review of central and east european law 42 (2017) 294-324 brill.com/rela Recent Constitutional Reforms in Kazakhstan: A Move towards Democratic Transition? Zhenis Kembayev kimep University, Almaty, Kazachstan <[email protected]> Abstract This article aims at examining the major principles and provisions of the constitu- tional structure of Kazakhstan in the context of the amendments introduced to the Constitution of Kazakhstan on 10 March 2017. In doing so, it provides an analysis of the fundamentals of Kazakhstan’s constitutional system as well as major constitutional provisions underlying the status of the capital, the status of individuals, the Kazakh- style strong presidency and weak parliament. The article provides background to Ka- zakhstan’s constitutional development and elections. It pays particular attention to the relationship between the President, the Parliament and the Government, but also expounds the influence of the President on the Constitutional Council and judicial bodies. Finally, it summarizes and demonstrates major features and problems of Ka- zakhstan’s constitutional system in order to provide an answer as to whether the recent constitutional reforms constitute a move towards the country’s democratic transition. Keywords Kazakhstan – Constitution of Kazakhstan – Nazarbayev – president of Kazakhstan – parliament of Kazakhstan – government of Kazakhstan – Constitutional Council of Kazakhstan – Astana 1 Introduction Speaking at a ceremony dedicated to the 25th anniversary of Kazakhstan’s in- dependence in December 2016, Kazakh President Nursultan Nazarbayev pro- posed to amend the Constitution of the Republic of Kazakhstan, which had © koninklijke brill nv, leiden, 2017 | doi 10.1163/15730352-04204002Downloaded from Brill.com09/27/2021 02:45:35AM via free access <UN> Recent Constitutional Reforms in Kazakhstan 295 been adopted by all-nation referendum on 30 August 1995,1 and ordered to create a special commission with the purpose of working out proposals on “re- distribution of powers between the President, the Parliament and the Govern- ment” and of transferring some presidential powers to the Government and the Parliament.2 The commission was created early the next year and already on 25 January 2017, President Nazarbayev unveiled a package of draft consti- tutional changes that was submitted for a one-month nationwide discussion.3 The elderly leader said this would deliver “democratization of the political sys- tem as a whole”.4 In fact, the words of the Kazakh President are of particular importance, as Kazakhstan is consistently classified as “not free”5 and “authoritarian”.6 In difference to the first Constitution of independent Kazakhstan of 28 January 1993,7 which gave strong competences to legislative and judicial bodies, en- abling them to effectively balance and control the executive branch headed by the President,8 the current Constitution granted extensive powers to the 1 See Konstitutsiia Respubliki Kazakhstan (30 August 1995), available at <http://online.zakon. kz/Document/?doc_id=1005029> (hereinafter “Constitution of Kazakhstan” or “Constitu- tion”). Unless otherwise noted, all translations from Russian and German into English in this work are by the author of the present article. 2 “Kazakhstan mozhet vnesti izmeneniia v Konstitutsiiu”, Sputnik International (15 December 2016), available at <https://ru.sputniknews.kz/politics/20161215/1218211/kazahstan-mozhet- vnesti-izmeneniya-v-konstituciyu.html>. 3 See Rasporiazhenie Prezidenta Respubliki Kazakhstan “O vsenarodnom obsuzhdenii pro- ekta Zakona Respubliki Kazakhstan o vnesenii izmenenii i dopolnenii v Konstitutsiiu Re- spubliki Kazakhstan” (25 January 2017) No.141, available at <http://www.kazpravda.kz/fresh/ view/rasporyazhenie-prezidenta-respubliki-kazahstan3>. 4 “Kazakh President Nazarbayev plans to give certain powers to parliament” (25 January 2017), available at <http://www.dw.com/en/kazakh-president-nazarbayev-plans-to-give-certain-po wers-to-parliament/a-37274430>. 5 See “Kazakhstan: Profile”, available at <https://freedomhouse.org/report/freedom-world/2017/ kazakhstan>. 6 See “Democracy Index 2016”, available at <http://www.eiu.com/topic/democracy-index>. 