Keywords

1 Introduction

One of the first public manifestations of the struggle for women’s rights in modern day Kyrgyzstan dates back to 1995 when a delegation of gender activists first took part in the IV World Conference on Women. The conference resulted in the adoption of the Beijing Declaration and Platform for Action, a comprehensive policy framework that sets the global agenda for achieving gender equality and the empowerment of women. Since then, Kyrgyzstan’s government has gradually begun the process of joining the main international treaties in the field of women’s rights. In this regard, the country has embarked on the path of harmonizing and developing national legislation per the standards of gender equality and non-discrimination by deploying gender approaches in its policies and legal frameworks. Apart from the United Nations (UN), the Organization for Security and Co-operation in Europe (OSCE) has been instrumental in improving and enacting Kyrgyz laws and other gender-sensitive policy and regulatory instruments. Being a security-oriented organization, the OSCE’s main goals include promoting the principle of gender equality and integrating a gender perspective into the decision-making of its member states. Even despite certain obstacles encountered in the enforcement of the organization’s gender policy, such problems as cooperation with government agencies or scepticism about its programmes, the OSCE/Office for Democratic Institutions and Human Rights (ODIHR) Gender Programme has made a significant contribution to the formation of gender legislation and, in general, to the promotion of the principle of gender equality in Kyrgyz society.

Since its independence Kyrgyzstan has taken momentous steps in developing legislative measures to protect and support women’s rights, yet the adoption of legislation alone is not sufficient for the effective implementation of gender policy. In many aspects, a patriarchal social system with high respect for the traditions and customs of ancestry dominates in Kyrgyzstan, directly affecting the position of women and their rights in the state. In addition, uptake of religious values is also accelerating pace in society, adversely affecting the attitude towards Kyrgyz women and girls. Despite joining the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) in 1996, Kyrgyzstan ranks among the bottommost in the world in terms of gender equality and violence against women. Female workers are overrepresented in poorly paid sectors such as agriculture, healthcare, and education, and earn significantly less than their male counterparts (Amanova & Shatmanaliev, 2020; Muratbaeva, 2016; UN Women, 2021). Likewise, women play far less active roles in political life despite the introduction of thirty per cent gender quota across all levels of the government. With regard to gender-based violence, the issue occupies one of the leading positions in Kyrgyzstan. Kyrgyz women are often victims of various forms of abuse, from the more widespread, such as domestic violence (Childress, 2018; Childress et al., 2017) and trafficking in women (The US Department of State, 2021; Zhakypbekova, 2018), to the more traditional, such as early marriage (Margolis, 2016), bride kidnapping (ala-kachuu) (Kleinbach & Salimjanova, 2007) or “kelinism” (new brides’ forced into subservience to their mothers-in-law in their husbands’ households) (Akisheva, 2021b; Kudaibergenova, 2018; Zhussipbek & Nagayeva, 2020).

On 11 April 2021, Kyrgyzstan held a referendum adopting a new Constitution. At the heart of the document was the transition from a parliamentary form of government to a presidential one. The Constitution also contains a focus on “traditional values” which could lead to significant discrimination and exclusion of women from public life. The ODIHR has made several attempts to dissuade the new government of Kyrgyzstan from adopting constitutional provisions that violate international human rights and the rule of law foundations. Before and during the observation of the Presidential Elections and Constitutional Referendums of 2021, the ODIHR was concerned about the situation in the country and had already warned the Kyrgyz government against adopting certain amendments, conducting analysis reports with valuable recommendations. However, these efforts did not prevent the government from embarking on a course of precarious constitutional reform. From the very Preamble, the new Constitution itself obliquely announces that the state is taking a course towards a “neo-traditionalist” approach (Schmitz, 2021), a policy that risks exalting traditions, customs, and morality above the Law. Such conventional reforms have the potential not to improve but, on the contrary, adversely affect the position of women in the country. Leaving aside the numerous procedural violations presented by the new constitutional law—ranging from the illegitimate announcement and adoption of the referendum, violations of the Constitutional Council’s work, the elimination of the system of checks and balances, and the usurpation of power into the head of state’s hands—some provisions also pose a risk to the rights of women (Akisheva, 2021a).

