13 August 2021 –
A recent report authored by the Transparency International Initiative Madagascar (TI-MG) notes encouraging prospects in Madagascar in terms of the implementation of provisions under Chapter II (Preventive measures) and Chapter V (Asset recovery) of the United Nations Convention against Corruption (UNCAC). The report is intended as a contribution to the UNCAC implementation review process in its second cycle, with technical and financial support from the UNCAC Coalition.
In Madagascar, legal frameworks for the implementation of the UNCAC have taken shape through innovative legislative reforms and the establishment of preventive and repressive bodies for the offenses covered by the UNCAC, notably through the establishment of anti-corruption and financial intelligence units across various governance levels. The report draws on recent events and developments within Madagascar and concludes with key recommendations based on UNCAC provisions to tackle corruption more effectively in the country.
The government’s political will to combat corruption must be strengthened and accompanied by concrete action to capitalize on the positive gains initiated by Madagascar’s ratification of the UNCAC. In his presentation of the General State Policy which will govern the objectives of his mandate, the President of the Republic of Madagascar spoke of a “zero-tolerance” policy in the fight against corruption. In practice, however, obstacles from the National Assembly which is dominated by the presidential majority, as well as the proliferation of corruption and embezzlement scandals that regularly make the front pages of the country’s daily newspapers, give the impression of a two-tiered justice system.
The official UNCAC review process in Madagascar is ongoing. The governmental experts list is available on Madagascar’s UNODC country profile page, while information about the country visit is largely unknown. The government of Madagascar has yet to commit to making all documents, including the full country report, available once finalized.
Below are several of the key findings from the report, grouped according to topic:
Preventive anti-corruption policies & bodies
Madagascar has implemented a National Anti-Corruption Strategy (SNLCC) for the period 2015-2025 with consideration for civil society voices throughout various phases of its design (via regional workshops, multistakeholder consultations, and other activities). The country is also signatory to several regional anti-corruption conventions and protocols, such as the African Union Convention on Preventing and Combating Corruption. However, sectoral anti-corruption policies for different professions are necessary, and the fragmented nature of Malagasy legal texts relating to the UNCAC render its interpretation and implementation a patchwork of efforts rather than a cohesive approach.
The fight against corruption is primarily run by the Independent Anti-Corruption Bureau (BIANCO) and the Financial Intelligence Unit (SAMIFIN). These bodies possess preventive and investigative powers, and have organized projects, technical assistance and awareness-raising activities in several regions of Madagascar, as publicized in their annual reports, available online. Moreover, BIANCO and SAMIFIN are attached to the Presidency of the Republic, which has raised concerns about their room for maneuver, but sources suggest that the relationship is merely administrative and does not affect their independence.
Efforts remain particularly necessary with regard to the implementation of smaller anti-corruption units (PAC) in the remaining provinces of Madagascar, beyond those which are already operational in larger cities. At the institutional level, the Agency for the Recovery of Illicit Assets (ARAI) remains the only entity not yet established within the nation’s ‘Anti-Corruption System’ (SAC). The establishment of the ARAI – in charge of recovering illicit assets and ensuring their conservation and management before the decision to confiscate is made – appears to be a government priority, although it is not yet fully operational.
Public sector & codes of conduct
Public officials holding senior positions in the administration, including judges, directors of ministries, police officials, and corporate officers employed in public establishments and companies, are subject to the obligation to declare their assets within three months of their appointment or assumption of duties. The organizations in charge of collecting the declarations of assets: BIANCO and the Supreme Constitutional Court (HCC), regularly publish the list of people who have filed declarations. However, no convictions for the failure to declare assets have been made. As of December 2020, it was revealed that from the 151 deputies elected since July 2019, 34 individuals subject to filing asset declarations had not yet done so. In addition, the legal obligation for declarations fails to incorporate assets located abroad, thus escaping Malagasy jurisdiction.
Moreover, immunities enjoyed by certain elected officials in the performance of their mandate have limited the effectiveness of the fight against corruption in Madagascar. This is the case with parliamentary immunity, for example, which constitutes a privileged status that derogates from ordinary law. Although codes of conduct are in place for state officials to ensure that professional practice is conducted with integrity and transparency, between July 2019 and June 2020, public sector employees still represented over 34% of the defendants tried before the PAC.
