Rule of law & reconstruction in Madagascar Including alternative narratives Dr Olivia Lwabukuna (AISA-HSRC)

Introduction: The role of local and sub-regional/regional players in the creation and resolution of the Madagascan legal conundrum The rule of law has various roles to play in post conflict environments : Facilitating intervention (both military, humanitarian and dialogue, including mediated dispute resolution) Facilitating peace building and state building, including reconciliation and transitional justice Facilitating institutional processes such as constitutionalism, access to justice, sector reforms and good governance Facilitating and setting parameters for development initiatives

Intervention Article 4 (h) and (j) of the African Union Constitutive Act- Specifically on guidance as far as Unconstitutional and democratic change of government is concerned. Article 10(A) of the SADC Treaty The SADC Standing Policy on Unconstitutional Change of Government SADC Road map to end the crisis in Madagascar The Madagascar SADC Peace Agreement of 2009 The SADC Road map to legislative and presidential elections in Madagascar

Peace and state building: reconciliation and transitional justice The Madagascar National Dialogue Process ‘Mallgacho-Malgache’ (Malagasy with Malagasy) The ‘Irato’ Political Agreement The New Madagascar Constitutional Framework of 2010 Loi n°2012-007 portant amnistie pour la réconciliation nationale (Law No. 007-2012 granting amnesty for national reconciliation) LOI n°2011-013 portant statut de l'opposition et des partis d'opposition (Law No. 013-2011 on the status of the opposition and the opposition parties) LOI n°2012-016 relative aux premières élections législatives de la Quatrième République (Law No 016-2012 on first parliamentary elections of the Fourth Republic)

Institutional processes Constitutionalism, Access to justice, Legal, justice, and Security sector reform Good governance: Improving governance must be a priority for policy makers in Madagascar endogenous mechanisms of motivation, accountability and controls can be used Corruption: can be limited through devolution of political and financial power to minimize collusion between policymakers and the financial elite Social Accountability also limits corruption by promoting implementation of safeguards through participatory mechanisms and controls on several levels; both within the del'Etat institutions, the civileet media company; and development partners (donors and NGOs)

Parameters for development initiatives There is need to introduce principles of good governance, in particular institution building, which is a necessary condition for sustainable growth in Madagascar Such Institutions must provide adequate representation, respect property rights (esp. land tenure) and promote optimal and transparent use of the country’s resources Efforts in the past have not changed the culture of impunity and have certainly not contributed to strengthening the sense of unequal treatment among the Malagasy population. Corruption and non-compliance with legislative, judiciary and institutional frameworks has resulted in prejudice in the delivery of public services The dysfunction in the judiciary has exacerbated inequality, impunity and corruption

Conclusion The Madagascan conundrum was caused by lack of an inclusive participatory approach to development thinking which was exacerbated by elitist SADC regional responses and lack of intervention support and localization mechanisms at domestic level adopted to implementing SADC protocols. Weaknesses in, or lack of appropriate social policies tailored to address the impact of violent conflict on the vulnerable also immensely contributed to the current narrative. What can be done? Need for inclusive, deliberative democratic development from below Need to judicialise development policy (judicial deliberation and enforcement of socio-economic rights-addressing inequality, promoting development)