United States Department of State, U.S. Department of State Country Report on Human Rights Practices 1996 - Madagascar, 30 January 1997, available at: http://www.refworld.org/docid/3ae6aa2526.html [accessed 27 May 2015]
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Released by the Bureau of Democracy, Human Rights, and Labor, January 30, 1997 Madagascar completed its transition from 16 years of authoritarian Socialist rule with the free and fair election of Albert Zafy as President in 1993. Under the 1992 Constitution, power is divided between the President, the Prime Minister, and his Government and a bicameral legislature (Senate and National Assembly). A number of institutions provided for in the Constitution, including the Senate, an independent judiciary, and new courts that require Senate appointments, had not been established by year's end. Communal elections, the first step toward the creation of the Senate, were held in November 1995. Departmental and regional elections, which must also precede a Senate election, were postponed in July due to impeachment proceedings against President Zafy. His impeachment became effective in September, with Prime Minister Norbert Ratsirahonana becoming acting Head of State while retaining his post as Prime Minister. In December former president Didier Ratsiraka defeated Zafy in a runoff presidential election. The Ministry of National Police is responsible for law and order in urban areas. The Ministry of Armed Forces comprises the National Army, including army troops, air force, navy, and the gendarmerie. The gendarmerie has primary responsibility for security except in major cities, and is assisted in some areas by regular army units in operations against bandit gangs and cattle thieves. In August the Minister of Armed Forces issued a statement reiterating the armed forces' commitment to abide by the law as the impeachment struggle came to dominate national politics. The armed forces assiduously observed this order. Military force strength gradually declined to about 20,000 troops. There are also village-level law enforcement groups, or vigilance committees, known as dina. There were occasional reports that police and gendarmes committed human rights abuses, as did the dina. Madagascar is a very poor country. The economy relies heavily on agriculture; production of coffee and vanilla fell, but shrimp exports rose, and rice, the major staple, remained at near-sufficiency. Manufacturing in export processing facilities increased modestly. Smuggling of vanilla, gold, precious stones, and cattle continued to be major concerns. Overall economic performance stabilized, but three-fourths of the population of 14 million still live in poverty. Foreign assistance remains a major source of national income. Living standards are low, with per capita gross domestic product estimated at $250. Inflation was 49 percent in 1995, but fell rapidly in 1996. Unemployment, especially among youth, remained high. The Government plans to implement a program of economic reform and structural adjustment to foster a market economy. The human rights situation did not change significantly from 1995. There was little political violence, despite strikes, demonstrations, and heated political debate between the President and his opponents in the National Assembly. There were occasional reports of police brutality against criminal suspects and detainees, as well as instances of arbitrary arrest and detention. Prison conditions remained harsh and life threatening, and in some prisons women may experience physical abuse, including rape. The authorities took no action to relieve the overburdened judiciary. As a result, suspects were held in lengthy pretrial detention that often exceeded the maximum sentence for the alleged offense. Dina were responsible for summary justice in rural areas where the Government's presence was weak. Women continued to face societal discrimination.
Respect for Human Rights
Section 1 Respect for the Integrity of the Person, Including Freedom from:
a. Political and Other Extrajudicial Killing
There were no reports of political killings by government forces. However, harsh prison conditions and the authorities' failure to provide adequate food and medical treatment resulted in an unknown number of deaths in custody (see Section 1.c.). Village dina continued to mete out summary justice, including executions, to combat rising rural banditry. The Malagasy Young Lawyers Association reported more than a dozen executions following dina trials, usually for cattle theft. Mobs took violent action against suspected thieves in some areas, particularly major cities, resulting in injury or death. There were no developments in several pre-1996 incidents: The 1994 beating death of radio journalist Victor Randrianirina, who had allegedly reported on sapphire smuggling; several 1991-93 incidents in which security forces killed or injured unarmed civilians; the deaths of more than 30 demonstrators who were killed by then-President Ratsiraka's presidential guard at Iavoloha palace on August 10, 1991; or a March 31, 1992, incident in which soldiers killed 6 pro-Ratsiraka supporters at the National Forum (Constitutional Convention).
