2023-09-09 08:19:48
To be President of the Republic is to want for the Nation, it is to embody the Nation, it is to be, in the strong sense of the term, the Nation. For this high reason, the sovereign constituent requires that the one who will speak and will in his name have the nationality of his country and no other. This is common sense itself and the Law is not prohibited from also showing common sense. This is why all constitutions make nationality a condition for the eligibility of a candidate in the presidential election. Thus the Malagasy constitution which, in its article 46; provides that “any candidate for the office of President of the Republic must be of Malagasy nationality”. While we often complain about the ambiguity of legal terms, here the wording is simple, clear and unequivocal. This nationality requirement rests on a solid constitutional basis and therefore implies full control by the High Constitutional Court.
1. The constitutional basis of the nationality condition
You can only embody the Malagasy nation if you have Malagasy nationality. In the constitutional organization of the Republic of Madagascar, article 46 of the Constitution lists its powers by making the President the guarantor of the regular and continuous functioning of public powers, national independence, territorial integrity and nationality unity. Furthermore, the President must ensure the safeguarding and respect of national sovereignty both internally and externally; he is the guarantor of the continuity of the life of the Nation. This particular figure is accompanied by specific skills such as the fact that he is the head of the armies (article 56), that he accredits ambassadors (article 57) or that he negotiates and ratifies treaties (article 137). This role of the Head of State requires that he have the nationality of the State for which his mission is to ensure national independence and express sovereignty.
Such a limit cannot be conceived as a break in equality insofar as the candidate in the presidential election is in a particular situation compared to other citizens. This is the particularity of the presidential function, namely exercising an office involving the sovereignty of the Nation, which justifies that only a citizen with Malagasy nationality can be a candidate in the Malagasy presidential election. A binational President will be systematically accused or worse suspected of bias in the conduct of relations with the other State of which he has nationality. A well-known adage according to which “justice must not only be said, it must also give the feeling that it has been well done” can be perfectly transposed to the situation of the President of the Republic. A President must not only exercise national sovereignty, he must give the feeling that he exercises national sovereignty well, with complete impartiality.. The combination of article 46 of the Constitution and article 42 of the code of national sovereignty is the logical and necessary consequence to ensure the subjective impartiality of the President of the Republic. The latter must give the feeling that the decisions which are taken internally and externally are taken only with regard to the necessities which govern the Republic of Madagascar. However, if the President retains Malagasy nationality and French nationality, subjective bias will at least weigh on the exercise of his functions.
Without doubt, in a judgment of April 11, 1955 in Nottebohm, the International Court of Justice developed the idea that in the event of legal conflicts arising from a situation of dual nationality it is necessary to make prevail “the effective nationality: that which is consistent with the factual situation, which is based on a superior factual link between the person concerned and one of the States whose nationality is in question.” But this decision does not have general application and cannot be transposed to the present case. In the 1955 case, it was not a question of conflict of nationality but a question relating to diplomatic protection by States, in this case, Liechtenstein. In the case of Mr Andry Rajoelina it concerns the voluntary acquisition of French nationality for him and his family. It appears that the Nottebohm decision cannot be a legally relevant precedent for assessing the situation of Mr. Andry Rajoelina.
2. The necessary jurisdiction of the High Constitutional Court
The High Constitutional Court can intervene at two stages of the procedure to examine compliance with these eligibility conditions. On the one hand, a priori, the High Court must say whether the candidates actually meet the conditions required by the Constitution. On the other hand, a posteriori, with regard to article 116 4° of the Constitution, the High Constitutional Court has jurisdiction to hear disputes relating to the presidential election. However, it can only be entered into within two days after the publication of the provisional results by the Independent National Electoral Commission. The existence of two a priori and a posteriori controls attests to the binding and enforceable nature of the conditions set by Article 46 of the Constitution and the decisive nature of the jurisdiction of the High Court. The constituent made the High Court the guarantor of the loyalty and sincerity of the presidential election, which, in the current context, is particularly important for guaranteeing the rule of law and democracy. The decision of August 22, 2023 concerning a request for the purposes of invalidating a candidacy for the 2018 presidential election, sometimes cited, cannot constitute a precedent for several reasons. First of all, from a purely temporal point of view, if the High Constitutional Court decided to postpone the ruling until the time to refer the matter to the court of first instance or the section, we would find ourselves facing a serious risk that before the date of the election of the President of the Republic, on November 9, 2023, the court of first instance will not rule on the contestation of the Malagasy nationality of Mr. Andry Rajoelina. The sincerity of the electoral vote would be discussed and would open the way to an infinite series of challenges which would weaken not only the elected president but the entire constitutional regime. Then, and above allthere is no question in this case of the contestation (to use the terms of article 67 of the nationality code) of the Malagasy nationality of the candidate in the presidential election since, by the acquisition of nationality French in November 2014, Mr. Andry Rajoelina automatically lost Malagasy nationality. Consequently, the High Constitutional Court has no business assessing whether Mr. Andry Rajoelina has lost his nationality; this is a simple observation which is, moreover, of public order.. The High Constitutional Court cannot exempt itself from this jurisdiction; it must fully exercise its role as jurisdictional guardian of compliance with constitutional provisions. Finally, the jurisdiction of the High Constitutional Court is essential to remove any suspicion about the electoral campaign as well as the possible mandate of Mr. Andry Rajoelina. If the High Constitutional Court refused to rule on compliance with the conditions of Article 46 of the Constitution, the controversy surrounding the candidacy of Mr. Andry Rajoelina would not end. It is up to her, and her alone, to carry out such a check to clarify the administrative situation of the candidate. Such control will undoubtedly have the merit of calming the electoral campaign and guaranteeing the sincerity of the vote which is an essential principle for respecting electoral operations.
For all these reasons, the candidacy of Mr. Andry Rajoelina does not meet the eligibility conditions defined by the provisions of article 46 of the Constitution. By voluntarily acquiring French nationality on November 19, 2014, Mr. Andry Rajoelina automatically lost Malagasy nationality. As a result, he no longer meets the cumulative and mandatory conditions set by the Constitution to be a candidate in the presidential election.
Paris, September 8, 2023
Dominique Rousseau
Professor Emeritus Public Law
EDS: Sorbonne Law School
University of Paris 1 Panthéon-Sorbonne
Port Royal
1 rue de la Glacière, 75013, Paris
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