"When developing laws and various rules for decision-making, significant influence is exerted by financial and industrial groups and large businesses. This is characteristic of almost all countries, including developed ones. However, when this occurs behind closed doors, in conditions of complete legal uncertainty, it creates a wide field for corruption. In the civilized world, politics is not formed behind closed doors", - said Kassym-Jomart Tokayev last spring while addressing the deputies.
A year later, there is no movement on this issue, at least in the public sphere. Meanwhile, discussions about the need to legalize gray players in the political field in the republic have been ongoing for many years. Tengrinews.kz learned from experts whether we need a lobbying law, how to regulate this field, and what it will give ordinary Kazakhstanis.
The concept of lobbying comes from the English word lobby – "back rooms" and implies activities aimed at influencing local and central authorities (legislative and executive), international organizations, and other structures to achieve the adoption/non-adoption of certain decisions.
In a number of countries, lobbying is legalized, while in others it is equated with corruption and prohibited. The USA was the first country to establish lobbying regulation at the federal law level in 1946. Private lobbyists and organizations are required to officially register and report on contracts with each client, disclosing information about fees. The same obligation applies to officials and companies, with violations leading to fines and even imprisonment.
In 2020, lobbying activities were regulated in 23 out of 41 countries that are members and partners of the OECD. In the European Union, lobbying is regulated differently. In Austria, Germany, and several other countries, disclosure of interactions with lobbyists is mandatory for representatives of all branches of government. Officials in 16 countries, including Scandinavian ones, are not required to disclose such information.
In other countries, self-regulation is common (Sweden). In Luxembourg and Malta, this activity is not regulated. In neighboring Russia, lobbying is also not regulated, although the issue has been raised repeatedly. According to estimates from international organizations, two-thirds of senators there promote the interests of various groups.
National Chamber as an example
Economist Askar Kysykov believes that lobbying in Kazakhstan is already regulated to some extent.
"This is evident in the example of the national chamber of entrepreneurs "Atameken" (NPP), which is the legitimate lobby for all businesses in the country. There are also industry associations. However, the effectiveness of the chamber is at a low level. The work of channels for interaction between industry businesses and government agencies, deputies through expert councils and working groups is disorganized. It is necessary to revive the model of interaction between business and the state so that the NPP has real negotiating power in dialogue with the government and Parliament, consolidating the industry business with a focus on small and microbusinesses as well," the economist believes.
He considers it possible to adopt a framework law through which lobbying organizations will gain access to the legislative process on transparent terms and normal principles. They will de jure have rights and obligations.
The question of introducing lobbying into the legal field in our country based on the Western model is unlikely due to contextual differences, Kysykov believes.
"In the USA, if a company wants to lobby for its interests, it must create a special lobbying division, register in the appropriate registry, or enter into an official contract with professional lobbying structures, making all information public, including the budget for promoting the initiative. This is not related to direct bribery of deputies: lobbyists contact congressmen and can implement a charitable program in the state of the elected representative, who in return promotes the initiative," explains the interlocutor.
De jure, de facto, and a third party
The head of the DESHT analytical center Kuanysh Zhaikov states: the discussion of the lobbying law has been ongoing in Kazakhstan for 25 years.
"This issue has three sides: formal, informal, and law enforcement. We will not solve the problem just by introducing a law. By law, the use of hookahs in public places is prohibited in the Republic of Kazakhstan, but hookah bars operate. We have many ineffective laws, so why should the lobbying document work?"
"The law itself means nothing - in essence, it is a formal rule. It can very well turn out to be a framework: we provide definitions and identify players. But this will not take lobbying out of the gray zone. And this is the first problem," says the economist.
The second problem, in his opinion, lies in the conflict between formal and informal rules.
"In this context, it is much more important to study lobbying from the perspective of how it works de facto. This is usually done by public policy guys who study the political arena - the place where various interest groups collide and various decisions are made. Specialists study which interest groups exist in which areas, who has what "approach" and how they are connected. Accordingly, a map is drawn that clarifies the mechanism of lobbying. After that, you have a choice: either you break this thing, or you legalize it - you write a law for informal practice," says Zhaikov.
The third problem is law enforcement.
"After the law is enacted, how will we monitor its implementation? Will we require organizations to register, invent a code for "lobbying activities"? How will we make companies actually sign under this code and show all transactions?.. Can we separate lobbying from any other activity?"
"We have such a complicated execution apparatus that if we untie its hands, it will implement a voluntarily developed system of punishments, freely interpreting the norms of the law. In this case, anyone can be brought under lobbying," predicts the analyst.
He notes the thin line when ideas transition into lobbying.
