Immunity from criminal prosecution for sitting presidents is a common feature of democratic as well as authoritarian regimes.[i] Shielding presidents from indictment and prosecution is designed to prevent members of the political opposition from weaponizing the criminal process and adding unduly to the already considerable burdens of political leadership. Besides, in most countries, there is a political remedy for presidential corruption or malfeasance—impeachment—which places the responsibility for the fate of an errant president in the hands of elected representatives rather than prosecutors or judges.
Less common in presidential or semi-presidential systems is immunity from criminal prosecution for ex-presidents.[ii] Here the logic is different and more likely to apply in places where democracy has yet to be consolidated. In these circumstances, immunity for ex-presidents can encourage leaders to leave office at the end of their constitutionally-mandated term without fear of losing their property, their freedom, or their lives. In a word, immunity lessens the incentive for incumbent presidents to use constitutional[iii] or unconstitutional means to hold on to power.
In the post-communist world, Russia was the first country to grant broad immunity protection to ex-presidents. The measure came in the form of a decree issued by Vladimir Putin on December 31, 1999, hours after Boris Yeltsin ceded the presidency to Putin, who had been prime minister. This decree was part of a package of concessions to Yeltsin that facilitated the departure of the aging Russian president.[iv] Among the decree’s provisions were expansive protections against criminal liability for acts committed while in office as well as protections against being “detained, arrested, searched, interrogated, or personally inspected [lichnyi osmotr].” Moreover, the decree extended the immunity to a former president’s “residential and office premises, vehicles used by him, means of communication, other documents, luggage, and correspondence.” However, a subsequent parliamentary statute, adopted in January 2001, eroded immunity guarantees for ex-presidents in Russia by subjecting former leaders to criminal prosecution if both houses of parliament first conclude that the president committed “grave crimes” [tiazhkie prestupleniia] while in office.[v]
In a striking example of legal diffusion and the neighborhood effect, the Russian legislation inspired subsequent laws protecting ex-presidents in 7 of the other 14 post-Soviet states. In some respects, it was a throwback to the practices of the Soviet era, when Moscow would first develop a piece of model legislation [maket] and then the 15 union republics would adopt local codes with only minor variations from the model. In the case of the follow-on laws on immunity for ex-presidents in post-communist states, the legislative language was often lifted word-for-word from the Russian model. In these cases, according to the literature on policy diffusion, what was at stake was not authoritarian learning, competition, or coercion but authoritarian imitation.[vi]
Because this demonstration effect radiated out to the immediate neighborhood and no further, the post-communist example fits into a pattern of “proximity diffusion” found in other parts of the world, and in at least one region on this very issue. Many African countries, for example, have adopted common guarantees of immunity for sitting presidents and, in some cases, ex-presidents. In these African cases, however, the protections may be removed when charges of “high treason” are at issue.[vii]
As the accompanying chart illustrates, there are some significant variations in the provisions set out in national laws. In the cases of Kazakhstan and Tajikistan, for example, immunity guarantees apply only to the first post-communist president during his lifetime. In Kazakhstan that is Nursultan Nazarbaev, who since 2010 has had the official title of Yelbasy, or Leader of the Nation; in Tajikistan it is Emomali Rahmon, who sports the even grander-sounding moniker of The Founder of Peace and National Unity—The Leader of the Nation.[viii] Given Nazarbaev’s unexpected decision last month to resign after 30 years at the helm of Soviet and post-Soviet Kazakhstan, he is now in a position to enjoy the ad hominem immunity that he helped to put in place over the last two decades, an immunity that protects not only Nazarbaev’s person but the property and bank accounts of himself and members of his family living with him. For his part, Tajikistani President Rahmon enjoys similar guarantees, except that the law covers all family members and not just those living with him, a provision that would seem to protect his grown children, including his oldest son, Rustam, who many view as the likely successor to his father as president of Tajikistan.
Given their traditional positions as the most authoritarian regimes in former Soviet Central Asia, one might have expected Turkmenistan and Uzbekistan to have introduced versions of the Russian law on immunity that offered the broadest possible guarantees to an ex-president. However, in important respects, ex-presidents of Turkmenistan and Uzbekistan are more vulnerable to criminal prosecution than their peers in neighboring countries, at least according to the formal rules. First, in both Turkmenistan and Uzbekistan immunity protections extend only to those actions “taken in connection with the execution of the powers” of president, and thus would arguably not cover all of the actions of a president while in office. Second, by allowing the authorities to deprive an ex-president “of immunity if a criminal case is instituted in connection with the commission of a grave crime,” Turkmenistan grants considerable discretion to prosecutorial and judicial authorities. Finally, the Uzbekistani law on immunity for ex-presidents makes no mention of protections for property.
