Captured Courts and Legitimized Autocrats: Transforming Kazakhstan’s Constitutional Court

• Published in: Law & social inquiry 2022-11, Vol.47 (4), p.1201-1233
• Main Authors: Webb Williams, Nora, Hanson, Margaret
• Format: Article
• Language: English
• Subjects: Autocracy; Balance of power; Constitutional courts; Constitutionalism; Constitutions; Courts; Democracy; Dictators; Elections; Governance; Institutional change; Legitimacy; Legitimation; Political power; Politics; Postcommunist societies; Presidents; Transformation; Uncertainty
• ISSN: 0897-6546; 1747-4469; 1545-696X
• DOI: 10.1017/lsi.2021.85

Contemporary dictators routinely co-opt institutions crucial for democratic governance. Although an extensive literature examines why and how aspiring autocrats bring elections and parties under their control, constitutions—and the judicial or quasi-judicial bodies charged with interpreting constitutions—are often assumed to reflect the existing balance of power. But following regime change, constitutional courts’ power of review makes them integral for establishing political supremacy. We detail how President Nursultan Nazarbayev of Kazakhstan captured the Constitutional Court via its transformation into the Constitutional Council. The uncertainty and upheaval of the post-Soviet collapse created opportunities for formal institutional changes that made the court susceptible to executive capture. Nazarbayev subsequently used the council rulings to lay claim to democratic and constitutional legitimacy in a clear example of authoritarian constitutionalism. To trace the process of capture and legitimation, we examine key court rulings throughout the president’s tenure using a database of Constitutional Council decisions.