"In the USA, the Republican Party advocates for a market economy with minimal taxes and a conservative lifestyle. Democrats "push" for the expansion of social programs and freedom of private life, LGBT rights, and so on. Behind both sides are specific think tanks that lobby for the interests of the parties through the development of corresponding drafts of state policy. Kazakhstani think tanks love to hold round tables on pressing issues: tobacco or vapes, for example. They gather a group of experts, discuss for two hours. Or microfinance organizations declare that microfinancing is normal, contrary to the trend of over-indebtedness. Can these steps be classified as lobbying? And if the listed participants did not take money for promoting the idea, but genuinely believe in it?" - questions the head of the analytical center.
He admits that he personally believes in a market economy and when he regularly raises the issue of excessive state regulation, he is suspected of lobbying.
"Yes, I can be classified as a lobbyist, since ultimately the end beneficiary of promoting my ideas will be some private company. But did it pay me? No."
"On some topics, I sometimes have to stop writing because I start getting hints about lobbying. Sometimes they come directly and offer to work on a specific issue, promising budgets and information for research. I refuse: stepping on such a mine means burying my reputation," Zhaikov is convinced.
Grassroots and top-level
The economist calls for a distinction between grassroots and top-level lobbying.
"There are no unified public interests - there are many different groups. If a construction company in the Botanical Garden wants to build a residential complex, it infringes on the interests of the residents of the area. To defend the interests of the unorganized majority against the organized minority, lobbyists are needed. And this is a separate profession that must be paid for so that people engage in it on a permanent basis.
The state can stimulate the emergence of public lobbyists through grants. This is necessary because in grassroots lobbying, the most important thing is leveling the field: if the negotiation process is skewed, it is necessary to support the weak," says Zhaikov.
Top-level lobbying is about the divergence between developed and developing countries, about issues of high corruption, checks and balances, accountability of authorities, and preventing arbitrariness on their part.
"Even if we change the entire Constitution with one sentence stating that lobbying is prohibited, nothing will change. This is a matter of significant historical institutional changes. We still have to go through this process to institutionalize lobbying at the very top level and make it more civilized," emphasizes the CEO of DESHT.
There is no single practice for working with lobbying in the world, the interlocutor continues.
"There is the Anglo-Saxon model, the continental model, models of developing countries... If we really want to legalize lobbying, we need to build our own law, and it will not resemble the best practices of the USA and the EU," the economist is convinced.
Beneficiaries of the process
According to Kuanysh Zhaikov, if there were demand for lobbying regulation, the law would have appeared long ago.
"But the lobbying law has no lobbyists. But the problem is not the absence of a document, but high corruption. Who is the end beneficiary of regulating the lobbying process? Not the public; ordinary people have enough of their own problems without having to deal with this chain of connections. The beneficiaries are players in the political field and the media. Journalists need to know who to work with and who not to, to correctly assess the expert, to be sure whether their opinion is paid or independent, whether a particular topic is intentionally heated or if there is objective demand from the public," says the interlocutor.
The second beneficiaries are representatives of government agencies, who receive large amounts of information, and often they themselves do not fully understand the topic.
"All these moments relate to transactional costs that complicate work. Time is needed to immerse not in the topic, but in the processes and personas. Can we simplify this work? Yes, through the publication of information in the public domain about who, how, and with what is connected. It is necessary to bring all government reports, studies, on the basis of which state programs, national projects, concepts, and resolutions are developed, into the public domain," believes Kuanysh Zhaikov.
In fact, lobbying organizations in the country are disguised as legal and consulting firms, GR companies (government relations).
"Public disclosure of information about which procurements, studies these companies participate in, the timing, the ordering government agency, the head, the curator, the budget, and all subcontractors would help understand the schemes of connections and make a decision whether to work with them or not. Such a reputational audit. And no separate lobbying law is needed: such mechanisms radically reduce transactional costs," emphasizes the head of DESHT.
One has a spear, the other a "Kalashnikov"
Kuanysh Zhaikov points out another name for lobbying - advocacy.
"And this is already about protection: private companies need to protect themselves. And if it is necessary to finance lobbying structures for this, they will do so. In a competitive market, business operates on equal terms."
"It's like two batyrs in the steppe with the same weapons. Whoever has the cooler product is the one on horseback. The players win consumers: the quality is better, the product is cheaper. Problems arise when one player breaks the rules of the game: they go to the state and start convincing it to rewrite them. Besides the spear, they are given the right to use a Kalashnikov. And the second player only has a spear."
