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PERIODIC REPORT IN ACCORDANCE WITH THE AFRICAN CHARTER ON HUMAN AND PEOPLES’ RIGHTS PRESENTED BY MADAGASCAR YEAR 2008 1 INTRODUCTION Madagascar ratified most of the Conventions and Charters relating to the protection of human rights including the African Charter on Human and Peoples’ Rights pursuant to law 91-023 dated 06 August, 1991. In response to the repeated calls of the African Committee for Human Rights, the Madagascan Government through the Ministry of Foreign Affairs took the initiative to create in accordance with inter-ministerial order no. 18600 dated 30 October, 2003 a committee responsible for the Drafting of the initial and periodic reports relating to international human rights instruments. This Committee comprises of: • Government institutions: Ministry of Foreign Affairs, Population, Social Protection, (which was transformed into the present Ministry of Health), Ministry of Education, Scientific Research, Economy, Finance and Budget represented by the National Statistics Bureau of the Secretariat of State responsible for the Public Security within the Ministry of the Interior and Administrative reform charged with Public Security; • Non Governmental Institutions, including NGOs active in the area of human rights in the former provinces of Madagascar; • And other members of the civil society. To date, Madagascar has neither drafted let alone defended a report relating to the African Charter on Human and Peoples’ Rights. This report spans from ....to........ The European Union provided financial support for the elaboration of this report under the project entitled ‘technical cooperation facility. Support to the activities of the Committee responsible for the Elaboration of Initial and Periodic reports relating to international human rights instruments.’ 2 TABLE OF CONTENTS A. TERRITORY 1. Geographic position 9 2. Climate and vegetation 9 B POPULATION 10 1. Background 10 2. Language, customs and habits and foreign communities 10 3. The main characteristics of the Madagascan peoples. 10 C EVOLUTION OF THE POLITICAL HISTORY 1. 2006 Presidential elections 2. Constitutional development 3. Administrative reform 4. Adoption of the Madagascar Action Plan (MAP) as a road map. D. HUMAN DEVELOPMENT INDICATORS E. ECONOMIC, SOCIAL AND CULTURAL INDICATORS 1. Economic 2. Social 3. Cultural 4. Communication and religion. F. SECURITY AND JUSTICE ARTICLES 2 AND 3 The enjoyment of rights and freedoms ARTICLE 4 Sanctity of life and protection of privacy – Right to life ARTICLE 5 Respect for the dignity inherent in the human person and recognition of his legal existence. ARTICLE 6 Right to liberty and safety of the individual ARTICLE 7 ARTICLE 8 Freedom of conscience to practice the profession or religion of one’s choice ARTICLE 9 Right to training ARTICLE 10 Freedom to establish associations ARTICLE 11 Freedom of assembly ARTICLE 12 Freedom of movement and abode ARTICLE 13 Socio-political rights ARTICLE 14 Right to property ARTICLE 15 Right to fair working conditions ARTICLE 16 Right to health ARTICLE 17 Right to education ARTICLE 18 Protection of the Family 3 ARTICLE 19 Equality of peoples’ rights ARTICLE 20 Right to existence and self determination ARTICLE 21 Right of peoples’ to economic self determination ARTICLE 22 Rights of the citizens to economic, social, and cultural development as well as the equal enjoyment of the common heritage of mankind. ARTICLE 23 Rights of persons to peace and security ARTICLE 24 Rights of persons to a conducive and comprehensive environment 4 ACRONYMS ACAT Christian Action for the Abolition of Torture AERP Provisional exploitation and research authorisation AJM Organisation of Mahanja Journalists APC Skills Approach APT Association for the prevention of torture Ar African Development Bank ARTEC Telecommunications regulatory authority ASPE Association for the safeguarding and protection of children BAD African Development Bank BIANCO Independent anti-corruption office BIT International labour office BLU Single lateral bands BM World Bank BTP Buildings and Public works CAID Intra domicile insecticide spraying campaign CDE Convention on the rights of the child CEDEF Convention for the elimination of all forms of discrimination against women CELCO Coordination unit of the Environmental programme CFP Technical and professional training institute CFTP Technical and professional training institute CHD District health centre CHR Regional health centre CHRR Regional referral health centre CHU Teaching hospital CLAC Centre for cultural reading and activities CNE National electoral Council CNE National employment Council CNEMD National teaching centre for music and dance CNEO National workers’ training centre CNLS National Aids control committee CNLTE National committee for the fight against child labour CNTEMAD National tele-training centre CNUCED United Nations Conference on trade and development COI Indian Ocean Commission COMESA Common Market for Eastern and Southern Africa CRDA Law Reform Commission for Africa CRSP Criminal System Reform Committee CSB 1&11 Primary Health Care Centre, levels I and II CSFOP Higher Civil Service Council CSI Committee for the Promotion Of Integrity CSLCC Higher Counter Corruption Council D-CAO decayed, missing and filled tooth DCPE Framework Paper For Economic Reform DIRAP Inter Regional Directorate For Prisons Administration DSM Department of household statistics DSRP Poverty Reduction Strategy Paper 5 DTS Special Drawing rights EBDM Economic Development Board of Madagascar EDS Population and health census EDSMD II & III Second and third population and health census in Madagascar EKA Ezaka Kopia ho an’ny Anhizy (Operation for the issuance of birth certificates to children) ENDS National population and health census ENMG National school for magistrates and clerks of the court EPM Continuing household census EPT Universal schooling ESEC Children exploited sexually for commercial ends FAO Food and agriculture organisation FARITANY Province FMG Malagasy franc FMI International monetary fund UNFPA United Nations fund for population affairs FOKONTANY Ward (the smallest administrative entity in Madagascar) FRAM Fikambanan’ny Ray Aman-drenin’ny Mpianatra (Parent teachers association) FTP Technical and professional training Ha Hectares HCC High constitutional court HCR High Commission for refugees HJRA Joseph Ravoangy Andriavalona hospital IDH Human development index IGL Local governance initiative INSCAE National institution for accounting sciences and company management INSTAT National Statistics Institution INSTN National institution for nuclear sciences and techniques INTRA National labour institution IPEC/BIT International programme on the elimination of child labour, International labour office IRR Rapid results initiative ISCAM Higher institute for communication, business and management ISF Total fertility rate IST Sexually transmitted diseases IST Higher institute for technology JAS African statistics day LTP Technical and professional high school MAP Madagascar action plan MCA Millennium challenge account MECIE Harmonisation of instruments and the environment MENRS Ministry of Education and Scientific research MII Insecticide treated bed nets MININTER Ministry of the Interior MOP Penal labour MST Sexually transmitted diseases NAC/PCIME Community based nutrition programme/ Integrated management of childhood illnesses 6 NC Non classified ND Undetermined OEMC Office for mass and civic education OIT International labour organisation OLEP Unit responsible for combating the occurrence of marine pollution OMD Millennium development goals OMERT Malagasy telecommunications regulatory agency OMS World Health organisation ONG Non Governmental Organisation PAM World food Programme PANAGED National sex and development programme PANEF National girls’ education programme PAS Structural adjustment programme PCIME Programme for the integrated management of childhood illnesses PDP Internally displaced persons PESH Persons with disabilities PEV Mass vaccination campaign PGE General state policy PIB Gross national product PMA Least developed countries PNP National population policy PNPDES National population policy for economic and social development PNPF National policy for the promotion of women PNUD United Nations development programme PVVIH People living with HIV AIDS RGPH General population and housing census RNDH National human development report RRI Rapid result initiative SADC Southern African Development Commission SME Minimum salary for agricultural and non agricultural recruitment SSD District health service TBS Gross schools enrolment rate TIC Information and Communication Technology TPI Court of first instance TVA Value added tax UNESCO United Nations Educational, scientific and cultural organisation UNICEF United Nations Children’s Fund USD United states dollar VHF Very High frequency VIH-SIDA Human immunodeficiency virus- acquired immunodeficiency syndrome HIV- AIDS. 7 LIST OF TABLES, CHARTS AND MAPS Table 1 Average size of households according to social setting and region Table 2 Gross national product in nominal and real terms and inflation rate Table 3 Average rate of exchange in Madagascar from 2001 to 2006 Table 4 Average salary, unemployment and under development in the region Table 5 Number of persons placed under a warrant for detention, and a provisional release (indo-Pakistani victims), cases handled by the Antananarivo crime squad from January 2000 to May 2007. Table 6 Number of radio stations per province as at November, 2004. Table 7 Number of television stations per province as at November, 2004. Table 8 Main daily and weekly newspapers Table 9 Percentage of men and women at all levels of the civil service Table 10 Public and private schools, levels II and III Table 11 Evolution of the gross school enrolment rate Table 12 Evolution of college enrolment Table 13 Evolution of high school enrolment from 1995 to 2005 Table 14 Evolution of enrolment of higher education students by gender from 1987 to 2005 Table 15 Enrolment of students in the CNTEMAD correspondence courses Table 16 Number of girls in the licensed public and private higher education institutions in 2005 Table 17 Literacy rate among the population above 15 years of age Table 18 Proportion of private schools Table 19 Status: ratification multilateral conventions Map 1 Madagascar: Administrative sub divisions 8 PART ONE A. TERRITORY 1. Geographic position (1) Madagascar is a large island in the Indian Ocean, the fourth largest island of the world covering 587,000 square kilometres, 1580 kilometres long from North to South and 580 kilometres wide from East to West. It is situated 400km off the coast of Southern Africa and is separated from the continent by the Canal of Mozambique. (2) The topography of Madagascar is more rugged than that of the rest of Africa including Eastern Africa. Most of the landscape is made up of close normal valleys ‘lavakas’ (deep ravines with steep slopes) cutting gashes into the slopes. The country is divided into several geographic zones: savannah, and plains to the West, the highlands inland, cliffs and tropical forests to the East, the enclaves to the North, and finally the semi-desertic plateaus of the South and South East. The country has a five thousand kilometre coastline and many inland sites. 2. Climate and Vegetation (3) Due to its relief, the country has a wide variety of tropical climates. In general, there is a stark difference between the hot and humid season on the one hand and the cooler and less rainy season, temperatures vary depending on the altitude and the seasons. (4) The ferralitic soils are predominant in the basins. The forests of the past have disappeared leaving grassy savannahs. This situation has created considerable runoff leading to the formation of holes and deep gashes on the slopes. (5) In the west, the climate is tropical and dry. Temperatures are high with low rainfall towards the South. The average temperature is 20o c ranging from 5.5o to 10oc. The mainly savannah landscape is only broken up by the edge of the forest along the rivers. (6) Administratively, Madagascar is divided into 22 Regions, 118 Districts, 1558 Communes and 17500 Fokontany1, (7) The urban and rural areas consist of several communities which in turn are subdivided into wards. 1 community 9 Map 1 Madagascar: administrative sub divisions. Map to be amended B, POPULATION: 1)Background (a) The first known inhabitants of the country were the Vazimba. They moved from the coasts towards the centre of the island on the arrival of the immigrants from the Asian continent (Indonesians, Malays,) and from the African continent (East Africans and Arabs). Other population groups followed later on, Indians, Chinese and Europeans. Before the arrival of the Europeans in Madagascar, several indigenous kingdoms were created between the XVIth and XIXth century. As of the XIXth century, the Kingdom of Imerina gained some control over the other kingdoms. 2) Language, habits and customs and foreign communities 10) The Madagascan people live within a nation. 11) Despite the level of evolution of the Madagascan socio-political system, habits and customs have always played a major role in the mode of social control. 12) In Madagascar there are European, American, Asian, African and Arab communities. 3) The distinctive traits of the people of Madagascar 13) As at the latest general population and housing census fielded in 1993, the population stood at 12,238,914 persons. It was estimated in 2007 at 18,359,000 according to the projections of the National Statistics Institute (INSTAT) with a growth rate stabilised at 2.8%. 14) Due to its insular nature, and its distance from the main international migration flows there is little exchange of populations with foreign countries. The effects of international migration are minimal. a) Social distribution of the population 15) According to the continuing household census, slightly less than 8 individuals out of 10 reside in the rural area. Regarding the regional distribution, 15 out of 100 people 10 live in Analamanga. The regions of Melaky, Ihorombe, Betsiboka and DIANA are each home to under 2% of the entire population. 5 to 9 % of the population live in Vakinankaratra, Matsiatra, Ambony, Vatovavy, Fitovinany, Atsinanana, Sofia and Atsimo Andrefana. 16) The Malagasy population is young. One in five persons is aged five or younger. Furthermore, half the population is less than 20 years old. People of retirement age, specifically within the civil service, make up 4% of the population. In terms of numbers within the general population, the proportion of male to female is more or less ‘balanced’. The proportion of women to men stands at 50.6%. b) Main population indicators Birth rate, fertility, and mortality 17) According to some sources of data, (General population and housing census, 1993, second national population and health census, 1992, third population and health census, 1997) the fertility rate is high and precocious in Madagascar. Actually, the total fertility rate (TFR) is 6 and the proportion of sexually active adolescents aged 15-19 years is high (30% according to the 1997 population and health census). According to the third population and health census fielded in Madagascar in 2003-4, the life expectancy has increased and now stands at 58.1 years for women and 56.3 for men. 18) Infant mortality at birth was pegged at 58% in 2003-2004. Life expectancy 19) In 1993, life expectancy at birth was higher among women than among men in the entire country. 20) According to the 2003-4 third population and health census in Madagascar, the life expectancy has risen to 58.1 among women as opposed to 56.3 among men. c) Characteristics of Malagasy households. Average size of households. 21) On average, there are 4.9 persons in a Malagasy household. Rural families are bigger than urban ones (4.9 compared to 4.6). These figures are constant irrespective of the region of residence. However, this indicator varies from 3.9 in DIANA to 5.8 in Mahatsiatra Ambony. 11 Table 1: Average size of households according to social setting and region. Unit-persons REGIONS SETTINGS TOTAL Urban Rural Analamanga 4.5 4.8 4.7 Vakinankaratra 4.4 5.0 4.9 Itasy 5.0 5.4 5.3 Bongolava 4.6 5.2 5.1 Mahatsiatra Ambony 5.0 5.9 5.8 Amoron’l Mania 4.8 5.5 5.4 Vatovavy Fitovinany 5.0 4.9 4.9 Ihorombe 5.2 5.0 5.1 Atsimo Atsinanana 4.6 4.7 4.6 Atsinanana 4.5 5.1 4.9 Analanjirofo 3.7 4.1 4.1 Alaotra Mangoro 4.5 4.7 4.7 Boeny 4.2 4.4 4.3 Sofia 4.7 4.9 4.9 Betsiboka 5.0 5.1 5.1 Melaky 4.9 4.3 4.6 Atsimo Andrefana 4.2 4.6 4.6 Androy 5.3 5.5 5.5 Anosy 5.5 5.0 5.1 Menabe 4.2 4.7 4.6 Diana 3.9 3.9 3.9 Sava 4.0 4.2 4.2 Total 4.6 4.9 4.9 Source: National Statistics Institute/ Department of household statistics, Madagascar/ 2005 Continuing household census Socio-demographic characteristics of heads of households. 22) The Malagasy society is based on a patriarchal system. 23) The different matrimonial statuses are: monogamous customary marriage, legal marriage, monogamous common law marriage, polygamous customary and common law marriage. C- EVOLUTION OF THE POLITICAL HISTORY. (1) 2006 Presidential election 24) Marc RAVALOMANANA emerged as the winner of the 3rd December presidential elections to serve a second five year term. 12 (2) Changes in the Constitution since the last report 25) The 4th April, 2007 referendum approved the revision of the Constitution. The following amendments were made to the Constitution and subjected to a referendum: Chapters II and III define the decentralised local authorities i.e. regions and communes; Article 2 – “The Republic of Madagascar is subdivided into local government authorities whose administrative and financial autonomy are enshrined in the Constitution. These local government authorities collaborate with the Government to develop the nation.” Article 4 – “The official languages are Malagasy, French and English.” Article 13 – [......] ‘Any individual charged with or accused of an offence shall be entitled to the presumption of innocence until proven guilty by a competent court of law.’ Article 14- ‘All individuals shall be entitled to freely forge associations with others on condition said action is in conformity with the Law. The same right shall be applicable to the creation of political parties. However, associations and political parties which jeopardise the unity of the Nation shall be prohibited; the same shall apply to parties which advocate totalitarian or segregationist ideas of an ethnic, tribal or denominational nature.’ Article 35- ‘The Fokonolana shall be at the base of all development’ [..........] Article 39- ‘All individuals shall be compelled to respect the cultural values, public property and the environment. The State and the decentralised local government authorities shall ensure the protection, and conservation of the environment through appropriate means. ’ Article 46- ‘All candidates to the post of President of the Republic must hold a Malagasy citizenship whereby both parents are nationals of Madagascar, enjoy civil and political rights, be at least forty years old on the closing date for filing candidatures, and reside within the territory of the Republic of Madagascar at least six months before the date of filing candidatures.’ Article 48- ‘Before taking office, the President of the Republic shall be sworn in before the Nation, at a solemn ceremony held at the High Constitutional Court in the presence of the Government, National Assembly, Senate and the Supreme Court’[.....] 13 Article 68- “Whilst in office, no Member of Parliament shall hold any other elective public office and public employment excepting a teaching job. Any Member of Parliament appointed to a post within the Government shall resign forthwith from Parliament. All Members of Parliament shall dispatch their duties in all conscience and shall abide by the ethical rules laid down in article 76 hereunder. He shall be bound by the requirement to seat regularly. In the event of an unjustified absence, the MP’s salary shall be stopped forthwith. The Member of Parliament’s right to vote shall be personal. Voting shall be in public by a show of hands excepting where the issues at hand personally affect the members of the National Assembly’ Article 70- “No Member of Parliament shall be prosecuted, pursued arrested, detained, or judged for his opinions or vote during his term of office. Members of Parliament shall only be arrested during sessions of the House to face criminal charge with the permission of the Parliament, unless in instances where they were caught in flagrante delicto as the main author, co-author or accomplice perpetrating the offence. Any individual may report in writing to the Permanent Bureau of the National Assembly on cases of incompetence or misconduct involving Members of Parliament. The Bureau must give a detailed response to the report within a period of six months” Article 69 to78, review of Parliamentary representation; Article 99- [.......] “The delegation of authority authorises the President of the Republic to adopt measures of a general nature on matters touching on the law through Cabinet orders.” Article 100- “In the event of an emergency or disasters, the President of the Republic shall be entitled to take measures through orders on matters touching on the law.” Article 109- “The High Judicial Council, a protection, career management and punitive body shall be charged with ensuring respect of the law, the statutory provisions of the bench, respect for the code of ethics by Magistrates, making recommendations for improved delivery of justice especially in the case of measures of a legislative or regulatory nature concerning the Courts and Magistrates.” Article 131- “ The provisions of the present Constitution shall not impede the ratification of the Statutes of the International Criminal Court done in 14 Rome on 17 July 1998 and the implementation of the attendant obligations under the conditions outlined in the said Statutes.” Articles 134 to 140 on local Government authorities Articles 141 to 145 on the regions Articles 146 to 149 on the Communes 3. Administrative Reform 26. Article 35 of the revised Constitution stipulates that “the Fokonolona shall be the foundation of all development.” 27. Article 138 of the revised Constitution stipulates that “The decentralised local government authorities shall be the regions and communes.” 4. Adoption of the Madagascar Action Plan (MAP) as a road map. 28. The Madagascar Plan of Action (MPA) is a five-year plan spanning from 2007 to 2012. The Plan is based on the achievements of the PRSP and hence a follow up to the latter. The aim of the MAP is to make a quantum leap in development terms through the mobilisation of a five-year innovative plan which proposes to mobilise the Malagasy people and their international partners to generate rapid growth, promote poverty reduction, and guarantee the country’s development in spite of the challenges of globalisation, in line with the “Naturally Madagascar” Vision. 29. The eight commitments of the Map are premised on eight pillars, namely: • Good governance • Infrastructure • Education reform • Rural development • Health and family planning • Economy and the private sector • The environment • National Solidarity. D. HUMAN DEVELOPMENT INDICATORS 30. For the year 2005, the HDI for Madagascar was evaluated at 0.5272. Over the past five years, the HDI of Madagascar has increased by 8.8%. In general, the rise is a result of the progressive improvement in indicators linked to life expectancy at birth and school enrolment. 31. However, there was a drop in the HDI in 2002 (0.479) due to the post electoral crisis and the protracted slump in economic activities in revenue terms. 2 Source: 2006 National human development (NHDR) report of the UNDP. 15 32. On the contrary, since 2003, the Big Island has been progressively drifting away from the group of least developed countries with a HDI slightly higher than 0.5. That notwithstanding, the country is still ranked amongst the 20 poorest countries worldwide. 33. The HDI of Madagascar is above the average HDI of the LDCs but twice as low as that of the rich countries. E. ECONOMIC, SOCIAL AND CULTURAL INDICATORS. 1. The Economic field 34. The recent socio-economic reforms undertaken have led to tangible growth and real changes in the country. Despite the slump which came in the wake of the post- electoral crisis in 2002, the economy has continued to register real positive growth. After several decades, the adoption of new legislative and regulatory provisions ushered in improvements and major reforms in the management of public finances. 35. Madagascar is committed to rise up to the challenges attendant to the attainment of the millennium development goals of halving poverty come 2015. The strategy adopted for the implementation of this policy is outlined in the Poverty Reduction Strategy Paper (PRSP) which was updated in 2005 and ended on 31st December, 2006. The 2007-2012 Madagascar Action Plan (MAP) is the follow up to the PRSP. 36. The expansion-oriented economic policy revolves around a boost in global supply and increased public sector investment, especially in the priority sectors such as education, health, infrastructure, and justice. Furthermore, in the private sector, the subsistence economy is evolving into a market economy, rural economy is expected to expand into an industrial economy and cooperation with other countries will be strengthened through international and regional trade. a) 2006 economic and financial performance. 37. In the first quarter of 2006, the grim economic outlook led to a slowdown in economic activities. Poor rainfall had an adverse effect on agricultural produce especially rice and the production of electrical power. 38. Despite the existence of many external factors, the economic growth rate was estimated at 4.7% in 2006. This economic growth was mainly spearheaded by a high level of investment of some 21.8% of GDP, 10.8% coming from the public sector and 0.8% from the private sector. 39. Actually it is the primary sectors which have been the hardest hit. 40. The low rainfall had adverse effects on hydro-electrical power production and on industrial production whereas activities of firms in the free zone are at a standstill. 41. The tertiary sector is at the origin of the bulk of GDP growth. Growth in this sector is lower than expected due to delayed disbursement under public investments for the 16 CPW and the drop in the number of tourists in the wake of the “Chikungunia” epidemic. b.) Economic and financial outlook, 2007. 42. Madagascar must register a relatively high growth rate if she is to attain the millennium development poverty reduction goals outlined in the MAP. Thus, the expected growth rate for the year 2007 stands at 5.7, supported by investments estimated at 22.1% of the GDP with 10.3% and 11.7% coming from the public and private sectors respectively. Furthermore, a boost in exports is anticipated thanks to the development prospects in store for export-oriented industries (agro-industry, mining industries.......) and the implementation of various measures to diversify exports. Hence, the growth in exports is estimated at 1.3% of SDR and imports at 2.5%. 43. The 2007 estimated growth rate for the private sector is estimated at 3.1% as opposed to 2.1% in 2006. Such growth is supported by developments in the agriculture sector assisted through financial partnerships, especially under the Millennium challenge account programme. In the secondary sector, the estimated growth rate was 5.9% in 2007 and 6.9% for the tertiary sector. Table 2- Gross national product (GDP) in nominal and real terms and inflation rate. Year Nominal GDP Nominal GDP Real Real GDP Growth Inflation (billion (billions of Mgf GDP (billions of (%) (%) Ariary) 1984) (Billion Mgf 1984) Mgf 1984) 2000 5377 26885 466 2332 4.8% 9.8% 2001 5969 29845 494 2470 6.0 7.3 2002 6008 30040 432 2160 -12.7 15.2 2003 6777 33885 474 2370 9.8 2.8 2004 8156 40778 499 2494 5.3 13.8 2005x 9914 49568 531 2655 6.4 5.8 Source: Department of economic studies. c. ) Inflation and currency depreciation 44. 2004 has been marked by a generalised hike in consumer prices. Fuel, basic commodities and healthcare products have been affected. 45. Inflation was caused among others by the two devastating cyclones, the hikes in the price of fuel and rice on the international market coupled with the heavy depreciation of the Malagasy currency during the first semester of 2004. 46. The escalation of oil prices on the international markets during the first semester of 2006 has affected domestic prices resulting in an inflation rate of +8.8% in February to +13.6 in June 2006 on a sliding scale. The implementation of a prudent monetary 17 policy coupled with a judicious budgetary policy in the area of liquidity management has contributed to a large extent to the deceleration of prices. 47. Control of and attempts at stabilising inflation will be pursued in 2007. 48. In 2004, the Malagasy currency depreciated considerably. The rate of exchange became less volatile as of July 2006 after a 7.64 % depreciation against the Euro and 1.3% against the dollar during the second quarter of 2007. Table 3: Average value of exchange rate in Madagascar from 2001 to 2006. Year USD EURO Average for End of the Average for End of the period period the period period Average 2001 1318 1317 1181 1174 Average 2002 1366 1366 1274 1274 Average 2003 1238 1239 1399 1409 Average 2004 1869 2320 Average 2005 2003 2488 Average 2006 2142 2686 January 2007 2036 2644 February 2007 2021 2640 March 2007 1975 2612 Source: Central Bank of Madagascar. 