Complaint in terms of Clause 32 and Clause 43 of the SADC Roadmap to end the Crisis in Madagascar

1 Complaint in terms of Clause 32 and Clause 43 of the  SADC Roadmap to end the Crisis in Madagascar

Instituted by : Mouvance Ravalomanana& Mouvance Zafy

Subject : Appointment of the Executive Arm of Government

Date : 22 November 2011

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Introduction

1. This complaint concernsthe appointment of the executive arm of the

Government of National Unity and is made in terms of Clause 32 of the

Roadmap which provides for SADC to resolve areas of dispute between the

parties who are signatories to the Roadmap.

2. It also requests SADC to sanction parties to the Roadmap and other parties as

provided for in terms of Clause 43 of the Roadmap.

3. It is founded on clauses of the Roadmap, signed on the 17th September, which

clearly establish the concept of power sharing between the President of the

Transition and the Prime Minister of Consensus. For example:

_ Clause 3 of the Roadmap says thatMr Andry Rajoelina shall be the Head

of State during the transition;

_ Clause 4 of the Roadmap provides for the appointment of a consensus

Prime Minister who shall lead a National Union Transitional

Government. (Our emphasis);

_ Clause 5 of the Roadmap requires that the Prime Minister of Consensus

shall not come from a political platform supporting the President of

Transition, nor should he come from the same region.

_ this balance of power is further enshrined in Clauses 6 and 7 of the

Roadmap:

o Clause 6 provides for the Malagasy political stakeholders to be

invited to submit a list of public figures from which the President of

the Transition, acting on the proposal of the consensus Prime

Minister shall appoint the members of the Transitional

government. (Our emphasis)

In other words it is the prerogative of the Prime Minister to

establish his Cabinet of Ministers which must be endorsed by the

President unless it does not adhere to the criteria of political

affiliation, gender representation and regional balance.

In such circumstances the President is not empowered to make

changes to the composition of the Cabinet. He would have to

express his concerns and request the Prime Minister to rectify

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where necessary and submit a revised proposal.

As submitted by Mouvance Zafy:

_ The total number of members of the Cabinet “belonging” to

the leader of the illegal regime can be listed as 23 of the 35;

made up as follows:

• · 3 x “non-political”;
• · 4 x whom he said were his “prerogative”;
• · 2 x TGV
• · 4 x UDR-C;
• · 2 x Escopol;
• · 2 x Les AS;
• · 2 x Arema;
• · 2 x MDM;and
• · 2 xHPM.
• · by contrast the total number of cabinet posts allocated

to mouvances Ravalomanana and Zafy; as well as Mr

Monja Rondefo, amount to 12.

• · one of the names of the Zafy candidates was not

submitted by that mouvance.

o This balance of power can further be seen by an examination of

Clause 7, which in contrast to Clause 6, gives the President of

Transition, and not the Prime Minister the final say in the

appointment of the members of the other transitional institutions,

like the Transitional Congress (CT) the High Transitional Council

(CST) and the National Independent Electoral Council (CENI); and

o in making these appointments the President of Transition is bound

by the same principles of fairness and equity as exist for the Prime

Minister in the formation of the Cabinet.

4. It is clear that it is the consensus Prime Minister who has the power and

authority to decide upon the composition of his or her Cabinet.

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5. The only role for the President of the Transition is to ensure, in consultation

with the Prime Minister, a fair and equitable distribution of portfolios, whilst

adhering to the criteria of political affiliation, gender representation and

regional balance. In other words he is a check and a balance to ensure the

appointments are correctly made.

He has no right to make appointments that differ from proposals made by the

Prime Minister.

6. This is further illustrated by SADC’s own Implementation Framework which

has the following to say about the appointment of the Government of

Transition:

“Nomination of members of the Government of Transition.

• · The Prime Minister of Consensus invites nominations for the candidates

from the political parties;

• · The Prime Minister revises the list and consults with the candidates;
• · The Prime Minister proposes the final list of appropriate candidates to the

President of Transition;

• · The President of Transition nominates the members of the Government in

a fair and equitable manner based on the final list recommended by the

Prime Minister; and

• · The President of Transition and the Prime Minister of Consensus ensure a

fair and equitable distribution of the portfolios adhering to the criteria of

political affiliation, gender and regional balance.”

