Human Rights Committee considers report of Madagascar

Human Rights Committee 

11 July 2017

The Human Rights Committee today concluded its consideration of the fourth periodic report of Madagascar on its implementation of the provisions of the International Covenant on Civil and Political Rights.

In his opening remarks, Charles Andriamiseza, Minister of Justice of Madagascar, noted that the implementation of human rights in Madagascar had been significantly influenced by the socio-political crisis of 2009, notably in the area of education, health and social protection.  Climate change and the El Nino phenomenon had aggravated the situation.  As for future projects, the Government was working on the implementation of the recommendations of the United Nations treaty bodies and special rapporteurs.  In line with its general policy and the National Development Plan, Madagascar had redoubled efforts to restore the rule of law and respect for human rights, as well as to combat corruption, in order to create a favourable environment for sustainable and inclusive development.  With the enactment of the new anti-corruption law, the Government had started recruiting judicial, administrative and technical staff in April 2017, and the Anti-Corruption Unit of Antananarivo would be established by the end of July 2017. 

In the ensuing discussion, Experts welcomed the re-establishment of the rule of law in the country after a five-year period of political unrest, which had begun in 2009, as well as the adoption of amendments to the Nationality Law and of laws on human trafficking. They remained concerned about the prevalence of mob justice and the involvement of law enforcement officials in some cases of extrajudicial killings.  Experts also inquired about the operationalization of the National Human Rights Commission, statelessness and transfer of Madagascar nationality, discrimination based on ethnicity and caste, maternal mortality and access to abortion, discrimination against women with respect to property, land and marriage, continued practice of early and forced marriages and of polygamy, definition of torture, forced and child labour, stigmatization of twins, independence of the judiciary and passive and active resistance to corruption investigations, legal safeguards for persons in detention, harmonization of the traditional dina courts and ordinary courts, limitations on freedom of assembly and expression, and human rights violations committed during the 2009-2013 political crisis.

In his concluding remarks, Mr. Andriamiseza expressed gratitude to the Committee Experts for their comments and remarks.  The dialogue provided the Government of Madagascar with an opportunity to study challenges in the implementation of Covenant provisions.  The Government would closely study the Committee’s concluding remarks.   

Concluding the meeting, Yuji Iwasawa, Chairman of the Committee, said that Experts had taken due note of the positive developments in Madagascar, such as amendments to the Nationality Law, and the openness of prisons to external observers.  However concerns included the independence of the National Human Rights Commission; discrimination against women with respect to property, land and marriage; lynching and mob justice; harmful traditional practices such as polygamy, early and forced marriages and discrimination against twins; human rights violations committed during the 2009-2013 political crisis; traditional justice and decisions issued by dina traditional courts; and forced and child labour. 

The delegation of Madagascar consisted of representatives from the Ministry of Justice, the Ministry of Internal Affairs and Decentralisation, the Ministry of Public Security, the Ministry of Public Administration, Labour and Social Affairs, the Ministry of Public Health, the Ministry of Employment, the Ministry of Youth and Sports, and the Permanent Mission of Madagascar to the United Nations Office at Geneva.

The Committee will next meet in public today at 3 p.m. to consider the initial report of Pakistan (CCPR/C/PAK/1).   

Report

The fourth periodic report of Madagascar can be read here: CCPR/C/MDG/4.

