On April 26, 2010, the constitutional working group published a draft constitution for the Kyrgyz Republic, and the head of the interim government announced that the new constitution would be finalized on May 19. These developments have deeply divided the public, local experts and politicians. One group welcomes the decision, stating that the new constitution is a step toward stabilizing the political situation in the country. The other group questions the legitimacy of the working group in the absence of the dissolved Constitutional Court and Parliament, and also the lack of contributions from major parties and political groups, arguing that there should be no shortcuts in the introduction of this fundamental document.

BACKGROUND: Over the last few weeks, various political groups in Kyrgyzstan have been heavily involved in heated debates about the draft constitution of the country, and about the future of the country's political system after the overthrow of the deeply unpopular President Kurmanbek Bakiyev. Alas, Kyrgyzstan is not new to constitutional reforms as its first constitution of 1993 was introduced in a somewhat similar environment of political confrontation between conservative and liberal groups within Kyrgyz society, and conflicts and uncertainty about the development of political reforms. Then, like today, the main driving idea was to prevent the consolidation of power in the hands of the president, and once and for all to end the dominance of a single party or clan in the political arena.

It seemed at the time that the combination of the liberal-minded presidency of Askar Akayev with a democratically elected parliament would help establish a stable political system with appropriate checks and balances. During the early days of independence, several political parties emerged, forming a vivid multi-party environment with a dynamic free press. These developments gave Kyrgyzstan a shiny new title: "The Island of Democracy."

But the honeymoon was short-lived, giving way to disagreements over the course of the reforms and unpopular economic measures, along with accusations of corruption. Instead of looking for a compromise, the president decided to introduce a radical solution by dissolving the Jogorku Kenesh (parliament) and introducing a small professional bi-cameral parliament through a series of hurriedly set up constitutional and legislative changes and arrangements.

These shortcut actions helped to address some short-term issues such as stabilization of the political environment, but they did not address a number of longer-term fundamental problems in the country. First, not all political parties and interested groups within the population were involved in the discussion and consultation process of changes to the constitution, election law and the law on political parties. Such consultation would likely have slowed down the process of legal debate, but would have helped to garner the support of various crucial groups. If these groups had played a role in the drafting of laws and regulations, they would likely have had greater respect for those laws. Second, although a multi-party system was indeed established, it turned out to be exclusively an urban exercise: most of the political parties had their base and focused all their activities in the capital city, rarely venturing into rural areas and small towns, where almost 70 percent of the population still lived. As the political parties were unable to organize the rural electorate according to political platforms and ideas, the electorate organized itself along regional and clan lines. Third, political life at the raion (district) and oblast (province) levels was soon dominated by local elites — who quickly enriched themselves by establishing their domination in business and redistribution of resources, and were more concerned with local and regional issues and interests than with national matters. For example, after the parliamentary elections of February-March 2000, the Jogorku Kenesh had 32 members of the bi-cameral parliament representing 12 political parties, and 73 so-called independent MPs, who were mostly from the rural electoral districts. Thus, the parliament was dominated by local and regional interests and rivalries and turned into quite an ineffective and slow national legislative institution.

IMPLICATIONS:  The Tulip Revolution of 2005, which overthrew President Akayev and led to the election of Kurmanbek Bakiyev as president in the rashly arranged presidential elections of summer 2005 was a direct outcome of public mistrust in the democratic political process in the country, and the inability of the government to establish law and order. Numerous changes in the constitution (in 1996, 2003, 2006 and 2007) contributed to widely-held beliefs that the government manipulates the constitution and laws to their own advantage and does not protect the rule of law in the country.

Therefore, attempts to introduce far-reaching legal changes in the current atmosphere of general mistrust without transparent procedures, political consensus and in the face of continued political fragmentation, might have a number of negative consequences. There are at least four major implications of the current attempt at constitutional change. First, a fundamental issue is the legitimacy of the draft constitution in the absence of a Constitutional Court and parliament, as the document was prepared in nontransparent manner and it is going to be finalized by a commission appointed by the unelected and self-appointed interim government.

Second, by ignoring major legal procedures, the draft contributes little to the development of and respect for the rule of law, in spite of the promises given by the interim government to deliver law and order. Third, the process of constitutional change maintains the political fragmentation in the country, in that it excludes significant segments of the population — particularly the southern provinces of the country, the power base of the former president — from discussion of the draft constitution and thus from developing a stake in the most important document of the nation. Fourth, the swiftness of the consultation process — less than a month for the preparation and revision of the entire document — might undermine the quality of the document. The speed of the deliberations leaves almost no time for local and international experts to fine-tune the constitution in the light of international standards.

CONCLUSIONS:  In this time of political turmoil, it is important to stabilize the political situation and conduct broad reforms addressing major political and social problems as quickly as possible. At the same time, it is important to do it right, working meticulously on establishing the foundation for strong institutions and respect of the rule of law, and avoiding achieving short-term goals at the expense of long-term stability and sustainable development in the country. For this purpose, it is important to consider several key steps.

The first of these steps is to extend the public debates and consultations on the draft constitution well beyond the target date of May 19, giving more time and more opportunities for people even in remote districts of Kyrgyzstan to participate and thus widening the support base for the constitution and for legal reforms. The second step is to stop marginalizing the provinces, especially in southern Kyrgyzstan — to find ways of involving them as much as possible in the consultations and signaling that they are welcome to be part of the national political process.

The third step is to recognize the Constitutional Court as an important institution in legitimizing the new constitution and therefore to reinstate it. Of course, in the past the Court was regularly manipulated and made unpopular decisions; however, this was an issue with the individuals appointed to the Court and not because the institution itself was at fault. The Constitutional Court has an institutional memory of working on constitutional reform, with established procedures and mechanisms that could greatly contribute to more effective discussions and revisions of the draft constitution. The fourth step is to consider turning to the traditional institutions of Kyrgyz society, such as kurultais (public congresses of respected leaders) and courts of aksakals (the elderly), in legitimizing the consultation and revision process and the referendum itself. While these traditional institutions do not carry much weight in the cosmopolitan and westernized capital Bishkek, in rural areas – especially in remote districts – they are highly respected. Moreover, during the last decade they developed into quite a reputable conflict mediating and law enforcement institution.

AUTHORS’ BIO: Rafis Abazov, PhD, teaches at SIPA, Columbia University (New York). He is author of Historical Dictionary of Kyrgyzstan (2004), The Culture and Customs of the Central Asian Republics (2007) and the Palgrave Concise Historical Atlas of Central Asia (2008). In 2008 and 2009 he contributed to the UNDP and UNFEM reports on migration in Central Asia and the CIS.