Law and Legal Systems in Madagascar:  A Political Siege

By Kevashinee Pillay & Aviva Zimbris

Aviva Zimbris is a French national. She is a political analyst who received her Master’s degree in International Conflict Studies from King’s College (London) in 2010. She has since been working in Paris, London, Tel Aviv, Brussels and Geneva.

Kevashine Pillay is an admitted attorney of the Republic of South Africa. She is a holder of an LLB(Bachelor of laws) from the University of KwaZulu Natal and an LLM in Human Rights and democratisation in Africa from the University of Pretoria.  She is currently based at the Centre for human rights (University of Pretoria) as the senior researcher supporting the UN Special Rapporteur on the human rights situation in Eritrea.

Published April 2013
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Table of contents

Introduction: Historical Background

Part I:  Political Systems and Governance

     I.A. A succession of  Republics: A contributing factor to the volatile legal systems.

     I.B. The Government: The supremacy of the president in the Malagasy political System.

          I.B.1. The Executive

          I.B.2. The Legislative

          I.B.3. The Judiciary System

     I.C. The implementation of the Malagasy Constitution in contradiction with the doctrine of the separation of powers.

Part II: Law and legal principles in Madagascar

     II.A. Legal texts and contexts

II.B. Primary sources of law

II.B.1. Civil Code

II.B.2. Code of civil Procedure

II.B.3. Commercial Code

          II.B.4. Commercial Code

          II.B.5. Criminal Code

          II.B.6. Code of Criminal Procedure

     II.C Secondary sources of law

II.C.1. Official Gazette

          II.C.2. Compilation for official codification

          II.C.3 Session laws

          II.C.4 Court reports

     II.D National Websites

     II.E Other Internet sources

Introduction: Historical Background

Madagascar also know as the Malagasay Republic is an independent African state situated in the Indian Ocean.[1] It has 19 tribes which are: Sihanaka, Merina, Antesaka, Antambahoaka, Antandroy, Antefasy, Antemoro, Tsimihety, Bara, Betsileo, Bezanozano, Betsimisarka, Sakalava, Vezo, Mahafaly, Antankarana, Makoa, Tanala, and Antanosy. Despite the diversity Madagascar has a common language “ Malagasy Ofisialy”, which is its official language apart  from French.[2]

Madagascar, prior to 1896 was under a monarchy regime and has been influenced by different cultures from the Middle East, Asia, and Africa. [3] Some of these cultural traits are still evident today.  It then became a French colony from 1896 until independence in 1960.[4] After gaining independence, successive changes in government[5] has resulted in an erosion of the legal systems. Whilst there have been reforms introduced since the 1990’, there is a general disregard for the rule of law and  political institutions on the part of the leadership of the country. [6]

This article will explore the law and legal systems of Madagascar at the backdrop of its political instability since independence. This instability has weakened the rule of law, democratic institutions and systems.

Part I. Political Systems and Governance

This part attempts to understand the linkage between political instability, governance and the judiciary system in Madagascar. It is essential to begin with examining signs of political instability. This will allows for a deeper analysis on the working of the different branches of government and to study how the supremacy of the executive weakens the Judiciary and democratic principles .

I.A. Succession of  Republics: A contributing factor to the volatile legal systems

Since independence, Madagascar has undergone a succession of four Republics in 50 years. The first Republic which was realtively stable ended in May 1972.[7] When the father of independence President Philibert Tsiranana dissolved the Parliament and handed over power to army Chief General Ramanantso, who proposed a provisional Constitution. In December 1975 following a coup d’Etat, the Constitution of the Second Republic (called the Democratic Republic of Madagascar) was adopted by a referendum and Lieutenant-Commander Didier Ratsiraka elected as the President.[8] Subsequent to the controversial presidential elections of 1989, prolonged periods of protests and demonstrations weakened President Ratsiraka. A compromise was reached with the insurgent government and the Constitution of the Third Republic was adopted by referendum in August 1992 [9].  This Constitution was then reviewed in 1995, 1998 and 2007, [10]This cycle was repeated in 2009 leading  to the Constitution of the fourth Republic in 2010.

The most recent political feud between Andree Rajoelina (the president of Madagascar’s unelected transitional government) and Marc Ravalomanana (the country’s most recently elected president),  have further contributed to the decline of of legal structures and democratic governance. Their failure to meet and  to resolve disputes has been a key stumbling block even in internationally mediated efforts.[11] However, in March 2012, the Independent National Electoral Commission for Transition (CENI-T, Commission Electorale Nationale Indépendante pour la Transition) was established.[12] An electoral calendar was agreed upon and included that a presidential election would be held on the 8 of May 2013 and on the 3^rd of July  2013 a the second round and the parliamentary elections should be held. However,  on 5 February 2013, the president of the CENI-T announced that the elections will be postponed until 24 of July 2013 and 25 of September 2013.[13] It should be noted that Rajoelina has announced his intention not to run in this presidential elections but for that in 2018.[14] Therefore, the consequences of his decision on political stability remain unclear .[15]

In Madagascar, recurring institutional crises reveal the absence of the rule of law.[16] Effective implementation of constitutional principles are minimal or absent .

