KAZAKHSTAN: "Harsh" Religion Law changes to reach parliament soon?
A draft Amending Law (seen by Forum 18) amending nine Codes and Laws on the exercise of freedom of religion or belief would, if adopted in its current form, impose new restrictions on the exercise of freedom of religion or belief. The head of the NSC secret police, Yermek Sagimbayev, has told deputies of the non-freely-elected parliament: "The initiative on the need to harshen legislation in the area of regulating religious activity has more than once been discussed at a government level."
The head of the National Security Committee (NSC) secret police, Yermek Sagimbayev, on 30 October 2023 told deputies: "The initiative on the need to harshen legislation in the area of regulating religious activity has more than once been discussed at a government level." He noted that similar legal changes were passed by parliament in 2018, but withdrawn after the US State Department had given the proposed new Religion Law a "negative rating", and included Kazakhstan on its Special Watch List. No public reason for the 2019 withdrawal of the previous draft Amending Law was given at the time (see below).
An official presentation in the non-freely-elected parliament noted "probable risks" to adopting the current draft Amending Law, including retaliatory sanctions from the US State Department and the European Union, which could "harm the investment climate in Kazakhstan" (see below).
"Proposed measures" in response included to present the draft Amending Law as the initiative of parliamentary deputies and not the government, and for the Culture and Information Ministry and other state agencies to devise a strategy to use the media, civil society and registered religious organisations to gain acceptance for the new provisions. The Foreign Ministry and other state agencies are also to devise a strategy to gain acceptance for the new provisions among foreign human rights organisations, the United States, and the European Union (see below).
Majilis press secretary Mukhtar Ibraimov initially told Forum 18 that the proposed Amending Law is "a joint project between the government and parliament". He then backtracked, insisting that the draft Amending Law is the initiative of one deputy (see below).
Aida Balayeva, Culture and Information Minister (whose Ministry includes the Religious Affairs Committee), spoke of what she saw as the need to make the Religion Law harsher. She told a government briefing in October 2023 that "there were official requests from deputies" (see below).
The regime has offered no public discussion of any proposed amendments to the Religion Law or other laws related to the exercise of freedom of religion or belief. A Kazakh legal expert, who wishes to be anonymous for fear of state reprisals, told Forum 18 that the proposed amendments "raise many questions and concerns".
On 4 October 2023, parliamentary deputy Ermurat Bapi spoke of what he regarded as dangerous "sects" in Islam which he claimed threatened the country. Bapi and 13 other deputies then formally asked both Prime Minister Alikhan Smailov and NSC secret police head Sagimbayev if there were plans to make the 2011 Religion Law harsher (see below).
Smailov on 6 November told deputies that work was underway on "introducing the concepts of 'destructive religious trend' and 'religious radicalism'; legislative provision of rehabilitation works with adherents of destructive religious currents; development of a list of entities allowed to distribute religious literature, informational materials and items for religious purposes on Internet resources; and introducing restrictions on wearing clothes that prevent facial recognition in public places" (see below).
All these provisions, along with others such as on young people under the age of 18, are included in the proposed draft Amending Law (see below).
Regime states Religion Law needs to be "harsher"On 4 October 2023, Ermurat Bapi, a deputy of the lower house of the non-freely elected parliament, the Majilis, spoke of what he regarded as dangerous "sects" in Islam which he claimed threatened the country. Bapi and 13 other deputies then formally asked both Prime Minister Alikhan Smailov and the head of the National Security Committee (NSC) secret police Yermek Sagimbayev if there were plans to make the 2011 Religion Law harsher.
Prime Minister Smailov's response of 6 November said that the government had held meetings with the leadership of the state-controlled Muslim Board and unidentified "well-known theologians" to discuss ways to resolve "problematic issues".
Smailov told the deputies that work was underway on "introducing the concepts of 'destructive religious trend' and 'religious radicalism'; legislative provision of rehabilitation works with adherents of destructive religious currents; development of a list of entities allowed to distribute religious literature, informational materials and items for religious purposes on Internet resources; and introducing restrictions on wearing clothes that prevent facial recognition in public places".