2. The Social field a) Employment in Madagascar 49. In accordance with the Universal Declaration for Human Rights, the National Employment Policy aims to promote full productive employment for all chosen out of one’s free will. 50. The National Employment Policy aims to: • Provide the conducive environment for economic growth, investment and employment; • Support the private sector, the main player in the reduction of unemployment; • Improve access of workers in the informal and rural sector to education and skills training to boost productivity; • Promote remunerative and income generating activities; • Facilitate access for socially sensitive groups to the job market especially women, youth and persons with disabilities. 18 b) Under employment and average salary 51. More than 86% of the jobs created in Madagascar are non-wage earning. The percentage of wage earning jobs was 13.4% in 2005. The average annual salary is estimated at 991 000 Ar per month. The average salary in the urban areas is double that in the rural areas, 1,296,000 Ar as opposed to 691,000. Salaries of women are significantly lower than that of their men folk: on average 750,000 Ar. for women and 1,147, 00Ar for men. Table 4: Average salary, unemployment and under-employment according to regions. Average Unemployment Unemployment Inadequate annual rate linked to the employment salary duration of work Analamanga 1 319 5.1 20.6 27.2 000 Vakinakaratra 621 000 2.0 44.8 61.8 Itasy 581 000 0.9 34.3 60.8 Bongolava 584 000 3.2 28.1 55.8 Mahatsiatra 964 000 2.5 21.5 38.5 Ambony Amoron’l 398 000 3.4 17.3 84.0 Mania Vatovavy 779 000 1.7 30.9 53.3 Fitovivany Ihorombe 1 085 2.0 27.9 28.8 000 Atsimo 802 000 3.8 32.7 60.3 Atsinanana Atsinanana 1 336 3.4 28.0 25.5 000 Analanjirofo 941 000 2.2 28.7 39.6 Alactra 664 000 2.7 25.9 51.0 Mangoro Boeni 1 181 5.3 17.8 26.5 000 Sofia 1 031 1.1 4.0 30.6 000 Betsiboka 884 000 1.0 16.7 52.2 Melaka 945 000 1.9 17.7 52.2 Atsimo 719 000 1.8 28.9 58.2 Andrefana Androy 1 005 0.9 30.0 40.9 000 Anosy 901 000 3.6 25.9 53.6 Menabe 1 113 3.3 23.0 44.8 000 19 Diana 1 097 7.6 16.0 23.1 000 Sava 1 310 1.4 24,4 22.4 000 991 000 2.8 25.2 42.5 Source: INSTAT/DSMEPM2005 52. Unemployment is a real problem within the Madagascar job market. In 2005, the unemployment rate linked to the duration of work was estimated at 25.2%, it was 24.6% for workers between 15 and 64 years of age. Women bear the brunt of this situation. c) Unemployment 53. The unemployment rate in Madagascar was estimated at 2.8% in 2005. Should we consider only individuals aged between 15 and 64 years, the unemployment rate would be 2.6%. According to table 6, the unemployment rate varies from one region to the next. Unemployment is also mainly an urban phenomenon. In the urban areas, it is 7.1% as opposed to a mere 1.7% in the rural areas. 54. Further, unemployment affects more women than men. The unemployment rate is 3.6% among women and 2.0% among men. The same situation prevails in all regions of the country. d. Poverty 55. Both rural and urban dwellers benefitted from the economic growth which occurred between 2004 and 2005. In this period the incidence of poverty dropped across the board from 72.1% to 68.7%. The impact is more significant in the rural areas than in the urban areas. As a matter of fact the incidence dropped by 1.70% in the urban areas and 3.8% in the rural areas. The incomes of the urban dwellers were less responsive to the rise as they are mainly salary earners whereas the rural population benefitted from the rise in consumer prices of foodstuffs. 56. In 2005, the incidence of poverty in Madagascar was 68.7%. Poverty is more acute in the rural areas than in the urban areas. In effect, the poverty rate in the urban area stands at 52.0% as opposed to 73.5% in the rural area. The regions situated on the eastern coast of the island are the hardest hit by this scourge. e. Health 57. As the Malagasy Government is aware of the importance of health in the development process, it has earmarked improved access to basic healthcare as its main objective especially for the poorest. 58. Overall, 120 activities have been conducted in the health sector with a 98 to 100.0% completion rate 2005. Only the most salient interventions will be highlighted in this report. In this vein, the following programmes were taken into consideration with the context of the 2005 objectives and achievements: 20 • Improved access to sound health services; • Promotion of maternal/child healthcare; • Intensification of the fight against infectious diseases; and • Fight against HIV/AIDS Improved access to sound healthcare. 59. For improved access to basic healthcare services, the outreach approach has been adopted to reach as large a segment of the population as possible throughout the country. The improvement is not only quantitative but more a qualitative improvement in the delivery of the attendant services. There are five objectives: • Improve the health coverage of the population; • Improve the hygiene and sanitation of health service; • Boost the availability of and accessibility to essential medicines, blood and quality healthcare products; • Improve the performance of the health system. Achievements 60. In a bid to improve the health coverage of the population, the 63 Primary health care centres (PHC) built and the existing 197 which were equipped and rehabilitated are the physical manifestation of the attainment of this objective with the relevant achievement rates revolving around 114.6% and 197.0%. In addition, basic technical and PHC products were provided as planned and 75.06% of the equipment and products meant for 30 PHC centres within the framework of the National General Policy (NGP) have been supplied. 61. The construction of health units at the Ambrohimiandra Teaching Hospital, HJRA Teaching Hospital, and 10 Health schools have contributed to the improvement of hygiene and sanitation in the health facilities. These activities have been fully implemented. 62. Regarding the availability of and access to essential medicines, an implementation protocol has been signed between the Ministry of Health and Family Planning and the Salama Central stores for the supply of drugs to the 111 District Health Centres (DHC), 2 Teaching hospitals, 19 Regional Referral Hospitals (RRH), 17 health care centres, District 2, 69 District 1 health care centres, and fourteen specialised centres. 63. Regarding the improvement of service delivery quality, and performance of the health system, 18 district health centres (at all levels) have been rehabilitated, and bio-medicinal equipment provided for ten district health centres levels 2 and 6, regional referral health centres and 1 district health centre level 1. Human resources have been beefed up both quantitatively and quantitatively. In effect, to increase the personnel, 511 doctors and 669 medical staff have been recruited, 152 officers attached to the administrative 21 services, and contracts signed with 43 dental surgeons. These activities have been 96.0% completed. Promotion of maternal and child health. 64. The well-being of the mother and child is of primary concern to all. For the mother the possibility of participating actively in development depends not only on her state of health but also on that of her child. Regarding health promotion four objectives have been identified: Objectives Boost vaccination cover; Strengthen school activities; Strengthen strategies for the integrated management of maternal illnesses; Promote safe motherhood. Achievements 65. Three activities have been fully implemented in a bid to improve vaccination cover i.e. supply of vaccines (doses) to district health centres, vaccination material (units) to 111 targeted district health centres, 164 cases of placid paralysis and 111 cases of measles have been notified. Apart from the strategies and progress in the 45 low coverage areas, cold chain coverage has been 67.0% and 92.0% completed respectively. Other activities such as the re launching of the Mass Vaccination Campaign (MVC) based on the 100 day Rapid Results Initiative, the FAV Polio and Tetanus eradication campaign have all been fully implemented. 66. In a bid to improve on school health activities, all 111 targeted district health centres have been supplied with petrol and spare parts to operate the cold chain. 67. Within the framework of the promotion of strategies for the Integrated Management of Childhood illnesses (IMCI), the National Health Policy for children was formulated and validated. At the regional level, 96 trainers were trained and 300 community nutrition programme sites reactivated in order to improve the nutritional status of children. Presently, 52 IMCI sites are functional. Intensification of the fight against contagious diseases. 68. In this part, 11 objectives have been defined with 18 activities implemented between 15% and 100%. 69. For the elimination of leprosy, the goal is 1 case for every 10,000 inhabitants. Active screening and free treatment in 28 district health centres have been fully implemented. 70. Regarding Malaria control, 2 out of 4 activities have been fully conducted, namely, I) the distribution of 900,000 impregnated bed nets and the re-dipping exercise in the regions of DIANA and SABA; and II) provision of the intermittent malaria treatment for 22 pregnant women. The impregnated bed nets are availed pregnant women and children under the age of 5 in 35 DHC of the stable zones and adjoining DHC. HIV/AIDS control 71. Even though the HIV/AIDS prevalence rate is still relatively low in Madagascar (1%), Government has expended considerable efforts to combat this scourge both through prevention and the treatment of patients. In 2005, 16,491,744 condoms were sold in the whole of the Island to stop the disease from spreading. Sensitisation and training have been conducted including: training of 172 trainers out of the expected 300, the production of 24 hour programmes and daily broadcasts. Training on medical care for 240 targeted AIDS worker while, in 2005, 80 people living with HIV AIDS were treated. f) Education Universal education (UE) 72. The Malagasy state subscribed to the Universal Education Plan formulated in Jomtien, Thailand, in 1990 and in Dakar, Senegal in 2000. In the case of Madagascar, the main objectives are: • Basic education for all; • 100% primary cycle completion rate; • Reduction by 50% of the illiteracy rate. 73. The efforts of the government centre around three main parameters: • Access: that is, increase in the enrolment capacity for all Malagasy children by 2015; • Equity: ensuring sound quality assessment in both rural and urban settings to stem the dropout rate. • Quality: improved education and teaching materials to reduce the school repeater rate to 8% and attain a 100% school completion rate by 2015. 74. To attain these objectives, the Malagasy State has received an additional 1,000,000,000 US dollar loan within the framework of the Fast Track Initiative. 75. Legislative and regulatory reforms have been undertaken in the field of education. The Malagasy education system • The education, non formal training, comprising all educational activities and training conducted outside the formal educational system. This includes nursery schooling, functional literacy, citizenship and civic education. • Civic and moral education were reintroduced into the basic education school programme in 1992. 23 • The Office for Mass and Civic Education, under the Ministry of Education was created in 2002 for continuous training and sensitisation of the population especially the school population on civics and citizenship. 77. Formal education and training cover basic, secondary education, technical and skills training, higher education and university training. 78. Basic nine-year training includes: Basic education in the first cycle organised in levels: o Nursery: first and second year o Elementary: one year o Fourth or fifth year in primary school. Second cycle basic education. o Observation class: 1st and 2nd year o Orientation class: 1st and 2nd year 79. Secondary education is three years (from form five to sixth form). 80. Technical and skills training (TST) which comprises technical and skills training colleges (TSC), technical and professional high schools and (TPHS) is the least developed area of education. In 2003-2004, only 3% of the total college and high school population attend TSTs. 81. There are 6 public universities, national schools, private higher education schools and facilities licensed by the State and a National Distance Learning Centre in Madagascar (CNTEMAD), within the higher education and universal schooling system. 3. Culture 82. The Government action plans revolve around the promotion of a cultural identity, among others: Promotion of a Malagasy intercultural dialogue during the annual United Nations day commemorations; Promotion of the national and regional cultural heritage; Establishment of the National culture office, the Arts and culture provincial centres, and the “creation of arts and culture sections in Madagascar’s embassies abroad.” 83. Taking into account the importance of the cultural dimension of development, the Government has prepared and published books in Malagasy for use by the general public. These publications are aimed at highlighting the contribution of the different cultures and civilisations and mainstreaming the latter into school programmes. 24 4. Communication and religion 84. The right to information and communication as well as the freedom of religion are enshrined in the Constitution without distinction of any kind such as race, origin and sex. 85. Abolishment of censorship in 1991 ushered in the emergence of private radio stations, and the development of the written press. 86. In August 2004, 93 cultural associations from all religious denominations were in existence. F- SECURITY AND JUSTICE 87. The protection of citizens and their property is enshrined in the Constitution without distinction of any kind such as their race, origin or sex ....., 88. The Constitution guarantees Gender equality before the law. 25 PART TWO Articles 2 and 3: The enjoyment of rights and freedoms- Equality and protection of all and sundry before the law. ARTICLE 2- Every individual shall be entitled to the enjoyment of the rights and freedoms recognised and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or any status. ARTICLE 3: “Every individual shall be equal before the law;” “Every individual shall be entitled to equal protection of the law.” 89. Articles 2 and 3 relate to non discrimination, equality, and the protection of all and sundry before the law and will be dealt with together. 1. Constitutional Provisions 90. The Malagasy Constitution of September 1992 amended by constitutional laws no. 98-001 dated 08 April, 1998 and revised in April 2007 recognises the principle of non-discrimination especially in its articles 7 and 8. 91. Article 7 stipulates that “the law is an expression of the common will. It shall be applicable to all, protect all, be binding on all or punish all.” 92. Similarly, article 8 emphasizes that: “Nationals shall be equal before the law and shall enjoy the same fundamental freedoms protected by the law without any distinctions of any kind based on sex, level of education, fortune, origin, race, religion or any other opinion.” 93. Further, this very Constitution recognises: • The International Charter on Human Rights; • The Convention on women’s rights; • The Convention on the rights of the Child. • The African Charter on Human and Peoples’ Rights. 94. Article 2 of the International Covenant on Civil and Political Rights confirms the above constitutional provisions. 95. Regarding article 3 of the Charter, the principles of equality before the law and prohibition of discrimination or favouritism on the grounds of one’s sex, race, language, religion or political affiliation are enshrined in the Constitution. 96. Actually, article 8 above only goes to reinforce the above assertion. 26 II. - Legal Provisions a.- On the criminal plane 97. Any infringement of these constitutional provisions shall lead to the sanctions set forth in article 115 of the Criminal Code pertaining to Law no 82-013 of 11 June 1982 as follows: “Any individual who deliberately denies another individual the enjoyment of a right he/she is otherwise entitled to on the grounds of his colour, sex, family status, actual or purported affiliation or non affiliation with an ethnic group, nation, race or specific religion shall be liable to one month imprisonment and a fine ranging from 200,000 to 1,500,000 Ariary or any one of the two punishments. The above penalties shall be doubled where the deeds were perpetrated by a holder of public office or a citizen responsible for a public service Ministry in the course of dispatching his duties. In the cases described in the two preceding paragraphs, where the perpetrator proves that he was acting under the instructions of his supervisor in matters under the purview of the latter, and that he had to bow down to the supervisor’s superiority, only the supervisors who gave the orders shall be liable to the stipulated punishment. The present article shall not be applicable to distinctions, exclusions, restrictions, or preferences established by the laws or regulations regarding persons of Madagascan or non Madagascan citizenship.” b- On the civil plane 98. Recognition of the right of all parties to go before a court to defend ones rights is explicitly stipulated in article 1 of the Code of Civil Procedure: “Any individual may go before a court for recognition or protection of his case, as the case may be.” Equal access to employment in the public sector: 99. By virtue of Law no 2003-011 dated 03 September 2003, order 93-019 dated 30 April 1993 on the General Status of the Civil Servant was repealed. The significant innovations ushered in by this new statute are stipulated in articles 5 and 78: • Article 5: “For the application of this Status, there shall be no discrimination based on sex, religion, opinion, origin, birth, fortune, political belief, or membership of a union.” • Article 78: “The Covenants and regional and international Charters on the Civil Service of which Madagascar is a signatory shall all be considered as an integral part of the present Status.” Equal access to employment in the private sector: 100. The Labour Act governing the private sector is currently being reviewed with the same tendencies to combat discriminatory practices of all forms. 101. Despite the legal strides accomplished, there are still a number of customary practices which militate against the elimination of all forms of discrimination against women. 27 102. Women are marginalised due to their: • Illiteracy and lack of education; • Their status vis a vis the mores exiting in certain communities; • Their matrimonial status and especially the stigma attached to single or barren women in certain societies. • The position of families with regard to tradition on heritage, the poverty of women in the rural areas. 103. These factors explain the low participation of women in public life and public discourse, generally. III- Administrative Measures. a. Measures taken by the State to respect the notion of equality before the law. 104. Presently, in terms of gender, the government and parliamentarians have launched sensitisation and awareness creation activities to convince the population to adopt behaviours which are conducive to a just and equitable treatment in a bid to conform with article 3 of the International Covenant on Civil and Political Rights.: “State parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant.” 105. The Ministry of Justice through its Legal literacy programme organises radio and television programmes and workshops to inform citizens of their rights: • Weekly programmes on the Malagasy Radio airwaves with nationwide coverage; • Vulgarisation programmes by jurisdictions on local radio stations; • Bi- annual television programmes on Malagasy Television. 106. In addition, open days were organised in Antananarivo (December 2005) and Mahajanga (May 2006) , Toamasina (September 2006) for sensitisation purposes. 107. In a bid to foster this equality of all before the law, the Malagasy government has established five Appeal Courts in the county seats of former Farianty and the sixth is under construction at Ansiranana. 108. With the Magistrate and Clerks’ school (ENMG), Madagascar has been able to augment the number of Magistrates by 25 each year and as of 2006 the intake will be doubled. 109. Further, educational films have been produced by the Research Department at the Ministry of Justice to sensitise the citizens of their rights and responsibilities. 110. The Antananarivo Bench Association with the support of the European Union has set up a kiosk to advise justifiables. Other regions shall soon be equipped with these kiosks. 111. Article 105 of the Labour Code (Law no 2003-044 dated 228 July, 2008) stipulates that “there shall be no discrimination in terms of work and employment between able bodied persons and persons with disabilities having the same capacity and competence as a result of the latter’s disability. Persons with disabilities shall be entitled to work, employment, apprenticeship, and skills training and employment on an equal footing and for equal pay as their peers.” 28 112. Law 97-044 on disabilities dated.....implementing order no 2001-162 (cf. AUGUSTE) b.- Other measures 113- Human Rights NGOs from all regions have been availed paralegal training since 2003 to man the call and legal advice centre where citizens who believe their rights have been violated can receive guidance. 114. To this end, the Ministry of Justice published brochures and leaflets outlining the relevant legal procedures. The leaflets were distributed during the open days. During support visits to jurisdictions one of the brochures, “Guide to respect of Human Rights for law enforcement officials” was distributed to the parties concerned (legal personnel, judicial officers, legal aids as well as NGOs and journalists.......) 29 ARTICLE 4 : The inviolability of the person: privacy protection- Right to life. ARTICLE 4: “Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right.” a- Privacy protection 115. Article 13 and paragraphs 1 and 2 and article 19 of the revised Constitution of 4th April, 1992 enshrining the protection of privacy for all individuals who are “guaranteed the inviolability of their persons, residence and secrecy of all correspondence. Home searches shall be conducted only with the authorisation of the law and on the written orders of the competent legal authority, except in cases of a flagrant offence........ ” Paragraph 116. deleted. 116. Law no 70-001 dated 23 June, 1970 incorporating the Covenant on Civil and Political Rights which stipulates in its article 17 that: : “No one shall be subjected to the arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.” 117. Any infringement of these constitutional provisions shall be punishable under articles 184, paragraphs 1, 2, and 187 of the Criminal Code relating to order no 72-051 dated December 1972. 118. However, a number of problems have arisen in the area of privacy protection. Certain journalists in the written press cast aspersions on some individuals in contravention of the provisions of article 2 paragraph 3 of law 90-031 dated 21 December 1990 on the Communication which “ enjoins respect of the rights and dignity of others.” 119. Training sessions were held in 2006 for journalists in Antananarivo, Toamasina, and Antsirana and plans are afoot to organise others. The training is organised by the Research Department of the Ministry of Justice to create awareness of the legal procedure and build the capacity of journalists to report on judicial matters. 120. Two meetings were organised by the Association of Mahajanga Journalists one with the senior staff of the administrative and financial Court, in the first quarter of 2007 and the other with the first instance court (FIC) and the Appeal Court to build the capacity of the journalists to appreciate the meaning of respect for fundamental rights and freedoms. b- Right to life 121. Article 19 of the Constitution stipulates that: “The state shall recognise and organise the right to the protection of their health from conception for all individuals” and article 21 stipulates in turn that “the State shall guarantee the protection of the family for its unfettered self realisation including that of the mother and children by an appropriate law and social institutions.” 122. Article 17 stipulates that: “the State shall organise the exercise of the rights which guarantee the individual’s integrity, dignity of his person, his full physical, intellectual and moral self realisation.” 30 c- Protection of the human being 123. Faced with the recent spate of kidnappings, the State has exerted efforts to preserve the physical well- being of citizens. Hence the Police was able to dismantle several networks involved in kidnapping cases (most of the victims were Indo-Pakistani nationals). It transpired though that the MAMOD TAKY case was but a settlement of scores with the Malagasy serving as the agents.” Table 5: Number of persons placed under committal notice and given provisional release (Indo Pakistani victims), cases dealt with by the Antananarivo Crime Squad from January 2000 to May 2007. Year Committal notice Provisional release 2000 21 1 2001 17 3 2002 53 16 2003 16 24 2004 9 6 2005 15 2 2006 9 0 2007 1 2 TOTAL 141 54 124- In a bid to improve urban security, the number of police officers was increased and busts carried out with the assistance of the population. 125. Community police stations have been opened in several cities to improve on the security situation. 126. The public security and police forces of the three regional capitals that is Ansirabe, Mahajange and Taolagnaro have received funding within the framework of the Local Government Initiative (LGI) to improve the security of the communities through accelerated police interventions: • Procurement of BLU, VHF walkie-talkie communications equipment; • Rehabilitation of vehicles • Procurement of fuel and lubricants. 127. In the rural areas, gendarmerie advanced posts, village self-defence organisations as well as mobile units have been deployed in many villages in Madagascar. 128. These efforts have been complemented by the activities of the National Gendarmerie within the framework of the Local Government Initiative. (LGI) 31 129. Joint national gendarmerie and army operations have been carried out to combat rural banditry which is often compounded by murders and rape. d- Protection of vulnerable groups Protection of the Child 130. Madagascar ratified Convention 182 on the abolition of the worst forms of child labour. 131. In 2004, Madagascar also ratified two Optional Protocols to the Convention on the Rights of the Child, on the Sale of Children, Child Prostitution and Child Pornography as well as the Protocol to the African Charter on the rights and well-being of the Child. 132. Bodily insecurity is provided for and punishable under the Malagasy Criminal code. The right to life of a child conceived normally is protected through the criminalisation and repression of abortion as stipulated under article 317 of the Criminal Code. 133. However, the case of new born babies thrown into dump sites, rape, and prostitution of minors are proof of the violation of these provisions. 134. Measures have been taken to reduce child mortality through mass vaccination coverage against tuberculosis, diphtheria, tetanus, whooping cough, poliomyelitis and measles, distribution of vitamin A, and the implementation of the Integrated Management for Childhood illnesses (IMCI) programme. 135. An exclusive breastfeeding programme was also carried out. Protection of persons with disabilities 136. Madagascar signed the Convention on persons with disabilities and the September 2007 additional protocol. 137. Further, Madagascar adopted Law no 97-044 dated 2nd February 1998 relating to persons with disabilities. This law is aimed at guaranteeing all persons with disabilities the recognition, enjoyment and exercise of all rights recognised every citizen without any distinction whatsoever. 138. In Mahajanga, permits for public buildings are only granted by the Commune technical services if the plan includes a ramp for persons with disabilities. Protection of women 139. Madagascar ratified the Convention on the elimination of all forms of discrimination against women on 17 March, 1989. 140. In order to reduce maternal mortality several measures including social mobilisation for the use of family planning services and education thereon. 141. Reduced maternal and neonatal mortality are part of commitment 5, challenge no 6 of the Madagascar Action Plan (MAP) from 2007-2012. A- Right to legal status a. Right to recognition of legal status. 32 142. The recognition of the legal status for every human being implies that a certain number of attributes may be assigned to an individual to distinguish him from other citizens. This recognition is registered in the civil status. 