Reply to List of Issues
:
Madagascar
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31/08/94
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. (
Reply to List of Issues
)
COMMITTEE ON THE RIGHTS OF THE CHILD
Written replies of the Government of Madagascar to the questions raised by
the Committee in the list of issues to be taken up in connection
with the consideration of the initial report of Madagascar
(CRC/C/S/Add.5)
[Received 31 August 1994]
M/CRC/ (FUTURE)
GE.94-18897 FC (EXT)
REPLIES TO THE LIST OF ISSUES TO BE TAKEN UP BY THE
COMMITTEE ON THE RIGHTS OF THE CHILD IN CONNECTION WITH THE
CONSIDERATION OF THE INITIAL REPORT OF MADAGASCAR
Reply to question 1
In July 1991, a round-table of jurists was organized by the Ministry of Population to consider the implementation of the Convention in Madagascar. It was attended by representatives of various ministerial departments such as Health, Education, Youth and Sports, the National Police and Justice, as well as several denominational and lay NGOs.
Bodies such as the National Council for Monitoring Elections, the Bar Associations, the Malagasy Section of the African League of Human Rights, IBALITA, the National Federation of Associations for the Protection of Children and Young People took an active part in the discussions.
At the conclusion of the round-table an Intersectoral Follow-up Committee was set up to draft the initial report. The Committee was provided with the guidelines for the preparation of the report, a preliminary legal paper provided by the consultant and the text of the sectoral working groups and participated in the drafting of sections of the report and the collection of data. The material was placed in the hands of the consultant proposed by the Government to assemble the report and put it in final shape.
The Ministry of Population and UNICEF led and stimulated the discussion in the areas of special concern to them between the representatives of official bodies and the NGOS.
It is intended to make the Intersectoral Follow-up Committee a permanent body in order to facilitate the preparation of subsequent reports or papers on particular issues and also to ensure more effective follow-up in close collaboration with the NGOS.
Reply to Question 2
The following concrete measures were taken immediately to make the report widely available:
- The report was reproduced for circulation to all the government agencies concerned and to the various NGOs and institutions directly concerned.
Circulation of the Convention was greatly facilitated by the Republic's speedy accession. A bilingual text (French and Malagasy) was published in the official Journal for circulation to government departments and for sale to the public. The Convention was also included in the preamble to the new Constitution of 18 September 1992 as a text of positive law. Translation into the national language greatly enhanced the impact of circulation.
- The text in the two languages was also made widely available to decision-makers (Parliament, Government) and to influential groups outside the government.
Similarly, the report is being widely disseminated with a view to encouraging constructive, free and objective discussion. It will be distributed to decision-makers at all levels, to NGOs active in child and family welfare and to key health and education workers.
The Committee was of course aware of the necessary limitations on the circulation of official government reports addressed to international bodies.
Taking into account UNICEF's concerns, it considered however that the report should be made widely available for the information of decision-makers and social groups in a position to influence and assist them.
Reply to Question 3
The authorities are alive to the importance of circulating the Convention and of making its principles and provisions fully accessible to adults. The general principles introduced in the Convention, although, not new, are of particular importance in malagasy society in considering the status of children: non-discrimination, the paramount interest of the child, the rights (as opposed to the duties) of the child, in particular the right to life, to survival and to development, and respect for the child's opinions.
Two types of measures need to be considered:
- The first are measures already introduced which must be enriched by the addition of explanatory matter concerning the rights of the child: Children's Months are held annually with different themes and using different information material. Illustrated backs and pamphlets with simple explanatory material have been circulated. Others are in preparation, notably a pamphlet with the title "Know your rights".
The attention of NGOs has been drawn to the role they can play in educating adults, in particular their members and supporters and parents.
In this connections, attention should be drawn to the UNICEF programme of social mobilisation for maternal and child welfare which is designed to provide more effective information and to increase the awareness and motivation of the population in support of measures to improve maternal and child welfare in Madagascar.
The social mobilization programme is multifaceted. In the field of information and communication attention is drawn to the country's potential strengths. These include the socio-cultural tradition, in which traditional Society is structured in communities of descendants sharing the same territory, having the same traditional culture, the same solidarity and the same sense of belonging to a hierarchic social group dominated by the
ray amandreny
(elders) whose authority and influence comes from the ancestors.
The solidity of the structure varies from region to region and is affected by social changes, but it is still the framework for social communication and information. Traditionally, social communication is oral, the use of the national language being crucial since it is spoken and understood by the whole population with only a few minor dialectal variations. The various traditional forms of expression can be used to provide attractive and readily understood vehicles for teaching the general principles of child welfare.
The traditional potential is supplemented by modern resources. The printed word, radio and television have their advantages and also limitations, the main limitations being the scattered population and the cost of printing, of radio and television equipment and of power.
Social mobilisation is effectively promoted by the churches and by groups such as parent-teacher associations.
The traditional social leaders also have a part to play. Although they have no administrative or political authority in the democratic system, their charisma and moral authority make them effective opinion makers.
- A second type of measures is those directed to social groups with only limited access to information. Various problems arise in this connection:
- The first is the indifference and even mistrust of social groups deeply wedded to tradition when confronted with new ways of thought and the restructuring of values in connection with the status of children.
- A second difficulty is the scattered population in rural areas.
These problems can be solved without difficulty by social mobilisation programmes conducted by the ministry of Culture and Communication and the staff of medico-social units in remote areas.
Is the language of written or oral communication a difficulty? It was explained earlier that the national language is understood by everyone, despite the occasional dialectal variations. The measures taken by decision-makers and concerned NGOs and the efforts made to express rather dry legal texts in more accessible form for the benefit of wider audiences and the use of cartoon strips are part of the on-going effort.
It goes without saying that social mobilisation necessarily makes use of the national language.
The Ministry of Population has already instituted an adult awareness programme making use of travelling teams. The results have been good, but the country is large, settlements are far apart and the reception varies. The programme is short of staff and resources despite the decentralization of the Ministry's activities. Steps are being taken to provide the concerned NGOs with effective tools for awareness and education programmes for adults, beginning with parents. These measures are incorporated in the Children's Month programmes.
Reply to Question 4
The current reorganization of school curricula will provide an opportunity to make room for issues relating to the Convention, particularly those concerning the rights of children (in relation to their duties). Under instructions issued by the Ministry of Education, some of the reforms outlined by the Minister of Education in a policy speech on 27 December 1991 are being implemented:
- Curricula are being depoliticized and purely ideological teaching is being excluded. Instruction should supplement the pupils' education by introducing notions of morality and civic instruction whenever an opportunity occurs and the teacher considers it necessary.
- Beginning in the 1992/1993 school year, curricula will include such matters as:
- Knowledge of, and respect for, the relations between the extended family, the nuclear family and the community;
- Knowledge of the rights of man and of the child, and their implementation;
- The right of expression of opinion;
- Compulsory education;
- Encouragement to seek information through the available media;
- Knowledge of the rights of children of tender years and of school age;
- The duties of the community in regard to children;
- Sexual equality;
- Communication between parents and children and teachers and pupils;
- Respect for freedom of belief;
- Prevention of discrimination;
- Knowledge of the Constitution;
- Assistance for handicapped children;
- How to make your position known if you are in the right;
- Mutual respect and tolerance between parents and children;
- The prevention of drug abuse.
These topics are included in the general curriculum or in the teaching of particular subjects. They are of greatest importance in the first three years, but are taken up in later years and dealt with in greater depth. The Ministry of Education is represented in the Follow-up Committee.
With regard to interested groups, attention is at present being directed principally to increasing the awareness of NGOs:
- in particular those directly concerned with children, and
- those responsible for increasing the awareness of social workers, teachers, staff of children's shelters, and socio-medical staff in rural areas who can only be reached by travelling teams.
A national seminar for NGOs was recently organized by the Ministry of Population. It dealt with the general rale of the NGOs rather than the rights of the child but it is hoped that regional seminars to increase awareness on that subject will be held for social workers.
To meet the needs of judges and lawyers, it is planned to publish the text of the Convention with commentaries focusing on the situation in Madagascar, but fairly substantial funds will be required for this purpose.
In the case of police officers and other law enforcement personnel, it is planned to publish suitable documentation for serving personnel and personnel in police training schools.
The Ministry of Population and UNICEF have joined forces to make documentation on the social and legal environment of the Convention and the bilingual text of the Convention itself available to judges and lawyers attending round-tables or seminars.
Journalists have been kept informed of Children's Month events and activities in connection with the International Year of the Family.