All these provisions are included in the proposed Amending Law (see below).
The head of the National Security Committee (NSC) secret police, Yermek Sagimbayev, on 30 October replied to deputies: "The initiative on the need to harshen legislation in the area of regulating religious activity has more than once been discussed at a government level."
NSC secret police head Sagimbayev noted that similar legal changes were prepared in 2017, and passed by parliament in 2018. But they were withdrawn by then-Prime Minister Bakytzhan Sagantayev without any public explanation on 29 January 2019.
NSC secret police head Sagimbayev's 30 October 2023 reply states that the reason the amendments were withdrawn was that in 2018 the US State Department had given the proposed new Religion Law a "negative rating", and included Kazakhstan on a special watch list. Sagimbayev comments: "Due to the possible risks of political and economic sanctions being applied to our country in the future, at the end of 2018 the Religious Affairs Committee suspended work on the draft Amending Law and withdrew it from Parliament in January 2019."
NSC secret police employs masseur to draft letters?On 23 January 2024, Forum 18 called the official who drafted NSC secret police head Sagimbayev's response to deputies on the number given in the letter, and asked about the NSC secret police's role in the proposed Amending Law. The official claimed that it was a wrong number and that he was a masseur at a massage parlour.
Countering "probable risks" to adopting draft Amending LawAn official presentation in the non-freely-elected parliament noted "probable risks" to adopting the draft Amending Law. The three identified risks are:
- dissatisfaction from believers in Kazakhstan which could destabilise society;
- retaliatory sanctions from the US State Department and the European Union, which could "harm the investment climate in Kazakhstan";
- and "sharp criticism" from international human rights organisations.
"Proposed measures" in response were given as:
- to present the draft Amending Law as the initiative of [the non-freely-elected] parliamentary deputies and not the government;
- for the Culture and Information Ministry and other state agencies to devise a strategy to use the media, civil society and registered religious organisations to gain acceptance for the new provisions;
- and to use the Foreign Ministry and other state agencies to devise a strategy to gain acceptance for the new provisions among foreign human rights organisations, the United States, and the European Union.
Majilis press secretary Mukhtar Ibraimov initially told Forum 18 on 23 January that the proposed Amending Law is "a joint project between the government and parliament". He then backtracked, insisting that the draft Amending Law is the initiative of one deputy. "It hasn't reached parliament yet, and it is not clear when it will do so."
On 6 October 2023, Aida Balayeva, Culture and Information Minister (whose Ministry includes the Religious Affairs Committee), spoke of what she saw as the need to make the Religion Law harsher. She told a briefing at the government press centre that her Ministry was considering such proposals, which she insisted had come from parliamentary deputies.
"There were official requests from deputies," Balayeva insisted again to journalists on 11 October 2023. "As a government body coordinating religious policy, we are obliged to consider them."
Asked when any Religion Law changes might be adopted, Balayeva responded: "First, there will be a discussion with experts, with the same deputies, that is, we cannot take any measures without the consent of society. Therefore, we will begin this work, since there are specific requests from deputies."
However, the regime has offered no public discussion of any proposed amendments to the Religion Law or other laws related to the exercise of freedom of religion or belief. A Kazakh legal expert, who wishes to be anonymous for fear of state reprisals, told Forum 18 that the proposed amendments "raise many questions and concerns".
Nine Laws would be amendedA draft Amending Law amending nine Codes and Laws on the exercise of freedom of religion or belief has been seen by Forum 18. If the draft Amending Law is adopted in its current form, it would change the 2011 Religion Law, as well as the Marriage Code, the Administrative Code, the Law on the Rights of the Child, the Education Law, the Police Law, the State Service Law, the Law on Preventing Violations, and the State Social Grants Law.
The draft Amending Law may reach the lower house of the non-freely-elected parliament, the Majilis, soon. "Officials want to push this through unprecedentedly quickly," one human rights defender told Forum 18.
The draft Amending Law does not appear in the Majilis plan of measures for 22 to 26 January. Nor has it been published on the government website for draft legislation.
