Law and Legal Systems in Madagascar: A Political Siege

By Alan Behaja

Alan Behaja is a lecturer at the School of Law and Political Science at the University of Mahajanga, Madagascar. He is also a member of the Malagasy Bar and the Center for Legal Research of the University of Réunion Island. He holds a doctorate in private law and criminal sciences from the University of Réunion Island, France.

Published July/August 2024

(Previously updated by Kevashinee Pillay & Aviva Zimbris in August 2015)

See the Archive Version!

1. Introduction and Historical Background

Also known as the Malagasy Republic, Madagascar is an independent African state situated in the Indian Ocean. It comprises 19 tribes which are the following: Sihanaka, Merina, Antesaka, Antambahoaka, Antandroy, Antefasy, Antemoro, Tsimihety, Bara, Betsileo, Bezanozano, Betsimisaraka, 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.[1]

Before 1896, Madagascar was under a monarchy regime and had been influenced by different cultures from the Middle East, Asia, and Africa.[2] Some of these cultural traits are still evident today. It then became a French colony from 1896 until independence in 1960.[3] After gaining independence, successive changes in government have resulted in an erosion of the legal system.[4] Whilst there have been reforms introduced since the 1990s, there is a general disregard for the rule of law and political institutions on the part of the country’s leadership.[5]

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

2. Political Systems and Governance

Part I attempts to understand the linkage between political instability, governance, and the judiciary system in Madagascar. It is essential to begin by examining signs of political instability. This allows for a deeper analysis of the different branches of government and how the supremacy of the executive has weakened the Judiciary and democratic principles.

Since its independence, Madagascar has undergone a succession of four Republics in 50 years. The first Republic, which was relatively stable, ended in May 1972 when the father of independence President Philibert Tsiranana dissolved the Parliament and handed over the power to Army Chief General Ramanantsoa, who proposed a provisional Constitution.[6] In December 1975 following a coup d’état, the Constitution of the Second Republic (called the Democratic Republic of Madagascar) was adopted by a referendum and Lieutenant-Commander Didier Ratsiraka was elected as President. After 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.[7] This Constitution was then reviewed in 1995, 1998, and 2007.[8] This cycle was repeated in 2009 leading to the Constitution of the Fourth Republic in 2010.

The political conflict between Andry Rajoelina (the President of Madagascar’s unelected transitional government from 2009 to 2014) and Marc Ravalomanana (the country’s elected President from 2002 to 2009) has further contributed to the decline of legal structures and democratic governance. Their failure to meet and resolve disputes has been a key stumbling block even in internationally mediated efforts.[9] However, in March 2012, the Independent National Electoral Commission for Transition (CENI-T, Commission Electorale Nationale Indépendante pour la Transition) was established.[10] An electoral calendar was agreed upon and, with a delay, the second round of presidential elections was held on December 20, 2013, between Hery Rajaonarimampianina, Andry Rajoelina’s candidate, and his opponent who was supported by Marc Ravalomanana. At the end of the second round, Hery Rajaonarimampianina was elected President. However, despite signs of appeasement from the newly elected President during his inaugural address on January 25, 2014, political instability remains. Tensions have emerged between Hery Rajaonarimampianina and Andry Rajoelina, while in October 2014, Marc Ravalomanana returned from exile and took part in the political scene. Political instability was most visible in May 2015, when Members of Parliament voted to impeach the President on the ground that he had disregarded the Constitution, especially the separation of powers between the executive and the legislative. Hery Rajaonarimampianina has stated that he was still in office. He also pointed out the lack of transparency during the impeachment vote.[11]

According to Article 131 of the 2010 Constitution: “The President of the Republic is only responsible for the acts accomplished and connected with the exercise of his functions in the case of high treason, of grave violation of, or of repeated violations of the Constitution, or of breach of his duties manifestly incompatible with the exercise of his mandate. He may only be impeached by the National Assembly in a public ballot and with a majority of two-thirds of its members. He is justiciable before the High Court of Justice. The impeachment may end in the forfeiture of his mandate.”

Therefore, the impeachment request must be judged by the High Court of Justice. However, as the High Court of Justice had not yet been established, President Rajaonarimampianina’s impeachment was referred to the High Constitutional Court. On June 12, 2015, the Court rejected the impeachment request. It ruled that the request was admissible but ill-founded.

This decision was predictable and the opposition to the President made, therefore, a move toward anticipated elections.

President Rajaonarimampianina ended his term of office anyway despite this crisis, which greatly disorientated him. Following the injunctions of the High Constitutional Court, he agreed to set up a government of national unity, headed by Mr. Christian Ntsay. Subsequently, to the formation of this new government, the dates for the presidential election were announced: the first round was to be held on November 7, 2018, and the second round on December 19, 2018.

Although thirty-six candidates were standing for election, it was former Transition President A. Rajoelina came out on top, beating his former rival Marc Ravalomanana with 55.66% of the vote. As for incumbent President Rajaonarimampianina, he was defeated in the first round with just 8.82% of the vote.

