US embassy cable - 05ALMATY1838

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 
---------------------------- 
 
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 
--------------------------- 
 
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 
---------------------------------- 
 
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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