Majilis deputy Ermurat Bapi – who is pressing for the Religion Law to be made harsher - claims that the draft Amending Law is the initiative of a group of deputies. "The Culture Ministry is not in the picture about it," he told Forum 18 on 23 January. He noted that the draft Amending Law has not yet reached parliament.
Under current procedure, draft laws (whether prepared by the regime or its parliamentary deputies) should be sent for review by the Justice Ministry. If necessary they should also be sent for review by other relevant ministries, as well as the Ombudsperson if they relate to human rights. The Justice Ministry would review such draft laws at its monthly inter-agency commission and provide a view on legal aspects of them. The Justice Ministry would then hand such draft laws to the Majilis, whose Documentation Department would record their arrival.
A spokesperson for the Justice Ministry said it had not seen or reviewed the draft Amending Law. "Whether or not it is the initiative of deputies, it could not be adopted without a Justice Ministry assessment," the spokesperson told Forum 18 from Astana on 22 January.
An official of the Majilis Documentation Department said that it had not received the draft Amending Law, and no such law is in the plan. "I would have seen materials and I've not heard anything either," the official told Forum 18 the same day. "In any case, the draft Amending Law would have to come via the Justice Ministry with its assessment."
Bauyrzhan Bakirov, a Deputy Chair of the Religious Affairs Committee, refused to answer any questions. "Speak to the Foreign Ministry," he told Forum 18 on 22 January, without explaining, and put the phone down. Other phones at the Religious Affairs Committee were not answered on 22 and 23 January.
Making provisions on the exercise of freedom of religion or belief "harsher"
The presentation noted the increased role for the Culture and Information Ministry (which oversees the Religious Affairs Committee), and the Interior Ministry which controls the police.
The presentation uses terms such as "destructive religious movement" and "religious radicalism", without defining them. As human rights defender Yevgeniy Zhovtis of the Kazakhstan International Bureau for Human Rights and the Rule of Law commented to Forum 18 in August 2019 about regime use of such terms to target religious communities: "'Destructive religious movements' is not a legal term. It is absolutely unclear what criteria are used to designate any particular religious group as 'destructive'."
The presentation also stressed the "heightened defence of minors [age unspecified] from illegal involvement in religious activity", tighter controls over state employees, and removing the definition of "clergy" and replacing it with "religious servant" who would have to be an employed member of a registered religious organisation. It pointed to new provisions increasing the number of local people needed to found a religious community.
The presentation also focused on the proposed bans on wearing clothing in public covering the face, on conducting illegal marriages, and on promoting polygamy.
The presentation also noted the Religion Law preamble where the state recognises the "historical role" of Hanafi Islam, where the Amending Law would add that it is "traditional for Kazakh society". The state-controlled Muslim Board already has complete control of all public expressions of Islam, and all non-Hanafi expressions of Islam are banned.
No international legal assistance sought
"ODIHR has not been asked by the Kazakh authorities to review the draft Amending Law, but we would be ready and willing to do so if we received such a request," Katya Andrusz, ODIHR's spokesperson, told Forum 18 from Warsaw on 22 January.
Venice Commission spokesperson Tatiana Mychelova told Forum 18 on 24 January that Kazakhstan has not sought a Venice Commission legal review of the draft Amending Law. However, the Venice Commission would be ready to provide a legal review were one to be requested.
In October 2011, a new Religion Law planned for 2009 was eventually passed with great speed. The then-ODIHR Director issued a September 2011 statement noting that the legislation was set to unnecessarily restrict the exercise of the freedom of religion or belief and related freedoms. He referred to an ODIHR legal review of an earlier 2009 version, which noted that many serious issues remained with respect to compliance with international human rights standards. "ODIHR continues to stand ready to provide advice and assistance on bringing Kazakhstan's freedom of religion legislation fully in line with international standards and OSCE commitments," an ODIHR spokesperson told Forum 18 on 13 October 2011.
Registration would remain compulsory, become more difficultThe proposed amendments to the 2011 Religion Law would not change the ban on all exercise of freedom of religion or belief without state permission.