There were no reports of politically motivated disappearances.
c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
The Constitution specifically provides for the inviolability of the person. However, there were occasional reports that police or other security forces mistreated prisoners or detainees. There were rare instances of dina trials in which torture was used to elicit confessions. Prison conditions are harsh and life threatening. Prisoners' diets are inadequate, and family members must augment daily rations. Prisoners without relatives nearby sometimes go for days without food. Prison cells average less than 1 square meter of space per inmate. The authorities do not provide adequate medical care. The prison population of 20,000 suffers a range of medical problems that are rarely treated, including malnutrition, infections, malaria, and tuberculosis. These conditions have caused an unknown number of deaths. Women in prisons suffer abuses, as do the children who are sometimes confined with them. Gender segregation is not absolute, and some rapes were reported. The Government permits prison visits by the International Committee of the Red Cross, religious and nongovernmental organizations (NGO's), and a Malagasy legal association investigating excessive pretrial detention.
d. Arbitrary Arrest, Detention, or Exile
The Constitution provides for due process for accused persons, but in practice the authorities do not always observe legal safeguards against arbitrary arrest and detention. In particular, excessive investigative detention of suspects results in denial of due process. According to law, a criminal suspect must be charged, bound over, or released within 3 days of arrest. An arrest warrant may be obtained but is not always required. According to the Penal Code, defendants in ordinary criminal cases have the right to be informed of the charges against them, must be charged formally within the specified time permitted, and must be allowed access to an attorney. Court-appointed counsel is provided for indigent persons accused of crimes that carry a minimum 5-year jail sentence. An attorney or the accused may request bail immediately after arrest, after being formally charged, or during the appeal process, but it is rarely granted in the case of violent crimes. More than 70 percent of the estimated 20,000 persons in custody were in pretrial detention. Despite existing legal safeguards, investigative detention often exceeds 1 year, and 3 or 4 years of detention are common, even for crimes for which the maximum penalty may be 2 years or less. The accused may wait years in prison only to be ultimately exonerated in court. A Catholic NGO, Aumonerie Catholique, in partnership with the Young Lawyers' Association, pursued case reviews of a number of detainees. Although the law allows detainees to sue the Government for damages in cases of unlawful detention, no such suits were reported. By law, persons accused of subversive activity may be detained incommunicado for 15 days and are subject to indefinite detention if considered necessary by the Government; however, this law was not invoked during the year. The Government does not use forced exile.
e. Denial of Fair Public Trial
The Constitution provides for an independent judiciary; however, implementing legislation has not been passed. The establishment of a number of courts also provided for in the Constitution awaits the long-delayed inauguration of the Senate. The judiciary has three levels of jurisdiction: local courts for civil and criminal cases carrying limited fines and sentences; the Court of Appeals, which includes a criminal court for cases carrying sentences of 5 years or more; and the Supreme Court. The judiciary also includes courts designed to handle specific kinds of cases such as cattle theft. The High Constitutional Court is an autonomous court that undertakes technical reviews of laws, decrees, and ordinances, and certifies election results. While awaiting reform, the judiciary remained under the Ministry of Justice. Lack of internal controls and relatively low salaries for magistrates encourage corruption. With judicial reform stagnated, the pace of court proceedings has slowed and created a huge backlog, contributing to the problem of excessive investigative detention. Trials are public, and defendants have the right to an attorney, to be present at the trial, to confront witnesses, and to present evidence. Defendants enjoy a presumption of innocence under the Penal Code. The right of traditional village institutions to protect property and public order is codified in the Constitution as well as earlier laws. Dina adjudicate or arbitrate civil disputes within and between villages. Dina are also established in some urban areas. In practice dina increasingly deal with criminal cases because of increasing crime, the physical isolation of many rural areas, and the ineffectiveness of the police and the judiciary outside major centers. Dina punishments were at times severe and in some cases included capital punishment. In late 1995, the Government began to combat crime and insecurity in isolated rural regions by augmenting the gendarmerie traditionally responsible for law and order in rural areas with army units. In November 1994, the National Assembly formally recognized the role of dina in reducing crime when it passed legislation that gave dina verdicts the same weight as judgments by lower courts. This legislation also increased fines and the severity of prison sentences for those refusing to abide by dina decisions. However, the 1994 law remained under review by the High Constitutional Court and did not become effective. Decisions by dina are not subject to codified safeguards for the accused, but in some instances may be challenged at the appeals court level. Some cases have also been referred to the Office of the Mediator (ombudsman), which investigates and may seek redress from formal judicial authorities. Military courts are integrated into the civil judicial system, and differ only in the kinds of cases tried and in the inclusion of military officers on jury panels. Such courts have jurisdiction over some cases involving national security, including acts allegedly threatening the nation and its political leaders; invasion by foreign forces; and rioting that could lead to the overthrow of the Government. Defendants in military cases, as in civil law, enjoy an appeals process that reexamines points of law rather than the facts of the case. A civilian magistrate, usually joined on the bench by a panel of military officers, presides over military trials. There were no reports of political prisoners.