143. Legal status confers on the individual protection of the rights set forth in the Covenant on Civil and Political Rights of which Madagascar is a signatory to give effect to his patrimonial and/or extra patrimonial rights. 144. The progress made in the field of recognition of the legal status of individuals is given effect to through the implementation of an operation for the delivery of birth certificates to persons who were not registered at birth. 145. Operation EKA (Ezaka Kopia ho an’ny Ankizy) is one of the measures taken to that end. The operation is a countrywide national birth registration programme, initiated by the Ministry for Population in collaboration with NGOs and supported by UNICEF to simplify the birth registration procedure whereby any person who witnesses a delivery may make a declaration to the Chairman of the Fokotany. 146. The public supplementary registration sessions have been increased to allow many Malagasy to obtain a copy of their birth certificate and a copy of their national identity papers. 147. Possession of a birth certificate facilitates the exercise, enjoyment and protection of civil and political rights. 148. A campaign for the distribution of national identity cards was conducted in 2003 and 2006 to afford all adult citizens the right to vote. e. Death Penalty 149. In paragraph 1 of the International Covenant on Civil and Political Rights it is stipulated as follows: “No individual shall be arbitrarily deprived of life.” 150. The death penalty was established in 1958 and has not been abolished. It is automatically commuted to life in prison with hard labour. Madagascar is de facto one of the abolitionist states in view of the fact that none of the death sentences delivered by the competent courts have ever been executed. 151. Nor has Madagascar expressed any objections vis a vis the international moratorium on the death penalty. 152. The Criminal Code describes the death penalty as a corporal sentence involving deprivation of civil rights exclusively reserved for the most serious criminal acts such as: • national security offence (articles 75 and 76 of the Criminal Code); • deprivation of life: (assassination, patricide, poisoning, castration, (articles 296 to 302 and 316 of the Criminal Code); • crimes coupled with acts of torture or barbarism (article 303 of the Criminal Code) • murders preceded by, accompanied or followed by another crime (article 304 of the Criminal Code); • overt or covert armed robbery (article 381 of the Criminal Code) • unlawful arrest and forcible confinement (article 344 of the Penal Code) ; • cattle theft preceded or followed by death. (Article 4 of order 60-106 dated 27 September, 1960). 33 153. Mitigating circumstances: • Where a women sentenced to death declares she is pregnant and it is so proven, the sentence shall be deferred till she delivers (article 27 of the Criminal Code: order 60-086 of 31st August 1960); • Under no circumstances shall the death sentence be passed on a minor; 154. The above mentioned articles shall be attached to this report. 34 Article 5: Respect of the dignity inherent in a human being and recognition of his legal status. Article 5: “Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man, particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.” A. Prohibition of torture and abuse I. At the international level 155. In December 2005, Madagascar ratified the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. II. Legislative measures 156. The Malagasy legislation has established as a criminal offence all physical or moral violations cited in article 114 of the Criminal Code: “Where a civil servant or agent of the Government acknowledges or commits an act which is arbitrary or prejudicial either to personal freedom, or civil rights of one or several individuals, or the Constitution, he shall be punishable by the loss of his civil rights.” 157. Article 186 of the Criminal Code (order no. 60-086 of 31st August, 1960) provides for special sanctions against persons vested with public powers, and who without any valid reason use violence against individuals in the exercise of their powers or during the course of exercising such powers. 158. There are also provisions for disciplinary sanctions: suspension from the service, demotion, retirement and dismissal; 159. The Malagasy Criminal Code does not contain a definition of torture: 160. A bill on torture was submitted for adoption since October 2007. 161. “However, where the perpetrator proves that he was acting under the instructions of his supervisor in matters under the purview of the latter, and that he had to bow down to the supervisor’s superiority, only the supervisors who gave the orders shall be liable to the stipulated punishment.” 162. Reforms are being conducted to domesticate the provisions of the Convention into the national laws. 163. Articles 303, 309 to 315, 344 paragraph 4 of the Criminal Code, mentioned above also repress such acts. 164. A brainstorming session facilitated by two experts from the Geneva-based Association for the Prevention of Torture (APT) on the United Nations Convention 35 against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment was held from 23rd to 25th January, 2007 in Antananarivo, under the auspices of the Ministry of Justice in collaboration with ACAT Madagascar (Christian Action against Torture.) 165. At the end of the seminar, recommendations were made and an action plan formulated. The following commitments were made: • Adoption of laws domesticating the provisions of the Convention in the national legislation (incrimination and drafting of texts) • Elaboration and presentation of the initial and periodic reports. Training and sensitisation 166. A steering committee and a technical unit charged with the implementation of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment were set up. B. Abolition of slavery, bondage, and forced labour. I. At the international level 167. Madagascar has ratified Conventions 29 and 182 of the ILO as well as the Additional protocol to the United Nations Convention against organised trans border criminality aimed at preventing and repressing human trafficking especially that of women and children. II At the national level 168. Officially slavery ceased to exist in Madagascar since its abolition by King RADAMA I in the XIXth century. However a certain form of slavery has persisted whereby some workers are not paid their rightful dues as reported in a study carried out by a Consultancy firm, “Mara Mita” in April, 2004. a. Legislative provisions 169. In Madagascar, forced or compulsory labour is strictly prohibited in accordance with article 4 of Law 2003-044 of 28th July 2004 of the Labour Laws on forced or compulsory labour. 170. According to article 8 of the International Covenant on Civil and Political Rights, “No one shall be held in slavery and the slave trade in all its forms shall be prohibited. No individual shall be held in servitude. No one shall be required to perform forced or compulsory labour.” 171. However, forced labour still exists but is punishable. 36 172. The new forms of modern slavery are mainly manifested through work done in contravention of normal working norms or in the form of poorly remunerated or unpaid labour. b. Administrative measures Children 173 In accordance with Convention 182, the Malagasy Government in collaboration with IPEC-ILO is implementing Recommendation 190 through a National Action Plan for the abolition and fight against the worst forms of child labour. 174. This bulk of workers within this category are mainly domestic workers especially minors or prisoners. 175. Government has decreed the month of June of each year “the month of the child.” 176. Madagascar commemorates the 12th June as the International day of the Child. 177. The Malagasy state in collaboration with the ILO/IPEC and the Malagasy football association and other partners (associations, NGOs, and firms...) produced a clip entitled “Red carding child labour” on the fight against child labour. 178. Sensitisation campaigns on the abolition of child labour have been conducted by the CNLTE (National Committee for the fight against child labour) in collaboration with the Malagasy football association and the ILO/IPEC. The main activities are the posting of publicity banners stating: “Let us red card child labour” in all major cities and football stadia in Madagascar. 179. Other information education and sensitisation activities have been conducted such as talent shows, carnivals, exhibitions, puppet shows, debates and panel discussions, information sharing meetings with authorities, radio and television programmes... 180. The Ministry in charge of Population and UNICEF have produced advisory banners within the framework of the fight against the worst forms of child labour. 181. A school manual on the rights of the child was jointly produced by the associations and partners of the Mahajanga Commission for the rights of the child in partnership with UNICEF. Women 182. The National Plan for the Promotion of women (PNPF) was formulated. 183. PANAGED or the National Plan of Action for Gender and Development promoted the emancipation of women both as womenfolk and as players in development. C. Humane treatment of arrested persons or detainees. 37 Arrested persons 184. Law 97-036 of 26 October, 1997: right to protection from the time of arrest to sentencing. Detainees 185. Decree no 2006-15 of 17th January, 2006 on the general organisation of the Madagascan Prison Services provides for humane treatment and respect for the human dignity inherent in the human being. 186. Overall, the prison facilities require repairs and the construction of new buildings. In effect, the prison population surpasses the holding capacity of the premises and in some facilities the situation has reached untold proportions with some not even having cells. 187. Regarding the humanisation of conditions of detention, rehabilitation, humanisation and social re-integration measures have been adopted by the Ministry of Justice in collaboration with both national and international organisers, namely, • Improvement in the conditions of detention through expansion and construction of new buildings; • Fast tracking cases of detainees who have endured protracted incarceration. 188. From 1997 to 2000, there was a backlog of 3791 cases concerning persons detained for periods exceeding five years without trial but luckily by 2001, 2497 of these cases had been cleared. 189. Other measures have been taken in collaboration with the Embassies of Great Britain and the United States of America leading to the establishment of: • A Health and Humanisation Unit within the Prisons services in 2002; • A supervised education service within the prisons administration in 2004. 190. This unit also caters for detained minors or those placed temporarily within a re- education centre on the orders of a juvenile court judge. 191. In a bid to improve the quality of public prisons services, a National School of Prisons Administration was opened in Tamatave. 192. In 2005, the Ministry of Justice set out as its main objective the humanisation of conditions of detention. The strategy for the implementation of this policy is translated into the following objectives: • relieving the congestion in prisons; • social reintegration; • food self sufficiency. 38 193. This policy is founded on the Constitution of the Malagasy state and more specifically on the rights of individuals under detention. 194. The programme for the strengthening of prison camps is in line with this Ministry of Justice Policy to: • Increase production. At Mahajanga, the KOFEHY association in collaboration with USAID contributes to the improvement of food supply to prison camps (seeds, cassava seedlings....) • The provision of the requisite food stuff to cover the nutritional needs of the detainees and the prison camps. It is important to note that nutritional assistance is provided by various associations and secular and religious NGOs. 195. The programme also provides the opportunity to move detainees and decongest prisons 196. The prison camp consolidation policy is translated into reality through decentralisation at the level of DIRAP (Inter-regional prisons administration directorate) and even prison facilities, of financial investments, human resources and their responsibilities. 197. Further, the same programme is strongly committed to improving and sustaining the rights of detainees especially: • The right to food, article 72 of decree no.2006-015 of 17 January, 2006; • The right to hygiene and health;- articles 69, 70, and 71 of decree no 2006-015 of 17 January, 2006; • Decree no. 2006-015 of 17 January, 2006 in its articles 109, 112 and 113 revised article 70 of decree 59-121 concerning the status of prisoners liable to do corvee. 198. Prisoners can no longer be employed at the service or for the convenience of individuals, be they civil servants or private citizens. Under the direct supervision of the Prisons administration, prison camps are offered the opportunity to progressively repatriate the large Criminal workforce (MOP) presently allocated to the dealers. 199. In 2006, the Regional Prisons Administrations Directorates (DRAP) of Mahajanga, Antsirabe, and Taolagnaro received funds allocated under the pilot project entitled: “Local government initiative”. Among the activities defined in the DIRAP are: • Improvement of prisons services; • joint rehabilitation of certain neighbourhoods; 200 Regarding medical services, article 76 of the same decree stipulates that “each prison service shall be provided with a doctor and a dentist and or nurse.” 39 The doctor and the dentist shall be designated by the Minister of Health or his representative. 201. However the number of doctors and dentists in the prisons is far from adequate. 202. In view of this situation, measures have been taken since 1996 to train prison wardens as nurses to make up for the shortfall in medical personnel. 203. Regarding pregnant women, the necessary facilities for their treatment have been put in place (article 67 of the 2006 decree.) Arrangements have been made for deliveries to take place at a hospital. 204. At Antananarivo, the TSARA MANASOA association has created a reintegration centre for female convicts at the Antanimora prison in partnership with the Swiss Corporation (sewing, initiation to human rights....) 205. At Mahajanga, the KOFEHY association in partnership with USAID carried out reintegration activities (2007) for female convicts (sewing and cookery ) 40 ARTCLE 6: The right to liberty and the security of the person. ARTICLE 6: Every individual shall have the right to liberty and to the security of his person. No one may be deprived of his freedom except for reasons and under the conditions previously laid down by law. In particular, no one may be arbitrarily arrested or detained. I. At the international level: 206. In its paragraph 1, article 9 of the Covenant on civil and political rights stipulates that: “Everyone has the right to liberty and security of his person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.” II. At the national level a. Constitutional provisions 207. The Malagasy Constitution recognises the right to freedom and to the security of his person for all individuals: “No one shall be prosecuted, arrested or detained except in such cases as are determined by the law and according to the manner laid down by the latter.” (Article 13 paragraph 3) b. Legislative provisions 208. The prevention and repression of illegal arrest and arbitrary detention are set forth in articles 119, 120, and 122 of the Malagasy Criminal Code. 209. Article 119 of the Criminal Code stipulates that: “Public servants responsible for administrative and judicial policing who refuse or fail to defer to a legal claim aimed at recording illegal or arbitrary detentions, either in facilities meant for the detention of detainees, or elsewhere, and who cannot prove that they had drawn the attention of their superiors to the situation, shall be punishable by demotion and be liable for damages as set forth in article 117.” 210. Article 120: (order 60-160 of 3rd October 1960) stipulates that: “guards at prisons and remand centres who receive a prisoner without an arrest warrant or judgement or, in the case of a deportation or extradition, without a provisional order from the Government, those who detain him or refuse to hand him over to the police officer or to the bearer of the orders without producing a warrant from the public prosecutor or the judge, or those who refuse to present their registers to the police officer, shall be deemed guilty of arbitrary detention, punishable by a six month to two year prison sentence and a fine of 100,000 to 450,000 Ariary.” 41 211. Article 122 stipulates that: “shall also be punished by demotion all public prosecutors, prosecutors, judges or police officers who shall have detained or caused an individual to be detained beyond the locations determined by the Government or the public administration, or which have filed suit against an individual before a criminal court without prior indictment.” 212. Furthermore, article 136 of the Malagasy Code of Penal Procedure stipulates that: “a CID officer may only detain an individual for the purposes of preliminary investigations for forty-eight hours. Beyond this prescribed time, the detainee must be released or appear before a magistrate from the public prosecutor’s office. Where this deadline falls on a Saturday, Sunday or a holiday, the Magistrate on duty or the officer from the public prosecutor’s office should be advised of the time at which the individual shall be arraigned before the court.” Where the magistrate from the public prosecutor’s office is absent from his residence, the deadline shall be extended to three days. And where the abode of the Criminal Investment Department (CID) officer is situated in a city other than the headquarters of the court or a section thereof, he may request the magistrate or official from the office of the public prosecutor from his judicial division to authorise the extension of the police custody for a period not exceeding forty-eight hours. This authorisation must be confirmed in writing and attached to the record of proceedings.” Once this deadline elapses, the detainee must be released or arraigned before the competent magistrate or official of the public prosecutor’s office. The Public prosecutor’s office shall decide on the next course of action.” 213. In a bid to meet the obligation of judging delinquents within a reasonable time limit, the Ministry of Justice, through the Commission for the reform of the Penal System (CRSP) plans to table a draft bill aimed on the one hand at reducing the detention period before judgment and on the other at instituting a rapid and simplified process, in other words immediate appearance in court. 214. The procedure envisaged is geared towards ensuring that the individual is brought immediately before the court for minor offences of little consequence. 215. The right to recourse to a Court of competent jurisdiction to rule on the legality of the detention ensues from the recognition of the principle of legality of crimes and misdemeanours enshrined in article 13 paragraph 4 of the Malagasy Constitution and article 4 of the Penal Code. 216. A person held in temporary detention is entitled to file for discharge before the remand court. 42 217. Article 343 (law 97-036 of 30/10/97) of the Code of penal procedure instituted the competent remand court to rule on applications for discharge. In effect, it is mentioned in the said article that “the court provided for in article 223a of the present code shall rule on applications for discharge by giving a reasoned decision within three days of receipt of the communication of the Office of the public prosecutor. The judgment shall mention the summing up for the prosecution on pain of civil penalties of 40.000 Ariary imposed on the clerk by the Presiding judge of the criminal court of appeal”. 218. The innovation introduced by this text is that it is no longer within the purview of an authority which has decided on committal to custody to rule on cases involving applications for provisional release which are henceforth entrusted to the remand court consisting of three magistrates. 219. There is also provision for release on bail where the type and amount of the sanction are established by the remand court (article 346 of the Malagasy Penal Code, law no 97-036 of 30/10/97): “release on bail may be contingent on the provision of bail whose type and amount shall be determined by the remand court charged with ruling on the preventive detention.” 220. In conformity with the spirit of the Covenant on civil and political rights in paragraph 2 of article 9, anyone arrested shall be informed of the grounds for his arrest and shall receive a notification of all charges against him as quickly as possible. 221. Article 341 of the Penal Code states: “shall also be sentenced to hard labour those persons who without the orders of the appointed authorities and barring cases for which the law orders the seizure of the accused, arrest, detain or hold any individual whatsoever. Whosoever shall have provided premises to perpetrate the detention, or confinement shall suffer the same punishment.” 222. Article 342 of the Penal Code states: “Where the detention or sequestration lasts more than a month the punishment shall be life imprisonment with hard labour.” 223. Article 343 of the Penal Code states: “The sentence shall be reduced to two to five years imprisonment where those accused of the misdemeanours mentioned in article 341 have de facto not been charged before the law and have released the arrested, held or detained person within ten days of the date of arrest, detention or confinement.” 224. Article 344 of the Penal Code: “In each of the following cases: 43 1. Where the arrest was carried out under false pretences, under a false name or a fallacious order from the competent authority; 2. Where the person arrested, detained or held in custody has received death threats the culprits shall be sentenced to life in prison with hard labour. However, the crime shall be punishable by death where the arrested, detained or confined persons were subjected to corporal torture.” 225. Law no 97-036 of 30 October, 1997 compels the investigator to notify the suspect of the reasons for his arrest and the crimes he is accused of. 226. Efforts have been made to expedite the processing of cases involving remanded persons in order to judge them within a reasonable timeframe in Antananarivo and other jurisdictions. 227. Thus the administrative and financial courts have been established in the former county towns of Faitany and new Courts of Appeal have been inaugurated namely at TAmatave and Tulear, that of Antisiranana is under construction. 44 ARTICLE 7 1. Every individual shall have the right to have his cause heard. This means: a) The right to an appeal to competent national organs against acts violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force; b) The right to be presumed innocent until proved guilty by a competent court or tribunal; c) The right to defence, including the right to be defended by counsel of his choice; d) The right to be tried within a reasonable time by an impartial court or tribunal. RIGHT OF ACCESS TO JUSTICE AND RIGHT OF RECOURSE. I. Constitutional provisions 228. The Constitution in its article 13 paragraph 6 stipulates that “the law guarantees everyone the right to ensure justice is done, and that insufficient resources shall not constitute an impediment thereto.” 229. The Constitution in its article 13 paragraph 6 stipulates that “the law shall guarantee completeness and inviolability of protection before the courts and at all levels of the proceedings including the preliminary investigation at the level of the Criminal Investigation Department or the public prosecution’s department.” II. Legislative provisions 230. Laws and regulations have espoused these constitutional provisions and guarantee all individuals the right to assert their rights before the national courts. 231. In criminal matters, the Penal Code of Procedure PCP provides in article 1 for “public right of action in the enforcement of sentences. It is set in motion and exercised by magistrates or by civil servants so entrusted by the law or by the aggrieved party as defined by the PCP. It ends on the death of the delinquent, the prescription, amnesty, abrogation of the penal law and res judicata. It may also end following a transaction or payment of a fine where the law makes express provisions; the same applies to the withdrawal of a charge where the latter is a necessary condition to the prosecution of the complaint.” 232. Furthermore, the same Code in its article 6 cites public right of action which provides for reparation for the prejudice caused by a crime, an offence or a minor offence. This public right of action is open to all individuals who have endured direct personal damages as a result of the offence. 45 233. The renunciation of civil action shall neither impede, nor suspend the exercise of the public right of access except in instances where the law makes said right contingent on a claim by the aggrieved party. 234. In civil matters, article 1 of the Civil Code of Procedure guarantees all persons the capacity to go to court to obtain recognition or where necessary the protection of the law. In effect, any person whose rights are violated may sue for reparations of the damages caused before a competent jurisdiction. That is civil reparation. This reparation takes the form of damages being granted, the amount being left to the discretion of the Court and shall be commensurate with the severity of the actual prejudice. 235. Where the reparations are asked for from the state courts, the double degree principle is observed. 236. Where the appeal is not acceded to, there is provision for the plaintiff to lodge an appeal to the supreme court. (articles 398, 389, and 433 of the judicial system. ) 237. Article 398 of the Malagasy judicial system and procedure state that the decision being appealed against shall be heard by a higher court de facto and de jure. 238. “The deadline to file an appeal shall be one month” according to article 399. 239. Article 433 makes provision for the lodging of appeals before the Supreme Court. 240. According to article 433, “a party which is not present or not represented at the trial shall, at any time, be availed the possibility of contesting the judgement should the latter run counter to his rights.” Practices and decisions of the Courts and other organs 241. Courts rarely rule on discrimination cases excepting in case no.180 CO/03 Court of the first instance of Toamasina. 242. The dearth of cases can be explained by the poor popularisation of the texts governing the matter hence the importance of the popularisation and mass education activities currently being organised by the Government. III. Administrative measures 243. The following improvements have been made: The opening of a National School for the Bench and Clerks of the Court in 1997 has helped increase the number of magistrates and clerks of the court. Presently, there are 565 magistrates, 732 legal practitioners, including 410 clerks and 322 secretaries at the office of the public prosecutor; 46 Increase in the number of First Instance Courts to 36 in line with the Government policy of bring justice to the doorsteps of the persons subject to trial; In the same vein, whereas formerly there was only one Appeal Court in Antananarivo for the whole of Madagascar presently there are four new Appeal courts at Toamasina, Toliara, Mahajanga and Fianarantsoa. The Antsiranana Appeal Court is under construction; The same applies to the establishment of Administrative and financial courts in accordance with law no 2001-025 of 9th April 2003 amended by law no 2004-021 of 19 August, 2004. 244. These jurisdictions set up in each county town are competent to be seized of administrative cases at the provincial level as a first step in the legal process. 245. The State Council hears appeal cases lodged against the decisions of administrative jurisdictions. 246. The Court of Audits hears appeal against rulings made by the financial courts or administrative organs of a judicial nature. 247. The establishment of these jurisdictions whose mandate is to administer justice impartially and independently is in line with the Charter. 248. Efforts have been made in a bid to clear cases within a reasonable period such as: • civil proceedings reform including the nomination of judges in charge of case perfecting; • increased frequency of sittings of the criminal court to hear cases involving prolonged preventive detention within a reasonable period. 249. In order to usher in fair justice, it was decided to abolish the Special Courts such as the Special Criminal Court and the Special Economic Tribunal. Henceforth, offences which fall under the purview of these jurisdictions shall be tried by the ordinary law courts. 250. Other measures have been adopted to enhance universal access to justice e.g. • reactivating legal assistance for persons in difficulty in collaboration with the African Development Bank. • creation of a Penal System Reform Commission to review the existing system, simplify the proceedings, reduce the duration of detention and expedite trials. 