Civic Space Under Pressure: Three Reasons Why Kazakhstan’s Recent Publication of a Foreign Funding Register is Alarming
By Mariam Kvaratskhelia, supported by CAPS Unlock Policy Center and MediaNet International Centrе for Journalism
Read the blog in Russian and Kazakh.
On September 20, 2023, Kazakhstan’s Ministry of Finance published a list of individuals and entities that receive funding from foreign sources. The list includes almost 240 civil society, human rights and media organizations, such as Freedom House, the Norwegian Helsinki Committee, the Kazakhstan International Bureau for Human Rights and Rule of Law, Reuters and the Institute for War and Peace Reporting. The register also includes individual journalists, research institutions and private companies. This development is alarming as it mirrors actions taken under the Russian Federation’s “foreign agents” law, and is in violation of constitutional and international tenets, such as the right to privacy and the principle of non-discrimination. These principles are outlined by foundational human rights documents, such as the Universal Declaration of Human Rights (UDHR) Articles 2, 12 and 19, the International Covenant on Civil and Political Rights (ICCPR) Articles 2(2), 17 and 19, and the International Covenant on Economic, Social and Cultural Rights (ICESCR) Article 2(2). Additionally, the foreign funding register highlights the issue of government entities as data controllers foregoing consent from data subjects (requiring consent is a widely accepted principle in data protection) under the guise of legitimate interest to ensure transparency.
The publishing of foreign funding register in Kazakhstan points to a deeper-rooted question of the state of associational life and freedom of expression in the country, with the government using the 2013 Personal Data and Protection law to expose civil society organizations (CSOs), activists and journalists as threats to the state.
What are the implications?
Kazakhstan’s State Income Committee, which is in charge of monitoring and regulating taxes and other budget-related payments, notes that the new foreign funding legislation is aimed at increasing public trust and transparency. However, Freedom House assesses that publication of the list of entities receiving foreign funding could lead to their “intimidation and harassment from both state and non-state actors.” The register includes names and tax identification numbers for both individuals (IIN) and organizations (BIN).
- Right to Privacy
Publication of such a list goes against Kazakhstan’s Constitution and the country’s endorsement of international standards for data protection and privacy. Clause 1 of Article 18 of the Constitution of Kazakhstan (1995) notes that everyone has the right to “inviolability of private life,” whereas the country’s 2013 law on Personal Data and Protection underscores the importance of protecting data for the purposes of a) defending a person’s right to privacy, b) ensuring a person’s integrity and security, c) observing their confidentiality, and d) preventing illegal collection and processing. Creation of the register is also in tension with Article 17 of the International Covenant on Civil and Political Rights (ICCPR), which states that everyone should be free from arbitrary and undue interference with their right to privacy.
2. Data Protection Standards for Obtaining Consent
Kazakhstan’s Personal Data and Protection law of 2013 also articulates that distribution of personal data is only allowed if the data subject consents to its use. The General Data Protection Regulation (GDPR) — a law that seeks to enforce data protection consistent with the Charter of Fundamental Rights of the European Union — underlines that processing personal data is generally prohibited, “unless it is expressly allowed by law, or the data subject has consented to the processing.” Consent itself has to be informed and unambiguous. This means that the subject must be notified about the nature and purpose of data processing, after which they should make a clear statement (or “a clear affirmative act”) either confirming or denying their consent.
Given its foundational nature, the Council of Europe’s Convention 108+ — Convention for the Protection of Individuals with Regard to the Processing of Personal Data — is another important document to consider in this discussion. Clause 1 of Article 5 states that data processing should be “proportionate” to its intended purpose and must “represent the free expression of an intentional choice.” Consent is not legitimate if the data subject comes under undue pressure and/or has no choice to withdraw it without prejudice.
The Kazakh authorities do not ask for individual or organizational consent prior to including them in the foreign funding register. We observe the same practice in the Russian Federation, which also does not ask its subjects for consent to disseminate personal data for public access. The so-called “foreign agents” law in Russia leaves ample room for the state to misuse its authority. Governments in the United States and Germany have flagged instances since 2017 when this law was used to charge human rights activist Valentina Cherevatenko. Charges were quickly dropped. Since the Russian invasion of Ukraine, the “foreign agents” law has been used to convict activists such as Vladimir Kara-Murza in April of 2023 on charges of “dissemination of false information on the Russian armed forces” and involvement with an “undesirable organization.” Given the use of these lists against activists, Kazakhstan could face a similar risk of such information being misused to target or prevent them from obtaining funding to continue their work. Regardless of the exception allowing Kazakh tax authorities to process data without consent, the publication of the list is a weaponization of such a provision against civil society and, therefore, disproportionate.
3. Principle of Non-Discrimination
Although the government frames this legislative change as a means to achieve greater transparency, the published database does not include civil servants and state officials. It also excludes organizations that obtain funding from foreign entities that have entered in bilateral or multilateral agreements with the Republic of Kazakhstan. If the purpose of the register is to increase transparency and trust, it is unclear as to why exemptions for foreign entities that have entered into such agreements are necessary.
