KAZAKHSTAN: TROUBLING NGO LAW UNDER CONSIDERATION

UNCLAS ALMATY 001838

SIPDIS


NOTE BY CIB: DO PROCESS AS IS PER BROOKE SUMMERS.

DEPARTMENT FOR EUR/CACEN (JMUDGE),DRL/PHD (PDAVIS)

SENSITIVE

E.O. 12958: N/A
TAGS: PGOV PHUM EAID KZ POLITICAL
SUBJECT: KAZAKHSTAN: TROUBLING NGO LAW UNDER CONSIDERATION

REF: Almaty 1709 (EXDIS)


1. (SBU) Summary: Draft legislation currently under
consideration in the Kazakhstani parliament has the
potential to severely restrict the activities of NGOs,
particularly those receiving foreign assistance. U.S.
implementing partners are mobilizing to fight the draft,
which legal experts have roundly criticized. The
legislation would require all non-commercial organizations
to notify local authorities ten days before all events;
prohibit a broad range of activities; mandate local
government approval for any foreign funding of Kazakhstani
organizations; institute a two-step registration
requirement, including the re-registration of all
international NGOs; forbid non-Kazakhstanis from heading
branches or representative offices of international NGOs;
forbid international NGOs without an office in Kazakhstan
from providing any assistance to local partners; and
institute an annual reporting requirement for international
NGOs. Post is actively engaging the GOK to push for
rejection of the entire package of legislation. End
summary.

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Draft Legislation Introduced
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2. (U) On April 20, a plenary session of the Mazhilis (lower
house of Parliament) agreed to consider a package of draft
legislation dealing with non-commercial organizations. The
legislation is designed to increase state control over NGOs,
particularly those receiving foreign assistance. The two
items, a draft law "On the Activities of Branches and
Representative Offices of International or Foreign Non-
Commercial Organizations in the Republic of Kazakhstan" and
a package of related amendments, were introduced by five
Mazhilis members.


3. (SBU) The five sponsors are E. Abylkasymov (the
instigator of the investigations of 33 U.S.-funded NGOs),S.
Boyarkiy, N.G. Itemgenov, V.N. Kotovich, and M.V.
Troshikhin. The fact that the legislation was introduced by
Mazhilis members rather than by a ministry or the
Presidential Administration initially gave some hope that
the GOK did not support it. Ambassador's subsequent
conversations (reftel) revealed that the GOK, if not the
instigator of the measures, now supports them.

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Immediate Negative Reaction
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4. (SBU) The NGO community both in Kazakhstan and abroad has
mobilized to fight the legislation. Several working groups
have been formed to analyze the drafts, devise a legislative
strategy, and call public attention to the potential impact
of the legislation. At the suggestion of their
representatives in Kazakhstan, the heads of eight NGOs
(Freedom House, IRI, NDI, Internews, IFES, International
Center for Non-for-Profit Law, ABA-CEELI, and OSI) sent an
open letter to the Speaker of the Mazhilis on May 9 calling
on him to reject the draft legislation in its entirety. The
director of Freedom House in Kazakhstan also spoke out at a
May 10 roundtable in Almaty, attracting local press coverage
with his criticism of the legislation.

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Initial Analysis of the Provisions
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5. (SBU) Analysis produced by ICNL, Penal Reform
International, and ODIHR (early draft) has been critical of
all provisions of the draft legislation. Consensus is that,
if adopted as written, the legislation would severely hinder
international assistance and stifle the development of civil
society in Kazakhstan. Although many of the more
restrictive measures apply only to representative offices or
branches of foreign/international NGOs, additional reporting
and registration requirements would also hamper the work and
development of local NGOs.


6. (SBU) Drawing on the analysis produced to date, post has
identified the following areas of concern in the draft
legislation:
Notification requirement: The drafts require all
organizations, both Kazakhstani and foreign, to notify local
executive bodies at least ten days before all planned
activities; to provide information about "number and
composition" of participants and copies of materials; and to
permit access for local authorities. This would severely
limit the ability of NGOs to organize events expeditiously,
would create an enormous logistical burden for NGOs, and
would result in unmanageable administrative burden for local
authorities. It would also provide local authorities with
overly broad leeway to object to activities, as the list of
unacceptable goals is extremely vague (see below). Failure
to notify would result in disproportionate sanctions,
starting with a $1500 fine and possibly closure.
International practice is generally that governments can
only require organizations acting with state support to
report the details of their activities to the state.

