Charles Burleigh FENOARIVO

“Customary law and modern law in the protection of natural resources in

Madagascar”

Abstract

Since the time of ancestors and royalty to Madagascar's independence in 1960, various laws
and regulations were proclaimed and enacted for environmental protection (The codes of 101
and 305 Articles, Malagasy Environment Charters ...). But from the 90s, a major milestone
marked general policy of the state by the introduction of Law No. 96-025 of 30 September
1996 concerning the local management of renewable natural resources. Decentralization of
governance and biodiversity conservation mode was marked by an integration of a natural
resources management system, especially forests. This protection system complies with the
rules of substantive law, national and international (Stockholm Declaration on the
Environment of 16 June 1972; African Charter on Human Rights and Peoples of 27 June 1981,
the UN Conference on environment and development in Rio de Janeiro in Brazil in 22 May
1992 called the Earth Summit, the Kyoto Protocol on climate change of 11 December 1997 in
Japan NAGOYA; Sustainable Development Goals by the United Nations September 25, 2015,
The United Nations on climate change conference or COP 21 CMP 11 in Paris, December
2015, or COP 22 CMP 12 CMA1 in Marrakech on November 2016, ...). Subsequently, other
laws and regulations reinforce the protection of the Malagasy environmental policy, namely
the texts concerning the general policy of the State (Decree No. 97-1200 of October 2nd, 1997)
and especially the Decree on the base communities responsible for the local management of
renewable natural resources (Decree No. 2000-027 of 13 January 2000).
Therefore, our work concerns on the relationship between customary law and modern law in
relation to the evolution of the right to the protection of the environment, which emphasizes
the system of management of natural resources in order to harmonize the application and the
effectiveness of environmental laws throughout the territory of Madagascar.
The objectives is to demonstrate which one of both of these systems represents the least risk,
and to see which one is the most appropriate and the more convenient for the general
community in the protection of natural resources. Thus, our work enables us to see the
importance, the benefits and the disadvantages of these two different systems.
A better management reduces conflict and tension between national law and customs
(traditional and ancestral practices representing the social norm in local communities). Thus,
we will analyze and see more about the concepts, the logical relationship, the application
procedures and implementation of these two norms of law, as well as their effects and
consequences in the natural resources management system in the territory of the republic of
Madagascar.

1
Abstract

Introduction

I- Place of Malagasy law in the protection of Natural resources

1- Customary law
A- Custom and its various components
B- Rules and principles of customary law
C- Customary law as custom and as a right

2- Modern law
A- Origin of Malagasy environmental law
B- Legal basis of Malagasy environmental law
C- Natural resources management and protection system

II- Customary law and modern law in Malagasy environment law

1- Relationship between customary law and modern law

A- Manifestations of the relationship between customary law and modern law
B- Similarities et differences

