Report of Nikitenko V. Natalia, Chairperson of the Committee on Human Rights, Constitutional Legislation and State System at the Conference «Consolidation and effective interaction between the Government branches, local self-government and citizens: resou

13.03.2015 14:49

The Conference held on March 13-14, 2015, in Bishkek.

REPORT
By Nikitenko V. Natalia,
the deputy of Jogorku Kenesh of the Kyrgyz Republic,
Chairperson of the Committee on Human Rights, Constitutional Legislation and State System
Bishkek city 13 March 2015

Effective interaction of state authorities and LSG bodies: issues of delineation of responsibility and accountability

Dear participants of the international conference!

On behalf of the Committee on human rights, constitutional legislation and state system of Jogorku Kenesh of the Kyrgyz Republic to welcome you at the international conference and express my gratitude for accepting our invitation.

Today's event was planned by us some time ago, given the current topic for the last few years, namely attempts to optimize the operation of the state bodies, building effective relationships with LSG and as a result - strengthening cooperation between the authorities and civil society.

The goal of the conference is to discuss the interaction between local self-governments and state agencies regarding issues of delineation of responsibility and accountability. We will try to find a way to address remaining number of unresolved issues at the present moment, related to the relationship between the state and local self-governments, in particular alignment of the system of regional governance and involvement of citizens in the decision-making process at the local level (implementation of the constitutional right to participate in local self-government); and reforms in the sphere of administrative-territorial structure.

I. Over the past 20 years of independence institution of local self-government in Kyrgyzstan has gone through several stages in its development. They were characterized as consistent and evolutionary actions, as well as reversals from the positions achieved. The legal framework of local self-government at the moment in Kyrgyzstan has more distinct shape. During this long period, the legislators have invested considerable work aimed at the construction and establishment of the institution of local self-government.

The new Constitution of June 27, 2010 envisioned a number of significant amendments on issues of local self-government, which allowed us to move forward in the development of the institution of local self-government.

Noting effective ways of cooperation between state authorities and local self-government bodies it should be outlined that state agencies should consider local self-government as a strong partner. While the role of public authorities should consist in rendering assistance to improve poor capacity of municipal authorities. This applies to readjustment of our regulatory framework and to avoid dependence of local self-governments from the state bodies. For example, if the tax, revenue sources are distributed so that local self-governments do not beg and are not dependent, the public authorities should aim at enhancing the capacity of local self-government, and especially the financial capacity.

Constituent unit of strong LSG partner is qualified staff of local self-government bodies and local state administrations. And this problem should be solved by training of newly elected akims and heads of local self-governments.

II. Directions, tasks of local self-government reforms and measures for their solution

Abovementioned issues came up repeatedly in the main strategic documents of the country, including the Program for Transition of the Kyrgyz Republic to Sustainable Development for 2013-2017 prepared by the Government of the Kyrgyz Republic and approved by Resolution of Jogorku Kenesh of the Kyrgyz Republic on December 18, 2013 #3694-V, where one of the four priority areas of public administration reform focuses on the development of comprehensive local self-government, with four main tasks:

1) improvement of the institutional and legal framework of local self-government, given the need to increase responsibility of local self-governments for the results of their activities;
2) division of powers and responsibilities of government bodies and local self-government;
3) improvement of inter-budgetary relations, ensuring financial sustainability of local self-government and effective resources management at the local level;
4) increasing responsibility and role of heads of local self-government, to improve the forms of their accountability to the local community and members of local councils, as well as to government authorities on delegated state powers.

In order to address the mentioned tasks the Program envisages undertaking a number of measures as:

1) conducting analysis of the division of functions, powers and responsibilities between state bodies and local self-governments;
2) amendments to the Law of the Kyrgyz Republic "On Local Self-Government" and other normative legal acts;
3) development and implementation of the registry of municipal services and standards of municipal services;
4) development of standards for material, financial and other resources needed for the execution of delegated powers;
5) development of amendments to the legislation in the alignment of the fiscal capacity of the regions;
6) preparation of proposals on improvement of legislation to give more flexibility and autonomy for local self-governments in the tax area.

Given the analysis of the current situation, it should be noted that to date not all the tasks identified in the Program for Transition of the Kyrgyz Republic to Sustainable Development for 2013-2017 for ensuring comprehensive development of local self-government are implemented by the Government

III. If we look at the article 3 paragraph 4 of the Constitution of the Kyrgyz Republic (The state power in the Kyrgyz Republic shall be based on the principle of separation of functions and powers of state authorities and local self-government bodies) the issues of the division of functions and powers between state bodies and LSG remains unresolved. Until now, many state authorities remain vague position, as some government bodies include issues of national importance, coming from sectoral laws and passed for execution to LSG bodies without adequate financial support to issues of local significance, and consider peculiar to the functions and powers of local self-government.

Thus, in accordance with article 113 paragraph 2 of the Constitution of the Kyrgyz Republic state powers with the transfer of material, financial and other resources needed for their implementation may be delegated to the bodies of local self-government. State powers may be delegated to local self-governments by law or contract. In terms of the delegated powers the bodies of LSG are accountable to the state authorities.