The new constitutional framework of Kyrgyzstan has so far sparked limited discussion in academia (Schmitz, 2021). Existing legal analysis, opinions, and reports of NGOs (Grazhdanskaja platforma, 2021; Human Rights Watch, 2021; OF “Pravovaja Klinika Adilet,” 2021) and international organizations (OSCE/ODIHR, 2021a; OSCE/ODIHR & Venice Commission, 2021) have mostly concentrated on the general discourse and examination of the articles. However, the issue of human rights along the country’s new constitutional path requires a debate from a different point of view, through the prism of women and girls, since the country’s new constitutional policy will directly affect them. This chapter focuses on a legal analysis of the new constitutional legal framework of Kyrgyzstan from a gender perspective, highlighting the threats of the “neo-traditionalist” approach to women’s rights. Accordingly, this study argues that the new constitutional legal framework threatens to become a tool that can primarily suppress the position of women in Kyrgyz society. The research examines how the new “neo-traditionalist” constitutional transition of Kyrgyzstan risks negatively affecting the rights of women and girls in the state. The first part gives the reader a general introduction to the current situation regarding women’s rights in Kyrgyzstan and its regulation in the legal context. The second part focuses on the role of the OSCE in supporting and developing gender-sensitive legal foundations in Kyrgyzstan. More specifically, the discourse covers how OSCE/ODIHR gender projects have supported moves towards developing gender-sensitive legislation and the spread of the principles of gender equality and non-discrimination in Kyrgyz society, as well as what problems it faced in this process. Finally, the last part analyses the “neo-traditionalist” orientations in the new constitutional framework of Kyrgyzstan and their possible impact on the position and rights of Kyrgyz women and girls, in addition to the attempts of the OSCE/ODIHR to prevent the new Kyrgyz government from adopting constitutional provisions in violation of standards of human rights.

2 Protecting Women’s Rights

The Kyrgyz Republic began the process of joining the leading international legal treaties in the field of women’s rights and the elaboration of national legislation in terms of gender policy from the first days of its sovereignty in 1991. The country has ratified a diverse set of international human rights treaties protecting women and girls from discrimination and violence, including the UN CEDAW (1979), and its Optional Protocol (1999), the UN International Covenant on Economic, Social and Cultural Rights (1966b), the International Covenant on Civil and Political Rights (1966a), the Convention on the Rights of the Child (1989), the UN Convention against Transnational Organized Crime (2000b), and the Protocol on Trafficking in Persons (2000a). After the accession of Kyrgyzstan to CEDAW, the leading international instrument for eliminating discrimination against women, in 1996, domestic legislation and national programmes began to be brought in line with international convention. A number of legal documents and plans were adopted, such as the National Program “Ayalzat” 1996–2000, and Laws On the Reproductive Rights of Citizens (2000), Social and Legal Protection from Domestic Violence (2003), State Guarantees for Ensuring Gender Equality (2003), and State Guarantees of Equal Rights and Opportunities for Men and Women (2008), as well as National Action Plans for Achieving Gender Equality 2002–2006, 2007–2010, and 2018–2020 (The Government of Kyrgyz Republic, 2021). Moreover, the country periodically submits a report on the measures taken to achieve gender equality. While some of the legal acts fell short of expectations, others remain in place.

Accordingly, Kyrgyzstan has taken significant steps in developing legislative measures to protect and support women’s rights since gaining independence. The adoption of legislation alone, however, is evidently not enough for the effective implementation of gender policy. Even though specialized legislative acts have been adopted and harmonized in accordance with international standards of women’s rights, the national statistics and National Periodic Reports for CEDAW show that the problems of gender inequality and violence against women remained unchanged after ratification (Kyrgyzstan, 2019). Consecutively, cases of some types of gender-based violence have increased, especially during the COVID-19 pandemic (National Statistical Committee of the KR, 2021). While, this does not mean that there were fewer number of cases before, the critical point is that the society began to pay greater attention to issues of violence against women and girls, and more cases are being reported in Kyrgyzstan.

3 Gender (In)Equality

In line with Article 24(3) of the 2021 Constitution, the Law on State Guarantees of Equal Rights and Opportunities for Men and Women from 2008 establishes equal rights and freedoms for men and women and equal opportunities for enjoyment of these rights. Despite that, the participation of women in the economic and political system of Kyrgyzstan has deteriorated over the past 15 years. The rank of Kyrgyzstan has fallen by ten positions, indicating that the status of women in decision-making has declined in the local and national dimensions (World Economic Forum, 2021). Indeed, women are practically excluded from the policymaking process and play far fewer active roles in political and social life in the light of the traditional or religious attitudes in Kyrgyz society, even despite the introduction of a thirty per cent gender quota across all levels of the government. Only three seats out of nineteen are occupied by women in the executive branch of Kyrgyzstan: one Minister of Justice, one Chairman of the State Committee on Ecology and Climate, and a Vice Prime Minister (Cabinet of Ministers of the Kyrgyz Republic, 2021). In the Jogorku Kenesh (Kyrgyz Parliament), out of 120 members, twenty female deputies reserved seats in the last elected Parliament, which is only seventeen per cent of the prescribed gender quota (Jogorku Kenesh of the Kyrgyz Republic, 2021).

Against this backdrop, it is not surprising that according to the UN Gender Inequality Index, Kyrgyzstan ranks 122nd globally (UN Data, 2020), and the World Economic Forum’s Gender Gap Report indicates that, in 2021, Kyrgyzstan took 108th place out of 156 (World Economic Forum, 2021). The report highlights critical areas of inequality between men and women. In most areas, Kyrgyz women are better represented in the least paid sectors: healthcare, social services, finance, and household services (Muratbaeva, 2016). Of course, it is difficult to say unequivocally that gender inequality is plainly manifested in Kyrgyz society. However, at the same time, its indirect aspects are evident in the segregation of labour, when women are more likely to work in low-paid jobs (Muratbaeva, 2016; UN Women, 2021), or involved in unpaid domestic work, limiting the employment opportunities for rural women in farming or other businesses (Amanova & Shatmanaliev, 2020).

