United States Department of State, U.S. Department of State Country Report on Human Rights Practices 1993 - Madagascar, 30 January 1994, available at: http://www.refworld.org/docid/3ae6aa5110.html [accessed 10 March 2014]
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Albert Zafy became President of Madagascar in March after defeating incumbent President Didier Ratsiraka in a runoff election determined by international observers to have been generally free and democratic. Legislative elections followed in June, and the new National Assembly, representing a spectrum of political parties, convened in August to choose Francisque Ravony, Vice Prime Minister of the previous unelected transitional government, as Prime Minister. Ravony's Government took over from the transitional government, led by Guy Willy Razanamasy, which was formed in late 1991 following mass protests against incumbent President Didier Ratsiraka who had ruled for 16 years. Like the political system, the security forces have been going through a period of transition. Mixed commands of military, gendarmerie, and the national police are now responsible for internal security and are under civilian control. During the year, the army slowly assimilated the 1,800-man Presidential Security Guard, which had been loyal to ex-President Ratsiraka and responsible for some violence aimed at upsetting the electoral process in 1992. In April mixed commands, acting under orders from President Zafy and then-Vice Prime Minister Ravony, intervened in Antsiranana (Diego Suarez) to round up more than 90 extremists, notably arresting several army officers accused of involvement with "Federalists" (Ratsiraka's supporters). On June 1, a similar group of combined security forces successfully expelled Federalist militants who had taken over provincial administration buildings in Toliara (Tulear). There were no reports of physical mistreatment of detainees by the security forces. Despite some political and economic reforms, living standards have deteriorated in recent years. The economy remains highly dependent on agriculture, and the long-run prospects for traditional export products such as vanilla and coffee are not encouraging. The outlook for tourism, manufacturing, mining, and fishing is more positive, but to date these activities have played a relatively minor role in the economy. Smuggling of vanilla, gold, precious stones, and cattle is of growing concern. Unemployment and underemployment are serious problems in Madagascar, especially among the young (about 60 percent of the population is under age 25). The human rights situation improved with the holding of two free and fair elections and the installation of a new President, a new National Assembly, and a new Government. Citizens freely exercised freedoms of speech, press, and assembly, although there remained some self-censorship by the media. Despite this progress, there were a number of human rights abuses, notably in the extrajudicial actions by the pro-Ratsiraka militants in seizing administrative buildings in Toliara, which resulted in at least two deaths. Other violence between Federalists and pro-Zafy militants (Active Forces or Forces Vives) in Diego Suarez Province in March and April also left a small number dead. Other abuses centered on ineffective law enforcement, which resulted in increased vigilante extrajudicial actions, including summary executions, and on the weak and overburdened judicial system in which the accused, primarily because of long delays, often do not receive due process.
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 killings by government forces. However, there were extrajudicial killings in the politically motivated violence between Federalist and Active Force supporters in the north (Antsiranana) and south (Toliara) coastal areas. Tensions between these two groups were high in the context of the presidential election campaign which pitted Albert Zafy against Didier Ratsiraka. In these two areas especially, the supply and availability of illegal firearms helped spark violence and lawlessness. Victims of physical and material damage were usually known political activists. Political militants, thugs, and organized criminals no doubt used the cover of political unrest to settle personal scores in some cases. In restoring order in Antsiranana and Toliara provinces, government forces did not use excessive force and reportedly detained those arrested in humane conditions. In March gendarmes killed two unarmed German scientists who apparently were suspected of poaching at night in Garagantasy Forest Reserve near Mahajanga. A gendarme was also killed in the encounter, presumably accidently by his own men, and another German was seriously wounded. Investigation into the killings, while not conclusive, suggests the gendarmes used excessive force. Continued crime and inadequate law enforcement resulted in increased instances of civilian vigilantes taking summary retribution against alleged criminals. In an effort to cope with rising insecurity in the countryside, the President and transitional government officials encouraged the use of village-level mutual security pacts, known as "dina," which are administered by local traditional leaders (see Section 1.e.). Officials attempted to conform dina punishments to codified law but failed to prevent some extrajudicial executions of suspects who were not allowed adequate defense or due process rights. The Government's investigation into the killing of more than 30 demonstrators by guards at then-President Ratsiraka's Iavoloha Palace on August 10, 1991, was still pending at year's end, and no arrests or convictions had resulted. Nor had there been an official report on the shooting by soldiers on March 31, 1992, at the National Forum (Constitutional Convention) in Antananarivo which left six pro-Ratsiraka supporters dead.
