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11 June 2016
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Newsletter n° 53

Open Letter to the Prime Minister
MAHAFALY Solonandrasana Olivier

who will present to the National Assembly his plan for implementation of the Government’s National Program
on Monday 9th of May 2016

Honourable Prime Minister,

We, members of The Malagasy Lands Defense Collective – TANY, wish that your nomination by the President of the Republic to the high responsibility position of Prime Minister of Madagascar will relieve the distress in which the majority of the Malagasy population is living and we wish to particularly draw your attention on a burning current topic.

UA draft law on titled private properties under discussion at ministerial level contains an Article which seeks to give the same land access rights to Malagasy citizens and foreigners. (1)

Furthermore, the 99th article of the draft law states : “The accession to land by foreigners is submitted to specific provisions on the matter and more particularly by the law 2003.029 of August 27th, 2003”. We will talk about “The accession to land by foreigners”, which, as far as we know, is included in the 2003-028 law which was enacted on the same day. (2)

The Collective TANY and other Malagasy civil society organizations had issued alarms since several months against tendency of political leaders and policymakers in Madagascar to sacrifice the future of the majority of Malagasy people to please foreign investors. (3)

The “business climate” will not get better with the widespread transfer of Malagasy lands to foreigners

As all citizens of Madagascar and of the world know, the relative timidity of investors to come (or come back) to Madagascar finds its main explanation in the lack of confidence of national and foreign investors (4) in the governance and in the leaders efficiency. As a further explanation, there is the lack of infrastructure, particularly road infrastructures, and the aggravated intermittency of the electric power availability which makes all industrial operation hardly feasible and profitable.

Since political leaders and policy makers do not want or fail in dealing with those problems, they sell off lands to foreigners. But lands have a sacred value relatively to ancestors and their availability is crucial for Malagasy people for the current and future generations survival and development.

The 2003-028 Law was established and enacted in 2003 to allow full ownership of Malagasy lands to foreign-owned companies who plan to invest more than 500 000 US Dollars. The resulting arrival of investors in Madagascar was probably unsatisfactory, that’s why the team in power has conceived and submitted the 2007-036 Law, removing the criterion of the 500 000 Dollars investment criterion.

How many serious and competent investors came to Madagascar, following this? What development for the Malagasy people was brought by the privileges that successive regimes accorded to these investors? Our country is located in the lowest category in the international macro economic statistics. A majority of the population is living in more and more precarious conditions.

The leaders and policymakers are responsible, international organizations are accomplice.

Furthermore, various international structures and institutions put pressure for a gradual withdrawal of the State from all economic management of the country, for the benefit of private sector companies. The International Monetary Fund and the World Bank have enforced structural adjustment in the 1980’s. Lands and buildings were appropriated by foreigners in the framework of national companies’ privatization.

In 2013, the Collective TANY had alerted about the Indian Ocean Commission’s (IOC) project “Madagascar, Indian Ocean’s food basket”, which aimed at ensuring food security for the five islands of the Indian Ocean, with thinly veiled designs on Malagasy lands (5). The achievement of the project declared objectives turns out to be questionable for lucid commentators (6) and the risk for Malagasy food security and sovereignty is obvious because food production will give priority to exports.

After the conference of this IOC project’s funders, that occurred in February 2015 (7), the World Trade Organization (WTO) has planned a “Malagasy’s trade policy and practices review” (8). During the WTO meeting of November 2015, a report was launched by the United Nations Conference on Trade and Development (UNCTAD) on Madagascar untitled “Investment Policy Review”. This report notes in its recommendations that “the restriction of access to land ownership by foreigners may constitute a disincentive to investment” and that it’s necessary to “Clarify the rule regarding land acquisition authorisation for foreigners”. (…) “The possibility for foreign investors to access property having been suspended in 2009, according to this organism, (…), it recommends :

- In case of suspension’s lifting, to automate its granting, subject to compliance with objective, clear and predetermined criteria included in the Investment Law in order to make the regime foreseeable;

- In case of suspension’s keeping, remove dispositions relating to land acquisition authorization of the Investment Law” (9).

Honourable Prime Minister, the previous government’s Minister of Industry who became Minister in charge of Land in the government you run, has always defended this UNCTAD report (10). Was he appointed to this new position to introduce changes in the law which will give the same land ownership rights to Malagasy citizens and to foreigners? Who took the decision to opt for enlarging the possibility for all foreigners to become land owners?