I.B.The Government: The supremacy of the president in the Malagasy political System

Madagascar is a multiparty and unitary Republic with a bicameral legislature. Its legal system has based essentially on the Napoleonic Code and Customs. [17]

I.B.1.The Executive 

The system of government followed by Madagascar is the French semi presidential system, divided between a prime minister from the parliament and an executive president who is elected by universal suffrage.[18] The president is the leader, enforcer of foreign policy and supreme commander of the armed forces. All presidential decrees must be countersigned. The executive’s powers are curtailed by the fact that the prime minister is responsible for the functioning of the government. [19] The executive has the right to dissolve the National Assembly without prior consultation.

In practice, presidential power is the dominant force in the Malagasy political system. Evidence of this is the ease at which constitutional changes have happened since the 1960’s. Most of the reforms in governance has reinforced the power of the President.[20] Furthermore, institutions meant to curb Presidential power are weak. There is no Presidential  accountability, and independent institutions are subordinate to the will of political leaders.[21]

The Malagasy people remain divided between a monarchical conception of power inherited from the former regime in place before the arrival of the colonizers and the democratic aspirations of the contemporary population. This is a factor that has lead to the common successive dictatorial regimes leaving presidents virtually unchallenged. [22]

I.B.2.The Legislature

Legislative power is exercised through the National Assembly and Senate. [23] The Senate is involved in the ratification of international instruments (including those relating to human rights) and the implementation of it in domestic law. Undertaking legislative reforms is an area within its mandate. [24]

The legislature does not have a coercive power towards presidential authority, it has become marginal. The  National Assembly has had more influence than the Senate on the lawmaking process. It is highly politicized and the executive has limited its power.[25] The executive has a direct influence on the Senate as the President elects a third of its members.[26] With these recurring events it can be deduced that there may be a possibility of the Legislature being subject to the control of the President even in the Fourth Republic.

Ratsiraka and Ravalomanana have consistently used various ploys to control the National assembly(the Assembly), already completely dominated by their respective parties. For instance, when Ravalomanana came to power he immediately replaced the 30 senators by members of his TIM(Tiako I Madagasikara) party before his party won comfortably the elections a few months later. Moreover, the party generally  follows the president’s decisions without debate. The president circumvents the Assembly by governing via decrees, redrawing electoral boundaries circumscriptions, by arresting or eliminating electoral lists of MPs that are critical of the President, or simply by dissolving the Assembly when a majority of parliamentarians began to oppose the president’s agenda. Each president since independence has worked to limit the power of the legislature.[27]

This phenomena prevented the legislature from exercising its supervisory functions and allowed presidents to create an impression of due process and legality with regardss to decisions that serve their own needs.[28] So when discontent can not be expressed through legal channels, that gives rise to civilian activism. [29]

I.B.3.The Judicial System

Madagascar has three levels of courts. Lower courts are responsible for civil and criminal cases carrying limited fines and sentences. The Court of Appeals includes a criminal court for cases carrying sentences of five years or more. The Supreme Court functions as the highest court in the country. The Constitutional High Court is autonomous and reviews laws, decrees, and ordinances and monitors elections and certifies their results. A military court has jurisdiction over all cases that involve national security. [30]

The traditional courts (dina) continue to handle some civil disputes and recently have been used in criminal cases because of inconvenience and inadequacy of the formal court system. Decisions by dina are not subject to the formal procedural protections of the formal court system. However, in some cases, they may be challenged at the appeals court level. Dina’s authority depends upon the mutual respect and consensus of the parties to abide by the ruling. Dina punishments are sometimes severe and include capital punishment. [31]

The rule of law –“the restriction of the arbitrary exercise of power by subordinating it to well-defined and established laws”[32] – was ignored by the first two Republics. This brings into question the authenticity of the independence of the judiciary and the respect for human rights. The 1992 Constitution provided more authority to the judiciary which offered constitutional guaranties.[33] Indeed the structure of the state include the executive, the legislative and the judiciary[34]. Despite this progress, the executive was able to maintain its supremacy.