7. It is also worth noting (in parentheses) in this foundation of our complaint,

that Clause 34 of the Roadmap provides for international recognition of the

government only after the establishment of inclusive and consensual

transitional institutions – including the executive and the members of the

other transitional institutions.

8. This balance of power between the two opposing forces in Madagascar is a

core and fundamental tenet on which the entire Roadmap is premised.

9. It is common cause that the signatories to the Roadmap comprise two broad

groups – seven (7) who participated or supported the coup regime; and two

of the three major mouvances, Mouvance Ravalomanana and Mouvance Zafy

as well as Monima. The third of the major mouvances, that representing

former President Didier Ratsiraka, has yet to sign the Roadmap.

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10. The balance of power has to be found between the two broad groupings who

have signed the Roadmap.

Our Complaint

1. There is no balance of political affiliation in the appointment of members of

the executive arm of the Government:

_ the opposition mouvances were offered a total of 12of 35 Cabinet posts;

_ the posts offered to the opposition mouvances are relatively minor posts –

with the President of the Transition reserving the major portfolios –

justice, Foreign Affairs, etc; for himself;

_ instead of creating a Cabinet of National Unity, , which would from the

outset engender a sense of trust and confidence amongst all the people of

Madagascar , several of the most controversial and repressive members of

the former government were simply reappointed to their positions; and

_ despite concerns raised by the diplomatic community, prior to the

appointment of the executive, at least one Cabinet Ministers who is a

convicted fraudster has been reappointed; and several of the most

repressive members of the illegal government have been appointed to the

Cabinet.

2. The final composition of members of the executive arm of the Government,

was done by the President of the Transition himself and not by the Prime

Minister, as required by Clause 6 of the Roadmap:

_ several of the most-controversial and repressive members of the former

government were simply reappointed to their positions; and

_ one of the Cabinet Ministers appointed has been convicted by a Malagasy

Court on a charge of embezzlement in 2002 and is awaiting amnesty.

_ as noted earlier:

o 23 of the 35 members of the Cabinet “belong” to the leader of the

illegal regime, made up as follows:

• · 3 x “non-political”;

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• · 4 x whom he said were his “prerogative”;
• · 2 x TGV
• · 4 x UDR-C;
• · 2 x Escopol;
• · 2 x Les AS;
• · 2 x Arema;
• · 2 x MDM;and
• · 2 xHPM.

o by contrast, 12 of the total number of cabinet posts were allocated

to mouvances Ravalomanana and Zafy; as well as Monima;

o one of the names of the Zafy candidates was not submitted by that

mouvance.

3. The appointment of members of the executive arm of the Government, was

done by the President of the Transition himself and not by the Prime Minister,

as required by Clause 6 of the Roadmap:

_ we and Mouvance Zafy have detailed evidence of this in the form of

preliminary lists of members of the Cabinet which were sent to us by the

Prime Minister, and which will be presented to the SADC liaison office

when the mediation / arbitration of our complaint takes place;and

_ thelists detail the proposals made by the Prime Minister of Consensus and

show how they were changed unilaterally by the President of the

Transition.

4. There has been widespread interference and undue influence exerted on the

process by a foreign government. This action has subverted the appointments

rendering them unfair and unbalanced:

_ The French government and its ambassador in Madagascar have blatantly

sought to undermine the fairness and the outcome of the process;and

_ the Ambassador has made unprofessional, unwarranted and unwanted

lobbying calls to members of our Mouvance, trying to persuade them to

support certain individuals for certain positions in the Government.

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Remedy sought

1. SADC should declare the selection of the executive of the Government of

Madagascar both procedurally and substantively in violation of the spirit and

word of the Roadmap.

2. SADC should declare that the process of selection of the executive should

begin ab initio with proper transparency, without interference from the

President of the Transition; and without undue influence from a foreign,

former colonial power.

3. SADC should do so with the greatest urgency, setting a deadline for the

appointment of a new Cabinet – so that the end November deadlines for the

appointment of the rest of the institutions of transition can proceed.

4. We ask SADC in terms of Clause 43 of the Roadmap to:

_ sanction the President of the Transition for his subversion of Clause 6 of

the Roadmap and that it censure and reprimand him for his illegal and

unwarranted interference in the appointment of the Government;

_ sanction the Prime Minister for allowing illegal and unwarranted

interference by the President of Transition in the selection of the

Government of Transition; and

_ sanction and censure France for its unwarranted and direct interference in

the domestic affairs of Madagascar and insist that it withdraw its

ambassador immediately.