Also in connection with the Children's Month and the Year of the Family, Malagasy Television, with the assistance of UNICEF, the Ministry of Population and specialized NGOs, broadcast a number of highly regarded programmes on the work of various NGOs, juvenile delinquents, the detention of juveniles and adoption.
To increase media awareness and provide information, a number of pamphlets in malagasy are in preparation. They are designed to provide simplified explanations, illustrated by examples and drawing on life in Madagascar.
Because of the high cost of printing, substantial financial resources will be required for publication.
The expenditure is essential to make the Convention more effective, increase public understanding and help to close the gap between law and reality. (Cf. replies to question 12.)
Reply to question 5
In the Malagasy judicial system, the Code of Civil Procedure, the Code of Criminal Procedure and the texts governing applications to the Supreme Court and the High Constitutional Court, any person injured by violation of a provision of positive law has the right to apply directly to the competent court. Are the provisions of the Convention part of Malagasy positive law? The answer is given in paragraphs 10, 313 and 314 of the initial report. Article 13 of ordinance 62.041 of 19 September 1962, concerning provisions of positive law, states that the general principles set out in the preambles of constitutions are binding on the courts, which must in all cases ensure that they are observed and respected within the framework of the legislation in force. Under Malagasy law, there is no need to embark on an academic discussion of the weight to be attached to the preamble of a constitution. What is contained in the Preamble is without doubt a provision of positive law. Confirming this rule, the Preamble of the Constitution of 18 September 1992 specifies that the Convention on the Rights of the Child and other conventions such the International Bill of Human Rights are an integral part of Malagasy positive law.
The answer to the question is therefore affirmative. Apart from judicial decisions relating to texts applying provisions of the Convention, there has been no judicial decision based on an article of the Convention cited directly in the courts.
It is likely, however, that as a result of the efforts to circulate the text of the Convention and commentaries to members of the legal profession such as lawyers and judges, such decisions will appear and form part of case law. study of such decisions would permit substantial progress in Malagasy law regarding children if contradictions or difficulties of application appeared or led Malagasy legislators to modify provisions of domestic positive law in violation of articles of the Convention.
The Malagasy legal profession has, it is true, tended not to cite directly an international text until provisions of domestic law applying ratified international conventions have been enacted by the Malagasy legislature. This problem was referred to in paragraph 314 of the initial report.
It is therefore important to remind the legal profession of the special status of the Convention as an integral part of positive law.
Reply to Question 6
Under article 4 of the Convention, States undertake to take measures within the limits of their financial resources to in the Convention, in particular economic, social and cultural rights.
The question raises a set of complex issues relating to the right to life, survival and development, the right to health and education and the right to cultural development. Some information - perhaps rather scanty - was given in paragraphs 27 to 31, 36 to 43 and 50 to 61 of the initial report. Further information will be given in the replies to questions 28 to 33 concerning health and education.
In the country's present economic and social situation, two factors must be stressed to provide a better understanding of the obstacles to the adoption of effective measures for the application of the Convention.
1)
Immediate economic prospects
These are not encouraging. The initial report was not intended to provide a detailed analysis of the economic and social environment, but attention must be drawn to a number of stubborn facts. The first is the population situation. The population was 12 million in 1992. The estimate for 1996 is 14 million and 16.6 million in the year 2000. The urbanisation rate is 5.5 per cent a year. The population is young. It is estimated that 70 per cent of the population will be under 25 in the year 2000. This situation has an impact on health, education, employment (125,000 jobs need to be created annually) and migration to the towns.
Other factors must also be taken into account: the increase in consumer prices (about 12 per cent from 1991 to 1993), the increase in the cost of health and education services (14 per cent over the same period), the slump in world prices of the country's exports, lack of competitivity in foreign markets, ever rising import prices and the steadily increasing debt burden.
2) The institutional framework
Creation of the new institutions established by the Constitution of 18 September 1992 calls for a new mental outlook (administrative methods and greater public participation) and adaption to new government and institutional functions inevitably takes time, while the elaboration of economic and social programmes to tackle immediate difficulties is a matter of urgency.
It is difficult to provide a coherent picture of the general measures taken under a policy that is in the process of definition. In this policy the problems of applying the Convention have an important place, particularly with regard to child welfare programmes.
These social programmes are included in general programmes for which the budget figures can be studied.
The Public Investment Programme
This is the programming instrument for the financial aspects of economic and social development.
The Public Investment Programme for 1993/1995 seeks to apply the structural adjustment policy while mitigating the unfavourable repercussions on growth. It is designed to promote price stability and lays stress on the concept of growth with a human face.
The table below shows the breakdown of the 1993 Public Investment Programme:
PIP 1993 (in billions of FMG)
678,2 of which:
in 1992
578 of which:
Agriculture, Fishing, Forestry
16,33%
23,75%
Industry, mines
14,69%
14,98%
Infrastructures(incl.water),Energy
39,27%
31,58%
Social
12,84%
14,02%
Research
2,56%
3,04%
Other
14,30%
12,67%
Social programmes are included in the headings "Infrastructure" and "Social". With the assistance of the international agencies the State has defined priority Fallow-up Areas. These include anti-poverty measures, health and education. In accordance with the priorities defined, the Priority Follow-up Areas received 246.3 billion FMG as against 440.8 billion for other sectors. In the social field, the Programme provides for measures to mitigate social problems, particularly in the fields of health, food security, education and instruction. Special measures are to be taken to assist the most disadvantaged sectors of the population.
The priority areas include the national population policy programme, which is intended to control births, popularise family planning and promote contraceptive methods. It consists of a package of demographic, economic, social, cultural and political measures to reduce, if not eliminate, population problems with a view to the attainment of more objectives towards the goal of accelerated development.
The Sectoral Health Programme should also be noted. In the light of the health situation of the population, the State has prepared a plan of action, with the assistance of UNICEF and other international agencies, to improve the performance of the existing health services. The Programme is intended to integrate transmissible disease control and mother and child welfare with the existing health services and to improve the distribution of medicaments in the health services, which are to be refurbished.
The Sectoral Programme also includes a number of on-going and planned programmes directly affecting child health, such as programmes to control the most serious diseases (plague, bilharziasis, cysticercosis, the expanded vaccination programme and the national programme to control diarrhoeal diseases).
In addition, a variety of measures are being undertaken by the Ministries of Health, Scientific Research and Agriculture, the Prime Minister's Office and the Secretariat of State for Population to improve nutritional policy. (See reply to question 28).
Reply to Question 7
Data concerning the Programme of Public Investment are given above. We must now determine the Official Development Aid (ODA) received from donors to supplement the national development effort. In the social sectors, donors have been asked, for example by the 1992 Conference of OAU Heads of State and Government, to allocate 20 per cent of ODA to the social sectors, in other words to fundamental education, primary health care, infrastructure programmes affecting the environment of daily life (food, sanitation etc), family planning and food and nutritional programmes. The mast recent reliable data available are for 1991. In that year, total ODA was 374 billion francs, down from 445 billion in 1990. The principal donors include the following multilateral agencies: the World Bank, IMF, UNDP, EDF, FAFD, ADB, UNICEF, WFP and IFAD. The bilateral donors are France, the United States, Switzerland, Japan, Netherlands, Germany, Italy and Norway. The multilateral agencies provide approximately 45 per cent of total ODA. One third of the total ODA is contributed by France. Of the aid furnished, 59.86 per cent is in the form of grants and the remainder in the form of loans.
The proportion of international aid allocated to programmes for children cannot be exactly determined. The social sector programmes funded by bilateral or multilateral aid include elements that directly or indirectly benefit children, either because they have an impact on family life or because they affect the economic and social status of the population as a whole or because they are directed towards particular population groups (maternal and child feeding and nutritional programmes, programmes to aid vulnerable population groups, prevention of maternal and infant mortality, etc.).
In 1991, 23 per cent of ODA was allocated to economic management, 19 per cent to agriculture, 11 per cent to transport and communications, and 7.8 per cent to education. Health and social development are included in general projects under these heads. Projects in which health or social development are the principal target come in 8th or 9th place.
Because of the organization's specific mission, UNICEF's financial contribution is of particular importance. Following its examination of the outline plan for cooperation between the Malagasy Republic and UNICEF, the organization's Executive Board made two basic decisions for the period 1 January 1996 to 31 December 2000:
1) It approved a financial commitment from general resources of up to US$15.9 million.
2) The Executive Director was authorized to seek additional funding of up to US$50 million.
The table below summarizing UNICEF's financial commitment for the five year period brings out the scale of the operation and identifies the fields in which programmes for children are concentrated.