In 1998, the president became the guarantor of the independence of the judiciary,[35] and may continue in this role in the Fourth Republic.[36] The head of state can appoint and dismiss judges. A crucial problem in Madagascar is that without safeguards, the president is at liberty to disregard the provisions of the Constitution. Thus if the Constitution allows the president to legislate by ordinance in very specific cases eg. President Ravalomanana has used this provision repeatedly to pass decisive laws especially his controversial law of “detaxation.”[37]. It is clear that the President excercises  a level of control over the judiciary. For instance, the President appoints a third of the members of the Constitutional High Court.[38] In this regard judges are  instruments of the executive by fear of being dismissed.[39] Moreover, justice is more sensitive to manipulation as it suffers from lack of financial and human resources and is marred by high levels of corruption.[40]

Each Republic has maintained the supremacy of the presidency in the constitutional structure.[41] This affects the efficient functioning, transparency and the independence of the judiciary which the Malagasy people have lost faith in.[42] The ongoing political instability is a result of the impossibility of democratic change. This means that the executive generally uses the law to lock access to power.[43]

I.C.The implementation of the Malagasy Constitution in contradiction with the doctrine of the separation of powers

In 1748, in Spirit of the Laws Montesquieu, wrote “Constant experience shows us that every man invested with power is apt to abuse it, and to carry his authority as far as it will go […] To prevent this abuse, it is necessary from the very nature of things that power should be a check to power”.[44] During the Enlightenment, Montesquieu set the basis of democratic form of government which is to separate the three branches of government: the executive, the legislative and the judiciary. Montesquieu recommended that “power should be a check to power” to avoid abuses. However, Madagascar which wishes to be a democratic regime views the legislature and judiciary subordinated to the executive. Further, the  Constitution appears to be an instrument to used to  legitimate and strenghten its supremacy.

The Malagasy Constitutions have been modified to reflect the interests of successive presidents. For instance, in 1998 amemdments to the Constitution by President Ratsiraka allowed him to dissolve the National Assembly,[45] and  to appoint a third of the Senate while the procedural aspects of impeachment for violating the Constitution were suppressed. In addition, the amendments to the Constitution strenghtened the powers of the president, who can serve for  three terms instead of two.[46] The 2007 amendments completed the removal of remaining safeguards of powers as they allowed the president to take measures by order in the field of law.[47]

These abuses have prevented the legislative and the judiciary to perform their functions holistically and serve the majority of the populous. This has lead frustration and discontent from the Malagasy people.  Successive Presidents have never allowed the development of strong and independent institutions, instead they have utilised using their position to monopolize power and control the dynamics of the state. [48]

At last, it should be noted that although the three branches of government are the executive, the legislative and the judiciary, due to its influence in liberal democracies, the media is often seen as the Fourth branch of government. In a free society, media must be independent from the other powers in order to be a check to the other powers. However, in Madagascar,  the executive exerts a certain control over the media

To conclude this part and move towards an examination of the legal in its context, it should be said that the adoption of the Constitution in 2010 is too fresh to predict a possible change in the relationship between the three branches of government. However, it must be articulated that the Constitution and its subsequent amendments have not been effectively implemented.  Whilst the state has promulgated nationals laws as will be discussed below.  Political instability has also not allowed for the much postive developments in the execution of the rule of law. None the less given this status quo it is necessary to understand the laws and legal principles of Madagascar.

Part II. Law and  legal principles in Madagascar

For more than 60 years there have been two legal systems in Madagascar: traditional law based on local customs  and French law.  Some of these local customs included Dina as mentioned in Part I. Dina or community convention is known through oral tradition, although it is written down in some cases.[49] This part will provide and overview of the historical development of the law and legal principles in Madagascar through its traditional and French roots.

II.A.Legal texts and contexts

Although the colonial legislature abolished certain institutions such as slavery and slave-trading, traditional law continued to have general application in domestic relations such as  inheritance, contracts, and property law.  French law introduced by the legislature was applicable to relations between French citizens, between Frenchmen and Malgaches, and also between Malgaches who requested it. This dual system still continued after 1946, when all indigenous persons were recognized as French citizens, but was changed after independence.  The two legal systems were applied by two different court systems: traditional law courts and French law courts. Therefore after independence a single system  had to be developed, applicable to all.[50]

The first 14 years after independence was a process of legislative drafting and reform. The goal of the drafters was to maintain custom into written law and in some respects Malagasy law was the first to have achieved an amalgamation of  customary African law with European civil law.[51]

As part of this reform one development included the of the code civil malagacge. Other developments included reforming the old French civil code to follow indegenous customary laws in matters of marriage family and obligations. The reformation of the judicial sytem saw the development of a new civil and criminal procedure code promulgated in 1962.[52] The French code de commerce is the only codification that has remained unchanged after independence.