251. The holding a fair trial presupposes that the justice delivery system is modernised, to wit the efforts made in these areas: • Harmonisation of texts in force in collaboration with International Organisations, in addition to reform of Business Law under the aegis of the Business Law 47 Reform Commission (CRDA). The reform in question aims to create the enabling environment for improved protection of investments and legal security for investors; • Computerisation of Business Court records; • Computerisation of the Business and Companies Register at the level of jurisdictions and at the national level centralised at the Ministry of Justice. 252. Furthermore, international cooperation has helped improve the working conditions in the field of Justice considerably. 253. And with co- financing from the Cooperation Francaise and the UNDP, the Public Prosecution Office of Antananarivo is presently being computerised. 254. USAID is actively involved in capacity building for the Bench through the donation of law books. 255. The European Union, Great Britain, and Switzerland have contributed immensely to the rehabilitation and extension of prisons facilities. Finally the avenues of redress open to citizens in the event of violations of the Charter are enshrined in Decree no 231 of 5th September, 2003 of the Supreme Court which outlines the supremacy of duly ratified international conventions and confirms the relevant constitutional provisions (art, 132, paragraph 4 of the revised Constitution); 256. In the exercise of their judicial duties, Malagasy jurisdictions respect the provisions of the Charter viz.: • Presumption of innocence • The right to be informed of the nature and grounds for the charges; • Special legal proceedings for juvenile delinquents; • Respect for the two-tier legal system rule; • Application of the “non bis in idem” principle; • Right to redress in the event of an error of justice. 257. Furthermore, respect of the Right to a fair trial implies that the legal profession is made more ethical. To this end, Madagascar has ratified the UN and African Conventions on the fight against corruption. 258. The bona fide application of the said conventions is manifest in: • The adoption of an anti-corruption law no 2004-030 of 9th September, 2004; • The establishment of appropriate structures including the Committee for the Promotion of Integrity (CSI) formerly known as the Higher Council for the Fight against Corruption (CSLCC), Independent anti-corruption bureau (BIANCO), the Anti Corruption Criminal Chain and Intelligence services. 48 259. Within the framework of the programme of the Ministry of Justice aimed at boosting respect for human rights, a “Task Force” was set up to clear the backlog of cases at the Antananarivo First Instance Court. The findings showed a large number of persons under preventive detention awaiting trial for up to ten years in some instances. 260. The expected result is that as at early 2007, all inmates under the FIC of Antananarivo will be tried within the normal period. 261. Thus, under the programme entitled Rapid Result Initiative RRI, the objective of the Task Force is to settle, within a hundred days, as at 15 June, 2006, 496 pending cases of which 233 concern 431 detainees in remand. Priority is given to cases spanning 1990 to mid 2005). 262. To attain this objective, 8 offices for Examining Magistrates were set up where new Magistrates worked with more experienced ones. In addition, 16 examining court clerks, a secretary from the Public Prosecutor’s Office and 2 messengers were also part of the team. 263. The Attorney General and Minister of Justice has issued the following circulars: • Circular no 005/MJ/DA/06 regarding the judgement of accused persons detained for many years; • Circular 006-MJ/DGA/DAJ-Circ/06 pertaining to the fast tracking of appeals cases involving detainees and notification of arrests. B- Presumption of innocence and right to protection. I. Constitutional provisions 264. The Malagasy Constitution has espoused the principle set forth in the Universal Declaration of Human Rights which states in its article 13 paragraph 8 that: “All defendants or accused persons shall be entitled to be presumed innocent until proven guilty by a competent court.” II- Legislatives provisions 265. Law no 97-036 of 30th October, 1997 modifying the Code of Penal Procedure stipulates in article 61 that: “at the preliminary hearing of any individual suspected of having committed a crime or offence, the CID officer shall inform the suspect of his rights to engage a lawyer registered at the Madagascar Bar Association or an agent or any other person of his choice subject to the legal provisions in force.” 266. The fulfilment of this formality should be noted in the records of the hearing on pain of nullity of the proceedings and without prejudice to the application against the CID officer of the provisions article 112 paragraph 2 of the Code of Penal Procedure. 267. The same law stipulates, in its article 62 that: “Counsel for the defence may witness the questioning, confrontation, and searches of premises conducted within the framework of the investigation. Where counsel is chosen by the accused, his services shall be pro bono...... ” 49 268. The Malagasy Code of Penal Procedure guarantees any person accused of an offence and is arraigned before the courts the assistance of a defence counsel chosen from the list of lawyers and trainee lawyers of the Madagascar Bar or that of a country bound to the Republic of Madagascar by an assistance agreement in legal matters. Where the accused can prove his indigence he shall be provided a court-appointed lawyer where there is one at the seat of the jurisdiction. 269. Where the offence is punishable by death or life imprisonment with hard labour, a lawyer is appointed by the court. (Law no 61=030 of 18.10.61) 50 III. Legal Aid 270. In a bid to better protect this law, the Malagasy Code of Penal Procedure even provides for “legal aid” in its article 32. The latter may be afforded to any individual as well as public or state-approved institutions and private charitable associations with a corporate personality, where due to insufficient resources, these individuals, institutions and associations are unable to exercise their legal rights either as plaintiff or defendant. 271. It is noteworthy that even persons detained under a preventive detention enjoy the right to protection. To this end, decree no 2006-015 of 17th January, 2006 on the general organisation of the Prisons administration, in its article 140, guarantees the accused the right to communicate freely with their counsel verbally in the absence of staff or in writing, and that every facility compatible with the requirements of discipline and security of the prison facility are afforded them in the exercise of their defence. 272. According to the same statutory instrument, counsel duly chosen or designated acting in the exercise of his duties and on the presentation of a permit indicating his capacity, may meet the accused in a location identified by the head of the institution. 273. Hearings can be held every day at the times stipulated in the establishment’s internal regulations. C- Rights of children before the law. Administration of justice for minors 274. Article 40 of the Convention on the Rights of the Child ratified by Madagascar on 19 March, 1991 stipulates that: “any child alleged as, accused of, or recognised as having infringed the penal law be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which takes into account the child’s age and desirability of the promotion of the child’s reintegration into society. Every child shall have the following guarantees as well as legal or any other appropriate assistance in the preparation and presentation of his defence. Judicial proceedings and institutionalisation should be avoided to the extent possible. ” 275. Furthermore, “all the minimal rules of the United Nations concerning justice delivery for minors (Peking Rules) of 1985 namely on the age of criminal liability, on the rights which should be recognised in law for minors during the entire proceedings, on the instructions and on recourse to extrajudicial means, on the judgment and settlement of cases as well as treatment in open custody and within an institution.” 276. These international documents outline the panoply of rights to be accorded the child during the entire proceedings to ensure a fair trial and treatment commensurate to his age. These set forth a specific procedure for minors, which shall be extra judicial to the extent possible. In any case, the following rules should be followed: • Presumption of innocence • The right to be informed of the charges 51 • The right to the assistance of counsel • The right of parents and guardians to be present • The right to interrogate and confront the witnesses • The right to a double tier jurisdiction. 277. For the application of this principle, order no 62-038 of 19 September for the protection of the child stipulates the specific provisions for minors involved in criminal proceedings. 278. This ordnance distinguishes between three situations in determining criminal liability of the minor: • A child aged less than 13 years old is criminally irresponsible; • A child aged 13 to 16 years old may be found guilty without being totally responsible that is, his criminal responsibility may be mitigated based on his faculties of judgment, the environment in which he lives and level of education; • Finally, a child aged from 16 to 18 years may be found guilty and deemed fully responsible. The law allows that mitigating circumstances based on age be denied this age group. 279. Despite this possibility, in practice Judges tend to grant this mitigating circumstances clause to minors aged 16 to 18 years. 280. Legal majority age is 18 years. 281. According to the law, a 13 year old minor shall be liable for criminal prosecution. In this case, educational measures are given priority over punitive sanctions. 282. Within the framework of the ongoing review, a study was conducted to assess the utility of putting in place a criminal mediation or extra judicial system. 283. The adoption of law 97-036 of 30 October, 1997 strengthened the rules relating to the protection of parties and filled the missing gaps noted in the above mentioned order. 284. Consequently, minors are entitled to the assistance of counsel at all stages of the proceedings. 285. In Madagascar, there are criminal jurisdictions for minors. For example: • The juvenile judge investigating accused minors; • The competent child’s court to judge offences committed by the minors; • The child criminal court 286. The position of Malagasy substantive law on “endangered” children is noteworthy. This concerns children whose family or social environment endangers them and 52 makes them vulnerable to delinquency. In order to protect them the law insists they be placed in specialised centres such as re-education centres. 287. Actually, efforts have been made to increase the number of social workers by creating specialised schools in this field. 288. As at the Antananarivo Central Prison minors are separated from adults at the following prisons: Toamasina, Ambatondrazaka, Antalaha, Antsiranana, Antsirabe, Tolagnaro, Toliara, Morondava and Farafangana. 289. At the end of the judicial proceedings, there is provision for a re-adaptation and social reinsertion programme organised in accordance with set regulations. To this end, decree no 2004-160 of 3rd February 2004 was issued. 290. This decree provides for the opening of a correctional education service within the General directorate of the Prison’s administration of the Ministry of Justice. 291. Improvements have been made in the regions of Mahajanga, Toamasi, and Fianarantsoa with the assistance of private associations and nongovernmental associations through the establishment of reception centres for juvenile delinquents. 292. For example the “Association pour la sauvegarde et la protection de l’enfance” (ASPE – Association for the promotion and protection of the child) of Toamasina tends to 150 children including some fifty delinquents. 293. In collaboration with the Ministry of Justice and the Embassy of Great Britain, this association has built three reception buildings. 294. Pursuant to article 3 of 0rder 62-038, the State bears the cost of upkeep of the children placed in care following a decision of the courts. 295. Madagascar has ratified the additional protocol to the Conventions on the Rights of the Child regarding sale of children, prostitution of children pornography involving children, and the involvement of children in armed conflict. To combat the sale of children disguised and carried out through the international adoption process, law no 200-014 of 7 September was enacted. 53 D. Legality of offences and punishment I Constitutional provisions 296. Paragraphs 3 and 4 of article 13 of the Constitution confirm the provisions of the Charter and respectively state that: “No individual shall be prosecuted, arrested or detained except in specific cases provided for by the law and according to the forms laid out therein.” And “No individual shall be punished by virtue of a law enacted and published after the committal of the punishable act.” II. Policy and Programme 297. The Malagasy state has formulated the Madagascar Plan of Action spanning 2007 to 2012 under its Commitment no. 1 on responsible governance whose challenges are as follows: • Challenge 1: “ensure satisfactory level of security to guarantee security of persons and goods.” 298. Priority programmes and activities: 1. Strengthen laws, rules and procedures to ensure proper coordination between the law enforcement agencies and the judiciary to pre-empt crimes and prosecute criminals; 2. Put in place local “Dinas” by ensuring their efficiency and conformity with positive law and train communities on the application of the latter; 3. Identify, obtain, use and maintain new resources, transportation, and communication equipment and arms to prevent and prosecute criminal activities and protect economic zones. 4. Put in place new transparent incentive and personnel rotation measures to enhance the capacity and integrity of the security forces. 5. Reorganise and secure the bovid sector (rearing and marketing), 6. Control the trade in natural resources in Madagascar. Indicators 2006 2012 Rate of criminality 4.2 2.6 Number of red districts (cattle rustling and 61 0 crimes): out of 116 Districts Coverage of the surveillance of territorial waters 17% 40% and the economic exclusive zone 54 • Challenge 2: “strengthen rule of law.” 299. Priority projects and activities: 1. Make punishment within the legal system harsher for corruption; 2. Pursue the review of laws, put in place simplified legal procedures to ensure rapid and transparent justice delivery; 3. Continue clearing backlog of cases; 4. Review case laws and regulations by an independent committee including EDBM (Economic Development Board of Madagascar). 5. Boost observation, monitoring and protection of human rights by the National Commission and Office of the Ombudsman. 6. Amend laws to ensure detainees are not imprisoned without trial for more than a year (thirty days for minor offences.) 7. Increase financing to improve medical and health conditions within prisons and develop efficient prison camps to ensure proper nutrition. 8. Create an educational reintegration system for juvenile delinquents. Indicators 2006 2012 World Bank indicator on the rule of law (base 100) 45 60 Delays in judgement 100 66 Percentage of the annual budget/overall budget (base 100) 1.25 2.6 Convict/accused ratio in prisons 33/67 60/40 Assessment of the prison conditions by the International Red Poor Acceptable Cross Public appreciation of the legal system Poor Good III. Legal provisions: 300. The Malagasy law maker has opted for the legality of offences and penalties by stipulating in article 4 of its Penal code that: “No violation of the law, offence or crime shall be punishable by sanctions which were not set forth in a previous law establishing that crime.” 301. Such is the “nullum crimen, nulla peona sine lege” principle which means that the individual is supposed to be aware that specific actions are criminal and know the punishment he is exposing himself to should he commit such a crime. 55 IV. Measures taken 302. Efforts have been made to eradicate certain traditional practices of meting out sentences which are not provided for by the Criminal Law such as the “Dina” practice, customary conventions which manifest themselves in the form of “people’s justice”. The Dina seems to be a collective convention between community members with provision for penal and civil coercive measures. 303. Thus law no 2001-004 of 25 October, 2001 on the general regulation of “Dina” in the area of public security states in article 7; “Dina shall only be enforceable on homologation by the court of the competent judicial order or the Appeal Court as well as its publication by posting, information dissemination, or any other mode of public notice.” 304. By this law, the State intends to carry out prior checks on the legality of the sanctions enacted in the application of the Dinas. As a result, a penal sanction which is non compliant with the law and Charter shall not be approved. 56 ARTICLE 8 “Freedom of conscience, the profession and free practice of religion shall be guaranteed. No one may, subject to law and order, be submitted to measures restricting the exercise of these freedoms.” I. Constitutional Provisions 305. Freedom of religion set forth in article 8 of the Charter is recognised implicitly by the Constitution which classifies it among the fundamental freedoms. In effect, by virtue of article 10 of the Constitution “freedoms of opinion and expression, communication, press, association, assembly, movement, conscience, and religion are guaranteed for all and shall only be contingent on the respect of the freedoms and rights of others and by the necessity of protecting law and order.” II Legislative provisions 306. In Madagascar, several laws govern religious practice. Order 62-117 of 1st October, 1962 on the denomination regime espouses the principles contained in article 8 of the Charter by stipulating that: “The State shall guarantee freedom of conscience for all its citizens as well as freedom to exercise the religion of their choice with the exception of the restrictions provided for in the present order in the interest of morality and law and order.” 307. The increase in the number of cultural associations apart from the traditional catholic, protestant and Muslim religions nationwide is proof enough of the State respects for this freedom. 308. Apart from the hundreds of existing associations in Madagascar, the main churches governed by order no 62-117 of 1st October 1962 are as follows: • Catholic Church, both apostolic and roman • Malagasy espiskopaly Fiangonana • Fiangonan’i Jesoa Kristy eto Madagasikara • Fiangonana loterana malagasy • Fiangonana ara-pilazantsara eto Madagasikara • Fiangonana frenjy Malagasy, • Fifohazan’ny Mpainatry ny TTompo • Fiangonana Protetana Malagasy Tranozozoro • 7th Day Adventist Church 309. Religious freedoms mentioned in article 8 of the Charter are only contingent on the respect of the rights and liberties of others and the protection of law and order. 310. In the event of an appeal the administrative chamber of the Supreme Court shall ascertain the legality of the restriction, suspension, or dissolution so decided by the authorities against religious associations. 57 Such jurisdictional oversight offers a guarantee of protection of the exercise and enjoyment of the freedoms cited in article 8 of the Charter. 311. The secularity of the State and the Constitution is not mentioned in the revised Constitution. 312. Madagascar respects the freedom of parents to provide their children religious and moral education in conformity with their own beliefs. 313. In Madagascar, even detainees preserve their freedom of religion. In this vein, decree no 2006-015 of 17 January, 2006 on the general organisation of Prison’s administration advances in its article 87 the possibility of meeting the requirements of their religious or spiritual life. Detainees are free to attend services or meetings organised in the Prison by persons certified to that effect. 58 ARTICLE 9 1 Every individual shall have the right to receive information. 2. Every individual shall have the right to express and disseminate his opinions within the law. I- Constitutional provisions 314. Article 11 of the Constitution makes provision for the right to information without any constraints whatsoever. Further, article 10 of the Constitution guarantees the freedom of opinion and expression, communication, press (.....) to all citizens of Madagascar but enjoyment of these rights is contingent on the respect of the freedoms and rights of others. II- Policy and Programme 315. The Malagasy State formulated the Madagascar Action Plan spanning from 2007 to 2012 especially under Commitment 2 on connected infrastructure beset by the following challenges: Challenge 5: “Provide an efficient and reasonable communication system.” 316. Priority projects and activities: 1. Connect Madagascar to the international fibre optic cable; 2. Develop access to telecommunication services including ITCs and the internet; 3. Install a national Backbone system including a national fibre optic network coupled with major infrastructure projects (roads......); 4. Set up new ITC centres in each region (technocity); 5. Improve the distribution system and the postal services processing delivery system; 6. Upgrade and modernise radio and television services using new technologies’ 7. Liberalise the telecommunication sector; 8. Generalise the use of “Voice over IP” 9. Replace the OMERT National regulator by ARTEC. Indicators 2005 2012 Percentage of the population owning a mobile To be determined To be determined Rate of coverage of communes by public-private postal services TV: 39% 65% Rate of coverage of communes: television and radio TV: 23% TV:70% FM Radio: 28% FM Radio: 70% Composite index of the evolution of connexion costs (2005 base 100 70 index = 100) 59 III- Legislative provisions 317. Law no 90-031 of 21st December, 1990 on Communications is the fundamental legislation which governs the right to the freedom of press and information. 318. Article one of this legislation specifies from the outset that: “the present law guarantees freedom of expression and press, in accordance with the Constitution. It recognises for all individuals the right to express one’s opinions and ideas through the press or through any given medium.” 319. In fact, order no 92-039 of 14th September1992 on audio visual communication in article 2 paragraph 1 states that the State shall guarantee freedom of expression through the audiovisual media. 320. Furthermore, article 59 of the above law guarantees the right to information since it clearly stipulates that: the public has the right to comprehensive information true to the facts and events. The provision of quality information shall be guided by attention to detail, integrity and intellectual honesty.” 321. Equally, by virtue of article 75 paragraph 5, “those who through any of the above means mentioned in article 74 provoke discrimination, hatred, or violence against an individual or group of individuals as a result of their origin, colour, gender, family fortune, or citizenship or non citizenship of a specific nation, race or religion, shall be punishable by a prison term ranging from one month to one year and a fine of Ar. 20,000 to Ar. 600,000.” 322. These measures do not contravene those contained in the Charter in any manner whatsoever. IV. Administrative measures 323. The liberalisation of the communication sector is illustrated in the following table: Table 6: Number of radio stations per province as of the month of November, 2004. Province Government Public Licensed Licensing Private Total Conventions services Private process radios radio on-going operating stations illegally. Antananarivo 04 03 52 03 04 66 Fianarantsoa 02 04 18 04 04 32 Toamasina 01 07 17 05 07 37 Toliara 4 01 08 18 05 06 38 Ansiranana 01 03 13 08 20 45 MHAJANGA 00 05 08 05 02 20 Total 09 30 126 30 43 238 Source: DIRM/SRR/CSCA (17/11/04) 60 TABLE 7: Number of television stations per Province as at November, 2004. Provinces Public Services Licensed Licensing Total process on- going Antananarivo 01 13 00 14 Flanarantsoa 01 02 01 04 Toamasina 01 01 01 03 Toliara 01 02 01 04 Antsiranana 01 00 01 02 Mahajanga 01 02 00 03 Total 06 20 04 30 Source: DIRM/SRR/CSCA (17/11/04) Table 8: Main daily and weekly newspapers. Daily newspapers Weekly newspapers Express du Madagascar Das les Medias Demain Gazetiko Imongo Vaovao La Gazette de la Grande Ile Ngah (humoristic publication) Madagascar Tribune Telonohorefy Midi Madagasikara Lakroan’i Madagasikara Ny Gazely Androany Revue de l’ Ocean Indien Le Quotidien L’ Hebdo de Madagascar Ny Vaovaontsika Les Nouvelles Taraira Malaza 324. The Malagasy Telecommunication Research and Regulatory Agency (OMERT) is responsible for granting operating licenses for private radio and television stations, for 61 checking and verifying the use of frequencies in accordance with the legislation in force. 62 ARTICLE 10 1. Every individual shall have the right to free association provided that he abides by the law. 2. Subject to the obligation of solidarity provided for in Article 29, no one may be compelled to join an association. A- Constitution of Associations I- Constitutional Provisions 325. Article 10 of the Constitution stipulates that the Malagasy State shall recognise the right to freedom of association for all. This provision is repeated in article 14 of the fundamental law which explicitly sets forth the modalities governing the exercise of freedom of association. Malagasy citizens can freely form associations or political parties without having to seek approval. 326. However, this very Constitution sets limits to this freedom and prohibits associations and political parties which jeopardize the unity of the Nation and which espouse totalitarian or segregationist tendencies based on ethnic, tribal or confessional differences. 327. In the constitution of such associations particular attention should be paid to the freedoms and rights of others and the need to safeguard law and order. 328. It is the law which determines the conditions for the creation and functioning of associations and political parties. II- Legislative provisions 329. Order no 60-133 of 3rd October, 1960 on the general association plan represents the fundamental law which sets forth the general conditions governing the constitution, functioning and dissolution of associations. 330. According to article 5 of the order, for an association to be formed, the members must submit a statement to the administrative authorities. It is only on the basis of such a declaration that the association may acquire legal status. 331. Any duly declared association shall without any special authorisation file suit, acquire for a consideration, possess or administer, in addition to State, province and commune subventions....... 332. Article 12 of this very order provides that all declared associations may be recognised as state approved bodies by orders in Cabinet. 333. Regarding foreign associations in particular, order 60-133 in its article 14 stipulates that: “except where provisions to the contrary are provided for in international conventions no foreign association shall be set up in Madagascar without prior authorisation.” 334. Foreign associations which have been denied authorisation or whose authorisation has been withdrawn should cease their activities immediately and embark on the liquidation of their assets within one month of the notification of the decision. 335. All foreign associations, irrespective of the manner in which they are dissimulated and which have failed to apply for an authorisation under the above conditions shall be considered as nul in law. 63 336. Regarding the constitution of religious organisations in particular, article 5 of order no 62-117 of 1st October, 1962 pertaining to cults stipulates that a religious organisation shall be constituted where the size of the usual adult congregation is about a hundred. The organisation shall be constituted during a general assembly of the congregation which shall appoint a board and approve the statutes of the organisation. 337. The elected Board of the organisation shall apply for legal status from the Minister of the Interior. III- Administrative measures (347 to 352) B- Non Governmental Organisation 338. One of the manifestations of the right to form associations freely could be the establishment of NGOs which are governed by law no 96-030 of 14th August, 1997. An NGO is similar to an Association. In effect, an NGO according to article 1 law no 96-30 is a group of natural, juristic persons with the following attributes: autonomous, private, structured legally declared and certified, non profit making, professionally engaged in charity, socio-educational, and cultural activities through the delivery of service for the purposes of sustainable human development, self promotion of the community as well as the protection of the environment. 339. Decree no 60-383 of 5th October, 1960 pertaining to the application of order no 60 133 which governs the mode of creation of associations in Madagascar. 