Presentation of the Report

CHARLES ANDRIAMISEZA, Minister of Justice of Madagascar, presented the progress made and the challenges encountered by Madagascar in the implementation of the Covenant provisions.  In 2003 the Government had set up an inter-ministerial committee tasked with the drafting of reports and collection of all human rights-related data.  With respect to the relationship with civil society, focal points had been established in each ministry, but they had been able to start their work only in 2011 due to the social and political crisis that began in 2009.  Significant progress had been made in terms of legislative and institutional reforms, and the adoption of policies, programmes and strategies for the implementation of the obligations under the Covenant.  A law authorizing the ratification of the International Convention on Mutual Legal Assistance and Extradition, a bilateral agreement between France and Madagascar on cooperation in legal assistance and extradition, had been adopted in 2016, whereas the ratification of the Optional Protocol to the Convention against Torture and the Second Optional Protocol to the International Covenant on Civil and Political Rights was under way.  With respect to legislative and institutional reforms, Madagascar had promulgated a law strengthening the protection of children, a law on judicial protection of minors, and a law stipulating reform of the Nationality Law.  In addition, the majority of members of the Supreme Court of Justice and of the Supreme Council for the Defence of Democracy and Rule of Law had been appointed.   As for the penitentiary administration, a law had been elaborated in partnership with the International Committee of the Red Cross to draw up penalties alternative to imprisonment.  In order to combat gender-based violence, the Ministry of Justice and the Ministry of Population had elaborated a law which was currently in the process of adoption.  As for the fight against trafficking in persons, the Government was cooperating with the International Organization for Migration to draft manuals on judicial procedures for victims of trafficking, and to strengthen public awareness campaigns.  The Ministry of Population had also set up a mechanism to protect victims of natural disasters, such as floods, hunger and drought.  In order to eradicate the problem of statelessness, workshops and a roundtable discussion had been held in 2016 and 2017.  The Government had also strengthened its legal arsenal with respect to the environment.

Speaking of difficulties, Mr. Andriamiseza noted that the implementation of human rights in Madagascar had been significantly influenced by the socio-political crisis of 2009, notably in the area of education, health and social protection.  Climate change and the El Nino phenomenon had aggravated the situation.  As for future projects, the Government was working on the implementation of the recommendations of the United Nations treaty bodies and special rapporteurs.  In line with the its general policy and the National Development Plan, Madagascar had redoubled its efforts to restore the rule of law and respect for human rights, as well as to combat corruption, in order to create a favourable environment for sustainable and inclusive development.  With the enactment of the new anti-corruption law, the Government had started recruiting judicial, administrative and technical staff in April 2017, and the Anti-Corruption Unit of Antananarivo would be established by the end of July 2017. 

Questions by Committee Experts

Experts welcomed the re-establishment of the rule of law after a five-year period of political unrest in Madagascar, which had begun in 2009.  It seemed that the Covenant could be invoked by all national courts and that it had supremacy over national laws.  What was the content of the national law to integrate the provisions of the Covenant?  Could the delegation provide specific examples of the invocation of the Covenant?  What follow-up measures had been taken by the authorities to implement the comments and conclusions made by the Committee?

What progress had been made in providing the National Human Rights Commission with the necessary human and financial resources?  How had the elections of civil society representatives to the Commission been organized?  Had budgetary resources actually been allocated to the Commission?  When would the accreditation procedure take place? 
What was the relationship between the High Council for the Defence of Democracy and the Rule of Law and the National Human Rights Commission?

As for the state of emergency, legislative provisions had been amended in order to be precise on derogations from the Covenant permitted in emergencies.  Had there been any initiatives since 2007 to bring into application the recommendations of the Human Rights Committee and to broaden the scope of derogations? 

With respect to non-discrimination and equality between men and women, a lot remained to be done to strengthen the participation and representation of women in economic, political and public life.  What concrete actions had been taken to that end?  What special temporary measures had been planned to strengthen the role of women in political and economic realms?  The gender pay gap remained substantial.  What measures had been taken to eliminate it?  The questions of statelessness and transfer of Madagascar nationality remained outstanding, as well as landownership and inheritance. 

The issue of discrimination based on ethnicity and caste still remained.  What measures had been taken to combat and prevent the stigmatization of and discrimination against HIV-positive  persons?  In light of national reconciliation policies and the establishment of the national fund for reparations, had any victims received compensation?  

What was the current status of the draft law on the abolition of the death penalty of 2014 and when would it be adopted?  What were the cases of extrajudicial executions in which the armed forces and police had been involved?  Thousands of civilians had lost their lives in the south of the country.  What measures had been taken to prevent mob justice and lynching?  What investigations and prosecutions had been carried out in that respect?

Experts asked about measures to improve access to sexual and reproductive health services, to ensure that women were properly informed about and had access to contraceptives, to prevent unwanted pregnancies, to promote sexual and reproductive health education for adolescents, and to reduce the maternal mortality rate?  There was no legal provision regarding access to abortion in Madagascar, and the national law stipulated five years of imprisonment for people carrying out abortion.  Abortion was only permitted in case of incest or rape, and in case of risk to the physical and mental health of the mother.   Some 16 per cent of maternal deaths were due to unsafe abortions.  

