Tokayev`s amendments risk remaining declarative

Kazakh President Kassym-Jomart Tokayev, who announced the referendum on May 5, justified the need for amendments as constitutional reform. It is aimed at a comprehensive transformation of the entire model of the state, providing for the transition from a “super-presidential” form of government to a presidential one, where the role of the parliament and the accountability of the government to it are strengthened.

On June 5, voters will vote for changes to 33 of the current 99 articles of the constitution. Tokayev argues that the changes will limit the powers of the president and create conditions for a balance between the branches of government.

The transition to a mixed majority-proportional model of elections of deputies to the Majlis and regional maslihats (municipalities), the re-establishment of the Constitutional Court, which was liquidated in 1995, and the consolidation of the status of the Commissioner for Human Rights at the constitutional level, are envisaged. The Law of the Republic of Kazakhstan “On the Commissioner for Human Rights in the Republic of Kazakhstan” was adopted in December 2021 at the insistence of Tokayev. Prior to this, the Ombudsman was appointed and was accountable to the President.

Since the adoption of the first constitution in 1995, it has been amended four times - in 1998, 2007, 2011 and 2017. In 2000 and 2017, Nazarbayev made about a hundred amendments to the constitution in order to maintain his influence on the political life of Kazakhstan. He approved for himself the privileges as the founder of the state, the first president, the father of the nation.

Tokayev's constitution forbids the president from being a member of a political party. The President will now nominate 10 members to the Senate instead of 15. Five candidates will be nominated by the Assembly of National Communities.

The chairman of both the constitutional and supreme courts will be approved by the parliament. Six members of the constitutional court will be nominated by the Mejlis (lower house of parliament), three by the senate (upper house of parliament), four members of the Constitutional Court will be presented by the president.

According to the amendments, the registration of parties is simplified. A ban on membership in parties and trade unions is introduced for chairmen and judges of the constitutional court, the supreme court and other courts, chairmen and members of the central election commission, the audit commission of the parliament, military personnel, employees of national security and law enforcement agencies.

The new constitution will bar the president's close relatives from holding political and leadership positions in the public sector.

The land and its subsoil are declared the property of the people of Kazakhstan. The need to reform the state system of Kazakhstan was highlighted after the January protests. Already on March 16, Tokayev announced the need for political reforms. A working group consisting of leading jurists and lawyers was created, which on April 22 presented a draft amendments and additions to the constitution for political reforms.

An analysis of Tokayev's constitutional reforms leads to the conclusion that the current president really wants change in order to achieve a more sustainable society by creating a balance and counterbalances of the interests of individuals, groups and branches of power. But there is a threat that the changes will acquire a declarative essence and be blurred during their implementation, that is, in practice.

The problem is that Tokayev's referendum provides for some changes in the superstructure, but not in the basis of state-society relations.

It turns out that Tokayev's team does not have a program of changes in various areas, which should be combined into a single Roadmap with clear goals and objectives, with specific dates and results for all members of society. The absence of such a comprehensive document, where changes to the constitution are just a part of the reforms of a legal and technical nature, but this is not a reform, as they want to present it in Tokayev's team. In fact, constitutional changes without a Roadmap are like putting the cart before the horse.

In the former non-democratic post-Soviet countries, there are enough examples when completely democratic constitutions were adopted, which then turned into a declarative document that means nothing for the life of the country, except that it is used only for the inauguration of presidents.

For example, in Azerbaijan there is a Constitutional Court and an ombudsman institution accountable to parliament, but the country is breaking records in terms of the number of violations of the constitutional rights of citizens and human rights. The people, according to the constitution, are the source of power, but in fact they are not.

On January 25, 2017, Kazakh President Nursultan Nazarbayev delivered a nationwide televised address in which he announced a sharp weakening of his powers and a transition to a more parliamentary form of government.

Nazarbayev stated that the super-presidential model had accomplished the task of "overcoming the enormous difficulties of state formation."

He said that he would transfer some of his powers to the parliament and government, calling it "a serious redistribution of power and the democratization of power and the political system as a whole."

According to the changes, 40 areas of responsibility were delegated by the presidential administration to the executive branch or parliament. According to Nazarbayev, the parliament will play a more important role in the formation of the government, which will increase the accountability of the cabinet.

The amendments, and there were 26 of them, were introduced in accordance with the law "On amendments and additions to the Constitution of the Republic of Kazakhstan", signed by Nursultan Nazarbayev on March 9, 2017.

The adopted amendments to the Constitution, which are of a technical nature without a program of action that were supposed to level the urgent problems of the country, led to the logical events of January 2022.

One can most expect that Tokayev's amendments will somewhat reduce tension in society, but will not lead to fundamental changes, without which it is impossible to include the whole society in the process of rapid democratic development of Kazakhstan, which has all the resources for this.