Lots of Malagasy people and citizens all over the world are wondering why Malagasy leaders make such disadvantageous commitments for the Malagasy people, what promises have they made and in exchange for what? To mention just a few examples: Marc Ravalomanana, whose supporters tended to extol “nationalist” measures had enacted 2003-028 laws then 2007-036, which allowed for the first time foreign companies to purchase lands. Next his regime initiated the Daewoo project which is now suspended. In 2014, as soon as he came to power, Hery Rajaonarimampianina launched appeals to investors in France, South Africa and Israel to come and take available lands in Madagascar. During the transition the Madagascar Development Corporation company was created, a joint venture including the Malagasy State (15%) and the Chinese China International Fund (85%) aiming at investing in almost all economic sectors. (11)

The specific links between various international organizations and foreign powers, and successive teams in power and each Malagasy leader, require more detailed research.

Foreign investments do not really promote the development of Madagascar

The argument put forward by leaders, decision-makers and national and international experts to justify their choices and acts is that Malagasy citizens would be unable to ensure the “development of Madagascar”.

How could this country become richer or at least less poor, when Malagasy free zone laws, establishment conventions like the ones of QMM, as well as numerous partnership agreements signed by Madagascar with various developed countries, exempt big companies from numerous taxes? The powerful QMM-Rio Tinto multinational company which started to operate in 2009 signed its first land long lease only in 2012 – which recently had to be re-signed as well as a framework-agreement, since the first one was contestable and furthermore the number of jobs created was very low and there were negative impacts on expelled local communities. Information gathered in December 2015 confirms that the Ambatovy company still did not pay the taxes and discounts owed to the municipalities impacted by its mining activities. This company did mortgage a part of the areas rented through the long lease. Therefore the present Company’s troubles and very low mining products rates on the global market lead us to fear these fields to be lost for Madagascar.

For this country which has a number of mining resources, there will be no hope for a sustainable and consequent national economic development, as long as the leaders and decision makers only propose a small increase of mining taxes, in the Mining Code revision project (12), while they need to borrow millions of dollars from several banks for agricultural development, energy production and road construction (13).

Generally speaking, “current laws do not include explicit provisions concerning the obligation for investors to apply any sharing mechanism of benefits with population, as benefits are mostly in favour of investors”, according to an evaluation report commissioned by the World Bank, in the section relating to investment on large surface lands (14). By contrast, a land census has been undertaken in early 2016 in cities like Antsiranana-Diégo-Suarez, with the support of the Integrated Growth Pole of the World Bank, with a view to ensuring the land taxes payment by all inhabitants (15). And the tax pressure on small and medium Malagasy economic operators in all regions becomes increasingly constraining and unbearable since a few years.

Granting even more important privileges to foreign investors in greater number may blatantly impoverish the majority of Malagasy, Mister Prime Minister.

Granting land titles to all foreigners will provoke a new colonisation on Malagasy people.

Numerous agricultural plantations, among the 50 agricultural investment projects out of more than 1 000 hectares identified between 2005 and 2011 and using agro-industrial methods and technologies, failed for various reasons. This demonstrates that Malagasy agricultural problems are not mainly due to mistakes or lack of experience of Malagasy peasants who work according to the family farming system. The will to replace them by companies and farmers from other countries is not a solution for food security, neither for Madagascar, nor for the Indian Ocean area.

Furthermore, granting the same rights to “buildings matriculation” that is to say access to ownership and to land titles, for non-Malagasy or non local companies and individuals will not create an “egalitarian” system as written by a journalist (5), but will exclude Malagasy peasants and citizens from their ancestral lands and fields that Malagasy families have cultivated to live on.

Indeed, as you certainly know Mister Prime Minister, acquiring a land title needs a lot of time and a lot of money. The vast majority of Malagasy live on their lands without any land title and more than 1 000 municipalities on the 1 693 do not have any administrative land office which are the only ones entitled to deliver land certificates. The present extreme poverty in which most of non-wealthy Malagasy people are does not make it possible for them to equally compete with foreigners. Moreover investors and foreign-owned companies have the advantage of being supported by EDBM (Economic Development Board of Madagascar) which carries out and accelerates their administrative procedures.

The possible adoption of the 8th and 99th articles of the draft law on titled private properties might quickly bring the whole territory to be registered as owned by foreigners, and the majority of Malagasy people will be in danger of being permanently expelled from their lands, as titles are “unassailable and definitive” according to this draft law.

Investments are useful and necessary, working and exchanging with citizens of other nationalities is rewarding for all, but not at any price. Normally, each party negotiates the defence of its interests and benefits before signing a contract. The main goals of Malagasy leaders during the negotiation should logically give priority to the interests of the majority of Malagasy citizens and peasants, and to the preservation of their rights on Malagasy land. Taking away definitively their land rights, as stipulated in this draft project, appears irresponsible and unacceptable.