As for harmful traditional practices and violence against women, 65 per cent of women in Madagascar said they had suffered from gender-based violence.  It seemed that family violence and sexual violence were socially accepted and, therefore, cases of violence remained underreported.  Did the Government plan to adopt a law outlawing marital rape?  Did it intend to strengthen data collection on gender-based violence? 

Despite the law that set out 18 as the minimum age for marriage, early and forced marriage continued to be widely practiced and polygamy was not defined as a crime under the law.   Early marriage affected more than 50 per cent of girls.  There were concerns that women’s access to land and finance continued to be limited due to discriminatory traditional practices.  What had the Government been doing to dispel the belief that twins brought bad luck? 

The 2008 act on the prohibition of torture stipulated a definition of torture more or less in line with international standards.  However, it did not stipulate a range of penalties for other forms of ill-treatment.  What was the status of the reform of the Criminal Code?  Would the statute of limitation for the crime of torture be included?  Which measures had been taken to ensure that confessions extracted under duress were not used in criminal cases?  As for the allegations of ill-treatment during custody, there was no information available on complaints lodged, prosecutions, sanctions and punishments, and reparations provided.

Corporal punishment had been banned in schools, but there seemed to be no legislation prohibiting it at home or in prisons.  Did the State party intend to apply a broader ban of corporal punishment?  

Replies by the Delegation

CHARLES ANDRIAMISEZA, Minister of Justice of Madagascar, explained that in the case of police officers being tortured by a mob, the apprehended responsible persons had been investigated and prosecuted.   Inquiries into the 2009 events had led to some prosecutions, whereas amnesty had been given in some cases.  As for national reconciliation, compensation would be processed by the National Reconciliation Committee. 

According to the Constitution, all ratified international conventions and treaties held supremacy over domestic laws.  The Supreme Court ensured the verification of the application of those legal instruments.  The Government planned to draft a bill of law to ensure that all the provisions contained in international legal instruments were applied in an effective fashion at the national level.  All parties were able to invoke the Covenant.  The National School for Magistrates ensured that those working in the sphere were aware of the international treaties that were ratified. 

The President could proclaim a state of emergency and the martial law as needed, but only pending the approval of the Senate and the National Assembly, with surveillance by the Supreme Court. 

The National Human Rights Commission was operational.  Nonetheless, there had been problems of funding, which depended on the adoption of the decree of 2014.  The Commission was an independent body and the Government could not in any way interfere with its operation.  As for the election of civil society members of the Commission, elections had been held at the national and provincial levels.  All members of civil society were able to witness the counting of votes.  The High Council for the Defence of Democracy and the Rule of Law was established in 2010 to ensure good governance.  

The Nationality Code was amended in 2016, enabling women to hand down nationality to their children regardless of their matrimonial situation.  But the problem of discrimination still remained, leading to statelessness of women’s foreign husbands and adopted children.  As for inheritance, the 1968 law allowed cash arrangements for women instead of equal part of inheritance.  As it was not in line with the spirit of legislation today, that law was no longer applied by judges. 

Madagascar was clearly committed to stamping out gender-based discrimination.  The Constitution provided that all men and women were equal, regardless of race and wealth.  However, there were many laws that did not comply with that principle.  Drafts on gender quotas had been sent to Parliament, but broad consultation was needed with all stakeholders.  Awareness raising campaigns to eliminate gender-based discrimination were under way, in particular in remote areas of the country.  The Government was working with broadcasting companies to that end.  The law stated that all officials should receive equal pay for equal work.

Madagascar was currently depositing its ratification of the Second Optional Protocol to the International Covenant on Civil and Political Rights to the United Nations, and the death penalty was still on the law books even though it was not applied.  Extrajudicial executions in the south of the country took place within the context of dealing with rural gangs.  Following the operations of 2013, measures had been taken by three ministries in the domain of security to reintegrate the “Dahalo” (bandits) people in the society.  Law enforcement forces were indeed involved in some cases of extrajudicial executions and they had been prosecuted.  The delegation could not explain the widespread problem of mob justice and lynching.   

Complaints of gender-based violence had increased.  Many of the perpetrators had been dealt with.  As for the ill-treatment of children, there was a hot line to report cases of sexual violence against children.  A division on cyber-crime had been set up within police to fight sexual exploitation online.  The draft law on gender-based violence contained a provision on marital rape.  The Government was still struggling to collect all data on gender-based violence.  Assistance to women and children victims of different forms of violence was provided by three specialized centres.   

