The transition in Madagascar should learn the positive lessons from successful transitions such as those in South Africa, Namibia and Mozambique. The guidelines for the Madagascar transition should therefore include the following:
1) The transition must be designed in such a way that it can promote democratization and not entrench undemocratic principles and practices.
2) Any transition plan must guarantee a level playing field for all the political actors, and any attempt at excluding some of the participants on whatever pretence, will be fatally flawed.
3) The transition must lay the foundation for addressing the deep-seated causes of the political crisis, and cannot entail short-term cosmetic changes.
4) The transition in Madagascar cannot legitimize the 2009 coup or reward the coup leaders. The unconstitutional nature of the current regime cannot be legitimized.
5) The transition should include a plan for national reconciliation in all its many forms, and not be confined only to a few political and military members.
6) The criminal justice system and the security institutions must be fundamentally reformed and depoliticized. Militias and criminal groups used for intimidation must be eradicated.
7) The transition must be based on impartial and independent institutions. Their manipulation by some of the political actors will automatically undermine any chances for success in the transition.
After careful assessment of the proposed Roadmap, the following points are worth mentioning:
The Roadmap is endorsed by parties involved in the Malgacho-Malgache dialogue. No mentioning is made in any part of the document to the three main Mouvances (Ravalomanana, Zafy and Ratsiraka). They have been effectively excluded from the SADC dialogue since the Pretoria meeting in April 2010, and have therefore not been parties to the Roadmap. As a consequence, it is important to note that the parties involved in the dialogue and those who signed the Roadmap are all aligned to the Rajoelina group, and do not include representatives from any other significant political grouping. The only conclusion possible is that this is a unilateral dialogue similar to the efforts in South Africa before 1990 (such as the President’s Council and the KwaZulu Indaba) that did not enjoy any legitimacy.
In par. 3 the Roadmap states that Rajoelina must be the President of the Transition. This statement is one of the most serious flaws in the plan, for the following reasons:
- It exonerates Rajoelina from his unconstitutional coup;
- It denounces the OAU’s convention adopted in 2000 dealing with unconstitutional dispensations; and
- It rewards Rajoelina for his intransigence and unwillingness to implement the SADCmediated Maputo Accords and Additional Act of Addis Ababa, and his disregard for the Pretoria talks in May 2010.
One understands the rationale for a transition based on the incumbent President’s continuation during the transition after a conflict situation. But those Presidents were normally elected in terms of their constitutions (even if the elections were imperfect). The constitutional principle is still honoured in these instances. In other instances, unconstitutional military regimes promise an election and transfer of authority to a civilian government after a coup. In those instances the international community does not recognize them as legitimate rulers despite their intention to conduct elections.
The proposed Roadmap, however, wants to legitimize the Rajoelina regime by recognizing him as the President (par. 34) and by lifting the sanctions against his regime (par. 41). No precedent for such actions exists in the case of successful and credible transitions. SADC would in this case renege on all its values on constitutionalism and democratic governance by granting Rajoelina
the proposed status.
The unity government proposed in the Roadmap consists of a consensual Prime Minister and Ministers appointed by the President (Rajoelina). Both categories will be based on names suggested by the parties supporting the Roadmap – as explained earlier, all of them are supportive of Rajoelina. It means that the Government is not a power-sharing arrangement; it is not inclusive of a broad spectrum and therefore not building wide support for the transition, but representing only one of the political actors.
Special attention should be paid to the electoral commission – Independent National Electoral Commission (CENI). The experiences of elections recently held in Kenya, Zimbabwe, Sudan and Côte d’Ivoire can serve as pointers what to avoid and what to do. Regarding its composition, the Roadmap determines that only parties that support the Roadmap can submit nominations of
Commission members and they are appointed by the President. No neutral selection process is used, such as interviews by a parliamentary committee. Moreover, CENI will consist of party political representatives. Both arrangements will automatically compromise the Commission’s independence and increase the potential for electoral failure. One of the key constraints in the
Côte d’Ivoire election was that the two presidential contenders’ representatives on the 3 Commission made it impossible for impartial management of the election. Most successful IECs are small, consisting of 5-8 commissioners who a are not involved in any politics. Their appointments are done by parliaments while the Presidents appoint them officially but they report to Parliament and not to any executive institution.
In the ‘Electoral Framework’ reference is made to a Special Electoral Court (par. 11). Diverse electoral experiences have concluded that such a court should only deal with electoral disputes and should not proclaim the final results of the election. Contestation between the Electoral Commission and the Constitutional Council in Côte d’Ivoire was one of the key reasons for the current impasse in the country. A genuinely independent body (such as an IEC) must have the authority to declare the final results. The judiciary should only be involved in disputes. An addition consideration in the case of Madagascar is that since 2009 the judiciary has become too much compromised in the form of political court cases and new appointments made by Rajoelina, to be credible as the final authority on the election results. An illustration of this consideration in another context was the first, transitional election in 1993 in Cambodia that was managed by the UN, because the judiciary was too much compromised by Khmer Rouge influence.
An important component of any election is agreement about the conduct of the participants. The Roadmap refers to a Code of Ethics and Good Electoral Conduct (par. 13). The suggestion that civil society should enforce the Code is ill-conceived because it does not have statutory power to do so. Instead, its enforcement should be linked to a genuinely independent CENI who must be empowered with the sanctions that can force parties to comply with it. Otherwise the Code will only be a paper document with no significance.