"In the context of lobbying, this is done delicately, as market participants know the strengths and weaknesses of their opponent. Due to legislative regulation, the strong position of the competitor will disappear," says the economist, adding that the second side, intent on survival, will do the same.
The economist compares lobbyists to Charon: if he was the intermediary between the world of the living and the dead, then the lobbyist is the link between business and politicians.
"A lobbyist can accompany you to high offices, advise you on whom to pressure and how much to pay, and this payment is not always monetary. It can be barter in the form of a business trip, training at a conditional Stanford, and so on. By the way, this is one of the problems of direct lobbying: first, you regulate the sphere, and then you start working in it. And in Kazakhstan, there are many such cases where a minister, deputy minister, head of some committee is responsible for the sphere, and then leaves public service and ends up in a private corporation or, conversely, a representative of the private sector becomes a regulator of the sphere", notes the interlocutor.
Stopping such corrupt lobbying needs to be done through a ban: if you regulate the sphere, then for the next 5 years you cannot hold positions in it, even at the level of an advisor to the chairman.
"However, this hits another topic: everyone wants professionals in positions, and they come precisely from business... In any case, a separate lobbying law is not required to regulate these issues. And this is a working measure. We have many officials, especially in the banking sector, who have taken advantage of gaps in existing legislation and easily built careers," says the economist.
Lobbying in the mining and oil sectors is a separate topic for discussion, Zhaikov continues.
"In these sectors, the interests of elites are historically promoted. Foreign companies that want to enter our market on open terms begin to face this status quo. And they have questions about where to find people who know how decision-making works in this industry. And legal firms, GR companies come into contact. Against some lobbyists, others appear, and due to this confrontation, it is possible to more or less coordinate the industries and maintain balance. This is the system of checks and balances," says the economist.
In general, if we manage to make decision-making processes transparent and competitive, the price of the issue is tripling Kazakhstan's GDP, believes the economist.
In the interests of the "new Kazakhs"
President of the NGO "Association for Business, Society, and Government Relations" Aizhan Uteuova also does not consider the legalization of lobbying a solution to the issue.
"Here, the question is more about the effectiveness of existing power institutions, and in the context of the thin line between lobbying and corruption - about anti-corruption officials. I agree with experts who argue that in Kazakhstan it is more expedient to regulate lobbying indirectly. That is, to achieve transparency in the activities of government agencies, equal access to information, institutionalization of discussions on important issues with the public with appropriate independent expertise of subsequent decisions. And often even government agencies lack information and knowledge on certain issues that are later included in draft laws," says the political consultant.
She reminds that a number of specialists do not see the need for a separate lobbying law against the backdrop of the existing law on "self-regulation" since 2015.
"The self-regulation law allows industry organizations to respond more flexibly to changes in their field and solve issues without direct government intervention. But self-regulation and lobbying represent different mechanisms for regulating activities in different areas, and their functions do not completely coincide," Uteuova clarifies.
She emphasizes the need to distinguish between lobbying and corruption.
"We are doing analytics in the field of public procurement of one ministry - the field is unplowed. We need to find out who insisted on purchasing a "Zaporozhets" instead of a "Mercedes", which ultimately led to a tragic outcome. But this is about corruption. In this context, it is more important to introduce a law on personal responsibility without a statute of limitations. There should be information in the public domain about who was responsible for a specific state program, decision - which minister, akim", believes the interlocutor.
The political technologist recounts how in 1998 an expert survey was conducted on the topic "In whose interests are reforms being carried out in Kazakhstan". 43 percent of respondents answered that in the interests of the departmental-bureaucratic nomenclature. 29 percent believed that in the interests of clan groups, 24 percent - in the interests of the emerging middle class, 22 percent - in the interests of financial and industrial circles. 16 percent thought it was in the interests of the "new Kazakhs" (the term was not disclosed). In the interests of agrarians - zero respondents. For the improvement of the lives of criminal-mafioso structures - 8 percent of respondents answered, for the population - 9 percent.
"If a lobbying law is to be adopted, it should clearly outline all requirements for participants in the process, including a ban on holding certain positions in case of a conflict of interest (as in Germany), the size of fees for supporting lobbying interests, tax reports. There should be strict control over the work of lobbying companies, a list of which should be publicly available. All this will increase the possibility of official interaction with government agencies, where there are currently problems. Overall, I support a lobbying law, but on the condition that all systems of power work: law enforcement, judicial, and so on," says the political consultant.
Speak a word about developers
Earlier, deputies in the ODAGAI project answered the question about lobbying various interests in their work.
Former Majiliswoman Dina Shukizhanova stated that she sees nothing wrong in promoting the interests of agricultural producers.