At the end of a mixed mandate, only 13% of the promises made in his Program for Madagascar’s Emergence (“PEM”) were fulfilled. Despite this, President Rajoelina was re-elected for a second term as the head of the country in 2023. Held on November 16, 2023, the election took place in an electric political context. Following the revelation of his dual nationality (Malagasy and French), ten of his twelve opponents decided to boycott the ballot and tried to destabilize the country, but to no avail.

To conclude, in Madagascar, recurring institutional crises reveal the absence of the rule of law.[12] Effective implementation of constitutional principles is minimal or absent.

2.2. The Government Structure and the Supremacy of the President in the Malagasy Political System

Madagascar is a multiparty and unitary Republic with a bicameral legislature. Its legal system is based on the Napoleonic Code and Customs.[13]

2.2.1. 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.[14] The president is the leader, enforcer of foreign policy, and supreme commander of the armed forces. The executive’s powers are curtailed by the fact that the prime minister is responsible for the functioning of the government.[15] The executive has the right to dissolve the National Assembly without prior consultation.

In practice, however, presidential power is the dominant force within the Malagasy political system. Evidence of this is the ease at which constitutional changes occurred since the 1960’s. Most of the reforms in governance have reinforced the power of the President.[16] Furthermore, institutions meant to curb presidential power are weak. Not only is there no presidential accountability, but independent institutions are also subordinate to the will of political leaders.[17]

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 led to the common successive dictatorial regimes leaving presidents virtually unchallenged.[18]

2.2.2. The Legislature

Legislative power is exercised through the National Assembly and Senate.[19] The Senate is involved in the ratification of international instruments (including those relating to human rights) and their implementation in domestic law. Undertaking legislative reforms is an area within its mandate.[20]

Since the legislature does not have a coercive power toward 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.[21] The executive has a direct influence on the Senate as the President elects a third of its members.[22] 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 during the Fifth Republic.

In line with that, Ratsiraka and Ravalomanana have consistently used various ploys to control the National Assembly (the Assembly), which was already completely dominated by their respective parties. For instance, when Ravalomanana came to power, he immediately replaced the 30 senators with 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, arresting or eliminating electoral lists of MPs that are critical of the President, or simply dissolving the Assembly when a majority of parliamentarians begin to oppose the president’s agenda. Each president since independence has worked to limit the power of the legislature.[23]

Thus, this phenomenon has prevented the legislature from exercising its supervisory functions and allowed presidents to create an impression of due process and legality concerning decisions that serve their own needs and interests.[24] Therefore, the impossibility of expressing discontent through legal channels has given rise to civilian activism.[25]

2.2.3. The Judicial System

Madagascar has three levels of courts. Lower courts are responsible for civil and criminal cases subject to limited fines and sentences. The Court of Appeals includes a criminal court for cases subject to sentences of five years or more. The Supreme Court functions as the highest court in the country. The High Constitutional Court is autonomous and reviews laws, decrees, and ordinances monitors elections, and certifies their results. A military court has jurisdiction over all cases that involve national security.[26]

Despite the existence of the formal court system, the traditional courts (dina) continue to handle some civil disputes and recently have been used in criminal cases because of the inconvenience and inadequacy of the formal court system. Dina’s authority depends upon the mutual respect and consensus of the parties to abide by the ruling. Moreover, decisions by the dina are not subject to the formal procedural protections of the formal court system. However, in some cases, they may be challenged before the courts of appeal. It is worth noting that dina punishments are sometimes severe and include capital punishment.

The rule of law, “the restriction of the arbitrary exercise of power by subordinating it to well-defined and established laws,” 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 guarantees.[27] Indeed, the structure of the state includes the executive, the legislative, and the judiciary.[28] Despite this progress, the executive was able to maintain its supremacy.

In 1998, the President became the guarantor of the independence of the judiciary,[29] and they may continue in this role in the Fourth Republic.[30] 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. First, the Constitution allows the President to legislate by ordinance in very specific cases (e.g. Former President Ravalomanana has used this provision repeatedly to pass decisive laws, especially his controversial “detaxation” law).[31] Second, it is clear that the President exercises a level of control over the judiciary. For instance, the President appoints a third of the members of the High Constitutional Court.[32] In this regard, judges are instruments of the executive for fear of being dismissed.[33] Moreover, justice is more sensitive to manipulation as it suffers from a lack of financial and human resources and is marred by high levels of corruption.[34]

Each Republic has maintained the supremacy of the presidency in the constitutional structure.[35] This affects the efficient functioning, transparency, and independence of the judiciary which the Malagasy people have lost faith in.[36] 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.[37]

2.3. The Implementation of the Malagasy Constitution in Contradiction with the Doctrine of the Separation of Powers

In 1748, in The 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.”[38] During the Enlightenment, Montesquieu set the basis of the 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, although Madagascar aims to be a democratic regime, the legislature and judiciary are subordinated to the executive. Further, the Constitution appears to be an instrument used to legitimize and strengthen its supremacy.