f. Arbitrary Interference with Privacy, Family, Home, or Correspondence
The Constitution prohibits such practices, government authorities generally respect these prohibitions, and violations are subject to effective legal sanction.
Section 2 Respect for Civil Liberties, Including:
a. Freedom of Speech and Press
The Constitution provides for freedom of the speech and of the press, and the Government respects these rights in practice. The press is independent, and the judiciary functions effectively in this area. Academic freedom is respected.
b. Freedom of Peaceful Assembly and Association
The Constitution provides for these rights, and the Government respects them in practice.
c. Freedom of Religion
The Constitution provides for freedom of religion, and the Government respects this right in practice.
d. Freedom of Movement Within the Country, Foreign Travel, Emigration, and Repatriation
The Constitution provides for these rights, and the Government respects them in practice. However, fear of crime effectively restricts travel to some places, especially at night. Malagasy and foreign residents require exit visas, but these are almost never refused unless the person is involved in legal proceedings. The Government generally cooperates closely with the United Nations High Commissioner for Refugees in processing the small number of refugees or asylum seekers. However, the Government has failed to resolve the status of approximately 127 Ethiopian asylum seekers who have been in Madagascar for several years. A group of approximately 40 Ethiopians staged a hunger strike from September 30 to October 6 to protest the Government's failure to recognize them as refugees. There were no reports of forced expulsion of those with recognized or pending claims to refugee status. The issue of the provision of first asylum has never arisen.
Section 3 Respect for Political Rights: The Right of Citizens to Change Their Government
Citizens have the right to change their government through direct universal suffrage and secret ballot. Albert Zafy was elected to a 5-year term as President in 1992 in the first election under the current constitution. In 1993 138 members of the National Assembly were elected for 4-year terms. Local government mayors and councils were elected in 1995. A referendum to amend the Constitution was also held in 1995. These by-elections were generally free and fair. Under the Constitution, the President has primary responsibility for national defense and foreign policy, while the Prime Minister is head of government and responsible for domestic policy. The President selects the Prime Minister under provisions of a 1995 referendum that amended the Constitution. The Prime Minister is appointed when a new National Assembly is elected every 4 years, or upon a vacancy. The Constitution gives the President, acting in conjunction with the Council of Ministers, the right to dissolve the National Assembly if there have been two governmental crises in the previous 18 months. The High Constitutional Court must rule that such crises have occurred. The Prime Minister is required to submit his resignation, as must the Cabinet, if a motion of censure is passed by a two-thirds majority of the National Assembly. Relations between the President and the National Assembly progressively deteriorated following the 1995 referendum in which the President acquired the right to name the Prime Minister. The President's insistence on the right to select political allies for several crucial ministries in the successor government of Prime Minister Ratsirahonana ultimately led to a motion of impeachment against him in July. In September the High Constitutional Court validated the National Assembly's vote. The Senate had not yet been created by year's end. Two-thirds of the Senate's members are to be selected by local, department, and regional government officials, while one-third of the members are to be appointed by the President. Although local government elections were held in November 1995, the departmental and regional elections scheduled for 1996 were postponed. There are no legal impediments to women's participation in government or politics, but in practice they are underrepresented in both areas. Only one ministerial post has been held by a woman in any one of the successive governments since 1992, and women hold only 6 percent of National Assembly seats. However, nearly half of the magistrates are women.