Under the ‘Electoral Framework’ section one aspect is absent. It should entrench the right to participate in the elections. All persons must be able to stand as candidates and be voters. The return of the exiles well before the election dates should be included. No time limits or security qualifications should be allowed that will in effect make it impossible for some political actors to participate in the elections. There should also be no right to ban political parties to effectively prevent them from participating in the elections.
Under the ‘Confidence-building measures’ a blanket amnesty is proposed. The Roadmap does not address the matter sufficiently and does not include the areas that are relevant for a presidential pardon or indemnity. Amnesty is normally applicable to persons who committed a crime but who were not yet prosecuted and sentenced. It is therefore a guarantee against prosecution after disclosure of the relevant information. Blanket amnesty (like in Chile) is in most instances not internationally acceptable, because it exonerates personal responsibility.
Presidential pardon is normally for those already prosecuted and sentenced or for those with a criminal record. Pardon is meant as a start on a ‘clean slate’. An aspect not included in the Roadmap affects exiles who fear that on their return to Madagascar they will be arrested, and accordingly they are prevented from participating in the transition. In South Africa a form of indemnity was used to secure the exiles’ return in the early 1990s.
An aspect of the Roadmap that clearly demonstrates is partisan nature is par. 20 in which H.E. Marc Ravalomanana is confined to forced exile. This is a highly immoral suggestion which is meant to isolate one political leader and exclude him from the transition. It appears to be quite similar to Pres. Aristide’s forced exile.
No indication is given who will determine when the ‘favourable political and security conditions’ are indeed in existence. For convenience sake, the proposed disqualification can apply for an indefinite period. This provision on its own renders the Roadmap unacceptable. The relevant paragraph is silent about any guarantee that no elections (presidential and parliamentary) will be held before Presidents Ravalomana and Ratsiraka’s return to Madagascar. In other words, favourable political and security conditions must also be a precondition for elections. Otherwise no motivation will exist to improve those conditions.
Paragraph 20 is directly relevant for paragraphs 3 and 18. In par. 3 Rajoelina is exclusively granted the status of transitional President while par. 20 prevents any potential restoration of aspects of constitutional rule during the transition. (What does it otherwise mean that SADC and the AU still recognize Pres. Ravalomanana as the only constitutionally-elected President?) Both arrangements are legitimized by the Roadmap which is only supported by the Rajoelina-aligned political parties. Amnesty granted in par. 18 ostensibly includes amnesty to the ousted President to free him from the judicial judgments against him (which were condemned by the international judicial fraternity) as a magnanimous gesture of ‘goodwill’. But in return the implication is that H.E. Marc Ravalomanana must withdraw from all political activities (which was the original French proposal in 2010). Such deal-making is in principle unacceptable to me, is immoral and undermines any pretence of a new democratic beginning in Madagascar.
The proposed status of the Roadmap is that it must replace all previous agreements. The implication of this suggestion is that it directly negates the SADC agreements (2009) that were agreed to by the four Mouvances (Ravalomanana, Ratsiraka, Rajoelina, Zafy). The Mouvance Rajoelina was dissolved in 2010 and it now appears that the parties supporting the Roadmap and not the other three Mouvances. The implication is that replacing the SADC agreements with the Roadmap will be a unilateral action, because it is not supported by the main movements and they were also not involved in its drafting.
The Roadmap’s biased nature emerged also in the manner in which it deals with the transitional President. In par. 31 it suggests that the President should not be subject to impeachment. As a universal principle, a President should never be exempted from possible impeachment.
Impeachment is not about a President’s political performance or failure, but about a President’s respect for the Constitution. It is the only measure that can assure that a directly-elected President honours the Constitution – without impeachment a President will enjoy unchecked impunity, because it will suspend any form of the rule of law.
A final indication that the Roadmap does not create a level playing field for all the political participants is par. 43 that insists on sanctions against parties who violate the Roadmap, even those that did not support it. It can only be interpreted as a threat to the parties who are not yet supportive of the Roadmap to refrain from any criticism against it. It can also be understood as an effort to eliminate any political opposition against the Rajoelina regime. Opposition in any form can be presented as undermining the transition, and one of the sanctions would be to disqualify the party from the elections and other forms of political participation. The unilateral nature of the Roadmap and its support-base is therefore evident for anyone to witness.
Any transitional framework for Madagascar has to include a number of critical arrangements for it to be viable. It should provide guarantees to all political participants of -
- unimpaired access to the media
- the ability to mobilize support and campaign during the election periods
- no intimidation by criminal groups or militia
- the safe return of exiles and political leaders
- reform of the security forces and the judiciary to depoliticize them and enhance their impartiality
- an international presence that will actively monitor adherence to human rights principles, including an end to politically-motivated detentions and judicial judgments.
The main shortcoming at present – and the Roadmap is a symptom of it – is that no genuine and representative multi-party talks are currently in the pipeline. The current internal dialogue should not be understood as an alternative for it, because it lacks popular legitimacy. Before this situation is not addressed, no transitional framework with the necessary legitimacy can emerge.
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