Last October, the Supreme Court of Kyrgyzstan ruled that Kyrgyzstan’s law granting legal immunity to ex-presidents was unconstitutional on the grounds that Article 16 of the Kyrgyz Constitution makes all people equal before the law. Because the Kyrgyz immunity law was one of the broadest and most protective in the world, those of us who care about corruption might cheer this ruling as a win in Kyrgyzstan’s fight against corruption. However, viewed in context, the ruling portends problems for Kyrgyzstan’s nascent democracy and may even be counterproductive in the fight against corruption itself.
Many countries have ex-presidential immunity regimes. The downside of such laws—which exist throughout Central Asia and in countries as diverse as Burundi, France, and Uruguay—is that, by making it difficult or impossible to prosecute a former president, these laws eliminate one of the most important deterrents to executive corruption. Kyrgyzstan’s law was especially problematic in this respect, as the immunity granted to ex-presidents was unusually broad—covering not merely conduct related to the former president’s exercise of her or his official duties, but any act committed during the term of office, with no exceptions even for high treason or other grave crimes. The Kyrgyz immunity law also protected an ex-president’s property, and it blocked searches and interrogation in addition to prosecution, thus stymying investigations even where the ex-president was just a witness. For these reasons, getting rid of the immunity law might seem like a step forward in the fight against corruption.
However, laws that grant immunity to ex-presidents also have an upside, especially in authoritarian states or fragile democracies. These laws may ease and encourage peaceful political transitions, because with no threat of prosecution, a sitting president may be more willing to peacefully cede power. One might therefore be worried about the impact of the Supreme Court’s decision on Kyrgyzstan’s fledgling electoral democracy. Those worries would be well founded given the political context in which the Supreme Court rendered its decision.
To understand why requires understanding recent events in Kyrgyz politics, and in particular how the Supreme Court’s invalidation of the ex-presidential immunity law appears to be part of a larger campaign by the current President to suppress political opposition led by his predecessor:
- In late 2017, Kyrgyzstan experienced its first ever peaceful democratic transition between popularly elected presidents, with new President Sooronbai Jeenbekov replacing former president and political ally Almazbek Atambayev.
- But, worried that Jeenbekov was becoming too independent, Atambayev turned on Jeenbekov shortly after the election, publicly accusing him of corruption.
- President Jeenbekov responded by removing Atambayev’s high-ranking allies from the government, including key law enforcement personnel such as the prosecutor-general and the chief of the security service. Jeenbekov also opened an investigation into Atambayev’s allies—including a former Prime Minister—who are linked to corruption in a Chinese-funded project to modernize the capital’s power plant (see here and here).
- Then, last May, parliament considered a bill to repeal Kyrgyzstan’s ex-presidential immunity law, citing the inability to question Atambayev in the corruption investigation of his allies. The legislature recessed before the bill could pass, but a few months later, the Supreme Court issued its ruling declaring the immunity law unconstitutional. President Jeenbekov’s role in these latter developments is unclear (though the Kyrgyz judiciary is not known for its independence), but it appears that he may have set his sights on Atambayev himself.
These events suggest that the sitting president is attempting to neutralize his predecessor and political rival through an anticorruption investigation, exactly the kind of politically motivated retaliation that immunity laws are designed to prevent. President Jeenbekov’s actions thus may signify a retrenchment in Kyrgyzstan towards authoritarianism of the kind that plagues the rest of Central Asia.
Furthermore, not only do these events represent a step backward in Kyrgyzstan’s process of democratization, they’re also likely a setback in the nation’s fight against corruption. President Jeenbekov’s choice to attack ex-presidential immunity may discourage him from ceding power himself when his six-year term is over, further undermining the rule of law. Such a retrenchment would only exacerbate Kyrgyzstan’s corruption problem. While the relationship between democracy and corruption is contested (see, for example, here, here and here), it is likely that the existence of a serious electoral threat, in the form of an opposition party that could oust the incumbents in a free and fair election, helps curtail corruption. If President Jeenbekov succeeds in neutralizing former President Atambayev, that check will be weakened, perhaps fatally. Thus, in addition to threatening democratic norms, a Supreme Court ruling that initially appears to aid the fight against corruption may, counterintuitively, make the problem worse.
Thank you Jason for this fascinating, thought provoking post, which taught me a great deal. I was wondering whether you know any details about the background to the Supreme Court’s ruling, such as who brought this matter up to the Court and for which reasons.
Guy, thanks for the comment. The case was brought to the Supreme Court by a Kyrgyz lawyer named Nurbek Toktakunov. I wasn’t able to find information in the course of my research regarding whether Toktakunov might have a particular angle in bringing the case now, but it is worth noting that he has a history of doing high profile human rights work in Kyrgyzstan and is currently representing the former prime minister who is being invested by President Jeenbekov’s government for corruption. (Links below). It’s quite an interesting profile. How he has standing to bring this claim requires a knowledge of Kyrgyz law that, I’m afraid, I don’t have.
Thanks for your response Jason. This is really fascinating.
Thank you for this interesting post Jason! It is surprising that Kyrgyzstan, a democracy, has such broad immunities for its sitting President. Although, this made me realize that in the U.S., it has only been about 20 years since SCOTUS established in Clinton v. Jones, that presidential immunity does not expand to non-official duties when in office. Its interesting to note that this is a relatively newly established phenomenon in our Country, which makes Kyrgyzstan presidential immunities less surprising.