340. Article1 proposes a practical method and lists the documents to be submitted to the administrative authorities namely the Provincial bureau (copies of the statements and statutes as well as documents displaying the amendments to the statutes and changes in its administration and management.) 341. According to article 2 of the said decree anybody, without having to be physically present, shall have the right to receive information from the Ministry of Interior or Provincial bureaus on the statements, statutes, and documents presented by associations. 342. Pursuant to article 12 of order 60-133, this statutory instrument entitles all associations to apply for the special “state owned” status. This application shall be signed by such persons duly delegated to that effect by the general assembly and deposited in exchange for a receipt at the provincial bureaus. It is up to the Ministry of the Interior represented by the Secretary of State delegated to the Province to take a decision on the outcome of the application. This status qualifies the recognised association to enjoy both administrative and fiscal benefits. 343. It is noteworthy that the protection of the enjoyment of the freedom of association is guaranteed by a jurisdictional oversight exercised by the administrative Chamber of the Supreme Court. The suit brought should centre on the protection of the collective interests of members. 344. Where their rights and freedoms are violated, associations may file an appeal before this jurisdiction against the administrative authorities for abuse of power. 345. As a non profit-making organisation, the latter’s activities are guided by the principles of voluntarism, impartiality, without any discrimination whatsoever on the basis of race, religion or political affiliation. 346. Associations are endowed with human, material and financial resources to conduct their interventions. 64 347. The law curbs the power to set up NGOs by stating that all NGOs founded on an illegal cause or aim which runs counter to the laws and public decency or whose activities pose a threat to public law and order or national unity shall be nul and void. 348. It is decree no 98-711 of 2nd September, 1998 which defines the mode of enforcement of law no 96- 030. C- Limitations 349. The Malagasy legislator has deemed it indispensable to curb the exercise of the freedom of expression in some instances. To this end, articles 1, 2 and 3 of order no 60-063 of 22 July, 1960 prescribe the dissolution of certain associations and house arrest for persons proven guilty of engagement in subversive activities, and call for the dissolution by orders in Council of any Association or all groupings, be they de facto or de jure: • That incite armed riots in public on the streets, or in public or private locations; • With the exception of military training companies licensed by the Government, any physical education and sports companies which due to their form or military organisation seem to be private combat groups or militia; • Which appears bent on undermining territorial integrity or forcibly overthrowing the Government; • Which have been proven guilty of receiving, taking or sourcing funds or orders from abroad; • Which are proven guilty of having repeatedly engaged in a manner likely to: 1. Induce public disobedience of laws and regulations and incite the population to elude their execution; 2. Induce the people to hate the constitutional institutions of the Republic; 3. Incite discontentment among the population leading to uncalled for manifestations against institutions and Government by spreading false information; 4. Incite campaigns against the constitutional principles of the State using means other than those legally available for the smooth running of the parliamentary institutions. 350. Article 4 stipulates that any individual found guilty of having personally and persistently engaged in subversive activities shall be liable to house arrest by orders in Council where such activities are grounds for the dissolution of groupings, associations or parties as laid down in the preceding articles. 351. Any individual under house arrest and who five clear days of the day of service of notice of the measures taken against him fails to comply with the said house arrest shall be punishable by imprisonment for a term ranging from one to three years. D. Dissolution 352. Dissolution shall be either: • Voluntary • legal or administrative. 65 66 ARTICLE 11 Every individual shall have the right to assemble freely with others. The exercise of this right shall be subject only to necessary restrictions provided for by law, in particular those enacted in the interest of national security, the safety, health, ethics, rights and freedoms of others. I. Constitutional Provisions 353. Freedom of assembly is enshrined in Article 10 of the Constitution. The word “assembly” covers that held in a room, in private or in public. 354, The only restrictions provided for with respect to this freedom shall be the respect of rights and freedoms of others and the necessity to protect law and order. II. Legislative provisions 355. Two main legal documents regulate assembly in Madagascar, namely: order no 60-082 of 13th August, 1960 pertaining to public assembly and demonstrations in public whereas order no 60-104 of 21 September, 1960 relates to unlawful assembly. III. Restriction 356. Order no 60-082 of 13tth August, 1960 on public assembly and demonstrations in public sets forth the restrictions to the freedom of assembly. 357. Article 1 of order 62-017 of 14th August 1962 amending the first article of the 1960 order stipulates that: “public assembly for any reason whatsoever shall be subject to prior authorisation by the General Delegate of the Government for the city of Antananarivo or sub-prefects, as the case may be, who may deny the authorisation where the proposed assembly is likely to disturb the public peace. The application for a permit shall be transmitted to the general delegation of the Government or the sub-prefecture 48 hours prior to the date of the proposed meeting. Where the administrative authority believes that the meeting is prone to disturb public peace, it shall immediately notify the applicant of its rejection of the application by letter or telegram. The authorisation is given under the same conditions. However silence on the part of the administrative authorities is tantamount to consent to assemble. ” 358 . Regarding the permit to assemble in public, article 8 of the same order requires that to organise any procession, parade, gathering of persons, that is any public demonstration of any sort, the organisers shall apply for a permit from the authorities cited in article 9 of the above order, who may deny the permit where the assembly is likely to disturb law and order. However, public outings in accordance with local traditions shall not be subjected to the application for a permit. 67 359. It should be specified that no public meeting shall be held past 2300 hours. However, in those places where public establishments close later than that, the assembly may continue until the stipulated closing time of the said establishment. 360. Finally, it should be underscored that any armed or non armed gathering likely to disturb the peace shall be prohibited in Madagascan territory as a whole. 361. In effect, order no 60-104 of 21 September 1960, relative to unlawful assembly states in its first article,: “Shall be construed as an assembly any planned or chance gathering of persons in public. ” 362. Where a state of emergency prevails within the country, the relevant law, law no 91-011 of 18 July, 1991 shall prohibit and criminalise all forms of public gathering or assembly. 363. Articles 3 and 4 of the above mentioned order govern the position of the law on religious gatherings. 364. However, according to article 30 of the same order: “political assemblies or union meetings shall be prohibited in places which usually serve as places of worship. The organiser shall be liable to a fine of Ar 5,000 to Ar 40,000.” 68 Article12 1. Every individual shall have the right to freedom of movement and residence within the borders of a State provided he abides by the law. 2. Every individual shall have the right to leave any country including his own, and to return to his country. This right may only be subject to restrictions, provided for by law for the protection of national security, law and order, public health or morality. 3. Every individual shall have the right, when persecuted, to seek and obtain asylum in other countries in accordance with the law of those countries and international conventions. 4. A non-national legally admitted in a territory of a State Party to the present Charter, may only be expelled from it by virtue of a decision taken in accordance with the law. 5. The mass expulsion of non-nationals shall be prohibited. Mass expulsion shall be that which is aimed at national, racial, ethnic or religious groups. 365. Article 12 of the Charter lays down: • rights recognised for any individual to move freely and to chose his place of abode within the State; • the right to leave the country including his country and to return; • the right to obtain asylum; • that non-nationals shall only be expelled from a country by virtue of a decision taken in accordance with the law. • prohibition of mass expulsion of foreigners. I. Constitutional provisions 366. Article 12 of the Malagasy Constitution and article 12 of the Charter guarantees all individuals established in Madagascar be they Malagasy or foreigners the right to free movement within their country and to choose their place of abode in accordance with the laws in force. 367. Paragraph 2 of the same article guarantees all individuals the right to leave the national territory and to return under the conditions set forth by the law. II- Legislative and administrative measures. 368. In accordance with the Constitution, the law guarantees all Malagasy citizens the freedom to leave the national territory and to return home. It is law no 91-025 of 12th August 1991 on the organisation and supervision of the movement of citizens abroad which makes provisions for the latter in its article 1. 369. However this legal document lays down restrictions thereto. 69 370. In effect, according to article 9, citizens may be denied leave to travel out of the country on the written orders of the competent legal authority where there is a case pending against the individual in question filed by the competent authorities or organisms for offences against the laws and regulation in force, punishable by a penalty or where a final sentence has been passed making the individual liable for a fine or a prison sentence without probation for crimes or offences, and the sentence which has not been overturned by a pardon or statute of limitations or reversed by an amnesty or pardon has yet to be executed. 371. The lifting of prohibitions to travel out of the country shall be ordered by the competent judicial authority automatically or at the request of any individual in the event of a decision to dismiss the case or the relinquishment of the public right of action for one of the reasons laid down by the law, or pursuant to the execution of the sentence. 372. Notwithstanding these provisions, any citizen prohibited from leaving the country may at his request, be issued a special clearance to leave for duly proven and pressing health or family reasons by the judicial body which pronounced the decision. 373. Regarding foreigners, the possibility of securing entry visas at the airport or port of disembarkation is availed foreigners by inter ministerial order decree no 8421/97-MAE/MININTER/MI/SESP OF 19TH September, 1997. 374. This is a new development. 375. Madagascar does not have any “internally displaced persons” within the country. The country has never carried out a mass-expulsion of foreigners. 376. Regarding refugees, the Malagasy State has signed the Convention on the Status of Refugees but has yet to ratify it. 377. The High Commission for Refugees (HCR) has mandated UNDP to take care of some forty refugees, nationals of African Union member countries. 378. On arrival in Madagascar, these asylum seekers presented themselves to the local authorities who in turn referred the matter to UNDP. 379. This organism issued them a temporary refugee card which is meant to be presented to the ministerial departments concerned i.e. Ministry of the Interior, Ministry of Foreign Affairs, Ministry of Labour and Social laws. 380. Refugees are not ill treated due to discrimination. Four of them are presently detained at the Antanimora Central Prison accused of counterfeiting Malagasy currency but are not discriminated against in the least because of their origin. In fact, they enjoy the right to legal protection and assistance during the course of their trial and the services of an interpreter at the behest of the Ministry of Justice. One of the four money counterfeiters who was recently put on trial in Antananarivo has been released. 70 ARTICLE 13 1. Every citizen shall have the right to participate freely in the government of his country, either directly or through freely chosen representatives in accordance with the provisions of the law. 2. Every citizen shall have the right of equal access to the public service of the country. 3. Every individual shall have the right of access to public property and services in strict equality of all persons before the law. I Participation of all citizens in the government of their country. 381. The principle of multi party democracy is enshrined in the 1992 Constitution: • Article 14 states: “Every person shall have the right to freely associate with others subject to compliance with the law. This same law is applicable to the creation of political parties. However political parties which compromise the unity of the Nation and those which espouse totalitarian or segregationist tendencies based on ethnic, tribal or confessional differences shall be prohibited. Political parties shall compete for votes with the minority be availed the right to democratic opposition.” • Article 15 states: “Any citizen shall have the right, without any discrimination based on his affiliation or otherwise with a political party or the obligation to be nominated by a political party to present his candidature for the elections provided for in the present Constitution and this, in accordance with the provisions of article 46 hereunder and the conditions laid down by the law.” A. Eligibility criteria. 382. Organic law no 2000-014 of 24th August, 2000 relating to the Electoral Code enshrines in article 4 the right for any candidate to present his candidature for public office: “shall be eligible without any distinction whatsoever based on gender all Madagascan citizens who meet the criteria to vote as well as the conditions set forth by the special laws governing the different categories of elections, namely: 1. Be registered on the voters’ roll; 2. Be of the age stipulated by the law for all elective posts; 3. Have a clean criminal record.” 383. Article 2 of the Electoral Code shall define the conditions for the application of article 6 paragraph 2 of the Constitution as follows: “all Madagascan citizens without any discrimination based on gender, aged 18 years and over on election day, residing within the national territory and enjoying their civic and political rights shall be eligible to vote.” 71 384. Since the promulgation of the Constitution in 1992, several elections have already taken place: • Presidential elections: 1992, 1996, 2001, 2006 • Legislative elections: 1993, 1998, 2003, 2007 • Municipal elections: 1994, 1998, 2003, 2007. 385. After the 1992, 1996, and 2002 elections, the Electoral Code was amended. B. Settlement of electoral disputes 386. The High Constitutional Court as the first and final instance is seized of election petitions pertaining to referendums, presidential or parliamentary elections. The State Council rules on appeals in cases involving violations of the law, whereas the Administrative Court established by law no 2001-025 of 9th April, 2003 shall hear, as the first and final instance court, petitions pertaining to provincial regional and municipal elections. C. Grassroots participation 387. Article 7 of the same law refers to “a local Committee to conduct a census of the electorate. This Commission is charged with the enumeration of all citizens who meet the legal criteria to exercise the right to vote and is set up in each Fokotany. ” D. Monitoring and evaluation of elections 388. The establishment of the National Electoral Commission (NEC) has led to improved monitoring and supervision of elections. Article 14 of organic law no 2004-014 of 24th August, 2000 stipulates that: “a National Council morally responsible for the authenticity of the polls and fairness of the vote shall be charged with supervising all operations relative to the smooth conduct of the elections.” 389. Other measures have also been adopted to ensure the proper conduct of the elections: • Observation of elections by apolitical citizens’ committees, without any distinction based on ethnic origin or creed; • Possibility of regional and international organisations observing elections; • Monitoring of elections by observer groups; • Establishment of a co-ordinating committee for elections’ observers by civil society associations or entities in an apolitical collaboration to ensure strict compliance with democratic principles during elections. Only NGOs registered by the National Electoral Committee shall be members of this Committee; • Creation of a consortium of observers trained by the NEC in 2001. E- The National Electoral Commission 72 390. A National Electoral Commission was set up in 1992 to supervise all activities to ensure the smooth conduct of the elections in accordance with the provisions of article 113 of organic law no 2000-014 of 14 August, 2000 on the Electoral Code. 391. The composition of the National Electoral Council shall be as follows: • A member nominated by the President of the Republic, the Ombudsman or one of his Deputies, • A member designated by the Minister of the Interior, • A member designated by the Bar Association, • A member designated of the Press Union • A member designated by the Prime Minister • A member designated by the President of the Supreme Court; • A member designated by the Attorney General. 392. According to articles 23 and 24, the National Electoral Council shall advise and assist the authorities charged with the organisation of elections, ensure the proper conduct of electoral operations, and register non-governmental organisations desirous of participating in elections in an observer capacity. II- Access to the civil service 393. Article 23 and 24 of the 1992 Constitution sets forth the conditions for acceding to the civil service as follows: “Work and skills training are both a right and a duty for every citizen.” 394. Access to the “civil service is open to all citizens without any other conditions other than the requisite qualifications and skills.” A-General conditions of access to the civil service 395. On the legislative plane, law no 2003-011 of 3rd September, 2003 on the general status of civil servants asserts in its article 17 that: “ no one shall be employed as a civil servant unless he meets the following conditions: • Be a citizen of Madagascar; • Enjoy civic rights • Has performed national service • Be certified physically and medically fit to work in the service • Be in possession of one of the qualifications required for the lowest positions and scales for officers.” 73 396. Applicants for civil service jobs are recruited through direct or professional competition, qualifications or entry. In accordance with article 18 of the said statutes, applicants are recruited by year and merit following entrance exams. Table 9: Percentage of men and women at all levels of the civil service. Category 2000 2002 2004 Women Men Total Women Men Total Women Men Total % % % % % % % % % I 23.1 76.9 100 24,0 76.0 100 24.5 75.5 100 II 42.4 57,6 100 46.4 53.6 100 46.5 53.5 100 II 40.6 59.4 100 40.9 59.1 100 41.0 59.0 100 IV 36.8 63.2 100 38.7 61.3 100 40.8 59.2 100 V 26.6 73.4 100 28.0 72.0 100 31.4 68.6 100 VI 42.4 57.6 100 42.5 57.5 100 42.9 57.1 100 VII 23.7 76.3 100 22.1 77.9 100 20.2 79.8 100 VII 28.8 71.2 100 29.5 70.5 100 30.6 69.4 100 IX 30.9 69.1 100 32.7 67.3 100 32.6 67.4 100 X 28.4 71.6 100 21.1 78.9 100 21.5 78.5 100 ELD 1 0.0 100.0 100 16.7 83.3 100 20.0 80.0 100 ELD 2 12.5 87.5 100 7.1 92.9 100 6.1 93.9 100 ELD 3 10.2 89.8 100 8.6 91.4 100 8,2 91.8 100 ELD 4 21.4 78.6 100 20.5 79,5 100 19,9 80.1 100 HE 17.2 82.8 100 18.0 82.0 100 19.0 81.8 100 Total 35.0 65.0 100 38.0 62.0 100 38.2 61.8 100 Source: INSTAT/DI/JAS2004 74 ARTICLE 14 The right to property shall be guaranteed. It may only be encroached upon in the interest of public need or in the general interest of the community and in accordance with the provisions of appropriate laws. I- Right to property 397. The Constitution states in its article 34 hereunder: “The State shall guarantee the right to personal property. No one shall be deprived of the latter unless by expropriation in the interest of public need in exchange for a fair compensation paid in advance.” 398. This principle is enshrined in law no 96-015 of 13 August 1996 on the repeal of law no 89-026 of 29th December, 1989 relating to the Investment Code and defining the general guarantees covering investments made in Madagascar in its article 4. Article 4: “The State shall ensure that the rights to personal or collective property are respected.” 399. Where in the interest of public use and by virtue of a law expropriation or requisition measures are adopted owners shall be entitled to compensation assessed on the basis of the capital invested and according to the methods normally used for such calculations. II- Protection of the right to property 400. Order no 60-121 of 1st October, 1960 modified by law no. 66-025 of 19 December, 1966 is aimed at stemming violations of the right to property. Article one- (Law no 66-025 of 19.12.66) “Anybody who maintains or resettles on the entirety or part of an urban or rural property from which a “res judicata” court decision had ordered his eviction less than five years before the encroachment shall be punishable by an imprisonment ranging from one month to two years and a fine ranging from 5,000 to 100,000 francs.” III- Case for expropriation in the interest of public use 401. Order no 62-023 of 19th September, 1962 organises expropriation carried out in the interest of public use, non adversarial acquisition of landed property by the State or secondary public bodies and real estate betterment. Article 1: “The present order lays down the conditions for expropriation in the interest of public use, non adversarial acquisition of landed property by the State or secondary public bodies and the conditions for the recovery of proceeds from real estate betterment (rehabilitation or provision of equipment) conducted in urban or rural areas by the authorities or with their assistance.” IV- Compensation 402. Decree no 63-030 of 16 January 1963 defines the modalities for the application of order no 62-023 of 19th September, 1962 relating to the expropriation in the interest of public use, non adversarial acquisition of landed property by the State or secondary public bodies and real estate betterment amended by decree no 64-399 of 24 September, 1964. 75 76 ARTICLE 15 “Every individual shall have the right to work under equitable and satisfactory conditions, and shall receive equal pay for equal work.” I. Legislative and regulatory framework 403. Madagascar ratified the ILO Convention on equal pay for equal work in 1962 as well as the following conventions: • No 100 Convention Concerning Equal Remuneration for Men and Women Workers for Work of Equal Value • No 14 Convention concerning the application of the weekly rest in industrial undertakings • No 132 Convention concerning holidays with pay • No 81 Convention on Labour inspection • No 129 Convention on labour inspection in the field of agriculture 404. Convention 131 on the establishment of the basic salary is yet to be ratified however measures have been taken to implement Convention no 26 on the minimum wage which has already been ratified. 405. Convention 106 on weekly rest in business and offices has yet to be ratified however weekly rest is observed both within industries, businesses and offices. 406. The right to work is enshrined in article 27 of the Constitution: “Work and professional training shall constitute a right and duty for all citizens.” 407. “Access to public service shall be open to all citizens without any conditions other than their having appropriate qualifications and skills.” A- Public Sector 408. The new staff regulations for civil servants repeats the same provisions as those outlined in articles 16 and 17 of the previous staff regulations. Article 16: “Appointment to the different permanent jobs mentioned in the first article shall only occur under the conditions laid down in the present staff regulations.” Article 7: “No one shall be recruited into the civil service should he fail to meet the following conditions:” 1. Be a citizen of Madagascar; 2. Enjoy civic rights; 3. Accomplished national service; 77 4. Be certified physically and medically fit to serve in the service. 5. Be at least 18 years of age and at most 45 years of age as at the 1st of January of the year of the entrance exam in the case of a first recruitment. 6. Be in possession of one of the qualifications required for the lowest positions and scales for officers.” B. Private Sector 409. Law no 2003-44 of 28th July on the Labour Code stipulates in its article 2: “Shall be considered as a worker according to the present law, any person, irrespective of gender and nationality, who undertakes to place his professional activity in return for a consideration under the administration and authority of another natural, public or private person.” 410. Article 4 of the code prohibits forced or compulsory labour except where specific work or services are required in accident or disaster situations, the work is performed in the collective interest, in accordance with a convention freely assented to by the public authorities, work of a purely military nature and any other work done by force by an individual as a result of a sentence pursuant to a judicial decision. 78 II- Structures for the protection of the right to work 411. In order to promote social dialogue between the State and Social Partners, the National Employment Council (CNE) was established to discuss problems and issues relating to the job market and the world of work within the private sector whereas the Higher Civil Service Council (CSFOP) was established for the public sector. III- Employment promotion policies. 412. A national employment policy which guarantees the fundamental rights of social partners was formulated. The main strategies are: consolidation of the partnership between the State, employers and employees, increasing the GDP growth rate and the investment rate to: • Create employment in the rural and urban areas; • Reduce unemployment; • Formalise the informal sector. A- Skills training 413. In accordance with the provisions of the Labour Code, skills training is a right for the worker and a duty for the nation. Professional training includes: • Initial training; • Continuing professional education; • Sandwich instruction; • Smorgasborg training. 414. To promote initial professional training, the Malagasy State has embarked on a certification programme in collaboration with the Private Higher Education Institutions and Centres: • Introduction of Instruction in Art Trade and Techniques for middle level executives and supervisory officials; • Higher Training Institutes for officers in Communications Management and Company Administration (ISCAM, INSCAE) • Religious higher education institutions (Catholic university, Adventist university, Christian Higher Institute for management and mathematics)/ 79 B. Worker’s education 416. A National Labour Institute (INTRA) was set up in accordance with decree no 2003- 857 to replace the National Workers’ Education Centre. The administration is a tripartite one and its mandate is outlined in article 189 and 190 of the present Labour Code: • Article 189. “The mission of the National Labour Institute is to ensure continuous training for workers in order to enable them participate in the socio-economic life of the firm, country and assume their union and other attendant duties to the full. Article 190- In addition, the National Labour Institute • Assists in the research work conducted by the Technical Works, Employment, and Social Protection Departments; • Participate in the training of labour controllers and inspectors:” 417. The regulations governing study leave for the promotion of workers’ education has been maintained in the new Labour Code. C- Unemployment and under-employment. 418- Unemployment according to the ILO norms is not a major problem within the job market in Madagascar with a low rate of 2.8% in 2005 (2.6% should we only consider individuals aged 15-64 years old), under employment affects more than 25.2% of the active population aged 15-64 years, especially in the Regions of Vakinankaratra, Ilasy and Atsimo Atsinanana where more than 45%, 34%, or 33% respectively of the workers are affected. 