The Collective TANY claims and proposals

Possibility for foreigners to own titled lands should be removed from the draft law on titled private properties. Malagasy lands must stay permanently a common good of all Malagasy people, being “tanindrazana”. “Selling lands to foreigners” has always been a taboo in the Malagasy culture (16).

Many Malagasy citizens’ protests against land grabbing in various areas are spread on social networks and in the press (17). Just as others countries’ citizens, (18) the majority of Malagasy citizens will not agree to be deprived of their land, their most precious good, the only good that plenty of Malagasy peasants possess.

The Sofia Region inhabitants presently protest against land-grabbing by Chinese people. (17) Explain to lawmakers and Malagasy people what is happening, Mister Prime Minister, and ask those who are responsible to give their lands back to Sofia Region inhabitants.

The Collective TANY reiterates its request to disseminate to all citizens on a web site information about State lands already sold or rented with details of each contract. An inter-ministerial meeting has discussed it after the first set of State private lands inventory but we are still waiting. The Malagasy citizens are entitled to know what the successive officials have done about Malagasy lands.

An agreement has just been signed between Mauritius and Madagascar on a special economic zone in Fort Dauphin. (19) Is it a sale or a long lease? If it’s a lease, how much and how long is the lease? What will be the surface concerned and what activities will be conducted there? What is the expected employment number?

An agreement on “the provision of two thousands (2 000) parcels of lands to Muslims“ would have been signed by the State. What are the terms of contract? Who are the beneficiaries? What are the objectives? (20)
The Collective TANY confirms its proposal to organise the participation of all Malagasy citizens in controlling and managing lands of each municipality (see Newsletter n°20), facing the opaque and very questionable governance of Malagasy lands by national and local officials.

Lastly, Mister Prime Minister, the Orientation Law on Territory Planning voted during the last session of the National Assembly provides in its 14th article, that the Prime Minister “determines measures to be implemented in terms of regional planning in collaboration with decentralized territorial authorities”. This Orientation Law aims at “ensuring a balanced distribution of population and activities throughout the national territory” and “ guaranteeing the consistency of public and private activities which contribute to economic and social development of the territory” (according to the draft law because the voted one has not been published yet). As part of the consistency with these goals, the Collective TANY proposes that the Ministry in charge of Presidential Projects, Territory Planning and Equipment, in charge of Land, gives priority to draft laws legalizing common use rights on three-quarters of all Malagasy lands which are neither titled nor certified, pursuant to Voluntary Guidelines for a responsible governance of land tenures applicable to lands, fisheries and forests in the context of national food security adopted by the Committee on Food Security in May 2012 (21) in order to secure land rights to farmers, local communities, the majority of Malagasy people all over the Madagascar territory.

The Collective TANY will soon speak out about the others points of the draft law on titled private properties but requests from now on the withdrawal of the proposals which generalize land title acquisition by foreigners – particularly the 8th and 99th Article of this draft project, because they are dangerous for the development and survival of the majority of Malagasy people.

We thank you, Mister Prime Minister, for your attention to our requests and for the solutions in favour of interests and development of Malagasy people that you will adopt.

Paris, May 7, 2016

The Malagasy Lands Defense Collective – TANY

patrimoine.malgache@yahoo.fr, http://terresmalgaches.info, http://www.facebook.com/TANYterresmalgaches

References

Article. 8 - Subject to specific legal provisions, the matriculation of buildings and the registration of the rights mentioned in the article 12 may be requested by the owner or a real property rights holder irrespective of their nationality and their legal status.

http://www.sobikamada.com/fil-info/item/8043-allons-nous-vers-le-droit-des-%C3%A9trangers-au-foncier.html

Article 12. - Any real property right or charge related to such a right, doesn’t exist in relation to good faith third parties until it will be publicised in forms, conditions and limits regulated by this law and its subsidiary legislation.

This provision is not applicable to rights and reciprocal actions of parties for the specific agreement execution concerning registered land.

The publication formality to land register, must be made from the date of the act within a period determined by a decree, subject to publication costs increase set by regulatory act.

Article 99.- The accession to land property for foreigners is subject to specific provisions on the matter and more particularly to the law 2003-029 of the 27th of August 2003.

The law 2003-029 amends certain provisions of order n° 60-146 of 3 of October 1960 concerning matriculation land tenure.
Source: Journal officiel de la République du Madagascar n° 2853, 28th of August 2003, p. 2275

(2) Law n° 2003-028 of the 27th of August 2003 amending and supplementing the n° 95-020 of 27 November 1995 defining the organization and control of immigration states in article 11 : “Any foreigner may be allowed to acquire real properties on presentation of an investment program.” The authorization is granted by an organism and/or by the Government council and/or by the Ministerial Council under the terms and conditions established by Government council decrees.

