CIC Report on the Kazakhstan Presidential Election - 10 November 2005

CIC's "Inquiry into the Preparations For a Free and Fair Presidential Election in the Republic of Kazakhstan, December 4th 2005" was published on 10th November 2005, following a fact-finding visit to Kazakhstan between 6 - 11th October.

[Please note that this version does not contain footnotes. For the PDF version which does contain footnotes, please go to the link on the Home Page. The Russian text may also be found via a link there.]

Report Authors:

Mr Gerald Frost
Professor Kenneth Minogue
Professor Dennis O’Keeffe
Mr David Ruffley, MP



Executive Summary

• The task of observing elections is more complex and difficult than is recognised, and no organisation involved in this process has a monopoly on truth. Broadly speaking, there are two possible approaches. The first, which we may call "Abstract Model Observation", applies a universal standard without regard to the historical context. The second, "Developmental Observation", makes an assessment which allows for historical factors, in order to permit a judgement about whether the conduct of an election represents a positive step forward in terms of real political development.

• In the production of this report following the Caspian Information Centre's fact-finding visit to Kazakhstan on 6th – 11th October (see p. 26), we have followed the second of these two approaches, although we recognise that both have their weaknesses.

• The purpose of our visit was to inquire about the preparations that have been made to hold the Presidential Election on December 4th 2005. Our starting point is to note that democratic reform in Kazakhstan has been less rapid than economic change. Many political changes which followed Independence in 1991 have been of a pragmatic nature. The choice on offer from the two leading candidates in the Presidential election on December 4th 2005 is between the policy of the incumbent President, Nursultan Nazarbayev, who pledges to match economic decentralisation with a programme of gradual political reform, and that of his principle challenger, Zarmakhan Tuyakbai, leader of the "For Just Kazakhstan" bloc of parties, who promises to replace what he describes as a corrupt and authoritarian regime with an administration committed to democratic change, openness and the wider dispersal of wealth.

• We accept the judgement of Professor Christopher Greenwood, QC, that if applied faithfully and properly, the Elections Law of 2004 is capable of producing elections which comply with the Copenhagen Principles of the Organisation for Security and Cooperation, 1990. A number of subsequent changes to the Law represent significant further improvements. In the report that follows, we have sought to address the question of whether the law will be faithfully and properly applied in the Presidential Election which will take place on December 4th 2005.

• The contents and tone of the President's Decree of September 9th 2005 regarding the electoral rights of citizens (Appendix I) and the “Appeal to All Candidates” by the Central Election Commission (CEC) of October 11th (Appendix II) suggest that the authorities are serious about ensuring that the election complies fully and faithfully with the Elections Law.

• We do not accept that an amendment to the Elections Law which prevents public demonstrations during the strictly limited period between the end of campaigning and the announcement of the result necessarily represents a denial of human rights or a step backwards in the development of Kazakhstan's democratic institutions, as the OSCE/ODIHR asserts in its Needs Assessment Mission (NAM) Report of September 28th 2005. Given the recent upheavals in former CIS states, the reasons for the ban are not difficult to discern.

• We do, however, have questions about the prominence given by OSCE/ODIHR to its criticism of this amendment in its NAM Report, since it could encourage unlawful actions which could set back Kazakhstan's political development. In countries in which democratic institutions are new and possibly fragile, we believe that observers should take great care in ensuring that their own activities do not influence the conduct of elections.

• The practical arrangements being made by the Central Election Commission of Kazakhstan prior to December 4th are encouraging. They display a greater degree of professionalism and openness than was the case during the elections to the Majilis on 19th September 2004, which in turn represented an improvement on earlier elections.

• The large number of investigations into alleged violations of the Elections Law following the September 19th 2004 elections (857) and the 83 prosecutions that followed (see p. 23) suggest that the authorities are, again, making serious attempts to raise standards.



• We understand the suspicions of Opposition candidates in relation to the limited use of electronic voting. However, we believe that these concerns may be allayed by the presence at the election of technically competent independent observers from the OSCE and by the CEC fully advertising the fact that voters are able to cast their votes in the traditional way, if they choose to do so.

• Assessments about how far Kazakhstan has progressed in achieving its stated aim of transforming itself from a totalitarian republic of the former Soviet Union into a modern market-based democracy are bound to involve many complex judgements on a wide range of issues. What is clearly apparent is that remarkable and rapid changes have occurred in the economic sphere as the result of the successful exploitation of the country's energy resources.

• We do not accept the judgement of some opposition candidates and journalists that only a relatively few people have benefited from the economic growth that has followed. This is contradicted not only by the obvious vibrancy of Kazakhstan's major cities but also by data from the IMF, the World Bank and other respected international organisations which shows that the number living below the poverty line has fallen considerably and the wider distribution of wealth has been more rapid than had previously been anticipated. For this reason, and others, we do not believe – as some have alleged - that Kazakhstan is on the verge of a 'coloured revolution.'

• Opposition parties freely express their criticism of the government but have made little progress in establishing distinctive profiles in ideological or policy terms. It is striking that many of the government's fiercest critics, including prominent candidates in this election, are disaffected former members of the government.

• The media is quite obviously freer now than prior to independence. The fact that 80 per cent of the media is privately owned may exaggerate the extent of media freedoms, but the print media clearly includes implacable opponents of the President and his government. During our visit we met journalists who complained that they were subject to intimidation and harassment; these charges are denied by ministers, some of whom have claimed that journalists with links to opposition parties regularly fabricate or exaggerate differences with the authorities in order to discredit the government.

• What independent evidence there is does not seem to support claims that, having been relaxed in the wake of Independence, media freedoms are now being eroded; the facts would seem to suggest a steady if gradual growth of media freedoms. However, the issue of media ownership remains a vexed issue in Kazakhstan as in many other countries, including those with much longer traditions of democratic rule.

• The absence of a television company sympathetic to the Kazakhstan opposition and the fact the President's daughter Dariga Nazarbayeva has substantial media holdings, including controlling interests in more than one television company, suggests that there may be a case for legislation to deal with this situation – as has been suggested by a recent delegation of European parliamentarians.

• While the Government and the Central Election Commission may well live up to their promise to ensure equal air time and column inches for all candidates during the period of the election campaign (this legal requirement was respected during the September 19th 2004 parliamentary elections), steps to ensure balanced television coverage at other times also would be extremely welcome.