4 Violence against Women

As stated in the latest Organisation for Economic Co-operation and Development's (OECD) data, one in three women, in Kyrgyzstan (32.8%) experience sexual violence, abduction, or other types of abuse (OECD, 2021). These are stimulated by traditionalism and sociocultural practices in the Central Asian region and often also supported by a religious mindset. Violence against women is widespread in the country and takes different forms, whether internationally widespread, such as domestic violence, trafficking in women and girls, the sale of newborn children, or more traditionally inspired, such as bride kidnapping, early and forced marriages , and “kelinism” 2021a. In connection with the indicated problems of gender-based violence in Kyrgyzstan, specific laws have been developed and supplemented to regulate violence against women and related problems.

The Law on the Protection and Defence against Domestic Violence (2017) is the primary legal document regulating the issue of domestic violence in the country, and replaced the old 2003 Law on domestic violence which was criticized by many. First, the law establishes measures to protect victims of domestic violence, covering not only physical but also psychological and economic abuse. Second, the Law requires that police issue protection orders and register a domestic violence complaint not only from the victim but from anyone. Third, the legal text offers instruction on the necessary legal, medical, and psychological assistance, social support, and counselling services to be provided the victims of domestic abuse. In connection with the issue of domestic abuse, since 2008 the CEDAW Committee has strongly recommended that Kyrgyzstan address the traditional cultural attitudes and causes underlying the practice of bride kidnapping. In response, the Kyrgyz Government has developed and adopted provisions in the framework of the Criminal Code to toughen the punishment for the abduction of girls. A new Criminal Code, adopted in October 2021, provides for liability in the form of imprisonment from five to seven years (Criminal Code of the Kyrgyz Republic, 2021, Art. 172). Since 2016, significant steps have been undertaken to protect girls from early marriages following the implementation of CEDAW. Amendments were made to the Family Code and Criminal Code of Kyrgyzstan prohibiting religious rites with minors under 18. According to the provisions, parents, clergy, and other persons who have performed a religious marriage ceremony for minors will be imprisoned for three to five years (Criminal Code of Kyrgyz Republic, 2021, Art. 175). It is noteworthy that the criminal responsibility for holding religious ceremonies for minors is applied to representatives of all religions. Finally, trafficking in women is regulated by Kyrgyz national criminal legislation in addition to international law. Article 166 of the Criminal Code of Kyrgyzstan establishes liability for the misuse for the purposes of prostitution and other forms of sexual exploitation or slavery in the form of imprisonment for a period from three to six years, with aggravating circumstances from eight to eleven years.

Although international human rights and technical domestic legal and policy regulations have been adopted in Kyrgyzstan, the question of violence against women remains open. In many respects, patriarchal Kyrgyz society assigns a secondary role to females and does not allow women to control their own lives. Thus, problems such as early and forced marriages, bride kidnapping, domestic violence, “kelinism,” trafficking in women, and other forms of gender-discriminatory events still emerge across the state. Regionally, the fundamental legal issue is that no regional legal instrument to regulate the issue is under consideration in Kyrgyzstan or in Central Asia overall. Indeed, the Istanbul Convention on Preventing and Combating Violence against Women and Domestic Violence (2014), one of the primary legal tools providing a comprehensive framework for tackling violence against women, is openly awaiting ratification by all countries. Yet, Kyrgyzstan is not party to the Istanbul Convention. There is a small chance that the country, and the region, will join the Istanbul Convention as, following the recent tendency of fraternal Turkey, patriarchal Kyrgyzstan may interpret it as a threat to the family traditions.

While certain measures have been taken to ensure gender equality, Kyrgyz society remains on somewhat patriarchal and traditional foundations. These trends have a significant impact on the status of women and girls, who are viewed primarily as mothers, wives, and housewives, and as belonging to their male parts. Yet, Kyrgyzstan has a long way to achieve gender equality and full respect for women’s rights. The OSCE assistance played an influential role in the formation and improvement of national legislation on gender and women’s rights in Kyrgyzstan. The next section shows to what extent this has affected the women’s rights situation in the country.

5 Kyrgyzstan towards Gender Equality: The Role of the OSCE

The OSCE relations with Central Asian countries began in 1995 with the opening of the Central Asia Liaison Office (CALO) in Tashkent, Uzbekistan. The primary purpose of the office was to promote principles of good governance in the region with an emphasis on rule of law and human rights, and to implement the ODIHR projects on migration, gender issues, and election assistance and monitoring. Two years later, the ODIHR established formal relations with the Kyrgyz Republic by memorandum of understanding with the Kyrgyz government (Galbreath, 2009). In the 2000s, the CALO, renamed as the OSCE Centre, opened representation in Bishkek (Freire, 2005).