2- The effects of the application of these two standards of Law

A- Advantages and inconveniences
B- Effects and consequences

2
Introduction

The island of madagascar is renowned for its wealth of biodiversity (Fauna and flora : maki,
sifaky tsingy, giant baobab, Madagascar turtle, ravenala, rare birds and butterflies etc., etc...).
According to the international union for conservation of nature (IUCN), the rate of endemism
of natural resources reaches up to 80%.
The specificity and uniqueness of biodiversity had been found in the 1970s by Malagasy and
international researchers, practitioners and naturalists. Thus, Madagascar was one of the first
african countries devoted to the treaty on the human right to the environment : the african
charter on the rights and the rights of peoples.
For two centuries, under the Merina kingdom (French colonists and the Malagasy
Government), the Malagasy environment law mainly targets forests. As the country's
economy of exchange remained based on natural resources, the Malagasy State is still looking
for the appropriate means to protect them more, judicially and legally (by law).
Almost 90% of the total energy used by urban and rural households still depends on the forest
resource. The emphasis placed on the development of trade in products derived from
biological resources (pharmaceuticals, essential oils, etc.), ecotourism and alternative energy
sources (production of green diesel fuel from Jatropha) also increases plus the importance of
the natural environment in the Malagasy economy. According to Maurice KAMTO "The
environment is the entourage, the whole of nature and resources, including the cultural
heritage and the human resources indispensable for socio-economic activities and for the best
environment".
With the Malagasy Environment Charter of 1970, Malagasy environmental law recognizes the
existence of problems, and deficiencies in the methods of precaution and management of
natural resources. Therefore, the state had tried to refine and make more effective
environmental texts to achieve a code of the environment.
Malagasy environment law was evolving in the context of the urgency of conservation, the
strong pressure at the international level, thus the intersection of modern law and customary
law. Since then, Madagascar has witnessed a wave of texts on the right to the environment in
its decrees, laws and even in its 1994 Constitution.
In addition, standards are influenced by external rules (international conventions on the
environment, donors, etc.), whose modes of expression and transmission may be
inappropriate in Madagascar. Also, Malagasy environmental law was formally similar, even
identical to French environmental law. Which is not likely to be applied by the population. It
was therefore necessary to redefine the form of Malagasy environmental law and its actual
implementation. Despite the commitment in the framework of the Environmental Program 3
(PE 3), the production, revision and adoption of environmental law texts should be strongly
increased in the future by referring to international conventions that Madagascar ratified.
The dual system in areas where the population lives closer to the ancestors' tradition,
demonstrates the key role that culture plays in law in general. Customary law exists and is
still practiced throughout the national territory by the existence of customary laws
The south-west region of Madagascar, however, remains the most active in terms of
3
customary law on the protection of natural resources because customary laws (DINA) are the
most widespread. It is also the most threatened by deforestation because of the drought,
accentuated by poverty leading to a harmful practice by the inhabitants towards natural
resources (over-burning culture, overexploitation of natural resources, hunting and illegal
traffic , charcoal, etc., etc.). In addition, customary law, as well as its application, is more
practical, simpler and more flexible, in the sense that community rules in this region are
considered fair, livable and not very severe (Financial penalty, no physical injury to the
offender, ...).
The control of process steps, the stages, the progress and the functioning of these two legal
standards pushes us more to deepen this study.
The main idea is the study of these two legal systems of law on the protection of the
environment. On the other hand, by the way and the will of the population itself while valuing
the customary rules in a legal and official way, because the village communities feel
threatened and affected by the pressures and risks of degradation of biodiversity.
But on the other side, by the State which also plays a very important role in the process, as
guarantor and facilitator through its assistance and support, through its representatives
(Ministry, Regional Directorate of Water & forests and the court), although it does not
interfere in the implementation of community and customary rules and laws.
The objective of this study is to show and explain the key points and weaknesses of Malagasy
environmental law (customary law and modern law) with regard to the conservation of natural
resources (Fauna and flora).

4
I- Place of Malagasy law in the protection of Natural resources

In order to preserve, share and ensure the continuity of the benefits of nature conservation by
our ancestors, various rules have been introduced, and those ancestral practices should be
regulated in all their forms and in their substance, in accordance with national and international
standards (conventions and agreements ...).
Customary law is based on the strength of the given word and confidence, corresponding to all
the rules regulated in relation to the traditional and customary practices that the population
practices①. Customary law is not a written right. Through globalization and the evolution of life
in society, customs were transcribed in writing, and those ancient conventions and regulations
should be clearly written on manuscripts. This is the transition to the legalization of customary
rules. Malagasy environmental law began in the 18th century during the MERINA dynasty. The
first law about the protection of forests concerned the prohibition of deforestation and bush
fires, which was announced by the first King of MERINA: ANDRIANAMPOINIMERINA②.