7 See Konstitutsiia Respubliki Kazakhstan (28 January 1993), available at <https://online.za- kon.kz/Document/?doc_id=1010212#pos=0;147> (ceased to be in force, hereinafter “Constitu- tion of 1993”). See an English translation in Rett R. Ludwikowski, Constitution-Making in the Region of Former Soviet Dominance (Duke University Press, Durham, 1996), 443ff. 8 As a result, however, tensions flared between Nazarbayev and the legislature over the pace of market-oriented reforms, the scope of privatization and also the timeframe of the reloca- tion of the Kazakh capital (see infra Section 3). Those tensions led to the dissolutions of the Parliament in December 1993 and March 1995 and eventually to the adoption of the new Constitution by all-nation referendum on 30 August 1995. See, e.g., Zhenis Kembayev, “The Rise of Presidentialism in Post-Soviet Central Asia: The Example of Kazakhstan”, in Rainer review of central and east european law 42 (2017)Downloaded 294-324 from Brill.com09/27/2021 02:45:35AM via free access <UN> 296 Kembayev President, putting him in a superior position within Kazakhstan’s political system. In particular, in his capacity of guarantor of the inviolability of the Constitution,9 who is entitled to play an (almost) exclusive role in the pro- cess of initiating any amendments or additions to the Constitution, the Presi- dent may choose whether he pursues the constitutional changes through the Parliament,10 which would have to approve them by a three-fourths majority in both chambers,11 or through conducting a nationwide referendum, which can be initiated by the President along with the Parliament or the Govern- ment, but endorsed only by the President.12 In Kazakhstan’s constitutional history there were two referendums; the first, held on 29 April 1995, extended the authority of the President for five years and practically allowed him to start the process of fundamentally changing the country’s political system, while the second, organized on 30 August 1995, approved the new Constitution. Thereafter, however, no referendums were conducted in Kazakhstan; in particular, also not in the case of three previous constitutional amendments introduced on 7 October 1998,13 21 May 200714 and 2 February 2011,15 which were approved by the Parliament. Based on his powers and following the established practice, President Naz- arbayev decided to make constitutional amendments through the Parliament. Accordingly, on 3 March 2017, the President submitted to the Parliament a draft law introducing amendments to the Constitution. Even though more than 6,000 proposals were made on how to change the Constitution during Grote and Tilmann Röder (eds.), Constitutionalism in Islamic Countries: Between Upheaval and Continuity (Oxford University Press, New York, 2011), 438. 9 Constitution of Kazakhstan, op.cit. note 1, Art.40(2). 10 Ibid., Arts.53(1), 91(1). 11 Ibid., Art.62(3). 12 Ibid., Arts.44(10), 91(1). 13 See Zakon Respubliki Kazakhstan “O vnesenii izmenenii i dopolnenii v Konstitutsiiu Respubliki Kazakhstan” (7 October 1998) No.284-i, available at <http://online.zakon.kz/ Document/?doc_id=1010769#pos=0;151> (hereinafter “Constitutional Amendment Law of 1998”). 14 See Zakon Respubliki Kazakhstan “O vnesenii izmenenii i dopolnenii v Konstitutsiiu Respubliki Kazakhstan” (21 May 2007) No.254-iii, available at <http://online.zakon.kz/ Document/?doc_id=30103613#pos=0;0> (hereinafter “Constitutional Amendment Law of 2007”). 15 See Zakon Respubliki Kazakhstan “O vnesenii dopolneniia v Konstitutsiiu Respubliki Ka- zakhstan” (2 February 2011) No.403-iv, available at <http://online.zakon.kz/Document/? doc_id=30925295> (hereinafter “Constitutional Amendment Law of 2011”). review of central and east europeanDownloaded law from 42 Brill.com09/27/2021 (2017) 294-324 02:45:35AM via free access <UN> Recent Constitutional Reforms in Kazakhstan 297 the one-month nationwide discussion,16 the submitted draft had only a few (though substantial) modifications from the initial package.17 Already on 6 March, the Parliament adopted the draft envisaging 26 amendments to 19 ar- ticles of the Constitution and submitted the draft to the President for sign- ing into law. On the same day, Nazarbayev sent the draft to the Constitutional Council18 to check its compliance with the fundamentals of Kazakhstan’s constitutional system. Receiving a positive resolution of the Constitutional Council,19 on 10 March, the President signed the draft into law, which immedi- ately came into effect.20 This article aims at examining the major principles and provisions of the constitutional structure of Kazakhstan in the context of recent constitutional amendments introduced to the Constitution of Kazakhstan and at providing an answer as to whether those amendments constitute a move towards the country’s democratic transition. For these purposes, the article is organized as follows. Section 2 provides an analysis of the fundamentals of Kazakhstan’s constitutional system and argues that the major goal of the recent constitu- tional amendments was to strengthen the existing constitutional values and tenets aiming primarily at safeguarding political stability and promoting con- solidation of the country. Section 3 explains the role of Kazakhstan’s capital in the process of the country’s consolidation as well as recent amendments