Kyrgyzstan Weakens Legal and Social Guarantees for Ex-Presidents amid Continuing Confrontation Between the Current and Former President

My previous post for this blog illustrated that approximately half of the post-Soviet states modeled their laws on immunity for ex-presidents on Russian legislation, which was put in place at the very end of 1999 when Boris Yeltsin transferred power to Vladimir Putin.[1]  In some cases, post-communist states copied provisions from the Russian Federation law word-for-word, a phenomenon known as diffusion by imitation.  In an important related study, whose results were just announced, Edward Lemon has discovered that “[a] whopping 79% of Kyrgyzstan’s and 56% of Tajikistan’s laws [on extremism] are identical to the Russian law (compared with 4% for Kazakhstan, 5% for Uzbekistan).”[2]  As Lemon’s work suggests, given the availability of software that makes it easy to do textual comparison, we are in a position to rigorously test the extent to which the Russian Federation has managed to shape the “legal space” in the Soviet successor states, especially in those countries that lie within what President Medvedev referred to in 2008 as Russia’s sphere of privileged interests.  

Comparing legislative practice allows us to assess not only the extent of policy diffusion but also the robustness of Soviet-era legacies.  My last post noted that Moscow’s role as law-giver was reminiscent of traditions from the Soviet-era, when a model law developed in the center served as a template for legislation in the 15 union republics.  When asked this month to justify Kyrgyzstan’s “plagiarizing” of Russia’s laws on extremism, Karima Amankulova, a spokeswoman for Kyrgyzstan’s Ministry of Internal Affairs, offered the following explanation.

“What some call plagiarism, others would label the unification of legislation.  The member states of the Commonwealth of Independent States develop model legislation and then countries may decide which norms they wish to implement [adopt as legislation].”[3]

Given Russia’s political prominence in the region and the depth of its technical expertise in legislative drafting, there is little doubt that Moscow still takes the lead in shaping model legislation.  The power of legacies and diffusion has its limits, however.  In the case of Kyrgyzstan, last year’s dramatic falling out between former President Almazbek Atambaev and his designated successor, Sooronbai Jeenbekov, led those in power in Kyrgyzstan to embrace some Russian-inspired norms on protections for ex-presidents while advancing others that diverge from the model established in Moscow. 

Following the arrest last year of Atambaev loyalists and calls for the prosecution of Atambaev himself—in part for his alleged involvement in fraudulent activities associated with the renovation of Bishkek’s heat and power generating plant—opponents of the former president launched efforts to strip all Kyrgyzstani ex-presidents of immunity from prosecution.[4]  These efforts took the form of parallel assaults in judicial and legislative institutions on the protections enjoyed by ex-presidents.  A lawsuit filed in the Supreme Court’s Constitutional Chamber resulted in an October 2018 decision that invalidated what the court concluded was a blanket immunity granted to former presidents.[5]  The court accepted the need for limited immunity as a means of protecting ex-presidents from baseless investigations, and at the same time it insisted that any procedures put in place to overcome immunity guarantees for ex-presidents “should be no less complex than those employed in impeachment proceedings for a sitting president…”[6]  The Constitutional Chamber also took the highly unusual step of instructing the country’s Minister of Justice and parliament to enact a corresponding statute.[7]   

Prior to the issuance of the Constitutional Chamber’s decision, a group of parliamentary deputies had submitted a bill removing all protections from criminal prosecution for former presidents.[8]   In the view of these deputies, as well as the complainant in the case before the Constitutional Chamber, ex-presidents should be on the same legal footing as ordinary citizens.  This bill passed its first reading in December 2018, but amendments adopted during the second reading introduced two critical changes to the legislation.  The first, which accords with the language of the Constitutional Chamber ruling, permits the removal of immunity from criminal prosecution for ex-presidents only if (1) the Procurator-General issues an accusation of wrongdoing [obvinenie] in connection with the commission of a grave crime [tiazhkoe prestuplenie] and (2) the parliament votes to strip the former president of immunity by a two-thirds majority.[9] These provisions brought the Kyrgyzstani law into close conformity with Russian legislation on the subject.[10]     

The second revision, however, departed decisively from Russian practice.  It denied ex-presidents the traditional package of publicly-funded social and financial benefits, including medical care, housing, a salary, and free transportation, if he or she chose to remain active in politics or return to government service.  In other words, the revised legislation sought to encourage future ex-presidents to pursue the kind of quiet, apolitical retirement that President Atambaev claimed he would enjoy upon leaving the presidency.