1- Customary law

The customary law is a traditional and ancestral practice. It is very special and original for the
Malagasy people because it shows the customs and daily practices in the society.
Our ancestors are very great fervent defenders of the environment because their life depended
on nature. In Justinian's compilations③, custom is a usage, born of the repetition of uses on the
level of society. The integration of custom into the internal legal order (customary rules④)
requires a mutual adaptation of custom and common law. Custom always agrees with good
morals, and this is still valid in all fields, especially on the environment. As far as customary
law is concerned, the concept of protection of the environment is always assimilated.
In the southwest of Madagascar, customary law takes three forms: HAZOMANGA⑤, which is
associated with the power of the MPANJAKA⑥ (King/Queen), FOMBAN-DRAZANA① (All

①
Jacques MACQUET, Traditional and Colonial Customary Law in Central Africa, Journal of
the Africanist Society, Volume 35, Nuber 2, page 411- 418, 1965.
②
ANDRIANAMPOINIMERINA : First sovereign of the kingdom MERINA. It was he who
had given the name to the capital of Madagascar: ANTANANARIVO. He reigned from 1787
until his death in 1810.
③
Corpus juris civilis, Justinian the great, byzantine emperor from 527 to 565.
④
Nadège Meyer and Carine David, « The integration of the customs in the development of
environmental norm : éléments d'ici et d'ailleurs... », March 2012.
⑤
« The HAZOMANGA among the MASIKORO of Southwest Madagascar: Identity and
History », Jeanne Dina, Ethnohistory Volume 48, Number 1-2, University of TOLIARA,
Madagascar, 2001.
⑥
MPANJAKA designates the king or queen. Cahiers du Centre d’Études des Coutumes,
volume 1, page 125 – 129, SADARO Antoine, SONGADY Germain, History of Public
5
Uses, customs and practices of ancestors), and DINA②.
DINA is a regulation made by the will of the population itself (of a specific locality), based on
meetings and confrontations. It may not involve measures which may prejudice the general
interest and public order. The FOMBAN-DRAZANA understands Malagasy customs and
practices, more specific to a region or a clan. For example, in the south-west, the TAVY③
(Agriculture on slash and burn) reflects the contestant mentality of the MIKEA④ community
(An ethnic group⑤ called forest people). Their way of life is based on the exploitation of the
forest by gathering and scavenging. In society, FOKONOLONA ⑥ (Basic Community,
descendants of the same ancestor or clan) was once a lineage uniting a territory called
FOKONTANY⑦. Nowadays, FOKONOLONA is described as the union of people⑧ who have
a home in the village, whether they were previously HOVA⑨ (Nobles) or VAHOAKA⑩
(Population). The HOVA11 are one of the social classes among the MERINA (one of the
eighteen existing tribes in Madagascar). This style of governance12 is found in mixed villages
including Vezo, Masikoro, Mahafaly and Antandroy. In addition to HAZOMANGA and
FOMBAN-DRAZANA, customary law includes DINA. With customary law comes the old
right of the environment, which is complementary and inseparable according to the history
crossed by the country.
Towards the eighteenth century, the forests of the island of Madagascar belonged to the State

Institutions: "The MPANJAKA in the TANALA Custom", 1966.