The Malagasy Constitutions have been modified to reflect the interests of successive presidents. For instance, the 1998 amendments to the Constitution by President Ratsiraka allowed him to dissolve the National Assembly,[39] 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 strengthened the powers of the President, who can serve for three terms instead of two.[40] 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.[41]

These abuses have prevented the legislative and the judiciary from performing their functions holistically and serving the majority of the population. This has led to frustration and discontent from the Malagasy people. Successive Presidents have never allowed the development of strong and independent institutions, instead, they have used their position to monopolize power and control the dynamics of the state.[42]

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 to be a check to the other powers. However, in Madagascar, the executive exerts a certain control over the media.

Whilst the state has promulgated national laws as will be discussed below, political instability has also not allowed for the much positive developments in the execution of the rule of law. Nonetheless, it is necessary to understand the laws and legal principles of Madagascar.

For more than 60 years there have been two legal systems in Madagascar: a traditional legal system based on local customs and a legal system based on 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 may be written down in some cases.[43] Part II will provide an overview of the historical development of the law and legal principles in Madagascar through its traditional and French roots.

Although the colonial legislature abolished certain institutions such as slavery and slave trading, traditional law has continued to be applied in domestic relations such as inheritance, contracts, and property law. As for French law introduced by the legislature, it applied to relations between French citizens, between Frenchmen and Malagasy, and between Malagasy who have requested it. This dual system 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. However, after independence, a single system applicable to all had to be developed.

The first 14 years after independence was a process of legislative drafting and reform. As part of this reform, one development included the reform of the Malagasy Civil Code.

Indeed, one of the first projects to be tackled by the legislators of the first Republic in the early days of independence was the ambitious project to draw up a Malagasy Civil Code. In 1960, the first Malagasy government realized that the country needed its laws and regulations as quickly as possible, and set up a commission dedicated to such task, namely the “Commission de Rédaction du Code Civil Malgache” (Commission for the Drafting of the Malagasy Civil Code). As its name implied, one of the Commission’s tasks was to draw up texts for subsequent codification that were “1° authentically Malagasy, taking into account [to the greatest extent possible] the customs that are constantly followed and the spirit that animates traditional institutions, and 2° not to freeze or crystallize customs, but to provide the Malagasy people with modern laws offering them broad possibilities for evolution, without making a brutal break with their traditions.”[44]

As soon as it was set up, this structure undertook nationwide surveys of the various legal customs in force in the different sub-prefectures of the national territory. These surveys took place between December 1, 1960, and May 30, 1961.[45] Based on the summary reports of the field surveys carried out by its provincial sub-commissions, the “Commission de Rédaction du Code Civil Malgache” (CRCCM) was able to draw up the first authentically Malagasy national texts for submission to Parliament for approval.

The first statute drafted by the Commission was Law n°61-025 of October 9, 1961, on civil status records. In addition to this first statute, the Commission subsequently drew up six other major laws that have enabled Madagascar to acquire “an unprecedented legal framework for family and personal law.”[46] These statutes are the following: Ordinance n°62-003 of July 24, 1962, on name, domicile, and absence (JORM of August 4, 1962, p.1527); Ordinance n°62-041 of September 19, 1962, on general provisions of domestic law and private international law; Ordinance n°62-089 of October 1, 1962, on marriage (JORM. n°250 of October 19, 1962, p.2366); law n°63-022 of November 20, 1963, on filiation, adoption, rejection, and guardianship (JORM n°324 of November 30, 1963, p.2479); law n°67-030 of December 18, 1967 on matrimonial property regimes and the form of wills (JORM n°569 of December 23, 1967, p.2080); and law n°68-012 of July 4, 1968 relating to successions, wills and, donations (JORM n°598 of July 13, 1968, p.1438).

Unlike the texts governing economic law (e.g. law governing obligations and contracts, law on security interest, or property law), these texts drafted by the CRCCM differed singularly from the French Civil Code model in that they incorporated Malagasy customary traditions.

In 1998, a new structure was created to continue the unfinished codification effort initiated by the CRCCM in the early days of independence. This new structure was the Business Law Reform Commission (“Commission de Réforme du Droit des Affaires’’ or CRDA). Placed under the authority of the Prime Minister, this Commission was enthroned to implement all necessary legislative reforms “to provide Madagascar with modern economic law rules, in phase with the extreme vitality of the international economy.”[47]

It is in this context that modern texts inspired by international legislation have been adopted. These include, among others, the texts adopted at the beginning of the 2000s, which repealed almost in their entirety the provisions of the old French Commercial Code, which had remained applicable to the country in its original 1807 version for several decades after independence.