Section 4 Governmental Attitude Regarding International and Nongovernmental Investigation of Alleged Violations of Human Rights
A number of human rights groups operate without government restriction, investigating and publishing their findings on human rights cases. Government officials are usually cooperative and responsive to their views. The Constitution provides for an independent office to promote and protect human rights. In 1994 the National Assembly assigned that role to the Office of the Mediator (ombudsman), which relies on moral suasion to correct abuses. The Office publishes annual reports on its activities, and produced and distributed a series of brochures to educate citizens on their rights and responsibilities, outline the rights of women and children, and bring public attention to the potential for human rights violations by dina. The Government is open to visits by international human rights groups and to domestic and international election observers, although no foreign groups applied to observe any elections.
Section 5 Discrimination Based on Race, Sex, Religion, Disability, Language, or Social Status
The Constitution prohibits all forms of discrimination and outlaws groups that advocate ethnic or religious segregation. However, there are no government institutions that enforce these antidiscrimination provisions.
Violence against women is not widespread. Police and legal authorities intervene when physical abuse is reported. There is no law dealing specifically with violence against women except rape. Spouses can be tried for nonrape abuses, generally under civil law. There is societal discrimination against women. Such discrimination is less salient in urban areas where many women manage or own businesses or fill management positions in state industries. Under a 1990 law, wives have an equal voice in selecting the location of a married couple's residence, and they generally receive an equitable share of common property on divorce. Widows with children inherit half of joint marital property. A tradition known as "the customary third" is still observed in some areas. Under this custom, the wife has a right to only one-third of a couple's joint holdings. However, a widow receives a pension, while a widower does not.
While official expenditures on children's welfare are low, the Government has maintained spending levels of the ministries of Health and Education despite increasing fiscal austerity. However, these levels are not sufficient to maintain public services under current economic conditions. The Government provides education through the secondary or vocational level, and it is compulsory through the age of 14. In practice, however, attendance at primary schools is estimated to be about 70 percent. There is no societal pattern of abuse of children.
People with Disabilities
There is no systematic discrimination against disabled persons in employment, education, or in the provision of other state services. There is no law mandating access to buildings for people with disabilities. One NGO, Fondation Ikoriatsoa, has begun work on a draft law to define the rights of the disabled.
The Malagasy, who are of mixed Malayo-Polynesian, African, and Arab heritage, include 18 distinct groups differing in regional and ancestral affiliation. Although there are some linguistic differences, nearly all speak a dialect of the Malagasy language. None of these groups constitutes a majority of the population. A long history of military conquest and political consolidation raised the political and economic status of highland ethnic groups of Asian origin above that of coastal groups of more African ancestry. Centralized administration and economic planning since independence reinforced the concentration of economic and political power in the central highlands, where the capital is situated. These policies fed enduring tension between coastal and highland peoples. Ethnic, caste, and regional solidarity are often factors in hiring practices. An Indo-Pakistani community has resided in Madagascar since the early part of the century. This community, traditionally focused on commerce, now numbers about 20,000. Few of these individuals have made successful claims to Malagasy nationality, which is customarily acquired through a native-born Malagasy mother. Indo-Pakistanis are widely mistrusted. In past years, their shops have been looted and ransacked during civil disturbances.