There were no permanent disappearances in 1993 and no acknowledged cases of unsolved abductions or disappearances; however, unsubstantiated rumors and accusations of disappearances following the August 1991 confrontation at Iavoloha Palace persist. The Government is not actively investigating this case.
c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
The Constitution provides for the inviolability of the person. However, credible reports indicate that dina trials in remote areas used various ordeals, even torture, in determining guilt. Conditions in prisons are harsh and life threatening. The diet provided is inadequate, and family members must augment inmates' daily food rations, in some cases after bribing guards. Those prisoners without relatives in the prison vicinity sometimes go for days without food. Each prisoner has on average less than one square meter of space. Prisoners, estimated at 23,000, suffer a wide range of medical problems that are not routinely treated, including malnutrition, infections, malaria, and tuberculosis, which are exacerbated during the winter months. There have been an unknown number of deaths resulting from these conditions. Women in prison have suffered abuses, including rape, as inmates in unsegregated prison confinement. A number of children live in the prisons with their mothers, suffering the same deprivations, and some guards conspire with female inmates to promote prostitution. The Government permits prison visits by the International Committee of the Red Cross, the Malagasy Red Cross, and religious and charitable organizations. On at least one occasion, even the media were permitted access to prisons.
d. Arbitrary Arrest, Detention, or Exile
Legal safeguards against arbitrary arrest and detention are not always observed. According to the law, in a criminal case, the detainee must be charged or released within 3 days of arrest. An arrest warrant may be obtained but is not always required. Generally, defendants in criminal cases are charged formally within the specified time frame and, upon being charged, are allowed to obtain an attorney. Counsel is available, and court-appointed counsel is provided for indigents. Bail may be requested by the accused or by his attorney immediately after arrest, after being formally charged, or during the appeal process. Denial of bail may be appealed. The Penal Code provides for a determination of habeas corpus. Despite these legal provisions, 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. According to reliable estimates, around 60 percent of the prison population is 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. The Government held more than a dozen political and security detainees at year's end. At his inauguration in March, President Albert Zafy announced a general amnesty restoring all political and civil rights to prisoners or exiles condemned for political reasons under the regime of Didier Ratsiraka. The sole beneficiary of this amnesty was Major Richard Andriamaholison who had been condemned in 1981 for plotting against Ratsiraka and was exiled to France in 1990. He returned to Madagascar in time to win a seat in the National Assembly in June.