Because many countries in the former Soviet Union’s southern tier do not have ex-presidents—they either die in office or have their titles stripped from them in the wake of popular rebellions —one might argue that parsing the legislation on immunity is a fruitless exercise. Yet as we noted earlier, Kazakhstan now has its first ex-president; Kyrgyzstan has two, Roza Otunbaeva and Almazbek Atambaev; a former president of Azerbaijan returned to his country after many years in exile, in part because of the extension of immunity to ex-presidents; and courts in Armenia are this week trying to decide whether its constitution’s immunity provisions will protect former President Robert Kacharian.[ix]
Finally, in Kyrgyzstan there have been attempts over the
last year to revise, or eliminate altogether, immunity protections for
ex-presidents, an effort prompted by the ongoing feud between former President
Atambaev and his hand-picked successor, Sooronbai Jeenbekov. Thus, while a country in the throes of
authoritarian consolidation like Tajikistan has recently strengthened
protections for ex-presidents, Kyrgyzstan is threatening to break with the
Russian-inspired model of immunity for former leaders. The denouement of the year-long campaign in
Kyrgyzstan to weaken immunity for ex-presidents will be the subject of my next
post for this blog.
[i] My thanks to Kelly B. Smith of Stetson University and Alexei Trochev of Nazarbaev University for bibliographic assistance on this post.
[ii] In France, for example, two of the three most recent ex-presidents, Jacques Chirac and Nicolas Sarkozy, have been charged with crimes. Chirac was convicted and Sarkozy has been fighting a five-year long judicial battle to avoid a conviction. Thomas Prouteau, “Affaire des ‘écoutes’: Nicolas Sarkozy sera-t-il jugé un jour?” RTL, April 9, 2019. https://www.rtl.fr/actu/politique/affaire-des-ecoutes-nicolas-sarkozy-sera-t-il-juge-un-jour-7797391350
[iii] By constitutional means I have in mind extending or adding terms of office.
[iv] О гарантиях Президенту Российской Федерации, прекратившему исполнение своих полномочий, и членам его семьи, Указ Президента Российской Федерации от 31.12.1999 г. № 1763. http://www.kremlin.ru/acts/bank/14857
[v] Федеральный закон от 12 февраля 2001 г. N 12-ФЗ “О гарантиях Президенту Российской Федерации, прекратившему исполнение своих полномочий, и членам его семьи” (с изменениями и дополнениями). http://constitution.garant.ru/act/president/182948/ See
[vi] See Charles R. Shipan and Craig Volden, “The Mechanisms of Policy Diffusion,” American Journal of Political Science, vol. 52, no. 4 (October 2008), pp. 840-857.
[vii] The countries referencing high treason as an exception are Burundi, Central African Republic, Cote d’Ivoire, Djibouti, Guinea, Madagascar, Mauritania, Niger, Senegal, Sudan, and Togo. These countries are among the 32 jurisdictions where ex-presidents enjoy some form of immunity; these cases are catalogued in the very useful compendium prepared by the Law Library of the Library of Congress. Immunity from Prosecution for Former Presidents in Selected Jurisdictions (Washington, DC: Law Library of the Library of Congress, October 2017). For a perceptive analysis of immunity for presidents and ex-presidents in African states, see Charles Manga Fombad and Enyinna Nwauche, “Africa’s Imperial Presidents: Immunity, Impunity and Accountability,” African Journal of Legal Studies, vol. 5, no. 2 (2012), pp. 91-118.
[viii] Vladimir Putin has been referred to at times in some Russian media outlets as the leader of the nation, though as yet that is only an informal label.
[ix] “Armenian court extends ex-president Kocharyan’s arrest for another two months,” ARKA News Agency, March 13, 2019. http://arka.am/en/news/politics/armenian_court_extends_ex_president_kocharyan_s_arrest_for_another_two_months_/
During the Rose Revolution in Georgia, Mikheil Saakashvili reportedly promised President Eduard Shevardnadze immunity from prosecution in order to encourage him to leave office, but I can find no record of legislation enacted that makes good on that promise. See “Georgia’s Shevardnadze to be given immunity,” rferl.com, February 20, 2004. https://www.rferl.org/a/1051611.html