Controversy over Kazakh draft law on media

Compiled by Adam Albion

Kazakhstan's parliament has begun considering a new draft law on mass media. As might be expected in a country where independent journalism has seemed increasingly under threat during the last two years, the government's motives for introducing fresh media legislation, no less than the draft text itself, have been under heavy scrutiny. Its opponents see it as part and parcel of a state crackdown on freedom of expression. Its defenders argue that the law offers journalists new guarantees that will help promote democracy in Kazakhstan.

Kazakhstan's Ministry of Culture, Information, and Social Concord quietly began formulating a new media law at least one year ago. That information comes from Tamara Kaleeva, head of the Adil Soz (Free Word) International Foundation for the Protection of Freedom of Speech, a Kazakh journalists' NGO. In September 2002, Kaleeva told a Tashkent conference of the Organization for Security and Cooperation in Europe (OSCE) on Central Asian media and corruption that her organization had just got wind of the ministry's plans to convene a working group to draft a new bill. The working group consisted of "representatives of ministries and departments at vice-minister level as well as of a number of top managers of public organizations," and the ministry politely refused independent input, Kaleeva reported in her speech, archived at http://www.cjes.ru/lib/. Kaleeva also told the National Press Club in Almaty that the working group, which was chaired by Culture Minister Mukhtar Kul-Mukhammed, included no lawyers who were specialists in media or information (see "RFE/RL Central Asia Report," 26 September 2002). Instead of an open process with public debate, Kaleeva predicted that the ministry would compose the draft; the Interior Ministry, National Security Committee, and Prosecutor-General's Office would add their proposals; and the government would get another restrictive law to protect its own interests.

Eventually, the working group was expanded to include members of three journalism associations -- the Congress of Kazakh Journalists, the Journalists' Association, and the Association of Independent Television and Radio Broadcasters of Kazakhstan (see "RFE/RL Newsline," 27 August 2003). On the face of it, their participation was meant to demonstrate that the working group was open to a spectrum of views ranging from liberal to conservative -- the presumption being that journalists will naturally favor more independence and freedom of speech, in opposition to the preferences of government, which tend no less naturally in the direction of more restrictions and control. But some analysts wondered to what extent the inclusion of media professionals in the working group was simply window dressing. Their role and influence in the whole nontransparent drafting process was questionable, and at least two of the journalism associations that participated could be expected to be submissive to government views -- the Congress of Kazakh Journalists is headed, in fact, by President Nursultan Nazarbaev's eldest daughter Dariga who also runs the state news agency Khabar.

Kaleeva was only one of many observers who took it for granted that tighter control of the media was the whole point of the authorities' decision in mid-2002 to start drafting a new law. It was asked then why it was needed when Kazakhstan had already overhauled its mass media legislation only one year previously, in April 2001. Moreover, those changes had not tended toward greater media freedom. On the contrary, amendments approved by the parliament limited the volume of retransmission of foreign broadcasting and took steps to bring the Internet under state supervision by defining web pages as mass media (see "RFE/RL Kazakh Report," 21 April 2001). Even more sinister, from the viewpoint of the pessimists, was the fact that the initiative for new legislation came in the wake of months of attacks on journalists, which led to 2002 being dubbed the blackest year for Kazakhstan's press since gaining independence in 1991 (see "RFE/RL Central Asia Report," 30 May 2002).

The draft was accepted for government consideration on 26 August 2003 by Prime Minister Daniyal Akhmetov, and formally presented to the Social and Cultural Development Committee of the Mazhilis (lower house of parliament) on 21 October by Information Minister Sautbek Abdrakhmanov (see "RFE/RL Newsline," 22 October 2003). Abdrakhmanov argued that the draft provided additional protection for the media with guarantees against interference in journalists' work, and that it protected Kazakhstan's democratization process by elaborating on the constitutional prohibition of censorship. But some parliamentarians asked why a new law was needed at all, considering that it had been deemed sufficient in 2002 to make amendments to the existing law that had been passed in 2000. Other deputies complained that the authors of the draft had not taken account of journalists' recommendations. A public hearing at the Almaty Press Club on the previous day had made it clear that there were both journalists and lawyers who remained deeply dissatisfied with the draft, khabar.kz reported on 20 October. Adil Soz asserted its position that the law would significantly worsen the legal position of the mass media in Kazakhstan and actually restrict freedom of speech under the guise of defending it. Meanwhile, lawyers complained that the text was full of inexact formulations that could be used against the media (see "RFE/RL Newsline," 21 October 2003).