The proposed amendments would amend Religion Law Article 12 to double the number of citizens required to found and register a local religious organisation from 50 to 100. To found and register a regional religious organisation, at least two local religious organisations with a shared membership of at least 500 citizens are currently required. This would rise to 600 in the amendments.
It remains unclear if the Amending Law would require all registered religious communities to undergo re-registration under the new provisions.
The ban on and punishment for exercising freedom of religion or belief without state permission is against international law, as outlined in the OSCE / Council of Europe Venice Commission Guidelines on the Legal Personality of Religious or Belief Communities. This notes: "State permission may not be made a condition for the exercise of the freedom of religion or belief. The freedom of religion or belief, whether manifested alone or in community with others, in public or in private, cannot be made subject to prior registration or other similar procedures, since it belongs to human beings and communities as rights holders and does not depend on official authorization."
"Necessary to defend the constitutional order"?A proposed addition to Article 1, Part 3 of the Religion Law aims, according to the framers of the proposed Amending Law, "to unmask situations threatening the security of the state under the cover of religion".
As the OSCE's Freedom of Religion or Belief and Security: Policy Guidance notes, "'security' or 'national security' are not recognized by international law as permissible grounds for restricting the manifestation of freedom of religion or belief". The Policy Guidance also points out how imposing such illegal restrictions on the exercise of human rights undermines the security of a state.
The draft Amending Law's addition states: "Exercise of the freedom to manifest religion or beliefs is subject to limitation only by law and to the extent necessary to defend the constitutional order, to protect public safety, the rights and freedoms of the individual, and the health and morals of the population."
Permissible restrictions on freedom of religion or belief are outlined in the International Covenant on Civil and Political Rights (ICCPR)'s Article 18 ("Freedom of thought, conscience and religion"). Article 18.3 states: "Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others."
The UN Human Rights Committee's General Comment 22 on ICCPR Article 18 states that Paragraph 3 of Article 18 "is to be strictly interpreted: restrictions are not allowed on grounds not specified there". The draft Amending Law's restriction of "defending the constitutional order" is not a permissible limitation on the exercise of freedom of religion or belief.
Article 1 of the Religion Law sets out vaguely worded bans on what registered religious organisations can do, allowing space for arbitrary regime restrictions on freedom of religion or belief. At present, these include actions "capable of disorganising the activity of state organs" and "lowering the level of governability in the country". The proposed addition would additionally ban actions threatening individuals' life and health, as well as those "directed against the constitutional establishment, public order, and the sovereignty and territorial integrity of the Republic of Kazakhstan".
"Extremism," "destructive religious movement," "religious radicalism"
The framers of the draft Amending Law claim that there are "certain risks of erosion of the secular bases of the state, despite the moderation in religious views of the inherent majority of the population". The risk exists of a "threat of the growth of radicalisation of a certain segment of the religious population against the background of inadequate theological knowledge".
A proposed amendment to Article 1 of the Religion Law would define a "destructive religious movement" as a "collection of religious views, ideas and teaching" that threaten individuals' rights and freedoms, can violate social order and "cause harm to the spiritual and cultural values and traditions of society".
Another proposed amendment to Article 1 would define "religious radicalism" as "calls or actions forcing others to carry out religious precepts and dogmas which incite religious discord based on extreme and uncompromising adherence by an individual to religious views and convictions".
A proposed addition to Article 5 of the State Social Grants Law would specify that state grants can be given to alleged "non-governmental organisations" (which can be GONGOS – Government organised NGOs) to "conduct measures for the prevention of religious extremism and terrorism".
The regime has often used state-controlled and state-funded organisations to attack the exercise of freedom of religion or belief, for example in 2011 in preparing for laws to be harshened. This regime tactic continues, including attacks on religious communities such as Protestant Christians and Jehovah's Witnesses, and banning public protests against such organisations.
A proposed addition, Article 26-1, to the Law on Preventing Violations would introduce official written warnings for those "creating conditions for the carrying out of extremist and terrorist crimes which are within the competence of the Interior Ministry [police], as well as administrative violations in the area of religious activity".