Today, the activity of the OSCE Programme Office in Bishkek is based on security problems, such as borders, terrorism, corruption, and human trafficking. At the same time, an essential aspect of the organization’s work is assistance in the conduct and monitoring of elections in the country, judicial reform, and, most importantly for this study, promotion of gender equality (OSCE Programme Office in Bishkek, 2021). The 1999 Charter for European Security (OSCE Ministerial Council, 2004b), the 2004 OSCE Action Plan for the Promotion of Gender Equality (OSCE Ministerial Council, 2004a), and related decisions are the main legal frameworks of the OSCE to enshrine the principles of gender equality. Moreover, with the principal goal of integrating the principles of gender equality and non-discrimination into the policies of its member states, the organization conducts its activities in line with the UN Office of the Special Adviser on Gender Issues and Advancement of Women (OSAGI) Landmark resolution on Women, Peace and Security (2000). In order to harmonize the National Strategies of the Kyrgyz Republic to achieve gender equality (The Government of the Kyrgyz Republic, 2012) and other gender-related legislation per the Resolution, the OSCE assists the country in promoting women’s empowerment and gender aspects in decision-making, which includes not only raising awareness among women and girls but also among men and boys (OSCE, 2021b).

From the very beginning, the OSCE/ODIHR Gender ProgrammeFootnote 1 began to aid the states of Central Asia and the South Caucasus, approaching each of differently. The OSCE and Kyrgyzstan engaged in earlier and closer cooperation on gender policy compared to other Central Asian countries, as the country had a relatively free civil society. Consequently, the Programme was aimed at working mainly with the civil society of Kyrgyzstan. In contrast, for example, in states such as Armenia and Azerbaijan, the main driving force behind the organization’s programme was domestic violence and gender studies, while in Georgia, the emphasis was on developing a new coalition of female NGOs to address gender-related issues jointly (OSCE/ODIHR, 2009).

Since 2005, the OSCE has provided a systematic range of events related to gender equality and women’s rights in Kyrgyzstan. The organization has carried out various training sessions and educational events among Women Initiative Groups (OSCE, 2021b) and female professionals from the law enforcement sector (OSCE, 2018a), as well as for religious sector staff in fostering gender parity ideas (OSCE, 2017). A similar approach can be noticed in Tajikistan. In the same year, the OSCE began to assist Tajik Women’s Resource Centres in protecting victims of domestic violence by offering legal and psychological advice and through education and skill development (OSCE Office in Tajikistan, n.d.).

The OSCE is dedicated to fighting violence against women in line with the 2018 Ministerial Council Decision of its 57 member States on Preventing and Combating Violence against Women (OSCE Ministerial Council, 2018). Therefore, another leading effort of the organization in Kyrgyzstan was to follow the direction of eliminating all forms of abuse against women and girls in the country. In this regard, the Programme Office has undertaken various actions aimed at addressing gender-based violence, such as domestic violence, bride kidnapping, polygamy, and early marriage (OSCE, 2006b, 2010, 2018b). For instance, one of the activities was to run seminars and training for Women’s Initiative Groups in cooperation with the Mobile Police Reception (OSCE, 2006a). Concerning anti-discrimination policy, the OSCE office supported civil society organizations in Kyrgyzstan in preparing an Alternative Report for UN CEDAW in 2019 (OSCE, 2019). During the COVID-19 pandemic, the organization also held events in support of government agencies on the importance of the role of women during emergencies (OSCE, 2020b).

6 Gender-Responsive Legislative Reform

The OSCE Programme Office in Bishkek broadly supports the advancement of gender issues in the legislative sphere of Kyrgyzstan (OSCE, 2005b). Since 2000, the ODIHR Gender Programme has done significant work to endorse the network of female leaders in Kyrgyzstan. The Office conducted activities in partnership with the Kyrgyz Agency for Social Technologies (AST) in an effort to increase the role of women in policymaking, develop the idea of gender expertise, and promote the use of the media in promoting gender equality. In a nutshell, Kyrgyz women’s leadership, and the Parliament, with the assistance of the ODIHR, has made significant progress in advancing gender-sensitive legislation. In more detail, by lobbying for the creation of a “special presidential representative on gender issues,” the ODIHR and the AST helped increase women’s representation in decision-making following the 2005 elections, which had regrettably resulted in the absence of women in the Parliament (OSCE/ODIHR, 2009). The ODIHR helped incorporate into the Kyrgyz Constitutional framework provisions on equality between men and women that were not mentioned in the initial 1993 Constitution, as well as to adopt National Action Plans for Achieving Gender Equality. The AST, the ODIHR, and the Women’s Network also helped draft the first 2003 Law on domestic violence in Kyrgyzstan. Since 2006, a thirty per cent gender quota has been enacted by law in central and local government offices. In addition, Women’s Initiative Groups blocked attempts to decriminalize polygamy or bride kidnapping provisions (OSCE/ODIHR, 2009).