Access to information & civil society participation
In recent years, civil society action has intensified in the fight against corruption, particularly with regard to good governance and the rule of law, transparency and budget monitoring, the fight against trafficking in endemic species and the overexploitation of natural resources. CSOs are very active in advocacy efforts, but also proactive whistleblowers on corruption. In 2019, with support from the United Nations Development Program (UNDP) and the Deutsche Gesellschaft für Internationale Zusammenarbeit (GIZ) in Madagascar, BIANCO set up a secure digital platform for anonymous reporting called ‘i-toroka’.
However, Madagascar’s international commitment to the UNCAC has not yet been honored due to the absence of a law on citizen access to public information in order to increase transparency in public administration. Limitations in the Code of Ethics for Public Administration and the lack of witness protection programs and related funding mechanisms may restrict the emergence of whistleblowers in public administration. Violations of freedom of information have been decried by professional associations of journalists in Madagascar, particularly during the Covid-19 health crisis. In April 2020, a journalist was imprisoned for inciting hatred after having published criticism on the government’s management of the crisis. In April 2021, the government prohibited “all public events, radio and audiovisual productions likely to disturb public order and security…harm national unity or incite civilian disobedience…for the entire duration of the state of health emergency,” targeting 9 broadcasting programs which feature live telephone calls and political debates on air. Authorities revised this decision soon after, following outcries from civil society and press releases denouncing the violation of fundamental freedoms.
Judiciary and prosecution services
In the Malagasy judicial system, judges are independent, irremovable and subject only to the Constitution and the law. An increasingly worrying portion of the population – more than 57% – indicated in a survey that they believe that some judges practice corrupt behavior. In view of scandals involving entry examinations, the credibility of the judiciary is often questioned, despite the disciplinary and ethical rules applying to the various bodies involved in its exercise. The profession of a judge is subject to strong external pressure, particularly political pressure, contradicting the constitutional principle of judicial independence. Furthermore, the financial means made available to judges in Madagascar are often modest in relation to the extent of work expected from them.
The offense of money laundering applies under Malagasy law, even if the original offense was committed abroad. A new law against money laundering and terrorist financing (ML/FT) was adopted in February 2019, in accordance with FATF recommendations. It also recognizes the notion of Politically Exposed Persons (PEP), domestic or foreign, for whom increased vigilance is required. However, the low level of access to banking services among the Malagasy, around 5.7% in 2014, hinders the effectiveness of the fight against money laundering, given the fact that an entire segment of the informal sector is outside the ML/FT monitoring framework.
Chapter III provisions
Transparency International Initiative Madagascar (TI-MG) also analyzed several articles under Chapter III of the UNCAC (as part of the 2010-2015 first review cycle) on Criminalization and law enforcement. TI-MG notes that, following the recommendations provided to the country by the official reviewers, advances have been made in the qualification of offenses of active or passive corruption and criminal sanctions against ML/FT offenses, but other recommendations, such as those on witnesses and whistleblowers, have only been implemented to a limited extent. The report draws on several recent corruption cases to illustrate its analyses.
TI-MG highlights several key recommendations to authorities in order to overcome various obstacles to UNCAC implementation in Madagascar:
- Providing a single guide containing the various texts on the fight against corruption, money laundering and the financing of terrorism to allow Malagasy citizens to have a better grasp on existing texts;
- Adopting a law that provides sufficient material and physical protection for witnesses and whistleblowers;
- Passing the Access to Public Information Act;
- Adopting a decree for the creation and operation of the ARAI in the Council of Ministers;
- Updating the codes of conduct and ethics of public officials as well as their specific statutes in order to exonerate corruption and money laundering offenses from the immunities and privileges they enjoy;
- Implementing maximum thresholds for campaign spending, requiring effective publication of the list of contributors and adopting a law for an ethical approach to political party financing;
- Increasing awareness among reporting entities of suspicious transactions in terms of ML/FT, especially for small structures that do not have specific compliance skills.
More detailed recommendations can be found in Chapter VI of the report.Fullscreen Mode