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The International Journal
of Not-for-Profit Law

Volume 7, Issue 3, June 2005

A publication of the International Center for Not-for-Profit Law

Table of Contents

Letter from the Editor

Comparative Approaches to Civil Society

The Liaison Office as a Tool for Successful NGO-Government Cooperation: An Overview of the Central and Eastern European and Baltic Countries’ Experiences
Maria Gerasimova

Public Benefit Status: A Comparative Overview
David Moore

How Freedom Is Won: From Civic Resistance to Durable Democracy
Adrian Karatnycky and Peter Ackerman

Articles

The Potential for an Independent Regulatory Authority for NGOs in South Africa
Yvonne Morgan

Restrictive Proposals in Kazakhstan
Stephen Larrabee

Women at the Forefront of the Democracy Movement in Iran
Nayereh Tohidi

Economic Constraints, Political Motives: Contemporary Russian Nonprofit Tax Law
Leslie Lutz

Failing to Govern?: The Disconnect Between Theory and Reality in Nonprofit Boards, and How to Fix It
Michael Klausner and Jonathan Small

Imagining Philanthropy
Richard Gunderman

Reviews

Conversations on Philanthropy
Edited by Lenore Ealy
Reviewed by Michael Bisesi

Europe and Civil Society: Movement Coalitions and European Governance
By Carlo Ruzza
Reviewed by Joseph Proietti

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Restrictive Proposals in Kazakhstan

By Stephen J. Larrabee[1]

Who’s Next?

First Turkmenistan. Then Uzbekistan. Now Kazakhstan? As improbable as it may seem to anyone who has followed the development of the five Central Asian countries since the dissolution of the Soviet Union, Kazakhstan has positioned itself to cripple the development of its civil society sector by introducing several new pieces of legislation. Clearly the most reformed and flourishing of the five countries economically, Kazakhstan had also shown a clear trend to promote a more vibrant civil society. That might be changing.

Legislative Initiatives

Three new legislative initiatives if implemented without revisions, would place major obstacles in the way of any individual, group, donor organization, or foreign government interested in promoting the development of civil society in Kazakhstan.

The first draft law, which was introduced in the Parliament in February 2005, is entitled “On Amendments to Some Legislative Acts of the Republic of Kazakhstan on National Security Issues.” Though the provisions of the draft focus primarily on political and religious organizations, one provision strikes a severe blow at the third sector as a whole: the draft introduces administrative penalties on individuals who manage, participate in, or finance activities of non-registered associations, effectively banning informal associations from operating in the territory of the Republic of Kazakhstan.[2] This provision violates the well-recognized principle that freedom of association includes the right to associate informally. This principle is recognized throughout the world and elaborated in the Fundamental Principles on the Status of Non-Governmental Organizations in Europe: “NGOs can either be informal bodies, or organizations which have legal personality.”[3] If enacted, this amendment will require every group to register before any activity can take place in Kazakhstan. How this provision will be enforced and who will decide what constitutes associational activity remains to be seen. It is clearly ripe for misinterpretation and selective enforcement.

The second draft law, introduced in the Parliament in April 2005, is entitled “ On the Activities of Branches and Representative Offices (Separate Subdivisions) of International or Foreign Non-commercial Organizations in the Republic of Kazakhstan.” This draft contains several restrictive provisions that will inhibit the operation of international and foreign non-commercial organizations in the Republic. These include, but are not limited to, a two-tiered registration system for branches and representative offices of international and foreign organizations[4] ; a requirement that all international and foreign organizations currently operating in Kazakhstan re-register[5] ; a prohibition on foreign citizens acting as directors of branch and representative offices[6] ; a requirement that any assistance provided to Kazakhstan must be carried out through a local branch or representative office[7] ; and a requirement that branch and representative offices notify local executive bodies ten in days in advance of any activity.[8] All of these requirements clearly discriminate against international or foreign non-commercial organizations and have the effect of prohibiting their operation in Kazakhstan. Such provisions do not apply to commercial organizations (both local and international) or to local non-commercial organizations. The provisions provide no justification for requiring re-registration of currently operating non-commercial organizations, or for prohibiting foreign directors. Also, many of the requirements are open ended. For instance, the draft contains a list of documents required for registration, but the Ministry of Justice can request more as it sees fit; the draft lists reasons for refusal of registration, but it can be broadly interpreted; and, finally, the draft never defines what constitutes an “event” that must be reported ten days in advance to the local executive bodies. All in all, these new requirements place an undue burden on foreign non-commercial organizations, and they leave the implementation and enforcement of these rules to an open-ended interpretation by the administrating agencies, which could easily lead to selective enforcement and corruption.