Broad and vague grounds for refusal of registration:
Organizations are prohibited from engaging in a number of
activities. Some prohibitions are so vague that they could
be cited as the basis for refusing to register any type of
organization. For example, the draft prevents organizations
from engaging in activities aimed at "other consequences not
desirable for Kazakhstan." Other provisions are also open
to broad interpretation, including one section that equates
holding "unauthorized meetings" with efforts to exacerbate
the social and political situation in Kazakhstan. These
provisions would give the Ministry of Justice unlimited
authority to deny registration, and would give local
authorities broad leeway to act against registered
organizations.

Limitations on funding: The drafts would require foreign
and international NGOs to obtain the approval of local
executive bodies in order to provide funding to local
organizations. This constitutes an unacceptable restriction
on freedom of association, as it would give local
authorities broad leeway to monitor and restrict the
activities of local organizations. Such a requirement would
severely limit the ability and willingness of foreign
assistance providers to provide assistance across the full
range of political, economic, and social programs. Some
NGOs are also concerned that it could exacerbate corruption
by creating the opportunity for local officials to extract
assistance funds for themselves.

Registration requirements: All non-commercial organizations
are already required to register with the Government of
Kazakhstan to operate. The drafts would add a prerequisite
step to registration, "accreditation" by the Ministry of
Justice. This requirement is redundant, achieves no
identifiable goal, and gives the Ministry of Justice
unlimited authority to request "additional materials" and
prolong the decision process indefinitely. In addition, the
requirement for all branches and representative offices of
foreign NGOs already operating in Kazakhstan to re-register
within three months is an unjustifiable burden and will be
seen as an effort to eliminate politically unfavorable
organizations.

Restrictions on citizenship: The drafts would make only
Kazakhstani nationals eligible to be heads of branches or
affiliates of foreign NGOs in Kazakhstan. This measure
contradicts the International Covenant on Civil and
Political Rights by unduly discriminating against aliens.
Kazakhstani legal experts also believe it contradicts
Article 12 (4) of the Constitution of the Republic of
Kazakhstan.

Requirement to operate only through local offices: This
would prevent a wide range of donor organizations based
abroad, working to support the Government of Kazakhstan's
own reform goals, from providing assistance to local
organizations. International NGOs would be forced either to
undertake the unnecessary expense of establishing an office
in Kazakhstan, or cut off funding. Transparency of such
U.S.-funded assistance already exists, as the U.S.
government provides information about all assistance
partners, not just those based in Kazakhstan, in an annual
diplomatic note to the Government of Kazakhstan.

Annual reporting requirement: While many countries have
reporting requirements for all organizations that benefit
from tax exemptions, the requirement in this draft
legislation applies only to branches and representative
offices of foreign NGOs. It is therefore discriminatory
because these organizations are subjected to greater
scrutiny than other non-commercial organizations. In
addition, the provision permitting verification of the
published information by the "authorized public bodies"
would create the opportunity for endless audits and
investigations.


7. (SBU) An Explanatory Note issued with the draft
legislation made reference to a number of European laws as
justification for these measures. These references did not
accurately reflect the content of the legislation cited.
For example, the Spanish law cited refers to the fact that
NGOs are not allowed to pursue terrorism or other illegal
activities; it is used to justify a provision that would
prohibit a much wider range of activities. The Polish law
in question stipulates that only Polish citizens can found
an association; it does not place limits on the citizenship
of leaders, as the drafters of the Kazakhstani legislation
claim. The French Law on Contracting to Associate does not
require government approval of funding to NGOs; in fact, it
explicitly states the opposite.

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Comment
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8. (SBU) Comment: Rather than being grounded in European
principles, this draft legislation appears to be inspired by
the Uzbek model. The Ambassador has raised our concerns
with the GOK on several occasions, beginning the day the
legislation was announced. AID has also worked actively to
disseminate information about the draft law to implementing
partners, gather their feedback, and support their efforts
to convey their views to the GOK. We will continue to
emphasize to the GOK that the adoption of this legislation
would have a ruinous effect on the development of civil
society and would severely hamper our assistance efforts.
End comment.


9. (U) Dushanbe minimize considered.

ORDWAY


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