Fionnuala Ní Aoláin, then-UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, noted in her January 2020 report (A/HRC/43/46/Add.1) after visiting Kazakhstan: "the counter-terrorism and extremism regimes provide excessive leeway to the authorities to target and silence those who peacefully question the established order, including various civil society actors, human rights defenders, trade unionists, journalists, bloggers, and members of marginalized communities or of communities legitimately exercising their religious freedoms. The overwhelming focus on extremism has no justification under international law."
Special Rapporteur Ní Aoláin's February 2020 general report on the Human rights impact of policies and practices aimed at preventing and countering violent extremism (A/HRC43/46) repeated this point. It stated that all "States that regulate 'extremism' in their laws, policy, programmes or practice should repeal such provisions, which have no purchase in international law, and domestic law must comply with the principles of legality, necessity and proportionality".
Officials launched at least 143 administrative prosecutions in 2022 to punish the exercise of freedom of religion or belief. In 2023, this had risen to more than 200, Forum 18 notes.
Restrictions imposed by new employed "religious servants" definitionA proposed amendment to Article 1 of the Religion Law would change the term "clergy" to "religious servant". The current designation of those entrusted by a registered religious organisation with "spiritual or preaching service" would be restricted to those "employed under a legal document of a registered religious association issued on the basis of a completed work contract".
This amendment is contrary to international human rights law, as outlined in the OSCE / Council of Europe Venice Commission Guidelines on the Legal Personality of Religious or Belief Communities. This notes: "States should observe their obligations by ensuring that national law leaves it to the religious or belief community itself to decide on its leadership, its internal rules, the substantive content of
its beliefs, the structure of the community and methods of appointment of the clergy and its name and other symbols."
An amendment to Article 9 of the Religion Law would restrict those allowed to post religious information online only to registered religious organisations and their newly-regime defined "religious servants", as well as continuing the existing system of local executive authorities (Akimats) approving any bookshop which wants to sell religious literature and other materials such as icons.
The new "religious servant" regime definition would thus add to the existing severe censorship system, along with more censorship restrictions in the draft Amending Law (see below), by severely restricting who can post religious materials online.
Narrower clergy definition to restrict conscription exemption?
At present, Jehovah's Witness young men are seen by the community as unpaid "religious ministers", and so can gain exemption from military conscription. Sometimes proving this to the Conscription Office can be difficult.
Jehovah's Witness Daniil Smal spent from 17 May 2023 in detention in a military unit until Almaty Military Garrison Court ruled on 9 November 2023 that the call-up decision in his case should be revoked and he should be freed, according to the decision seen by Forum 18. However, on 26 December 2023, the Conscription Office appealed against the decision, according to court records.
If the Amending Law is adopted in current form, and the same definition is used when individuals are called up for military service, more young men who cannot perform military service on grounds of conscience would not be able to be exempted if their religious community sees them as "clergy" or "religious servants".
Religious censorship changesThe Amending Law would continue the existing system of regime censorship of religious literature and materials produced in, imported into and distributed in Kazakhstan.
A proposed revision to Article 6 of the Religion Law would remove the requirement for state censorship of religious materials produced by registered religious organisations. Notes by the Law's drafters say that as such materials were inspected when the organisation was originally registered, there is no need for "repeat religious expert analysis".
It remains unclear what would happen to religious literature and materials produced by a registered religious community after it had been registered.
An amendment to Article 6 of the Religion Law would ban the use of religious literature or materials that the Religious Affairs Committee had refused permission for and would order their "removal from circulation in accordance with the legal procedure".
The framers in their explanation complain that the 2014 regulations governing religious censorship do not specify what should happen to materials that do not pass the state censorship and therefore the decisions "lack procedural force".
"On the basis of such expert analyses, it is possible to ban the import of literature into Kazakhstan and its use in missionary activity," the framers say. "At the same time, the fate of literature already in Kazakhstan but not recommended for use is unclear."
Courts on occasion already order religious literature or objects destroyed after they have been seized in criminal or administrative cases.
An amendment to Article 9 of the Religion Law would restrict those allowed to post religious information online only to registered religious organisations and their "clergy", as well as continuing the existing system of local executive authorities (Akimats) approving any bookshop which wants to sell religious literature and other materials such as icons. The new, more restrictive definition of "religious servant" would thus severely restrict who can post religious materials online.