The final draft law, “On the Introduction of Amendments and Additions into Certain Legislative Acts of the Republic of Kazakhstan on Matters Related to Non-commercial Organizations,” was also introduced in Parliament at the same time as the prior-mentioned draft. This draft also imposes several new restrictions on non-commercial organizations operating in Kazakhstan. There are three prohibitive provisions: the imposition of repressive sanctions for a non-commercial organization that holds an event without providing timely notification to the local executive agency[9] ; the prohibition of foreigners serving as managers and members of the board of trustees of non-commercial organizations[10] ; and the requirement that any grants or contributions provided by foreign assistance to non-commercial organizations must be pre-approved by local executive agencies.[11] All of these provisions create an unjustified intrusion into local and foreign international non-commercial operations, and they clearly contradict international best practices. Government officials will be able to deny funding to any non-commercial organization they wish. They will also be able to fine an organization $1,500 and begin a liquidation process if the organization fails to notify about an “event,” even though there is no clear definition of what qualifies as an “event.” And foreign citizens will be banned from working in any managerial capacity in a non-commercial organization.

Recent Events and Conclusion

It doesn’t take a sophisticated analysis to understand why these drafts have been introduced at this time. With three former Soviet Republics changing leadership through what can be termed "revolutions," including one in Kazakhstan’s back yard, there is plenty of reason for concern. With the recent tragic events in Uzbekistan, the cause for concern has only increased.

The government's actions, however, seem misdirected. In this author’s opinion, foreign non-commercial organizations and donor organizations played only a minimal role in the leadership changes in the three former Soviet Republics. Hobbling these actors and the contributions they make to the development of a vibrant civil society will do very little to prevent such changes in Kazakhstan. Indeed, thanks to the technical skills and funding that these organizations bring to Kazakhstan, individuals have been able to make a better life for themselves as well as contribute to the development of their country. In this respect, the new restrictions may end up making the government's situation more precarious, not less.

Notes

[1] Stephen J. Larrabee serves as ICNL's program director for Central Asia.

[2] Draft amendments to the Code of Administrative Violations, Article 374-1.

[3] Fundamental Principles on the Status of Non-Governmental Organizations in Europe, Council of Europe, Para. 5.

[4] Draft Law “On Activities of Branches and Representative Offices (Separate Subdivisions) of International or Foreign Non-commercial Organizations in the Republic of Kazakhstan," Article 6.

[5] Id., Article 11, Point 2 and 3.

[6] Id., Article 6, Point 1: “Only a citizen of Kazakhstan may be deemed to be the Head of the branch and representative office of an international or foreign non-commercial organization in the Republic of Kazakhstan.”

[7] Id., Article 2, Point 1.

[8] Id., Article 5, Point 2.

[9] Draft Law “On the Introduction of Amendments and Additions into Certain Legislative Acts of the Republic of Kazakhstan on Matters Related to Non-commercial Organizations,” Article 374-2, Point 2 of the Code of Administrative Violations: “Failure to inform or untimely notification to the proper local executive agency … shall entail a fine at the rate of two hundred MIF [currently $1,500] with prohibition of operation of non-commercial organization or without such.”

[10] Id., Article 12, Point 2-3.

[11] Id., Article 35, Point 2-1.

 

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