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Why we ask for these actions

1. The actions of the President of the Transition and the Prime Minister amount

to an attempt to undermine and derail the Roadmap and are contrary to the

spirit and the letter of that document. For example:

_ Clause 2 of the Roadmap calls for a “neutral, inclusive and consensual

transition process” to lead to the holding of credible, free and transparent

elections:

o attempting to control and appoint an executive who do not properly

represent the balance of power between the political actors who are

signatories to the Roadmap, undermines the neutrality, inclusiveness

and consensuality of the transition.

It is self evident from Clause 4 of the Roadmap that the consensus

Prime Minister should “lead a National Union Transitional

Government”.

We submit that this Clause has been undermined by the President of

the Transition, aided and abetted by the foreign power.

It is them, not the Prime Minister who are in control of the National

Union Transitional government.

2. The Roadmap providesfor the balance of power between the President of the

Transition and the consensus Prime Minister, forcing them to work together

for the good of all the Malagasy people to lead the country to constitutional

normalcy through the organisation and holding of internationally supervised,

free-and-fair elections. This has been undermined by the actions of the

President of the Transition, by the Prime Minister, and by France.

3. Madagascar, as a consequence of the violation of the Roadmap, now has a

weak and ineffective Prime Minister who is, in effect, a supporter of the

platform of the President of the Transition.

4. It now also has a Cabinet which does not represent the balance and fairness

and equity required by the Roadmap. This demolishes the objectives of the

Roadmap, which in the present context constitutes a constitutional crisis.

5. Clause 15 of the Roadmap provides for “The President, the Government, the

Heads of Institutions and the entire administrative machinery of the

Transition (to) remain neutral during the transition period, particularly in

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the electoral process:

o appointing a Cabinet by, or in favour of, the President of the

Transition and without the necessary political balance, makes a

mockery of this clause. It increases partisanship and destroys

neutrality.

6. Clause 16 of the Roadmap calls for…“The President, the Government, the

entire administrative machinery of the Transition and all the transitional

institutions (to) commit themselves to adopting security and confidencebuilding

measures in order to create a serene and peaceful environment by

terminating the ongoing legal proceedings against members of the

opposition that would appear to be politically motivated and by adhering

to the rule of law and the principle of equal treatment. These confidencebuilding

measures should not cover judicial proceedings related to crimes

against humanity, war crimes, genocide and gross violations of human

rights and fundamental freedoms…”:

o we do not believe that a partisan Executive which substantially

represents the same political platform as the President of the

Transition will implement the provisions of Clause 16.

o since the signing of the Roadmap we have seen no efforts from the

illegal regime to create a peaceful and serene environment, or to

terminate legal proceedings, or to adhere to the rule of law;

o a partisan executive will not want, or be allowed, to do this by the

President of the Transition;

o the only way to implement this clause is by appointing a robustly

independent executive arm of Government representing a true and

inclusive consensus, including key portfolios being placed in the

hands of the major political mouvances from a different political

platform to the President of the Transition; and

o this is doubly important given the power the President of the

Transition has in terms of Roadmap Clause 7 to appoint the other

institutions of transition.

7. Clause 17 of the Roadmap requires… “The President, the Transitional

Government, the entire administrative machinery of the Transition and all

the transitional institutions (to) undertake to protect and promote human

rights in Madagascar and to respect fundamental freedoms namely

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freedom of expression, opinion, association and demonstration as well as

press freedom. These rights shall be exercised in accordance with the laws

of the country…”:

o we make the same submissions as in Clause 16 above – a partisan

executive will not implement this clause;

o there has been no evidence since the signing of the Roadmap that the

President of the Transition has any intention of implementing any of

the terms of Clause 17;

o to the contrary the illegal regime has announced further political trials.

It has not released political prisoners – although we have repeatedly

submitted lists of people incarcerated without trial or for political

offences to SADC.It is telling that the so called Prime Minister of

Consensus, who has the authority to release prisoners, has not done

so. It has not restored media freedoms or freedom of expression,

association and demonstration; and

o a partisan executive, beholden to the President of the Transition will

be unable or unwilling to implement this clause.