419. Pages 58 and 59 of the Madagascar’s National Human Development Report 2003 (NHDR) on entry into the job market deal with unemployment and underemployment depending on the type of urban and rural setting explains that: “The 1.6 million jobs created between 1993 and 2001 were not sufficient to absorb all the job applications. The unemployment rate among men has been stagnant whereas that of women has doubled.” IV- Special working conditions of certain categories of workers. 420. Chapter 3 of the Labour Code deals with the working conditions of women, children, and persons with disabilities. A- Employment of women 421. Special protection is availed women from 93 to 97 of the Labour Code. - Article 93 on types of work prohibited for pregnant women; - Article 94 on pregnancy and salaried women. - Articles 95 and 97 on job security for pregnant women. 80 B- Child labour 422. In accordance with the provisions of Convention no 138 of the ILO, article 100 sets the minimum age for entry into the job market at 15 years. 423, Article 101 limits the duration of the working day for children, prohibits night shifts and stipulates a minimum turnaround period. 424. Article 102 regulates jobs prohibited for children 425. Article 103 provides for compulsory medical consultations for children prior to employment. C- Employment of persons with disabilities 426. The Labour Code deals with non discrimination of persons with disabilities in its articles 104 to 109 and article 105 thereof expressly stipulates: 427. “There shall be no discrimination whatsoever in matters of labour or jobs between able-bodied people and people with disabilities with the same qualifications and skills because of the latter’s disabilities. Persons with disabilities shall be entitled to work and employment on equal terms and conditions in the areas of apprenticeship, professional training and employment.” D- Treatment of persons with disabilities within the administration. 428. A specialised unit of the Ministry for Social Protection is responsible for persons with disabilities and its duties are as follows: • Elaboration of legal documents and regulations governing the conditions of enforcement and protection of economic, social and cultural rights of persons with disabilities; • Technical material and financial guidance and support for institutions or organisations responsible for the affairs of such persons: centres, training, income generating activities etc... V-Enforcement of laws and regulations. A-Labour inspection 429. In accordance with Conventions no 81 and 129 of the ILO, regional inspection units have been established for the application of Labour laws and regulations. 430. Article 234 of the Labour Code defines the duties of the Labour Inspector among others as: a. “ensuring that the legislative and regulatory provisions pertaining to working conditions and the protection of workers are enforced; b. providing information and technical advice to employers and employees on (....) the legal provisions in force; 81 c. informing the competent authorities of deficiencies or abuses which are not specifically covered by the existing legislative and regulatory provisions.” B- Labour Controllers and Labour Inspection Officers. 431. Labour Controllers assist Labour Inspectors. They are authorised to record infringements of the legal and regulatory provisions of the Labour Code. 432. In the administrative districts where there are no Labour Inspectors or Controllers, the District Head deputising for the labour Inspector transmits to the latter the necessary information to draft a report. C- Capacity Building 433. In view of the dearth of Labour Inspectors, measures were taken in 1998 to address the situation. Hence, 90 Labour Inspector were trained at the Ecole Nationale de L’ Administration (ENAM- Madagascar National School for Administration) and 45 Controllers are presently posted at the Regional Inspection units. D- Monitoring of the application of the Labour Code. 434. Any worker or employer may request the Labour Inspection unit to settle a dispute amicably. 435. Before referring a case to the courts for settlement, the Labour inspectorate must first be seized for any dispute to be settlement between an employee under contract and his employer. 436. Labour Courts are set up within Courts to settle disputes between employees and employers: • arising from the interpretation of the law or a collective agreement or shop agreement; • arising from employment contracts or training contracts; or • unresolved disputes before the duly seized Labour inspectorate. VI. Fair and favourable working conditions A- Equal opportunity in terms of promotion 437. In order to ensure that external factors do not impede equal access to opportunities, the Labour Code has made provisions for the respect of human dignity. Thus, regarding sexual harassment and its consequence on the promotion of workers, article 5 paragraphs 3 and 4 of the Code stipulate that: “Shall be construed as sexual harassment on the job any uncalled for behaviour of a sexual nature which interferes with the job, conditions employment or the normal development of ones career or creates an intimidating working environment. 438. No salaried worker shall be punished, discriminated against career wise or job wise or dismissed for testifying about the actions mentioned in the above paragraph or for recounting them.” 82 B- Weekly Rest and holidays 439. Weekly rest provided for under Convention 14 is domesticated into the Malagasy legislation in article 80 of the Labour Code of law no 2003-044. Article 81 deals with public and bank holidays. C. Leave 440. Articles 86 to 90 of the present Labour Code deal with the regulations in force regarding paid leave. All workers shall be entitled to two and a half days paid leave for every calendar month served at the expense of the employer. D- Health and Safety 441. The issue of health, safety and the working environment is provided for in law no 94- 027 of 18 November, 1994, presently it is governed by Title IV of the Labour Code on: “Health and safety conditions and the working environment.” 442. In accordance with the provisions of Title IV, decree no 2003-1162 on the organisation of occupational medicine was enacted on 17th December, 2003 on the advice of the Consultative Technical Committee and the National Employment Council. 443. The provisions of decree no 889 of 20th May, 1960 set forth the general measures pertaining to the area of health, safety and the working environment. 444. Occupational medicine shall be provided by intercompany medical services and autonomous occupational medicine companies. 445. For workers in the informal rural and urban sectors, health and hygiene services shall be provided by the Community health Centres (CHC 1 and CHC 2) in the communes and hospitals in the Districts. VII. Remuneration 446. Convention no 100 on equal pay has already been ratified by Madagascar and the Malagasy Government has already taken legislative steps to ensure equal pay for equal work. 447. Article 29 of the Constitution enshrines the principle of equal salaries and wages and states: “all citizens shall be entitled to a fair remuneration commensurate with the quality of their work and output guaranteeing them and their family an existence consistent with human dignity.” 448. Malagasy legislation provides for non-discrimination on salaries: “for the same professional qualifications, same job and for the same value of work, all workers shall be paid the same salary without any discrimination whatsoever on the basis of their origin, colour, nationality, gender, age, affiliation to a union or opinion.” 449. The determination of salaries shall be governed by the national norms that is, by the principle of minimum starting salary for the agricultural and non agricultural sectors. 450. The competent organs authorised to give advice on the issue of salaries are: 83 • The Higher Council of the Civil service, a public sector bipartite organ; • The National Labour Council, a private sector tripartite organ for consultations on salaries. A- Minimum guaranteed inter occupational wage 451. The Minimum Starting Salary replaced the Minimum guaranteed inter occupational wage (SMIG) since 1993. Article 55 of law no 2003-044 of 28 July, 2004 relating to the Labour Code states that: “there shall be a minimum agricultural and non agricultural minimum starting salary taking into consideration the minimum poverty line to guarantee workers a decent purchasing power.” 452. A decree passed on the advice of the National Labour Council shall establish the minimum starting salary based on the professional category and revised periodically in line with developments in the Nation’s account, the economic outlook and consumer prices. 453. A decree enacted on the advice of the National Labour Council shall establish the indices, the credit value index and the minimum starting and seniority salaries for various professional categories applicable in the agricultural and non agricultural sector. 84 Article 16 1. Every individual shall have the right to enjoy the best attainable state of physical and mental health. 2. State Parties to the present Charter shall take the necessary measures to protect the health of their people and to ensure that they receive medical attention when they are sick. 454. Provisions on the physical and mental health of the general Malagasy public and its different segments are enshrined in the revised Constitution of the Republic of Madagascar in response to the requirements of the Charter in the following articles: • Article 17- “The State shall organise the exercise of the rights which guarantee every individual the integrity and dignity of his person, his utmost physical, intellectual and moral development.” • Article 19- “The State shall recognise and organise for every individual the right to the protection of their health from conception.” 455. In accordance with these principles, Madagascar has elaborated a National Health Policy to guide all health development activities. 1- Legislative framework 456. The major element of the Madagascar health legislation on public health is order no 62-072 of 29th September, 1962 on the codification of legislative documents relating to Public Health. This 8 volume Public Health Code” is the main regulatory reference document on health in Madagascar, 457. Various legislative and regulatory documents have been elaborated to reflect the latest realities, for example: • Decree no 90-026 of 18th February, 1992, pertaining to the establishment of a National Council for Sexually Transmitted Diseases (STD) and Acquired Immunodeficiency Syndrome (AIDS) Control; • Circular no 53- MEFB/SG/DGD/DGFPE of 9th November, 1993, introducing the decentralisation of payment of salaries and pensions to provincial offices; • Decree no 94-678 of 31st October, 1994 defining the responsibilities and general organisation of the Ministry of Health and providing for the establishment of District Health Services or Health Districts; • Decree no 95-587 of 5th September, 1995 on the adoption of the National Policy for the Fight against Disorders associated with Iodine Deficiency; • Law no 2004-029 of 9th September, 2004 authorising the ratification of the World Health Organisation Framework Convention on the Anti Smoking Campaign; • Law on the prevention and protection of Persons Living with HIV Aids adopted in 2005. 85 458. The draft bills modifying the public health codes and the code of conduct are being finalised. II. The National Health System 459. The main principles guiding the national health system are geared towards increasing life expectancy coupled with good health for citizens, improving the quality of their existence to promote active participation in economic and social development and sound health development II- Medical protection and assistance measures. 460. In order to guarantee sound protection and make medical assistance effective in any given situation or period, the State has outlined the strategic orientations of the Madagascar Action Plan (MAP) hereunder: A- Maternal and Child Survival. 461. The survival of the Mother and Child is supported by five programmes: • Safe motherhood • Child health • School health • Family Planning • Fight against malnutrition in vulnerable groups. B- Disease Control. 462. The main components of the disease control strategy are communicable and non communicable disease control. a- Communicable disease control 463. Communicable diseases constitute a major public health problem and caused about 25% of hospital deaths and 52.4% of external consultations in basic health care centres, in 2003. Such diseases are among the first ten causes of death. b- Communicable diseases targeted by the MDGs. • Malaria. 464. Malaria is the second cause of morbidity in Madagascar (18, 8% in 2003), the number one cause of death among children under five and pregnant women. It affects practically the whole population. 86 465. The measures taken to combat this disease are: • Residential mosquito spraying campaigns (RMSC); • Generalised use of insecticide impregnated bed nets (IIB); • Presumptive treatment for pregnant women using sulphadioxine and pyrimethamine. 466. The 2008 objective regarding the fight against malaria is to reduce mortality due to the latter by 25% among children under 5. • Tuberculosis 467. With a high annual incidence of some 20,000 cases, Madagascar is also faced with the added problem of screening new cases of Tuberculosis and two major attendant stumbling blocks namely: • The low recovery rate (72%); • A high mortality rate (17%). 468. The 2008 objective for the fight against tuberculosis is to increase: • The screening rate to 70%; • The recovery rate to 85% of bacillary tuberculosis. • HIV AIDS 469. Even though prevalence is still relatively low (the 0.95% sero positive rate poses a major threat for the Malagasy public health considering the high prevalence of Sexually transmitted diseases (STIs) and the existence of a series of risky sexual behaviours(unprotected sex, multiple sex partners). 470. The measures taken to fight against HIV/AIDS are: • A strong political commitment buttressed by the establishment of the National Aids Control Council (NACC); • A multi sectoral approach to mobilisation at different levels. 471. The 2008 objectives are: • To maintain sero posivity below 1%; • Promote the welfare of persons living with HIV Aids (PLWHIVA); • Reduce the incidence of STDs. 87 o Other infectious diseases 472. Bilharzias, plague, influenza, endemic diarrhoea, (bacillary dysentery, and cholera in early 2000), collective food-borne infections, other emerging diseases (cysticercosis......) and re-emerging diseases are the other important transmissible diseases whose impact is exacerbated by the difficulties encountered in the area of surveillance and response as well as the socio cultural factors which hinder prevention and early and proper treatment. 473. Objective 2008: • Reduce the death rate from suspicious plague from 14 to 5% and less to 10% for other transmissible diseases; • Reduce the morbidity rate of other diseases; 474. Severely disabling diseases: • Leprosy (prevalence rate remains at 2-5 for every 10,000 inhabitants in 2004; • Lymphatic filiariasis (the prevalence rate exceeds 50 for every 100 in the highly endemic areas.) 475. Measures taken: • In the case of leprosy, diagnosis supervision and updating district level registers, heightened community participation; • For lymphatic filariasis, Madagascar is strongly committed to the global programme for the elimination of the disease; a national policy is under validation with the initial elimination campaigns kicking off in 2005. 476. 2008 objective: • Eliminate leprosy, vie for the elimination of filariasis and reduction of disabilities due to these two diseases. c- Fight against non communicable diseases. 477. Non communicable diseases which are more and more prevalent in these countries are • Cardio-vascular diseases, especially hypertension; • Diabetes; • Cancer. 478. In the sole specialised oncology unit in Madagascar, (Antananarivo Oncology and radiotherapy unit) 1200 new cases were registered in 2003 (more than half were gynaecological cancers). This figure does not reflect the reality as 70% of patients come from Antananarivo and its immediate surroundings. 88 479. 2008 objective • Reduce by 25% the incidence of hypertension in the high concentration areas • Increase the cancer screening rate by 50%. Disabilities. 480. The global prevalence of different types of disabilities is estimated at 7.5% following the 2003 survey covering visual, motor, auditory, intellectual and physical disabilities. In 50% of cases, blindness is avoidable: cataract is the single most frequent cause of avoidable blindness. Main conditions leading to disabilities. 481. The main disabling conditions identified are as follows: cerebral deficiencies, club foot, osteo-articular infections, chronic otitis media, cerebro-vascular accident, epilepsy and acute paranoid reaction. 482. Presently, the rehabilitation and prosthesis fitting centres are poorly integrated into the medical system, ill-equipped and lack qualified human resources. 483. 2008 objectives. • improve management of incapacitating and chronic diseases and mental disorders; • reduce screening rates of eye diseases from 1.3% to 1%; • carry out screening of birth defects in 50% of basic health centres and district hospitals and make the necessary referrals; • guarantee functional rehabilitation services in at least 25% of secondary level hospital centres. Oral health 484. Poor oral health is mainly due to inadequate oral health and nutritional practices as well as the low fluoride content of water in Madagascar. 485. 98% of persons aged 35-44 years present on average with 13.1 cavities, the level of oral health cover is still very low (8%in the communes) and the level of utilisation of services is only 2%. 89 486. 2008 objectives: • Ensure at least 20% of children aged less than 6 years do not have any cavities; • reduce the caries index (number of teeth decayed, missing or filled) for children under 12 to less than 2.7; C- Health protection and promotion of healthy practices. 487. Health protection programmes cover both the protection of health and the promotion of healthy practices. 488. The following measures have been identified: a. Water, sanitation and the environment • Develop drinking water supply and drainage networks in the urban areas; • Increase the present level of potable water supply to 50% and that of drainage to 30% in the rural areas. b- Health and safety monitoring and food quality control. 489. The food and non food products regulations (fraud prevention and quality control) date back to 1905 and would do with some updating. The National Health and Safety Monitoring and Food Quality Control policy has been formulated. 490. The 2008 objectives are as follows: • Reduce morbidity and mortality due to nutritional diseases; • Guarantee wholesomeness of food at the production, handling, storage, processing, preparation and distribution stages; • Make actors in the food industry more accountable; • Help promote enforcement of food standards. c- Risk and disaster management 491. The population should be protected from the health implications of risk and disaster situations. The objectives are to: • provide free treatment for 90% of the disaster victims; • reduce lethality and duration of outbreaks of epidemics during disasters. d- Anti-smoking campaign 492. In Madagascar, more than 80% of the population in the rural areas chew tobacco. 90 493. The Ministry of Health and Family Planning has set up a national body to coordinate anti-smoking interventions called the National Anti-smoking Unit to support the implementation of the strategies aimed at attaining these objectives by 2008: • reduce the number of smokers by 1% yearly; • stem the propagation of the smoking epidemic; • fight against alcoholism and drug addiction. D- Measures in support of the health systems 494. These main components have been identified to bolster the health system: • decentralisation of the health system and organisation/management at different levels; • improvement of health coverage and quality of services; • capacity building; • better financing of the health sector. 495. In a bid to boost financial access to treatment especially for the most deprived, the FANOME system and equity funds were re-activated in January, 2004. a- Hospital policy 496. Hospital policy aims to provide proper treatment under more humane and equitable conditions, hence the following objectives: • avail referred patients comprehensive and quality treatment; • ensure secondary level health facilities are autonomous. b- Monitoring, evaluation, information and communication systems. 497. Availability of monitoring, information and communication tools for sector performance appraisal and decision-making. c- Nurturing partnerships. 498. Promote public private partnership through the National Contractualisation Policy of the Ministry of Health and Family Planning. 499. The “National Ethics Committee for Biomedical research involving human beings” was established in Madagascar in a bid to: • garner respect for the rights of persons and the ethical principles applicable to biomedical research involving human beings; • protect the integrity and physical and mental health of as well as the privacy of persons participating in research; 91 • make pronouncements on all issues touching on the conduct of biomedical research involving human beings. 500. Operational research is pivotal to health development by helping resolve community problems, guide health programmes and update the requisite data to inform decision- making. e. Information and Communication technology. 501. In order to rationalise and better harness communication and information technologies for the judicious management of the information system, the Ministry of Health and Family Planning plans to make the health information system effective at all levels, by 2008 while implementing e-governance. 502. An ICT village has been established at Sambaina-Manjakandriana and the strategy paper on the introduction of Tele- Medicine is currently being validated. 92 Article 17 1. Every individual shall have the right to education 2. Every individual may freely take part in the cultural life of his community. 3. The promotion and protection of morals and traditional values recognized by the community shall be the duty of the State. RIGHT TO EDUCATION 503. For the Republic of Madagascar, Education is a national priority with the successive reforms aimed primarily at improving the education system. 504. It is in this light that two laws on the general Orientation of the Education, Teaching and Training System in Madagascar were adopted in 1994 and 2004 respectively coupled with the administrative and social provisions made by Government. 1. Constitutional and Legislative Measures 505. The Malagasy Constitution stipulates in article 24 that: “the State shall provide public, free and universal education. Primary education shall compulsory for all.” 506. Laws no 94-033 of 13th March, 1995 and 2004-004 of 26th July, 2004 stipulate that there shall be compulsory and free education as of the age of six and that secondary and higher education shall be public and free. 507. Presently, almost all Fokontany (grassroots communities) have a public primary school called a level one basic school, more than half of the Communes have a general college or a level 2 basic school, virtually all districts have a public high school and each provincial county seat a university. Table 10: Public and private levels I and II Schools. Type of 2000/01 2001/02 2002/3 2003/4 2004/5 establishment College 1426 1519 1596 1879 1596 High School 331 359 336 336 415 Total 1757 1878 1932 2015 2011 Source: MESR statistics unit. 93 II- Administrative measures a- For girl’s enrolment 508. To promote girls’ education, measures have been taken in accordance with decree no 95-645 of 10th October, 1995 pertaining to the National Action Plan for the Promotion of Girls’ Education (NAPPGE) dated 10th October, 1995 which stipulates in article 2 that: “the national action plan for the education of girls aims to prepare girls for their future roles as wives, mothers, citizens and partners in development while furthering their full development.” 509. In line with Madagascar’s commitment to universal education, incentives were provided to that effect by Government, in 2002, such as: • a significant increase in the resources allocated to the Education sector, in general from 2.3 to 33% of GDP between 2001 and 2004- and to the primary education sector, in particular, from 39% and 49% of total Ministry of Education and Scientific Research (MESR) expenditure for the same period; • enrolment incentives: to reduce parent’s expenses school kits are provided for students, the primary school children are exempted from paying registration fees and teachers recruited by FRAM subsidised; • transfer of funds to public and primary schools countrywide (school funds); • improvement in the working conditions of teachers with the payment of classroom and family separation allowances; • construction and rehabilitation of classrooms with international assistance; • distribution of textbooks to all public and private pupils; • transformation of basic education into student learning modules to reduce repeater rates: o 1st and second year in primary school o 3rd and 4th year in primary school o Fifth and six year in primary school. b- Government’s objectives in the field of education. 510. The Government’s objectives and standards are as follows: • Achieve universal education and keep students in first cycle of basic education; • Improve the quality and relevance of student’s learning to attain a completion rate of 100% in 2015; • Rationally and efficiently manage the education system; • Improve technical and professional education; • Revision of the curricula in line with the “skills approach” (APC) to make schooling more relevant; 94 • Training of teachers in APC, broad groups as well as mixed classes; • Improved management of the education system through the installation of a Ministerial Intranet and 38 ITC resource centres, setting up of 22 Regional National Education Directorates and providing the different management structures with vehicles and computers. Table 11. Trend: Gross primary school enrolment rate (GER) Years 1992-1993 1997-1998 2000-2001 Boys 110.3 104.4 117.4 Girls 89.8 102.8 115.8 Ratio B/G 1,228 1.015 1.014 Source: Ministry of Education and Scientific Research Table 12 Trend: College student’s enrolment Year 1995/96 1990/00 2003/4 2004/2005 Total 232, 817 287,873 420,592 486,239 Boys 118,503 145,779 211,841 244,590 Girls 114,313 142,094 208,751 241,649 Table 13 Trend: Enrolment of high school students, 1991 to 2005 Year 1995/96 1990/00 2003/4 2004/2005 Total 54. 316 66.381 88,857 106, 595 Boys 27,212 32,926 45,224 52,725 Girls 27,104 33,455 43,633 43, 870 Source: Ministry of Education and Scientific Research statistics Department 511. The numbers of male and female students is practically the same in higher education. 95 Table 14 Trend: enrolment of students in higher education according to gender from 1987 to 2005. Year 1994/95 2000/2001 2004/2005 Total 21,997 21,599 34,746 Boys 11,678 11,746 18,547 Girls 10,319 9,853 16,199 % Girls 46,91 45,61 46,62 Source: Ministry of higher education 512. In principle, public universities are free of charge. However students contribute financially through the payment of registration fees or study tour expenses. 513. Regarding accessibility, the University of Antananarivo is compelled to organise entrance exams for almost all disciplines due to the dearth of infrastructure and teachers. In other Universities, access is gained on the basis of screened applications or entrance exams. Table 15: Number of students enrolled on the CNTEMAD correspondence courses. Year 1996/1997 2000/01 2004/05 Overall 7864 6891 5978 Boys 3416 3096 3024 Girls 4448 3795 2954 International students - 70 13 Source: Ministry for higher education 514. In 2006, both public and private higher education institutions were in a position to provide a wide range of training prospects. 96 Table 16: Number of courses offered by public and licensed private higher education institutions in 2005. Instituti Ar Education Law Managem Pure Engineeri Agri Med Co O Tota ons ts al ent ng c ical mpu t l Social Scien ter h cour Science ce Scie Scie e ses Scien nce nces scie ce r nces s Universi 26 17 8 14 15 26 11 8 5 1 130 ties INSTN 1 1 IST 6 9 15 CNTEM 1 6 4 5 2 18 AD Private 2 2 23 1 10 4 2 1 3 48 c- Non formal education 515. The Malagasy educational system also covers non formal education which comprises of all educational and training activities conducted outside the formal education system viz. • Nursery school • Functional literacy • Civic education. 516. It is meant to offer apprenticeship and training possibilities to individuals who have not undergone formal education. 517. It should allow persons of all ages to acquire useful knowledge, professional skills, general knowledge and civic aptitudes which promote the development of their person in all dignity. 