How Madagascar’s new foreign investment law will perpetuate the colonial dispossession of the people

The new law gives foreign investors equal rights to land as ordinary Malagasy, some who are still demanding the return of  ancestral lands seized by the French in the 19th century.

Conflicts over land are rife in Madagascar, and the population suffers in silence from the injustices stemming from these disputes. According to a 2022 report from OBS Mada, 25% of social conflicts in 22 regions in Madagascar were related to land. Land grabbing by states or mining companies deprives communities of agricultural lands they have worked on for years and diminishes agricultural yields. Sometimes, family disputes over land inheritance escalate into violence and murder. Powerful business actors acquiring land leave deprived families homeless. The state taking away lands to build a controversial highway without notice dispossesses farmers who watch helplessly as rice fields are destroyed with no warning and no compensation.

The Malagasy people have had enough of this systemic violence. Civil society organizations in Madagascar are now deeply concerned about the threat the recently passed foreign investment law poses. Currently undergoing a constitutional review, if approved by the High Constitutional Court, it enables foreign investors and companies to lease land for 99 years and renew such agreements through emphyteusis, effectively granting them ownership of the land. With such a law, 80% of the Malagasy are at risk of eviction from their land.

Colonial legacy

Since the colonial period, the Malagasy people have been victims of a system imposed by the French in 1896: the Torrens registration system and cadastre. This system recorded land concessions issued to colonialists, which allowed them to expropriate forcibly approximately one-fifth of the arable land in production. Locals all over Madagascar, in districts such as Mananjary, Mampikony, or Soavinandriana Itasy have endured a terrible aftermath. In Madagascar, the heirs of those colonisers have the right to claim the lands that their ancestors owned. However, a proposal concerning the lands registered to colonisers was submitted to the Business Law Reform Commission (CRDA) for consideration and subsequently forwarded to the Prime Minister for approval. It has been two years, and this proposal has yet to be reviewed by the government council.

Mr. Raparison Eric Herman, the National Coordinator of the Platform of Civil Society Organizations and the Solidarity of Land Actors (Solidarité des Intervenants sur le Foncier – SIF) asserts that the implementation of this law project would effectively address the issues associated with colonial lands.

There was no process of land restitution following the conclusion of the colonialism, based on the UN Charter’s affirmation that independence entails a nation’s sovereignty over its entire territory, says Mr Raparison. Throughout the colonial era, land management was conducted by French settlers to advance the interests of France. However, when France officially recognized Madagascar’s independence through the signing of relevant agreements, the lands were consequently relinquished to the Malagasy State, thereby belonging to the entire Malagasy population. As a result, each and every Malagasy citizen possesses the right to obtain land by following the necessary procedures and applying to the appropriate administrative authorities.

In February 2022, in 10 fokontany (the smallest administrative unit in Madagascar) in the districts of Mampikony and Port-Bergé, located in the Sofia region, the Fokonolona (a local community composed of individuals) consisting of 3,000 people were forced to hide in the forest for months and suffered from hunger. Around 39 people were imprisoned, and individuals were subjected to physical violence due to a land dispute involving at least 3,000 hectares with COTONA Real Estate, a subsidiary of the SOCOTA group. Furthermore, the company confiscated agricultural produce worth 5,000 tonnes and destroyed the crops. The company claims to have obtained the land title from the heir of the settler who owned it during the colonial period in Madagascar. However, while the Fokonolona and their ancestors have worked the land since the colonial era, the company failed to provide clear evidence of how it obtained the title.

A mafia network?

It appears that a network resembling a mafia has taken control of the entire land system in Madagascar. The Malagasy people express their grievances about powerful business actors, including some individuals from the Karana community (descendants of Indo-Pakistani immigrants from Gujarat in western India), foreigners, and corporations, which have acquired vast land-holdings throughout the country. In a recent case, a renowned singer who was advocating against land grabbing by influential business actors in Nosy-Be was imprisoned for defending local communities, forcibly removed from their land by a Karana individual.

According to Mr. Naivo Raholidina, a Deputy and the head of the committee on land ownership, 90% of land problems stem from corruption within the justice system. Corruption and influence peddling are widespread within the Malagasy justice system. Recently, Transparency International Initiative Madagascar launched a call for testimonies on cases of corruption related to imprisonment. Mr. Naivo Raholidina suggested that foreigners and large companies can easily obtain land titles (including forged documents); even when Malagasy people possess legitimate legal papers, it is infinitely more difficult for them.

Recently, serious accusations of high-level corruption have emerged, implicating the Malagasy justice system. For instance, a well-known and powerful businessman named Mamy Ravatomanga has been exposed by a whistle-blower for allegedly bribing high-ranking civil servants and manipulating court decisions. The former Minister of Justice, Imbiki Herilaza, resigned after being caught red-handed in a racketeering case involving hundreds of millions of Malagasy Ariary, the national currency.

Malagasy feel powerless in the face of high-level corruption within the justice system. Monique Raharimalala, who owns a plot of land in Mahajanga, has been trying to regularize her land and obtain a title since 2017. However, the administrative procedures have been slow, and by 2023, she still hasn’t received a title. Monique shares her frustration: “People have told me that I won’t receive anything unless I give money. I believe that’s why I still haven’t received a response because I haven’t offered any financial incentives. I have been diligently following all the instructions I have been given. Despite being frustrated with this situation, I refuse to despair. I remain persistent and hold on.”