• Uniquely for a Central Asian state, Kazakhstan has made substantial progress toward building democracy while maintaining stability and promoting ethnic and religious tolerance, and in some areas such progress has been remarkable. We would do well to remember, however, that key players in the political process are the products of a wholly different tradition and are necessarily inexperienced in the ways of democracy, while the institutions they have created are far from fully developed.

• We believe that the forthcoming Presidential election provides the opportunity for all candidates, political parties and election officials to strengthen the country's democratic base and develop a brand of popular democracy that reflects Kazakhstan's unique history, culture and political tradition. The legal and administrative framework that has been put in place is, in our view, adequate for this purpose and should enable them to rise to this challenge.



Introduction

Following the closure of candidate registrations on October 24th, a total of five candidates are standing in the Presidential election on December 4th 2005.

They are:

1. Yerasyl Abylkasymov, leader of the Communist People's party and a parliamentary deputy.

2. Alikhan Baimenov, leader of the Ak Zhol (Bright Path) party.

3. Nursultan Nazarbayev, incumbent President of Kazakhstan.

4. Zharmakhan Tuyakbai, candidate of the Movement "For a Just Kazakhstan" Coalition.

5. Mels Yeleusizov Tabigat, campaigner for Nature Environmental Union.


For the duration of this election, the country's political and economic progress will be under unprecedented international scrutiny. The election will be witnessed by a large presence of international observers, including representatives of the OSCE, Council of Europe, the EU, CIS and other international organisations who will have the opportunity to comment on the fairness of the election. The international media is also likely to be represented in large numbers, and this is to be welcomed.


The quality of outside scrutiny is important because the findings of observers are very likely to have an impact on Kazakhstan's future political development.

Interest in Kazakhstan – a huge but far-away country about which the West certainly knows too little - is growing because of its increasing economic, political and strategic importance. In the last two months alone visitors to Kazakhstan have included former US President Bill Clinton, US Secretary of State Condoleezza Rice, former Secretary of State Dr Henry Kissinger, the EU's Special Representative Jan Kubiš, and the US Defence Secretary, Donald Rumsfeld. President Putin is a regular visitor, and President Chirac of France and Prime Minister Berlusconi of Italy are expected to pay their first visits this year or next.

This degree of attention is partly a reflection of the very high levels of Western investment that have flowed into the country's energy sector over the last decade, and partly a growing awareness of the vastly ambitious political project which Kazakhstan, a predominantly Muslim country, has embarked upon.

If there is a tentative quality to some of our judgements when assessing the progress of Kazakhstan's political elites in seeking to create a modern state based on the rule of law, the market economy and representative government, it is because we recognise the existence of some counter-trends and ambiguities. For that reason, we understand why the author of a recent study of Kazakhstan's political elite should have placed such stress on the complexity of the present pattern of political change in that country. She concludes: “They [the legacies of history] have resulted in unclear outcomes, partly because the state is still in flux and because balance has often encouraged pragmatism over ideology. The regime's short history suggests a polity open to innovation and change, and where decisions by a small number of individuals can have important consequences for political development. For the moment, Kazakhstan remains a complex political system comprising numerous cross-cutting forces.”

The decisions of a relatively small number of individuals regarding the arrangements and conduct of the election will be certainly crucially important in determining the next stage of Kazakhstan's political development.

Those individuals include, most obviously, the President himself and his senior advisers, his rivals in the election, and those with responsibility for the conduct of the election. If their conduct is such that outsiders conclude that Kazakhstan has taken further steps to create a stable democratic society, this is likely to be good news not merely for the electors of Kazakhstan but also for a region whose future seems uncertain in many ways. It is also likely to be good news for the international energy markets. A negative assessment might also have far-reaching implications.

The purpose of this report – written by small group of independent observers under the auspices of the Caspian Information Centre, an independent, London-based think-tank specialising in observing and disseminating knowledge about the Caspian region - is to assess the fairness of the arrangements for the election. More specifically, we shall focus on the following questions:


• Has the political reform process in Kazakhstan reached the stage where democratic elections can be held without the instability which has resulted elsewhere in the CIS?

• Is the election likely to be conducted according to the rules as defined in Kazakhstan's Elections Law and does that law provide an appropriate framework for free and fair elections?

• Will Kazakhstan's Central Electoral Commission, which has responsibility for running the election, cooperate fully with the OSCE and other international observers?

• Are there signs that a vigorous but responsible opposition is emerging as part of a process of political pluralism?

• How far have constraints on the media been relaxed to allow criticism of the government and the expression of opposing views?

• Are there signs that a vibrant civil society and a self-confident middle class – both crucial to the development of political pluralism – are emerging?


This report was compiled following a visit to Kazakhstan by the group from 6th to 11th October. We are grateful to H.E. Erlan Idrissov, the Ambassador of Kazakhstan to the United Kingdom for arranging meetings with members of the Kazakhstan Government and to Mr James Sharp, the British Ambassador to Kazakhstan, for having arranged a series of meetings with representatives of the country's opposition parties, non-governmental organisations and journalists.



The Difficulties of Observing Democracy

The independent character of political observers is important, but they also require a high level of sophistication about how political conditions may properly be judged. Our task was to investigate how far the Soviet Republic of Kazakhstan as it was before 1991 had changed into a free and democratic state.

This however is no easy task. Unlike the democracies of Europe and Northern America, the independent state of Kazakhstan was launched into a world with a pre-existing democratic vocabulary. Spokesmen for the Kazakhstan government often employ this without making plain that the Kazakhstan state is in transition, and a that a vocabulary that derives from a very different set of historical circumstances provides an imperfect descriptive tool.

The result is a gap between rhetoric and reality that is likely to lead sceptical observers to conclude that nothing very much is as it seems. For example, 'independent' newspapers may on inspection turn out not to be fully independent, even if they show more critical awareness than in Soviet days. (There is no doubting, however, the hostility to the President and ruling party of some sections of the media.)

This would be less of an issue if members of the government made it clear that Kazakhstan's democracy is an on-going process, not an established fact. It would also help matters if opposition politicians and journalists refrained from suggesting that nothing at all worthwhile has been achieved, and that the institutions of post-Independence Kazakhstan represent a huge and complex fraud designed to impress the gullible – the modern equivalent of a Potemkin village. In our judgement this is not the case.