UNICEF's financial commitment (thousands of US$)
PROGRAMMES
TOTAL YEARS
1996
1997
1998
1999
2000
TOTAL
Health
4.000
3.900
3.800
3.700
3.500
18.900
Education
1.500
1.600
1.700
1.800
2.000
8.600
Water/Sanitation
1.500
1.500
1,500
1.500
1.500
7.500
ECD
800
800
800
800
800
4.000
Info/Communication
700
700
700
700
700
3.500
Social Planning
500
500
500
500
500
2.500
Nutrition
1.000
1.000
1,000
1.000
1.000
5.000
GRAND TOTAL
10000
10000
10000
10000
10000
50000
(
.
) ECD: Children in need
Reply to question a
Under the Convention, boys and girls are considered to be children up to la years of age. under Malagasy legislation, 18 has been accepted in positive law as the age at which a child comes of age. For all except a few purposes it corresponds to the age at which a Malagasy child moves from adolescence to adulthood.
- Article 15 of the ordinance of 19 September 1962 setting out certain general provisions of law provides that the age of civil majority is 21. The age of majority may be modified in various circumstances. Under the ordinance of 1 October on marriage, the legal age for marriage - that is to say, the age at which children may marry without the authorization of the persons holding parental authority - is 18. Young persons marrying automatically come of age and are no longer children even if they are under 21 - the age of civil majority in malagasy law - or under 18, if they married before reaching that age.
- Under the law of 20 November 1963, a child of 18 may perform certain administrative acts and may be granted full legal capacity by the persons holding parental authority. The age of political majority, that is to say the age at which a person has the right to vote, is 18. Under the ordinance of 19 September 1962, the age of penal majority is 18, that is to say that after 18 a child is considered to be an adult and if in conflict with the law will be tried in accordance with the rules of ordinary law. These rules were briefly summarized in the initial report but are restated here. Under Malagasy law, there is a conflict between the age of civil majority and the rule introduced by the Convention that a child comes of age at the age of 18.
Consideration is being given to the possibility of reducing the age of civil majority to 18 in order to simplify the provisions of domestic law and bring them into line with the provisions of the Convention.
Reply to Question 9
The question lists various very different purposes for each of which an age is specified:
- Legal or medical consultation; in the case of a child still subject to parental authority, this may be regarded as an administrative act that a person of 18 may undertake without authorization.
- End of compulsory schooling: under Malagasy law schooling is compulsory from 6 to 14.
- Sexual majority: the notion is not readily definable. In this connection it may be noted that, under the ordinance of 1 october 1962 on marriage, the age at which young persons may marry with parental consent is 14 for girls and 17 for boys.
- Recruitment into the armed forces: national service medical examinations are taken at the age of 18.
- Deprivation of liberty: reference should be made to the material in the initial report and the responses to questions 35 and 36. In the case of offenders under 18, deprivation of liberty is an exceptional measure. Under Malagasy law educative assistance is considered preferable. If deprivation of liberty is considered necessary, it may be mitigated on the ground that the offender is under age.
Reply to question 10
Article 23 of the Constitution of 18 September 1992 provides that "every child has a right to instruction and education... Every adolescent has right to vocational training". Article 24 provides that "primary education is compulsory for all ... The State shall organize public education, which shall be free and open to all." Article 27 lays down that "work and vocational training are the right and the duty of every citizen" while article 28 stipulates that "no one may be put at a disadvantage in respect of work and employment by reason of age, sex..."
These general provisions are supplemented by legislation and regulations. The minimum age for admission to employment is 14 (Labour Code of 17 May 1975, article 83), while the age for the end of compulsory schooling is 14. Compulsory schooling begins at 6.
Reply to question 11
The minimum age for marriage is not the same for boys as for girls. This point was mentioned in the reply to question 9. Article 3 of the ordinance of 1 October 1962 on marriage lays down that, in the absence of a waiver of the age requirement by the president of the court of the place of marriage, men may not marry before completing their seventeenth year. For women, the age is 14. Under Malagasy law (Ordinance of 1 October 1962, article 5) the age of marriage is 18. Young people under 18 but satisfying the age requirement of article 3 of the ordinance must obtain the authorization of the father or mother before marrying.
This does not involve discrimination between boys and girls. The differing age requirements for boys and for girls simply take into account the degree of maturity of the two sexes.
Reply to Question 12
The initial report referred to the gap between law and fact in the application of the general principle of non-discrimination. This is a widespread problem in developing countries. The provisions of positive law must be received by society materially, which implies that traditional society must be fully informed, and also intellectually, which means that the message of non-discrimination contained in the texts must be transmitted and received by society.
The social mobilization programme mentioned earlier is intended to ensure intellectual reception of the rules of non-discrimination. It is conducted by the authorities responsible for culture and communication with the participation of interested NGOs in a position to transmit the message, thus ensuring its material reception.
Reference should also be made to the information given above (question 4) on school curricula in which teaching about non-discrimination is included.
Coercion and the exercise of authority are extreme measures that take the place of education of the public through social mobilisation.
Paragraph 17 and 18 of the initial report mentioned the possibility of various forms of hostility to children who are better off than their fellows and excite jealousy and even enmity in traditional society. This is a risk which chiefly affects the children of alien minorities in traditional society (Asians and Indians and Pakistanis).
The fact that the children have their own school system or attend private school reduces the risk.
The best way of preventing and eliminating discriminatory behaviour is education of the public through social mobilisation, which must be directed both to traditional society and to the minorities, which tend to keep themselves to themselves in self-defence.
Reply to question 13
The general principle of non-discrimination is enshrined in positive law and embodied in the "Fihavanana" or parentalization of human relations which is one of the foundations of traditional Malagasy civilisation. Paragraphs 7 to 13 of the initial report stress the absence of discriminatory attitudes in the traditional civilisation of Madagascar.
The residual discrimination against which measures have been taken or are planned should be identified.
It involves:
1) Girls living in need: the schooling of girls may be cut short or interrupted for various reasons with which the authorities and NGOs directly concerned are trying to cape through appropriate programmes. The problems include early marriages or pregnancies and household duties, such as looking after younger children, in broken homes. Girls may also be sent out to work to supplement the family income. When families have insufficient income for their children's schooling, the girls are often sacrificed to the boys and taken out of school. In the case of secondary education, where schools are often a long way from the children's home village, boys are often allowed to attend rather than girls because of the lack of satisfactory hostels or other accommodation.
Two concrete measures are being implemented:
- the development of pre-school education for girls, and
- the establishment by NGOs of hostel facilities for girls in need whose schooling can thus be continued.
2) Children in rural areas remote from school centres. Steps are being taken to refurbish school buildings, to improve the conditions of rural teachers and to give responsibilities to decentralized authorities. The transfer of responsibilities to the decentralized authorities will not become fully effective until the present reorganization is completed.
3) Children born out of wedlock. Paragraphs 96 to 101 of the initial report explain the broad approach to filiation adopted in Malagasy legislation which makes it easier to establish ties between various categories of children and the family.
There is no discrimination against children barn out of wedlock. Discrimination is alien to Malagasy family law. In law and in justice children are equal.
Only two categories of children have diminished rights. They are children barn of an incestuous union and children born of an adulterous relationship whose filiation has not been established. Such children have no right of succession and are entitled only to maintenance.
Reply to question 14
Efforts are being made to develop rational methods of research to identify the categories of children threatened by residual discrimination and to take measures appropriate to each category under the on-going programmes.
Children rejected because of deformities or the circumstances of their birth (cf. initial report, paragraph 15) are placed in the same category as handicapped children, whose situation is discussed in the reply to question 29.
In some regions, where traditional social structures are deep-rooted and strict rules maintain a hierarchy of social classes based on the origin of ancestors and their social and political role in times gone by, traditional prejudices still persist with regard to what are regarded as "lower" classes or family groups.
The children of such minority classes are the victims of outworn prejudices which will disappear with democratization and the elimination of barriers between social strata. Tradition is, however, deep-rooted and such prejudices, which engender a kind of discrimination, need to be tackled by education and communication under social mobilisation programmes.
Reply to Question 15
The question raises a difficult and still debated problem. The two languages of instruction have always been Malagasy and French. Educational policy has always oscillated between two extremes: teaching in the national language and the Malagization of teaching and the predominance of French.
If either extreme solution is adopted, the language of instruction is a major handicap to young people who are at home in only one language. It is also a source of discrimination against pupils who cannot go on to secondary or higher education that requires mastery of a language capable of handling the conceptual instruments of higher instruction. In practice, this means French or another foreign language.
Since the recovery of independence, teaching in malagasy and the use of the national language as a vehicle of basic knowledge have never been abandoned.