For its part, LSG referring to the constitutional provisions and the provisions of existing laws on the delegation, require financial support for all sectoral state powers or voice their unwillingness to execute the state powers. The question clearly becomes the acute problem.

The current legislation provides a wide range of functions and powers of local self-government without respective financial assistance and also without the appropriate additional staff. The public authorities do not conduct analysis when assigning implementation of additional state powers and assignments to local self-governments.

In this case, huge work should to be done:

it is necessary to conduct an audit of all legal acts related to identifying all functions and powers conferred on local self-governments;
a thorough analysis of their efficient performance and resource support;
functions and powers that are alien to LSG and impracticable should be excluded from the jurisdiction of local self-government. Transfer of state powers to local self-government should ensure clear boundaries of the function transferred, to avoid its expansion and multiplicity, to transfer functions, given the capabilities of local self-governments.

During the delimitation of the functions and powers, the implementation of the delegated state power it is necessary to resolve not only accumulated inconsistencies and gaps in the legislation, but above all, it is necessary to take into account the basic principles of the delegation as states in article 2 of the Law of the Kyrgyz Republic "On the procedure for delegation of specific state powers to local self-government" (reality and transparency in execution of delegated state powers; equality of the parties (in the delegation of public authority under the contract); material and financial support of the delegated functions and powers, differentiation of powers depending on the territorial, economic and other characteristics of local self-government), as well as the interests of citizens and local communities, thus we should focus attention of state authorities on the following:

delegated state powers shall not violate or restrict the rights and guarantees of local self-government established by the legislation;
delegated state powers shall be transferred to ensure effective implementation and quality services to the local community given the capability and reality of their implementation by LSG;
delegated state powers should not create obstacles for issues of local significance by LSG and deteriorate socio-economic situation of local communities in the relevant territory.

IV. Legislation on interaction between state authorities and LSG bodies

However, I would like to briefly say that except above the designated tasks, the deputies of Jogorku Kenesh and the Committee on Human Rights, Constitutional Legislation and State System have undertaken a series of measures aimed at building effective interaction of state bodies and local self-government.

Thus, in the context of improving legislation in the sphere of local self-government, with the participation of the Committee the following statutes have been developed:

New editions of the Law of the Kyrgyz Republic "On Local Self-Government" (July 15, 2011). "On the local state administration" (14 July 2011). It should be noted that earlier, the activities of local self-government and local state administration were regulated by a single law, the adoption of new laws made it possible to differentiate and divide them into separate independent laws;
new editions of the Law of the Kyrgyz Republic "On elections of deputies of local councils" (July 14, 2011). and Constitutional Law of the Kyrgyz Republic "On elections of the President and deputies of Jogorku Kenesh of the Kyrgyz Republic" (July 2, 2011.), in this case, there was also delineation and separation of the preparation and conduct of elections to the highest public office and positions of representative bodies of local self-government;
new edition of the Law of the Kyrgyz Republic "On the order of delegation specific state powers to LSG" (July 9, 2013), which was initiated by individual members of Jogorku Kenesh of the Kyrgyz Republic and revised by the Committee, taking into account objections of the President of the Kyrgyz Republic. In order to make this law work in full force the Government was requested to prepare and submit to Jogorku Kenesh draft laws aimed at bringing existing sectoral laws into compliance with this Law. In addition, to approve a Standard Contract on the delegation specific state powers to local self-governments; determine the method of calculating the volume of transfers (subsidies) granted to local budgets from the state budget for the implementation of specific state delegated powers; and most importantly in the drafting the national budget for 2015 and subsequent years will also include expenses necessary for the execution of delegated state powers.

However, despite the fact that the Law was adopted in 2013 the Government has not submitted to Jogorku Kenesh of the Kyrgyz Republic any draft laws on the delegation of specific state powers to local self-government, as well as draft laws aimed at bringing existing laws into conformity with the law on delegation. In this regard, some members of the parliament independently initiated a number of bills to amend14 sectoral laws and 2 Codes aimed at regulating the delegated state powers.

The rest of the law requirements it is necessary to recognize the significant work of the Government, which, since the adoption of the law has developed and approved:

Standard Contract on the delegation of specific state powers to local self-government bodies (17 March 2014);
Interim methodology for calculating the volume of transfers provided to local budgets from the state budget for the implementation of specific state powers and list of public authorities and powers delegated to local self-government bodies (19 December 2014), these are:
National Statistical Committee of the Kyrgyz Republic, in terms of collection of statistical information;
Ministry of Labor, migration and youth of the Kyrgyz Republic, in terms of work with ethnic Kyrgyz (kayrylmans);
Ministry of Agriculture and melioration of the Kyrgyz Republic, in terms of assistance in carrying out veterinary activities;
Social Fund of the Kyrgyz Republic, in terms of collecting insurance fee from rural producers.

