At right, without tie: Brian Currin, juridical mercenary of Marc Ravalomanana : How to slaughter Andry Rajoelina?

There is no comment to say: read the following, that’s all… But where are the interests of the malagasy people ?

Complaint

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

Instituted by: Mouvance Ravalomanana and Mouvance Albert ZAFY

Subject: Appointment of the Executive Arm of Government

Date : 22 November 2011

Introduction

1. This complaint concerns the 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 that Mr Andry Rajoelina shall be the Head of State during the transition;

Ø Clause 4 of the Roadmap provides for the appointment of a consensus Prime Minister who shall lead a National Union Transitional Government. (Our emphasis);

Ø this balance of power is further enshrined in Clauses 6 and 7 of the Roadmap:

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 the formation of the transitional government, the President of the Transition and the consensus Prime Minister shall ensure a fair and equitable distribution of portfolios, whilst adhering to the criteria of political affiliation, gender representation and regional balance. (Our emphasis)

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 x HPM.

· 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.

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 right to appoint 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) shall appoint the members of the Transitional Government…” (The Cabinet)

5. The only role for the President of the Transition is to ensure 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 does not even have the right to exercise this function on his own, but has to do so in consultation with the Prime Minister.

He certainly has no right to make appointments himself.

6. Since the Prime Minister is the leader of the National Union Transitional Government, the members of the executive are his decision, and the Head of State has to appoint the people that he recommends -- provided there is a fair and equitable distribution of portfolios.

7. 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.”

8. 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.

9. This balance of power between the two opposing forces in Madagascar is a core and fundamental tenet on which the entire Roadmap is premised.

10. It is common cause that the signatories to the Roadmap comprise two broad groups – seven (7) who support the President of the Transition; and two of the three major mouvances, Mouvance Ravalomanana and Mouvance Zafy with the Monima; who do not support the President of the Transition. The third of the major mouvances, that representing former President Didier Ratsiraka,

has yet to sign the Roadmap.

11. 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:

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

Ø 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, several of the most controversial and repressive members of the former government were simply reappointed to their positions; and

Ø despite concerns raised, prior to the appointment of the executive by the diplomatic community, at least two Cabinet Ministers who are convicted fraudsters have been reappointed;

Ø one of the Cabinet Ministers appointed has been convicted by a Malagasy Court on a charge of embezzlement in 2002 and is awaiting amnesty.

Ø 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”;

· 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.

2. 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:

Ø 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 arbitration of our complaint takes place; and

Ø the lists detail the proposals made by the Prime Minister of Consensus and show how they were changed by the President of the Transition.

3. 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:

Ø The French government and its ambassador in Madagascar have blatantly sought to undermine the fairness of the process; and

Ø 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.

Remedy sought

1. SADC should declare the selection of the executive of the Government of Madagascar to be null and void.

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:

Ø 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;

Ø sanction the Prime Minister for allowing illegal and unwarranted interference by the President of Transition in the selection of the Government of Transition; and

Ø sanction and censure France for its unwarranted and direct interference in the domestic affairs of Madagascar and insist that it withdraw its ambassador immediately.

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:

Ø 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, in 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.

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 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 confidence building 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 confidence building 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 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 opposed 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 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 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 18 of the Roadmap provides for… “The granting of a blanket amnesty for all political events which 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 Ravalomanana from the amnesty in Clause 18;

o this is likely to be an item of major contest between the two parties in the constitutional crisis;

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 between the two parties;

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 terms of 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;

§ 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;

§ even if he was 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 included, 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 partisan executive 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;

o we submit that undermining the Roadmap by appointing a partisan executive amounts to vetoing its provisions and is a destabilising action which stirs hatred and threatens violence.

10. Clause 43 of the Roadmap says that… “In case of serious violations of this Roadmap the partners shall explore the possibility of taking sanctions against those commit such violations, wether or not they are signatories thereof”.

5. We respectfully declare a dispute in terms of Clause 32 of the roadmap. We ask that SADC mediation consider and resolve our complaint as detailed above, by ordering that the executive arm of government is reconstituted.

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RESPONSE OF THE SADC TROIKA

Press Statement

The SADC Troika of the Ministerial Committee of the Organ wishes to congratulate the Malagasy people, the Mouvances and the Transitional Government as well as all other political platforms who have participated in and/or supported the reaching of another key milestone in bringing Madagascar one step closer to a democratic dispensation i.e. the formation of the transitional government executive/cabinet of consensus earlier this week.

Troika notes the rapid progress made over the past two months in ensuring the realisation of the SADC Road Map which seeks to end the crisis in Madagascar.

Troika wishes to congratulate both the President of the High Transition Authority and the Prime Minister for having duly exercised and executed their responsibilities with regard to the appointment of a transitional executive cabinet of consensus. Equally, Troika wishes to congratulate all the opposition political platforms who participated in and have supported the process to date.

Troika also notes that although the process of appointing the cabinet has not been without its challenges it is satisfied that the process is broadly in line with the letter and spirit of the road map.

Troika wishes the newly appointed members of cabinet well and hopes that they remain committed to positive participation in this transitional arrangement as it is a necessary means to achieving a democratic dispensation.

In moving forward Troika realizes that there will be many risks on this path given that a transitional government of national unity by its nature comprises a diversity of political personalities, political platforms and policy perspectives.  The challenge for this cabinet however is to turn this diversity into opportunities with a clear unity of purpose that seeks to ensure a better life for all Malagasy people by returning it to constitutional normalcy and a  democratic state.

In this regard the government of national unity discussions and decisions should always be guided by the key principles and spirit of the Road map which include consensus, credibility, integrity, impartiality, accountability and Nation building.

Troika is aware that there are a number of political platforms, some of whom are currently participating in the GNU, and others who, from the outset, have not participated in and supported process, that are creating a climate resistance to the current process.  These platforms are inciting leaders to withdraw and or suspend participation within the government of national unity.

Political Platforms should note that suspension of participation by implication means the rejection of the SADC Road Map and the implementation thereof as endorsed by Troika.

This strategy of suspension goes against international norms and practices of building a government of national unity. Whilst Troika acknowledges that there may be some concerns in respect of the representation of the cabinet, Troika implores upon the parties to continue to participate and allow it to address these concerns through the legitimate mechanisms within SADC.

Democratic values and the building of a government of a national unity dictate that problems and issues are addressed through robust engagement and consensus decisions between parties as opposed to non collaboration.

Troika therefore implores upon the leadership of all political platforms to make the necessary sacrifices and compromises in order to move the process forward.

The people of Madagascar require the leadership to put the national interest above the interests of respective platforms..

Issued by the Executive Secretary
On behalf of SADC Troika
26 November 2011