United States Department of State, U.S. Department of State Country Report on Human Rights Practices 1994 - Madagascar, 30 January 1995, available at: http://www.refworld.org/docid/3ae6aa458.html [accessed 13 March 2014]
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Madagascar's 2-year transition from the 16-year authoritarian Socialist rule of Didier Ratsiraka officially ended in 1993 with the fair election of Albert Zafy as President in February and the selection by the new National Assembly in August of Francisque Ravony as Prime Minister. Under the 1992 Constitution, power is divided between the President, the Prime Minister and his Government, and the National Assembly. The year was dominated by the failure of the new leadership to agree on the pace and scope of a coherent economic reform (structural adjustment) program in order to come to an agreement with the International Monetary Fund (IMF) and the World Bank. The Ravony Government's decision to devalue the Malagasy franc in May was an important step in the direction of an agreement. Absent appropriate accompanying measures, however, and with the printing of new money, the resulting inflation increased resistance to further structural adjustment measures. An impasse between opponents and advocates of the stuctural adjustment program led in July to a vote on a motion of censure against the Government in the National Assembly. The motion failed, but provoked, nonetheless, a cabinet reshuffle in August, and at year's end the leadership had still not agreed upon a firm course of action. The Government further increased civilian control over the military. Under the new leadership, mixed commands of military, gendarmerie, and the National Police are responsible for internal security. The Government did not reduce the overall size of the security forces but did change some of the key personnel in the 1,800-man Presidential Security Guard, which had been loyal to Ratsiraka and responsible for violence aimed at upsetting the electoral process in 1992. The intelligence wing, the Directorate General of Internal and External Investigations and Documentation (DGIDIE), reports to the President. There were occasional reports of police brutality of detainees in 1994, and village-level law enforcement arrangements known as "dina" were also responsible for some abuses. Living standards remained extremely low. The decision to float the exchange rate, effectively devaluing the Malagasy franc by 50 percent in May, and the excessive printing of money sharply reduced consumer buying power. The economy remains highly dependent on agriculture, and cash crops such as vanilla and coffee did relatively well. However, the major crop, rice, suffered a larger than usual shortfall because of extensive cyclone damage early in the year. Tourism, manufacturing, mining, and fishing had respectable performances, but these activities, so far, play a less important role in the economy. The smuggling of national resources, such as vanilla, gold, precious stones, and cattle, continued to be a major concern. Unemployment and underemployment also remained serious problems, especially among the young (about 60 percent of the population is under age 25). The human rights situation generally improved in 1994 with the absence of violence between "federalist" (pro-Ratsiraka) and "active forces" (pro-Zafy) militants that punctuated the previous several years. Citizens widely exercised freedoms of speech and assembly. The democratically elected National Assembly consolidated its new constitutional role and was a forum for public and wide-ranging debate. Over objections of the Government, the National Assembly voted in October to make the Office of the Mediator the official constitutional promoter and protector of human rights. Advances in press professionalism and in civic education also contributed to a wider awareness and public discussion of human rights issues. However, there continued to be human rights abuses, notably in the law enforcement and judicial systems. Traditional local law enforcement groups were responsible for at least two incidents of summary executions. In the overburdened formal court system, the accused continued to remain in prison for lengthy pretrial periods, often exceeding the maximum penalty for the alleged offense. Prison conditions are deplorable, and in some prisons women may experience physical abuse, including rape.
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 known political or extrajudicial killings by government forces. However, to combat rising crime, traditional law enforcement groups at the village level, known as dina, continued to mete out summary justice, including at least two summary executions (see Section 1.e.). For example, in October in the village of Ambalakely (province of Fianarantsoa), a dina posse forcibly seized, and reportedly executed a known thief who was in police custody for his latest alleged offense. In response, the Government arrested six members of the posse on manslaughter charges. At the end of the year, the posse members were being held pending trial. There was speculation that the beating death of radio journalist Victor Randrianirina in August was linked to Randrianirina's reporting on sapphire smuggling in Madagascar. The authorities continued to investigate but had not made any arrests by year's end. While ostensibly still pending, there has been no progress in the Government's investigation into serious 1991, 1992, and 1993 incidents in which Government security forces killed or injured unarmed civilians. At year's end, the Government had not released any official report or made arrests in a case involving the deaths of more than 30 demonstrators who were killed by then president Ratsiraka's guards at the Iavoloha palace on August 10, 1991. However, the Government named a formal commission in September to investigate this incident, and public hearings were planned for early 1995. There was no progress on an investigation into the March 31, 1992, shooting incident in which soldiers killed six pro-Ratsiraka supporters at the National Forum (constitutional convention). The Government had also not brought to trial 14 soldiers arrested in April 1993 for alleged involvement in politically motivated violence in Antsiranana; however, the Prime Minister publicly announced a trial was expected to start by Apri 1995.