Section 6 Worker Rights
a. The Right of Association
The Constitution and the 1995 Labor Code provide workers in the public and private sectors with the legal right to establish and join labor unions of their choosing without prior authorization. However, essential service workers, including police and military, may not form unions. Unions are required to register with the Government, and registration is routinely granted. About 80 percent of the labor force of 5 million is engaged in agrarian production. Union members account for only about 5 percent of the total labor force. There are a number of trade union federations, many affiliated with political parties. Neither public nor private sector unions have played a major political or economic role in recent years. The Government exercises very limited control over organized labor. The Labor Code and the Constitution include the right to strike, including in export processing ("free trade") zones (EPZ's). Workers in essential services have a recognized but restricted right to strike, although in practice short strikes took place without reprisal. The code requires workers to exhaust conciliation, mediation, and arbitration procedures before striking, but has not in practice been a significant deterrent to legal strikes. Strikes took place in virtually every major city as workers added their voice to the political struggle between the President and the National Assembly and protested declining incomes and poor economic conditions. Government workers and university students also called strikes to protest austerity measures. The ILO noted a number of instances in which the Government has failed to bring law and regulation into conformity with existing conventions or otherwise submit texts for ILO review, including those addressing forced labor, freedom of association, guarding of machinery, hygiene in commerce and offices, and weight limits. In most instances, these failures indicate legislative inertia rather than abuses. Unions freely join and participate in international bodies and may form federations or confederations.
b. The Right to Organize and Bargain Collectively
Both the Labor Code and the Constitution provide for the right to bargain collectively. The code states that collective bargaining may be undertaken between management and labor on the initiative of either party. Collective bargaining agreements are rare. The Government is often involved in the bargaining process, in part because of the large percentage of public employees who are union members. The Labor Code prohibits discrimination by employers against labor organizers, union members, and unions. In the event of antiunion activity, unions or their members may file a case against the employer in civil court. Labor laws apply uniformly throughout the country, including in the EPZ's. However, the Government's enforcement of labor laws and regulations is hampered by lack of staff and financial resources. The 27 Ministry of Labor inspectors visit industrial work sites with some regularity but most often those located near the capital. There are several EPZ's which are, in practice, firms operating under special import and export rules. Such firms are required to follow all pertinent labor law and regulation, including minimum wage laws.
c. Prohibition of Forced or Compulsory Labor
The Labor Code explicitly prohibits forced labor Code, and it is not practiced.
d. Minimum Age for Employment of Children
The Labor Code defines a child as any person under the age of 18 years. The legal minimum age of employment is 14 years, and work by individuals under the age of 18 is prohibited at sites where there is apparent and imminent danger. The Government enforces child labor laws in the small formal economic sector through inspectors of the Ministry of Civil Service, Labor, and Social Redressment. In the large agricultural sector, many young children work with parents on family farms at much younger ages. In urban areas, many children work as petty traders and beggars. Education is compulsory to the age of 14. In practice, however, only about 70 percent of children attend primary school.
e. Acceptable Conditions of Work
The Labor Code and implementing legislation prescribe working conditions and wages, which are enforced by the Ministry of Civil Service, Labor, and Social Redressment. The law makes separate provisions for agricultural and nonagricultural labor. The minimum wage is set by the Government. Other wages are set by employers with individual employees, sometimes below the standard minimum wage. When there is a failure to reach agreement, the Ministry of Labor convenes a Committee of Employment Inspectors to resolve the matter. If this process fails, the Committee refers the matter to the chairman of the Court of Appeals for final arbitration. No such cases reached the Court of Appeals during the year. The minimum wage is $30.50 (fmg 121.605) per month. This wage does not provide a decent living for a worker and family and must be supplemented by subsistence agriculture, petty trade, support from relatives, or employment of other family members. Minimum wage rates are not always respected, since high unemployment and widespread poverty lead workers to accept wages at lower levels. The standard legal workweek in nonagricultural and service industries is 40 hours, and 42 1/2 hours in agriculture. At least one 24-hour rest period each workweek is mandated. The Labor Code sets rules and standards for worker safety and work site sanitation. Ministry of Civil Service, Labor and Social Redressment officials monitor labor conditions. However, they are usually able to cover only the capital region effectively. If violators do not remedy cited violations within the time allowed, they may be legally sanctioned or assessed administrative penalties. In some sectors, safety equipment is not used due to the expense of protective clothing and other safety devices. There have been no published reports of occupational health hazards or accident trends. There is no explicit right for workers to leave dangerous workplaces without jeopardizing their employment.