518. Non formal education is conducted in collaboration with NGOs (Education within literacy centres, education and reintegration into society as well as professional and technical training centres,) under the Ministry of Education, 97 519. Despite all the legislative, administrative and technical measures, the enforcement of the right to education is fraught with problems because: • most areas are totally or partially landlocked areas; • parents are discouraged due to unemployment and under employment; • of the poverty of the population • of rural insecurity • of customs and traditions which hinder girls’ or boys’ right to education, early marriages, worst forms of child labour, ESEC (children exploited sexually for commercial ends), urban and rural informal labour....... • of the inadequacy of the budget despite the Government’s efforts and international support; d- Literacy 520. Concerning the segment of the population aged above 15 years, literacy figures have increased over the last two years. Table 17 Literacy rate of the population aged over 15 years. Years Overall Urban Rural 2004 59.2% 78% 53.2% 2005 63% 76% 59% Source: EPM 2004, 2005 e- Difficulties encountered in the area of literacy. 521. The difficulties attendant to the literacy activities include the pretty high attrition rate among learners (40 to 60%) and the inadequacy of funding for the fight against illiteracy despite international assistance. 522. Government’s plan of action provides for literacy training for 100,000 persons as of 2006. f- Private education 523. The right to private training is enshrined in the Constitution which states in article 25: “the State shall recognise the right to private education and guarantee the freedom to learn subject to the health, moral and capacity conditions prescribed by the law.” 524. Presently there are 8 national directorates for private education subsidised by the Government including five denominational and three secular institutions coordinated by the National Bureau for private education. 98 525. The latter manages the subsidies allocated by the State and grants operations licences to private schools. 526. Financing for the construction of classrooms is availed private establishments by the Malagasy State as well as supplies of teaching aids. Private school teachers are also entitled to the same continuous training and refresher courses as their counterparts in the public schools. 527. In 2005, 1458 schools situated in the rural areas whose school fees are below 800 Ariary per month and the 3572 teachers working in the schools received State subsidies. For this year, 2008, another 20,000 Ariary subsidy for each of the 17250 private teachers is underway. 528. Private education which has been in existence since the time of the Imerina Kings has always collaborated with the State in the education of the citizens. The proportion of private schools grows year in year out. One school in four, more than one college in two and soon three high schools out of four will be from this very private sector. Table 18 Proportion of private schools Type of 2000/01 % 2002/3 % 2004/5 % institution Primary 16,262 18,977 20,636 Public 12,730 14,637 15,690 Private 3,532 21.27 4,340 22.86 4,946 23.96 College 1,426 1,596 1,855 Public 752 801 875 Private 674 47.25 795 49.81 980 52.83 High School 331 336 415 Public 108 106 114 Private 223 67.37 226 87.85 301 72.53 Source: MESR Statistics services 99 529. From 2002 and 2006, 80 licences were granted to private professional and technical training institutions. 530. As at now there are over 29 private higher education institutions licensed by the State, and opened by a Ministerial order. g- Vulnerable groups. 531. In Madagascar, the children of immigrants, foreign nationals as well linguistic, racial, and religious minorities shall enjoy the same right to education as the children of Malagasy nationals. 532. In the case of children living with disabilities, their right to education is enshrined in law no 97-044 of 2nd February 1998 on persons with disabilities and application decree no 2001-162 of 21st February, 2001 stipulates in article 17: “Children and adolescents with disabilities shall enjoy a normal schooling in a normal school environment. If necessary and depending of the type and degree of severity of their disability, education in a specialised unit may be considered.” 533. To give effect to this law, the same decree provides for advanced training for specialised educators, re designing of schools, establishment of an assistance system, and the creation of specialised centres and authorises the use of typewriters or Braille machines during examinations. h- Specialised education centres 534. Madagascar has eleven (11) specialised education centres for disabled persons, one public and ten private. 535. To meet the educational needs of disabled children there is a need to mobilise adequate financial and human resources and for collective action especially from our international technical and financial partners. RIGHT TO A CULTURAL LIFE I. Constitutional and legislative measures 536. Concerning the right to cultural life, Madagascar ratified the African Cultural Charter by order no 76/038 of 10th November, 1976. 537. Further, the UNESCO Convention on the protection of diversity, cultural content, and artistic expression is in the ratification stage. 538. The Malagasy Constitution, in its article 26, paragraph 1, “recognises for all individuals the right to participate in the cultural life of the community, scientific progress and benefits thereof” and stipulates that “the State shall facilitate the 100 promotion and protection of the national cultural heritage and scientific, literary, and artistic production.” 539. The Malagasy State has enacted a law defining the National cultural policy for economic development, law no 2005-006 of 22nd August, 2005. 540. In a bid to promote cultural diversity, this law stipulates in article 2 “which defends the fundamental rights of all individuals to the recognition of his culture, identity, on condition he himself respects the rights of others, and also lays down the objectives, strategies, as well as the Government’s action plan for the promotion of culture.” II- Administrative measures 541. In explaining the principle of the above act, the Malagasy Government opines that Malagasy culture is a whole with a unique cultural identity which sets it apart from other countries but constitutes a treasure to be safeguarded. The Government rises up to the challenge by dovetailing the cultural identity and the expression of its diversities as key levers to the revival of a society characterised by good governance. 542. In this light, the Malagasy Government: • Promotes and helps in the organisation and promotion of “leading” cultural events at the provincial and regional levels; • Sets up Reading and Cultural activity Centres (CLAC) and Art Centres; • Undertakes promotion of libraries and museums, theatres, cinemas, and handicraft centres. • Rehabilitates important sites for trade; • Registers historic sites for inclusion on the list of world cultural heritage sites. III. Institutional infrastructure 543. The Ministry responsible for Culture and that responsible for Education are jointly charged with the promotion of culture and participation of all in culture. 544. The objective of the Culture Ministry is to safeguard Malagasy cultural heritage, to promote the development of arts and the promotion of Malagasy culture within the country and abroad. 545. The Ministry of Education mainstreams into its schools programmes traditional morals and significant cultural events in Malagasy customs. a- National Academy 101 546. To promote artistic creation, Madagascar has had an ‘Academie Nationale des Arts, Lettres et Sciences’ (National Arts, Literature and Sciences Academy) for over a century. 547. The provisions of decree 93-02 enable the Academy to set up and administer artistic, literary, historic or scientific institutions or activity or research centres. 548. The seat of this institution is in Antananarivo but there are regional academic centres made up of four sections including the science of arts and language and moral and political sciences. 549. Every year, the Malagasy Academy organises the “Malagasy language month” to promote the national language and culture. b- Information and Communication 550. The Malagasy State has a television channel and national radio station under the purview of the Ministry of Communications. These two entities strive to promote culture nationwide. 551. Madagascar also has print media establishments specialised in the promotion of the national culture and many associations and artistic groups involved in the promotion and protection of morals, values and traditional culture. c- Safeguarding and preservation of cultural heritage 552. According to article 4 of law no 048/2004 “the material and immaterial protection of the national heritage constitute a national priority”. 553. Thanks to the efforts of the Ministry of Culture, two historical sites, the Manjakamiadana and Ambohimanga Royal Palaces have been identified as world cultural heritage sites. d- Moral and cultural instruction. 554. The main concepts of the traditional morals and values as well as Malagasy cultural events are taught at all levels of education. 555. Cultural and artistic training are free. 556. The Malagasy State has a National Academy for Music and Dance (CNEMD) and several private associations and institutions which are engaged in teaching music, dance, kabary (traditional speech), theatre, traditional games and plastic arts. 102 ARTICLE 18 1. The family shall be the natural unit and basis of society. It shall be protected by the State which shall take care of its physical and moral health. 2. The State shall have the duty to assist the family which is the custodian of morals and traditional values recognized by the community. 3. The State shall ensure the elimination of every discrimination against women and also ensure the protection of the rights of women and the child as stipulated in international declarations and conventions. 4. The aged and the disabled shall also have the right to special measures of protection in keeping with their physical or moral needs. I. The family is the natural unit and basis of society. It shall be protected by the State which shall take care of its physical and moral health. 557. The protection of the family is enshrined in the Malagasy Constitution. Article 17 states that: “The State shall make provision for the exercise of the rights which guarantee any individual integrity and dignity of his person, physical, intellectual and moral development to the full.” 558. Article 20 of this Constitution further stipulates that: “the family, the natural unit and basis of society shall be protected by the State. Any individual shall have the right to start a family and to bequeath his personal assets as an inheritance. ” 559. Article 19 specifies that: “the State shall recognise and make provision for any individual to exercise the right to the protection of his health from conception.” 560. At the legislative level, order 62-089 of 1st October, 1962 relating to marriage governs the conditions of matrimony. 561. Man and wife shall have equal rights to enter into a marriage when they reach 18 years, the legal age of consent. 562. However, a child may enter into a marriage without being over 18 years old should his mother and father or the person who has the authority by custom or law to give out his/her hand in marriage so decide. 563. Furthermore, on serious grounds, the President of the Court officiating at the wedding may grant a dispensation for a seventeen year old male minor and a female minor aged fourteen years to marry in conformity with order 62-089 relating to matrimony. 564. It is noteworthy that a reform was conducted to establish the legal age of consent once and for all, in conformity with the international conventions to which Madagascar is a party such as the Convention on the elimination of all forms of Discrimination against women (CEDAW) and the Convention on the Rights of the Child. (CRC) 565. In Madagascar there are two sorts of marriage recognised by law: legal and customary marriages. A Registrar shall officiate over legal marriages. 566. Customary marriages are conducted after the traditional formalities are done. 103 567. A representative of the authorities shall draft minutes confirming that the traditional ceremonies have been held in accordance with the provisions of the Decree. The minutes shall be evidence thereof unless a challenge is lodged. 568. The couple shall each be given a copy of the minutes signed by the prospective bride groom and bride, their parents, witnesses and the representative of the Authorities. 569. The representative of the Authority shall give the Registrar a copy of the minutes within twelve days on pain of a fine ranging from 400 Ariary to 30,000 Ariary inclusive and a maximum ten day prison term as stipulated in article 472 of the Penal Code. 570. The Registrar shall prepare the marriage certificate immediately on the face of the minutes and the documents presented to him either by the bride groom or by the representative of the authority. 571. At the time of registering the marriage, the couple shall be given an official family record book free of charge. 572. The marriage shall not injure the legal capacity of the couple. 573. In accordance with article 62 of order no 62-089 of 1st October, 1962 relating to Marriage: “the couple shall jointly accept through mere marriage the obligation to feed, care for, raise and educate their children”. II- The State shall have the duty to assist the family which is the custodian of morals and traditional values recognized by the community. 574. Civic education and moral instruction are part of the syllabus of the Ministry of Education and Scientific Research. (MENRES) at the primary and secondary levels. 575. Furthermore, the public and private media (radio, television and written press) help organise sensitisation programmes for the communities on civics through periodic broadcasts. III- The State shall ensure the elimination of every discrimination against women and also ensure the protection of the rights of women and the child as stipulated in international declarations and conventions. 576. As a State Party to the CEDAW, Madagascar is striving to undertake constitutional, legislative and regulatory measures, and has adopted a policy aimed at the progressive elimination of discrimination against women in all areas including respect for human rights and fundamental freedoms. 577. The protocol ratification process of the Additional Protocol on the Elimination of all Forms of Discrimination against Women as well as the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women is on-going. 578. As regards policies, according to article 6 paragraph 2 of the Constitution, all nationals of the two genders shall enjoy civil and political rights under the conditions laid down by law. 104 579. In the light of the other areas enumerated in article 1 of the CEDAW, especially in the economic, social and cultural fields, article 22 of the revised Constitution states: “The State shall undertake to take the necessary measures to ensure the intellectual development of all individuals with no limitations whatsoever except their respective aptitudes.” 580. Article 26 states: “All individuals shall have the right to participate in the cultural life of the community and to scientific process and the benefits thereof.” IV. The aged and the disabled shall also have the right to special measures of protection in keeping with their physical or moral needs. 581. The objective of law no 97-044 of 2nd February 1998 and its application decree no 162-2001 of 21st February 2001 concerning disabled persons is to guarantee all disabled persons the recognition, enjoyment and exercise for themselves or any other person of all the rights recognised for all citizens without distinction. 582. Disabled persons shall enjoy and exercise either personally or through a third party all the rights enshrined for all citizens in the international Conventions ratified by the Republic of Madagascar, in the Declaration on the Rights of Disabled Persons proclaimed at the General Assembly of the Organisation of the United Nations and by the Constitution. 583. According to Article 5 of decree 2001-162: “disabled persons shall have the right to special measures of protection in keeping with their material and psychological needs.” 584. Article 6 stipulates that: “disabled persons shall enjoy their rights fully in their interactions with other members of the society.” 585. Article 7 for its part stipulates that: “the right to health is inherent in the human person.” All disabled persons shall have the right to enjoy optimal physical, mental, and sensory health.” 586. Article 17: “Disabled children and adolescents shall undergo normal education within the normal schooling system, Should the need arise, and based on the type and degree of severity of their disability education in a specialised centre may be considered.” 587. Article 22 states: “All disabled persons shall have the right to decent surroundings in keeping with their condition.” 588. Article 26 states: “Appointment into the civil service through entrance exams organised by the State and any other public grouping is governed by the aptitude of the candidates to meet the existing material conditions.” 589. In order to give effect to these rights, the Malagasy Government through the Ministry of Population gives a lot of prominence to the eradication of social discrimination based on disabilities afflicting part of the population. Among other actions targeted at the disabled the Ministry strives to: 105 • Study and apply a socio-judicial guarantee system for disabled; • Facilitate their re-adaptation on a communal basis; • Lend material support to groups of young disabled persons in order to facilitate their social reintegration; • Rehabilitate structures responsible for young disabled persons; • Provide professional training for disabled groups • Early detection of potential disabilities in children aged zero to eight years old. 106 ARTICLE 19- Equality of peoples’ rights. All peoples shall be equal; they shall enjoy the same respect and shall have the same rights. Nothing shall justify the domination of a people by another. I. Constitutional Principles 590. The revised Constitution of the Republic of Madagascar of 18 September, 1992 in its preamble sets forth: “The sovereign people of Madagascar are committed to the promotion and development of its legacy: a multi-cultural society respectful of the diversity, wealth and dynamism of its ethical, spiritual and socio-cultural values.......” 591. The Constitution in its preamble speaks of the development of the personality and identity of every Malagasy as a pivotal facet of sustainable and integrated development under the following conditions: • Preservation of peace and the spirit of solidarity to foster national unity in the implementation of a balanced and sound development at all levels; • Judicious and equitable management of natural resources for the development needs of human beings; • Protection against injustice, corruption, inequalities and discrimination in all its forms; • Separation and balance of powers exercised through a democratic processes; • The establishment of a Constitutional State wherein the Government and Governed are all subjected to the same legal standards within an independent legal system; • Respect and protection of freedoms and fundamental rights; • Effective decentralisation. 592. As was indicated in the last Madagascar report on the Convention on the Elimination of all forms of racial discrimination considered in Geneva from 2nd to 3rd August, 2004, in Madagascar, the rights of minorities such as migrants, refugees and persons of different national origins are all protected in the same way as for Malagasies. 593. The example given in this report was that several Members of Parliament enjoy Malagasy citizenship despite being of Indo-Pakistani, Chinese, Comorian, and French extraction. 594. Similarly, this socio-ethnic situation is reflected in the socio-political arena. 595. In effect, law 80-020 of 29th December 1989 stipulates in article 8, paragraph 2 that: “No political party or organisation shall continue to exist if its objectives tend directly and indirectly to jeopardise the unity of the nation or are underpinned by a segregationist platform based on ethnic, tribal, or denominational considerations.” The objective is to harmonise the operations of the different entities in existence. 107 Article 20 All peoples shall have the right to existence. They shall have the unquestionable and inalienable right to self-determination. They shall freely determine their political status and shall pursue their economic and social development according to the policy they have freely chosen. Colonized or oppressed peoples shall have the right to free themselves from the bonds of domination by resorting to any means recognized by the international community. All peoples shall have the right to the assistance of the State Parties to the present Charter in their liberation struggle against foreign domination, be it political, economic or cultural. I- Constitutional Prescriptions. 596. The new 1992 Constitution of the Republic of Madagascar revised in April 2007 in its article 6 stipulates as follows “Sovereignty belongs to the people, is the source of all power which is exercised through its representatives duly elected directly or indirectly or by referendum. No segment of society or individual shall lay claim to the exercise of sovereignty. ” 597. The duly voted 1992 Constitution is a result of a major popular movement from 1991 to 1992 which put an end to the socialist regime and ushered Madagascar onto the path to Democracy in the present sense of the word i.e. with a parliamentarian tendency. 598. The Constitution was amended twice, in 1995 and in 1998. The 1995 amendment was to do with the establishment of a semi-presidential regime and the strengthening of the powers of the President and his capacity to appoint the Prime Minister, not the Parliament. 599 The 1998 amendment essentially confirmed the principle of decentralisation through the establishment of new administrative structures comprising autonomous provinces, regions, communes, while perpetuating the Fokonolona which has always been the traditional grassroots socio-economic and political system of organising Malagasy society. 600. All the rights recognised by the Charter are enshrined in the Constitution under the title: “Social and cultural rights and duties”: • Right to exercise political rights; • Right to the protection of health as of conception; • Right to the protection of the family; • Free access to public education • The compulsory nature of primary education 108 • The right to equal access for all into the civil service • The right to a fair remuneration; • Press freedom; • Freedom of association; • The recognition of the right to strike • The recognition of individual property, security of capitals and investments. • The political neutrality of the Administration, armed forces, judiciary, teaching and education. II. Legislative measure e- On the structural level or administrative organisation 601. The administrative organisation is an illustration of the empowerment of all Malagasy citizens to give effect to the principle of self determination. At all levels, the principle of separation of powers between the executive and the legislative is evident. Furthermore, the freedom availed decentralised communities to implement projects bears testimony to their economic self-determination. The Fokontany and Commune 602. In the first instance, let us cite article 35 of the Constitution which states: “The Fokonolona is the base for development. The Fokonolona may take the appropriate measures to oppose any moves prone to destroy the environment, and to dispossess the ward of its lands, seize the areas traditionally earmarked for herds of cattle or its ritualistic heritage, as long as such measures do not go against the general interest and public order.” 603. At the base of the administrative organisation is the Fokontany which is an administrative sub division of the Commune. Decree no 2004-299 of 3rd March, 2004 lays down the mode of organisation, functioning, and responsibilities of the Fokontany. The residents of the Fokonotany make up the “Fokonolona.” Each Fokontany is under the direct supervision of the commune.” 604. Decree no 96-898 of 25th September, 1996, defining the responsibilities of the mayor, gives the mayor the position of Head of the communal administration. The Mayor appoints by decree the Head of the Fokontany and the Deputy Head(s) of Fokontany as the case may be. The latter shall be selected from a list of five names proposed by the members of the Fokonolana aged between 18 years and over to a general assembly sitting as a legislative organ, on the convocation of the Mayor, in accordance with article 5 of decree no 2004-299 of 3rd March, 2004. The Head of the Fokontany shall execute the decisions of the General Assembly. The Region 109 605. Pursuant to law no 2004- 001 dated 17th June, 2004 relating to the Regions, Regions shall be economic and social public bodies. They organise, boost, coordinate and harmonise the economic and social development of the area under their purview and are responsible for planning, land use management and the implementation of development programmes. 606. Regions are both decentralised territorial authorities and local units of administration. 607. As decentralised territorial authorities, these entities shall be endowed with a legal personality, financial independence and are freely administered by regional advisers appointed according to the conditions and modalities defined by the law and regulations. Members of Parliament shall be ex-officio members of the Regional Council. 608. As local government authorities, the Regions cover all the decentralised services of the State at the Regional level. 609. The Region shall be responsible for: Administration of its heritage; Establishment of a regional land development plan for regional, industrial, artisanal and commercial promotion; Erection and management of health, educational road and hydro-electrical infrastructure; Environmental management. 110 Article 21: Right of peoples to economic self-determination. 1. All peoples shall freely dispose of their wealth and natural resources. This right shall be exercised in the exclusive interest of the people. In no case shall a people be deprived of it. 2 In case of spoliation, the dispossessed people shall have the right to the lawful recovery of its property as well as to an adequate compensation. 3. The free disposal of wealth and natural resources shall be exercised without prejudice to the obligation of promoting international economic cooperation based on mutual respect, equitable exchange and the principles of international law. 4. State Parties to the present Charter shall individually and collectively exercise the right to free disposal of their wealth and natural resources with a view to strengthening African Unity and solidarity. 5. State Parties to the present Charter shall undertake to eliminate all forms of foreign exploitation particularly that practised by international monopolies so as to enable their peoples to fully benefit from the advantages derived from their national resources. 610. Madagascar’s economic history has been marked by the remarkable progress of an economic system led by a liberal system. I- Legislative prescriptions. 611- Measures have been taken to put in place competent organs to take care of the lives of the population. 612. Consequently, law 90-030 of 19th September, 1990 on the National Population Policy for Economic and Social Development (PNPDES) was formulated to give concrete expression to the National Population Programme (NPP), a policy which addresses the peoples’ problems, exacerbated as they are by the economic crisis besetting them since the 80s. 613. The objective of the 1996-2000 PNP is to control demographic growth components in order to achieve sustainable and balanced growth, ensure access to basic social services for urban and rural dwellers, protect vulnerable groups i.e. (children, youths, women, disabled persons, and destitute families,) promote community participation and social dialogue, combat poverty, promote internal resource mobilisation capacities for sustainable development. 614. Six sectors have been targeted : 111 • Health • Food/nutrition • Education • Employment • Migration/ housing/environment • Planning and institutional support. 615. This action is set forth in the December 1996 Economic Policy Framework Document (DCPE) of the Republic of Madagascar. This document prepared by the Government of the Republic of Madagascar in collaboration with the International Monetary Fund (IMF) and the World Bank (WB) highlights the fundamental socio-economic options of the Malagasy authorities to reverse the downward trend of standard of living and embark on the path to growth. 616. The Government has adopted a market economy system by ushering in a conducive socio-economic environment for the development of a private sector open to foreign investment, with the State withdrawing from the productive sector and espousing a more efficient poverty reduction programme. 617. In the wake of the DCPE (Economic Policy Framework Document), came the Poverty Reduction Strategy Paper (PRSP) spanning from 2003 to 2006. The document was the reference framework for all poverty reduction policies and activities. 