Eugene Huskey – Plebiscitarianism and Constitution-Making: The December 11, 2016 Referendum in Kyrgyzstan

In a referendum that generated fierce opposition from critics of Kyrgyzstani President Almazbek Atambaev, voters approved 26 revisions to Kyrgyzstan’s constitution on December 11, 2016.[i]  It was the seventh constitutional plebiscite since the adoption of the country’s original post-communist constitution in May 1993, making Kyrgyzstan the regional leader in employing the referendum to change its basic law.[ii]  Sunday’s constitutional referendum was paired with voting for local assembly elections in Kyrgyzstan’s 21 cities, elections that gave a plurality of seats to candidates from President Atambaev’s party, the Social Democrats.

With only a year remaining in his single, six-year term, President Atambaev had presented the amendments to the nation as a means of “idiot-proofing” the Constitution, that is, introducing further safeguards to ensure that the office of the presidency would not be abused by his successors.[iii]  Many elements in the country’s political class and civil society, however, found his explanations unconvincing.  In an unprecedented move, Atambaev’s former colleagues in the Interim Government of 2010–among them former President Roza Otunbaeva and Omurbek Tekebaev, the de facto father of the 2010 Constitution–signed a collective letter condemning any attempt to revise the constitution before 2020, the date set by the Interim Government for the earliest constitutional revisions. President Atambaev responded almost immediately to the letter with an intemperate speech, the harshest of his presidency, which accused his former colleagues of spreading “malicious lies.” He then reminded them that they could be held to account legally for their misdeeds in office six years earlier.  He concluded by assuring the nation that he had no intention of seeking any formal political post after his departure from the presidency in 2017.[iv]

Besides regarding the plebiscite as premature, many critics of the President objected to specific amendments proposed to the Constitution.  Some revisions strengthen the powers of the prime minister vis-a-vis president and parliament by granting the head of government the sole authority to remove ministers as well as local and regional heads of administration.  The prime minister and his deputy will also be able to retain their seats in parliament.  Previously the prime minister and deputy prime minister had had to relinquish their parliamentary seats on assuming executive office.  The referendum included only one seemingly innocuous revision to the presidency itself—changing the name of the presidential defense council to the security council.  Given the existing authority of Kyrgyzstan’s president, which is based largely on his direct popular mandate and his appointment and oversight of the power ministers, the enhancement of the prime minister’s office should produce more complex challenges of cohabitation than had existed heretofore.

Another basket of constitutional amendments sought to increase the stability of the Government in a country that had seen six prime ministers in the first six years of what had been touted as a “parliamentary republic.”  In order to leave a ruling coalition, the revised constitution will now require two-thirds of a party’s deputies to approve the rupture in a written ballot.  Although this amendment and some others were reasonable responses to the inefficiencies that plagued the current system, many critics viewed the enhancing of the prime minister’s role as a means of preparing a landing place for President Atambaev or a Social Democratic politician who would be under his influence.

In order to win support for the referendum from moral traditionalists and ethnic Kyrgyz nationalists, whose ranks often overlap, President Atambaev and his supporters included several amendments that responded to the rising populist tide in the post-communist world and beyond.  This effort included a reworking of Article 1 of the 2010 Constitution, which contained a simple, one-sentence statement of the country’s basic principles, notably the state’s secular, law-based, and democratic character.  The proposed alternative had nine separate points, several of which echoed nativist and socially conservative trends in Russia.  Among the country’s “highest values” in the newly-revised Constitution are “love of country,” “the development of the national [Kyrgyz] language and culture,” and, perhaps most worrying for the opposition, “a respectful attitude toward the country’s history,” a phrase that the Russian authorities have used to condemn domestic and foreign critics and that the Kyrgyzstani government could potentially employ to silence unpopular interpretations of events such as the inter-ethnic violence in Osh in 2010. The constitutional revisions also included an explicit ban on gay marriage.

As part of an ongoing backlash against international criticism of the Kyrgyzstani government’s handling of the violence between ethnic Kyrgyz and Uzbeks in Osh, President Atambaev included among the constitutional amendments a revision to Article 41.  That article had allowed citizens of Kyrgyzstan to appeal to international human rights bodies if they believed their rights had been violated.  If the international tribunal upheld their complaints, the Kyrgyzstani government was obligated to restore their rights or compensate them for damages.  In the runup to the referendum, President Atambaev had been openly critical of the decision of the UN’s Committee on Human Rights, which called on the government of Kyrgyzstan to free an ethnic Uzbek condemned to life imprisonment.[v]

Constitutional Referendums in Kyrgyzstan[vi]

Although the proposed constitutional amendments were approved by an almost 80 percent Yes vote (see table above), this result was a record low for Kyrgyzstan.  Moreover, only 42 percent of the population turned out to the polls on a day when both the referendum and local elections were on the ballot.  Thus, only slightly more than a third of eligible voters in Kyrgyzstan voted for the constitutional revisions.  Turnout was especially low (28%) in the southern city of Osh, where almost half of the population is ethnic Uzbek.  Taken together with the historically low turnout, a tally of invalid ballots that reached five percent suggests a considerable measure of popular discontent with President Atambaev’s decision to revise the 2010 Constitution,[vii] especially given the herculean—and in some cases inappropriate—efforts of the President’s team to get voters to the polls to support the referendum.[viii]  As Omurbek Tekebaev observed, Atambaev’s political protegees had every reason to go to the mat for him in getting out the Yes vote, recognizing that if the referendum failed, he may have followed the example of de Gaulle and resigned from office, in which case their own futures would have been uncertain.[ix]