Some 80 per cent of women and children had benefitted from awareness-raising campaigns on sexual and reproductive health.  Abortion was made available in cases of emergency, such as rape.  HIV-positive persons were supported by relevant associations and institutions.   There was a trend of more tolerance vis-à-vis lesbian, gay, bisexual, transgender and intersex persons.

Polygamy in Madagascar was a custom and was accepted by the society.  There was no law sanctioning such a union. 

In 2016 the Government had drafted a bill on torture.  The reforms pursuant to that law would provide for penalties for different forms of ill-treatment.   The bill would criminalize torture and it would eliminate the statute of limitation of 20 years.  The setting up of an independent mechanism for the prevention of torture was under way.  The Amnesty Law did not apply in the case of torture. 

As for inhumane treatment in pre-trial detention, if it was used to extract confessions, criminal proceedings would be declared null and void.  Since 2011, a police inspection unit was responsible to investigate such cases. 

Corporal punishment of children in schools was strictly prohibited.       

Replies by the Delegation

CHARLES ANDRIAMISEZA, Minister of Justice of Madagascar, said that awareness-raising campaigns had been conducted to deal with the phenomenon of mob justice.  Persons responsible for incidents of mob justice had been brought to account.  There were no laws in Madagascar banning people from different castes from marrying.  Significant progress had been made on the issue of stigmatization of twins.  Mothers of twins were now able to live freely in the region of Mananjary. 

Accreditation of the National Human Rights Commission would begin when it was fully operational and when it had the necessary budget.  The High Council for the Defence of Democracy and the Rule of Law and the Commission worked together and the latter appointed a member of the Council.

Civil and political rights were enshrined in the Constitution and they could not be derogated.  The representative of the State had the competence in all judgments on marriage.  The Government would ensure that all types of marriage were given equal treatment.

As for women’s access to land, the Government had drafted a land policy in 2015 to ensure everyone’s right to shared land ownership.   Women’s participation in political and public life had increased and the mayor of Antananarivo was a woman.  That task still needed to be accomplished at the regional level.   

Madagascar did not yet have disaggregated data on torture, but the Ministry of Justice had made steps to collect such data.  A police officer had been prosecuted and convicted to five years in prison for torture.

There were no national statistics on abortion.  However, studies had been conducted on women’s access to contraceptives, which were often not sufficient.  Those practicing abortion were not qualified.  Ten women, out of which three were girls, died daily as a result of child birth.

On corporal punishment at home, the 2007 law contained provisions preventing the ill-treatment of children by parents and caretakers. 

All legal provisions on the principle of non-discrimination existed in Madagascar.  Belonging to an ethnic group or caste was not grounds for discrimination.

Follow-up Questions by Experts

What was the debate on the draft law on quotas for women’s participation in political life?  The delegation stated that women did not suffer from any salary discrimination in Madagascar, yet the State party’s report cited a 34 per cent gap.

Amnesty had been granted to some persons in cases related to the events of 2009-2011.  What kinds of sentences had been handed down?

On the Reconciliation Committee, how was it made up and how would its members be appointed? 

Did the State party intend to fully decriminalize abortion?

Not all issues concerning torture had been amended in the framework of the Criminal Code.  As for the events from January 2015 and the excessive use of force by law enforcement officials, had victims been granted redress? 

Second Round of Questions by Experts 

Experts noted some difficulties in the area of legal safeguards for persons in detention, namely in having a rapid access to legal counsel, particularly in distant regions of the country.  Detainees often did not know all of their rights.  The person arrested had to cover relevant costs.  Was there legal assistance in that regard?  What budget was allocated to police in that respect?  Prolonged and extended detentions were still being practiced.  What was the limit for detention and reasons for its extension?

What measures had been taken to ensure legal provisions for pre-trial detention?  The Human Rights Committee had in 2007 noted the case of a person in pre-trial detention since 1979.  The amendments to the Criminal Code had been introduced to ensure the exceptional nature of pre-trial detention.  It lasted for six months for correctional offences, and eight months for criminal offences.  The pre-trial detention for correctional offences could not exceed one year, whereas the pre-trial for criminal offences could not exceed 18 months.  Some 50 per cent of detainees were in pre-trial detention. 