Among these new texts reforming the 1807 Commercial Code, the following texts are noteworthy:

  • law n°99-018 of August 2, 1999, on the status of the merchant, repealing Title I of Book 1 of the said Code.
  • law n°99-025 of August 19, 1999, on corporate transparency, repealing Title II of Book 1;
  • law n°2003-036 of January 30, 2004, on commercial companies, repealing Title III of Book 1;
  • the aforementioned law n°2007-022 of August 20, 2007, on marriage and matrimonial regimes, repealing Title IV of the same Book 1.
  • Act no. 2006-017 of August 31, 2007, on commercial intermediaries, which repealed Titles V and VI of Book 1.
  • Act no. 2003-041 of September 03, 2004, on security interest which repealed Title VI of Book 1.
  • Act no. 99-028 of February 03, 2000, which repealed Book II.
  • Act no. 2003-042 on insolvency and collective liability settlement procedures, which repealed Book III.
  • and finally Act no. 2001-022 of April 9, 2003, which repealed Book IV.

In recent years, this effort to modernize Malagasy business law has been given fresh impetus by the adoption of a host of new texts. These new waves of reforms include, among others: law n°2018-020 of August 23, 2018, overhauling the law on competition; law n°2015-014 of August 10, 2015, on consumer guarantees and protection; law n°2015-037 of February 3, 2016, on the legal regime for commercial leases; law n°2016-056 of February 2, 2017, on electronic money and electronic money institutions; law n°2020-005 of September 1, 2020, on insurance; law n°2020-011 of September 1, 2020, on banking; law n°2023-016 of August 11, 2023 on cooperatives; and laws n°2023-002 and 2023-007 of July 27, 2023, on investment and the mining code respectively.

In parallel with the reforms of civil law texts initiated just after independence, the reform of the judicial system saw the development of a new civil and criminal procedure code promulgated in 1962. These texts were also recently amended to bring the country into line with the various principles enshrined in the international legal instruments to which Madagascar has subscribed.

To conclude this part, 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.[48]

3.2. Primary Sources of Law

3.2.1. Public Law

  • Constitution of the Republic of Madagascar of December 11th, 2010 (4th Republic), JORM n°3350 of January 20, 2011, p. 85.
  • Law no. 2008-013 of July 23, 2008, on the public domain, JORM no. 3217 of October 20, 2008, p. 7635.
  • Law no. 2015-020 of October 19, 2015, relating to the independent national structure in charge of the organization and management of electoral operations, known as the “Independent National Electoral Commission.”

3.2.2. Civil Law

  • Ordinance n°60-064 of July 22, 1960, on the Malagasy Nationality Code, amended by law n°2016-038 of January 25, 2017, JORM n°111 of July 30, 1960, p.1305, n°3738 of February 27, 2017, p.1197.
  • French civil code;[49]
  • Ordinance n°60-146 of October 3, 1960, relating to the land registration system, JORM n°129 of October 22, 1960, p.2205.
  • Law no. 2005-019 of October 17, 2005, establishing the principles governing land status, JORM no. 3007 of January 2, 2006.
  • Law no. 2008-014 of July 23, 2008, on the private domain of the State, decentralized authorities, and legal entities governed by public law, JORM no. 3218 of October 27, 2008, p.7686.
  • Act no. 2022-013 of August 1st, 2022, on the recasting of the rules governing the legal status of untitled private land ownership.
  • Ordinance n°62-064 of September 27, 1962, relating to long leases, amended by law n°96-016 of August 13, 1996, JORM n°248 of October 12, 1962, p.2264 and n°2381, special éd. of August 26, 1996, p.1862.
  • Law no. 2007-022 of August 20, 2007, on marriage and matrimonial property regimes, JORM 3163 of January 28, 2008.
  • Ordinance no. 62-003 of July 24, 1962, on name, domicile, and absence, amended by law no. 90-012 of July 20, 1990, JORM of August 4, 1962, p. 1527 and no. 2008 of July 23, 1990, p. 1294.
  • Ordinance No. 62-041 of September 19, 1962, on the general provisions of domestic law and private international law, JORM No. 244 of September 28, 1962, p. 1989.
  • Law n°63-022 of November 20, 1963, on filiation, adoption, rejection, and guardianship, JORM n°324 of November 30, 1963, p.2479.
  • Law n°68-012 of July 4, 1968, relating to successions, wills, and donations, JORM n°598 of July 13, 1968, p.1438.
  • Law n°2007-023 of August 20, 2007, on the rights and protection of children, JORM n°3163 of January 28, 2008, p.158.
  • Law n°2017-014 of July 6, 2017, on adoption, JORM n°3798 of February 5, 2018, p.48.
  • -Law n°2018-027 of February 8, 2019, relating to civil status, JORM n°3902 of June 22, 2019, p.4431.
  • Law n°66-003 of July 2, 1966, relating to the general theory of obligations, JORM n°486 of July 9, 1966, p.1429.
  • Act n°2015-036, amending and supplementing certain provisions of Act n°66-003 of July 2, 1966, on the general theory of obligations, JORM n°3674 of March 7, 2016, p.1625.