There were no permanent disappearances in 1994 and no acknowledged cases of unsolved abductions or disappearances. The government commission named in September to investigate the 1991 incident at Iavoloha palace was, by year's end, seeking testimony related to disappearances in connection with the incident.
c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
The Constitution provides for the inviolability of the person; however, there were occasional reports of police or other forces mistreating prisoners or detainees. There were also isolated instances of dina trials using torture or other forced means to solicit confessions from criminal suspects. Suspected thieves are sometimes subject to summary mob retribution that occasionally results in severe injury or death. Government officials acknowledge that conditions in Malagasy prisons are harsh and potentially life-threatening. The diet provided is inadequate, and family members must augment inmates' daily food rations. Prisoners without relatives nearby sometimes go for days without food. Each prisoner has on average less than 1 square meter of space. The prison population, estimated at 25,000, suffer a wide range of medical problems that are not routinely treated, including malnutrition, infections, malaria, and tuberculosis. These conditions have caused an unknown number of deaths. Women in prison suffer abuses, as do the children who are sometimes confined with them. Gender segregation is not absolute, and there were some reported cases of rape. The Government permits prison visits by the International Committee of the Red Cross (ICRC), the Malagasy Red Cross, and religious and charitable organizations. The media also have access to prisons.
d. Arbitrary Arrest, Detention, or Exile
The Constitution provides for due process for accused persons, but in practice these rights are not always respected. Existing legal safeguards against arbitrary arrest and detention are frequently not observed. According to the law, in a criminal case the detainee must be charged, bound over, or released within 3 days after arrest. An arrest warrant may be obtained but is not always required. According to the Penal Code, which provides for the right of a person to be informed of the charges against him, defendants in ordinary criminal cases are to be charged formally within the specified time frame and, upon being charged, to be allowed to obtain an attorney. Court-appointed counsel is provided for indigents accused of crimes which carry a 5-year jail sentence. Bail may be requested by the accused or by his attorney immediately after arrest, after being formally charged, or during the appeal process, but it is rarely granted at any stage for violent crimes. Despite existing legal protections, the average pretrial detention time exceeds 1 year, and 3 or 4 years of detention is common, even for crimes for which the maximum penalty may be 2 years or less. Prisoners may wait years in prison only to be found not guilty, with no recourse. Nearly 65 percent of Madagascar's prisoners (i.e., 16,000) are in pretrial detention. By law, persons suspected of activity against the State may be detained incommunicado for 15 days, subject to indefinite extension if considered necessary by the Government; however, this provision is not used regularly.
e. Denial of Fair Public Trial
The Constitution adopted in 1992 provides for an independent judiciary, and the National Assembly was debating implementing legislation at year's end. Meanwhile, the judiciary remains under the aegis of the Ministry of Justice; lack of internal controls and relatively low salaries for magistrates encourage corruption. Excessive pretrial detention of the accused results in the denial of due process. 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 judiciary has three levels of courts: lower courts for civil and criminal cases carrying limited fines and sentences; a Court of Appeals, which includes a criminal court for cases carrying sentences of 5 years or more; and a Supreme Court. The judiciary also has special courts designed to handle specific kinds of cases (e.g., cattle rustling) under the jurisdiction of the higher courts. A Constitutional High Court, with a separate and autonomous status, is a body for review of laws, decrees, and ordinances, and for certifying election results. Traditional institutions, known as dina, handle civil matters within and between villages; in practice, the dina are increasingly being used in some criminal cases because of the practical inadequacies of the formal police and judicial systems. Dina punishments can be severe, in some cases including capital punishment. In November the National Assembly, formally recognizing the role of the dina in reducing crime and insecurity in the countryside, adopted legislation giving dina verdicts the same weight as judgments handed down by lower courts and increasing fines and prison sentences to those refusing to abide by dina decisions. Decisions by dina are not subject to codified due process protections, but, according to the new legislation, they can be challenged at the appeals court level. Some cases have also been brought to the attention of the Office of the Mediator (Ombudsman) which investigates and seeks redress from formal judicial authorities. Military courts have some jurisdiction over cases involving national security, such as acts constituting a threat to the nation and its political leaders, invasion by foreign forces, and riots that could lead to overthrow of the Government. Military courts, like civilian courts, provide for an appeal, or cassation, process to reexamine interpretations of law rather than the facts of the case. They are presided over by a civilian magistrate who is joined on the bench by military officers. Approximately 25 political prisoners convicted for their roles in federalist versus active forces troubles in Antsiranana in late 1992 and early 1993 are still serving out their sentences.
f. Arbitrary Interference with Privacy, Family, Home, or Correspondence
The home is inviolable by tradition and law, and the State does not intervene in the private aspects of the lives of the people. The law requires judicially issued warrants to search houses, but there were reportedly some instances in which private citizens used police acquaintances to intimidate others without proper warrants. Telephones and correspondence are not monitored.
