To the President of the Kyrgyz Republic, Sadyr Japarov
March 20, 2024
Re: A call from civil society organisations to veto the draft law on ‘’foreign representatives’’
Dear President Japarov,
We are writing to you on behalf of the undersigned civil society
organisations from different countries to express support for
Kyrgyzstan’s civil society and urge you to veto the amendments to the
Law on Non-commercial Organisations, known as the law on ‘’foreign
representatives’’, which parliament adopted
on third reading on March 14, 2024. The proposed amendments fall
seriously short of Kyrgyzstan’s international human rights obligations
and risk delivering a devastating blow to its vibrant civil society. The
amendments will impair civil society’s ability to carry out its
important and legitimate work to the benefit of the people of
Kyrgyzstan, and to promote public participation, transparency,
accountability and good governance, thereby eroding democratic and human
rights progress made by Kyrgyzstan with negative implications for its
international reputation. Further, the proposed amendments will endanger
international development and economic assistance programmes in the
country, which will also undermine prospects for the achievement of
sustainable development goals contrary to your government’s ambitious
agenda in this area. Thus, we urge you to veto the amendments for the
benefit of Kyrgyzstan and its people.
Both national and international human rights experts have concluded
that the draft law on ‘’foreign representatives’’ clearly violates
Kyrgyzstan’s international human rights obligations. For example, such
conclusions were presented in a joint communication
addressed to your government by three UN Special Rapporteurs, appointed
by the UN Human Rights Council, of which Kyrgyzstan currently is a
member. The three rapporteurs stated that ‘’many provisions in the
proposed law would be contrary to the international human rights
obligations of the Kyrgyz Republic, including the right to the freedom
of association, the right to freedom of opinion and expression, the
right to non-discrimination and the right to privacy. If passed, this
draft law could have a chilling effect on the operation of all
associations in the Kyrgyz Republic, limiting their ability to advocate
for human rights, provide social services, and contribute to the
development of a robust and inclusive society.’’
In an earlier legal assessment
prepared at the request of Kyrgyzstan’s Ombudsperson, the OSCE Office
for Democratic Institutions and Human Rights (ODIHR) found that the
proposed provisions lack legitimate justification and do not meet the
requirements of international human rights law for acceptable
restrictions on the right to freedom of association. ODIHR also stressed
that the key concepts of “foreign representatives’’ and “political
activities” used in the draft law are inconsistent with the principle of
legal certainty and predictability and ‘’would allow unfettered
discretion on the part of the implementing authorities’’. ODIHR further
found that the proposed provisions are contrary to the principle of
non-discrimination and risk stigmatising organisations carrying out
legitimate work and triggering mistrust, fear and hostility against
them.
The draft law on ‘’foreign representatives’’ does not only violate
your country’s international obligations but also contradicts provisions
of the Constitution of the Kyrgyz Republic (including articles 36, 32,
24 and 29), which protect the right to freedom of association and other
fundamental rights. In this way, the draft law challenges the legitimacy
of the current Constitution, which was initiated by you and endorsed by
citizens in a national referendum in 2021.
The proponents of the draft law on ‘’foreign representatives’’ have
argued that it is aimed at ensuring the transparency of civil society
organisations (CSOs). However, while transparency is an important issue,
it is not a legitimate reason under international human rights law for
imposing invasive, discriminatory, and stigmatising restrictions on
CSOs. On the contrary, transparency can be ensured in ways which do not
contradict international law nor hamper the work of CSOs. Moreover, all
non-commercial organisations in Kyrgyzstan, including those which
receive foreign funding, are already subjected to extensive state
control and regularly report about their activities and finances to
different state bodies, which ensures transparency of their work. In
particular, amendments to the Law on Non-commercial Organisations,
adopted in 2021, oblige non-commercial organisations to annually provide
detailed information on their sources of funding, use of funds and
assets for publication on the Tax Service’s website. This information is
thus already publicly accessible.