Monique’s family also faces land-related issues. Her mother acquired a plot of land in 1993 when land registration was not a common practice. Despite having a document from the fokontany attesting to her mother’s ownership, their neighbour found a way to demarcate and obtain titles for the land, including her mother’s plot. Portions of the land were sold to a lady married to a foreigner, while another part was offered to Monique’s mother. Monique believes that her neighbour didn’t touch the other lady’s land due to her wealth: “I know they didn’t dare to touch the other lady’s land because she has money, but mom doesn’t. They think she would not be able to do anything about the situation”.

The case was brought before the courts with the support of a lawyer who represents her gratis. It is still ongoing to this day. Monique expressed their fear and despair: “The case went through the Court of First Instance, the Court of Appeal, and the Administrative Court… We, her children, are no longer convinced to fight for this land. We are being told to give up the land because she receives threats. Mom perseveres thanks to the support of the lawyer who refuses to let go of the case. But if it were up to her, she would have given up long ago because she is tired.”

Institutional failures?

Are the Malagasy people facing institutional failures? The World Bank has invested a significant amount of money in streamlining the provision of land titles, and recently the Malagasy government announced its intention to distribute around 2 million titles this year. However, there have been concerns raised about the focus on these efforts. The World Bank has faced criticism as; within a span of 6 years, it was only able to distribute 570,000 titles out of the initially announced 2.5 million. Astonishingly, $47 million of aid is said to have been earmarked for this purpose.

Mr Raparison expressed similar sentiments during a debate on TV Plus, a Malagasy TV channel. He stated that the World Bank delivering two million certificates is a misguided approach, as it neglects the need for proper planning and could result in overcrowding within limited spaces. Instead, he emphasized the importance of comprehensive territory planning. Furthermore, he criticized the International Community’s policy that suggests the Malagasy should allocate lands to foreign investors, thinking that the Malagasy are not capable of efficiently exploiting the lands and hence tasking the Economic Development Board of Madagascar to grant lands to foreigners. Instead, Mr. Raparison suggested that the Malagasy should implement a sound land distribution policy that benefits the local population.

Today the new law on investments, already adopted by the Council of Ministers  and voted by the National Assembly on May 22, 2023 and the Senate on May 25, 2023 aiming at promoting an attractive business environment, is criticised by members of civil society who see it as  a commodification of Madagascar’s land heritage. This is a law that facilitates the access of foreign investors to the acquisition of land. According to the Tany collective, this bill harms the Malagasy society in favour of foreign investors who could renew their emphyteutic lease several times, thus depriving nationals of access to land for several generations.

The Ministry of Trade and Industry and the Economic Development Board of Madagascar, spearheading the efforts of the Malagasy government, have championed the adoption of this law with the primary objective of enticing foreign investors to establish their businesses in Madagascar. According to an article in l’Express de Madagascar, these institutions contend that the reform enables Madagascar to align itself with international principles and standards, thereby attracting investment from domestic and foreign sources alike. The primary objective of the reform is to augment the country’s attractiveness and foster a business environment that is favourable and secure for both local and international investors, consistent with the investment action framework delineated by the OECD. Through the enactment of the new law, equal treatment is assured for investors irrespective of their origin (foreigner and Malagasy), and a comprehensive system is established to uphold principles of fairness, equity, and parity in the treatment of all stakeholders involved.

When questioned about whether foreign entities such as nations and institutions promote the approval of this law, Mr. Raparison responded by suggesting that the World Bank, being pro-investment, and financially influential countries might not only be using influential actors to lobby for  greater investment, but also to safeguard their interests in our country. However, he refrained from explicitly stating that foreign countries or international organizations endorse this vote. “That’s all I can say,” he added, “as you won’t hear me directly saying that foreign countries or international organizations support this vote.”

“While investors can indeed stimulate our country’s economy, we must consider the associated costs,” he continued. “The government pays little attention to land-related issues and the potential consequences of long-term land leases on the Malagasy people. It would be akin to denying several generations of Malagasy individuals access to their own land. These long-term leases serve as a means to bypass Malagasy legislation, which prohibits foreigners from owning land in Madagascar.”

One illustration of the reluctance of the local population to use land for mining is what is happening in Toliara. In Toliara, the ilmenite exploitation project of the company Base toliara has met with strong resistance from the population. In 2018, local communities supported by civil society organizations raised their voices against the state’s declaration of plots of land as being of public utility in the mining perimeter, which allowed the mining company to start discussions with land owners to expropriate them (the port and road infrastructure is considered a public utility).

For now, the activities of the company are at a standstill; the possibility of a resumption of activities divides community opinion. On the one hand, there are those who anticipate the resumption of activities, because it would trigger the resumption of socio-cultural activities in the exploration area. On the other hand, members of civil society maintain their position and say that the resumption of exploration activities in Toliara would mean endangering the health and survival of local communities. Whatever the case, the land would no longer be for agriculture but for mining-related activities.

In light of the law being passed, civil society organizations like SIF, CRAAD-OI, and Collectif Tany, which advocate for the rights of local communities, share a sentiment reflected in Mr. Raparison’s statement: “Our efforts will not cease at this point; we will strive to take action during the implementation phase by starting to get involved in the drafting of its implementing decree. We will fight to ensure that the renewal of 99-year leases is subject to specific conditions, or alternatively, that a periodic review is conducted every 30 years to assess whether the lease extension should be maintained or terminated.”

Madagascar requires a comprehensive and integrated approach to effectively address the far-reaching consequences of land conflicts on the marginalized communities’ everyday existence. Urgent measures must be taken to combat pervasive corruption within the justice system and enact legislation that safeguards the rights of the Malagasy people, preventing transnational corporations and powerful entities from unjustly depriving individuals of their rightful possessions. By prioritizing these actions, Madagascar can foster a fair and equitable society that upholds the interests and well-being of its citizens.