①
Fomban-drazana Malagasy amin’ny Fahoriana, Ny Tontolon’Ikala Fanja, Décembre 2014.
②
Law No. 2001-004 of 25 October 2001 on the general regulation of DINA in the field of
public security.
③
« Madagascar and the culture on TAVY », ONG Homme & Développement and Mahay
Expédition Agency, 2014.
④
MIKEA : small tribe of southern Madagascar, living in the forest, Jean-Pierre
DUTILLEUX "The MIKEA tribe: Live happy, live hidden".
⑤
The main ethnic groups in the southwestern region of Madagascar are VEZO, le
MASIKORO, le MAHAFALY et l’ANTANDROY.
⑥
Basic community, living in a FOKONTANY. Previously they are the descendants of the
same ancestor or clan. Also called the “people” or “population”.
⑦
Basic territorial unit.
⑧
The African Charter on Human and Peoples' Rights, June 27, 1981, Organization of African
Union, art. 20, 21 I.L.M. 591981(put into force on 21 October 1986).
⑨
Dureau Reydellet, The HOVA Kingdom and Malagasy History, Editions la Varangue,
Saint-Denis (La Réunion), P. 93, 2000.
⑩
Originally, VAHOAKA means "people of the sea", at present it simply means « The
people », Randriamasimanana Charles, "The Malayo-Polynesian Origin of Malagasy",
Palmerston north, New Zealand, Studies in the Science & History for Language 2, Volume 2,
1999.
11
Berthe Raminosoa Rasoanalimanga, director of the FJKM National Archives record Centre
(1984-2007), 2008.
12
Rakotoarison, J. et al., Towards the Management and Community Governance of Forest
Resources in the Context of the Decentralization Policy in Madagascar: Case of the National
Parks of Ranomafana and Masoala (Social, Economic and Legal Dimension).
6
(Kingdom of MERINA: the dominant monarchy that realized the political unity① of the
island in 1829). This dynasty is originated in Antananarivo (Centre and Capital of
MADAGASCAR) and they lived in the highlands. At the beginning of the nineteenth century,
the first king of MERINA, ANDRIANAMPOINIMERINA②, forbade deforestation, especially
vegetation fires for reasons of external security, declaring as royal property all the forests in
his kingdom. The book "Tantaran'ny ANDRIANA③" (History of ROIs) reports a statement by
the ROI: "However, it is forbidden for people to smuggle weapons in the forest because they
can prepare a rebellion." This initiative was the first attempt to conserve known woodlands
among pre-colonial African countries④.
The written legislation MERINA ⑤ is essentially represented by a series of Codes ⑥
promulgated from 1828 to 1881. Of these codes, two codes specifically mention the
protection of forests. The Code of the 101 Articles⑦ (1868) and the Code of the 305 Articles⑧
(1881). These laws affect civil law, criminal law and procedure⑨. Indeed, from the beginning
of colonization⑩, for reasons of convenience, the Code of 305 articles has been spread in all
the courts of the big Island11. Articles 101 and 106 of the Code of 305 articles prohibited the
①
A. Gevrey, 1870. Plural societies in the Indian Ocea./;/n, P, 94. King SAKALAVA
ANDRIANTSOLY was expelled by the MERINA in 1829, to take refuge in Mayotte.
②
ANDRIANAMPOINIMERINA : First king of the MERINA Kingdom MERINA. It was
him who had given the name to the capital : Antananarivo. He reigned from 1787 until his
death in 1810.
③
Tantaran’Andriana, Book II, Volume Four, Part Two, The reign of Andrianampoinimerina.
François Callet, Georges-Sully Chapus, Emmanuel Ratsimba, Tananarive, Malagasy Academy,
1958.
④
Daniel W. Gade, « Deforestation and its Effects in Highland Madagascar, » Mountain
Research and Development, Vol. 16, No. 2, 1996, pp.101-116, 106.
⑤
The first legislator HOVA was King Andrianampoinimerina, who reigned from 1787 to
1810. His legislative work is in the form of a speech (KABARY) which tradition has
transmitted to us and which were the subject of a later drafting.
⑥
The Code of 42 Articles of 1828 (promulgated by Queen Ranavalona I), the Code of the 50
Articles of 1862 (of King Radama II), the two Codes of the 16 and 68 articles (of Queen
Rasoherina, published in 1863) Code of the 101 articles of 1868 and the Code of the 305
articles of 1881 (Promulgated by Queen Ranavalona II. Many authors have been interested in
this legislation, in particular: G. JULIEN, op.cit., EP THEBAULT, Malagasy civil law, Laws
and customs HOVA, Tananarive, Paris, 1951, fasc. 1, pp. 41 et seq., And Code of the 305
articles, Tananarive, 1960.
⑦
Code des 305 articles (Promulgated by Queen Ranavalona II in 1868), Berthe Raminosoa
Rasoanalimanga, directrice du Centre National des Archives FJKM (1984-2007), 2008.
⑧
Code des 305 articles (Lalan'ny Fanjakana, 158 pages, 1881) : promulgué par la Reine
Ranavalona II, le 29 mars 1881, Imprimerie officielle, E.-P. Thébault, 1960.
⑨
C. Ratovoson, « The Problems of the Tavy on the East Coast Malagasy», Mad. Rev. de Geo.
No. 35, Juil-Dec. 1979, pp. 141-165.
⑩
Colonization of Madagascar by France from 28 February 1897 to 14 October 1958.
11
Réf. Le texte de l'arrêté pris par le général Galliéni, le 1er décembre 1900 à ce sujet;
JULIEN, op. cit., t. 1, p. 534-535 et G. P. BORREL, Le Code des 305 articles de Madagascar,
7
burning of the forest and the settlement of inhabitants in the forest. The article 105 of the
same Code prohibits the practice of TAVY①: “The forest cannot be cleared by fire without the
purpose of cultivating rice fields, corn or other crops. Only those sections cleared and burned
before can be cultivated. Someone who brushes a new land with fire or flourishes those that
already exist, this person will be put in irons”. Restrictions on the use of forests continue to
this day. Following the French colonialization, the Water and Forest Service, established in
1896, introduced the notion of domain of the State and zone in defense where all clearing was
forbidden. In 1900, the French authorities declared ownership all the forests of Madagascar.
But all these regulations did not prevent the degradation of the biodiversity of the island,
hence the creation and establishment of the first ten (10) "Integral Natural Reserves of
Madagascar" in 1927.

