Madagascar – Constitutional history

In a previous post, a question was raised about Madagascar’s constitutional history from 1991 onwards and how it should be classified. This post sets out how I see it. With the exception of the 1995 reforms, the documents are all available in French at the Digithèque MJP.

In October 1991, there was a constitutional convention that governed the transition to democracy. There was a president and a prime minister, but no legislature. This was clearly an interim document that was not semi-presidential (or either presidential or parliamentary).

In August 1992, a new constitution was adopted. ICL provides an English version here. This constitution created a premier-presidential version of semi-presidentialism. Arts. 53 and 61 made no mention of prime ministerial responsibility to the president, only to the National Assembly. Responsibility to the National Assembly took various forms. According to Art. 90, it was on the basis of an investiture vote on the government’s programme, whereby a majority of the members of the National Assembly was required to approve the PM. Art. 91 also stated that if the government decided to change its programme during the course of a legislature, then it could ask for a vote of confidence. If two-thirds of the National Assembly voted against the government, then it had to resign. Art. 94 also allowed for motions of no-confidence. Such a motion was adopted if it gained the support of a majority of the members of the National Assembly. The wording of this constitution is unproblematic.

In October 1995, a constitutional law was passed. The details are in J. du Bois de Gaudusson, G. Conac, C. Desouches (eds.), Les Constitutions africaines publiées en langue française, Paris, La Documentation Française, 1998. This revision did change various articles that are potentially relevant to the classification of the country. There was still no mention in Arts. 53 or 61 of PM responsibility to the president, only to the National Assembly. However, Art. 90 was reworded. A new clause was added at the end stating that the president ends the PM’s functions (met fin aux fonctions du PM) either as a result of a vote of no-confidence (vote de défiance), or as a result of a motion of censure, or for any other determining cause (toutes autres causes déterminantes). This article is now very confusing. It seems to deal explicitly with the terms of the government’s investiture, but the new clause at the end seems more general. Presumably, it put the onus on the opposition to lodge a motion of no-confidence or censure rather than requiring the government to obtain a majority. Even so, the phrase ‘for any other determining cause ‘ seems to apply far more generally than just the investiture. What is more, it is not entirely clear how a vote de défiance is different from a motion of censure. Art. 91 was also reworded to allow the government to ask for a vote of confidence at any time. Again, a two-thirds majority was required to bring down the government. In addition, Art. 94 was amended such that a vote of no-confidence now required a two-thirds majority to bring down the government.

In April 1998 there were further amendments. Art. 53 was amended so that it now read: ‘The president ends the PM’s functions for any determining cause’ (pour toute cause déterminante), though Art. 61 still only makes reference to PM responsibility to the legislature. Art. 90 was amended to remove any need for an investiture vote and the clause that was added in 1995 was deleted. Art. 91 was also amended. A motion of confidence now required only a majority of the National Assembly to bring the government down. Art. 94 remained the same.

There were further amendments in 2007, but the wording of the above articles was not changed, though they were renumbered. The constitution was suspended in February 2009.

So, how do we classify Madagascar from August 1992-February 2009. It seems to depend on two things. Firstly, there is the super-majority requirement in Art. 94 from 1995 onwards. For me, this does not make a difference to the classification of a country as semi-presidential. I have already posted about this issue here. Secondly, there is the phrase “pour toute(s) cause(s) déterminante(s)”. This is a very unusual phrase that I cannot remember seeing in another constitution. I interpret it as meaning that the president can dismiss the PM on the basis of a given reason. To me, this allows the president to dismiss the PM.

Overall, I class Madagascar as semi-presidential from 1992-2009, and as premier-presidential from 1992-1995 and president-parliamentary from 1995-2009.

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