Engaging with the new Malagasy "Government"

UNCLAS ANTANANARIVO 000187

SENSITIVE
SIPDIS

STATE FOR AF/E-MBEYZEROV
ADDIS ABABA FOR DYAMAMOTO
PRETORIA FOR RBROWN, HLALIME
PARIS FOR RKANEDA
LONDON FOR PLORD
BRUSSELS FOR DFRANCIS
USUN FOR RDICARLO, AWOLFF

E.O. 12958: N/A
TAGS: PGOV MA
SUBJECT: Engaging with the new Malagasy "Government"


1. (SBU) SUMMARY: Post seeks guidance from the department on an
expected request for contact with the transition government of Andry
Rajoelina (see paragraph 3). The transfer of power from the
short-lived military directorate to another unnamed entity with
Rajoelina as its president occurred Tuesday, and today Madagascar's
High Constitutional Court (HCC) has ruled - outrageously but
expectedly -- that it is constitutional. The Ambassador (among
other diplomats) expects to be convoked very soon by the new
government and requests Department guidance on this expected
situation. In terms of how to respond to what was clearly an
unconstitutional transfer of power, splits are already visible in
the positions likely to be taken by the French, AU, UN, EU,
Francophonie, and bilateral partners, which suggest a need for
urgent coordination with other capitals/organizations. Informal
translations of the founding documents of the new government are
included in paras 6-8. END SUMMARY.


2. (SBU) ACTION REQUEST: Post requests urgent department guidance on
how the Ambassador (or DCM) should respond to an expected, formal
convocation from "President" Rajoelina, or members of his
yet-to-be-named government. Note that media will almost certainly
be present and that participation would confer, in public opinion,
some sense of legitimacy on the new administration. On the other
hand, failure to appear would almost certainly bring further
condemnation on the United States and potentially endanger personnel
and private citizens here by the supporters of the new regime who
have little tolerance for international norms or comprehension of
international law. Given the above, our recommendation is to
appear, listen to what the Malagasy interlocutors have to say, take
note initially with minimal comment, and make no public remarks for
the time being.


3. (SBU) Divisions within local diplomatic corps. In light of
yesterday's events and this morning's HCC ruling, it is likely that
the Rajoelina's "High Transitional Authority" HTA Government soon
will convoke members of the diplomatic corps in Antananarivo,
individually or together. Ambassador Marquardt has already received
a phone call from HTA"Minister of Finance" Benja Razafimahaleo
expressing his desire to work with the United States and other
international donors, to which he responded noncommittally. In a
meeting among the diplomatic corps this morning, the French clearly
signaled a willingness to hold their noses, praise the Malagasy for
(so far) the absence of further violence during the ongoing transfer
of power, and move on; the arrival this afternoon of new ambassador
Jean-Marc Chataigner portends a felicitous French position via-a-vis
TGV, in most observers' eyes. The EU expressed a strong preference
in favor of re-establishing constitutionality, respecting human
rights, good governance, etc. - but admitted that their position
would depend on coordination among member states (in which France
will no doubt play a lead role). Ambassador Marquardt said that
Washington is still reviewing the situation and that the USG would
not get out in front of the process, but expressed the view that
after two months of evoking the consequences of an unlawful
solution, the international community cannot fail to react to the
obviously unconstitutional outcome. Several COMs expressed their
unconditional willingness to respond if Rajoelina calls them, but
others remain hesitant given the tenuous legal situation,
notwithstanding the HCC's endorsement, which was not unexpected.
All ambassadors agreed on one thing: further statements or
reactions should come from capitals and headquarters, not from
embassies here, and they should not be rushed in the current tense
climate.


4. (SBU) The AU (Special Envoy Oeudraoago) seems very flexible, as
well as the Francophonie (Kodjo); their concerns seemed more aimed
at having the right impact in Madagascar than in upholding
principles; the Francophonie's position was closer to France's, and
the AU seemed more concerned about practicalities than principles.
Among the envoys, only the UN (Drame) expressed a strong position in
support of consequences, and accompanying statements and talking
points, for the extra-constitutional solution now in progress. In
formulating a USG response to recent events, we recommend looking
first to the African Union and the United Nations for their
reactions. We also continue to believe that any formal declarations
concerning the status of this new government and our reaction to the
means by which it came to power should come from Washington, in
prior coordination with the AU, UN, EU, Paris, and South Africa, as
appropriate. As noted above, France is unlikely to be in favor of
anything but a pragmatic response, given their significant presence
here; indeed, TGV praised their position today - on no one else's --
on the public square - in part due to their having taken him in last
week (with cover from the rest of us.


