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Kyrgyzstan: The Challenge of Judicial Reform
Kyrgyzstan: The Challenge of Judicial Reform
Table of Contents
  1. Executive Summary
Warning Signs on the Road to Elections in Kyrgyzstan
Warning Signs on the Road to Elections in Kyrgyzstan
Report 150 / Europe & Central Asia

Kyrgyzstan: The Challenge of Judicial Reform

Kyrgyzstan’s judiciary is failing to act as a neutral arbiter of political disputes or as a fair channel for economic arbitration.

Executive Summary

Kyrgyzstan’s judiciary is failing to act as a neutral arbiter of political disputes or as a fair channel for economic arbitration. It requires significant reform to gain the trust of the public and to assert its role as an independent branch of government. A failure to achieve reform would make it impossible to develop a pluralistic and stable political system over the long term and also undermine attempts to tackle widespread corruption and encourage development. Unless the government allows greater self-governance for lawyers and independence for judges, no amount of education or piecemeal reforms will create an effective system.

A politicised judiciary was at the heart of the instability that rocked Kyrgyzstan in 2005. The courts had been used extensively by former President Askar Akayev to suppress opposition and remove political challengers. Judges proved unable to resolve the political disputes and electoral malpractice that characterised the 2005 parliamentary elections. Popular protests against court decisions contributed to the subsequent rebellion that overthrew Akayev and threatened to destabilise the country. Despite rhetorical commitments to judicial independence, the new regime of President Kurmanbek Bakiyev has continued to use the courts for its own political ends. During parliamentary elections in 2007, the courts were again used to deregister unwanted opposition parties.

This politicisation stems in part from a Soviet legacy that has proved difficult to overcome. In the Soviet system, the judiciary was completely subordinate to the political regime and was also largely subservient to the prosecutor’s office and the law enforcement agencies. Since independence, the judiciary has undergone constitutional and institutional reform, but much of the old ethos remains, particularly among the older generation of officials. Roughly 98 per cent of criminal cases result in convictions, for example, not least because of the respect judges instinctively give to any case brought by the prosecutor. Developing a judicial culture that values its independence highly remains a challenge.

The independence of the judiciary is also undermined by constitutional and institutional problems, which give the presidential administration considerable control over the selection of judges and their promotion, for example, and by funding methods, which provide too much control to the department of courts, which is part of the justice ministry. Informal methods of control remain the most significant problem, with so-called “telephone justice” – where political figures call judges to pressure them to deliver particular verdicts – still widespread in political cases.

For ordinary people the greatest problem is the high level of corruption in the justice sector. Bribery has undermined public confidence and has also worked against attempts to improve the professionalism of lawyers. Many lawyers complain that their main role is not to represent clients vigorously but to facilitate this endemic corruption. Part of the problem is the very low level of state funding and poor salaries, which in effect force judges to take bribes. The government has very limited revenue, but the judiciary should at least have the same priority as the law enforcement agencies. More efficient budgetary processes and spending could also maximise the impact of available funds.

A lack of faith in the independence of judges, widespread corruption and the extremely slow speed of many legal processes have all fuelled public disaffection with the court system. Some people have turned elsewhere to resolve disputes, particularly in civil matters. Informal local leaders, many with criminal connections, are called upon to arbitrate in some disputes. Others seek satisfaction through informal use of religious codes, such as Sharia law, which is not recognised in the legal system.

Despite some positive moves from the government, including improvements in sentencing policy and the abolition of the death penalty, there has been too little reform. Restoring public faith is a key element in state-building and an important step in undermining support both for non-state criminal groups and religious extremist parties. Most of the initiative for reform will have to come from inside the justice sector. There is no incentive for the political establishment to increase the independence of the courts, but concerted efforts by lawyers, judges and more enlightened political leaders can improve the situation slowly.

The international community can play a small but important role in this, but so far few international projects have made a real impact. A new U.S.-funded program has high aspirations but is unlikely to accomplish much unless it receives serious political support. The most important role for international counterparts is to assist in training and opening up Kyrgyz judges and other legal professionals to broader international practice and experience in achieving the rule of law.

Bishkek/Brussels, 10 April 2008

Supporters of detained opposition politician Omurbek Tekebayev, the leader of the Ata-Meken party, hold a rally in Bishkek, Kyrgyzstan, on 26 February 2017. REUTERS/Vladimir Pirogov

Warning Signs on the Road to Elections in Kyrgyzstan

Recent political protests in Kyrgyzstan signal the possibility of deeper trouble ahead of presidential elections in November. For the first time in the country’s pro-independence history, there is real competition for leadership in Central Asia’s only semi-functioning democracy.

What has led to the heightened political tensions in Kyrgyzstan?

On 26 February, authorities arrested Omurbek Tekebayev, the leader of the opposition party Ata-Meken, on charges of fraud and corruption. That incident sparked peaceful protests in Bishkek, including at the capital’s Ala-Too Square, the site of earlier demonstrations that ultimately led to the ouster of two presidents. The past week’s demonstrations were modest, however protests in Kyrgyzstan have previously started small and then snowballed. President Almazbek Atambayev’s government – and especially the judiciary – should ensure that its actions ahead of the November ballot are above reproach in order not to aggravate the already tense situation. Kyrgyzstan’s constitution limits the president to a single term in office, preventing Atambayev from running for re-election. All eyes are now on how the government and opposition conduct themselves.