A big step towards gender equality in Kyrgyzstan was the adoption of the Law on State Guarantees for Ensuring Gender Equality, which was replaced by an improved version in 2008. The OSCE/ODIHR contributed to the assessment and analysis of the 2008 Law “on state guarantees of equal rights and opportunities for men and women,” giving a legal opinion on its draft. The OSCE/ODIHR has made recommendations for the clarification of certain terms, expanding the list of definitions such as “direct or indirect discrimination,” “gender mainstreaming,” the inclusion of a definition of “sexual harassment,” and so forth. Thus, the analysis of legal documents by the OSCE helped immensely in the development of the legal text and improvement of its interpretation and application in the future (OSCE/ODIHR, 2006). Following the experience of Kyrgyzstan, a bill on gender equality was adopted in Kazakhstan in 2009. This also took place with the support and assistance of the OSCE/ODIHR (OSCE, 2005a). However, the help was limited to one meeting on discussion of the draft law.

Some of the adopted laws in Kyrgyzstan, however, have not justify themselves from a practical point of view. For example, the above-mentioned 2003 domestic violence legal act proved problematic in terms of enforcement and fell short of expectations. The early national plans on gender equality did not have an implementation mechanism and therefore were not executed fully due to the lack of a budget (OSCE/ODIHR, 2009). Later, the new enhanced Law on the Protection and Defence against Domestic Violence has been in force since 2017. This new Law was developed with significant assistance from the ODIHR, which provided a legal opinion and analysis of its draft. The opinion was valuable in adopting the new Law in terms of incorporating a more effective mechanism for combatting violence in the country. Even though they were not all considered by the Kyrgyz Government and Parliament, the Office shared number of recommendations. One of the key proposals was a clear delineation of cases with and without criminal responsibility and a call for the criminalization of acts of domestic violence. With the adoption of new codes in 2021, provisions on domestic violence were included in the Criminal Code as a separate article with a maximum penalty of up to five years in prison (Criminal Code of the Kyrgyz Republic, 2021, Art. 177). In turn, the Code of Administrative Offenses of 2021 also contains a similar provision on domestic violence, but with a lesser penalty of three to seven days of arrest or by community service of forty hours (Code of the Kyrgyz Republic on Offenses, 2021, Art. 70). This duality of norms can cause conflict of laws or even diminish the protection of victims in severe cases of domestic violence. The legal opinion also called for the refusal of conciliation in the Courts of Aksakals in cases with a criminal aspect (OSCE/ODIHR, 2014), but the Law “On the Courts of Aksakals” (2002) still does not provide for such provisions.

As in Kyrgyzstan, positive experience was observed in Uzbekistan, where the OSCE helped the country to pass the Law “on the Protection of Women from Oppression and Violence” (2019) in order to combat the growth of gender-based violence (OSCE, 2020a). Such a favourable lineage in the development of gender legislation cannot be traced in neighbouring Turkmenistan. Compared to its Central Asian brother states, the Turkmen state has had rather limited cooperation with the OSCE in promoting gender equality, with most of the OSCE’s work in the country restricted to a theoretical basis through seminars and training. Given that Turkmenistan has not yet adopted a specialized law on domestic violence, the only practical success in this regard was the opening of the first crisis centre in Ashgabat (OSCE, 2012) and the activation of a hotline for victims of domestic abuse by the NGO “Keik Okara” with the support of the OSCE (2009).

Even though Kyrgyzstan is not a member of the Council of Europe, the OSCE/ODIHR have often called on Kyrgyzstan to accede to the Istanbul Convention and its explanatory report. The organisation stressed that the latter can serve as valuable and detailed documents on preventing and combating violence against women in the country (OSCE/ODIHR, 2014). This also applies to the entire Central Asian region.

7 Challenges to the OSCE Gender Policy

Notwithstanding measures undertaken in Kyrgyzstan, the work of the OSCE and other international organizations has been rather critically assessed by the countries of Central Asia. In many aspects, the Central Asian states have accused the OSCE of being somewhat slow in reacting to events and conflicts in the region, as it was with the revolutions (Dunay, 2017) and border clashes in Kyrgyzstan. Nevertheless, the OSCE’s slow response in Kyrgyzstan and Central Asia as a whole is associated with many factors. The obstacles were created by the political instability of some (Kyrgyzstan) or the power of other countries in the region. In many respects, the reluctance of governments to cooperate has created significant obstacles to the implementation of OSCE projects, including to gender-related programmes. The soft power nature of the organization also delineates the boundaries for the implementation of its policies in Central Asia (Freire, 2005). All in all, as was mentioned by Warkotsch, the OSCE has always faced particular challenges in Kyrgyzstan and other Central Asian states given that its ability to influence the domestic policy of non-member states is low (Warkotsch, 2007).

