Publication: Prism Volume: 1 Issue: 14

Proposed Kazakh constitution will solve some problems but exacerbate others

by David Nissman

On August 30, Kazakhstan will hold a referendum on a new draftconstitution, although the present one is only two and a halfyears old. While the draft constitution was published in earlyJuly, a poll taken by Kazakhstanskaya Pravda in the middleof the month suggested that only half the country’ populationhad even seen it, much less read it. Of those who had actuallyread it, slightly over 14 percent said they thought the draftcould be accepted without change or amendment, 67 percent thoughtit needed some refinement, and the rest were undecided. The areain which opinions were most divided was the language issue, namelythe status of Russian. 53 percent preferred that Russian be keptin the place assigned to it in the old (present) Constitution,while 47 percent "believe that Russian, by virtue of historicallyevolved circumstances, is entitled to lay claim to state statuson a par with Kazakh." Whether these numbers have changedin the two weeks since the poll was taken is unknown. One thingis clear: the debate, pro and con the new Constitution, has generateda great deal of newsprint, both in Kazakhstan and in Russia.

Why Does Nazarbayev Want a New Constitution?

Nursultan Nazarbayev, Kazakhstan’s president, is the architectof the draft constitution, and is its most obvious beneficiary.According to the terms of the draft, presidential power will bevastly increased and the Parliament’s power will be greatly reduced.Nazarbayev dissolved the parliament in March and it will reconveneonly after new elections are held at some yet unannounced futuretime. (Both Nazarbayev’s supporters and critics agree that theold constitution was inadequate for Kazakhstan’s present socioeconomicsituation.) By dissolving parliament and imposing direct presidentialrule in March, Nazarbayev deprived potential presidential challengersof their forum, and also was able to dismiss the mounting oppositionto privatization and economic reform. There was very little publicreaction to the President’s expanded powers in Kazakhstan; inthe United States there was a mixed reaction: Martha Brill Olcottpoints out in a Caspian Crossroads that the U.S., throughSecretary of Defense William Perry, "voiced American objectionsto Nazarbayev (thus contradicting the approval which the US Ambassadorhad earlier expressed for Parliament’s annulment)."

Three weeks ago, Nazarbayev defined the basic issues in the newConstitution to be (1) the nature of Kazakhstan’s statehood; (2)the private ownership of land; (3) creating a second officiallanguage (Russian); and (4) opening the door to dual citizenship(Russian, Kazakhstani). Now however, the situation has changed:as noted in the August 2 Monitor, there is still quitea difference between a ‘state’ language (Kazakh) and an ‘official’language. As far as dual citizenship is concerned, this is anissue constantly raised by the substantial Russian and russifiedlobby in Kazakhstan: nevertheless, it requires that Russia and Kazakhstanreach agreement on a number of related issues, which is not happeningat present; thus the question of dual citizenship has been deferredtill further notice. The issue has not been laid to rest, butit is not an immediate one.

A View From The Constitutional Council

In May Nazarbayev created an expert consultaive council to conducta comprehensive analysis of the draft constitution. One of itsmembers, Konstantin Kolpakov told Vesti Kazakhstana thatthe new draft solves three fundamental problems: First, it legitimizesKazakhstan in the international community. Second, it legallyundergirds the independence of the state. And third, it introducesinto Kazakhstan’s sociopolitical and legal life a number of practicalinstitutions "which we had not known theretofore or, if wehad, we had known them in a form warped by socialism."

He adds that this first constitution was wriiten partially inthe Soviet period, and the final version appeared only after independence.Hence, it has a "declarative" nature, but little practicalapplicability under present conditions. For example, it containsmuch about citizens’ rights, but very little about human rights.The existing Supreme Soviet was retained, and there is no mentionof a bicameral parliament, although the idea was in the air atthe time. The organization of judicial power remained unresolved.When the issue of constitutional reform came up — soon afterindependence — there were some attempts to revise the constitution.But it quickly became apparent that more than 80% of the documentwould need to be changed.

Reforms and Changes in the Draft Constitution

The draft constitution is briefer than the present one, althoughit has eight sections instead of the four. The most importantof the new sections is "Local State Administration and LocalGovernment, which clarifies the role of local representative authorities;i.e., the councils that approve plans, economic and social programs,regional-territorial development, and the budget.

Until now, these councils lacked any clearcut authority. The judicialsystem is reformed, especially in the manner in which judges arenow appointed, instead of elected, at sessions of representativeorgans. Appointments are for life, so the judge need not feela decision will affect his future.

Under the draft Constitution, the country is a "presidentialrepublic," and great powers are vested in the person of thepresident. In a recent interview with Rossiyskaya Gazetain which he defended the draft, Nazarbayev pointed out that "the presidentis responsible for the country’s territorial integrity and forthe people’s civil rights." He also mentioned that acts signedby the president must be ratified by the prime minister, the chairmanof each of the chambers of parliament, or other senior officialswho are assigned legal responsibility for the constitutionalityand legality of these acts.

Nazarbayev also touched on the language issue. He said that "Ibelieve the Russian language should be given official languagestatus…" but "removing the Kazakh language’s statusas the state language would be humiliating for the Kazakhs. Wewill not be able to do that…" At present Russian is the"language of interethnic relations." Under the draftconstitution, it will be upgraded to "official" butnot "state" status. This can be considered either aconcession to the 47% of the country that feel Russian shouldbe upgraded, or merely a recognition of the status quo. Eitherway, a wave of protest will no doubt come forth from the Kazakhnationalists that Russian is given too much privilege, and fromthe Russian nationalists who feel that it is not going far enough.

The Critics of the New Constitution

One of the critics of the draft is Tatyana Kvyatkovskaya, deputychairperson of the State Commission for Anti-Monopoly and PricePolicy. She has pointed out that demonopolization is nottaking place in Kazakhstan, and a return to toalitarianism isquite possible despite the new Constitution. As for the judicialsystem reforms, she notes that the word "independence"has disappeared from the sections dealing with the judiciary.She also considers the new parliament that will emerge to be purely"decorative" because it will contain people who havebeen carefully handpicked by local executive authorities. Sheconcludes by saying "The fact that the constitution has beendesigned for one specific person [Nazarbayev] is another of itsdefects…It is not for nothing that the president called theconstitution transitional. I believe its true life span will betwo years."

Other critics maintain that ethnic discrimination is still notaddressed in the draft: Yury Bunakov, head of the Russian communityin Kazakhstan, claimed that Kazakhs are the only "privileged nationality" under the new constitution,so demands from the Russian community for full equality will notbe met. Another Russian political leader has said the same: V.Khasin, an official of the LAD social movement has asserted thatthere is no law on discrimination and thus no service that monitorsits fulfillment.

Kazakh trade unions have protested Articles 5 and 23 of the newconstitution because they prohibit civil servants from estabilshingtrade union associations. This protest was backed by the ILO representativein Kazakhstan, who said that "such a ban could not be toleratedin a civilized country."

But the most striking fact about objections to it is that veryfew of them mention the document’s most obvious feature: the accumulationof power by the president to the point that the country itselfwill be transformed.
David Nissman is an Adjunct Professor at Georgetown University