It is not the law but the Central Electoral Commission that determines the entire procedure of holding off-year elections in Kazakhstan, believes human right activist Evgeniy Zhovtis. In his opinion, the authorities have hedged their bets by introducing, in the recent years, the amendments to the Kazakh law that have become their “know-how”.

On April 9, President of Kazakhstan Kasym-Zhomart Tokayev, in his address to the nation, announced that the early presidential elections are to be held of June 9, 2019.

The social media have immediately made a big smoke since Article 55 of the electoral law stipulates that the nomination of the presidential candidates starts from the day following the day of the announcement and ends at 6 p.m. local time two months prior to day of the elections. In other words, if one follows the logic of the law, it looks like no time has been left for nominating the candidates. 

We have asked Director of the Kazakhstan International Bureau for Human Rights and Rule of Law Evgeniy Zhovtis to explain the situation.

— To make the picture a little clearer, I will add some history to it since, apart from the dates of the elections, there are some other nuances that are important to understand in view of the April 9 events.

The articles of the Constitution related to the presidential elections have been changed several times in our history. Let us examine these three points – the duration of the presidential term (first, it was five years, then seven years, and then it was five years again), the method of electing the president (at regular or year-off elections) and the articles related to the requirements to the candidates.

Here is a very important point: before 1998, the Constitution of Kazakhstan had allowed for year-off elections to be held in one case only – if the president was impeached due to high treason or if his powers were terminated before end of term due to an illness or death. In this case, year-off elections were to be held, and the person that took on the presidential duties was named interim president. This is how it was written in the Constitution, that the presidential duties were to be performed temporarily and, in a two-month time, year-off elections were to be held.

In 1998, this article was changed. First, it was written that the presidential authorities were to be delegated until the end the term; second, the year-off elections were abolished. In other words, it was no longer necessary to hold year-off elections since the presidential authorities were given to interim president for the rest of term.

However, in 2011, Article 41 of the Constitution was supplemented with Subsection 3-1 that said that the president may schedule year-off elections at any time and for any reason and the election procedure was determined by the Constitutional law. In other words, the necessity to give clear reasons for holding year-off elections had disappeared from the law.

In 1998, 2007 and especially in 2017, Subsection 2 of Article 41 was supplemented with a number of amendments regarding the requirements to the candidates. The minimal age was raised from 35 to 40 and the upper limit of the age requirement was abolished. The previous norm stipulated that the person living in Kazakhstan for no less than 15 years can be nominated as a presidential candidate, now they specified that these had to be the last 15 years.

See the difference?

But the most important thing that surprised me since I had not always studied the never-ending constitutional amendments meticulously is that it was in 2017 that they added the norm that the electoral law could introduce additional requirements to the candidates.

In my opinion, it is out of keeping with the spirit of the Constitution since here we are talking about the important constitutional right of the citizens – the right to vote – and it can only be registered in the Constitution. In other words, the requirements to the presidential candidates are certain limitations to the right to be elected and can be registered only in the Constitution. One cannot describe a part of the requirements to the presidential candidates in the Constitution and leave another part for the electoral law. However, this is exactly what happened in 2017.

That same year, the electoral law was supplemented with the norm that a presidential candidate must have not less than five years of experience in the state service or in holding elective office. I can understand why they added this norm to the law and not to the Constitution. I cannot imagine, even in a wildest dream, a constitution that stipulates that only a person with five years of experience in the state service may be nominated as a presidential candidate. It would be preposterous, so our legislators got shy and shoved this norm in the electoral law having hedged their bets with the Constitutional norm that additional requirements to the candidates may be introduced by the electoral law.

In 2017, Article 55 of the Constitution was supplemented with the norm that granted the right to nominate thair candidates to the national-level public associations only, in other words, to political parties because other such associations, it appears, cannot be engaged in politics. Thus, self-nominated candidates were barred from participating in the presidential elections.  

It was also when the Constitution was supplemented with Article 66-1 on holding year-off presidential elections. It says that year-off presidential elections must be conducted according to the rules established by the law for holding regular elections. In other words, all what happens at regular elections must happen at year-off elections as well. But, in the next breath, it specifies that the time frame for the electoral events is determined by the Central Electoral Commission. And all the time frames stipulated for regular elections including the time frame for the candidate nomination are not applicable in this case. They must be determined by the CEC.

And so, we have no contradiction with Article 55 that stipulates that the nomination must end two months prior to the elections. In this case, this is not applicable because we have Article 66-1 that allows the CEC to determine all the time frames related to the elections.

Of course, the procedure has been established rather arbitrarily (putting it mildly). The president can schedule year-off elections when they want and for any given reason and then the elections will be carried out within the time frame determined by the CEC.

Apart from that, Article 55 of the electoral law has the norm that stipulates that, if less than two candidates are registered as of the end of the registration time, the CEC may extend the nomination period for 20 days. I am, of course, clowning about it now but, they can include this norm in their work as well if they decide to hedge their bets since zero is also less than two.

But I don’t think they will take the trouble. They will act in accordance with Article 66-1 of the electoral law. So, the CEC will determine the time frame for nominating the candidates and taking the state language test, it will determine how the election campaign will proceed, when the money is to be given, when the registration of the candidates is to be conducted, etc.

This, obviously, is not heartening to me because it demonstrates clearly how arbitrarily we interpret our Constitution. Regard, in 2017, they made some epoch-making amendments. Now, the law can introduce any kind of additional requirements to the candidates, bar self-nominees… This is truly a know-how. To shove the constitutional norms in the electoral law bypassing the Constitution… How clever is that!

Therefore, I believe that such elections are but an imitation of democracy and have nothing to do with the democratic procedures. The authorities are simply trying to cover these elections’ authoritarian nature under the democratic wrappings.