LOBBYING IN KAZAKHSTAN

Authors : Natalia Malyarchuk and Yury Shikhov (Kesarev)

Constitution: The Kazakh Constitution guarantees the rights of citizens and organisations to access information and to interact with the government within the frameworks provided by the law (article 18, page 3 of the Constitution). However, it directly prohibits any interference of citizens and organisations in affairs of the state (article 5, page 2 of the Constitution).

On 25 March 2017, the President of Kazakhstan signed a decree on constitutional changes. This became the fourth constitutional reform in Kazakhstan since the current Constitution was approved by a national referendum in August 1995 and replaced the Constitution of 1993. In 1998 and 2007, reforms were focused on the strengthening and widening of presidential competence. Consequently, the reform of 2017 provides for a change from a presidential system to a de jure parliamentary system based on the checks and balances system, with the President focusing on strategic functions.

Within the new system, the government receives executive powers in the economic sphere, powers to approve state programmes, and the responsibility to manage reshuffles in the government and establish new governing bodies. The composition of the government will be approved by the national parliament. The President remains responsible for issues concerning national security and defence, and defining foreign policy.

However, these changes cannot be considered large-scale or particularly momentous. Despite constitutional reform in the past, Kazakhstan’s political system is still dominated by the President. Amendments are technical in nature, and, therefore, the reform is unlikely to make any real difference.

On 5 July 2018, the President of Kazakhstan signed a new constitutional Law on the Security Council. The new Law changed the status of the Security Council of Kazakhstan, separating it from the structure of the presidential administration into an individual constitutional body.

The Security Council actually headed the hierarchy of state institutions. In addition to directly addressing external and internal threats to the country’s security, its competence includes the approval of candidates for the positions of the first leaders of central and local authorities and structures directly subordinated to the President.

The right to chair the Security Council for life belongs to the first President, Nursultan Nazarbayev. In the event of an emergency, he has a right to make decisions without applying to the Constitutional Council.

The members of the Security Council are the President, the chairs of both houses of parliament, the Prime Minister, the State Secretary, the head of the presidential administration, the Secretary of the Security Council, the Attorney General, the Chairman of the National Security Committee and the foreign and defence ministers.

The adopted amendments indicate the beginning of the process of transit of power while maintaining control over all levels of government by the current first President of Kazakhstan.

Legislative system: The Parliament of Kazakhstan is the bicameral legislature, which consists of the Senate and Majilis. It is the highest representative body exercising legislative power. There are also local parliaments (maslikhats) that are the representative bodies of local governments that have the right to represent the interests of, and make decisions on behalf of, the municipality.

The Senate is the upper house of Parliament with 47 seats. Fifteen senators are appointed by the President, 32 senators are elected by two candidates of each regional parliament. All former presidents are lifelong senators. The term of office of a Senate deputy is six years.

The Majilis is the lower house of Parliament with 107 seats. Ninety-eight deputies are elected through a party-list proportional representation system, where seats get distributed by the governing body of the political party after calculating the voting results in proportion to the number of votes the party receives. Nine deputies are elected by the Assembly of the People of Kazakhstan during the general session of the Assembly by secret ballot of members. (The Assembly is an advisory body under the President of Kazakhstan who is the chair. The Assembly consists of 394 members appointed by the President by the recommendation of cultural centres and non-governmental organisations.)

From a political perspective, parliaments of all levels are dependent on the executive authorities (ie, government ministries) and are included in the approval procedure for decisions made by the government. The majority of deputies at all levels are members of the ruling party, Nur Otan, chaired by the President. Government ministers are all Nur Otan party members.

In terms of relevance for lobbying, the classification of representative bodies where lobbying activities can be carried out is as follows:

Legislative regulation of representative bodies’ work:

1. Mostly regulated by laws: Parliament (both houses) local representative bodies, Assembly of the People of Kazakhstan.
2. Partially regulated by laws or instructions: Public councils, inter-agency commissions under representative bodies. Working groups on legislation under representative bodies.
3. Not regulated: Consultations with inter alia working groups and government groups in different spheres (eg agriculture, e-commerce and healthcare).

National subdivisions: Kazakhstan is a unitary state. All decisions are taken by the central government and filter down for execution by regional authorities. However, the regional legislatures (ie, maslikhats) have a fairly wide range of powers that allow them to sufficiently influence both the decision-making process at a regional level and control the regional executive branch’s activities.

In particular, maslikhats can influence regional governments’ staff policies, prosecute local government officials, approve regional budgets, express distrust to the head of the region and approve rates for local taxes (article 6 of the Law on Local Government and Self-Government in the Republic of Kazakhstan).

