Nazarbayev vs. OCCRP

When Forbes.kz released its annual listing of Kazakhstan’s 50 richest people in May 2022, there was one man who did not appear on the list who perhaps should have: Nursultan Nazarbayev, the country’s former president.

A few months earlier, in January, the Organized Crime and Corruption Reporting Project (OCCRP) published an investigation alleging a fortune’s worth of assets controlled by Nazarbayev through a series of foundations. OCCRP cited at least four active private foundations formed by Nazarbayev: the Nazarbayev Foundation (2009), the Nursultan Nazarbayev Foundation (2010), Demeu (2013), and Elbasy (2021).

In late July, the “Nazarbayev Fund” Private Fund filed a complaint against the Journalism Development Network, the Maryland-based non-profit that operates OCCRP, alleging defamation. Although no foundation with that specific name appears in the story, it appears to be the Nazarbayev Foundation, which is ostensibly a nonprofit endowment supporting education in Kazakhstan, particularly Nazarbayev University.

RIP Respublika

It’s not the first time Nazarbayev has pushed back against his critics via the U.S. justice system. The fate of Respublika, a since-shuttered independent Kazakh media outlet, is illustrative of how the U.S. justice system can be weaponized and, even if a case is ultimately dismissed, can be used to destroy a regime’s opponents.

In 2014, Respublika reported on a cache of emails that had been leaked from Kazakhstani government Gmail accounts and computers. Kazakhstan claimed that an August 2014 hack was how the emails were pried loose and disseminated publicly; the Kazakh government fired off a bevvy of lawsuits in response. In March 2015, Kazakhstan filed suit against dozens of unnamed individuals under the Computer Fraud and Abuse Act (CFAA), alledging the emails were stolen. A judge issued a preliminary injunction, and Kazakhstan used it to pressure Respublika’s web host, demanding first that articles be deleted and then that the site be disabled. Dozens of articles were taken down. Kazakhstan also subpoenaed Facebook (where Respublika shared its work), in addition to Respublika’s web host and domain server.

By the end of 2015, a judge had ruled that Kazakhstan’s suit could not bar Respublika from reporting on the hacked emails – there was no evidence the outlet had participated in their theft. And in March 2016, a California judge rejected Kazakhstan’s demand that Facebook hand over the names, email addresses, IP addresses, and other details of Respublika’s and another user’s Facebook accounts. Kazakhstan then turned to New Zealand to file suit against Mega, a cloud storage and file sharing service launched by the flamboyant internet tycoon Kim Dotcom which first uploaded the hacked emails. Kazakhstan did win an order that Mega turn over IP address information related to the account that first uploaded the hacked emails, but nothing more has been reported about the matter.

Respublika shut down in September 2016. Although Kazakhstan’s authorities never won a case against the outlet, the government succeeded in silencing its critics nevertheless.

In January 2017, as the Electronic Frontier Foundation (EEF), which represented Respublika in the U.S. court cases, wrote, “The clock ran out on Kazakhstan’s lawsuit and the [U.S.] government finally dismissed it, but not before real damage was done to the free speech rights of the newspaper, which was forced to shut down, and other parties.”

New Age, Same Game

In March 2019, Nazarvbayev resigned from the presidency of Kazakhstan after 30 years at the helm. In retirement, he maintained important levers of influence over the government of his hand-picked successor, Kassym-Jomart Tokayev. For example, he remained head of the country’s National Security Council. The Kazakh capital previously known as Astana was renamed Nur-Sultan in his honor.

But over time, tension appears to have escalated between the new and old regimes; the opaque  elite competition exploded into view in early January 2022. Nazarbayev’s lifetime appointment to the National Security Council was suddenly and unceremoniously revoked; his daughters’ husbands resigned from their lucrative positions and the Nazarbayev name was raked through the mud like never before. At least one Nazarbayev statue was torn down by citizens amid the early January protests.

And then the OCCRP report landed, alleging that Nazarbayev had disguised his wealth behind a smokescreen of nonprofits. One asset worth paying attention to is a $100 million Airbus ACJ320neo jet, described by Business Insider as a “flying penthouse,” which the Nursultan Nazarbayev Foundation imported into Kazakhstan in August 2020 (it was exempt from import duties, of course). It’s not clear that the plane officially belongs to the foundation, though OCCRP did make the case that its movements mapped tightly into those of Nazarbayev and documents prove the link between the plane’s import and the foundation. On June 30, 2021, the plane flew from Kazakhstan to Moscow; the same day Nazarbayev was reported to have met with Russian President Vladimir Putin while on a “working visit” to the Russian capital.

In its complaint, the “Nazarbayev Fund” Private Fund’s lawyer stresses: “The former President has no ability whatsoever to direct the Nazarbayev Fund’s assets to any other purpose, let alone for his personal benefit.” The complaint does not address the matter of the plane, but instead pushes the point that it would be illegal for Nazarbayev to profit from any foundation he started, and it would be illegal to use a nonprofit’s assets for personal matters. (A gentle reminder: People do illegal things all the time.)

With Nazarbayev out of power, he is not able to use the Kazakh state as a vehicle to pursue his critics as was the case of Respublika in 2015, but he can still use the U.S. court system to do so as a private citizen, or, as in this case, through his foundation.

In early August, Drew Sullivan, OCCRP’s editor, commented that although a complaint had been filed “they did NOT serve us and under US law we are not sued until they do. This smells like a PR campaign.”

Sullivan continued: “The reality is they have no way of winning a suit in US courts which, unlike Kazak courts, are not corrupt. The story is solid and we stand by it. Nothing they have said makes us think otherwise. This is either a SLAPP suit or a PR campaign and a rather unethical one at that.”

SLAPP stands for “Strategic lawsuits against public participation” and is a term used for lawsuits intended to censor, intimidate, and silence critics by burdening them with legal expenses.

In the short term at least, the complaint has driven attention to OCCRP’s work once more. It’s not clear how far the matter will be pursued, or how long it may take. But it’s worth reiterating that reporting is not defamation if what’s reported is true.