Whatever fundamental changes are introduced in the near future, the basic principles governing the language of instruction are likely to remain the same:
- Children and adolescents will first be taught in their mother tongue and will master it while gradually acquiring knowledge of French;
- Secondary education should enable all pupils to master their national language and at least one foreign language.
Reply to question 16
In the new approach to the law on children, as it emerges from the Convention, the notion of "the best interests of the child" is an innovation. It is no longer a matter of the "interest of the child", the classical notion which appeared in traditional law and ancient Malagasy customs, but a new notion which should make it possible to assert the prerogatives and interests of the child against interests that might be contrary to the best interest appropriate to the new status of the child.
The development of means that will enable the best interests of the child to prevail faces social, cultural, economic and juridical difficulties.
1) In the cultural field, Malagasy society, in all its diversity, is still fundamentally conservative in its approach to relations with children. The first measures must be educational. Reference has already been made to "social mobilization", which includes "adult education" as well as "information" and "communication". An educational campaign based on analysis and explanation of the rights and prerogatives of the child demands mobilisation of all the forces capable of modifying the mind-set and behaviour of adults in their relations with children.
At every stage it is important to consider the various categories of children, depending on their age, physical inferiority, vulnerability, ability to understand their rights and the contribution they might be able to make, because of their age and relative maturity, to the protection of children by children.
The difficulties should not be underestimated. Confusion between the old legend of the infant-King and the still current view of the child as a source of assistance and wealth for the family will persist for many years to come.
2) In the economic and social field, the best interests of the child will only prevail if measures to eliminate poverty and promote child health produce practical results.
3) In the legal field, it is proposed to undertake research and studies on the positive law of the child in the light of the Convention. The studies would focus on the administrative protection of the child, the child and family law, and the child in conflict with the law.
Studies have, of course, already been made. The Follow-up Committee received a paper on the legal protection of the child.
The main objective, however, is not to accumulate studies but to adapt domestic legislation to bring it into full conformity with the Convention.
If this goal can be achieved, there will be two major gains:
- the work of the legal profession will be facilitated and the revision will have a pedagogic and educative effect.
- It will draw attention to the innovations in law of the child and provide a source of new material for students. It will help to define a non-classical approach to socio-juridical study of the status of children.
Reply to Question 17
A partial answer was given in paragraph 138 of the report. Reference may also be made to earlier replies in regard to education of the public through social mobilisation programmes. The main thrust must be to use every possible means of freeing children from ancestral pressures and century-old traditions of obedient submission to elders and persons holding parental authority.
Three types of programmes should be mentioned in this connection:
- First, the importance attached by the authorities to pre-school education. Pre-school education is under the supervision of the Ministry of Population working in collaboration with the Ministry of Education. It seeks to develop the child's potentialities, to create conditions for the blossoming of his personality and to give him the best chance of success at school and in life. A network of pre-school activity centres has been set up, with the support in some areas of NGOs. In 1987, a total of 480 units were active and the 1990-1994 five year plan set the goal of reaching 30 per cent of children of pre-school age, a total of 388,838 children.
In developing pre-school education the Ministries are grappling with insufficient budgetary resources and the shortage of staff, particularly for centres in rural areas. Efforts are being made to encourage private initiatives and to incorporate activities in the units already active in maternal and child welfare.
- In the second place, efforts are being made in the educational system to place proper emphasis on matters relating to the rights of the child. (cf. replies to question 4). In spite of difficulties, efforts are being made to improve education through the ministry of Education's educational improvement programme. The Programme aims to improve curricula and to reinforce the teaching staff.
- The third area is adult education. This seeks to meet the educational needs of adolescents and young adults and to inculcate a better understanding of the rights of the child in all persons holding parental authority.
Similar steps are being taken through the NGOs to increase the awareness of social workers employed in the Ministry of Population's travelling teams and the medical, paramedical and social welfare staff in direct contact with adults.
Reply to question 18
This subject is dealt with in paragraphs 122-139 of the report.
The authorities, in close cooperation with the NGOS, are dealing with the new situation created in recent years as a result of three main factors.
- The first is the multiplication of television broadcasts and the number of video parlours where children and adolescents can see spectacles of violence of a kind not normally encountered in traditional Malagasy society. in this field there must be a division of responsibilities. While the authorities and police can keep the video parlours under surveillance, parents must have the authority to decide which television programmes the children in their care should see and keep an eye on their visits to places where they might be led astray.
Parents and teachers are regularly reminded that video violence is only dangerous to adolescents who are vulnerable, unstable or in moral danger.
- The second factor is the rapid rise in criminal violence in both towns and country areas. This is due to poverty, the availability of weapons, the formation of gangs of unemployed juveniles and the unusual number of ex-prisoners at large. The police are aware of this situation and are trying to keep it under control.
Sensational press reports, published with insufficient thought of the consequences, can have a disastrous effect on unstable adolescents.
Laws and regulations to curb the problem are available, but are rarely applied because of the importance attached by the authorities and the public to freedom of the press. Ordinance No. 75-015 of 7 August 1975 penalizes the sale or circulation of a newspaper or periodical publishing articles likely to disturb public order or impair morality.
- The general insecurity resulting from the insufficiency of social restraints and deepened by poverty contributes to an unhealthy atmosphere likely to be disturbing to vulnerable youngsters. The authorities are aware of the problem and the improvement of security is one of their priorities.
Reply to question 19
Corporal punishment is prohibited in schools or children's welfare institutions. Reference is made to the matter in paragraphs 143-147 of the initial report.
Because of their relative weakness, children are vulnerable to violence, blows and ill-treatment. For this reason, Malagasy law penalizes the ill-treatment of children. In particular, article 312 of the Penal Code provides for the punishment of violence against children (initial report, paragraph 147). The fact that the person inflicting the violence "has authority over the child or has him in his care" constitutes an aggravating circumstance.
The child has the right to appear before any judicial or administrative authority or official responsible for the maintenance of order, and the authority or official is under a duty to initiate a prosecution or enquiry in accordance with the provisions of the Code of Penal Procedure.
In a traditional, conservative context, where children are brought up in habits of strict obedience and respect for authority in the person of the teacher, direct action tantamount to a complaint is unlikely.
The authorities have therefore consistently stressed that the primary responsibility rests with any person who has knowledge of violence against children in a school or welfare facility:
- in particular the family and parents;
- persons having administrative authority aver teachers and teaching staff; and
- the duly constituted supervisory boards of welfare facilities.
These persons, or others learning of violence against children, are under a duty to inform the competent authorities or to take the necessary steps to initiate an enquiry or prosecution.
In the most serious cases, the provisions of article 63 of the Code of Penal Procedure penalizing failure to assist a person in danger may apply.
Reason and common sense suggest that there are degrees of corporal punishment and that some "punishments" are considered normal by teachers and even by their superiors.
In the spirit of the Convention, persons responsible for the education of children must be made aware of the importance of respecting the personality, self-esteem and weakness of the child.
It is a fact also that when a child is stubborn it is easy to pass from ordinary punishment to punishments involving cruelty and violence.
Reply to question 20
The social structure affording the best protection to children is the family. Measures that strengthen family structures help also to promote the protection and development of the child.
It has been explained that State assistance programmes in Madagascar are oriented towards support for the NGOs. A recent symposium organized by the Ministry of Population was concerned with redefining the status of NGOs. As was noted in the initial report (paragraph 168), there has been an absence of specific regulations and their development has been anarchic.
All programmes relating to the status of women, such as:
- training for the advancement of women in urban and rural areas,
- education for family life and support for women's training centres,
- social mobilisation for the advancement of mothers and children, and
- the national programme for maternal and infant health
directly or indirectly strengthen family structures because of women's fundamental role in the family.
The possible establishment of a national council for the protection of children and a national children's foundation are pending projects whose implementation will have to be deferred until the reorganization of the NGO regulations is completed.
Reply to question 21
Paragraphs 175 and 176 of the initial report deal with this question and seem to be sufficiently explicit with regard to practical solutions in the event of the separation of a child from one or both of his parents. These can be found in arrangements or negotiations through the consular channel or bilateral agreements on judicial cooperation.
The few problems that have arisen concern relations between Madagascar and France.
In such cases the 1973 agreement between the two countries on judicial cooperation applies.
Reply to question 22
Paragraph 60 of the initial report deals with pre- and post-natal care (prevention of maternal mortality and improvement of the nutrition of women) and family planning.
In these fields, parental education is undertaken jointly by the State and the NGOs directly concerned. It is promoted by social mobilisation the churches, denominational organisations and parent-teacher associations combine their efforts with those of the State and the interested international agencies. The latter, notably UNICEF, make a valuable contribution through the supply of documentation and teaching aids for adults.