3.2.3. Commercial and Investment Law

  • Law n°99-018 of August 2, 1999, relating to the status of trader, JORM n°2592 of August 6, 1999, p.1865:
  • Law n°99-025 of August 19, 1999, on the transparency of companies, JORM n°2595 of August 30, 1999, p.2006.
  • Law no. 2003-036 of January 30, 2004, on commercial companies, JORM no. 2890 of March 1, 2004, p. 1084; Law n°2006-017 of August 31, 2007, on commercial intermediaries, JORM n°3071 of November 27, 2007, p.5760.
  • Law n°2003-041 of September 3, 2004, on security interest, JORM n°2939 of November 8, 2004, p.4273.
  • -L aw n°99-028 of February 3, 2000, recasting the Maritime Code, JORM n°2625 of February 8, 2000, p.526.
  • Law n°2003-042 of September 3, 2004, relating to insolvency and collective procedures for the discharge of liabilities, JORM n°2939 of November 8, 2004, p.430.
  • Law n°2003-044 of July 28, 2004, on the Labour Code, JORM n°2956 of February 21, 2005, p.2489.
  • Law n°2014-038 of January 9, 2015, relating to the protection of personal data, JORM 3630 of July 20, 2015, p.3272.
  • Law n°2017-020 of April 10, 2018, on the electricity code, JORM n°3836 of September 3, 2018, p.4212.
  • Law n°2017-047 of January 29, 2018, on the development of industry, JORM n°3821 of June 22, 2018, p.2684.
  • Law n°2020-003 of July 3, 2020, on organic farming in Madagascar, JORM n°4024 of August 9, 2021, p.2263.
  • Law n°2023-002 of July 27, 2023, on investments in Madagascar, JORM n°4155 of September 18, 2023, p.4409.
  • Law n°2023-007 of July 27, 2023, recasting the Mining Code, JORM n°4157 of October 2, 2023, p.4516.
  • Customs Code as per Finance Act 2024.
  • General Tax Code following the 2024 Finance Act.
  • Tax Procedures Code following Finance Act 2023.
  • Law n°2018-020 of August 23, 2018, recasting the law on competition, JORM 3867 of February 11, 2019, p.865.
  • Law n°2015-014 of August 10, 2015, on consumer guarantees and protection, JORM n°3647 of October 26, 2015, p.4602.
  • Law n°2015-037 of February 3, 2016, on the legal regime for commercial leases, JORM n°3675 of March 14, 2016, p.1686.
  • Law n°2015-039 of February 3, 2016, on Public-Private Partnership, JORM n°3675 of March 14, 2016, p. 1696.
  • Law n°2016-056 of February 2, 2017, on electronic money and electronic money institutions, JORM n°3782 of October 23, 2017, p. 6336.
  • Law n°2020-005 of September 1st, 2020, on insurance, JORM n°3992 of January 15, 2021, p. 84.
  • Law n°2020-011 of September 1st, 2020, on the Banking Law, JORM n°3992 of January 15, 2021, p. 217.
  • Law n°2021-024 of September 29, 2021, creating a Malagasy sovereign fund, JORM n°4043 of November 15, 2021, p. 4315.
  • Law n°2022-002 of July 7, 2022, on agricultural aggregation, JORM n°4087 of August 8, 2022, p.3548.
  • Law n°2023-016 of August 11, 2023, governing cooperatives, JORM n°4155 of September 18, 2023, p.4445.

3.2.4. Criminal Law

  • Malagasy Criminal Code.
  • Law n°2014-006 of July 17, 2014, on the fight against cybercrime, JORM n°3574 of September 8, 2014, p.3478.
  • Law n°2016-020 of August 22, 2016, on the fight against corruption, JORM n°3711 of October 12, 2016, p. 5838.
  • Law n°2018-043 of February 13, 2019, on the fight against money laundering and terrorist financing, JORM n°3876 of March 28, 2019, p. 1358.
  • Ordinance n°2019-015 of July 15, 2019, on the recovery of illicit assets, JORM n° 3908 of August 22, 2019, p.5220.

3.2.5. Procedural Law

  • Code of Civil Procedure.
  • Code of Criminal Procedure.
  • Ordinance no 62-106 of October 1st, 1962, promulgating the National Service Code.
  • Organic law n°2004-036 of October 1st, 2004, relating to the organization, powers, operation, and procedure applicable before the Supreme Court and the three Courts making it up, JORM n°2939 of November 8, 2004, p. 4363.
  • Law n°2016-021 of August 22, 2016, on Anti-Corruption Poles, JORM n°3711 of October 12, 2016, p. 5838.
  • Act n°2021-015 of August 5, 2021, amending, supplementing, and repealing certain provisions of Act n°2016-021 of August 22, 2016, on Anti-Corruption Poles, JORM n°4034 of September 20, 2021, p.3223.