8. Clause 18of the Roadmap provides for… “The granting of a blanket amnesty

for all political eventswhich happened between 2002 and 2009, except for

crimes against humanity, war crimes, crimes of genocide and other serious

violations of human rights and fundamental freedoms. The amnesty law

shall be ratified by the Transitional Parliament and no election shall take

place prior to the ratification…”:

o in spite of this clause, we have seen attempts, since the signing of the

Roadmap; to have President Ravalomanana extradited and charged –

even though he is not guilty of any crimes in Madagascar and, even if

he were to be guilty, he would qualify for the amnesty;

o even the illegal regime in its kangaroo court did not charge him with

any of the crimes listed as exclusions;

o despite this the regime, since the signing of the Roadmap has issued a

warrant for his arrest – again charging him with “crimes” that are

included in the amnesty;

o the illegal regime in Madagascar has previously tried to introduce an

amnesty law in Parliament which would exclude President

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Ravalomanana from the amnesty in Clause 18;

o this is likely to be an item of major contest between the two major

political platforms;

o now the very person who attempted to extradite and prosecute

President Ravalomanana has been reappointed to the position of

Minister of Justice;

o this is but one demonstration of how the appointment of a partisan

executive undermines the ability of our mouvance to defend itself

from this attack.

9. Similarly Clause 20 of the Roadmap holds that… “The High Transitional

Authorities (HTA) shall allow all Malagasy citizens in exile for political

reasons to return to thecountry unconditionally, including Mr Marc

Ravalomanana. The HTA shall provide safety and security to all Malagasy

returnees. The HTA shall urgently develop and enact the necessary legal

instruments, including an amnesty law to ensure the political freedom of

all Malagasy citizens in the inclusive process of the transition towards free,

fair and credible elections…”

This clause was amplified with an explanatory note detailed at Clause 45 of

the Roadmap and appended to the Roadmap as an “integral part” of it:

o again, we repeat the points made in Clause 18 above;

o this is going to be a major point of contest;

o Mouvance Ravalomanana accepted the explanatory note and signed

the Roadmap with its inclusion. We did so knowing that an executive

arm of Government properly constituted would be appointed in

termsof Clause 6; and that the High Transitional Authorities (HTA)

referred to in Clause 20 would be the “new” transitional authorities to

be formed once we had signed the Roadmap. We carefully and

explicitly checked that our understanding was correct before we

signed the Roadmap;

o we were not concerned about the explanatory note for a number of

reasons, including:

_ President Ravalomanana has not committed any crimes in

Madagascar;

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_ he is not guilty of any of the crimes of which he is accused by

the leader of the illegal regime;

_ Madagascar since 2009 has been an illegal state and the victim

of an illegal and violent coup d’ état. It flows from this that his

prosecution in absentia was illegal and this view is supported by

the international community. His trial, prosecution, conviction

and sentence are all ab initio void;

_ even if he were guilty, which he is not; the court which charged

him was not properly constituted and did not have the

competency to try him. Even in that court he was not accused of

any crimes which are excluded from the Roadmap Clause 18

amnesty; and

_ if an attempt were to be made to use the explanatory note to

prevent his return or to arrest him on his return this would fail

for a number of reasons;

_ these include, but are not limited to, the fact that any decision to

charge him would have to be made by the “new” High

Transition Authority – and the leader of the National Union

Transitional Government in terms of Clause 4 of the Roadmap

is the Prime Minister of Consensus; and

_ since Clause 6 provides for fairness and equity in the formation

of the executive; it was unlikely that they would countenance

charges to be brought against President Ravalomanana.

o this is all undone by the appointment of a partisanexecutive and will

provoke a further political crisis in Madagascar.

8. Clauses 21& 22 of the Roadmap provide for all the signatories to the

Roadmap to adopt and abide by a “Code of Ethics and Good Political

Conduct” and to act in “good faith”, creating an “atmosphere of peace and

security for all the Malagasy people, to avoid impeding the transition

process” and to be “constructive and patriotic”;

o we submit that undermining the Roadmap by appointing a partisan

executive negates and makes a mockery of all of these requirements.

9. Clauses 23 & 24 of the Roadmap prevent any veto or destabilising action and

call on the parties not to threaten violence or stir hatred;

Complaint – 20111122 (a)

 

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