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15 March 2016

Newsletter n° 51 (English version)

Governance of Tenure: Malagasy Citizens have something to say about proposed legislation

When it comes to writing law, Malagasy political representatives regularly disregard the Constitution in respect to citizens’ right to information1. It is unacceptable that neither the proposed legislation awaiting discussion in the National Assembly, nor these same laws after their ratification are made available to citizens. This practice prohibits the public from participating in debates, expressing their opinions, and being informed despite the fact that citizens are still expected to be familiar with and abide by the laws thusly once ratified. This total lack of transparency affects land tenure and zoning laws in particular.

The petition launched on October 4th 2015 by Solidarité des Intervenants sur le Foncier (A network of civil societygroups that organize on behalf of vulnerable populations regarding land rights issues and food access) and Collectif TANY highlights proposals approved by the various Council of Ministers but are likely to legalize measures that aim to increase widespread evictions and expropriations of citizens- particularly small farmers.

What about law number 2015-039 regarding Public-Private Partnerships? It was voted on during the last parliamentary session and was just ratified by the Haute Cour Consitutionelle (High Constitutional Court) on January 29th 2016. To date nothing about its final contents have been made public2 .

Yet, article 37 of a previous draft of the law allowed the State to enact “a procedure that would allow for the expropriation of private lands for public use without the land holder’s consent.”3 In the face of so much obscurity, can we
hope for an amendment that favors Malagasy citizens and farmers or should we fear the worst?

A second law regarding land tenure was voted on by the National Assembly on December 16th 2015: the “ Loi d’Orientation de l’Aménagement du Territoire” (LOAT) (a law pertaining to the legal framework of spatial planning).
Collectif TANY was able to acquire a draft of the law (draft number 011/2015): the law, establishes the legal framework of national spatial planning or land use with an eye towards sustainable development. Spatial planning plays a particular role in land tenure management, urban development, sanitation, housing and living conditions, rural development, management of mines and extractive industry, environmental protection, infrastructure, and public facilities. It deals equally with large project sites and land reserves. 4 Over the past several months no public debate has been held over this important law.

Starting in 2012, Collectif TANY has issued proposals for the involvement of all citizens in all deliberations and decisions regarding spatial planning and land use in every commune. 5

The text of the law voted on and later ratified by the HCC 6 has not been made available to the general public. Recently, a journalist quoted the president of the Chamber of Commerce and Industry of Antananarivo expressing his support of the bill. “Aside from corruption, one obstacle facing investors in 2015 was Land Law. As you know, last December these laws were updated to attract more investors who can now invest their money with greater peace of mind.”7

Collectif TANY fears that on the contrary this law created behind closed doors will hurt the interests of citizens and especially of small farmers.

We support a democratic and inclusive government system in Madagascar, and especially in regards to Land Use.

The lack of transparency in the law writing and ratifying process is in direct contradiction with the principle of inclusivity as affirmed by the national policies of development.

Are the Malagasy authorities looking for a way to avoid debates with the citizens about the difficult decisions that will affect the futures of the majority of the people in the country? Does this mean that there are decisions or policies that run contrary to the interests of the public?

Based on the suggestions of the civil society group KMF-CNOE Citizens Education 8, Collectif TANY calls on everyone, decision makers and Malagasy citizens alike, to engage in meaningful reflection and create proposals for a truly democratic and inclusive governance system as well as proposals about the respective roles of different actors in the realm of public affairs in Madagascar:

• In a democracy deserving of the name, bills must be shared by the proper government officials to all of the citizens several weeks, several months even, before their submission to the National Assembly to allow for the input, debates and reflection of all citizens.

• Congressmen must discuss bills with their constituents to hear different opinions. As the Malagasy saying teaches us, with several people’s ideas we can go farther.9 (Ny hevitry ny maro mahataka-davitra)

• All citizens deserve to know the details of every law discussed and voted on so they are able to reflect on and voice their opinions to their elected officials - indeed to the government - because every citizen will have to abide by these

• Not sharing the text of a bill with the general public, then keeping the laws ratified by the National Assembly secret until their endorsement from the High Constitutional Court, which is the final step before their enactment by the President of the Republic, illuminates a process that is a far cry from democracy. Displaying copies of proposed legislation in public places all over the country and posting said laws online constitutes and adequate solution which has already been used in certain cases.

• Faced with an economic disaster, legislators and those in positions of power need to show proof of extreme transparency and prioritize collaboration with all citizens in regards to the way that national life is conducted. This need
is even more pressing when it comes to questions of land and land governance, so vital for Malagasy farmers, for the nation and for future generations.

February 5th 2016, Paris
Collective for the Defense of Malagasy Lands- TANY

References :

(1) Article 11 of the Malagasy 2010 Constitution
(4) This is a translation from the French legal text of “Projet de loi n°011/2015 du 20/05/2015 portant Orientation de l’Aménagement du Territoire”
(8) The full French name of the group is KMF-CNOE Education des citoyens dans le même sens. Their findings can be
found here:
(9) Similar to the English “Two heads are better than one”