The simplest observational technique is to test Kazakhstan's political realities against well recognised models of freedom and democracy, such as the "Copenhagen Model" adopted by the OSCE. Is the press free? What kinds of outside controls operate? Can opposition groups call public meetings and associate freely? Are the police impartial? Are the voters registered and what precautions are taken against multiple voting? Is the counting of the votes honest? And so on. These are important questions, and they are indispensable in the diagnostic element of our duties.

One problem is that they may be mapping on to the complex cultural realities of Kazakhstan a set of abstractions derived from the very different circumstances of different cultures. And indeed, if such tests are pressed too far, few elections would pass muster. Was the Kennedy victory over Nixon in 1960 the result of malpractice in some wards in Chicago? Was postal voting in Britain in the 2005 election able to give an honest result in every constitutency? And so on. Moreover, in practice it may be difficult to apply "Abstract Model Observation" consistently – in the case of Afghanistan and Iraq, for example, Western representatives quite obviously took "circumstances" into account when declaring the recent elections in those countries a success, even if in less dangerous situations they are inclined to make no such allowance. Nevertheless, Abstract Model Observation is a good first approximation and should not be ignored.

A more sophisticated way of observing, though a more difficult one, is to consider the way in which the polity being observed is moving. This technique of "Developmental Observation" assumes that what is important is the way things are moving rather than how they appear in a snapshot. Freedom and democracy are complex and difficult practices, and it is absurd to expect them to be acquired overnight. On the other hand, this more sophisticated technique means that we now need to know - to put it crudely - not only what is happening now but also what was happening in the past, and both these dimensions are slippery to grasp. And from these already uncertain dimensions we are also seeking to predict how the society will move in the near future. Such, however, is the approach we followed.

These are, no doubt, elementary considerations, but it is important to be clear about them. Many reports of international observers are not. It is important to be clear that the outside observer is always to be found interpreting signs from which they draw conclusions about what is going on. All signs are ambiguous, especially in politics, where there are always benefits from deceiving others. No understanding of a complex human situation can reach ground zero, at which we may say confidently that we know the truth about the matter.

The situation is further complicated by the fact that outside observers are by no means a set of philosopher kings. What they report is responsive not only to the truth of the matter, as they see it, but also to their conception of how their conclusions will be taken, to the political and funding realities of the institution that sustains them, to their attitudes to the country they are judging, and even to variant conceptions of freedom and democracy they may hold.

For example, freedom is often described in terms of human rights, but this merely transfers an already complex problem into a new vocabulary. Again, the question of democracy is often measured against the level of economic equality in the country being examined. Another variation is that whereas some observers consider "gender equality" to be a significant part of the package included in "democracy", others, without being indifferent to the part played by women in society, would regard it as an issue distinct from that of democracy.

It will be clear from what follows that the task of an International Observer is complicated, and that the reports of any such body ought to be received with an appropriate level of scepticism. And this is just as true for our own report as for that of other bodies who have applied any kind of measuring rod to countries such as Kazakhstan.



The Political and Economic Background

Kazakhstan is a presidential republic. According to the Constitution, adopted by referendum on 30th August 1995, the President is elected by popular vote for a seven year term, for a maximum of two consecutive terms. Having been elected President by the Supreme Soviet of Kazakhstan in 1991, Nursultan Nazarbayev, the son of a shepherd, was confirmed as his country's leader in an uncontested election following national independence later that year. He received 79 per cent of the popular vote in the election held in January 1999, compared to 11.7 per cent of the popular vote achieved by his closest rival, the Communist leader Abdil'din Serikbolsyn. Eighty-seven per cent of the electorate took part in the election which was widely criticised by external observers.

Compared to those generally found in Europe and North America, the Kazakhstan political system is centralised. It was originally based on the French model. A powerful presidency has the responsibility for the broad outlines of domestic and foreign policy, for representing the country at home and abroad, and for appointing Prime Ministers and cabinets (subject to the approval of Parliament). However, it is evident that a significant degree of decentralisation has occurred as a result of measures to privatise the economy, and the course upon which the President has committed himself offers his country the prospect of greater political pluralism. In his annual address to the people on February 18th 2005, President Nazarbayev promised a "National Programme of Political Reforms" which he said would strengthen the powers of Parliament and encourage the development of local democracy while increasing the independence of the judiciary. If carried out, these reforms would significantly decentralise decision-making.

Kazakhstan's most recent elections - to the Majilis, the lower House of the Parliament – held on September 19th 2004, were attended by 1,029 foreign observers. The Office for Democratic Institutions and Human Rights (ODIHR) of the Organisation for Security and Co-operation in Europe (OSCE), which together with the CIS fielded the largest numbers of observers, reported that advances had been made in relation to previous elections but listed many irregularities and said that standards fell below those in the West. It did acknowledge, however, that the elections – in which 57 per cent of voters participated - were genuinely competitive.
Other observers were more positive. One team, led by former Australian envoy to Kazakhstan, Douglas Townsend, criticised the OSCE for producing "a one-sided and hence seriously distorted report"; it also listed 10 significant improvements on earlier elections in Kazakhstan. John Bowis MEP, former Vice-President of the Kazakhstan Delegation in the European Parliament, and his colleague Struan Stevenson MEP, also found much that they considered praiseworthy. In their report on the conduct of the elections, they stated: “In almost every aspect this appeared to be a normal, fair and democratic election, with easily recognisable processes familiar to people accustomed to elections in the EU.”
The far more favourable tone of these conclusions may well reflect the fact that the authors took account of Kazakhstan's recent history and did not seek to measure its performance against a universal, abstract democratic standard.

However, it is clear that it is the judgement of the OSCE to which members of the Kazakhstan government attach the greatest importance. This is due not only to the fact that it is also the judgement to which the international media attach the most importance, but because Kazakhstan hopes to claim the chairmanship-in-office of the OSCE in 2009 - a goal which it has pursued with dogged persistence and one which would acknowledge its role as regional pace-setter. Kazakhstan's candidacy, which will be decided by a vote in July 2006, has received support from many countries, including the OSCE envoys of the European countries and Canada . Former US President Bill Clinton has also pledged his support for this goal during his visit to Kazakhstan in September 2005 .