Maslikhats have between 25 and 50 seats, depending on the population in each electoral district. Maslikhats’ deputies are elected by the population of the region by direct voting. There are three types of maslikhat: regional (16 in total); city (87 in total); and administrative district (175 in total). Any citizen of Kazakhstan who has reached the age of 20 may be elected as a deputy of a maslikhat.

Consultation process: In Kazakhstan there are several systems and instruments that allow citizens and organisations to influence decision-making processes, including reforming, amending and adopting legislation on all levels of executive offices.

Public hearings

A public hearing, according to Kazakh legislation, is a procedure of public control in the form of a meeting of interested parties (citizens, business, government officials) and is a formalised process for making lawmaking decisions. Public hearings are conducted during the passage of legislative acts concerning ordinary matters, drafts of other types of act - for example, budget acts and tariffs.

The initiators of public hearings are public councils under executive bodies at all levels.

Public hearings are regulated by the Law on Public Councils (Law No. 383-V of 2 November 2015).

Public or social consultations

A public or social consultation is the procedure of gathering opinions, views and convictions on a given topic by an authorised body. The consultation is usually expressed in writing and does not require oral interaction between the participants. It may occur during work on the structure of a planned legislative initiative. Consultations are performed within different social environments, usually engaging those who may be potentially interested in the subject matter of a bill, and often through a relatively informal procedure via different forms of communication (eg, mail, email and internet polls).

The initiators of public or social consultations are non-governmental organisations authorised by an executive body.

Public or social consultations are regulated by the Law on Public Councils.

Public councils

Public councils are advisory bodies established by central executive bodies (ministries and agencies) and local governments. Public councils are formed from representatives of civil society, business organisations, citizens and public officials. Public councils’ powers include the following: discussion and approval of budget programmes; strategic plans or development programmes, etc; consideration of applications from individuals and legal entities; development and introduction of proposals to public institutions on improving legislation; and exercise of public control.

Public councils are regulated by the Law on Public Councils.

Open government web portal

The open government web portal is designed to organise public discussions on normative legal acts prior to their issuance and adoption by the authorised authority. Any registered user of the portal has the right to comment and submit proposals (via the portal). It is obligatory for all authorised authorities to consider users’ comments.

The web portal is regulated by the Law on Access to Information (Law No. 401-V of 16 November 2015).

Consultations with businesses

Private businessmen and enterprises are statutorily entitled to participate in lawmaking processes for drafting laws that concern regulation of private business. Central and local authorities submit the draft laws to accredited associations of private businesses and enterprises (represented by the National Chamber of Entrepreneurs, which was established by the government for the purpose of creating favourable conditions for the development of entrepreneurship and effective partnership between businesses and the government) for their expert opinion. The associations’ opinions are seen as recommendations, and must accompany the draft law during the process of discussion and adoption.

The initiator of these consultations is the National Chamber of Entrepreneurs. The consultations are regulated by the Entrepreneurial Code (No. 375-V of 29 October 2015).

Judiciary: The legal system of Kazakhstan is based on civil law. The judicial power is exercised only by the courts and on behalf of Kazakhstan. Courts are formed, reorganised, renamed and abolished solely by the President. The Supreme Court of Kazakhstan is the highest judicial body.

Judges are appointed by the Supreme Judicial Council of Kazakhstan, which is an autonomous state institution established to ensure the constitutional powers of the President, to establish courts, and guarantee the independence of judges and their immunity. The Council and its structure are approved by the President.

Kazakhstan’s judicial system consists of three tiers of courts of general jurisdiction vested with general authority to hear criminal and civil matters. First-instance matters are heard by district and city courts. Appeals are heard in regional courts and the appeal courts of Astana and Almaty, and thereafter by the Supreme Court.

The Constitution permits the establishment of specialist courts. Several such courts have been established to date, including economic and administrative courts, economic courts, and a financial court of the Astana International Financial Centre based on English law and independent from the country’s general judicial system.

General: Lobbying (and the profession of being a lobbyist), as it is generally understood, is not regulated by legislation in Kazakhstan. However, steps have been taken, through the adoption of special amendments in legislative acts, to include businesses in decision-making processes. These processes create the possibility for business advisers to have direct access to elected and appointed government officials on all levels, and are as follows:

• Business associations and private entrepreneurs, experts of various fields of knowledge, scientific institutions and scientists can be involved in drafting laws, regulatory legal decrees of the President and regulatory legal decisions of the government (article 18, page 3 of the Law on Legal Acts, No. 480-V of 6 April 2016).
• Central and local authorities submit bills and any amendments that affect the interests of private businesses to accredited associations of private business and the National Chamber of Entrepreneurs for their expert opinion (article 19, page 1 of the Law on Legal Acts).
• Parliamentary deputies can set up working groups when preparing for parliamentary hearings with the involvement of experts.
• Through the introduction of self-regulation in the economy, government agencies can delegate some of their functions to business associations, thereby providing an opportunity for business entities and their associations to independently develop appropriate sectors of the economy, including the formation of business standards, the exercise of control over economic sectors and proposals to amend legislation (Law on Self-regulation (No. 390-V of 15 November 2015), message of the President, ‘100 Concrete Steps’, step 97).