Family planning is dealt with under question 28.
Family counselling is provided by the health services and the specialized NGOs.
The health services have staff who, in addition to their other duties, are qualified to undertake family counselling. The following is an updated list of health service facilities:
- 1,187 primary health care centres
- 116 nurse services
- 59 maternity units
- 475 health units
- 42 maternal and child health centres
- 107 medical centres
- 58 basic secondary hospitals
- 21 medical/surgical hospitals
- 5 main hospitals
- 8 specialized establishments
- 2 general hospitals
There are 380 private sector health care facilities, chiefly in urban areas.
State and private health care facilities coordinate their efforts.
Prior to the adoption of a national population policy there was virtually a single family planning agency (Fianakaviana Sambatra, FISA -"Happy Family"). The number of organisations offering family planning assistance is not large. tin 1992 there were 20 or so, with 160 local branches.
Reply to question 23
Since paragraph 191 of the initial report was written, the Interministerial Adoption Commission has been established in the Secretariat of State for Population. The members are representatives of the Ministries of Justice, Foreign Affairs, the interior and Police. The Commission is chaired by the Secretariat of State for Population.
The Commission's functions are:
- To centralize applications for the judicial adoption of Malagasy children by foreign nationals;
- To verify that the required documentation is complete and in order;
- To make a recommendation concerning the desirability of the proposed adoption in the light of the members, view after examination of the file;
- Where necessary, to find children available for adoption;
- To prepare an annual report for submission to the Prime Minister and other ministers concerned.
Power to approve judicial adoption is vested in the competent Tribunal and the latter is not bound to accept the Commission's recommendation. The Tribunal's work is however greatly simplified by the Commission's preliminary review. Under the ordinance of 20 November 1963, the Tribunal may order an inquiry, and the file assembled by the Commission should provide the material necessary for a decision by the competent judge. Both the Commission and the judge will, of course, be guided by article 52 of the Law of 20 November 1963 which stipulates that "judicial adoption may only be permitted on good grounds and in the interest of the adoptee."
Madagascar, with the assistance of UNICEF, participated in the various international conferences on adoption (The Hague 1990/1991) and the question of accession to the Hague Convention of May 1963 is under consideration.
Reply to question 24
Very few specialized studies have been made of the problem of ill-treatment and violence against children. There have been occasional studies of aspects of the problem in university law and sociology faculties (Criminal sociology or theses on the criminal protection of children). Even statistical studies are virtually non-existent as the court and police statistics of violence, assault and the like cover adults and children under age.
The silence should not be taken to mean that children enjoy social protection that completely shields them from physical violence.
Paragraph 198 of the report points out that numbers of cases of ill-treatment of children are not brought to light or penalized for the following basic reasons:
- In rural areas, because of communication difficulties, the inaccessibility of some places and the scattered Settlements, ill-treatment of children is not reported to the authorities and the quarrel between the victim's family and the attacker is settled according to traditional customs, often by material compensation.
- In many traditional families, the persons exercising parental authority are reluctant to alert the authorities and have dealings with the administration, the police or the courts. They prefer to obtain material reparation (money or cattle for example) or to wreak private vengeance themselves.
- In the towns there is a surprising reluctance to complain on the part of families and indifference on the part of the community.
- In the case of sexual abuse, the same silence prevails for the same reasons. There is also a tendency rooted in custom to consider that sexual matters are taboo (fady).
It was noted in the initial report (paragraphs 199-201) that the authorities responsible for the social protection of vulnerable population groups are making efforts to alert parents and others likely, because of their functions, to have knowledge of violence against children (family members, traditional authorities, decentralized authorities, health service staff).
Three of the factors encouraging violence should be emphasized because of their growing importance (see also reply to question 18).
- Laxity in the supervision of publications and entertainments featuring brutality to children or scenes of sexual violence;
- The weakening of social constraint due to insufficient material resources and specialized staff in the police forces and the various services responsible for social assistance and protection;
- An increase, still barely perceptible, in the practice of exorcism in some religions sects.
In more general terms, there has been a notable reduction in the respect due to the person of the child. In some cases, the infant-king has become a household drudge and even a martyr.
Reply to question 25
Information and awareness-raising campaigns to strengthen physical protection of the child in the family are an integral part of public education through social mobilisation programmes. The aim is not only to alert the family but also to encourage the organisations concerned (Pre-school education centres, child and youth welfare NGOs, parents' associations etc) to keep an eye on families and even to exercise pressure to prevent any lowering of respect for the rights of the child.
Where necessary, families should be threatened with the application of the ordinance of 19 September 1962 under which the juvenile court judge is empowered to take preventive measures to protect ill-treated children including placement in children's homes to remove them from family violence.
Children who are ill-treated in their families may complain to the police or to the juvenile court or other judicial authorities, but the comments offered earlier apply. In a society attaching great importance to family cohesion and parental authority, the child's right to complain to the authorities is rarely used.
Where a child subject to persistent brutality has established a relationship with a teacher" welfare worker or juvenile court judge, he comes forward of his own accord to complain.
If a child is deprived of care and the parents flout their obligation to feed and cloth him or he is "rejected" in the traditional sense, the provisions of the ordinance of 19 September 1962 apply and the child is considered to be a child "whose safety, morality, health or upbringing are at risk". Under the ordinance, the child himself may apply to the juvenile court judge (article 10).
Reply to question 26
There are no programmes specifically intended to prevent the abandonment of children but in fact all programmes directly or indirectly concerned with protecting the safety and health of mother and child include the prevention of abandonment.
The physical or moral abandonment of a child may result from the inability of the parents, particularly the mother, to fulfil the parental obligation to maintain and educate him.
Social mobilisation programmes for maternal and child welfare and the national maternal and child health programme or the expansion of pre-school education thus make an effective contribution to the prevention of abandonment.
Reply to question 27
There are no programmes providing training in children's rights specifically for social workers. Reference was, however, made earlier (reply to question 4) to the inclusion of teaching about the Convention in school curricula. Teachers receive training for this purpose and the courses are open to certain categories of social worker. Staff of the Ministry of Population working in travelling instructional teams receive similar training and in the course of their tours pass it on to social workers (NGO educators, Medical Centre staff etc).
In addition, the seminars organized as part of the Children's Month programme provide training for the participants who, in their turn, become trainers.
Reply to question 28
The information requested supplements paragraphs 36-43 and 55-61 of the initial report.
1)
Measures taken to collect data, statistical and other, on children's health and nutrition
a)
Children's health
Data collection presupposes the identification of reliable sources covering the various aspects of child health, mortality rates, causes of death, child morbidity, incidence of major diseases, common illnesses.
The sources are relatively plentiful, but diverse and disparate.
First in order are the various ministerial sources. The Ministry of Health receives reports from the health services enumerated in the reply to question 22. In the Ministry itself, various units furnish data, among them the sanitary and demographic statistics unit.
The Population Ministry processes data obtained from surveys by the Population and Development Unit set up in the Planning Ministry in 1986.
The Ministry for Scientific Research undertakes various surveys, including a national demographic and health survey, and produces a report on the national nutrition programme.
The National Centre for Environmental Research also conducts surveys.
WHO and UNICEF also have data collected in close cooperation with the government services.
Some statistics are furnished by NGOs, notably SALFA (a Lutheran organization.
The infant mortality rate exemplifies the disparity of the available sources. The data from WHO, the Ministry of Population, the World Bank and the Ministry for Scientific Research/National Environmental Research Centre yield rates ranging from 94 to 150 per 1000.
The differences are due to the heterogeneous survey methods. Nevertheless, all the figures point to high infant mortality.
A State data bank would permit better coordination and more homogeneous survey techniques.
The list of sources is not exhaustive. In addition there are regional studies, urban surveys and medical doctoral theses.
b)
Child nutrition
The same comments apply in regard to the diversity and disparity of the statistical and other data.
The data are of great importance as they provide a measure of the importance of various components of diet and a way of evaluating their impact on child health:
- protein deficiency reflected in delayed growth and insufficient weight in relation to age and height;
- nutritional deficiencies, particularly in iodine, vitamin A, iron and calcium.
The data on nutritional deficiency should also cover the effects of common illnesses on malnutrition, the problems of food security and problems of production and consumption. They should also cover nutritional policy programmes.
The main departments of government with sources of data and in a position to collect data are:
- The Ministry of Health, which in addition to the statistics mentioned, originates surveys such as the Nutrition Service's survey of weight deficiency at birth and the data furnished by the Human Nutrition Division. A National Multisectoral Committee has been set up to develop intersectoral coordination in nutrition. The Ministry of Health has organized a National Programme for the Promotion of Nutrition and a national programme for the elimination of iodine deficiencies.