It should be noted that none of the observation teams that monitored the 2004 parliamentary election, including from OSCE/ODIHR, concluded that the outcome of the election would have been significantly different in the absence of irregularities – i.e. resulting in an outcome other than victory for the President's Otan (Fatherland) Party.

When examining the criticisms made of the September 2004 parliamentary elections, three stand out as serious concerns: the behaviour of some akim (local governors) in pressurising voters to support President Nazarbayev's Otan (Fatherland) Party; inaccurate or incomplete voter registers; and a lack of transparency on the part of the Central Election Commission. Improvements in these areas will be required during the Presidential Election if Kazakhstan wishes to further strengthen its democratic credentials. Many other irregularities appear to have been the result of a lack of familiarity with the procedure, inadequate training of election staff or simple human error.

Economic factors count in virtually all elections and there is no reason to think that Kazakhstan will prove to be different. It was not our task to form an independent assessment of Kazakhstan economic performance, but it is clear from the reports of the IMF, World Bank, the UN and agencies such as Fitch and Moody's that Kazakhstan is widely regarded as an economic success story – the only such success story in Central Asia.

Economic growth over the last five years has averaged 10 per cent and is projected to be 8.8 per cent during the present year. The country has attracted far higher levels of foreign direct investment in per capita terms than any other CIS country, including Russia . Real incomes have increased five-fold in the last ten years and unemployment, recently falling, is at lower levels than in neighbouring states.

The key to Kazakhstan's success has been its huge oil and gas reserves, but the outcome would not have been as favourable without prudent macro-economic policies, and the creation of sound economic institutions, including a National Fund based on the Norwegian model that has protected the economy from sudden changes in the oil price. Kazakhstan also takes pride in having repaid its IMF debts ahead of schedule, in establishing a banking system which is seen to be near Western standards of efficiency, and in developing a fully-funded pension scheme along the lines of that in Chile. Once a poor country, Kazakhstan has joined middle-ranking nations in terms of per capita incomes, and it has done this in a relatively short period of time . Long term success will depend on whether present policies to diversify the economy are effective.

When an incumbent president can point to a record of sustained economic progress, political challengers obviously face an uphill task. In these circumstances, rivals are inclined to quarrel with the economic data or suggest that the success will prove short-lived. This is frequently the path taken by opposition spokesmen and candidates in Kazakhstan, but the visible signs of growing prosperity – well-stocked shops, the wider ownership of cars and other consumer goods, the large-scale construction work going ahead in all major cities - mean that many such claims are difficult to accept at face value.

With greater justice, some candidates point to the considerable gulf between rich and poor. While this gulf may have widened, it is also true, according to figures supplied by the United Nations, that those living below the poverty threshold has come down significantly . Furthermore, a recent report of the World Bank noted that the wider distribution of new wealth had been much more rapid than it had anticipated. It is not true, therefore, that oil wealth has merely benefited the very rich.

During the 2004 parliamentary campaign, perhaps because of the absence of economic "issues", opposition parties and candidates concentrated on questions relating to the conduct of the election itself, alleging that the electoral arrangements were heavily biased against the opposition parties, and that these lacked adequate access to the media, especially TV. Opposition candidates also expressed deep misgivings about the introduction of electronic voting. As a consequence, the main election issue was the election itself.

We hope that the same pattern will not reoccur during the Presidential election campaign, since this would discourage a more wide-ranging discussion about alternative policy directions.

Kazakhstan's growing prosperity has led to the emergence not only of a new class of entrepreneurs, but to the more gradual emergence of a middle class comprising professionals and managers – a phenomenon observed by the US Secretary of State Condoleezza Rice during her visit to Astana in October 2005. We believe this development is likely to have favourable long term implications for the growth and stability of Kazakhstan's democratic institutions.

In the creation and development of non-governmental organisations it is also possible to detect the first growth of civil society. Kazakhstan now possesses nearly 5,000 such bodies, although it is evident that some are dependent on state patronage and are not fully independent. Opposition politicians and journalists have criticised the recent attempt by the Government to amend the law governing the conduct of NGOs. We are not competent to judge whether the proposed changes were a good thing or a bad thing. We simply note that the OSCE welcomed the decision by Kazakhstan's Constitutional Council to strike down the amendment , a ruling that suggests that some degree of institutional independence may be beginning to assert itself.

It is also clear that while a genuine political opposition has begun to emerge, political parties are not easily discriminated on the basis of class, ideology or interest as in the West. It is a striking fact that some of the fiercest and most comprehensive criticisms of the Kazakhstan government come from those who have left it only very recently. We were impressed by the comment of one observer of the Kazakhstan political scene who said that political change had produced not so much a multi-party system as a divided or fractured political elite. It is possible that in time the various 'fragments' will come to resemble Western political parties more closely, but we should not assume that political development will faithfully follow Western patterns or that it is necessarily the task of Western policymakers to ensure that it does.

Secretary of State Rice showed awareness of the risks inherent in trying to impose Western patterns of political behaviour on countries with very different historical backgrounds when she declared: “Our goal is not to teach our Central Asian Friends an American-style democracy. We fully understand that every country has its own way to the establishment of democratic values … Kazakhstan has an unprecedented opportunity to lead Central Asia to a democratic future and to lift US-Kazakhstan relations to a new level after the Presidential elections.”

As in virtually all elections in Central Asia, the issue of corruption is likely to figure prominently during the campaign with all candidates, including the President, promising to eliminate what is a obviously a deep-rooted problem, one quite obviously not susceptible to easy or rapid solution even if Transparency International's recent Corruption Perceptions Index offers some evidence that anti-corruption measures are achieving modest success.



The Legal Framework

The Majilis election of September 19th 2004 was the first to be conducted in Kazakhstan under a modern Elections Law adopted by the Kazakh Parliament in April 2004.

Since then a leading British international legal expert and one-time adviser to the British Government, Professor Christopher Greenwood, QC, has produced an Opinion in which he states that the law is capable, if faithfully and properly implemented, of producing elections that would comply with the Copenhagen Principles of the OSCE, 1990.

He also stated that most of the recommendations to improve the Elections Law made by OSCE/ODHIR following the 1999 elections, had now been implemented “and that progress made in these respects has been remarkable in a State which had no tradition of democratic elections before 1990.”