Any type of lobbying activity that occurs will be dependent on the regulator’s will and attitude to a particular business.

Definition of Lobbying: There is no specific law regulating lobbying in Kazakhstan, and no definition is provided. In 2009 the Ministry of Justice submitted a draft bill on lobbying to Parliament. The bill intended to formalise the activities of businesses in promoting their interests on a government level. In 2012 the Ministry withdrew the bill from Parliament; however, it is expected that it will be discussed again in 2018.

Registration and other disclosure: Not applicable.

Activities subject to disclosure or registration: Not applicable.

Entities and persons subject to lobbying rules: Not applicable.

Lobbyist details: Not applicable.

Content of reports: Not applicable.

Financing of the registration regime: Not applicable.

Public access to lobbying registers and reports: Not applicable.

Code of conduct: Not applicable.

Media: No restrictions in broadcast and press regulation that limit commercial interests’ ability to use the media to influence public policy outcomes

General: The main sources of funding for political parties and politicians in Kazakhstan are membership fees for political parties, donations from Kazakh citizens and organisations, business income (eg, if the candidate also runs a business, he or she may use income from it (in the form of a donation) to finance the campaign) and state budget. The amount of electoral funds of political parties and politicians during the electoral period is limited by the Law on Political Parties (No. 344-II of 22 July 2002). Political parties represented in Parliament receive annual financial support from the state in proportion to the number of votes received in elections.

Funding of political parties and their election campaigns by international organisations, foreign legal entities and individuals is prohibited.

Registration of interests: Obligations to register interests arise only during the electoral period. Between electoral campaigns, political parties are required to publish their annual financial reports in the media.

Politicians and political parties are not obliged by the law to declare travel, hospitality and gifts, etc. At the same time, since 2017, Kazakhstan has introduced a system of general declaration of income, property and assets (including outside of Kazakhstan) for all individuals. Tax residents are obliged to declare possession of the following types of property:

• funds available in foreign bank accounts;
• real estate, registered with competent authorities of foreign countries (residential and non-residential buildings and premises, including apartments, houses, garages, country houses and lands);
• securities, whose issuers are registered outside of Kazakhstan; and
• participation interest in legal entities registered outside of Kazakhstan.

Contributions to political parties and officials: There are no legislative and other restrictions on contributions or other disbursement to political parties and politicians if they are made by Kazakh legal entities and individuals. Any kind of support to political parties and politicians from foreign residents is prohibited.

Sources of funding for political campaigns: The main condition for financing the activities of politicians and political parties (including political campaigns and any other types of activities) is that the funds must originate in Kazakhstan. All funds raised during the campaign have to be declared and accounted for in the income tax declaration as well as published in the national media.

Lobbyist participation in fundraising and electioneering: According to legislation, fundraising for political purposes carried out by a political party or politician should be linked to a specially registered bank account. Third parties are not allowed to raise funds with respect to candidate fundraising.

Independent expenditure and coordination: Owing to the underdevelopment of Kazakh political culture, there is no direct ban on parallel political campaigning in the legislation. The right to conduct political and pre-election campaigning is available to all adult Kazakh citizens and public associations. The state guarantees them the possibility of unimpeded agitation for and against a particular candidate or political party. However, unlike political parties or politicians, they are not required to provide special financial statements.

Gifts, travel and hospitality: Kazakh legislation imposes a number of restrictions on civil servants during their stay in office (Law on Civil Service, No. 416-V of 23 November 2015). Civil servants are prevented from:

• engaging in paid activities (eg, participating in conferences, business events), with the exception of pedagogical, scientific and other creative activities;
• engaging in business;
• using services provided by citizens and legal entities for personal reasons; and
• receiving gifts.

However, there are no limitations for judges or executive officials (excluding members of the government and Constitutional Council) with regard to participating in business and related activities. These officials are permitted to transfer their bonds and units of open and interval investment funds to a trustee who will be responsible for their management (trust management); lease property; and receive income from property transferred to trust management.

Anti-bribery laws: Not applicable.

Revolving door: Not applicable.

Prohibitions on lobbying: Not applicable.

Remedies and sanctions: Not applicable.