The latitude of interpretation and action that the draft law seems to give the state has been a source of concern to some international observers, too. ARTICLE 19, a British advocacy organization promoting freedom of expression (its name derives from Article 19 of the Universal Declaration of Human Rights), issued in September a juristic analysis of the draft law, posted at http://www.article19.org. Its overall conclusion was that the law would lead to "excessive exercise of State control over the press." It noted critically that a single piece of legislation was attempting to regulate every aspect of the media by means of "regimes for registration, licensing, accreditation and access to information that are vaguely delineated and often inappropriate," and overseen by bodies that were not independent of government.

For example, the law contains various points where the imperative to protect state security and public safety seems to provide ready pretexts to clamp down on free speech. Article 3.1 forbids the press to promote "propaganda" or "agitation," neither of which term is defined. Article 3.2 is similarly vague about what type of "state secrets" the media is forbidden to disclose. A later article (29) effectively clears the ways for the authorities to label virtually any information as constituting a state secret. Article 3.2 also prohibits any attempts on behalf of the media to justify "extremism," without specifying what that is. The same article makes it illegal to disseminate information that might tend to the popularization of drugs. But as the British commentary notes, "Drug use and the criminal activity associated with drug trafficking are both issues of significant public interest, the discussion of which should not be silenced."

The draft law's articles 29.1 and 30 make it the legal duty of mass media to broadcast "official communications from state authorities." This violates the prerogative of editors to make independent judgments about what is newsworthy. Good editors may be expected to carry news of important government policies and judicial verdicts anyway. The articles simultaneously open the door to harassment or closure of independent media outlets if the government decides they have not fulfilled this vague requirement. In fact, according to the British commentary, "[the provision] essentially grants the government carte blanche to use the mass media as a propaganda tool." (There is an obvious hypocrisy involved, since Article 3.1 already prohibited the use of media for propaganda purposes.)

At the same time, Article 29.3 paves the way toward greater official openness by requiring state officials to provide information to media within three days of request, or to provide an explanation why it will take longer, or to give a reason for refusing the request. Wrongful refusals can be challenged in the courts. While these stipulations are welcome improvements on the existing situation, officials still have a significant amount of discretion to reject applications for information, since they may withhold anything "constituting state secrets of the Republic of Kazakhstan and other secrets protected by law."

Finally, Article 34, described as "chilling" in the ARTICLE 19 commentary, obligates journalists not to disseminate information "contrary to facts." The import of that dangerously empirical little phrase is that it deters journalists from publishing anything that cannot be proven true in a court of law, according to judicial standards of evidence. It also eliminates many forms of opinion, exaggeration, irony, sarcasm, science fiction, and stories about Santa Claus.

Information Minister Abdrakhmanov returned to the limelight on 30 October when the parliamentary Committee on International Affairs and Defense held a hearing on the draft. As before, the minister sought to defend it, saying it was designed primarily for the consumers of information, khabar.kz reported. (The website noted that a regular criticism of the current media law has been that it was designed for officials.) In response, parliamentarian Tatyana Kvyatkovskaya, a long-time defender of media freedom, said the law should take into account the interests of all sides -- government, consumers of information, journalists, and media owners. She further asserted that Article 34's ban on information "contrary to facts" violated existing legislation. Committee members proposed about 10 changes to the draft (see "RFE/RL Newsline," 31 October 2003).

In an interview with the Kazakh newspaper "Delovaya Nedelya" on 1 November, Nurbulat Masanov, the president of the Kazakh Political Science Association, argued against the draft. "I understand that the law is being adopted in order to stifle the media," he said. But rather than suggesting there should be a better media law, Masanov defended the position that there should be no media law -- no regulation of the mass media whatsoever. If a publication offends standards of truth and good taste with salacious scandal-mongering or libel, he averred, it will die of its own accord through the operation of the free market: "People will quickly get fed up with such filth.... It won't enjoy popularity, nobody will read it." He went on to say he thought that no government official should be permitted to sue a media outlet. An official who wanted to sue should resign first and then bring his case as a private individual. "Using the power of the state as well as his own powers in order to win a trial should not be allowed," Masanov told the newspaper.

The head of Kazakh Commercial Television (KTK), Sergey Kleshchenkov, came out against the media law in an interview with the newspaper "Karavan" on 3 November. He worried that journalists would find themselves so hedged round with rules and restrictions that the quality of Kazakh television programming would plummet, leaving the Russian stations to move in and mop up ratings and advertising. Asked if he thought that any of the draft law's provisions were "absurd," Kleshchenkov said, "Yes, for instance, that it is necessary to ask for permission to film an official." Asked if he thought if parliament would pass the bill, he responded, "It will be passed...because it is advantageous to a certain group of officials."