Section 2 Respect for Civil Liberties, Including:
a. Freedom of Speech and Press
The Constitution provides for freedom of expression, communication, and press and forbids press censorship; these provisions were largely respected. People generally speak freely, and debate in the National Assembly was open and lively. The print media openly criticized both the Government and the opposition. Opposition groups, trade unions, professional associations, and others have regular access to the press. There is still a legacy of self-censorship among certain journalists who fear reprisals from the Government or others for aggressive investigative reporting. Some journalists seek to avoid identification in their bylines, and the names of private citizens are rarely cited. Journalists employ these tactics in part because Malagasy culture aspires to be nonconfrontational, and in part because journalists cannot regularly count on effective backing by their editors and publishers. The situation improved somewhat, but many journalists lack professional training and experience, and resource constraints limit the effectiveness of the press. There is also a persistent reluctance by government officials and others to share information with the press. In May a court ordered the expulsion of a longtime resident, a French citizen, after she allegedly made slanderous public statements against the Malagasy people in an editorial letter published in a local newspaper. She appealed her expulsion to the official Ombudsman, was eventually expelled, despite having published a retraction as ordered by the courts, but was quietly allowed to return. State-owned radio-television (RTM), the most important means of reaching the public, continued to feature discussion programs and debates on topics of public policy, although it rarely included editorial comment. Malagasy television broadcasts French network news via satellite each evening. Along with state radio, there are at least five private radio stations in the capital city, and private radio stations in Fianarantsoa and Tamatave. The private stations cover political subjects and are sometimes critical of the Government. Although a law dating from the previous republic requires Ministry of Interior approval for films and videotapes shown in public, in practice this regulation is rarely enforced. There have been no reports of threats to academic freedom.
b. Freedom of Peaceful Assembly and Association
Some legal restrictions remain on the right of assembly and association. Municipal permits, usually granted, are required before holding public meetings but may be denied if government officials believe that the meeting poses a threat to the State, endangers national security, or significantly encumbers public thoroughfares. Officially established security zones are off-limits to demonstrators. The proliferation of political and nongovernmental organizations (NGO's) continues and is indicative of recent relaxations on free association rights. There are more than 60 political parties and some 900 NGO's.
c. Freedom of Religion
The Government does not infringe the constitutional right of freedom of religion. Missionaries and clergy are permitted to operate freely.
d. Freedom of Movement Within the Country, Foreign Travel, Emigration, and Repatriation
There is no formal restriction on travel within the country; however, domestic security concerns do effectively restrict travel in some places, especially at night. All Malagasy must obtain official approval for trips outside the country. All residents of Madagascar (Malagasy and foreign) require exit visas issued by the Ministry of Interior. There are approximately 70 Ethiopian refugees in Madagascar.
Section 3 Respect for Political Rights: The Right of Citizens to Change Their Government
In 1993 Madagascar concluded more than 2 years of political transition which were initiated by largely peaceful mass demonstrations against the previous regime of Didier Ratsiraka in 1991. Generally free and fair elections, by direct universal suffrage and secret ballot, elected Albert Zafy President in early 1993 to a 5-year term, renewable once. The new President's primary constitutional responsibilities are national defense and foreign policy. A general election was held in June 1993 for a 138-member National Assembly whose term is for 4 years. For the first time in Malagasy history, the National Assembly in July 1994 produced and voted on a motion of censure against a sitting government. In reaction, the 65 pro-Zafy active forces parliamentarians joined with defectors from the former majority alliance, known as the Group-of-6, to block the censure motion against the Government of Prime Minister Ravony. The Prime Minister and his Cabinet, not the President, execute legislation. A Prime Minister is elected by each new National Assembly every 4 years, or upon vacancy. The President and the Government, provided they act in concert, may dissolve the National Assembly. If the National Assembly passes a motion of censure, the Prime Minister and his Government are required to step down. The Constitutional High Court reviews the constitutionality of every law before it is promulgated. The selection of the Senate must await the formation of local governments in 1995 since two-thirds of the Senate will be elected by local legislatures, and one-third appointed by the President, all for 4-year terms. There are no legal restrictions against women participating in politics, but in practice men dominate the political process. One cabinet position is held by a woman, and women hold only 6 percent of the legislative seats; in the judiciary they have significantly higher representation.