3.3. Secondary Sources of Law

3.3.1. Official Gazette

Gazette malgache/ny gazety Malagasy. No. 1 (23 Jun 1883)–nouvelle série, 13 année no. 27 (18 Sep 1896). Antananarivo, Presin’ ny Mpanjaka ny Madagasikara, 1883–1896. In Malagasy only, 1883–1885, in French and Malagasy, 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 Malagasy).

Succeeded by Journal officiel de la République malgache. No. 1–1,101, 17 Oct 1958–1975. Antananarivo, 1958–1975. Continued by: Gazetim-panjakan’ny Repoblika Demokratika Malagasy/Journal officiel de la République démocratique de Madagascar. No. 1,102 (31 Dec 1975)–. Antananarivo, Tranopirintim-pirenena, 1975–. Became: “Gazetim-panjakan‘ny Repoblikan’i Madagasikara.” [1992]-

3.3.2. Compilation for Official Codification

  • Textes législatifs et réglementaires malgaches. [Edited by] F. Rasoloniaina, Antananarivo, Centre malgache de promotion du livre, 1983. 2 vols.
  • Recueil textes fondamentaux et Droit Civil, Vol.1, updated February 17, 2001 [Edited by] Imprimerie d’ouvrages éducatifs;
  • Recueil textes fondamentaux et Droit Civil, Vol.2, updated February 17, 2001 [Edited by] Imprimerie d’ouvrages éducatifs;
  • Appendice au Code pénal, Vol.1, updated to June 30, 1990 [Edited by] Imprimerie d’ouvrages éducatifs;
  • Appendice au Code pénal, Vol.2, updated to June 30, 1990 [Edited by] Imprimerie d’ouvrages éducatifs,

3.3.3. Session Laws

Legislation is contained in the Official Journal of the Republic of Madagascar (Journal Officiel de la République de Madagascar or JORM).

3.3.4. Court Reports

  • Bulletin des arrêts de la Cour Suprême de Madagascar. Chambre de cassation et Chambre administrative. 1971/72–1975. Antananarivo, 1972–1975
  • Bulletin et recueil des arrêts de la Cour Suprême de Madagascar. Chambre de cassation et Chambre administrative. Année 1975–. Antananarivo, 1975–
  • Bulletin des Arrêts de la Cour Suprême, année 2000-2005-2006-2007, [Edited by] Jurd’ika
  • Recueil de jurisprudence de la Chambre Administrative de 2004 à 2007, [Edited by] Jurid’ika, 2009
  • Arrêts commentés de la Cour de cassation, chambre civile, commerciale, sociale, années 2010-2011-2012, [Edited by] Jurid’ika, Vol. 1, 2014
  • Arrêts commentés de la Cour de cassation, chambre civile, commerciale, sociale, années 2010-2011-2012, [Edited by] Jurid’ika, Vol. 2, 2015
  • Arrêts commentés de la Chambre administrative et du Conseil d’Etat de la Cour suprême de Madagascar, années 2008-2009-2010, [Edited by] Jurid’ika, 2012
  • Arrêts commentés du Conseil d’Etat de la Cour suprême de Madagascar, années 2011-2012-2013-2014, [Edited by] Jurid’ika, 2015
  • Jugements commentés du Tribunal de commerce d’Antananarivo, année 2008 [Edited by] Jurid’ika, Vol. 1, 2011
  • Jugements commentés du Tribunal de commerce d’Antananarivo, année 2008 [Edited by] Jurid’ika, Vol. 2, 2012
  • Recueil des grands principes constitutionnels (tirés des décisions, arrêts, avis de la Haute Cour Constitutionnelle), Avènement de la 4e République, Edited by], Mpariaka Boky, 2023
  • Decisions of the High Constitutional Court published in the Journal Officiel and on the Court’s website here (decisions, etc., 2001–)

3.4. National Websites

3.5. Other Internet Sources

[1] Madagascar, pre-colonial era, before 1894, country guide, Malagasy information resource. In L.R. Rakotoson, K. Tanner / Ocean & Coastal Management 49 (2006) 855–872 at 859.

[2] Madagascar, pre-colonial era, before 1894, country guide, Malagasy information resource. In L.R. Rakotoson, K. Tanner / Ocean & Coastal Management 49 (2006) 855–872 at 859.

[3] Jean de Dieu Rakotondramihamina (1999), ‘Madagascar,’ pp.143-177, p.143.

[4] Hans Maier (2010) ‘Human rights and human dignity in Madagascar. A country in search of its destiny,’ p. 7.

[5] BTI (2012), ‘Madagascar Country Report,’ p. 12.

[6] La Banque Mondiale (December 2010), ‘MADAGASCAR: Revue de la gouvernance et de l’efficacité du développement Analyse d’économie politique de la gouvernance à Madagascar,’ Rapport N 54277-MG, p.3.

[7] Jean-Claude Ramandimbiarison (October 2003), Le Cahier de Madagascar n 1 ed. CDE, p.54.