"When I defend the rights of industrial enterprises in committees - this is also a kind of lobbying for the processing industry. And this is normal: you came from the field, you represent, you "push", you do not hide problems," Shukizhanova noted.
Bakytzhan Bazarbek stated that in 2018, the interests of developers were lobbied by the deputies of the then convocation.
"After I introduced unpopular bills with amendments on seismic safety, the prohibition of providing plots in dangerous areas of Almaty, people come to me and say: "You are infringing on business." As a single-mandate deputy, no one can tell me: "Do not touch this norm, do not introduce this amendment, vote for this bill." But I faced hidden provocation: my baby stroller was burned," Bazarbek shared.
Deputy Konstantin Avershin, in turn, suggested defining the definitions.
"In our country, lobbying has a negative connotation. And lobbyists in Kazakhstan are usually entrepreneurs, financial and industrial groups. I am a categorical opponent of such manifestations," Avershin said, adding that there is beneficial lobbying, for example, from environmental communities, which should be listened to.
And during his time in the Almaty maslikhat, he was approached by lobbyists-developers.
"We were then considering the problems of infill construction. Here, the question is about principles, ethics, and the individual representative of the branch of power," noted the deputy.
Rules of the game: dinner with a deputy is canceled
Partner of the international consulting company SIC group USA LLC, president of the Ukrainian Association of Professionals in the field of GR and lobbyists (UAGRPL) Kateryna Odarchenko talks about the significant difference between lobbying in developed and developing countries.
"Our countries (Kateryna is originally from Ukraine – pnote) still suffer from monopolies, and this is about the direct connection between the economic situation and the political situation... Under Yanukovych, oligarchs in Ukraine had direct influence on parliament. Deputies worked directly for financial and industrial groups, received a second salary, and did exactly what they were told. That is, they did not fulfill the function of representing the people."
"In the USA, financial and industrial groups have a legal way to contribute to a candidate's election fund. Or businessmen can allocate money to a political action committee (PAC) - organizations that finance politicians and parties. There are conservative, liberal PACs, for Israel and others. On the website opensecrets.org - a generator of information about all donations for elections and lobbying contracts - you can find out who contributed the most to specific PACs. Such transparency is the result of high competition in politics," says the political technologist.
In addition, there are elements of regulatory policy that dictate the rules of the game.
"In the USA, you cannot treat a deputy to dinner - this is equated with corruption. At the same time, as a politician, you can openly appeal to relevant associations, stating that you advocate for additional subsidies for the industry, and take money, which must be reported on a special website where all lobbying contracts are posted. And for failure to comply with reporting requirements, one can face punishment. Many well-known consultants have been punished for not notifying about lobbying activities," notes the expert.
The association of lobbyists, in which the interlocutor is a member, participated in the development of laws in several countries.
"Is it necessary to introduce strict regulation of lobbying in Kazakhstan, as in the USA? No, it will not work. In markets where the issue is not regulated, soft measures need to be introduced, explaining to people the tools, including to small and medium businesses, which will see the benefits of legalized lobbying, which is better than corruption," believes the political technologist.
Like any other consulting and service market, lobbying has its rates: on average, a lobbyist charges from 15 to 45 thousand dollars a month for work, claims Odarchenko.
"It depends on the volume and complexity of the work. Such contracts often include not only salary expenses but also promotion items - this is part of GR: preparing a stakeholder map - decision-makers, writing legal documents, analyzing their impact, media campaigns. These areas may require another 300 thousand dollars or a million. Of course, like any business activity, lobbying services are subject to taxes," continues the interlocutor.
When livestock breeders are more effective than oligarchs
The legalization of lobbying with the right model provides a higher quality legislative process, emphasizes the political consultant.
"Will the law on the protection of the rights of cancer patients be developed better if patients are involved in it? Of course, because they know the problems from the inside. This is an example of advocacy, representing certain public interests. Just as legislation for agrarians will be much better if farmers participate in its development. And the key task of the lobbying law will be to make the procedure transparent and competitive, as livestock breeders can compete for subsidies with fish producers or agrarians who grow grain crops. Lobbying is mainly about the struggle for subsidies, whether in the European Parliament or the Mazhilis. In this competition, a new quality of the legislative process is born," emphasizes Odarchenko.
"We started our lobbying association in Ukraine from scratch. At one time, for Ukrainian business, it was something incomprehensible; they did not know what GR was. But when we started this communication, business saw that legalized lobbying is cheaper than corruption, more transparent, and has a longer-term effect", summarizes Odarchenko. Illustrations and collages: Tengrinews.kz/Akmaraal Karashon