In related news, AFP reported on 3 November that the national hydrocarbon company Kazmunaigaz, whose deputy president is one of President Nazarbaev's sons-in-law, recently sent a letter to a top Nazarbaev aide applying for permission to create a "fully-fledged" media subsidiary with newspaper, television, and radio holdings. The letter, apparently written by Kamunaigaz President Uzakbai Karabalin, was sent in early October and leaked last week. Karabalin told the Kazakhstan Today news agency that the media group would aim to "influence opinion abroad about the company's projects and the economy as whole." But the letter itself painted a different picture. It outlined plans for a media empire whose primary purpose was to support government policies in the run-up to next year's scheduled parliamentary elections, according to AFP. In particular, it was looking to win the right to rebroadcast material from Russia's NTV. NTV is a Russian national channel that also happens to be run by a hydrocarbon company, the Russian energy giant Gazprom. NTV is known for relatively adventurous reporting by Kazakh standards, and for sometimes airing criticism of Nazarbaev. By capturing NTV, Kazmunaigaz would not only control an asset that is popular in Kazakhstan, but would be able to filter out the criticism. More importantly, it would block Kazakh Channel 31's efforts to gain NTV rebroadcasting rights. As one of the country's few independent outlets, Channel 31 has continually been a thorn in the side of the authorities. It has covered controversial social issues such as human trafficking and prostitution in Kazakhstan, and anti-Chinese xenophobia.

TURKMENISTAN'S COTTON SERFS. While cotton remains an import foreign-currency earner for Turkmenistan, its cotton harvest has been an annual disappointment in recent years. A recent outburst on the subject by Turkmen President Saparmurat Niyazov has precipitated some abnormal emergency measures on the part of local authorities, as well as a most unusual sight in Turkmenistan -- an anti-government strike.

Niyazov told his cabinet on 14 October that the country had little chance of meeting the target of 2 million tons that he set for this year's cotton harvest, and promptly fired two senior officials (see "RFE/RL Newsline," 15 October 2003). By some estimates the country has gathered in less than 500,000 tons of cotton so far this year.

The cotton target for 2002, which was also 2 million tons, was not achieved either. Heads rolled, especially in northern Dashoguz Oblast, which is supposed to be the country's main cotton-producing area (see "RFE/RL Central Asia Report," 15 November 2002). Probably mindful of last year's experience, Dashoguz administrators recently asked Niyazov to extend the cotton-harvest season until December 2003 to help them at least come closer to fulfilling their plan. Having bought themselves more time, the authorities sought extra cotton pickers. One solution has been to press-gang automobile drivers who are unable instantly to pay fines for traffic violations. According to Memorial, a Moscow-based human rights organization, Dashoguz police have begun stopping drivers on various pretexts and imposing heavy fines. Drivers who cannot come up with the money on the spot have their licenses confiscated, and can get them back only after producing proof of working 10 days in the cotton fields, centrasia.ru and AFP reported on 5 November. However, the website noted, public sector workers have the option of hiring others to pick cotton in their place.

To put more bodies in the fields the government has drafted state-sector workers including teachers and doctors, as well as schoolchildren, although reports indicate that primary school pupils thus far have been forced to work only at the weekends, nor during weekday school hours. Meanwhile, increased numbers of city dwellers are also being drafted to pick cotton in the fields. To transport them there, authorities in the city of Dashoguz have commanded the services of local drivers of private vans.

After the city failed to pay them or compensate them for the price of their fuel, drivers began a strike on 31 October, Prima-News and centrasia.ru reported, quoting information from Memorial. When the vans failed to appear, the draftees reportedly went home. Turkmen security services immediately started searching for the strike's ringleaders and "conspirators." Officers of the traffic and tax police hunted for the rank-and-file strikers. Some stayed home or hid to avoid retaliation, according to Memorial, which indicated that the strike lasted at least until 2 November.

In 2001, the Dashoguz authorities provoked public anger when they closed the city market and tried to recruit shoppers for cotton picking. Eyewitnesses reported that enraged citizens attacked the police officers who were trying to herd them into buses. The market was quickly reopened (see "RFE/RL Newsline," 5 November 2003).

http://www.rferl.org/centralasia/