Kazakhstan’s Long Fight against Discrimination

Kazakhstan's journey towards anti-discrimination legislation has taken place within an authoritarian context where state entities have historically opposed reforms aimed at strengthening individual rights. Since the 1990s, advocacy efforts against torture and the death penalty gradually wore down resistance from crucial legal and security bodies. A pivotal moment occurred following the 2020 ethnic clashes in Korday, which catalysed the formation of a committee dedicated to enhancing interethnic relations and accelerated discussions on anti-discrimination measures.

This movement towards greater protection of human rights was further solidified by a Presidential Decree in December 2023, which not only mandated the formulation of anti-discrimination laws but also established a dedicated unit within the National Center for Human Rights tasked with tackling discrimination. This marks a significant, albeit gradua, shift towards upholding human rights in Kazakhstan, reflecting a slow adaptation of its legal framework in response to internal challenges and external pressures.

Sergey Marinin, a project manager at the Rosa Luxemburg Foundation’s Central Asia Office, spoke with Kazakhstani lawyer and human rights advocate Yevgeniy Zhovtis about the progress towards anti-discrimination legislation in Kazakhstan, its implications for the country’s social and legal frameworks, and what Kazakhstan can learn from other countries’ experiences.

 How should the principle of “non-discrimination” be interpreted, and what are its foundational concepts and legal underpinnings?

Protection against discrimination and the right to equality, deeply rooted in centuries of debate, address various inequalities, including severe manifestations like racism, apartheid, and genocide. These issues underscore the importance of adhering to international principles of equal treatment. Additionally, “positive discrimination” aims to rectify historical imbalances for specific groups, fostering environments that support equality of opportunity.

The foundation of the anti-discrimination principle, established by the Universal Declaration of Human Rights, asserts the right to all freedoms without discrimination. Despite misconceptions in some regimes about its non-binding nature, the principle is part of jus cogens — mandatory norms in international law, applicable universally.

Kazakhstan’s constitution upholds non-discrimination as a fundamental, inalienable right, reflecting its significance. While the Universal Declaration itself doesn’t impose legal obligations like treaties, its moral and political weight profoundly influences international law.

This principle has been expanded and detailed in subsequent international treaties, addressing racial, gender, disability, and children’s rights discrimination, among others. The establishment of treaty bodies and UN committees has fostered a unified global strategy against discrimination, enhancing its conceptual framework and establishing protective mechanisms. Consequently, national laws worldwide have evolved significantly in this realm since the late twentieth century.

If some of our laws already address discrimination, why pursue a standalone non-discrimination law? Could a precise definition unintentionally exclude some discrimination types?

A precise definition of “discrimination” is crucial, as it’s often seen through the lens of extreme cases like racism or genocide, overlooking everyday injustices in civil contexts such as employment or public services. Kazakhstan’s experience with defining and addressing “torture” illustrates the need for clarity in legal terminology to encompass both egregious and subtle forms of rights violations.

Implementing anti-discrimination laws doesn’t yield instant results.

Discrimination spans beyond high-profile abuses to include any unjust treatment that diminishes rights, affecting a wide range of interactions from workplace dynamics to the treatment of vulnerable groups. Clear legislative definitions are essential for individuals to effectively challenge and seek redress for discriminatory acts.

Despite constitutional prohibitions and piecemeal references in various laws, Kazakhstan lacks a comprehensive legal framework defining discrimination, its forms, and remedies. International bodies have urged the adoption of specific anti-discrimination laws aligned with global standards, yet significant gaps remain, particularly in providing accessible and effective recourse for victims.

Addressing discrimination requires not only defining it but also establishing clear channels for complaints and redress, areas where current Kazakhstani law falls short. Without these mechanisms, even recognized forms of discrimination, such as those highlighted in criminal and administrative codes, lack effective enforcement, leaving a broad spectrum of discrimination unaddressed, particularly in civil and social spheres.