On April 4, 2019, Kyrgyzstan’s 120-member parliament passed the law with the above revisions by a vote of 111 to 4.  Among the four no votes were sponsors of the legislation, for whom the amendments introduced in the second reading afforded legal protections for ex-presidents that they believed were excessively generous.   Notwithstanding the misgivings of these deputies, President Jeenbekov signed the bill into law on May 16, and in so doing limited the protections that he himself would enjoy on leaving office in 2023, at the end of his single, six-year term.[11] 

Numerous commentators have argued that because the Kyrgyzstani Constitution prohibits the application of laws retroactively if they impose new obligations or additional responsibility [otiagchaiushchaia otvetstvennost’] on citizens, the first ex-president to whom the new legislation would apply is the incumbent, President Jeenbekov.  In this reading, former presidents Otunbaeva and Atambaev would continue to enjoy the full range of protections from criminal investigation and prosecution contained in the laws in force when they left the presidency.[12]  However, in an effort to extend the reach of the law to Otunbaeva and Atambaev, deputies included a provision in the legislation which insisted that the new rules would apply to any actions committed by a president since 2007—a provision that will surely provoke a challenge in the Constitutional Chamber.[13] 

By weakening immunity from prosecution for ex-presidents, Kyrgyzstan has not only aligned itself more tightly with the Russian model on criminal responsibility for former leaders, it has also moved the country closer to the norms championed by Western-oriented organizations such as the Venice Convention of the Council of Europe and the OECD.  Both of these organizations have advised post-communist countries against introducing broadly-worded immunity for politicians because it encourages corruption.[14]  Paradoxically, one of the most robust defenses of the values espoused by the Venice Convention and the OECD was made by Almazbek Atambaev in 2011.  In his words:

“It’s going to be hard to establish order in Kyrgyzstan unless we can show that there aren’t untouchables, and there will no longer be untouchables in Kyrgyzstan.  And that includes the president himself.  If I’m somehow involved in something I am prepared to be held to account.  I don’t need any immunity.”[15]

Former President Atambaev may be rueing these words today.     

In closing, it’s worth repeating that the leverage and linkages enjoyed by centers of geopolitical power have their limits as explanations of policy diffusion.  The recent legislative changes regarding immunity for ex-presidents in Kyrgyzstan appear to draw their primary inspiration not from Moscow or Paris or Washington but from mundane maneuvers in a domestic political game, a game in which a sitting president and his allies have been under assault for more than a year by a former president who is also their erstwhile patron.  If there is one broader lesson to be taken from the specifics of the Kyrgyzstani case, it is that protections for ex-presidents are only viable when former leaders observe reasonable political restraint in their presidential afterlife. 


[1] “Post-Communist Countries: Policy Diffusion relating to Immunity from Prosecution for Ex-Presidents.”  http://presidential-power.com/?p=9483

[2] https://twitter.com/EdwardLemon3/status/1125427216739966983

[3] AzattyqTV, May 9, 2019, at 9:20 mark.  https://rus.azattyq.org/a/nastoyaschee-vremya-azia-8-maya/29930014.html

[4] The investigation into wrongdoing in the repair of the power plant appeared to trigger the initiatives for stripping Atambaev and all ex-presidents of immunity, though Atambaev has been subject to calls for his prosecution for numerous scandals dating to his time in office, including the release of a powerful ethnic Chechen criminal kingpin, Aziz Batukaev. 

[5] Whereas sitting presidents are subject to impeachment in Kyrgyzstan, ex-presidents are not, and therefore because they were immune from both judicial and legislative responsibility, former presidents have arguably been in a more impregnable legal position than presidents.  In this regard, Kyrgyzstan has for some time differed from Russia, where, as noted below, ex-presidents have been subject to prosecution if certain procedural hurdles are overcome.

[6] Reshenie Konstitutsionnoi palaty Verkhovnogo Suda Kyrgyzskoi Respubliki, 3 oktiabria 2018 goda 06-r.  http://cbd.minjust.gov.kg/act/preview/ru-ru/9748/10?mode=tekst

[7] Some deputies insisted that the Constitutional Chamber exceeded its authority in giving these instructions to executive and legislative institutions.  See, for example, Bakyt Asanov, “Neprikosnovennost’ eks-prezidenta.  Chem reshenie suda vozmutilo ZhK,” Radio Azattyk, April 10, 2019.  https://rus.azattyk.org/a/kyrgyzstan-ex-president-parliament/29664302.html

[8] The bill was in fact a set of revisions to The Law on the Activity of the President, O garantiiakh deiatel’nosti Prezidenta Kyrgyzskoi respubliki, ot 18 iiulia 2003 no. 152.  http://cbd.minjust.gov.kg/act/view/ru-ru/1278

[9] Zhazgul’ Egemberdieva, “’Instrument protiv Atambaeva.’ Kak budet rabotat’ zakon o lishenii eks-prezidenta Kyrgyzstana neprikosnovennosti,” Nastoiashchee vremia, April 5, 2019. https://www.currenttime.tv/a/ex-president-kyrgyzstan/29863858.html

[10] In the Russian case, criminal cases against ex-presidents are initiated by the Head of the Criminal Investigative Commission rather than the Procurator-General, and only a majority of votes in each of the country’s two legislative chambers is needed rather than two-thirds approval.

