure compared to Kyrgyzstan. “Successful stabilization, accompanied by a gradual growth of domestic savings, attracted direct foreign investments to Kazakhstan, which facilitated the rebuilding of the national economy and brought vital capital and technological knowledge to the country”. [2]

From the point of view of constitutional development, things were going even better. Like all former Soviet republics, except for the Baltic countries, early on, Kazakhstan followed a constitutional model based on strong presidential power. The 1993 Constitution established the presidential constitutional system and provided for the principle of separation of powers and direct application of the Constitution. The President served as the head of state and of the united system of executive power, and also controlled the activities of the Cabinet of Ministers, which was accountable to the President (article 85). Individual members of the Cabinet of Ministers were accountable to the Supreme Soviet on the issues of enforcing the laws of the Republic of Kazakhstan (article 88). This Constitution did not last long: on December 10, 1993, the law “On temporary delegation of additional powers to the President of the Republic of Kazakhstan and heads of local administrations” was adopted. Three days later the Supreme Soviet was dissolved in breach of the Constitution. 

The new law destroyed the principle of separation of powers and granted virtually limitless power to the President. Before the newly elected Supreme Soviet sat for the first time, the President had received the right to issue decrees that have the power of the law (article 1 of the 1993 law “On temporary delegation”), on the basis of and in execution of the Constitution. The President was also authorized to exercise certain constitutional powers of the Supreme Soviet, namely to appoint members of the Supreme Court and the Supreme Arbitrazh Court of the Republic of Kazakhstan, to appoint and dismiss the Prosecutor General, and to dismiss the Chief Justices and Justices of the Constitutional Court, the Supreme Court, and the Supreme Arbitrazh Court. [3] The new law empowered the President to exercise individually such powers of the Supreme Soviet as to decide on issues of war and peace, and ratify and renounce international treaties. The 1993 law on delegation of additional powers stands as a landmark statute symbolizing the escalation of authoritarianism in Kazakhstan.

The new Constitution adopted in 1995 established a constitutional system that provided the perfect backdrop for legitimizing the authoritarian regime and further strengthening Nazarbayev’s personal rule. It gave the President control over the legislature, the executive branch, and the judiciary, as well as over regional and local governments. The 1995 Constitution makes it perfectly clear that the President of Kazakhstan and the First President of Kazakhstan have different statuses. For example, according to article 42 (5), “the same person shall not be elected the President of the Republic for more than two consequent terms”; however, this limitation does not extend to the First President of the Republic of Kazakhstan—Nursultan Nazarbaev.

The 2000 constitutional law “On the First President of the Republic of Kazakhstan—the Leader of the Nation” determined the political and legal status of the First President of the Republic of Kazakhstan as the founder of the new independent state of Kazakhstan, the Leader of the Nation, who ensured its integrity and protected the Constitution and human and civil rights and freedoms. The 2000 constitutional law confirmed that the limitation established in article 42 (5) of the Constitution does not apply to the Leader of the Nation, and established that hampering of the lawful activities of the First President of the Republic of Kazakhstan, public insult or other encroachment on the honor and dignity of the First President of the Republic of Kazakhstan–the Leader of the Nation, as well as desecration of an image of the First President of the Republic of Kazakhstan–the Leader of the Nation shall be punishable by law” (article 1 of the 2000 constitutional law). Kazakhstan’s 1997 Criminal Code established criminal responsibility for the aforementioned offenses (article 317.1) and criminalized violations against the immunity guarantees for the First President of the Republic of Kazakhstan–the Leader of the Nation (article 317.2). The 1997 Criminal Code offers further confirmation of the notion that the First President of the Republic of Kazakhstan–the Leader of the Nation and the President of the Republic of Kazakhstan have different statuses: an attempt on the life of the former and the latter are dealt with in two separate articles (articles 166.1 and 167, respectively). Interestingly, these articles were included in Chapter V of the Code: “Crimes against the constitutional system and the security of the state.” Similar offenses were outlined in the 2014 Criminal Code. 

In 2010, Nazarbaev received the official title of Elbasy (“head of the people”)—having practically attained sacrosanct status. In March 2019, having spent 30 years in the presidential office, Nazarbaev retired, handing over the reins to his aide Kasym-Zhomart Tokaev, who continued the strategic course of the “Leader of the Nation.” Nazarbaev himself became the head of the Security Council, a position for life, while retaining all the privileges of the head of the state. Until recently, he had also led the country’s largest, pro-presidential party “Nur Otan” (“light of the homeland”) from the moment of its foundation in 1999; he transferred those powers to Tokaev only in November 2021. Nazarbaev was also a life-long member of the Kazakhstan Constitutional Council. In accordance with the Constitutional law “On the Constitutional Council of the Republic of Kazakhstan” of December 29, 1995, Nazarbaev was granted a unique privilege as a member of the Council. Article 36, part 2, stated that “in the interests of the defense of the rights and freedoms of the person and the citizen, the provision of national security, and the state sovereignty and integrity, the decision of the Constitutional Council is subject to review upon the initiative of the First President of the Republic of Kazakhstan—Elbasy.” That way, Nazarbaev could nullify practically any decision of the national body of constitutional justice. The current president (not Elbasy) may fully or partially protest the decision of the Constitutional Council, but his objections may be overruled by a two-thirds vote of the Constitutional Council, which consists of seven members, one of whom is that very Elbasy. In other words, Nazarbaev still has the power to make the final decision. 

It may have seemed as if the long-standing leader of Kazakhstan had done everything to keep his power and secure life-long immunity. However, the events of early January showed that these measures were not enough. The constitutional and legal history of Kazakhstan offers a good lesson to its autocratic neighbors, giving yet another demonstration that there is a limit to the strengthening of the power vertical. As it happens, this limit can manifest itself quite unexpectedly.

References:

[1] Emine Gürgen, et al. “Economic reforms in Kazakhstan, Kyrgyz Republic, Tajikistan, Turkmenistan and Uzbekistan.” International Monetary Fund papers, 1999. URL: http://www.imf.org/external/pubs/nft/op/183/

[2] Ibid.

[3] Parts 12-15, Article 64 of the Constitution of Kazakhstan.

Text translation: Elizaveta Agarkova.