e. Denial of Fair Public Trial
The Constitution adopted in 1992 provides for an independent judiciary, and, in practice, the judiciary seems to function without undue influence from the executive. However, excessive pretrial detention of the accused results in the denial of due process. To deal with this problem and purportedly to assure the independence of the judiciary from the executive and legislative branches, Prime Minister Ravony appointed a new Government in August which, for the first time since independence, had no Ministry of Justice. Instead, he created the position of a Minister responsible directly to him to act as a liaison with the judiciary. Trials are public, and defendants have the right to be present, 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 a number of special courts designed to handle specific kinds of cases 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, technically handle only civil matters within and between villages; in practice, the dina are used increasingly in criminal cases because of the practical inadequacies of the formal police and judicial systems. Decisions by dina are not subject to procedural protection of due process or to judicial review, and their authority depends upon a customary consensus to abide by their rulings. Punishments are severe, sometimes including capital punishment. Military courts have jurisdiction over most cases that the authorities judge as involving national security. It includes 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. In exceptional cases, civilians may be tried in the military courts if charged with breaking military laws. Military courts, like civilian courts, provide for an appeal process and are presided over by civilian magistrates. In September the Government prosecuted nearly 90 people, arrested in April for rebellion and lawlessness in Antsiranana, in civilian court in Antalaha (Antsiranana Province). As with similar cases in 1992, the Government tried them under criminal as opposed to security or treason statutes. The press complained of lack of access and information, but the authorities broadcast the proceedings over loudspeakers outside the limited confines of the courtroom (except for testimony involving 16 accused minors). Nine court-appointed lawyers defended the accused, and the court acquitted nearly 50 of the defendants and gave 19 others suspended sentences. The court sentenced one minor to 30 months in prison for his part in the killing and mutilation of an Active Forces activist. The court sentenced 20 Federalist and Active Forces extremists to prison terms ranging from 3 to 15 years. A dozen soldiers awaited trial for their role in the Antsiranana lawlessness. In the case of the 36 Federalists arrested in June when government security forces freed government buildings under Federalist occupation, they were charged with incitement to rebellion against the Government, illegal entry into and destruction of government and private properties, acts of violence, and illegal possession of weapons. They were tried in a civilian court in December in the town of Ihosy (Toliara province), and the trial was open to the public. Five lawyers defended the accused, and the court gave 1-year suspended sentences to 16 defendants, sentenced 2 defendants in absentia to 14 months' imprisonment, and acquitted 17. Eighty-year-old Monja Jaona, the leader of the Federalists in Toliara, was among those sentenced; he was promptly amnestied.
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, and there are reportedly few abuses. One case involved the arrest in June of two minors by a gendarme who was acting on behalf of a private individual without a court order. This case received extensive publicity, and the minors were released.
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 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 journalists, most of whom do not aggressively investigate stories or cite names, in part because Malagasy culture aspires to be nonconfrontational, and in part because they cannot count on being backed effectively by their editors and publishers. Journalists often use pen names to avoid identification. They publicized complaints after the Minister of Culture in the transitional government warned that it was not their business to investigate the extent and nature of property owned by government officials outside of Madagascar. State-owned Radio-Television (RTM), the most important means of reaching the public, continued to feature discussion programs and debates on political and other public policy subjects, and the political content of its newscasts was largely factual. National television, however, was exhorted by the Presidency to provide more complete and eulogistic coverage of President Zafy's public appearances. Television also broadcasts French network news live via satellite each evening. All films and video tapes shown in public must first be approved by the Interior Ministry, according to a law dating from the previous republic. Along with state radio, there are now at least five private radio stations. The private stations also cover political subjects and have sometimes been critical of the Government. 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 or endangers national security. Officially established security zones are off limits to demonstrators. The proliferation of political and nongovernmental organizations (NGO's) indicates a more relaxed attitude toward freedom of association. There are more than 60 political parties and 900 NGO's.
c. Freedom of Religion
The Constitution provides for freedom of religion. The Government is secular, and there is no discrimination on the basis of religious affiliation. Between 40 and 50 percent of the population adheres to Christian beliefs, with the remainder following traditional Malagasy beliefs, Islam, and other faiths. 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. 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 is no refugee population in Madagascar.