Section 4 Governmental Attitude Regarding International and Nongovernmental Investigation of Alleged Violations of Human Rights
By law, human rights groups are considered to be political groups and must register with the Government. Some nongovernmental human rights groups exist and are increasingly active, for example in such issues as defending press freedoms. They have been joined by civic education organizations that have much the same agenda. The new Constitution provides for the establishment of an independent organization charged with promoting and protecting human rights. In October the National Assembly designated the Office of the Mediator--a kind of public ombudsman created by the transitional government before the institution of the Constitution--to assume that constitutional role. This action reversed an earlier decision by the Ravony government to abolish the Mediator on the grounds that it was redundant given the President's constitutional role as public arbiter vis-a-vis government administration. The power of the Office of the Mediator rests in moral suasion. The Office may publish its investigative findings but has yet to try to enlist public opinion in support of a particular cause. The Government did not penalize or repress anyone for criticizing its human rights record. While slow to carry out investigations of major cases of violence, notably the August 1991 killings at Iavoloha palace, the Government was, at year's end, actively addressing this particular case (see Section 1.a.). The Government is receptive to visits by international human rights groups, just as it was to the presence of international election observation groups during the four nationwide elections in 1992 and 1993. The ICRC made periodic visits again in 1994 and was regularly granted access to prisoners. United Nations organizations, including the International Labor Organization (ILO), operated freely and extensively in Madagascar.
Section 5 Discrimination Based on Race, Sex, Religion, Disability, Language, or Social Status
The Constitution prohibits all forms of discrimination and groups that advocate ethnic or religious segregation.
There is societal discrimination against women, although less so in urban areas where women have an important, if secondary, role in the business and economic life of the country, with many of them managing or owning businesses or filling management positions in state industries. However, women in rural areas face greater hardship, bearing the responsibilities of raising a family while also engaging in farm labor or other subsistence activities. Under the 1990 conjugal law, wives have an equal say in choosing where a married couple will reside, and they receive generally equitable distribution of marital property in instances of divorce. Widows inherit one-half of joint marital wealth. In practice, some parts of the island still observe a tradition known as "the customary third" whereby the wife has a right to only a third of a couple's joint holdings. However, a widow receives a pension, and a widower does not. According to various sources, including magistrates, journalists, and women doctors, violence against women is not widespread. In the rare cases where physical abuse is detected, police and legal authorities do intervene, although there is no law dealing specifically with violence against women, except in cases of rape. Spouses can be tried for nonrape abuses, but generally under civil law. Some women prisoners have been victims of rape.
There is no pattern of official or societal abuse against children. While official expenditures on children's welfare are relatively low, the Government has decided to maintain spending levels for the Ministries of Health and Education despite an overall climate of increasing budget austerity. These levels are insufficient, however, to halt the decline of public services in the high-inflation environment.
Madagascar is inhabited by over 12 million people. The Malagasy are of mixed Malayo-Indonesian and African origins and are made up of 18 distinct groups based on regional and ancestral affiliation. Although there are some linguistic differences among them, nearly all speak Malagasy, which is of Malayo-Polynesian origin. No one of these groups constitutes a majority of the population. Long-term historical processes of military conquest, ethnic domination, and political consolidation, however, have traditionally favored the political and economic status of highland ethnic groups of Asian origin over the coastal groups of more African descent. The centralized planned economy of the previous regime reinforced the concentration of economic and political power in the highland, capital area. This situation has contributed to ethnic tensions between the two groups. Ethnic or regional solidarity may also be a determining factor in hiring practices. An Indo-Pakistani community of about 20,000, primarily engaged in commerce, has been in Madagascar since the early part of this century. Few, however, have been able to obtain Malagasy citizenship, since it is customarily bestowed matrilineally through native Malagasy women. The Indo-Paskistanis are frequent targets of mistrust and criticism, and their shops have often been targets for violent attack during civil disturbances. In one such incident in the town of Antsirabe in January, mobs destroyed 10 Indo-Pakistani stores and a dozen residences. Three Malagasy died and several were wounded in the melee as police tried to restore order.
People with Disabilities
Physically disabled people are not subject to discrimination in education and in the provision of other state services, but nor are they the beneficiaries of special enabling or protecting legislation. The Government has not enacted legislation or otherwise provided for accessibility for the disabled.