In the notes to the amendments, the framers say local authorities are receiving ever more applications for permission to sell religious literature and objects online. They say owners of shops authorised by local administrations to sell such items can receive permission to sell them online also. They claim that this reduces the number of people subject to administrative prosecution for selling religious literature and objects online without state permission.
The framers add that the new provision would ban "other individuals (including journalists, bloggers, [parliamentary] deputies, sportspeople etc.) and legal entities apart from [registered religious organisations and their paid clergy, and owners of registered religious materials sales points] from distributing materials on religious themes".
New controls on children in religious meetingsArticle 3 of the Religion Law already requires leaders of religious organisations "to take steps to prevent the attraction and/or participation by children and young people [under 18] in the activity of a religious association if one parent or one of its legal guardians objects".
A proposed amendment would additionally require leaders of registered religious organisations to "take measures" to prevent those under the age of 12 from attending "services, religious rituals, ceremonies and meetings without being accompanied by one of their parents, adult close relatives, or other legal representative of the minor".
No provision is made in the amendment for the involvement of under-12s in adult-supervised activities a parent or legal guardian approves of but does not take part in.
Other provisionsOther provisions of the Amending Law include a proposed amendment to the Education Law to ban those studying in schools (apart from religious schools) from "including elements of clothing of religious adherence of various confessions". The provision is vague, and could apply to the hijab (Islamic headscarf), Christian crosses, and Jewish kippas (skullcaps) among other religious items.
The regime has targeted Muslims nationwide with repeated intrusive questioning if they wear clothing such as hijabs, and some regions have banned schoolgirls from attending school if they wear hijabs.
A proposed addition to Article 3 of the Religion Law would ban state officials from using their official position to press others to join a religious organisation or participate in religious rituals.
A proposed amendment to the Marriage Code would ban conducting religious marriages or divorces outside registered places of worship, except in cases of severe illness for at least one of the parties. It remains unclear what would happen when communities that do not seek state registration – such as Council of Churches Baptists – hold weddings.
Another proposed amendment to the Marriage Code would ban promotion or encouragement of "cohabitation with two or more women".
A proposed addition to Article 21 of the Law on Preventing Violations would ban "wearing in public places clothing preventing the recognition of the face", except for those needing facewear for medical, work, sports of cultural purposes. (END)
More reports on freedom of thought, conscience and belief in Kazakhstan
For background information, see Forum 18's Kazakhstan freedom of religion or belief survey
Forum 18's compilation of Organisation for Security and Co-operation in Europe (OSCE) freedom of religion or belief commitments
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27 September 2023
At least 3 of the 8 current known prisoners of conscience jailed for exercising freedom of religion or belief have had applications for conditional early release rejected on grounds their families regard as arbitrary. In June, a Kyzylorda court rejected Dadash Mazhenov's request, apparently citing his unpaid fees for the "expert analyses" used to convict him. "These fees were just an excuse," his family told Forum 18. The Head of Labour Camp No. 68, Kaiyrbek Ilyasov, refused to discuss why Mazhenov was refused conditional early release.
26 September 2023
In September 2021, the United Nations Working Group on Arbitrary Detention called for 9 Muslims jailed for participating in an online religious discussion group to be "immediately" freed and compensated for their imprisonment. Two years on, none has been freed or compensated. The General Prosecutor's Office, the Religious Affairs Committee, the Foreign Ministry and the government-controlled National Human Rights Centre all failed to explain why. Officials say they regard such UN opinions as "recommendations which they are not obliged to implement", says human rights defender Yevgeny Zhovtis.
15 September 2023
3 Muslim prisoners of conscience remain jailed 2 years after the UN Working Group on Arbitrary Detention called for their release "immediately". 5 other Muslim men are in jail for exercising freedom of religion or belief. Also: 6 former prisoners of conscience are serving the rest of their sentences at home under restrictions; 5 other former prisoners of conscience have bans on unspecified or specified activities; 31 others who have completed jail terms or restricted freedom sentences still have bank account access blocked.