How has the adoption of anti-discrimination laws in neighbouring countries impacted their efforts to combat discrimination? Can you share insights into the international experience with such legislation?

Implementing anti-discrimination laws doesn’t yield instant results. In Kazakhstan, the absence of a clear conceptual framework, specialized institutions, and processes means the extent of discrimination is largely unmeasured, with citizen appeals as the primary indicator.

Consider the recent revival of Kazakhstan’s Constitutional Court, which, after a hiatus since 1995, received over 5,300 applications upon its reinstatement in 2023, highlighting the populace’s pent-up demand for constitutional rights protection. However, the court’s role was often misunderstood, with many expecting it to resolve legal disputes rather than assess constitutionality. This underscores the time needed for institutions to reveal societal issues.

Similarly, the introduction of juvenile justice brought substantial changes, evident in the reduced number of juvenile detention facilities and inmates, without increasing juvenile delinquency. The positive impacts of such reforms often become apparent years later, although trends towards improvement can be immediate.

With the upcoming UN Human Rights Council’s Universal Periodic Review, there’s an optimistic outlook for establishing an effective anti-discrimination mechanism that upholds the constitutional principle of equality for all, avoiding political exploitation of sensitive issues.

The existence of anti-discrimination legislation, as seen in Tajikistan, doesn’t guarantee effective rights protection without implementation mechanisms. Moldova provides a notable example with its clear definitions and established bodies for discrimination complaints, emphasizing the importance of specialized institutions over general state bodies for addressing discrimination.

Internationally, from Europe to New Zealand, anti-discrimination efforts are characterized by specialized institutions, akin to national human rights bodies or Ombudsmen, equipped with decision-making authority. These entities, whether labour commissions or councils focused on specific groups, offer structured recourse for discrimination victims.

Such mechanisms do not immediately eradicate discrimination but provide legal avenues for rights protection, preventing discontent and potential radicalization among affected individuals. This highlights the necessity for states to enshrine anti-discrimination measures in law, ensuring peaceful, sustainable societal development.

What notable advancements have been made in Kazakhstan’s legislation or through grassroots initiatives to combat discrimination in recent years, and how have these efforts shifted public awareness and attitudes toward the issue?

Opposition to anti-discrimination legislation in Kazakhstan has markedly softened from the intense resistance encountered during the early 1990s campaigns against torture and the death penalty. Initial efforts faced significant pushback from key government bodies, but recent years have seen a broader, more engaged discussion on the topic. The catalyst for many of these discussions was the 2020 Korday events, leading to the establishment of committees and institutes focused on interethnic relations and anti-discrimination efforts.

A significant highlight was the 8 December 2023 presidential decree outlining an action plan for human rights and the rule of law, notably including the call to craft anti-discrimination laws and bolster the International Convention on the Elimination of All Forms of Racial Discrimination. This move, signalling a commitment to establishing a dedicated unit within the National Centre for Human Rights to tackle discrimination, marks a positive shift. However, the ultimate outcome of these initiatives remains to be seen.

Public discourse on non-discrimination is not yet mainstream, often overshadowed by political sensitivities around national, religious, and LGBT issues. However, there’s a collaborative momentum building among civil society, the state, and the international community, particularly visible in advancements for women, children, and individuals with disabilities. For instance, Kazakhstan’s ratification of Optional Protocols to UN conventions has opened new avenues for citizens to file complaints on discrimination issues internationally — a significant step given the domestic courts’ current limitations.

Gender equality efforts also mirror the broader anti-discrimination fight, emphasizing the need for a comprehensive framework comprising clear definitions, institutional support, and adherence to international standards. With the upcoming UN Human Rights Council’s Universal Periodic Review, there’s an optimistic outlook for establishing an effective anti-discrimination mechanism that upholds the constitutional principle of equality for all, avoiding political exploitation of sensitive issues.

This is an abridged and translated version of a longer interview that can be found here.