The OSCE/ODHIR Final Report on the 2004 parliamentary elections suggested a set of 24 further recommendations aimed at further improving the legal framework and the administration of elections. As the result of an ongoing dialogue between the OSCE and the Kazakhstan authorities, we understand that many of these have now been introduced. Important changes adopted by the Majilis in April 2005 include a revision to article 49 of the Election Law so as to require the Central Election Commission to investigate possible breaches of the Election Law within five days. Complaints about the decisions or actions of the Election Commissions themselves must be investigated within three days.

Other significant changes include measures to prevent fraudulent use of absentee voting certificates, rules to ensure transparency in Candidates' declarations of income and property, and accurate reporting of expenditure during election campaigns. According to the OSCE/ODIHR, the amendments amount to "considerable progress", but it also states that “the Election Law requires further improvement to fully meet OSCE commitments for democratic elections, especially with regard to remaining limitations on civil and political rights.”

What appears to most concern the OSCE is an amendment to Article 44.6 which governs political activity during the brief period between the end of the election campaign and the announcement of the result. The amendment reads: “… forms of expressing public, group and personal interests and protests that can have an impact on voters and election commissions are not allowed from the moment when the term for conducting the campaign is over, and until the official publication of the results of the elections.” The OSCE states: “This amendment violates both the right to freedom of association and the right to peaceful assembly. Both rights are fundamental and universally recognised and are contained in both the OSCE Copenhagen Document and the International Covenant of Civil and Political Rights.”

We question OSCE/ODIHR's conclusion concerning Article 44.6. Firstly, we understand that under the current legislation, campaigning must end one day ahead of polling day. The Central Election Commission has already committed itself, under Article 7 of its “Appeal to All Candidates” of October 11th (Appendix II), to “provide for timely (i.e. within 24 hours) data on election results as per all districts and regions …”. The suspension of freedom of assembly appears, therefore, to be for a strictly limited period - after the vote has already occurred.

Secondly, although the right to peaceful assembly is an important right, its suspension for a limited period should not necessarily mean that the democratic process is in jeopardy. We believe that OSCE/ODIHR is going rather too far when it suggests that what is proposed constitutes a violation of "fundamental and universally recognised" rights. It is a widely recognised responsibility of government to restrict protest where there is legitimate fear of resultant violence or inter-ethnic conflict; for example, in Northern Ireland, the official Parades Commission regulates the custom of Catholic and Protestant groups to assemble and conduct marches, and it has been known to ban marches if it senses potential for trouble.

It seems to us that there can be little doubt about the circumstances which led the Kazakhstan government to amend the Elections Law in this way. In recent months, numerous opposition politicians and journalists, in Kazakhstan and abroad, have suggested that the political upheavals in Georgia, the Ukraine and Kyrgyzstan – the so-called 'coloured revolutions' - are part of a pattern that is likely to sweep across the Caspian and the Caucasus to engulf Kazakhstan.

These claims have been widely reported in the American and European media, many of which tend to lump Central Asian and other former republics of the USSR together without recognising the very different political, economic and cultural conditions within them. In each of the 'coloured revolutions' the government was toppled following allegations of rigged elections and a wave of mass demonstrations. We do not feel competent to express a view about the wisdom of the government's ban, but we do not regard the reasons given for its introduction – to prevent pressure being applied to election commissions while the vote is being counted and, perhaps, to prevent the attention of the international media being distracted from the election itself - as being reprehensible.

Despite the government’s evident anxieties about organised street demonstrations and their effect upon the electoral authorities, nothing that we heard or saw during our visit suggested that Kazakhstan is on the brink of a 'coloured revolution.' Its recent economic growth, rising levels of prosperity and outward appearance of calm and stability would seem to make this unlikely; we were also impressed by the comments of one human rights activist who said that Kazakhstan's physical characteristics – not least its huge size and widely dispersed population - made such an outcome unlikely even if it were not for the annual 10 per cent increase in GDP recorded over the last five years. Moreover, opinion polls have consistently suggested a high level of popular support for the incumbent president.



The Media

The role of a free media is explicitly recognised in the Kazakhstan Constitution and ministers routinely make reference to its importance in developing modern democratic institutions.


The media sector has expanded rapidly since independence so that there are at least four or five times the number of titles and broadcasting stations than during Soviet days. In all, there are 2,200 registered media outlets in the Republic of Kazakhstan, of which eighty per cent are privately owned. Most newspapers and magazines are published in Kazakh or Russian but there are also Ukrainian, Polish, English, German, Korean, Uigur, Turkish and Dungan language publications and programmes. There is a strong and growing use of the internet for political purposes.

Several of the journalists that we talked to claimed that they and their colleagues had been subjected to intimidation or harassment and that the theft of large numbers of copies was used by the authorities to restrict the flow of critical comment. In a way, the claim of one opposition journalist that we met - "Things were better in the old days – at least you knew where you were", was more revealing than he may have realized. It is one of the hallmarks of a transitional state that you don't know quite where you are, whereas in a totalitarian state you know perfectly well what kind of response there will be to criticism of the authorities. Comments of that kind are not uncommon in former communist states and suggest a degree of nostalgia for the certainties of a command society.

In responding to criticism that the Government has engaged in harassment of the press, ministers have claimed that opposition journalists and politicians have deliberately provoked or even stage-managed conflict with the authorities in order to discredit them, and that they expect an increasing number of such incidents as the election approaches. In order to ensure a more measured official response to such "provocations", it has been indicated to us that the President's recent appointment for the first time of a civilian – a lawyer and former Minister of Justice - rather than a representative of the law enforcement hierarchy to head up the Ministry of the Interior, is significant. It will be for others to judge what improvements the new appointment will make.

In seeking to reconcile the claims of the government and those of opposition journalists it is difficult to determine where the truth lies. It is obviously not the case that the government has reintroduced Soviet-style controls, or that it has even tried to do this. There have clearly been some bruising encounters between journalists and publishers on the one hand and politicians and officials who find public criticism of their actions a relatively new and bracing experience on the other.

Our research showed that the following titles regularly contain criticism of the President and his government and plainly do not pull their punches: Soz ("Voice"), Svoboda Slova ("Freedom of Speech"), Epokha ("Epoch"), Pravda Kazakhstana ("Truth of Kazakhstan"), Apta.kz ("Week.kz"), Azat ("Liberation"), Zhuma Tayms ("Friday Times"), Respublika, Set'Kz and "Zhuma Tayms Data Nedeli".