- The Ministry for Scientific Research is conducting research under the National Nutrition Programme, including the national nutrition survey programme and the national programme for the prevention of nutritional deficiencies.
- The Ministry of Population and UNICEF conducted a national survey of the nutritional status of women and children in 1992 which provided a basis for the measurement of various forms of malnutrition of children.
- Various workshops and surveys, by various ministries and UNICEF (Workshop on the National Nutrition Programme, February 1992).
- The Ministry of Agriculture, which has produced statistics on animal production and the main sources of calories and protein. It also organized a seminar on food security at the household level and nutrition in Madagascar in June 1992.
The list is not exhaustive and should be supplemented by the data available to organisations like UNFPA and the NGOs.
In March 1992, the World Food Programme conducted a survey of the Toliara region.
Special surveys have been made after natural disasters such as cyclones and drought.
Multisectoral activity is more prominent in the nutrition than the health sector. More effective coordination is needed and more rational collection of data. The State data bank could make a major contribution.
2)
Family planning measures
Under pressure from traditional society, the conservative influence of the churches and the natural reaction of Malagasy families throughout society, family planning has made slow headway despite the creation of FISA in 1962.
In 1986, a population and development unit was set up in the Ministry of Planning and a national conference on population and development was organized in 1987. A National Population Policy was defined in 1990. The policy called for the institution of family planning services and a right of access to information and the service. It also set a target of reducing fertility to 4 children per mother by the year 2000.
In December 1992, policies and standards were laid down for the family planning service.
In the legal field, a 1920 law prohibiting the sale of contraceptives was implicitly set aside with the adoption of the National Population Policy. Article 317 of the Penal Code which penalizes abortion remains in force.
Programmes involving information campaigns and measures to increase awareness of family planning and encourage access to the centres have been organized. They include the integrated programme of maternal and infant health and family planning and the programme for the development of maternal health and family planning.
The essential objective is the implementation of ordinance No. 90.030 of 19 December 1990 on the national population policy, whose objectives were reassessed in December 1990. The policy aims to achieve effective birth control through the generalization of family planning and the promotion of contraceptive methods.
Information, through the media, particularly television, is effective. There is however confusion in some quarters between the policy of family planning through the use of contraceptives and the prevention of AIDS through the use of condoms.
Family planning is however hampered by difficulties which will be removed with the provision of greater financial and physical resources: the inadequate coverage of services, problems in maintaining stocks of contraceptive devices and inadequacies of information, education and communications in rural areas.
3)
Nature of the most frequent diseases
The following supplements the information given in paragraphs 50
et seq
of the initial report:
- Infectious and parasitic diseases are still the principal cause of death.
Vaccination coverage under the Expanded Programme of Vaccination fell substantially, especially in 1990 and 1991. Coverage for DTCP 3 fell from 51.2 per cent to 43, for BCG from 99 per cent to 58.4, for measles from 44.2 per cent to 34.4 and for VAT2 from 30 per cent to 14.7. In 1992 and 1993, there was some improvement.
- Acute respiratory infections
These are still important and were according to some statistics the principal reason for consultations in 1992.
- Diarrhoeal diseases
These remain one of the main reasons for consultations. Between 1990 and 1992, the death rate fell from 1.8 to 0.53 per cent. The greatest advance has been the introduction of oral rehydration therapy. The statistics are disparate but the use of the therapy appeared to double between 1990 and 1992.
- Malaria
This is a cause of concern. Mortality and morbidity are on the rise. Plasmodium falciparum occurs periodically, particularly in the highlands. Malaria results in general weakening of the organism and malnutrition and may affect the nervous system. Stocks of antimalarial medication tend to run out, particularly in isolated rural areas.
Preventive programmes have been organized or launched, particularly against malaria and tuberculoses.
4)
Prevention of AIDS
The approaches adopted in studies of AIDS vary greatly, making it difficult to obtain a clear overall view. However, an epidemiological survey in 1989 and statistics from the Ministry of Health and the Pasteur Institute show that HIV infection is low in Madagascar, about 3 per 10,000.
AIDS is however potentially disturbing because of the importance of sexually transmissible diseases. Gonorrhoea and syphilis are the commonest diseases, with rates of 400 and 320 per 100,000. The figures are probably too low.
A substantial preventive campaign is being undertaken, with emphasis on information, education and communication to encourage the use of condoms.
Reply to question 29
The situation of disabled children is discussed in paragraphs 45-49 of the initial report, which drew attention to the situation of disabled children in Malagasy society, particularly traditional society and the efforts, which are still insufficient, to improve it.
The fundamental problem is the isolation of the disabled child, who is marginalized by a long tradition of fear and prejudice. The prejudice originates in the fact that the disabled child is often regarded as a source of shame, a punishment on the family group or a curse that cannot be escaped. The child must be hidden and kept in the hands of the family group.
According to tradition, a child born in abnormal circumstances (born on an unlucky day, born with deformities, a twin birth etc) is a threat to the social group and has no place in society. He will not be allowed to enter the family grave, a very serious penalty in traditional society.
In association with NGOs, many of them denominational, the authorities are trying through social mobilisation campaigns to inculcate the idea that respect is due to every child and that the mentally or physically handicapped child has the right to lead a normal and decent life. These ideas are not new. They were the theme of a national seminar in March 1988 on the handicapped in malagasy society and their prospects. The campaign has, however, gained new momentum, with particular emphasis on children, who are the mast vulnerable victims and who are increasing in number. According to the planning bodies, the malagasy population of over 16 million in the year 2000 will include some 1.5 million handicapped persons of whom nearly 400,000 will be children between 6 and 14.
The campaign should encourage the intensification of public and private initiatives to help handicapped children find proper place in society through:
- Access to health care: the health services have two targets:
- a child in danger of becoming handicapped is to be given appropriate preventive treatment and care (correction of vitamin deficiencies, correction of iodine deficiencies, expanded vaccination programme);
- if a child is handicapped, the type of handicap (mental, sensory, physical or motor) will be identified and he will be assisted to adjust to normal life within his capabilities and the possibilities of society.
- Access to education and vocational training, taking into account the nature of the handicap; educational establishments have agreed to admit retarded children and to provide training or appropriate education.
- Access to employment: efforts have been made to revive the Aid through Employment centres which were intended for adults but can admit young people as apprentices. A Ministry of Labour/ILO project, "Integrated socio-vocational training of handicapped persons", is being carried out.
- Access to leisure activities: increasing numbers of sporting events for the handicapped are being organized.
These efforts are insufficient and are chiefly due to the initiatives of NGOs, although substantial resources are necessary (special education of the blind and of the deaf and mute, specialized equipment).
There is no programme specifically for handicapped children. Handicapped children are accommodated in programmes for normal children.
Reply to question 30
For the 1992/1993 school year the Ministry of Education's operating budget was 17 billion FMG, approximately 19 per cent of the State budget. The resources allocated to education account for 63.6 per cent of the Government's total expenditures.
The percentage of the Ministry's budget allocated to primary education fell from 54 to 48 per cent between 1983 and 1991.
Reply to question 31
Over the past ten years the level of training of teachers has declined, chiefly because of deficiencies in school staffing arrangements, the fall in teachers, living standards and the insufficiency of the funds available for refurbishing schools and improving teaching aids.
Immediate steps have been taken by the authorities, including the payment of special allowances to teachers working in remote areas, in-service training for teachers and measures to strengthen school staffing arrangements.
In the medium term, under the National Education Improvement Programme, it is proposed to improve the system for developing school curricula, to provide continuing in-service training for teachers and to train educational counsellors.
Reply to question 32
Paragraph 218 of the initial report drew attention to the disadvantaged pupils in rural areas, poor and crowded suburban districts and isolated regions.
Because of the deteriorating conditions in which schools are working and the damage suffered during the recent exceptional cyclone season, the situation of these children has not been substantially improved.
To tackle these problems, various expedients have been resorted to. For example, under the double session system each class is held for 5 half days a week, reducing the hours of instruction. In rural schools, because of the shortage of premises, pupils of various levels of primary education share the same class room. The National Centre for the Production of Teaching Materials cannot satisfy the demand.
Implementation of the National Education Improvement Programme should bring relief.
Reply to question 33
The measures envisaged to eliminate the drop-out problem consist essentially of the improvement and strengthening of school infrastructure called for by the National Education Improvement Programme.
It is likely also that pre-school education will help indirectly to prevent dropping out and the early entry of children to the labour market.