Section 6 Worker Rights
a. The Right of Association
The Malagasy in both the public and private sectors have the right in law (the 1975 Labor Code and the 1992 Constitution) and in practice to establish and join labor unions of their own 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 agrarian. Unionized labor accounts for only about 5 percent of wage labor. There are a number of trade union federations, and many are affiliated with political parties. In practice, however, formal public and private sector unions have not played a major role politically or economically in recent years. The Government exercised very limited control over organized labor. The 1975 Labor Code and the new Constitution provide for the right to strike, even in export processing ("free trade") zones. Those providing essential services--police, fire fighters, hospital workers--have only a limited right to strike. In November the National Assembly voted to adopt a controversial new Labor Code which could have the practical effect of discouraging strikes and limiting collective bargaining. At year's end, the Constitutional High Court had not approved the new Code. There were occasional strikes in 1994, but none was officially declared illegal, including a taxi strike which barricaded roads in the capital city. Most were resolved by negotiations or by informal arbitration by high government officials, including the President. Laws and regulations prohibit retribution against strikers who adhere to legal procedures for striking. Unions and workers were not directly targeted for human rights abuses, nor was there any apparent retribution against strikers and leaders. Unions may and do freely affiliate with and participate in international bodies and may form federations or confederations. The Government of Madagascar is party to the ILO Conventions.
b. The Right to Organize and Bargain Collectively
Both the 1975 Labor Code and the 1992 Constitution provide for the right to bargain collectively. The Code states that collective bargaining may be undertaken between management and labor at either party's behest. Collective bargaining agreements exist but are not common, and the Government is often involved in the bargaining process, in part because of the large number of public sector employees in organized labor. The minimum wage is set by the Government. Other wages are set by the employers with individual employees, sometimes below the minimum wage. When there is a failure to reach agreement, the Ministry of Labor convenes a Committee of Employment Inspectors who attempt 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 in 1994. The 1975 Labor Code formally prohibits antiunion discrimination by employers against union members and organizers. In the case of antiunion activity, the union or its members may file a petition in civil court challenging the employer. Labor laws apply uniformly throughout the country, including in free trade zones. However, the Government has difficulty effectively enforcing labor laws and regulations due to lack of basic resources. Ministry of Labor inspectors, who number only 27, visit industrial work sites with some regularity, but mostly in the capital region.
c. Prohibition of Forced or Compulsory Labor
Forced labor is explicitly prohibited by the 1975 Labor Code and is not practiced.
d. Minimum Age for Employment of Children
The 1975 Labor Code describes a child as any person under the age of 18. The legal minimum age for employment is 14, and the use of child labor is prohibited in those areas where there is apparent and imminent danger. The Government tries to enforce these child labor laws in the small wage sector through inspectors from the Ministry of Labor and Social Security. However, in the large subsistence sector, many young children work with their parents on family farms at much earlier ages. Similarly, in the urban areas many children earn money hawking parking spaces, newspapers or other wares, and by carrying water and begging.
e. Acceptable Conditions of Work
The 1975 Labor Code and its enforcing legislation prescribe the working conditions and wage scales for employees, which are enforced by the Ministry of Labor and Social Security. The law distinguishes between agricultural and nonagricultural work. There are several administratively determined minimum-wage rates in Madagascar, depending upon employment skills, starting with $17 a month (63,000 Malagasy francs) for unskilled workers. This wage is inadequate to ensure a decent standard of living for a worker and family, and workers must supplement their incomes through subsistence agriculture, petty trade, or reliance on the extended family structure. Given insufficient enforcement measures, official wage rates are sometimes ignored as high unemployment and extreme poverty lead workers to accept salaries below the legal wage. There is a 44-hour workweek in nonagricultural and service industries. There are also provisions for holiday pay, sick and maternity leave, and insurance. The 1975 Labor Code has rules concerning building and operational safety, machinery and moving engines, lifting weight limits, and sanitation standards. Ministry of Labor and Social Security inspectors visit industrial work sites, and violations of Labor Code rules are subject to inspection reports. Lack of resources effectively inhibit inspectors traveling regularly beyond the capital region. If cited violations are not remedied within the specified time frame, the violators may be legally charged and subject to penalties. Nevertheless, in some sectors protective measures are lacking due to the expense of even minimal protective clothing and other protective devices. To date, there have been no published reports on occupational health hazards and accidents, although there is clear evidence that these hazards exist. There is no explicit right allowing workers to remove themselves from dangerous work without jeopardizing their continued employment. The ILO has cited the Government within the past year for failure to observe ILO conventions and standards in workplace safety and weight limits.