In addition, the following websites contain critical material written from an opposition perspective: Navigator (http://www.navi.kz), Evrazia and KUB.

According to the chairman of the Central Election Commission, the total circulation of opposition newspapers is approximately one million copies daily – a significant achievement on the part of the opposition press in a country of 14.8 million. If the figures are correctly stated, they do not support the claim that the opposition is without a voice in the media or that is being stifled.

Two journalists we met insisted that while there had been a period in which the curbs on press freedom had been relaxed, conditions had recently worsened. We note, however, that the team of international observers led by Douglas Townsend and Frederick Starr who monitored the 2004 elections to the Majilis, remarked on the fact that for the first time there were no complaints of physical attack or intimidation of the media .

We also note that in its fourth "Worldwide Press Freedom Index" the international non-governmental organization Reporters Without Borders places Kazakhstan at number 119 this year compared to 131 in 2004 and 138 in 2003 . This would seem to suggest a steady if not spectacular improvement to press freedoms in Kazakhstan, not only in relative terms but also absolute terms since the Index does not postulate a drastic and general diminution in media freedoms worldwide.

On September 9th 2005 a Presidential Decree governing the conduct of the election promised each candidate standing for the Presidency of the Republic equal access to the mass media (Appendix I). An “Appeal to All Candidates” from the Central Election Commission to all those taking part in the election on October 11th 2005 was more explicit. It states: “The State guarantees that public TV channels and print mass media will provide to all candidates an allocated time to present their programmers and will objectively cover all pre-election activities in the context of their news programmes. State bodies will facilitate public debates on matters of elections and will ensure that all political parties and public associations which nominated their candidates for the presidency have the opportunity to publish newspapers and campaigning materials in compliance with the legislation of Kazakhstan.” (Appendix II)
There are three further developments which are likely to ensure that the important issue of press freedom remains to the fore during the forthcoming election.
The first is a statement from OSCE/ODIHR to the effect that monitoring of broadcast and print media will be “a key activity” during the election and that this will include both qualitative and quantitative assessment of the campaign coverage .
The second is a decision by the Central Electoral Commission to conduct its own media monitoring (several NGOs have also announced similar intentions).
The third is a voluntary undertaking by the leading Kazakhstan media, set out in a "Charter for an Honest Election" , which calls for an end to “smear” and "dirty" campaigns and for fair and accurate reporting of the policies of the various candidates. Its signatories state: “We believe that the more unbiased the mass media are, the easier it will be for all of us to choose a worthy leader and to create the future the way we see it in our best dreams and aspirations.”

These welcome developments suggest that an unprecedented number of observers will be monitoring the media – and any restraints placed upon it – as the media itself observes both the campaign and, for the first time, attempts to self-regulate its own reporting.

On the basis of the practice adopted for the 2004 parliamentary elections, we are reasonably confident that the Government and CEC will do their best to live up to their promise of equal broadcasting time for all candidates for the duration of the election campaign. However, measures to ensure balanced television coverage of political affairs at other times would also be welcome.

The question of media ownership remains a vexed issue, as it is in many countries. The absence of a television channel sympathetic to the opposition and the fact that the President's daughter, Dariga Nazarbayeva, the leader of the Asar (Altogether) Party, owns substantial media holdings including major interests in several television companies are matters of legitimate opposition complaint. We note, however, that possession of important media holdings did not significantly enhance Miss Nazarbayeva's support at the 2004 parliamentary elections, in which Asar secured just 11 per cent of the popular vote.

Our conclusion is that the media is an area in which legislation may be necessary to prevent monopolistic tendencies and ensure more balanced political coverage – a useful suggestion made by a group of European parliamentarians led by John Bowis MEP in their report on the 2004 Election , and one which we support.



Volatility and Politics

Some opposition parties and candidates have denounced the legitimacy of the 2004 parliamentary elections and ruled out the possibility of a full and fair presidential election on December 4th even before the start of the campaign.

Mr Zharmakhan Tuyakbai, the candidate of the Coalition for Democratic Forces "For a Just Kazakhstan", has asserted that press bias, the harassment of journalists, the government's control of television and unfair electoral arrangements preclude the possibility of free and fair elections . During our meeting with him on October 10th, we asked him whether he believed his country was on the brink of a 'coloured revolution'. He replied: "If the people rise, we will be with them."

In launching his campaign on October 25th, Mr Tuyakbai, who was a long serving senior member of the Nazarbayev administration until immediately after the 2004 Majilis election, presented himself as the champion of democracy and honest government versus a corrupt and authoritarian leader. His comments, together with his response to our questions about the possibility of civil unrest, suggest that in common with some other opposition spokesmen he believes that his party's interest may lie in raising the political temperature.

Mrs Zaurash Battalova, the opposition member of the Kazakhstan Senate, told us that a meeting outside the Kazakh Technical University building on October 8th, at which she had been a speaker, had been broken up by thugs and that the police, instead of dealing with those responsible, arrested and detained a number of those attending. The purpose of the meeting had been to demand the immediate release from prison of Galymzhan Zhakiyanov, an opposition leader and co-founder of the Democratic Choice of Kazakhstan, who was sentenced to seven years' jail for abuse of office in 2002.

Mrs Battalova produced to us photographs which appear to support her claim. In responding to her allegations, a spokesman for the Government says that the events that she described occurred only a few days before our meeting with her, and that her complaint is still being officially investigated; that Mrs Battalova's application to use the meeting place had been turned down because it had already been booked by another organization; and that Mrs Battalova had been offered an alternative meeting place but had ignored the offer. We note that Galymzhan Zhakiyanov, who has now served half his prison term, has been recommended for early release by the authorities of Pavlodar low security prison. According to reports, it is expected that if the courts concur he may be released in November 2005.

While we do not believe that Kazakhstan is on the verge of a revolution, it seems possible that at least some opposition elements may seek to stage protests at the close of polling on December 4th, and that those organising the protests will seek to draw parallels with recent events in Kyrgyzstan, Georgia and the Ukraine for the benefit of the international media, which may be looking for a repetition of events which occurred in quite different circumstances. If such a situation were to occur, it is to be hoped that the response of Kazakhstan's law enforcement community will be measured and proportionate, in line with the instructions contained in the President's Decree of September 9th.