Speaking directly about the issues of women’s rights and the difficulties of the OSCE in providing assistance in this regard, the largest and most crucial element in the implementation of the OSCE programmes to promote gender equality in Kyrgyzstan is cooperation with local NGOs and government agencies. With the attraction of international support, the number of women’s NGOs in the country has begun to grow (for instance, the “Women Can Do Everything in Kyrgyzstan” network was effectively organized by the OSCE) (Simpson, 2006). This is presumed to be a positive trend as women’s organizations have finally begun to promote ideas of gender equality and non-discrimination in Kyrgyz society and have lobbied for women’s interests in legislation. However, women’s NGOs are suspected, as Simpson indicated, of being “ghettoized” and dependent on international donors in order to obtain funding in a highly competitive race. Furthermore, NGOs have been criticized for not taking into account the concerns of the local population, but rather following the abstract ideas and goals of international organizations, including of the OSCE (Simpson, 2006). On the flip side of the coin, there have also been certain problems for women’s organizations themselves and female leaders have faced difficulties of their own in cooperating with international organizations on the one hand, and with government agencies on the other. They have had to try to implement activities that, in many parts, did not correspond to local realities to meet the requirements of international donors (Megoran et al., 2014). Whereas in working with governmental offices, NGOs must convince the authorities that their project is essential, as was the case in Kyrgyzstan and Uzbekistan. When working with the OSCE, it was difficult for women’s NGOs to convince the state administration that they are not “foreign agents of the OSCE” (Ismailbekova & Megoran, 2020).

In general, it can be said that the OSCE and ODIHR women’s projects in Kyrgyzstan have had a positive impact on Kyrgyz society. They have created a basis for the dissemination of the principle of gender equality and non-discrimination in the country and among the population, as well as for the improvement and adoption of legislation and other acts with gender-sensitive aspects. In other words, the OSCE/ODHIR Gender Programme has made a significant contribution to the formation of gender policy in Kyrgyzstan despite certain obstacles that have arisen in the course of the implementation of its policy.

8 Adopting a New Constitution

As noted earlier, the OSCE and ODIHR, from the very beginning, have strongly supported the Kyrgyz government and Kyrgyz civil society in promoting the principles of the rule of law and respect for human rights. Thus, the ODIHR plays a significant role in monitoring reforms, referendums, and elections in Kyrgyzstan as a neutral party from the international community. The ODIHR has previously observed through its election observer teams 12 elections and referendums in the country (OSCE, 2021a), and most recently, the 2020 parliamentary elections and the 2021 presidential elections and referendum. In the aftermath of the October 2020 events, the ODIHR monitored the early presidential elections and the referendum of 10 January 2021, and then conducted a legal analysis of the draft of the new constitution as well as monitoring of the Constitutional Referendum on 11 April 2021.

Before and during the presidential election observations in April 2021, the ODIHR was concerned about the situation in the country and had already advised the interim government of Sadyr Japarov, who won the presidential elections, with recommendations to protect the country from illegal amendments. The Bishkek-based OSCE Programme Office called for the performance of further elections to be brought in line with international requirements and standards for democratic elections, including per the OSCE’s own commitments. The central condemnation of the Kyrgyz government by the ODIHR was in regards to the holding of elections and a referendum on the same day, “as any legislative activity, must comply with the rule of law requirements, including the timeframes” (OSCE/ODIHR, 2021a). This was not taken into account. It should be noted that Kyrgyzstan and the other Central Asian countries have been criticized more than once by the ODIHR election monitoring. Many elections, previously held in Central Asian countries, were assessed by ODIHR as a lacking in genuineness and showing a deficiency of transparency in the electoral process. Most previous ODIHR recommendations on these matters have been ignored by the states (OSCE/ODIHR, 2010, 2019, 2021b, 2021c, 2021d). As might be expected, another report by the ODIHR did not prevent the administration of Kyrgyzstan from holding a constitutional referendum on changing the form of government on the same day as electing a new president. In this instance, 81.30% of the voters supported the transition to the presidential form of government (Central Election Commission of the Kyrgyz Republic, 2021).

The ODIHR has undertaken a thorough review of the draft 2021 Constitution written by the newly elected administration of the state for compliance with the principles of the rule of law and human rights. Together with the Venice Commission, the Office has made numerous recommendations for enhancing the text of the draft Constitution and bringing it in line with international human rights and the rule of law standards (OSCE/ODIHR & Venice Commission, 2021). At the same time, the legal analysis touched upon considerable provisions related to gender equality and women’s rights. However, the Kyrgyz government has practically ignored these critical recommendations and proposals, as a result, on 11 April 2021, Kyrgyzstan adopted the new Constitution in the referendum. Some provisions of the recently adopted Constitution of 2021 can be interpreted and used in violation of not only the principles of democratization in general but, in particular, in the infringement on the rights of women.