5. (SBU) Founding documents of the HTA government: as background,
summary translations of the three key documents that have led to the
formation of the new government follow. These documents include: A.
the ordinance transferring power from former President Ravalomanana
to a military directorate; B. the ordinance transferring power
from the military directorate to Andry Rajoelina; and C. a letter
from Rajoelina to the High Constitutional Court (HCC) requesting a
judgment on the "validity" of these documents and the legalization
of Rajoelina's control. Around noon, March 18 the HCC
unsurprisingly announced its decision on this request by giving
Rajoelina full authority at the head of the High Transitional
Authority.


6. (U) Following is a summary translation of Ordinance 2009-01, in
which then-President Ravalomanana transferred power to the Military
Directorate.

Begin translated text

Republic of Madagascar
Presidency of the Republic
The President
Ordinance 2009-001 of March 17, 2009
Conferring full powers to a Military Directorate
The President of the Republic

Noting that the prevailing circumstances require the safeguarding of
the higher interests of the nation;

Considering that the principle of continuity of the state
constitutes a general legal principle with constitutional value;

Given the constitution, notably article 44 paragraph 1, which
contains:

"The President of the Republic guarantees the respect of the
Constitution. He is the guarantor of the indivisibility of the
Republic. He is the guarantor, by his arbitrage, of the regular
functioning of public powers, of national independence, and of
territorial integrity. He guarantees the protection and respect of
national sovereignty, both internally and externally. He is the
guarantor of National Unity."

Orders:

Article 1: Full powers are given to a Military Directorate, headed
by the oldest member of the highest rank of all armed forces. He is
the President.

Article 2: The composition and organization of this Military
Directorate are left to the President's discretion.

Article 3: The Military Directorate exercises cumulatively the
functions of President of the Republic and those of the Prime
Minister, which are granted to them by the Constitution.

Article 4: The Military Directorate has the following mission:
Organize a national conference in order to discuss and elaborate
eventual modifications to the Constitution;

Prepare revisions to the Electoral Code;

Prepare the law on political parties;

Organize elections in at least twenty four months;

The Military Directorate can take all other measures that it deems
necessary in order to restore public order, and ensure an authentic
national reconciliation permitting true economic and social
development.

Article 5: For reasons of urgency, and conforming to the
dispositions of article 4 of ordinance 62-041 from September 19,
1962 concerning the general dispositions of internal law and private
international law, the current ordinance enters into effect
immediately as soon as it has been posted or published by radio or
television, independent from its publication in the official
journal. It will be executed as law of the government.
Antananarivo, March 17, 2009

Marc RAVALOMANANA [Signature]

End translated text


7. (U) Following is a summary translation of Ordinance 2009-02, from
the Military Directorate, transferring power to Andry Rajoelina.

Begin translated text

The President of the Military Directorate

Given the constitution,

Given Ordinance 2009-001 of March 17, 2009 conferring full power to
a Military Directorate,

Orders:

Article 1: Full powers are given to Mr. Andry Rajoelina to manage
the country, in place of the Military Directorate install by
ordinance 2009-001 of March 17, 2009.

Article 2: He exercises the functions and attributions of President
of the Republic, conforming to the dispositions of the constitution
for a maximum period of 24 months.

Article 3: Mr. Andry Rajoelina has as his mission the organization
of a transition regime towards a Fourth Republic, and to take all
measures necessary to this end.

Article 4: For reasons of urgency, and conforming to the
dispositions of article 4 of ordinance 62-041 from September 19,
1962 concerning the general dispositions of internal law and private
international law, the current ordinance enters into effect
immediately as soon as it has been posted or published by radio or
television, independent from its publication in an official journal.
It will be executed as law of the government.
Antananarivo, March 17, 2009

Vice Admiral Hyppolite RARISON RAMAROSON, President [Signature]
Major General Ranto RABARISOA, Member [Signature]
Major General Rivo RAZAFINDRALAMBO, Member [Signature]

End translated text


8. (U) Following is a summary translation of Rajoelina's request for
a judgement on the validity of this ordinance, and of Ordinance
2009-01, in which then-President Ravalomanana transferred power to
the Military Directorate.

Begin translated text:

President Andry Rajoelina
Villa 26, Residence of Ambatobe
TO
The President, Ladies and Gentlemen of the High Constitutional
Court
Ambohidahy
Antananarivo, March 17, 2009

Mr. President,
Ladies and Gentlemen High Councilors,


I have the honor to send you two ordinances:

Ordinance 2009-001 from March 17, 2009 conferring full power to a
Military Directorate.
Ordinance 2009-002 from March 17, 2009 transferring full powers to
Mr. Andry Rajoelina

I would appreciate your certification of the validity of these two
ordinances and to take appropriate action.

Mr. President, Ladies and Gentlemen High Councilors, please accept
assurances of my highest consideration.
President Andry Nirina Rajoelina [Signature]

End translated text


MARQUARDT