The last point is relevant to the situation of children in the informal sector and will be taken up in the replies to question 39
et seq
.
Reply to question 34
This point was dealt with in the reply to Question 4.
It should be mentioned that a working paper prepared on the initiative of UNICEF deals in Malagasy with teaching methods to be used in promoting better understanding of human rights generally and the rights of the child. The paper is now under discussion and is intended for circulation to teachers, together with examples.
Reply to question 35
Administration of juvenile Justice
Relevant material is contained in paragraphs 276
et seq
of the initial report.
- As a general rule, life imprisonment without possibility of release is prohibited by the ordinance of 19 September 1962 on the protection of children. Under Malagasy law life imprisonment means hard labour for life. Under the ordinance, a child under 13 found guilty of a crime may be sentenced only to educative measures.
If a child under 16 is convicted of a crime for which the penalty is death or hard labour for life, the Criminal Court may not sentence him to more than 10 to 20 years imprisonment.
The same rule applies if the minor is between 16 and 18.
A minor may be sentenced to hard labour for life only if the court decides to set aside the extenuating circumstance of age in a specific ruling, the reasons for which must be stated. In practice the penalty is very rarely imposed. If it were, remission could be obtained from the President of the Republic; extreme youth is a favourable and even decisive factor in the consideration of applications for clemency.
- Deprivation of liberty (arrest, detention or imprisonment) is a penalty that should be rarely used in accordance with the spirit of the ordinance of 19 September 1962. If a sentence of deprivation of liberty is imposed, it must be for the shortest possible period.
- The statistics for the detention of minors suggest that while sentences to deprivation of liberty are few and far between the number of minors detained pending disposition of their case is abnormally high.
In 1993, the number of minors serving terms of imprisonment was 64. The figures for 1994 are not complete but the provisional total is 43. On the other hand, a total of 445 minors were detained during pre-trial investigation in 1993, the provisional figure for 1994 being 403. The figures confirm the comment in paragraph 274 of the initial report that the legislator's laudable desire to ensure that the investigation of cases involving juveniles is full and objective works to the disadvantage of the juvenile if the investigation is unduly prolonged.
In addition the only State Hostel and Reeducation Centre admitted 71 juveniles in 1993. They are in a special situation living in an open centre and are being educated or receiving vocational training.
- In the spirit of the ordinance of 19 September 1962 prompt access to appropriate legal assistance - the right to a defender in Malagasy criminal law - is always possible, subject to the exceptions expressly provided by law. In the case of proceedings in the juvenile court, the ordinance provides that the investigation shall be secret and consequently the provisions of the Code of Penal Procedure regarding the right to a defender do not apply. Appeals may be lodged and application may be made for provisional release.
- If, in exceptional circumstances, juveniles are committed to a penitentiary, the prison regulations stipulate that they should be placed in a special section separate from adults. In accordance with the regulations, detainees are under medical supervision and are entitled to visits from social workers. Reference should be made to the exemplary work of the NGOs which try in cooperation with the prison authorities to mitigate the rigour of imprisonment.
In Antananarivoe central prison, which is by far the largest, a special section for juveniles is being built through the efforts of the Catholic chaplaincy of the prison.
Reply to question 36
Article 40, paragraph 3(a) is drafted in very general terms enabling every State to respond in conformity with its own legislation.
Relevant material concerning Malagasy criminal law and the application of the ordinance of 19 September 1962 on the protection of children is given in paragraphs 276-281 of the initial report. In Malagasy law the legislator has made use of the notion that the fact of being under age is an extenuating circumstance, as well as the notion of "understanding" inherited from the old French legal system.
In application of the latter notion, the judge examined the behaviour, intelligence and maturity of the child. If the child was found to be capable of understanding the nature of the criminal act he had committed, he was liable to penalty. Otherwise he was not.
This notion was discarded in various texts concerning the protection of children, among them a decree of 30 November 1928 which made partial use of it and the ordinance of 3 October 1960 which set it aside. The latter ordinance was replaced by the ordinance of 19 September 1962, which provided that, in the case of a juvenile under 16, the juvenile court had to expressly consider whether he had or had not the capacity to commit an offence.
If he is found to have that capacity, the juvenile automatically benefits from the extenuating circumstance of being under age and the penalty imposed is reduced. (see paragraphs 276-281).
In the case of a young person between 16 and 18, the same procedure is followed but the extenuating circumstance of being under age is not automatically applied.
A juvenile under 13 may not be sentenced to a criminal penalty. If he is brought before the juvenile court he may only be reprimanded or subjected to educative measures.
It is not easy to see the criteria that determined the legislator's assignment of juveniles to the age groups, under 13, 13 to 16 and 16 to 18. It might have been better to try to establish the age at which a Malagasy child reaches the age of reason, becomes an adolescent and can be considered to be psychologically responsible. However, that would be a dangerous course to take for there are as many personalities as there are children. Some children of 13 have a mental age of 7. At 16 some young people understand what they are doing as well as adults while some delinquents might be considered not to be accountable for their actions at 20.
The division into legal groups was a convenient legal fiction.
In practice, juveniles of 13 and under are presumed not to have the capacity to infringe the law. This is, however, a presumption.
Proof of age is provided by production of the birth certificate or an authenticated copy. If the child's birth was not duly registered and there is no other documentation, he is required to undergo a physical examination.
Reply to question 37
The treatment of juvenile delinquents is governed by the regulations concerning the organization of penitentiary establishments and, in the case of juveniles placed in the Anjanamasina Reeducation Centre, the only State centre, by a decree of 29 September 1960.
- Juvenile detainees are in principle placed in separate sections from adults. They may be visited by their families subject to the same conditions as adult prisoners. The visits are organized in a very flexible manner.
- The conditions of detention of juveniles are subject to special provisions. They are supervised by the Ministry of Justice Inspectorate, the magistrates having statutory responsibility (magistrates of the parquet, examining magistrates, juvenile court judges, judges of the court of appeal responsible for juvenile cases) and by a supervisory commission consisting of judges, a medical practitioner and prominent citizens appointed by the authorities.
There is a supervisory commission for each establishment. The Ajanamasina Reeducation Centre is supervised by a welfare committee with substantially the same composition as the supervisory commissions, with the addition of two members interested in children's problems.
- In the event of ill-treatment, detained juveniles may communicate with their defender or the social welfare services responsible for their case. The juvenile court judge may take up the matter on his own initiative, as may the public prosecutors.
- Decisions concerning placement, in other words concerning educative assistance, by the juvenile court judge have a peculiar feature. The ordinance of 19 September 1962 (art. 61
et seq
.) disregard the principle of
res judicata
, the intangibility of a decision taken in due form by a court. The educational regime ordered by the judge may always be modified to ensure the individualisation of the measure ordered. The juvenile court judge who made the original order may intervene in connection with changes in the placement or custody of the juvenile.
- A specialized supervised education service of the Ministry of Justice keeps the education and training of detained juveniles under review.
In principle, a medical practitioner is attached to each penitentiary establishment. The Ministry of Justice has a specialized medical service.
A word should be said about the important work of the chaplaincies of the various denominations and the contribution of the NGOs. Some of the latter are particularly concerned with the conditions of detainees and accordingly take a special interest in detained juveniles.
A difficult point deserves mention. Detained mothers are allowed to keep infant children with them in order to look after and feed them.
The social workers and NGOs with access to prisons pay special attention to these children. The conditions in which they live are often deplorable, but at least they are with their mothers.
- During their training, prison staff receive instruction regarding human rights and the Convention.
It must be recognized, however, that, because of the severely limited resources available, the prison administration cannot fulfil all its obligations under international conventions.
The authorities are making every effort to improve prison conditions with the resources available and through measures to ensure the staff's awareness of its responsibilities in this respect.
Reply to question 38
Consultation of the list of ratifications by convention and country prepared for the International Labour Conference (79th session, 1992) shows that the Malagasy Republic has, as a member of the ILO, ratified 30 conventions relating to international labour law.
Some of the conventions antedate 26 June 1960, the date of Madagascar's return to independence and the country's entry to the International Labour organization.
The conventions prior to 1960 are still applicable by virtue of the principle of the continuity of law after independence and succession to undertakings made by the French Republic and assumed by the Malagasy Republic.