Section 3 Respect for Political Rights: The Right of Citizens to Change Their Government
Madagascar concluded more than 2 years of political transition, which was initiated by largely peaceful mass demonstrations against the previous regime of Didier Ratsiraka in 1991. In February citizens elected a new President by direct universal suffrage and secret ballot, and in March Albert Zafy began a 5-year term; he would be elgible to serve a second 5-year term, if reelected. The new President's primary constitutional responsibilities are national defense and foreign policy. Citizens also voted in June for a 138-member National Assembly, but despite strong media and other efforts to inform the public about the election and the complicated distribution of seats, voter turnout was only about 55 percent, considerably down from earlier nationwide ballots (constitutional referendum and presidential elections) held in the previous 10 months. The Constitutional High Court, which rules on all elections, nullified results for four assembly seats because of procedural irregularities and fraud. Special elections filled these four seats in September. In its first order of business, the National Assembly elected Francisque Ravony Prime Minister, who immediately formed a new Government after consultations with President Zafy. The Active Forces constitute a block of about 65 votes in the National Assembly. Most of the remaining members of the 138-member body have organized an alliance know as the group-of-6 (G-six). The Prime Minister and his Cabinet, not the President, executes legislation. The President and his Government, provided they act in concert, may dissolve the National Assembly. The National Assembly may pass a motion of censure and require the Prime Minister and his Government to step down. The Constitutional High Court must review the constitutionality of every law before it is promulgated. The selection of the Senate must await the formation of local governments in 1994 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. One cabinet position is held by a woman, and women hold only 6 percent of the legislative seats; in the judiciary they have somewhat 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. Nongovernmental human rights groups exist but are largely inactive. Although the new Constitution provides for the establishment of an independent organization charged with promoting and protecting human rights, none has yet been established. The Government did not penalize or repress anyone for criticizing its human rights record. It has been slow, however, to carry out investigations of salient cases of violence, notably the August 1991 killings at Iavoloha Palace. The Government is receptive to visits by international human rights groups. The International Committee of the Red Cross made periodic visits 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, 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 business concerns 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. In education, women's participation in secondary and higher studies is lower than that of men. Madagascar has a high literacy rate (88 percent for men, 73 percent for women). Under the law, wives have an equal say in choosing where a married couple will reside, and they receive a more or less equitable distribution of marital property in divorce cases. In the case of the death of a husband, a wife inherits one-half of the joint marital wealth. A widow receives a pension; however, a widower does not. According to various sources, including magistrates, journalists, and women doctors, violence against women, such as wife beating, 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. Women have been victims of rape in prisons.
There is no pattern of official or societal abuse against children. The Government's expenditures on children's welfare, even as a proportion of total budgetary resources available, is low. In a context of extreme poverty, schooling is often sacrificed so that children might work in farming chores, hawking newspapers, or begging. The U.N. Children's Fund and other children's advocacy groups are active, and there are Malagasy associations for the protection of children and youth which raise very modest contributions for child welfare projects.
Madagascar is inhabited by over 12 million people. The Malagasy are of mixed Malayo-Polynesian and African origins and are made up of 18 distinct groups based on regional and ancestral affiliation and some linguistic differences. None 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 can 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. Their shops have often been targets for violent attack during civil disturbances. While there were few such incidents in 1993, the Indo-Pakistanis remained a frequent target of mistrust and criticism.
People with Disabilities
Physically disabled individuals 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. Unions are required to register with the Government, and registration is routinely granted. However, the labor force of 4.9 million is mostly agrarian (80 percent), and unionized labor accounts for only about 5 percent of the total. 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 transitional government, in place for most of 1993, exercised very limited control over organized labor. The Labor Code and the new Constitution provide for the right to strike, even in export processing ("free trade") zones. Those providing essential services -police, firefighters, hospital workers have only a limited right to strike. There were occasional strikes in 1993, but none was officially declared illegal, and 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.
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 Appeals Court in 1993. The 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 are applied uniformly throughout the country, including in free trade zones. Labor inspectors 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 Labor Code and is not practiced.
d. Minimum Age for Employment of Children
The 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 Ministries of Civil Service, and 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 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 is a 44-hour workweek in nonagricultural and service industries. There are also provisions for holiday pay, sick and maternity leave, and insurance. There are several administratively determined minimum-wage rates in Madagascar, depending upon employment skills, starting with $23 a month (45,000 Malagasy francs) for unskilled workers. This wage is inadequate to ensure a decent standard of living, and such 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. The 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.