[11] The Kyrgyzstani Constitution gives presidents 30 days to sign a law once it has been transmitted from the legislature.  For reasons that are unclear, in recent months President Jeenbekov has taken from 20 to 27 days to give his assent to legislation; in this case, he signed the bill into law on the 29th day. 

[12] Ekaterina Ulitina, “Podpishet li Zheenbekov zakon o lishenii eks-prezidentov neprikosnovennosti?” Vechernyi Bishkek, April 5, 2019.  https://www.vb.kg/doc/377646_podpishet_li_jeenbekov_zakon_o_lishenii_eks_prezidentov_neprikosnovennosti.html; Aidai Erkebaeva, “Pochemu lishenie neprikosnovennosti eks-prezidentov ne pomozhet privlech’ Atambaeva k otvetstvennosti,” Kloop, May 23, 2018.  https://kloop.kg/blog/2018/05/23/pochemu-lishenie-neprikosnovennosti-eks-prezidentov-ne-pomozhet-privlech-atambaeva-k-otvetstvennosti/  Among those disagreeing with this interpretation is the current head of Kyrgyzstan’s Security Council, Damir Sagynbaev, who insists that if Atambaev lost immunity he could be brought to justice.  According to Sagynbaev, “If there’s evidence, we’ll open a case.”  “Na Atambaeva mogut vozbudit’ delo, esli ego lishat immuniteta,–Sovbez,” Sputnik, 7 February 2019.  https://ru.sputnik.kg/politics/20190207/1043226413/atambaev-delo-immunitet-sovbez.html  

[13] Emil’ Sultanaliev, “Parlament okonchatel’no odobril zakonoproekt o sniatii neprikosnovennosti s eks-prezidenta,” Kloop, April 4, 2019.  https://kloop.kg/blog/2019/04/04/parlament-okonchatelno-odobril-zakonoproekt-o-snyatii-neprikosnovennosti-s-eks-prezidenta/ Curiously, although the Constitution in place before 2007 granted immunity to presidents, since that time immunity provisions have only appeared in the Law on the Activity of the President and not in the Constitution itself. Adding an additional wrinkle to the uncertainty about the impact of the new law are revisions to the country’s Criminal Procedure Code (CPC) that came into effect in January of this year.  Article 478, paragraph 4 of the amended CPC, which was adopted well before the Constitutional Chamber decision or the new law on immunity, places the decision on bringing an ex-president to justice in the hands of the country’s Procurator-General.

[14] Kyrgyzstan (Promezhutochnyi doklad) [March 2019], Chetvertyj raund monitoring Stambul’skogo plana deistvii po bor’be s korruptsiei.  OECD,  Set’ po bor’be s korruptsiei dlia Vostochnoi Evropy I Tsentral’noi Azii.  www.oecd.org/corruption/acn ; Zakliuchenie po proektu Konstitutsii Kyrgyzskoji Respubliki, Zakliuchenie No 582/2010, 8 iiuniia 2010 g.  Evropeiskaia komissiia za demokratiiu cherez pravo (Venetsianskaia komissiia).  https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2010)015-rus

[15] Kubanychbek Zholdoshev, “Nuzhna li eks-prezidentam neprikosnovennost’?” Radio Azattyk, March 1, 2019.  https://rus.azattyk.org/a/kyrgyzstan-pravo-neprikosnovennost-ex-prezidentov/29184972.html  Iskhak Masaliev, a sponsor of the 2018 bill amending the immunity provisions, noted that there were efforts from 2011 to 2014 to strip ex-presidents of immunity from prosecution, but none was successful.  Kybanychbek Zholdoshev, “100 golosov ‘za’. Kogo iz eks-prezidentov mogut lishit’ neprikosnovennost’,” Radio Azattyk, December 14, 2018. https://rus.azattyk.org/a/kyrgyzstan_ex-president_neprikosnovennost/29655573.html  Curiously, although the Constitution in place before 2007 granted immunity to presidents, since that time immunity provisions have only appeared in the Law on the Activity of the President and not in the Constitution itself.

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