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Instead of a Cell, a Muzzle: How Kazakhstan Stifles Critics and Avoids Criticism

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Instead of a Cell, a Muzzle: How Kazakhstan Stifles Critics and Avoids Criticism

Instead of lengthy jail terms, Kazakh authorities have taken to issuing years-long bans on speech and political activity, a tactic that incurs far less international condemnation.

Instead of a Cell, a Muzzle: How Kazakhstan Stifles Critics and Avoids Criticism
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Kazakhstan’s President Kassym-Jomart Tokayev recently called political repression the “dark pages” of his country’s history. A day later, the Justice Ministry confirmed that a law criminalizing insulting the country’s former president would be repealed. These comments coincided with a senior European Commission official’s visit to Kazakhstan to discuss a new strategic partnership

While the Tokayev administration has made some reforms, under the surface the story is more complicated. Seeking to reposition itself on the international stage and strengthen ties with its European partners, especially in light of Russia’s increasing isolation, the Kazakh government has resorted to ever subtler forms of repression. In particular, the authorities have used criminal prosecutions of journalists and activists not to jail them but to impose years-long bans on their speech and political activity, a tactic that incurs less international condemnation and scrutiny than lengthy prison sentences.

Opposition leader and journalist Zhanbolat Mamay, for instance, was recently convicted of organizing mass riots for his role in the January 2022 protests against rising gas prices. Instead of imprisoning him, the court levied a six-year ban on “social and political activism,” including posting on social media.

TrialWatch, where I work, monitors criminal trials globally against individuals vulnerable to unfair prosecutions, such as opposition figures like Mamay, and uses findings from monitoring to advocate on behalf of those unjustly convicted. After monitoring multiple trials in Kazakhstan that resulted in speech and activism bans, we are now challenging this practice before the U.N. Human Rights Committee. 

TrialWatch is bringing the case on behalf of activist Alnur Ilyashev, who was convicted in 2020 for social media posts critical of the Kazakh government. Although Ilyashev received no jail time, the court imposed a five-year ban on “engaging in civil and public activities, on voluntarily serving the political, cultural, and professional needs of society, [and] on creating and taking part in the activities of political parties, public associations and foundations.”

In two other cases that TrialWatch monitored in Kazakhstan, courts issued similar bans to defendants as part of their criminal convictions. In April 2021, for instance, journalist Aigul Utepova was handed a two-year ban on speech and activism for participating in an “extremist organization” (actually a peaceful opposition party). Months later, activist Askhat Zheksebaev received a five-year ban after he was convicted on the same charge, also for peaceful opposition activities. Both Utepova and Zheksebaev, like Mamay, were specifically forbidden from posting anything on social media. 

The trials that resulted in these bans were all themselves deeply flawed. Ilyashev’s trial, which was held on Zoom during the pandemic, was riddled with technical failures, preventing him from hearing what was happening. As Ilyashev struggled to follow the Zoom hearings, the authorities did not even set up a separate channel of communication for him to privately consult his lawyers The U.N. Working Group on Arbitrary Detention has since found his prosecution and conviction unfair. In Utepova and Zheksebaev’s cases, the court denied them access to key evidence, severely impairing their ability to defend themselves. On this basis, among others, TrialWatch and Debevoise & Plimpton LLP have challenged Utepova’s conviction before the U.N. Human Rights Committee, where the case is pending.  

When an activist or journalist is convicted but avoids prison sentence, it’s tempting for the international community to move on. Kazakhstan can happily report to Western partners, for example, that it is making progress on human rights. But the consequences of bans are still significant: At one point Ilyashev, who has four degrees, did not even know if he could pursue any of the careers for which he is qualified, such as practicing law. Meanwhile, late last year the panoply of restrictions to which he was subject proved so onerous and befuddling for Zheksebaev that he fled to Kyrgyzstan to seek asylum.

The vagueness of these all-encompassing bans on speech is the point. Such ambiguity makes it impossible for a Zheksebaev or an Ilyashev to be certain whether they have crossed a line. When Ilyashev asked for further clarity from the court, unsure whether he could even recite poetry, he was told “if you think that you are prohibited … then it is prohibited.” 

And if a court finds that a ban has been violated, it can imprison the defendant for up to five days (or up to 10 days for repeated violations). This risk is real. In May, just weeks before Tokayev spoke of moving on from the “dark pages” of the past, the authorities sent Ilyashev to jail for participating in a peaceful opposition event called the “People’s Parliament,” where opposition figures aired their concerns about political prisoners and the conduct of the recent parliamentary elections. A court found that Ilyashev’s involvement in the event violated the 2020 ban on speech and activism arising from his conviction, landing him in prison for five days. The ever-present threat of jail time creates a serious chilling effect. 

Stories like Ilyashev’s are why TrialWatch is asking the U.N. to find that these wholesale bans on political and civic activism, following unfair trials, do not comply with the right to freedom of expression and the right to political participation. The emerging pattern of using speech bans as part of a conviction, a canny tactic, should be of concern to others too. This is a moment where the international community has leverage. We shouldn’t look away while the Kazakh government stifles criticism via a backdoor.