Tekebayev has not declared interest in contesting the election, yet he was clearly an irritant to the president as in recent months he claimed the president’s wealth was hidden off-shore. Nevertheless, the manner of his arrest was an ill-advised demonstration of power bound to garner an angry reaction from the opposition. Tekebayev was reportedly detained at Bishkek’s international airport, at around 3 a.m. by officers in plainclothes. The next day, a court ordered him to be held for two months for alleged corruption. Two other members of Ata-Meken were detained in recent weeks as part of an alleged corruption investigation. Ata-Meken, established after the collapse of the Soviet Union, has been a permanent fixture on the political scene since with varying degrees of power and popularity. Tekebayev has held a series of high profile posts under previous administrations and has never been far from the headlines.

Tekebayev’s detention seems to fit a familiar pattern in Kyrgyzstan: arrests of opposition figures, lack of due process, allegations of corruption on both sides, dubious documents purporting to prove wrongdoing, and the apparent use of criminal investigations to settle political scores. Much of this is possible because political reform in Kyrgyzstan, while ahead of its authoritarian neighbours, has been superficially and selectively implemented.

Do you believe that the protests could spark a nationwide political crisis or trigger violence, as in 2005 and 2010?

The successive ousters of President Askar Akayev in 2005 and President Kurmanbek Bakiyev in 2010 were traumatic events for the country. Some of the factors present then are absent today, such as widespread popular discontent with the head of state and his family. Yet President Atambayev’s strategy is risky. Popular opinion can turn if injustices are perceived. Atambayev needs to make sure there is a definitive marker between his administration and that of his predecessors. The arrests of opposition figures in an election year should be carefully weighed up against the perception that they are politically motivated and an abuse of power. The judiciary should ensure due process and impartiality.

The overthrow of two presidents never really revolutionized politics in Kyrgyzstan. Even after the spate of ethnic violence in Osh in 2010, Kyrgyzstan did not see the emergence of a new political elite less tainted by corruption. The country remains divided ethnically between Kyrgyz and Uzbeks, and geographically between the north and south.

For many politicians and officials, it has been business as usual. Kyrgyzstan’s regions remain poor and underfunded, services are patchy at best, and corruption is rife at all levels of society. High unemployment is masked by migration, and there has been little economic development to speak of. The government attempts to paper over the cracks but has not mustered the political will to address difficult issues such as ethnic tensions, marginalization and exclusion. As a result, Kyrgyzstan remains politically fragile and prone to potential unrest.

What are the regional and geopolitical implications of uncertainty in Kyrgyzstan?

Kyrgyzstan is, in its own way, a democratic model in Central Asia, a region dominated by authoritarian states. Its neighbours often point to Kyrgyzstan as a chaotic place when in reality it is the only Central Asian republic that has attempted to dismantle the post-Soviet legacy of strong-man rule. Although the journey to democracy will continue to be a difficult one, the effort is laudable.

Russian influence continues to grow as the Kyrgyz government depends on Moscow for financial aid and security assistance. During a visit to Kyrgyzstan this week, Russian President Vladimir Putin stressed the importance of maintaining an air base in the country to ensure stability and security in the region. China is also a key strategic partner, and considers the country a useful gateway to Central Asia. Both Moscow and Beijing are concerned about any potential for wider unrest, the rise of Islamist groups and the threat of radicalisation in Kyrgyzstan. In August 2016, the Chinese embassy was targeted by a suicide car bomber – an attack that the government blamed on groups fighting in Syria.

The success or failure of Kyrgyzstan will have important regional implications. Kyrgyzstan’s legacy of violent upheaval should serve as a cautionary tale. The fear that it could happen again acts as a deterrent for some domestic actors, however the underlying causes that sparked previous electoral violence have not been addressed. In the past, Kyrgyzstan’s problems have been contained within its borders, but that can no longer be guaranteed. Neighbours Kazakhstan, Uzbekistan and Tajikistan should be mindful that an orderly Presidential election is in their interests too.

What are the chances for a peaceful transition of power in 2017?

A peaceful transition is still possible, but much will depend on the actions of the government and opposition parties between now and November. The election should be an opportunity to strengthen democracy and stability, and could mark a milestone on Kyrgyzstan’s road towards political maturity. All political actors, and the government particularly, should be careful not to squander this opportunity for the sake of settling political scores.

The European Union and the Organization for Security and Cooperation in Europe can play important roles by pushing for meaningful reforms now and over the longer term. In part, this means offering continued support for institution building. It will also require frank and timely discussions with the Kyrgyz government and political parties about how the upcoming presidential ballot – and the behaviour of the government and the opposition during the run-up to the election – will affect Kyrgyzstan’s credibility as a state moving, albeit tentatively, toward democracy.