The decree n° 2003-897 of 27 August 20013 amends certain provisions of the Decree
n° 94-652 of 11 October 1994 establishing the modalities for implementation of law n° 62-006 of 6 June 1962 on the organization and control of immigration and its article 31 describes the procedure to follow for the real property acquisition by foreigners.

(3) http://terresmalgaches.info/spip.php?article99 and http://terresmalgaches.info/spip.php?article101

(4) http://matv.mg/climat-des-affaires-reticence-des-investisseurs-a-venir-au-pays/,
http://www.lexpressmada.com/blog/actualites/redevance-acd-le-gouvernement-cede-devant-le-secteur-prive-56833/

(5) «Nevertheless, the realization of this project depends on the outcome of several actions. Madagascar must fulfill certain conditions before pretending to become the Indian Ocean food basket. Workshop participants had underlined the most urgent of them. Madagascar, for example, has to improve law on investments and ensure equal treatment for Malagasy investors. The land access has been mentioned as an example of inequities. (…) Results obtained are minimal up to now.
Another problem concerns the land acquisition for farming. (…) Considering the Malagasy attachment to lands, it is, indeed, unlikely that individuals readily agree to give up their lands, unless it be for rental. A problem that can occur also concerns occupancy of state-owned lands by individuals. That could involve expropriations to the public interest. (...)

in http://www.lexpress.mu/article/production-agricole-madagascar-futur-grenier-de-l%E2%80%99oc%C3%A9an-indien

(6) « Hery Rajaonarimampianina n’a pas précisé comment il comptait satisfaire non seulement les besoins alimentaires des 22 millions de Malgaches, mais aussi ceux des pays voisins (Comores, Maurice, Réunion, Seychelles)» http://www.clicanoo.re/?page=archive.consulter&id_article=462492)

(7) http://commissionoceanindien.org/activites/securite-alimentaire/conference-des-bailleurs-sur-la-securite-alimentaire-des-projets-concrets-pour-faire-de-la-grande-ile-le-grenier-de-locean-indien-2-fev-15-maurice/

(8) https://www.wto.org/french/tratop_f/tpr_f/tp418_f.htm.

(9) http://unctad.org/en/PublicationsLibrary/diaepcb2015d4_fr.pdf - pages 14-16

(10) (http://www.midi-madagasikara.mg/economie/2015/09/14/narson-rafidimanana-pas-de-place-aux-monopoles/; and http://www.lagazette-dgi.com/index.php?option=com_content&view=article&id=51083:climat-des-affaires-que-les-etrangers-investissent-ailleurs&catid=41&Itemid=108)

(11) https://www.ifri.org/sites/default/files/atoms/files/ifripellerinchineamada.pdf
http://www.courrierdemada.com/mg/index.php?option=com_content&view=article&id=12774:sa-l-madagascar-development-corporation-
r-grogne-des-operateurs-malgaches&catid=43:a-la-une

http://www.lemonde.fr/afrique/article/2015/10/26/fin-de-partie-en-afrique-pour-le-boucanier-chinois-sam-pa_4797160_3212.html

(12) A version of the Mining Code draft law proposed a rate increase from 1 to 2% in the 2005 Mining Code to a higher rate but discussions are still ongoing.

(13) http://www.assemblee-nationale.mg/wp-content/uploads/2015/10/ORDRE-DU-JOUR-LAVA-+++1.pdf

(14) http://www.landaccessforum.org/wp-content/uploads/2016/01/10-Rapport-final-LGAF-Madagascar.pdf - page 166

(15) http://www.lexpressmada.com/blog/actualites/antsiranana-le-recensement-foncier-sur-les-rails-58242/

(16) http://terresmalgaches.info/IMG/pdf/Rapport_Accaparements_de_terres_Madagascar_2013.pdf, notamment p. 13, 58, 83 et suivantes.

(17) http://www.sobikamada.com/fil-info/item/8077-mandritsara-sofia-r%C3%A9volte-contre-la-vente-de-terrain-aux-chinois.html

(18) http://www.lefigaro.fr/actualite-fr...
http://www.lefigaro.fr/societes/2016/04/13/20005-20160413ARTFIG00138-des-terres-agricoles-rachetees-par-un-mysterieux-groupe-chinois-dans-le-berry.php;
http://toutsurlachine.blogspot.fr/2...

(19) http://www.rfi.fr/afrique/20160314-maurice-madagascar-visite-signe-economie-president-malgache-Rajaonarimampianin

(20) http://www.lagazette-dgi.com/index....

(21) http://www.fao.org/fileadmin/templates/cfs/Docs1112/VG/VG_Final_FR_May_2012.pdf