[8] La Banque Mondiale (December 2010), ‘MADAGASCAR: Revue de la gouvernance et de l’efficacité du développement Analyse d’économie politique de la gouvernance à Madagascar,’ Rapport N 54277-MG, p.3.

[9] SADC summit participants had mandated that the SADC Mediator on Madagascar, former Mozambican president Joaquim Chissano, “facilitate dialogue and convene a meeting between” between the two men. Rajoelina reportedly agreed to meet after Madagascar’s Independence Day on June 26, but the locale of the meeting has yet to be decided. Rivonala Razafison (June 14, 2012), ‘Madagascar’s Rajoelina Says Ready for Deal with Rival,’ Africa Review; and Agence France Presse (June 16, 2012), ‘Rival Madagascar Leaders Accept to Meet: SADC’. Quoted in Lauren Plock and Nicolas Cook (June 18, 2012), ‘Madagascar’s Political Crisis,’ Congressional Research Service, p. 1.

[10] Please refer to Law no 2012-004 of February 1st, 2012 governing the organization, operation, and powers of an independent national structure known as the “Commission Électorale Nationale Indépendante pour la Transition,” available here: https://cnlegis.gov.mg/page_num_find_direct/ (accessed 16.05.2024). This text was repealed by law n°2015-020 of October 19, 2015.

[11] Please refer to the president’s speech on the presidency’s website, ‘Déclaration du p https://imazpress.com/actus-reunion/madagascar-le-president-conteste-le-vote-de-sa-destitution-par-les-deputes (accessed 16.05.2024).

[12] Jean-Claude Ramandimbiarison (October 2003), Le Cahier de Madagascar n.1 ed. CDE, p.53.

[13] Jean de Dieu Rakotondramihamina (1999), ‘Madagascar,’ pp.143-177, p.143.

[14] Jean de Dieu Rakotondramihamina (1999), ‘Madagascar,’ pp.143-177, p.143. Please also refer to articles 44 and 54 of the 2010 Constitution « La fonction exécutive est exercée par le Président de la République et le Gouvernement»; «Le Président de la République nomme le Premier ministre, présenté par le parti ou le groupe de partis majoritaire à l’Assemblée nationale https://cnlegis.gov.mg/page_find_direct_mots/ (accessed 16.05. 2024).

[15] BTI (2012), ‘Madagascar Country Report,’ p.10.

[16] La Banque Mondiale (December 2010), ‘MADAGASCAR: Revue de la governance et de l’efficacité du développement Analyse d’économie politique de la gouvernance à Madagascar,’ Rapport N 54277-MG, p.3.

[17] Ibid, p.8.

[18] International Crisi Group (March 18, 2010) ‘Madagascar: Sortir du cycle de Crises,’ Rapport Afrique N 156, p.13.

[19] Jean de Dieu Rakotondramihamina (1999), ‘Madagascar,’ pp.143-177. Please also refer to article 68 of the 2010 Constitution « Le Parlement comprend l’Assemblée nationale et le Sénat. Il vote la loi. Il contrôle l’action du Gouvernement. Il évalue les politiques publiques. »  http://mjp.univ-perp.fr/constit/mg2010.htm (accessed 16.05. 2024).

[20] Ibid.

[21] La Banque Mondiale (December 2010), ‘MADAGASCAR: Revue de la governance et de l’efficacité du développement Analyse d’économie politique de la gouvernance à Madagascar,’ Rapport N 54277-MG, p.3.

[22] Please refer to article 81 of the 2010 Constitution «Le Sénat représente les collectivités territoriales décentralisées et les organisations économiques et sociales. Il comprend, pour deux tiers, des membres élus en nombre égale pour chaque province, et pour un tiers, des membres nommés par le Président de la République, pour partie, sur présentation des groupements les plus représentatifs issus des forces économiques, sociales et culturelles et pour partie en raison de leur compétence particulière. » http://mjp.univ-perp.fr/constit/mg2010.htm (accessed 16.05.2024).

[23] International Crisis Group (March 18, 2010) ‘Madagascar: Sortir du cycle de Crises,’ Rapport Afrique N 156, p.17.

[24] Ibid, p.18.

[25] Ibid.

[26] Please refer to ordinance no 62-106 of October 1st, 1962 promulgating the National Service Code.

[27] Charles Cadoux (1993), ‘La constitution de la Troisième République malgache,’ Politique africaine No.52 pp. 58-66, p.61.

[28] Please refer to article 41 of the 1992 Constitution « La structure de l’État comprend:

– le pouvoir exécutif, composé du président de la République et du Gouvernement;
– le pouvoir législatif formé par l’Assemblée nationale et le Sénat;

– le pouvoir judiciaire exercé par la Cour constitutionnelle administrative et financière, la Cour suprême, les cours d’appel, les tribunaux et la Haute Cour de justice» http://mjp.univ-perp.fr/constit/mg1992.htm (accessed 30.01. 2013).