Some of these new laws were similar or the same  adaptations of French law. This was  acceptable in the areas where there is no true Malagasy tradition. Many French laws concerning economic affairs were duplicated into the Malagasy laws, as commercial law and labor law.[53]

In the late 1990s, the Malagasy Government attempted to enact legislation that integrated the pre-colonial customary legal practices such as Dina with the governmental laws. Most of the legislation was enacted to facilitate the sustainable development of the country. Two examples that illustrate that integration are the 1996 Law regarding the community-based management of natural resources, and the other is the 1999 Decree providing inter-communal cooperation and development (OPCI).  Both examples demonstrate the legal integration of the social code with the official law. [54]

The current Malagasy legal system was inherited from both the pre-colonial legal regime and the civil law traditions. Even after independence, the existing legal system still reflects these previous legal regimes. [55]

II.B.Primary Sources of law

II.B.1.Civil Code[56]

“Code civil malagache” (in process of promulgation, commencing with Ordonnance 41 of 19 Sep 1962 in Journal officiel 28 Sep 1962).

II.B.2.Code of civil Proceudre[57]

Code de procédure civile. Ordonnance of 24 Sep 1962 in Journal officiel 1962 pg. 2,141. Revised in part by Loi 22 of 19 Dec 1966. Important modifications by Loi 22 of 21 Dec 2001 (particularly covers arbitration, judgments and evidence).

II.B.3.Commercial Code[58]

The Commission on the Reform of Commercial Law drafted a commercial code which was adopted by the Parliament in Feb 2001. This is based on the OHADA uniform law on companies and represents a total reform of company and business association law (this, although the Malagasy Republic had long not been part of OHADA). The law of 2001 follows on the general in-force effect of the OHADA commercial companies law of 1997.

II.B.4.Code de commerce[59]

Décret of 9 Jun 1896 as amended through 1999. French text here. Note: This is now primarily of historical interest only.

II.B.5.Criminal Code[60]

Fehezan-dalana famaizana/Code penal. Loi of 17 Jun 1972 in Journal officiel 1972 pg. 1765

II.B.6.Code of Criminal Procedure[61]

Fehezan-dalana momba ny paika ady heloka/Code de procédure penal. Ordonnance of 20 Sep 1962 in Journal officiel 1962 pg. 2,050. French text of original law of 20 Sep 1962 can be found here.

II.C Secondary sources of law

II.C.1.Official Gazette[62]

Gazette malgache/ny gazety Malagasy. No. 1 (23 Jun 1883)–nouvelle série, 13 année no. 27 (18 Sep 1896). Atananarivo, Presin’ ny Mpanjaka ny Madagaskara, 1883–1896. In Malagasay only, 1883–1885, in French and Malagasay, 1886–1896. Continued by: Journal officiel de Madagascar et dépendences. Nouvelle série, 13 année no. 28 (27 Sep 1896)–16 Oct 1958. Tananarive, Impr. nationale, 1896–1958 (commencing in 1922, part 2 contains Lois, décrets, arrêtés, with selected legislation also printed in Malagasay).

Succeeded by Journal officiel de la République malgache. No. 1–1,101, 17 Oct 1958–1975. Atananarivo, 1958–1975. Continued by: Gazetim-panjakan ny Repoblika Demokratika Malagasay/Journal officiel de la République démocratique de Madagascar. No. 1,102 (31 Dec 1975)– . Atananarivo, Tranopirintim-pirenena, 1975–

II.C.2  Compilation for official codification[63]

Textes législatifs et réglementaires malgaches. [Edited by] F. Rasoloniaina, Atananarivo, Centre malgache de promotion du livre, 1983. 2 vols.

II.C. 3Session laws

Legislation is contained in the Journal officiel.

II.C. 4Court reports

• Bulletin des arrêtés de la Cour Suprème de Madagascar. Chambre de cassation et Chambre administrative. 1971/72–1975. Atananarivo, 1972–1975.
• Bulletin et recueil des arrêtés de la Cour Suprème de Madagascar….Chambre de cassation et Chambre administrative. Année 1975– . Atananarivo, 1975–
• Decisions of the Constitutional Court published in the Journal officiel and on the Court’s website here (decisions, etc., 2001– ).

II. D    National Websites

• National Assembly
• Government
• Ministry of Economy, Finance and Budget
• Ministry of Justice          
• Laws adopted (1994-2003)

II. E    Other Internet Sources

• http://www.lexadin.nl/wlg/legis/nofr/oeur/lxwemad.htm
• http://www.loc.gov/law/help/guide/nations/madagascar.php
• http://www.africanlii.org/links/weblink/29
• http://www.aclr.info/index.php/find-items-by-country/case-law-by-country/313-case-madagascar.html
• http://www.saflii.org/content/madagascar-index
• http://www.commonlii.org/cgi-bin/sinosrch.cgi?query=madagascar&results=20&rank=on&callback=on&method=auto&meta=%2Fcommonlii&lii=CommonLII
• http://www.chr.up.ac.za/index.php/documents-by-country-database/madagascar.html
• http://www.ohchr.org/EN/Countries/AfricaRegion/Pages/MGIndex.aspx

 

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