Such selective nature of the law goes against Article 14 of Kazakhstan’s Constitution and Article 26 of ICCPR, both of which highlight the significance of non-discrimination and equality before the law. These exemptions point at a clear double standard that the government holds for itself as opposed to civil society groups, making the publications of the register illegitimate.
What is the context?
The Kazakh government’s recent efforts are a part of a larger package that the state has been working on since October 2015. Around this time, Kazakhstan’s Senate deputies proposed an amendment to the parliament’s previously-drafted law, which imposed restrictions and reporting requirements on non-governmental organizations (NGOs). According to Human Rights Watch, while it is acceptable for governments to conduct due diligence on NGOs’ funding sources, enforcing punitive measures and using vague language as the basis for undue and arbitrary interference is objectionable. In 2016, the Kazakh tax legislation officially adopted additional reporting standards for NGOs and other entities that receive and use foreign funding for the purposes of a) providing legal assistance, b) conducting sociological surveys, and/or c) collecting, analyzing and disseminating data. Tax authorities would now have the power to impose fines and/or suspend activities in the event of infraction. It is noteworthy that ambiguity of the legislation’s language presents a separate challenge, as it can be interpreted broadly,
In February 2018, the Minister of Finance of Kazakhstan issued an order approving the maintenance of a database of people receiving money from foreign states and international organizations. On March 13, 2023, the Minister of Finance amended this order (which was developed in accordance with Article 29 of Kazakhstan’s Tax Code), this time noting the information contained in the database (or a “register”) would be posted on www.kgd.gov.kz. The latter is an authorized website of Kazakhstan’s State Income Committee of the Ministry of Finance.
In 2020–2021, Kazakh tax authorities targeted over a dozen NGOs for violating these financial reporting and declaration requirements — a move which raised concerns due to its unfound grounds. Interestingly, the increased targeting of NGOs in 2020 coincided with the upcoming parliamentary elections. According to Marie Struthers, Amnesty International’s Eastern Europe and Central Asia Director, this was a “cynical attempt” to silence and antagonize the country’s most crucial voices. As a response, in November of the same year, seven civil society organizations (CSOs) issued a statement noting that CSOs in Kazakhstan are subject to significantly more scrutiny than commercial or governmental sectors, despite the latter receiving “incomparably larger amounts of [foreign] funding.” Signatories of this statement underscored that the 2016 amendments to the legislation were devoid of the principle of legal certainty, as they did not provide taxpayers with enough guidelines on how to correctly fill out the relevant forms. This leaves a significant room for the government to apply the law arbitrarily and according to its own, potentially-politically motivated interpretation. The overarching argument of the statement is that non-profit organizations in Kazakhstan have become targets of “discriminatory and repressive provisions of legislation.”
What are regional trends?
It is important to zoom out and look at this legislation in conjunction with Kazakhstan’s recent history, as well as overall trends in the region. There have been attempts to replicate this law (originally crafted in Russia) in countries like Georgia and Kyrgyzstan. A Russian-style foreign agents act was also adopted in Hungary under Viktor Orbán’s government back in 2017. While the Hungarian law was originally named “Transparency of Organizations Receiving Foreign Funds,” it soon came to be regarded as “anti-NGO law,” since it was perceived as serving as the government’s tool to demonize NGOs. This law was heavily criticized by institutions such as the European Parliament and the European Court of Justice.
The publication of the register has already had negative effects on NGOs in Kazakhstan. On September 25, Echo, a public association working on advocacy campaigns and monitoring Kazakh state body activities (primarily elections), was asked by a private bank Nurbank to provide documentation pertaining to their sources of income. According to the bank, the basis for the request had to do with Kazakhstan’s law on counter-terrorism. However, after Echo’s senior staff inquired further into justification of such a request, Nurbank authorities noted that it came as a result of Kazakhstan’s government publishing the foreign funding register.
Harmful consequences of similar legislation in Russia and Hungary is indicative that Kazakhstan runs the risk of marginalizing critical civic voices. This list can be used by the state as a weapon to stigmatize human rights organizations, or otherwise as a “legal” tool through which government authorities can silence dissent and implement targeted repression. Such practice contradicts Kazakhstan’s stated multi-vector approach in polarized global affairs, and might negatively impact the country’s international reputation and investment climate.
Kazakhstan should critically evaluate the adoption of foreign legislation models, scrutinizing whether they are in compliance with international human rights standards as well as the country’s constitutional principles. While government transparency is crucial, it should not come at the expense of violating citizens’ privacy rights. In its current form, the foreign funding register oversteps these boundaries. Given discussed concerns over privacy, non-discrimination and misuse of personal data for intimidation and suppression, a publicly accessible foreign funding register should be abolished.
