Madagascar: Constitutional and legal framework

Updated June 2010

Extracted from: Lucien Toulou 2009 "Chapter 6: Madagascar" IN Denis Kadima and Susan Booysen (eds) Compendium of Elections in Southern Africa 1989-2009: 20 Years of Multiparty Democracy, EISA, Johannesburg, 195-196.

The institutional framework for elections is provided for by the Malagasy constitution and a range of laws and regulations. These laws and regulations include the Electoral Code promulgated as Organic Law on 24 August 2000. Various other instruments apply to specific elections. With regard to the presidential elections, the Electoral Code is complemented by the Decree no 200-002 of 31 August 2006 relating to the election of the president. The legislative elections are governed by the Organic Law no 2002-004 of 26 September 2002 pertaining to the election of the members of the National Assembly in addition to Decree no 2007-721 of 27 July 2007 that has allocated seats in the National Assembly and delimited constituencies in the run-off to the 2007 legislative elections.

Two issues arise from this constitutional and legal framework. First, there have been complaints from opposition and civil society groups about the lack of inclusiveness of the process that has led to the adoption of the country's current Electoral Code. The code has abrogated Ordinance no 92-041 of 2 October 1992, previously governing the organisation and management of elections. The latter was adopted as a result of the consensus for political reforms that prevailed in 1991 and 1992 through the action of various pro-democracy movements. As the former was debated within a parliament overwhelmingly dominated by one party, it has been criticised for being less inclusive and flawed by partisan interests. On the other hand, while the multiplication of legal instruments applying to specific elections has the advantage of flexibility, those instruments can easily be subject to change according to the evolving needs of the ruling party, rather than for the sake of improving the institutional framework for elections.

The constitution of Madagascar has been changed several times since independence. Those amendments have impacted on the electoral process, as evidenced in the evolution of the country from the first to the second and third republics. The nexus between political turnovers and constitutional revision is striking. Since independence, leadership changes have been followed by constitutional review overtly meant to accommodate the evolving needs of new majority. This was notably the case in 1975, 1995, 1998 and 2007. The current constitution came into force on 19 August 1992. It was amended for the first time in September 1995. This amendment allowed the president rather than the National Assembly to choose and dismiss the prime minister. The second amendment had a direct implication for the electoral process as it gave the president the power to dissolve parliament, in addition to strengthening its power over the prime minister.

The most recent amendment, of April 2007, further expanded the powers and authority of the president to amend laws during a state of emergency without seeking parliamentary approval. While all these changes suggest that successive governments have been keen to consult their citizens directly in between elections, the very use of constitutional referenda for minor constitutional amendments and their high number can potentially lead to voter fatigue.