Not all the conventions relate to child labour. However, some of them directly or indirectly govern the conditions in which the employment of children is authorized and regulated. They are:
- Convention on the Minimum Age (Industry, 1919),
- Convention concerning the Night Work of Young Persons (Industry, 1919),
- Convention concerning Workmen's Compensation (Agriculture, 1921),
- Convention concerning Weekly Rest (Industry, 1921),
- Convention concerning Equality of Treatment
(workmen's Compensation, 1925),
- Convention concerning minimum Wage-Fixing Machinery (1928),
- Convention concerning Forced Labour (1930),
- Convention concerning the Minimum Age (Non-Industrial Employment, 1932),
- Convention concerning Labour Inspection (1947),
- Convention concerning the Night Work of Young Persons (Industry) (Revised 1948),
- Convention concerning the Protection of Wages (1949),
- Convention concerning Equal Remuneration (1951),
- Convention concerning Discrimination (Employment and Occupation 1958),
- Convention concerning Social Policy (Basic Aims and Standards 1962),
- Convention concerning Equality of Treatment (Social Security 1962),
- Convention concerning Employment Policy (1964),
- Convention concerning Minimum Wage (Underground in Mines, 1965),
- Convention concerning maximum Permissible weight (1967),
- Convention concerning labour Inspection (Agriculture 1969)
Most of the provisions of the Conventions were introduced in the Labour Code of 17 May 1975 and in regulatory decrees and orders.
Enforcement is the responsibility of the Labour Inspectors and Examiners.
Reply to question 39
The question raises an important general problem in all developing countries, in particular Madagascar. The informal sector is difficult to define but an attempt can at least be made to define the social condition of children in the sector.
The children are juveniles in need, struggling to survive in both rural and urban areas, as well as the street children of urban areas.
Material on the subject was provided in paragraphs 287-294 of the initial report, but it may be useful to attempt to describe the situation of the children and identify their way of life. They form a special category which is not covered by the classical analysis reflected in the terminology of the ordinance of 19 September 1962.
- In rural areas, children in need are never completely abandoned by the social group or the family. Even when natural disasters, such as cyclones, floods or droughts drive villagers from their homes into at least temporary emigration, the children are still integrated in the social group. The conditions in which they live are, however, worsened. The children, especially the girls, are exposed to brutality by adults. Children leave school, are forced to seek their own food and drift to the towns to find petty jobs or beg to help themselves or their families.
In stock farming regions, children are employed at a very early age as cattle herders and are often brutalised by their elders.
In agricultural areas, they are forced into work normally done by adults and work for the traditional community looking for food or performing tasks set by adults.
Paradoxically, as was pointed out in the initial report, they are surrounded by affection and are integrated in the social structures even when they are breaking um. when their plight becomes too desperate and their families abandon them or disappear, the children prefer to go to the town and thus become street children.
- In urban areas, the children are difficult to profile. They live in desperate circumstances but shun any contact that might enable outsiders to get to know them.
An artificial distinction can be made between children picking up a living in the street and children living in the street.
1) Children in the first category are still members of a family. The family is often large, living in absolute poverty but still providing a home of sorts. The children, girls or boys of between 5 and 12, do not go to school. They look for odd jobs in the street for themselves or their families (housework, begging, looking after cars, carrying parcels), food (pilfered items, begging, gifts from passers-by, jobs in eating places) and entertainment (video parlours, free street shows, games available for those with a little money).
If the child is ill, he goes home. He lives in appalling hygienic conditions.
2) Children in the second category are morally and materially deserted by their families and have no permanent contact with the social group. They are older than children in the first group. The girls practice prostitution.
Like children in the first category, they find odd jobs and food in the street. The street and its surroundings (alleys, shanties, underpasses, squares etc) provide them with shelter in the hot season but expose them to adult brutality, accident and illnesses which they cannot deal with. Their entertainments are similar to those of children in the first category but they also take at an early age to alcohol, rongony (indian hemp) and drugs.
Juveniles employed in the informal sector are for the mast part drawn from the second category:
- Parking lot attendants
- Porters in street markets (working in association with gangs of pilferers)
- Hawking for shops and supermarkets
- Mechanics' helpers
- Selling stolen goods in the street
- Odd jobs in service stations
- Helpers in bars, small hotels and eating houses, especially in the suburbs.
- Selling uncontrolled foodstuffs in the markets.
The list is not complete and does not include permanent work as domestic in families.
A characteristic common to both categories is independence and a distaste for schools and hostels. Despite its perverse effects, dangers and constraints, they regard the street as a symbol of freedom and a place where life can be exciting.
It is therefore difficult to identify, make contact with and win the trust of the children.
Among measures envisaged to prevent and counter the use of children in the informal sector are:
- First, education of the public through social mobilisation campaigns to increase the awareness of adults and families, when they can be identified, and encourage action.
- Second, mobilisation of NGOs prepared to take street children in hand, by winning their confidence, offering them a chance to be clean, to eat adequate food (with the help of the international specialized agencies), to enjoy healthy amusements and, for those who feel the need, to have a simple and comfortable place to sleep at night.
In several cases, placement in closed reeducation centres, and authoritarian decisions to return the child to his family or village, have ended in failure because insufficient attention was given to the child's desire for freedom and independence.
- Third, efforts to persuade medical service staff of the importance of taking in street children who are ill, injured, suffering from malnutrition or endangered by a life-threatening disease.
- Fourth, an expanded information campaign to persuade small businesses and families employing children in the informal sector to respect the children's rights and the legal requirements concerning the employment of juveniles.
Reply to question 40
The preceding reply gives some idea of the measures taken or envisaged to provide a system of protection for children working in the informal sector. The measures are complex and require close coordination between the services under the Ministry of Population, the urban police, concerned NGOs and the authorities of decentralized communities.
Reply to Question 41
Article 77 of the Labour Code of 17 May 1975 provides that employees of all ages shall have a legal work week of 40 hours. Article 79 stipulates that children shall have at least eleven consecutive hours of rest and that night work in industry by children shall be governed by the provisions of the Washington international conventions. (See reply to question 38). Article 83 provides that children under 14 shall not be employed. Article 84 lays down that a Labour Inspector may call for the examination of a child whose work is considered to be beyond his strength.
The regulations prohibit the employment of children under 16 or under 18 depending on the type of work (dangerous work, difficult work, work underground in mines, dangerous and delicate work such as glass-making).
In certain particularly dangerous types of work, girls between 14 and 18 may not be employed.
Reply to question 42
Article 145 of the Labour Code provides for the punishment of violations of articles 77, 79, 80, 83 and 84.
The regulations prescribe penalties ranging from a fine to a month's imprisonment. The penalties are heavier in the case of violation of the prohibition of forced labour (Labour Code, article 151).
Reply to question 43
In administrative districts there are Labour Inspectors, assisted by Examiners and support staff. The administrative authorities undertake similar functions in communities which are too remote to be reached by the Inspectors.
The jurisdiction of the Labour Inspectorate is, however, nationwide and offences may be reported by the inspections or by agents of the judicial police (Code of Penal Procedure, article 128, Labour Code, article 149).
Reply to question 44
Various types of measures are provided to prevent the sexual exploitation of children.
1)
General preventive measures
Various measures, generally penal, are provided to safeguard the morals of children.
- The control of spectacles or publications involving scenes or descriptions of violence. Information was given in connection with question 24 (Control of films or publications).
Article 473 of the Penal Code provides for the punishment of persons who exhibit indecent posters or images in public places or cause them to be exhibited.
- Control of the consumption of alcohol or Indian hemp (ordinance of 28 July 1960 and law of 13 December 1961, which contain provisions for the protection of minors).
2)
Measures to prevent the corruption of children
The Penal Code provides for the imposition of heavy penalties on persons guilty of indecent behaviour intended to excite, facilitate or encourage the seduction or corruption of young people of either sex.
If the young person was under 16, indecent behaviour is punishable if the act was accidental.
The malagasy legislator has maintained the provisions of the order of 5 May 1939 prohibiting "at all times, in open places or places open to the public, soliciting of any kind: direct or indirect questions, prolonged strolling, standing at a particular point, provocation by gesture, attitude or dress".
3)
Measures to prevent procuring
The order of 5 May 1939 prohibits the keeping of brothels and houses of ill repute. It prohibits the owners of cafes and bars or landlords from receiving prostitutes or encouraging prostitution.
Articles 334, 334 bis and 335 penalize procuring and the exploitation of a house of prostitution with particular emphasis on the protection of minors.
In all cases in which minors are in one of the situations contemplated in the provisions listed or have been the victims of sexual violence (indecent assault, rape, homosexual acts), they are entitled to the protection provided by the ordinance of 19 september 1962 to any minor whose safety, morals, health or education have been endangered (article 3) without prejudice to the penalties to which the person committing the punishable act may be liable or aggravating circumstances which may apply to the penalties by reason of the age of the victim or the status of the person committing the act (Father, mother, grandparent, teacher, minister of religion, guardian, etc...).
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