The passing of the referendum and the results of local elections will be discouraging reminders to opposition-minded forces in Kyrgyzstan that President Atambaev and his Social Democratic Party appear to be consolidating their hold on the government and the state.[x]  In recent years, a frustrated opposition has organized two popular rebellions that unseated presidents—in 2005 and 2010—but in those cases the ruling elite was divided along North-South lines, and so the opposition was able to tap into regional resentment.  No such easily identified source of political support exists today for the political opposition, and therefore taking to the streets for anything more than symbolic protests would not seem to be an option.  Those who stayed home on election day, or spoiled their ballots, are unlikely to form an easily mobilized force to counter the rise of the Social Democrats as the country’s dominant—if not yet hegemonic—party.  The question now is whether the constitutional revisions to governing institutions will provide the promised efficiencies without undermining the political pluralism that has distinguished Kyrgyzstan from its authoritarian neighbors.

Notes

[i] The amendments were presented to voters as a single package, and so only a Yes or No vote on the entire array of proposed revisions was possible.

[ii] For a comparison of constitution-making in post-communist countries, see Anna Fruhstorfer and Michael Hein, Constitutional Politics in Central and Eastern Europe: From Post-Socialist Transition to the Reform of Political Systems (Wiesbaden: Springer, 2016).

[iii] Eugene Huskey, Kyrgyzstan – President Atambaev Seeks to “Idiot-Proof” the Constitution by Reducing the Power of the Presidency, Presidential Power Blog, 21 January 2016. http://presidential-power.com/?p=4352  This post discusses some of the changes to the legal system included in the constitutional revisions, which are allegedly designed to root out corruption in the judiciary but will certainly lead to greater executive control of the courts.  For other changes see Bruce Pannier, “What’s in Kyrgyzstan’s Constitutional Referendum?” Radio Free Europe/Radio Liberty, 8 December 2016.  http://www.rferl.org/a/kyrgyzstan-constitutional-referendum-whats-at-stake/28164053.html

[iv] Anna Kapushchenko, “Atambaev raskritikoval Otunbaevu i eks-ministrov za nedovol’stvo popravkami k Konstitutsiiu,” Kloop Media, August 31, 2016. http://kloop.kg/blog/2016/08/31/atambaev-raskritikoval-otunbaevu-i-eks-ministrov-iz-za-popravok-v-konstitutsiyu-glavnoe/  In the middle of President Atambaev’s speech, which was given on Independence Day on Bishkek’s main square, former President Otunbaeva demonstratively walked off the stage to protest Atambaev’s attacks on her and other members of the Interim Government.

[v] See United Nations Human Rights Committee, Views Adopted by the Committee under Article 5 (4) of the Optional Protocol concerning communication No. 2231/2012,  CCPR/C/116/D/2231/2012, 11 May 2016.

[vi] Tat’iana Kudriavtseva, “Kak v Kyrgyzstane khodili na referendumy po konstitutsii,” 24.kg, 12 December 2016.  http://24kg.org/obschestvo/41447_kak_v_kyirgyizstane_hodili_na_referendumyi_po_konstitutsii/  The table of referendum results provided in this article, based on information from the Central Election Commission, mistakenly includes a 75 percent Yes vote for the 2007 referendum, but that is the percentage of eligible voters, not those actually voting, which is the method used for other years in the table.

[vii] The head of the Central Election Commission admitted to being surprised by the high percentage of invalid ballots and suggested that the sensitivity of the new electronic counting machines could have been at fault.  “Glava Tsentral’noi izbiratel’noi komissii rasskazala, chto ee udivilo na referendume,” Sputnik Kyrgyzstana, 12 December 2016.  http://ru.sputnik.kg/politics/20161212/1030753631/mnogo-nedejstvitelnyh-byulletenej-dlya-nas-neozhidannost.html The recent introduction of biometric identification for voters, which required citizens to get finger-printed, was one reason for the lower turnout rate.  A significant share of Kyrgyzstani voters had not gone in for biometric registration before the referendum, and even some who did register did not find their biometric registration on record at the voting precinct.  “Institut ombudsmena vyiavil nekotorye narusheniia izbiratel’nogo prava na vyborakh nakanune,” Akipress.org, 12 December 2016.  http://kg.akipress.org/news:1350601?from=kgnews&place=newstopic

[viii] There were reports, for example, of teachers employed by the state serving as “get out the vote” teams for the Yes camp.

[ix] “Omurbek Tekebaev: ‘Atambaev sposoben na postupki.  Esli referendum ne proidet, on uidet, kak de Goll’’,” Novye litsa, 29 October 2016.  http://www.nlkg.kg/ru/interview/omurbek-tekebaev-atambaev-sposoben-na-postupki-esli-referendum-ne-projdet_-on-ujdet_-kak-de-goll-

[x] In the weeks before the referendum,the Ata Meken Party’s criticism of the proposed constitutional changes led to the collapse of the ruling coalition and the effective expulsion of Ata-Meken from its ranks.  “Koalitsiia: Ushli, chtoby vernut’sia…no bez ‘Ata Mekena’,” KirTag, 25 October 2016.  http://kyrtag.kg/standpoint/koalitsiya-ushli-chtoby-vernutsya-no-bez-atamekena-/

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