Rather than increasing the transparency of non-commercial
organisations, the draft law risks undermining civil society’s crucial
role in assisting public bodies with the provision of support to
vulnerable groups of the population, and also in promoting public sector
transparency and accountability. Watchdog organisations have already warned
of a significant decline in government transparency in Kyrgyzstan,
preventing the exposure of wrongdoing and increasing the risk of
corruption. This impairs foreign investments as well as economic growth
and well-being in the country.
Kyrgyzstan’s international partners have warned that the adoption of
the law on “foreign representatives” would negatively affect development
assistance programmes in the country. For example, in a joint statement
issued on March 14, 2024, the Delegation of the EU to the Kyrgyz
Republic and the Embassies of Canada, France, Germany, the United
Kingdom, and the United States stated that the proposed provisions would
‘’jeopardise our ability to provide assistance that improves the lives
of the citizens and residents of the Kyrgyz Republic’’. They stated
that, if signed in its current form, the law ‘’has the potential to hurt
the most vulnerable who rely on the essential services – such as food,
healthcare, and education – that non-profits and NGOs provide.’’ The UN
Resident Coordinator in the Kyrgyz Republic pointed out
that enacting the law would threaten civil society engagement in
development initiatives and the achievement of UN Sustainable
Development Goals (SDGs). Thus, the law contradicts the government’s aim of being among the top 30 countries in the realisation of SDGs by 2030.
The World Bank and the European Bank for Reconstruction and Development
have also stressed the importance that they attach to CSO engagement
for the success of their in-country operations, when commenting on NGO
concerns about the draft law’s potential impact on the activities of
international financial institutions in Kyrgyzstan.
As you know, as a beneficiary of the General Scheme of Preferences
Plus (GSP+), the Kyrgyz Republic is required to effectively implement international human rights conventions,
including the International Covenant on Civil and Political Rights
(ICCPR) in return for trade benefits afforded by the EU. Thus, the
adoption and enforcement of the law on ‘’foreign representatives’’ is
likely to negatively affect these benefits. The European Commission’s
recent GSP+ monitoring report
on the Kyrgyz Republic highlighted shrinking space for civil society as
a key area of concern and called for swift measures to reverse this
negative trend in the light of the country’s ICCPR obligations.
Moreover, in its resolution
adopted in July 2023, the European Parliament called for a reassessment
of Kyrgyzstan’s GSP+ benefits in view of recent developments, in
particular draft legislation which runs counter to the country’s
international human rights obligations.
We are aware that proponents of the draft law on ‘’foreign
representatives’’ have argued that it is similar to the US Foreign Agent
Registration Act (FARA). However, FARA differs from the proposed
legislation in Kyrgyzstan in crucial respects. In particular, FARA is
not targeted at non-commercial organisations which receive foreign
funding. Instead, FARA requires
persons who conduct certain activities ‘’at the order’’ or ‘’under the
direction or control’’ of a foreign government or other foreign entity
to register as an ‘’agent of a foreign principal’’ and periodically file
supplementary information about their activities in this capacity. The
purpose of FARA is to ensure the public disclosure of such information rather than to subject those registered under it to ongoing, invasive state control.
President Japarov, when you consider whether or not to sign the draft
law on ‘’foreign representatives’’, you are deciding the fate of civil
society in Kyrgyzstan. Will you opt for the path taken by authoritarian
countries, where similar legislation has been used in campaigns to
systematically dismantle independent civil society, with negative
implications for the reputation, prosperity and well-being of these
countries. Or for a more forward-looking, inclusive, and democratically
oriented approach under which CSOs are treated as important, respected
partners, who can work together with state bodies in addressing societal
problems, and international partners retain their confidence in
Kyrgyzstan’s commitment to sustainable development?
For the reasons outlined above, we urge you to refrain from signing
the draft law on ‘’foreign representatives’’ and ensure that any new
legislation impacting non-commercial organisations reflects Kyrgyzstan’s
international human rights obligations and undergoes thorough and
inclusive consultations with civil society, as well as national and
international experts. When elaborating this type of legislation, it is
crucial to take the opinions of CSOs directly affected by it into
account.
We thank you for your attention to the issues raised in this letter.
Sincerely,
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