[29] Please refer to article 98 of the version of 1998 of the 1992 Constitution «Le président de la République est garant de l’indépendance de la justice. A cet effet, il est assisté par un Conseil supérieur de la magistrature dont il est le président. Le ministre chargé de la justice en est le vice-président.» http://mjp.univ-perp.fr/constit/mg1998.htm (accessed 16.05. 2024).

[30] Please refer to article 107 of the 2010 Constitution «Le Président de la République est garant de l’indépendance de la justice. A cet effet, il est assisté par un Conseil supérieur de la magistrature dont il est le président. Le ministre chargé de la justice en est le vice-président…» https://cnlegis.gov.mg/page_find_direct_mots/ (accessed 16.05. 2024).

[31] Please refer to International Crisi Group (March 18, 2010) ‘Madagascar: Sortir du cycle de Crises,’ Rapport Afrique N 156, p.18 and to Chapitre XIV Le développement économique? in Jean-Loup Vivier (2007), Madagascar sous Ravalamanana: La vie politique malgache depuis 2001 (Paris: L’Harmattan).

[32] Please refer to article 114 of the 2010 Constitution «La Haute Cour constitutionnelle comprend neuf membres. Leur mandat est de sept (7) ans non renouvelable. Trois des membres sont nommés par le Président de la République, deux sont élus par l’Assemblée nationale, deux par le Sénat, deux sont élus par le Conseil supérieur de la magistrature…» https://cnlegis.gov.mg/page_find_direct_mots/ (accessed 16.05.2024)

[33] International Crisi Group (March 18, 2010) ‘Madagascar: Sortir du cycle de Crises,’ Rapport Afrique N 156, p.22.

[34] Ibid, p.23.

[35] La Banque Mondiale (December 2010), ‘MADAGASCAR: Revue de la gouvernance et de l’efficacité du développement Analyse d’économie politique de la gouvernance à Madagascar,’ Rapport N 54277-MG, p.3.

[36] Ibid, p.4.; For further information on population perception of corruption, please refer to Transparency International’s Perception Index: https://www.transparency.mg/ipc/ (accessed 16.05.2024).

[37] Jean-Claude Ramandimbiarison (October 2003), Le Cahier de Madagascar n 1 ed. CDE, p.56.

[38] Montesquieu (1748), The Spirit of the Laws, XI, c.4.

[39] Please refer to article 95 «Le président de la République peut dissoudre l’Assemblée nationale pour des causes déterminantes.» of the version of 1998 of the 1992 Constitution http://mjp.univ-perp.fr/constit/mg1998.htm (accessed 16.05. 2024).

[40] Please refer to article 45 «Le président de la République est élu au suffrage universel direct pour un mandat de cinq ans; il est rééligible deux fois.» of the version of 1998 of the 1992 Constitution http://mjp.univ-perp.fr/constit/mg1998.htm (accessed 16.05. 2024).

[41] Please refer to article 100 «En cas d’urgence ou de catastrophes, le président de la République peut prendre par ordonnance des mesures relevant du domaine de la loi.» of the version of 2007 of the 1992 Consitution http://mjp.univ-perp.fr/constit/mg1998.htm (accessed 16.05. 2024).

[42] International Crisis Group (March 18, 2010) ‘Madagascar: Sortir du cycle de Crises,’ Rapport Afrique N 156, p.13.

[43] L.R. Rakotoson, K. Tanner / Ocean & Coastal Management 49 (2006) 855–872 at 860

[44] Please refer to the explanatory memorandum to Ordinance n°62-089 of October 1st, 1962, on marriage, JORM n°250 of October 19, 1962, p.2366 (text since repealed by Law n°2007-022 of August 20, 2007, on marriage and matrimonial property regimes, JORM n°3163 of January 28, 2008, p.131).

[45] ibid

[46] Please refer to RAMAROLANTO-RATIARAY, The causes and techniques of adapting the Civil Code to Madagascar, in Revue Juridique de l’Océan Indien, 2006, Le Code civil dans l’Océan Indien : 1804-2004, NS-2006, pp13-19, hal-02549645.

[47] RAMAROLANTO-RATIARAY, ibid.

[48] Rakotoson L. The legal transplant and its integration with the customary law of Madagascar. Research paper, Comparative Legal Systems, Golden Gate University, San Francisco, CA, Fall, 2003. In L.R. Rakotoson, K. Tanner / Ocean & Coastal Management 49 (2006) 855–872 at 858.

[49] The provisions which remain applicable in Madagascar in certain circumstances specified by the Cooperation Agreements concluded between Madagascar and France and dating from the 1960s and 1970s as well as by the case law of the Malagasy Supreme Court (see on this question, R. RATIARAY, in “Jugements commentés du Tribunal de commerce d’Antananarivo, année 2008,” Jurid’ika – Coopération franco-malgache, vol.1, 2011, comments under C.S., 04 May 2007, n°37/03-CO, I. TAYBALY vs M.H.M. RAZA, pg.3-8).