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Brussels, 11.5.2009

COM(2009) 219 final

COMMUNICATION FROM THE COMMISSION TO THE COUNCIL

on the opening of consultations with Madagascar under Article 96 of the Cotonou Agreement

COMMUNICATION FROM THE COMMISSION TO THE COUNCIL

on the opening of consultations with Madagascarunder Article 96 of the Cotonou Agreement

1. Background

After two decades of one-party Socialist rule, a democratic climate started to emerge in Madagascar in 1991-92, based on a multi-party system and the separation of powers. A new founding constitution of the third Malagasy Republic was adopted in 1992. The ensuing political transition showed much evidence of democratic progress, but significant setbacks also occurred under the presidency of Didier Ratsiraka (1996-2001). The presidential elections of 11 December 2001 prompted a serious political crisis. On 29 April 2002 the High Constitutional Court proclaimed the election of Marc Ravalomanana, who took office in May and was recognised by the international community in July.

Relative stability returned to Madagascar following the 2002 crisis. 2006 brought presidential elections, which took place in a calm and orderly manner observed by representatives of the international community with the EU in the forefront. On 23 December 2006 the outgoing President, Marc Ravalomanana, was declared the winner with some 55% of the votes in the first round.

A lengthy electoral cycle culminated in 2008 in a large majority for the President's party, the TIM, in the Parliament (national assembly and senate) and at local authority level (municipalities and regions). Political tension mounted in Antananarivo at the end of 2008 on account of the closure of VIVA, the television channel owned by Mr Andry Rajoelina, the capital's independent mayor. His relations with President Ravalomanana became openly hostile. In the run-up to Christmas, the mayor publicly gave the government an ultimatum: authorise the reopening of his television channel and allow general freedom of the press by 13 January 2009. As the deadline approached, the mayor organised a series of rallies for the inhabitants of Tana and called for a general strike on 24 January. A rally attended by tens of thousands of demonstrators on 26 January rapidly degenerated. Demonstrators set fire to the State broadcasting company's offices and shops were looted, especially those of the Tiko chain store owned by the President's family. The rioting continued on 27 and 28 January, resulting in between 70 and 100 deaths. The power struggle between the President and the mayor continued with the latter proclaiming himself President of the "High Transitional Authority" and the former removing him from his post of mayor and replacing him with a provisional administrator. After a further rally on 7 February a serious escalation in events ended in shots being fired when a mob tried to storm the Presidential palace, some 40 protesters being killed and 250 wounded.

Against this background and despite the mediation efforts of the Malagasy Council of Christian Churches, backed by a UN special envoy and other international and regional organisations, including the African Union and the Indian Ocean Commission, the political situation changed dramatically following the issuing of a 72-hour ultimatum by the army's chief of staff urging the parties to take the dialogue forward and work for a political solution. On 17 March the President decided to dissolve the government and issued a decree conferring full powers on a board of members of the military. The military board subsequently transferred the full powers to Mr Rajoelina. The double transfer of power was immediately approved by the High Constitutional Court which declared Mr Rajoelina President of the Republic.

The international community in its entirety has condemned this double transfer of power as unconstitutional.

2. Commission proposal

The Commission considers that any solution falling outside the constitutional framework is completely unacceptable. It has fully endorsed the Presidency statement issued on behalf of the EU on 20 March, which condemns the transfer of powers that led to the deposing of the democratically elected President by force and calls on the Malagasy parties to comply fully with the provisions of the Constitution of Madagascar on presidential vacancies.

Article 9(2) of the ACP-EC Partnership Agreement signed in Cotonou on 23 June 2000 and revised in Luxembourg on 25 June 2005 lays down the essential elements on which the partnership is based. Respect for human rights, democratic principles and the rule of law underpin the domestic and international policies of the Parties and constitute the essential elements of the Agreement. In the light of this Article, and given the circumstances in which Mr Rajoelina took power in Madagascar, the Commission finds that there has been a particularly serious and manifest violation of these essential elements and deems the situation to be a case of special urgency within the meaning of Article 96(2)(b) of the Agreement. It therefore considers it necessary to open consultations with the authorities in power in Madagascar in order to examine possible solutions to the crisis which would re-establish constitutional order. These consultations will be conducted in accordance with Article 96 of the revised Cotonou Agreement.

Such dialogue will give the authorities in power in Madagascar an opportunity to state their intentions and proposals for ending the crisis and allow the EU to judge whether and how it could, on the basis of this dialogue, support initiatives directed at compliance with the principles set out in Article 9(2) of the revised Cotonou Agreement.

The Commission therefore proposes that the Council invite the ruling authorities in Madagascar to hold consultations under Article 96 of the revised Cotonou Agreement in accordance with the attached draft letter.

The Commission proposes that, during the consultation period, ongoing cooperation activities continue with the exception of budgetary aid, which is to be suspended, and programme-estimates and all other payments to the government and its agencies which must be examined on a case-by-case basis. Contacts with national authorities concerning preparation activities for new projects will be confined to any humanitarian measures or measures that directly benefit the population, to be approved on a case-by-case basis. In the case of activities based on Community external aid instruments, the Commission proposes that they be treated in a similar way to activities under the Cotonou Agreement, while ensuring compliance with the provisions of these instruments and the Financial Regulation.

Outside the strict development cooperation context, there is the Fisheries Partnership Agreement and the Protocol thereto on the regional plan for fisheries surveillance in the south-west Indian Ocean; the Commission is currently verifying whether the conditions for implementing the Protocol are still met. Subject to further checks on the proper application of the Fisheries Agreement and regional plan, the Commission may take any relevant action it deems necessary in the context.

ANNEX

Brussels,

President of the High Transitional Authority

of the Republic of MadagascarAntananarivoMadagascar

DRAFT

Sir,

In its statement of 20 March on the recent developments in Madagascar, the Presidency of the European Union expressed its grave concern at the developments which led to the democratically elected President, Marc Ravalomanana, being deposed by force and urged the Malagasy parties to comply fully with the provisions of the Constitution of Madagascar on presidential vacancies.

In application of Article 96(2)(b) of the Cotonou Agreement and in view of the serious and manifest violation of the essential elements referred to in Article 9(2) of the Agreement, we have the honour, on behalf of the Community and its Member States, to invite your country for consultations in order, as provided for in the Agreement, to study the situation in depth and, where appropriate, take steps to remedy it.

We propose that these consultations take place within 30 days of the date of this invitation, at a date to be agreed jointly, in the building of the Council of the European Union in Brussels.

We have the honour to be, Sir, yours faithfully,

For the Council For the Commission

Copies: President of the ACP-EU Council of Ministers Chairman of the ACP Committee of Ambassadors General Secretariat of the ACP Group