In this respect, we believe that the OSCE's criticisms of the provision in the Elections Law for a strictly limited ban on peaceful assembly goes too far, and may be used to justify behaviour which would be unlawful. As we have already stated, although we do not feel competent to comment on the wisdom of the government’s ban, we do not regard the reasons that have been given for its introduction as being reprehensible. If, following the December 4th poll, there is dissatisfaction with the administration of the election, peaceful remedies exist under the law. International observers too will be able to express in the public arena any concerns they may have.

In playing such a hands-on role in Kazakhstan's political development, particularly with respect to Article 44.6 of the Elections Law, we believe there is a danger that the OSCE may have trailed considerations that could be used in the drama of an election. The OSCE already cooperates extensively with governments, conducts energetic public diplomacy campaigns in support of its goals, and issues preliminary findings before, during and after the elections of some of its member states. By adopting such a pro-active stance in respect to the provisions of article 44.6 of the Kazakhstan Elections Law, there is some danger that it is becoming a political player itself and this cannot but affect the integrity of its role as observer.



Running an Election

The task of the Central Electoral Commission is to ensure observance of electoral legislation in all elections by means of a nationwide system of regional and local election commissions.

The CEC alone determines the result of all elections and transmits this information to the media. A further responsibility is to explain the legal framework for elections and to stimulate public interest in the democratic process. On October 11th, in advance of the presidential elections, the CEC issued an "Appeal to All Candidates” in the 2005 Presidential Election, explaining the legal responsibilities of all those involved in the election process including the CEC itself (Appendix II).

During discussions on October 8th with the recently appointed chairman of the CEC, the former Minister of Justice Mr Onalysn Zhumabekov, we expressed the view that the reports of international observers on the September 19th elections to the Majilis had pointed to three serious concerns:

1. Attempts by a number of akims (regional governors) to influence voting behaviour.

2. Inaccurate or out of date voters' lists.

3. A failure by the CEC to explain its decisions and the reasons for these to the public.

Mr Zhumabekov said he accepted that during the September 2004 campaign a small number of akims had become "unduly excited." He said that all akims had been reminded of their responsibilities in the President's Decree of September 9th as well as by the CEC in its Appeal to all Candidates of October 11th. (In a subsequent meeting, on October 9th, Mr Yerkhumet Yertisbayev, Political Advisor to the President, said ways had been found to inform akims that they would be in "serious trouble" if they sought to influence the result of the election.)

Mr Zhumabekov stated that voters' lists would be posted in all polling stations on November 18th, two weeks ahead of the election, and that he had recently taken measures to ensure that these would be regularly updated. Those who found that their names had been omitted would have access to the courts if they failed to obtain satisfaction from the local authorities.

Mr Zhumabekov offered assurances that in order to increase public understanding of the electoral process, future meetings of the CEC would be "fully transparent". Departing from previous practice, the CEC would continue to meet throughout the election campaign and there would be regular press conferences at which the CEC might respond to public concerns and queries. We understand that since the start of nominations the CEC has in fact held a weekly press conference, and that there is an intention to increase their frequency as polling day approaches.

Responding to criticisms about the way in which e-voting had been introduced on a limited trial basis during the 2004 elections, Mr Zhumabekov accepted that this had been "a little hurried" even if voters had retained the right to vote by traditional means. He stated that during the forthcoming elections, electronic voting would take place in no more than 15 per cent of voting stations compared to 10 per cent in the elections to the Majilis, but as in the past voters would be able to vote manually if they wished to do so, and this would be clearly indicated to them.

We noted Mr Zhumakbekov's realism and professionalism. He candidly acknowledged that democratic reform in Kazakhstan was a process not an established fact. The irregularities which occurred in previous elections were also acknowledged and the answers to our questions were given clearly and precisely. When Mr Zhumabekov was unable to give a detailed reply to questions regarding the prosecutions brought against those accused of violating the elections law during the September 2004 Majilis election, he instructed his staff to produce a written answer which was duly forwarded to us.

This states that a total of 857 complaints were received from members of the public, candidates and civic organisation for alleged breaches of the election law. Investigations showed that actual violations occurred in 83 cases (or 9.5 per cent of the complaints). Those responsible were punished under the provisions of Kazakhstan's administrative law, usually by a fine or a caution. Those dealt with included a senior public official who had written to local newspapers ordering them to write favourable articles about the governing party and a regional akim who had refused to provide facilities to enable a candidate to meet voters. In addition, 334 cases were brought to the courts by citizens for alleged breaches of their electoral rights. The courts considered that 32 of these cases raised questions about the validity of the results, but on further investigation allowed the results to stand.



Appendices


Appendix I

DECREE

The President of the Republic of Kazakhstan
September 9th, 2005
No. 1643


On measures for Supporting the Electoral Rights of the Citizens of the Republic of Kazakhstan

“Kazakhstanskaya Pravda” No. 244-245 of 10 September 2005 [Subject to publication in Republican Press]

In order to conduct in Kazakhstan on 4th December 2005 a free, fair and competitive election for the President of the Republic of Kazakhstan, constituting the basis for the democratic development of our country and, following article 40 of the Constitution of the Republic of Kazakhstan, I hereby DECREE as follows:

1. The Central Election Commission of the Republic shall ensure the proper conduct of the election of the President of the Republic of Kazakhstan in a manner that fully respects the electoral rights of the citizens of the Republic of Kazakhstan to elect and be elected.

2. The Government of the Republic of Kazakhstan shall provide, promptly and in full, the required funds to pay for the forthcoming election for the President of the Republic of Kazakhstan.

3. The office of the Prosecutor-General’s shall tighten its monitoring of compliance with electoral law, and respond promptly to complaints and any other information concerning possible violations.

4. The Akims (Governors) of oblasts and of the cities of Astana and Almaty shall prepare, promptly and accurately, an electoral roll of all registered voters and provide all necessary assistance to the Regional and District Election Commissions in addressing organizational and other aspects of the forthcoming election.

5. The Ministry of Culture, Information and Sports of the Republic shall, together with the Central Election Commission, ensure equal access to the media for all candidates standing for the Presidency of the Republic of Kazakhstan.