9 “Neo-traditionalist” Constitutional Framework and Women’s Rights

The constitutional framework and policy of the new Kyrgyz government, as Andrea Schmitz has indicated, is “imbued with neo-traditionalism” (Schmitz, 2021). In political science, the term has the following interpretation: “Neotraditionalism, in politics, the deliberate revival and revamping of old cultures, practices, and institutions for use in new political contexts and strategies” (Galvan, 2015). Indeed, referring to this definition, it can be perceived that the new Constitution of Kyrgyzstan entails certain aspects of a “neo-traditionalist” approach. The document, from the very preamble, includes provisions which spotlight the traditions and customs of Kyrgyz “ancestors” and the expansion of the powers of such historical institutions as the Courts of Aksakals and the People’s Kurultay. These aspects can be used to aid abuses in the context of human rights infringements. In particular, they may allow for the violation of women’s rights, since it is well-known that women and girls in Kyrgyzstan have not always been in an advantageous position in the context of certain traditional Kyrgyz customs. Practices such as “ala-kachuu” (bride kidnapping), early/forced marriage, and “kelinism” still exist in society and often infringe on the rights of Kyrgyz girls and women. Most importantly, at their maximum extreme, these customary practices are forms of violence against girls and women. In view of the “neo-traditionalist” orientation of the 2021 Constitution, the above conventional forms of gender-based violence against women and young girls can be subjectively interpreted as reverence and adherence to the traditions and customs of the predecessors of the Kyrgyz people.

Furthermore, certain limitations can be read between the lines with regards to freedoms of expression, peaceful assembly and association, where the legislators try to establish a ban on holding events and disseminating information that negates “moral and ethical values, and public consciousness of the people of the Kyrgyz Republic” (Constitution of Kyrgyz Republic, 2021, Art. 10(4)). Parenthetically, Kyrgyz civil society organizationsFootnote 2 were the first in the Central Asian region to hold Solidarity Marches (Kloop, 2016) and have been doing so in support of women’s rights since 2016—although there have been rather unpleasant experiences in conducting such events (Human Rights Watch, 2020). In many respects, these efforts were broadly criticized or even forcefully interrupted (Mediazona Central Asia, 2020). These responses were fuelled by the prevailing homophobic sentiment in the Kyrgyz patriarchal society (PinkNews, 2019) which perceived the marches as support for LGBTQ+ movements. More creative expressions in support of women (KaktusMedia, 2019) in Kyrgyz society have also met with outrage from certain nationalist groups (The Calvert Journal, 2019) and, therefore, have been censored by the Ministry of Culture.

These equivocal constitutional provisions are likely to impact not only the rights of women, but possibly also queer rights and general freedoms of expression, peaceful assembly, and association. Moreover, as mentioned by the ODIHR/Venice Commission opinion, the concepts of “moral and ethical values” and the “public consciousness of people” are vague, undisclosed, and not legally defined at the international level and, in turn, may also be subject to arbitrary interpretation and enforcement (OSCE/ODIHR & Venice Commission, 2021). The subsequent confirmation and worrisome alarm bell was the adoption in August 2021 of the Law “On Protection from Inaccurate (False) Information” (2021) which can also affect the right to freely express opinions online. The Law is supposed to guarantee the right of citizens to the protection of honour and dignity, but experts believe that the legal instrument is contrary to international human rights standards and will lead to state control over content on the Internet (Nastojashhee Vremja, 2021).

Another aspect of the “neo-traditionalist” policy is the revival and regeneration of old customary institutions. The text of the Kyrgyz Constitution indirectly sheds light on how policymakers have attempted to increase the role of such orthodox institutions as the Courts of Aksakals (Courts of Elders) and People’s Kurultay in the new constitutional framework. While recognizing the traditional value and importance of both institutions in the cultural heritage of Kyrgyzstan, there is a risk that the increased power of the two establishments could affect women’s rights to a fair trial, especially in cases of domestic violence, and could undermine the overall legislative protection of Kyrgyz women and girls.

The previous Constitution of Kyrgyzstan already recognized the possibility for citizens to create Courts of Aksakals (2010, Art. 59) and hold People’s Kurultay (2010, Art. 52). According to the Law, the Courts of Aksakals are extrajudicial public bodies competent to act on civil cases and as a post-sentence authority for minor criminal offenses. The important note is that these institutions, in addition to legal norms, are guided by their own conscience, personal convictions, and the morality and ethics historically formed from Kyrgyz customs and traditions (Law of Kyrgyz Republic “On the Courts of Aksakals,” 2002). The Kurultay was previously a representative form of participation of local community members in the solving of critical issues of state and public importance, but was recommendatory in nature, having only soft power (Constitution of Kyrgyz Republic, 2010, Art. 52).