According to the Government, we can conclude that only 4 financially supported state powers will be transferred to LSG.

At the same time, actually local self-governments remain the following delegated powers without relevant law or agreement, without financial and material support:

maintaining registration of citizens, registration and deregistration of citizens in the established order, preparation of voter lists;
civil registration;
notarial acts;
recording the primary account of reservists and recruits, their military registration and deregistration, assistance in the organization of military service;
distribution and use of lands of the State Fund of agricultural lands;
collection of taxes;
identification of low-income families in order to organize targeted social protection;
primary identification of the level of need of families in monthly benefit for low-income families with children, in rural areas, and others.

Moreover, on the basis of complaints and petitions of citizens, representatives of local self-government, non-governmental organizations in the framework of improving the basic laws of LSG, the members of the Committee have developed and introduced a number of amendments relating to:

Improving the procedure of election of heads of executive and representative bodies of local self-government;
Transition to a two-tier system of inter-budgetary relations, which resulted in the dismantling of regional representative bodies of local self-government and formation of joint meetings of local councils at district level;
Strengthening the status of the Charter of the local community, ultimately aimed at strengthening citizens' participation in governance and decision-making;
Limits to the provisions of the law, in part of appointed head of the local state administration - akim, Prime Minister of the Kyrgyz Republic acting head of the executive bodies of local self-government in the event of early dismissal;
Introduction of monitoring and evaluation system of normative legal acts adopted by representative bodies of local self-government;
Mitigate the promulgation of regulations, adopted by the representative bodies of local self-government, and more.

Not to stop at the already achieved, given the tasks on the comprehensive development of local self-government in Kyrgyzstan the Committee on Human Rights, Constitutional Law and State System conducted an expanded meeting of the Committee on the topic "Problems of legislation in the sphere of local self-government" on 25 and 28 November 2014 in Bishkek and Osh within its control functions These activities were carried out with the participation of members of the Parliament, Plenipotentiary Representatives of the Government in the regions, heads of local state administrations - akims, representatives of local self-governments and non-governmental organizations.

During these meetings of the Committee the participants’ main wishes were:

Speedy implementation of constitutional provisions on the division of functions and powers of state bodies and local self-government;
Providing financial and other means to LSG necessary for execution of delegated state powers;
Enhancing the role of LSG Union and municipal associations;
Improvement and streamlining inspections of LSG;
Improving the institution of administrative commissions created at LSG;
Ensuring stability in the legislation, which ensures activities of local self-governments;
Improve capacity of municipal employees;
Elimination of discriminatory attitudes between urban and ayil councils, i.e. additional staff to ayil councils - executive secretary, and ensuring salaries for chairpersons of ayil councils, in order to exercise the functions and powers conferred, etc.

In this connection, in order to address the above complex issues, according to the Committee's decision as of November 25, 2014, a working group on development of draft regulations aimed at improving legislation in the sphere of local self-government was established. It has now some achievements.

Further, on the basis of the above-mentioned meetings of the Committee, as part of the constitutional provisions on the division of functions and powers of state bodies and local self-government, as well as to clarify some of the issues to the public authorities on delegated state powers to local self-government and speed up the process of delegating allocation of financial and other resources needed for their implementation, the Committee, together with the Development Policy Institute organized expanded roundtable on December 12, 2014.

During the round table the attention of the government officials and other participants was focused on strict compliance with the requirements of legislation and the delegation of state powers to local self-government, with the mandatory provision of financial resources to LSG.

Also, after the Committee's meeting on March 10, 2015 the joint meeting of the two parliamentary Committees was organized – the Committee for Human Rights, Constitutional Law and State System with the Committee and Rule of Law, Fight against Crime, entitled "Optimization of audits of local self-governments."

At the meeting of the two parliamentary Committees, all participants, including the government agencies and prosecuting authorities recognized the problem and confirmed that there are very many checks of LSG by the supervisory government agencies. Following the discussion, the parliamentary Committees decided to assign the working group (established by decision of the Committee on Human Rights, Constitutional Law and State System as of 03.12.2014) to work out the issue of inspections procedures of LSGs the legislative level.
Meanwhile, the Committees provided the following recommendations prior to the proper legislative regulation of the issue:

For the Government of the Kyrgyz Republic to optimize activities of subordinate ministries, state committees, administrative departments of the Kyrgyz Republic, performing scheduled and unscheduled inspections of local self-government and take appropriate acts, regulating procedures of audits of local self- governments’ performance;
For the General Prosecutor's Office of the Kyrgyz Republic and the Chamber of Accounts of the Kyrgyz Republic to adopt necessary acts aimed at streamlining procedures for conducting inspections by prosecutors in respect of local self-government.

Thus, in the near future it is necessary to continue to work on the proper legal and financial relationships between state authorities and local self-government, in order to achieve a clear division of responsibility and accountability between them.

I hope that this conference will serve as a message to resolve the identified problems and ways of effective cooperation between state bodies and local self-government will be found.

Thank you for your attention!