618. The basis of the Strategy was to ensure all operational activities carried out within the framework of the different Government programmes were aimed at developing the economic, social, political and environmental resource, with the ultimate aim of alleviating poverty. 619. In 2006, Madagascar adopted a Plan called MAP (otherwise known as 2007-2012 Madagascar Plan of Action.) The aim was to make a quantum leap in the development process through a five-year plan which would mobilise all Malagasy peoples as well as international partners to strive for rapid growth and poverty reduction in order to develop the country in this era of globalisation, in line with the measures laid down in the Millennium Development Goals (MDGs). II Administrative measures 620. Under all these programmes formulated by the Malagasy authorities, concrete actions have been carried out. 621. The same applies to the main reforms adopted under the Structural Adjustment Programmes (SAP): • Budgetary reforms such as the application of the Value added tax (VAT) (1994- 2001), strengthening tax and customs administration (1997/2001). Civil service reform, (1996-2001), improved monitoring of budget implementation (2000); 112 • Reforms in the monetary and financial sector: such as privatisation of public banks (1996-1999), independence of the Central Bank. (1994). • Privatisation of public companies: o Establishment of legislative basis for privatisation; o Privatisation of State companies; • Foreign exchange and payment policies such as the liberalisation of current account transactions (1996). • Trade policy: • Liberalisation of production and marketing of farm produce (coffee, cloves, vanilla: 1987-2001) • Abolition of price control (1996); • Abolition of export taxes(1988); • Elimination of import restrictions and licences from 1988-2001 • Lowering regional taxes (1987-2001); 622. Thus, the Government adopted a development strategy based on the liberalisation of the economy, opening up to other countries, and involvement of the private sector and civil society. 623. Concerning the possibility to freely enjoy the proceeds of mining, a ministerial committee has been set up to regulate the requisite norms. 624. The same applies to fish products where measures are based on the provisions of the preamble of the 1992 Constitution which opines: “the judicious and equitable management of fish stocks to meet the development needs of human beings............” 625. Indeed, there is no basic discrimination in the progressive enjoyment of the rights enshrined in the Charter. 626. Madagascar has always benefitted from the financial and technical assistance of multi lateral, regional and bilateral donors. 627. The United Nations system, UNDP, FAO,WHO, UNICEF, WFP, UNCTAD UNFPA and the World Bank and many other organisations active in the different areas of development: African Union, ADB, COI, COMESA, SADC, the Western European countries, Asia, North America, Africa and the Indian Ocean also lend support to Madagascar. 628. These partnership mechanisms are based on cooperation agreements. For example: The cumulative effect of the Structural Adjustment programmes launched since 1985 led to a more open and market-oriented economy. To better articulate the structural 113 adjustment policy, a project entitled MAG/97/007 on “Governance and Public Policies for Sustainable Human Development in Madagascar” was launched for a three year period in collaboration with the United Nation Development Programme (UNDP). Article 22: Rights of people to economic, social and cultural development as well as equal enjoyment of the common heritage of mankind. 1. All peoples shall have the right to their economic, social and cultural development with due regard to their freedom and identity and in the equal enjoyment of the common heritage of mankind. 2. States shall have the duty, individually or collectively, to ensure the exercise of the right to development. I- Constitutional measures 629. The respect and protection of fundamental freedoms of individuals and communities are enshrined in the Malagasy Constitution. 630. Article 26 paragraph 2 of the Constitution: “The State shall guarantee the promotion and protection of the natural cultural heritage as well as scientific, literary and artistic accomplishments in collaboration with the decentralised local government authorities.” 631. Article 9: “The exercise and the protection of individual rights and fundamental freedoms shall be ensured by the law.” 632. Article 34: “The State shall guarantee the right to individual property. Nobody shall be deprived of the latter except through expropriation in the interest of public need where a fair compensation shall be paid in advance.” 633. Article 33: “The State shall guarantee the freedom to engage in business on condition the general interest, public order, good morals and the environment are respected.” 634. Article 38: “The State shall guarantee the security of capital and investments,” II- Legislative measures 635. The Malagasy legislation recognises the right of citizens to individual property, 636. Law no 2005-019 of 17/10/2005 provides for the status of lands. 637. Decree no. 2005-111 of 02/03/2005 shall define the establishment of investment land banks. 114 638. Order no 9213.2005-111 of 02/13/2005 determines the establishment of the National Heritage Committee. 639. In the area of co-operation, law no 2004-043 of 14/01/2005 authorising the ratification of the agreement signed on 23/07/03 between the Government of the Republic of Madagascar and the Government of the Republic of France on the promotion and reciprocal protection of investments. 640. Decree no 2005 of 17/10/05 on the ratification of the agreement between the Government of the Republic of Madagascar and the Government of the Republic of France on the promotion and reciprocal protection of investments. 641. Law no 2005-001 of 2/08/05 authorising the ratification of the agreement signed on 06/04/04 between the Government of the Republic of Madagascar and the government of Mauritius pertaining to the promotion and reciprocal protection of investments. 642. Decree 2005-5009 of 02/08/05 provides for the ratification of the agreement signed between the Republic of Madagascar and the Republic of Mauritius pertaining to the promotion and reciprocal protection of investments. 115 ARTICLE 23 1. All peoples shall have the right to national and international peace and security. The principles of solidarity and friendly relations implicitly affirmed by the Charter of the United Nations and reaffirmed by that of the Organisation of African Unity shall govern relations between States. 2. For the purpose of strengthening peace, solidarity and friendly relations, State Parties to the present Charter shall ensure that: a) any individual enjoying the right of asylum under Article 12 of the present Charter shall not engage in subversive activities against his country of origin or any other State Party to the present Charter; b) their territories shall not be used as bases for subversive or terrorist activities against the people of any other State Party to the present Charter. I- On the national plane. 643. The Malagasy Constitution recognises the right of every individual to freedom and security of his person. 644. In its preamble, the Constitution sets forth that: “the preservation of peace and the spirit of solidarity as a sign of the necessity to preserve national unity, in the implementation of a balanced and harmonious national development policy at all levels.” 645. In line with the spirit of the Charter, all individuals shall be informed of the grounds for their arrest and shall receive notification of any charges brought against him at the earliest convenience. 646. Law no 97-036 of 30th October, 1997 compels the investigator to notify the suspect of the grounds for his arrest and the crimes he is accused of. 647. Efforts have been made to fast track the processing of cases involving detention to try the delinquents within a reasonable period both at Antananarivo and in the provinces. 648. All physical or moral infringements laid down in article 114 of the Penal Code shall henceforth be considered as punishable criminal offences under Malagasy law. 649. It shall be incumbent on all to guarantee security within the Nation. 650. Chapter 1 title II volume III deals with crimes and offences against particulars whereas section II chapter I title I volume III of the Penal Code deals with crimes against State security. 651. Protection of the population deals with civil defence and military defence. 652. Article I of law no 94-018 of 28th September 1995 on the general organisation of defence in Madagascar stipulates that: “The objective of said defence is to provide at 116 all times, under all circumstances, and against all forms of aggression, territorial security, safeguard the national heritage and protect the population whose material, intellectual, and moral capacities to resist it seeks to develop.” 653. Three entities provide security within the country: National Gendarmerie, Police, and Armed Forces. 654. The National Gendarmerie provides rural security while the National Police provides security in the urban areas and the armed forces deal with the protection of the Nation against foreign invasion. 655. Law no 96-029 of 6th December, 1998, on the General Status of the Military stipulates in article 2 that :”the Armed Forces are at the service of the Nation. They are expected to use force to: • provide at all times, under all circumstances, and against all forms of aggression, territorial security, safeguard the national heritage and protect the population whose material, intellectual, and moral capacities to resist it seeks to develop. • Preserve the life, integrity and potentials of the Nation.” 656. There is close corporation between these three entities: decree no 84-056 of 8th February, 1984 establishing a Joint Conception Organism stipulates in article 1 that: “there shall be instituted at the national level and that of the decentralised local government authorities, a joint conception organism and a joint operations headquarters at all levels responsible, pursuant to the laws and regulations in force for the protection of public security as well as public, economic and social order.” I- At the international level. 657. Madagascar is a party to several conventions and international, multi-lateral and bilateral co-operation agreements. 658. Further, in the fight against international crime, Madagascar is a member of the International Criminal Police Organisation (Interpol). 659. As a member of the African Centre for Research on Terrorism, Madagascar is involved in activities aimed at stemming subversive or terrorist activities against the citizens of any other State Party to the present Charter and other international conventions. 660. At this level, a Central Counter-Terrorism Department was established within the National Police Force. 661. Madagascar is party to 13 Counter-terrorism Conventions. 117 Table 19 Status: ratification of multilateral conventions International instruments Status of Date of ratification ratification Convention on offences and other acts perpetuated on board Yes 2 December, aircrafts (1963) 1969 Status: 179 Parties Convention on the suppression of unlawful capture of Yes 18th aircraft (The Hague, 1970) November, 1986 Status: 178 Parties Yes 18 November, 1986 Convention on the suppression of unlawful acts perpetrated against the security of Civil Aviation (Montreal) Status: 180 Parties Yes 24th September, Convention on the prevention and suppression of offences 2003 against persons enjoying international protection, including diplomats (New York, 1973) Status: 157 Parties 118 Yes 24th September, International Convention against hostage taking (New York, 2003 1979 ) Status: 150 Parties Yes 28 October, 2003 Convention on the physical protection of nuclear products (Vienna, 1979) Status: 112 Parties Protocol on the suppression of unlawful acts against the Yes 30 March, safety of International Civil aviation (Montreal, 1988) 1998 Status: 149 Parties No Convention on the suppression of unlawful acts against the safety of maritime navigation (Rome 1988) Status: 121 Parties No Protocol for the suppression of unlawful acts against the safety of platforms situated on the continental shelf (Rome, 1988) Status: 110 Parties 119 Convention on the marking of plastic explosives for the Yes 23rd purposes of detection (Montreal 1991) December, 2003 Status: 115 Parties International Instruments Status Date of ratification Ratification International Convention on the suppression of terrorist Yes 24 September, bombing attacks. (New York 1997) 2003 Status: 140 Parties International convention on the suppression of the funding Yes 2005 of terrorism (New York 1999) Status: 138 Parties United Nations Convention against organised transnational Yes 2005 criminality (New York, 15th November, 2000) Status: 107 Parties Protocol aimed at preventing, suppressing and punishing 120 trafficking in human beings especially women and children Yes 2005 (New York 15th November, 2000) Status 87 Parties Protocol against the unlawful trafficking of migrants by No land, air and sea (New York, 15th November, 2000) Status: 78 Parties No Protocol against the fabrication, and unlawful trafficking of firearms, spare parts and ammunitions (New York 31 May 2001) Status: 43 Parties Yes 22 September, 2004 United Nations Convention against corruption (New York 2003) Status: 29 Parties Law no. 2004-011 of 28 July, 2004 authorising the ratification of the Convention establishing the African Gendarmerie Organisation 121 Convention on the elimination of Mercenarism in Africa, Yes 30 August, signed by Madagascar on 17th march, 2004 during the 2005 Ordinary Session of the Executive Council of The African Union, in Addis Ababa Status: 179 Parties Law no. 2004-002 of 24th June 2004 authorising the ratification of the protocol establishing the Peace and Security Council of the African Union Yes 24th June, 2004 662. The Republic of Madagascar has already ratified the twelve universal instruments against terrorism and is in the process of domesticating them in the national legislation. 663. At the bilateral level, solidarity and friendly relations in the area of security are translated into concrete action through the signing of Framework Agreements for Cooperation between the Republic of Madagascar and other African countries such as Gabon; 664. Furthermore, Madagascar participates in different peace keeping missions in different African countries within the ambit of the African Union and United Nations interventions in Burundi, Cote D’Ivoire, Congo, Comoros, and Haiti for example. 122 ARTICLE 24: Right of people to a satisfactory and global environment All peoples shall have the right to a general satisfactory environment favourable to their development. I- Constitutional prescriptions. 665. The Constitution of Madagascar in its preamble highlights the sheer riches of the Nation. 666. In this light, article 35 of the Constitution sets forth that: “the “Fokonolana” may take appropriate steps to counter any activities detrimental to the environment, likely to dispossess them of their lands, seize pastures traditionally allocated to herds of cattle or their ritual heritage without such steps undermining the general interest and public order.” 667. Article 67 in turn lays down that: “All individuals must respect cultural values, public property and the environment. The State and decentralised local government authorities shall provide protection, conservation, and environmental development through the appropriate means.” II- Legislative prescriptions 668. To give effect to this constitutional prescription, laws and regulations have been put in place. 669. The Malagasy Environmental Charter sets forth the general principles and provisions which translate into operational terms the national environmental policy within the context of the global development of Madagascar. 670, The Charter’s points of reference are: human beings, land and underground, ecosystems and endemism. 671. Law no 90-033 of 21st December, 1990 on the Malagasy Environmental Charter defines in its article 2 the environment as all the natural and artificial environments including human environments and socio-cultural factors which touch on national development. 672. Article 3 of this law confirms the primary concern of the State as regards the environment, and article 4 states: “The protection and respect of the environment are in the interest of all. It is incumbent on all to protect the surroundings they live in.” 673. To this effect, all physical and moral persons shall be in a position to receive information on decisions which could impact somewhat on the environment, directly or through groupings or associations. Such persons shall also be able to participate in the decision-making process. 123 674. According to Article 6, the primary objective is to make people feel at peace within their surroundings to achieve sustainable development. 675. Thus, the Government’s action plan in the area of environmental protection has the following objectives: • Human resources development; • Promotion of sustainable development through sound natural resource management practices; • Rehabilitation, conservation and management of the Malagasy biodiversity heritage; • Improvement of the living conditions of the rural and urban populations; • Maintaining a balance between population growth and resource development; • Assistance in settling land disputes. The DURBAN Conference 676. The adoption of the following texts by Government attests to the importance of the environment protection policy in Madagascar. • Law no 2004-037 authorising the ratification of the 1973 International Convention for the prevention of pollution by ships (MARPOL 73/78) and its annexes. • Law no 2004-019 implementing the international conventions governing marine and coastal environmental protection against pollution from oil dumping; • Law no 2004-008 authorising the ratification of the Rotterdam Convention on the Prior Informed Consent (PIC) Procedure for certain hazardous chemicals and pesticides in international trade. • Law no 2003-032 authorising the ratification of the Protocol to the Cartagena Convention on the prevention of bio-technological risks under the Convention on biological diversity; • Law no 2003-012 authorising the membership of Madagascar to the 1979 Convention on the physical protection of nuclear products; • Law no 2003-009 authorising the ratification of the Kyoto protocol to the United Nations Framework agreement on climate change; • Law no 99-021 of 19-08-99 on the management and monitoring policy for industrial pollution; • Law no 97-017 revising the forestry laws; • Law no 96-025 of 30th September, 1996 relating to the local management of renewable natural resources; • Law no. 95-035 on organisations charged with urban sanitation and royalties; • Law no. 2001-005 of 11/02/03 on the management code for protected areas; • Order no. 86-013 on phytosanitary legislation; • Decree no. 2005-013 organising the application of law no. 2001 of 11 February 2003 on the Management code for protected areas; 124 • Decree no. 2004-994 on the establishment, organisation, and operations of the body to combat marine oil pollution incidents “O.L.E.P”; • Decree no. 2004-842 establishing and organising the Coordination Unit of the Environmental Programme (CELCO); • Decree no. 2004-771 ratifying the Rotterdam Convention on Prior Informed Consent (PIC) Procedure for certain hazardous chemicals and pesticides in international trade.; • Decree 2004-167 modifying certain provisions of decree no. 99-954 of 15th December, 1999 relating to the environmental friendliness of investments; • Decree 2003-1157 endorsing the Initial National Communication within the framework of the United Nations Framework Convention on Climate Change ; • Decree no.2003-1095 ratifying the Cartagena Convention on the prevention of bio-technological risks under the Convention on biological diversity; • Decree no. 2003-984 adopting the National Biodiversity Sustainable Management Strategy; • Decree no. 2003-909 ratifying the Kyoto Protocol to the United Nations Framework Convention on Climate Change; • Decree no. 2003-439 establishing an environmental unit within each Ministry; • Decree no. 2000-027 of 13/01/2000 pertaining to grassroots communities responsible for local management of renewable natural resources; • Decree no. 2000-028 of 13/01/2000 relating to environmental mediators; • Decree no. 99-954 of 15/12/99 making investments environmentally friendly; • Decree no. 98-610 on modalities for the implementation of land security • Decree 99-798 biological and pest control agents • Decree 99-022 PADR elaboration process • Decree 97-1200 Malagasy forestry policy • Decree 62-253 Phytosanitary convention for South Africa • Decree 21/10/1924 pertaining to dangerous, unhealthy and uncomfortable establishments in Madagascar • Order 6830-2001 modalities and procedures for public participation in assessment; • Order 7802-2000 types of permit PRE, R, E, AERP; • Order 4355-97 defining and delineating sensitive areas; • Ministerial order no. 12032/2000 regulating the mining sector and environmental protection; • Order no. 9334/99 of 10th September, 1999 on the renewal of accreditation of a monitoring and licensing body in the area of biological agriculture; 677. The environment is not the business of the Government alone. Consequently, article 7 of the Environmental Charter stipulates that “the environment shall be co-managed by the State, decentralised local government authorities, duly constituted non- government authorities, economic operators as well as citizens.” 125 ANNEXURE Provisions of the Penal Code 678. Article (Ord. 72-051 of 26.12.72) “Any public officer within the administrative and judicial cadre, any police officer, commander or officer of the law enforcement authority who while acting in his said capacity enters the residence of a citizen forcibly, excepting in the cases provided for by the law and in the absence of the formalities laid down by the latter, shall be punishable by imprisonment for a term of six months to five years and a fine of 25,000 to 150,000francs without prejudice to the application of the second paragraph of article 114; Any individual who enters the residence of a citizen using false pretences, assault or duress shall be penalised in the same manner. 679. Article 187. “where a civil servant or public officer, administrator, Government officer or civil servant executor of a warrant or judgements, a commander in chief or under the command of the police force, without any legitimate reason uses force or engineers the use of force, on individuals in the execution of his duties shall be punished according to the nature and severity of the violence, and the sentenced shall be increased based on the rule contained in article 198 hereunder. ” 680. Article 187- “Any suppression, tampering with mail in the post committed or facilitated by a civil servant or an officer of the Government or post office, shall be liable to a fine of 25,000 to 150,000 francs and a prison term ranging from three months to five years. Further, the culprit shall be prohibited from holding public office for five years at least and ten years at most. Apart from the cases provided for in paragraph one of the present article, any suppression, tampering with mail addressed to third parties , committed in bad faith shall be punishable by imprisonment for a six-day to one-year term , and a fine of 25,000 to 150,000 francs or either of the two penalties. 681. Article 75. “Shall be guilty of treason and punishable by death: 1. Any Malagasy who takes up arms against the Republic of Madagascar; 2. Any Malagasy who shares intelligence with a foreign power to enable the latter mete out hostilities on Madagascar, or provide them the means either by facilitating entry for foreign troops onto Malagasy territory, either by undermining the loyalty of the army navy or air force, or in any other manner; 3. Any Malagasy who hands over to a foreign power or its agents, either Malagasy troops, territory, cities, fortresses, structures, post offices, shops, arsenals, materials, munitions, vessels, aircraft and aviation equipment belonging to the Madagascar or any countries under the control of Madagascar.” 126 4. Any Malagasy who in times of war entices soldiers or sailors to swear allegiance to a foreign power, connives with the latter to that end, or recruits persons on behalf of a power at war with Madagascar. 5. Any Malagasy who in times of war shares intelligence with a foreign power or its agents to aid and abet said power in its activities against Madagascar. 682- Article 76- “Shall be guilty of treason and punishable by death:” 1. Any Malagasy who provides a foreign power or its agents in any form whatsoever, and in any manner whatsoever, a national defence secret, or who acquires such a secret in any manner with the aim of handing it over to a foreign power or its agents; 2. Any Malagasy who destroys or voluntarily damages a vessel, an aircraft equipment, supplies, building, or facility likely to be used for national defence, or knowingly before or after the completion of the latter causes a malfunction to stop them from working and creates an accident; 3. Any Malagasy who knowingly participates in an attempt to demoralise the army or the nation in a bid to undermine national defence. However in times of peace, any Malagasy or foreigner found guilty of the following deeds shall be punishable by imprisonment: a. Voluntarily defective work in the manufacture of arms of war, where this defective work cannot cause accidents; b. Damage or voluntary destruction of equipment or supplies meant for national defence or used for the purposes of the latter; c. Violent obstruction of the movement of the equipment; d. Knowingly participating in an attempt to demoralise the army in a bid to undermine national defence. . Shall also be punished by imprisonment any wilful participation in acts perpetrated by a gang using brute force with the aim of and resulting in one of the crimes provided for in paragraphs a, b, c, of the present article, as well as the planning of such an action; 683. Article 296. Any murder committed with premeditation or by luring victims into an ambush shall be construed as assassination 684. Article 297 “Premeditation consists in a plot hatched before the commission of the act of injuring a person or given individual or even those who are found or met even where this plot is contingent on given circumstances and conditions” 685. Article 298: “Laying in wait for a victim means waiting for some time in one or several locations for an individual either to kill him or perpetrate acts of violence on his person.” 127 686, Article 299: “Shall be construed as patricide, murder of the legitimate, natural, or adoptive fathers and mothers, or any other legitimate descendant; 687. Article 300- “Infanticide shall be the murder or assassination of a new born baby.” 688. Article 301- “Shall be construed as poisoning any attempt on the life of person through the use of substances capable of leading to more or less instantaneous death irrespective of the manner in which these substances were used or administered or the consequences,” 689. Article 302- (Ord, 62-013 of 10/08/62).” Any person found guilty of assassination, patricide, and poisoning shall be punishable by death; The mother, the principal in the first degree or accomplice in the assassination or murder of her new-born baby, shall be sentenced to hard labour however, the same punishment shall not be meted out on her accomplices or co-conspirators.” 690. Article 316 of the Penal Code 691. Article 303 “shall be punished as guilty of assassination, all wrongdoers whatsoever their designation who, in the perpetration of their crimes, use torture or commit acts of barbarism.” 692. Article 304. “Murder shall be punishable by death should it be preceded, coupled with or followed by another crime. Murder shall be punishable by death where the objective is to prepare, facilitate, or carry out an offence or to help authors or their accomplices evade justice or guarantee the latter total impunity.” In any case, the person guilty of murder shall be sentenced to life in prison with hard labour.” 693. Article 381. (Law 69-013 of 16/12/69) “Shall be punishable by the death penalty any individual or individuals guilty of robbery, where such culprits or one of them was openly or covertly in possession of a weapon, even where the robbery is committed by a single person in broad daylight. The punishment shall be the same even where the culprits or one of them had a weapon in a motor vehicle which transported them to the scene of the crime or was used for their getaway.” 694. Article 344- “In each of these two cases: 1. Should the arrest be carried out under false pretences, under a false name or using a false order from the public authority 2. Should an individual be arrested, detained or confined illegally or receive death threats, the culprits shall be sentenced to life in prison with hard labour; 128 3. However, the sentence shall be death where the arrested, detained or illegally confined individuals were subjected to corporal torture. 129
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