The 2021 Constitution broadens the activities of both institutions, expanding the role of Aksakal Courts in the judiciary (2021, Art. 115) and raising the level of Kurultay from the local to the national level. The parallel functioning of the first with courts of general jurisdiction can be up for debate. The UNHRC has already acknowledged the Courts of Aksakals as not fully following fair trial guarantees (UN Human Rights Committee, 2014). In other words, the decisions of the Courts of Aksakals often negatively impact women in violation of the principle of non-discrimination on the basis of gender. The ODIHR also noted in its report that, for instance, in cases of family violence, decisions of the Courts of Aksakals in most cases end with the reconciliation of the parties, which is not always to the benefit of women (OSCE/ODIHR & Venice Commission, 2021). Likewise, these courts do not have the authority to issue protection orders, provide support to victims of domestic abuse, or order the arrest of an aggressor. With respect to the changed powers of the People’s Kurultay, it can now propose the dismissal of members of the executive branch (Constitution of Kyrgyz Republic, 2021, Art. 70(1)(4)) and act as a member of the Council for Justice Affairs to select judges (2021, Art. 96(7)). Nonetheless, what is the most critical and alarming is that the new Constitution enshrines the right of the People’s Kurultay to initiate legislation (2021, Art. 85). According to some experts, in addition to becoming a “puppet parliament,” such a quasi-constitutional body as the People’s Kurultay may become the “marionette theatre” of the President in his “neo-traditionalist” play (Central Asian Bureau for Analytical Reporting, 2021). Thus, there is a chance that the Kurultay, with its legislative initiative power, could become a tool in the hands of a head of state or other far-right groups to suppress women by lobbying for and passing anti-feminist laws or advocating for the elimination of gender-sensitive legislation.

Noticeably, the new constitutional framework of Kyrgyzstan lacks grounding in the principles of democratization, human rights, and the rule of law, rather it places a bold emphasis on ancestral traditions and moral values. The examined provisions carry a neo-conservative rationale, which, even without explicit indication, is fraught with much more solemn concerns. The new government risks turning this “neo-traditionalist” approach to constitutional reform into a threat to human rights, particularly women’s rights. Women’s fundamental human rights, such as freedom of expression, association, and peaceful assembly, and fair trial rights, risk being further restricted, and this may even extend to other rights in the future. Likewise, traditional and customary considerations may justify all types of orthodox forms of violence against women and girls.

10 Conclusion

The OSCE has played an auxiliary role in promoting the principle of gender equality and developing gender legislation and national gender plans in many of its member states. As in Central Asia, the organization has had a positive impact on enhancing the role of women in public and political life, and the fight against domestic violence and trafficking in women in the Balkans and the South Caucasus. For example, in Albania, the OSCE has helped analyse and implement a National Strategy on Gender and Against Domestic Violence 2007–2010 (OSCE, 2008b) and Laws “On Gender Equality in Society and Law” 2008 (OSCE, 2008a) and “On Measures against Violence in Family Relations” 2006 (The Parliament of Republic of Albania, 2006), while in Kosovo it has promoted Laws “On Gender Equality” and “On Protection from Discrimination” in 2016 (OSCE, 2016). In 2015, Bosnia and Herzegovina, with the support of the organization, developed a Manual to guide representatives of local authorities in implementing the Law on Gender Equality and the Gender Action Plan adopted for the period from 2013 to 2017 (OSCE/FBiH Gender Centre, 2015). Likewise, the Assembly of North Macedonia, with the assistance of the OSCE Mission to Skopje and the ODIHR, approved its first Gender Action Plan for 2020–2021 (OSCE, 2021c) and is currently drafting a Gender Equality Law (OSCE/ODIHR, 2021b).

In Kyrgyzstan, over the 30 years of development of gender legal regulation, the struggle for women’s rights has had its ups and downs, and there remains still a long way to go. The OSCE has left a significant mark here. The Programme Office in Bishkek has provided Kyrgyzstan with great assistance in developing policies and legislation in the field of gender equality, although the government of the state often chooses to ignore certain proposals from the organization. One such example was the OSCE/ODIHR’s recommendations on the draft of the 2021 “neo-conventional” Constitution which clearly called for adherence to a constitutional framework in support of human rights and the rule of law and were not addressed by the new government of Kyrgyzstan. Consequently, the country is a “hostage” to a “neo-traditionalist” constitutional configuration that risks coming into conflict with international standards for women’s rights and gender equality. The introduction of the amendments into the Law of the Kyrgyz Republic “On elections of the President of the Kyrgyz Republic and Deputies of the Jogorku Kenesh of the Kyrgyz Republic” in July 2021 was one of the first warning signs after the adoption of the new Constitution which may indicate further restriction and violation of women’s rights. According to the amendments, the number of deputies of the Jogorku Kenesh has been reduced from 120 to 90, with 54 to be elected in a single electoral constituency per the proportional system (according to party lists) and the remaining 36 deputies in a single-mandate constituency per the majoritarian system (Art. 59(1)). The thirty per cent mandatory gender quota is retained only in party lists and not in the number of single-mandate seats, which significantly reduces the number of women in Parliament (Art. 64(4)).

Should the “neo-traditionalist” tendency continue to develop and take deeper roots in the legal or political construction of Kyrgyzstan, it would represent a rollback to a patriarchal past, where women will be at risk of being further oppressed, subjected to greater violence, and will not be able to either enjoy or protect their rights.