6. The Central Election Commission of the Republic, acting as per the law upon representations from the Ministry of Foreign Affairs, shall accredit observers of foreign countries, international organizations and representatives of the foreign media who may wish to travel to Kazakhstan for the forthcoming election.

7. The Ministry of Justice of the Republic shall ensure the timely processing and issuance of personal identity cards and passports and the registration of electoral funds of any citizen of Kazakhstan who is standing as a candidate for election to the Presidency of the Republic of Kazakhstan.

8. The Ministry of Interior of the Republic shall jointly with the Akims of oblasts, and the cities of Astana and Almaty, take all measures to ensure law and order during the election campaign for the President of the Republic of Kazakhstan.

9. It is recommended to all the political parties and other public associations in Kazakhstan to allow full and open public control over the conduct of the election.

10. This Decree shall come into effect from the day of its publication.

President of the Republic of Kazakhstan
© Republican Center of legal information
Printed on 8th October 2005
Tel: (3172) 32-13-87, 32-13-90



Appendix II

On October 11th 2005 the Central Election Commission issued the following solemn appeal to all candidates running for the Presidency of the Republic of Kazakhstan, to candidates’ election headquarters, to all the political parties and public associations, state bodies, mass media and all other participants in the election campaign.


Appeal by the Central Election Commission of the Republic of Kazakhstan to All Candidates in the 2005 Presidential Election

“Based on the Constitutional provisions contained in the Law ‘On Elections in the Republic of Kazakhstan’ and the President’s decree of September 9, 2005 (No. 1643) ‘On measures to Support the Election Rights of the Citizens of the Republic of Kazakhstan’ and aiming at conducting fair and transparent elections for the Presidency of Kazakhstan, the Central Election Commission (CEC) declares:

1. State authorities and candidates for the Presidency must use only peaceful, lawful and non-violent methods to achieve their political goals during the election campaign, both in the process of voting and counting votes and after the announcement of the results;

2. Candidates’ election headquarters should use traditional democratic means to present their policies and ideas to the electorate during the pre-election campaign, including television, advertising, personal campaigning, rallies and demonstrations under the rules set out by law;

3. The State guarantees that publicly-owned television channels and the print media will allocate to all Candidates an agreed space to present their programme for Government, and will cover all pre-election activities objectively in their news programmes. State authorities will ensure that there are public debates and that all political parties and public associations that have nominated Candidates for the Presidency have the opportunity to publish newspapers and campaign materials, as set out under the legislation of the Republic of Kazakhstan;

4. Candidates’ election headquarters must properly submit applications seeking the permission of the appropriate authorities to hold rallies and demonstrations, and undertake to obey the law fully in this respect;

5. For their part, the State authorities must ensure that the freedom to hold lawful, non-violent rallies is fully upheld, and that permissions are duly given to hold the rallies, without discrimination against any Candidate for the Presidency;

6. The State will ensure the participation of representatives of all the political parties in the Regional and District Election Commissions;

7. The State will provide for timely (i.e. within 24 hours) data on election results as per all districts and regions and will publish this information on the Internet;

8. State authorities will provide in advance an opportunity for all interested to become acquainted with the electoral roll and will conduct a public awareness campaign among voters calling upon them to check whether they were correctly entered on the list of registered voters;

9. The State welcomes the participation of foreign observers (particularly from the OSCE) and local observers in the elections;

10. The relevant state authorities will call to account under the law any central or local administrative officials who may breach the election legislation;

All participants in the election campaign commit themselves to conduct their campaigns in an appropriate and substantial manner and refrain from personal accusations, verbal attacks and bullying.”



List of meetings

We are grateful to the following individuals for talking to us during our visit:

Mr Nurtai Abykayev, Speaker of the Senate of the Republic of Kazakhstan
Mrs Birganym Aitimova, Minister of Education
Mr Alikhan Baimenov, Chairman of Ak Zhol and presidential candidate
Mr Yermurat Bapi, Zhuma Times Newspaper
Mrs Zaurash Battalova, opposition member of the Kazakh senate
Mr Sergei Duvanov, journalist and human rights campaigner
Mr Bakhtyk Izmukhambetov, Deputy Minister for Energy
Mr Oraz Jandosov, Movement "For a Just Kazakhstan"
Ms Tamara Kaleeva, Adil Soz Foundation for the Protection of Free Speech Mr Kairat Kelimbetov, Minister of the Economy
Mr Assylbek Kozahmetov, Democratic Choice of Kazakhstan
Mr Ural Mukhametzhanov, Speaker of the Majilis
Ms Vera Tkachenko, Penal Reform International
Mr Zharmakhan Tuyakbai, Presidential candidate, Movement "For a Just Kazakhstan"
Ms Gulzhan Yergalieva, Soz
Mr Yermukhamet Yertisbayev, Political Adviser to the President
Mr Evgeny Zhovtis, International Bureau for Human Rights
Mr Onalsyn Zhumabekov, Chairman of the Central Election Commission



About the Authors

Mr Gerald Frost

Gerald Frost is a journalist, author and speechwriter and currently editor of the fortnightly publication eurofacts and General Director of the Caspian Information Centre. He has been Director of the London-based Centre for Policy Studies (1992-95) and head of the Institute of European Defence and Strategic Studies, which he founded in 1981. Gerald Frost has edited more than 70 books and monographs, and written widely in the international media.


Professor Kenneth Minogue

Kenneth Minogue is Emeritus Professor of Political Science in the University of London. He has written extensively on nationalism and other political ideologies. His A Very Short Introduction to Politics has been translated into many languages, and he has often engaged in radio and television discussions.


Professor Dennis O’Keeffe

Dennis O’Keeffe is Professor of Social Science at the University of Buckingham, Senior Research Fellow at the Institute of Economic Affairs and editor of the Salisbury Review. He specializes in Sociology and Economics of Education, and in translation into English of various works of French political economy. He has written many books and is also well known in broadcasting and journalism.


Mr David Ruffley, MP
David Ruffley, Vice-Chairman of the All-Party Group on Kazakhstan, has been a Member of the House of Commons since 1997 where he has served on its senior Treasury Affairs Select Committee. He has also served on his Party’s front bench as the Treasury Whip. Before entering Parliament he was a corporate finance lawyer at Clifford Chance, the City of London firm of solicitors. Between 1993 and 1996 he was Chief Special Adviser to the British Chancellor of the Exchequer.