Experts were concerned about the information received on the lack of trust in the independence of the judiciary and the potential undermining of the separation of powers.  There were doubts of impartiality in the management of certain cases.  Were there any plans to deal with the interference in the judiciary?  How was access for all to justice guaranteed?  What was the number of persons benefiting from legal assistance?  What was the average length of time considered reasonable for definitive resolution of legal cases?  Did the law on free legal assistance include criminal cases, particularly those involving minors?

How did the mechanism for the harmonization of the dina courts (traditional justice) and ordinary courts work?  Dina justice continued to be widely practiced in rural zones and it did not have additional checks.  Was there a plan to implement a national policy to bring justice closer to citizens?  What State actions had been implemented to counter the illegal use of dina courts?  There were reports of many cases where decisions had been made by dina courts for more serious cases, such as capital punishment.   

As for the treatment of persons deprived of their liberty, Experts recognized substantial improvements on the judicial level, as well as major efforts to make the prison environment open to observers, particular to the International Committee of the Red Cross.  The problem of prison overcrowding had not been solved and the prison population was virtually double the official capacity.  Those in pre-trial detention and prisoners were not separated.  The International Committee of the Red Cross noted problems with malnutrition, leading to deaths.  Bad prison conditions could lead to psychological distress of prisoners.  There was an absence of specific complaint mechanisms for prisoners, as well as channels of corruption.  Did the State party plan to improve the conditions of prisoners?

Madagascar did not yet have legislative provisions for asylum seekers and refugees.  The issue of statelessness was a real problem linked with the rule for the attribution of nationality.  Fully integrated migrants were set apart because of the rules on nationality.   What had been done to address that problem?

Corruption was directly linked to the protection of human rights.  The Government had passed several laws and regulations in order to counter that problem.  The Anti-Corruption Office had been set up to that end.  However, there seemed to be a difficulty to bring together all those efforts, as well as active and passive resistance.  Passive resistance meant that mechanisms were not successful in carrying out their work fully.  Active resistance presupposed political intervention to stop prosecutions.  There were mechanisms that required public officials to declare income.  What efforts could the Government take to curb passive and active resistance to corruption investigations?  

As for the elimination of slavery and servitude, many women and children were victims of trafficking and could be victims of domestic servitude and prostitution.  To combat trafficking in human beings, Madagascar had adopted a law, had elaborated a national plan of action, and had opened a national anti-trafficking office.  However, because those provisions had not been properly implemented, the flow of trafficked persons towards North Africa had not been stopped.  What were the reasons for the lack of implementation?  What investigations had been conducted, penalties handed down and reparations granted? 

Child labour and slavery, unfortunately, remained widespread in rural areas.  Children often worked in harsh and unhealthy conditions.  What was the reality of that problem?  What progress had been made in implementing relevant national strategies?  Did the State party intend to take all the necessary legal measures to stamp out that problem?  Did labour inspections and police have the necessary means to investigate cases of child labour and slavery? 

Several sources indicated that a high number of children had not been registered at birth, particularly in rural areas.  What measures had been made to address that problem?  As for statelessness, the nationality reform was a significant step forward.  What were measures planned for its implementation?  Would it be retroactively applied and would it cover adopted children?  Did the Government intend to open a bureau to look into statelessness issues? 

On participation in public affairs, Experts raised the issue of the respect for the electoral timetable, strengthening of the National Electoral Commission, delineation of electoral districts, and the participation of women and persons with disabilities in elections. 
What was the reason for the delay in the establishment of the National Reconciliation Committee?  Did the Government intend to review electoral boundaries to ensure greater equality between districts?  The low figures of women participating in elections seemed to be the result of the lack of laws encouraging women’s candidacies on an equal footing with men.  The participation of persons with disabilities in politics remained low as well. 

As for the freedom of assembly and association, and freedom of expression, Experts cited a number of cases where those freedoms had been violated by the Government.  Could the State party comment on those allegations?  There were also cases of arrests of human rights defenders and whistle blowers.  Another problematic aspect was the new version of the Communications Code adopted in 2016.  It continued to include disproportionate fines for defamation.  The law to fight cybercrime also contained disproportionate fines in the context of freedom of expression. 

Experts noted reports of frequent use of excessive force to disperse crowds in the country.  There were fairy systematic hindrances on the exercise of freedom of peaceful protest by political opponents.  What was the status of 43 dock workers who had been dismissed from their jobs because they had refused to leave their trade union? 

Did the State party plan to introduce legislation on asylum procedures?  How was it currently addressing the issue of non-refoulement? 

Replies by the Delegation

CHARLES ANDRIAMISEZA, Minister of Justice of Madagascar, explained that in order to demonstrate, organizers needed to ask for permission.  In cases when protesters used violence, assemblies had to be disbanded.  Madagascar politics were very intense and sometimes policies were not correctly applied. 

The delegation said that the Government had not yet been able to carry out the reform of the Criminal Code because it first had to repeal all obsolete laws.  Legal clinics fell outside the justice system and they regulated conflicts within communities and provided aid to victims.  The project began in 2013 and the Government had decided to extend the project over time. 

The Government ensured that police and judicial personnel in remote regions understood properly the law dealing with human trafficking.  Madagascar now had a trafficking data collection system, and relevant guidelines and manuals on judicial proceedings were available.  In 2016, 126 victims of transnational and national trafficking had been recorded.  In 2015, 46 people were arrested for trafficking and convictions were handed down by courts.  The sentences spanned from one to five years of imprisonment, including fines.

Since 2014 a programme on birth registration had been in place, including campaigns to issue copies of birth certificates.  At the end of 2016, 86 per cent of children below the age of five had received their birth certificates.  But, there was an absence of data on birth, death and marriage.

The State could not interfere with the work of the National Election Commission.  It could only secure the electoral process.  Dina traditional courts were a source of rights and could regulate community life in all areas.  The Government had undertaken an investigation into dina courts to standardize them.  The need for dina courts was a strong one in a traditional country such as Madagascar. 

Freedom of association and expression were guaranteed by the Constitution.  Legal restrictions on the exercise of those freedoms were in place because demonstrators had to respect the rights of other citizens. 

The Government provided access to legal counsel to persons in detention.  However, there were not many lawyers available.  The Criminal Procedure Code offered access to any other person of choice to ensure defence.  The right to be informed of one’s rights was the condition for the validity of arrest. 

In 2016, there was an 8.5 per cent increase in the budget allocated to police.  Currently, 97 police stations were available to citizens.  At the same time, some districts did not have any police stations.  Efforts had been made in the area of recruitment of police officers in order to mitigate allegations of corruption in the national police force.  The Anti-Corruption Office contained more elected than appointed members.  

As for measures to limit pre-trial detention, this was one of the greatest concerns for the Ministry of Justice.  Grounds had to be cited for pre-trial detention.  Prison overcrowding was dealt with by the Commission for Penal Reform.  The Ministry of Justice had conducted several awareness-raising campaigns on alternatives to prison sentences.  The Government was aware that more than 50 per cent of the imprisoned population was in pre-trial detention.  Detainees could lodge complaints through complaint boxes.  New courts of first instance with prison facilities were being constructed to overcome overcrowding. 

There were specialized services for children, and training on the rights and protection of children was provided.  The setting up of the National Committee for the Protection of Children was also under way. 

Madagascar had taken steps to end the salary gap between women and men, such as through payments for pregnant women and breastfeeding mothers. 

Concluding Remarks

CHARLES ANDRIAMISEZA, Minister of Justice of Madagascar, expressed gratitude to the Committee Experts for their comments and remarks.  The dialogue allowed the Government an opportunity to study challenges in the implementation of Covenant provisions.  The Government would closely study the Committee’s concluding remarks.   

YUJI IWASAWA, Chairman of the Committee, said that Experts had taken due note of positive developments in Madagascar, such as amendments to the Nationality Law, and the openness of prisons to external observers.  However, concerns included the independence of the National Human Rights Commission; discrimination against women with respect to property, land and marriage; lynching and mob justice; harmful traditional practices such as polygamy, early and forced marriages and discrimination against twins; human rights violations committed during the 2009-2013 political crisis; traditional justice and decisions issued by dina traditional courts; and forced and child labour. 

 __________

For use of the information media; not an official record

Follow UNIS Geneva on: Website | Facebook | Twitter | YouTube |Flickr