A- Customs and its various components

Custom is a collective habit that has become a common rule that is transmitted from generation
to generation. It concerns the way of life in general, the morals and behavior of a whole
community. This is about culture and know-how inherited from our ancestors, based on
practices considered fair and beneficial for the good of the new generation and in favor of
nature.
The custom consists mainly of two elements. On the one hand, the material element is
constituted by the repetition of given acts manifesting a use. On the other hand, the
psychological element is composed of three aspects:
- The opinio juris, which is the conviction that repeated use constitutes a rule of law;
- The opinio necessitatis, which is the belief in the binding nature of the act, and;
- The estimatio communis, which is the consensus existing around the act.
The role, scope and origin of the normativity of customs vary according to the legal order
concerned and the different theories involved. To know the nature of customary law, it is
sufficient to analyze the two terms: customary law and custom (legally speaking).

B- Rules and principles of customary law

Custom is one of the sources of law. Custom is a rule derived from a prolonged and repetitive
use in time, forming an integral part of the evolution of a society. Because of this use repetition
comes the adage "once is not custom②". The use of coercion is a bad habit. Non-use, that is to
say, disuse, puts an end to custom. Custom is an oral legal use, consecrated by time and

Paris, 1931, p. 13 et 14.

①
DM Henkels.
②
Origin of the phrase by Antoine Loysel, « Institutes Coutumières », 1607.
8
accepted by the population of a given territory①. But oral use creates problems of proof. One
must therefore resort to individual or group testimony unless custom is well-known, which is
the case when it has been transcribed into collections. It is consecrated by time and as far as
possible time immemorial. The acceptance and testimony of custom by the population and by
its acts makes it obligatory. Custom does not apply to persons but to a given territory.

C- Customary law as custom and as a right

All nations have the right and freedom to create their own laws and regulations. It is an
exclusive, fundamental and absolute right. It is the same for any tribe or community to have its
own custom with its customary laws②. As customary law is the assembly of the words right and
custom, two very distinct but complementary words.

a- Customary law as custom

Custom is a rule of conduct followed by a social group and resulting from a more or less
prolonged use. It is an ancient rule of social conduct accepted by the generality of legal
doctrine. Repetition and plurality of acts (collective habit) constitute usage. Everything
depends on the circumstances in which the acts took place and on the meaning that was
attached to them③ (Consent, collective will, or the submission of the group concerned). Thus,
the reiteration of acts, even in the relations between individuals, does not seem indispensable
to the birth of a custom. On the other hand, custom can be defined as an unconscious and
involuntary mode of law formation. Out of a tradition, custom is a fact that takes place in time.
It is a fact and not the result of a series of acts scattered through time, because customary law
does not flow from the acts or the amount of the acts, but it derives from the purely natural
fact, That is, unwanted and unconscious. The reason and the foundation of custom lie in itself,
in its formation and its purpose lies in the respect which constitutes it and keeps it alive.
Thus customary law is a normative fact that gives rise to customary law common to all
systems of law.

①
Custom, le Grand Robert, page 5201, 1994.
②
DUNDAS, The organization and Laws of some Bantu Tribes in East Africa,
OLAWALEELIAS, op. eit., p. 207.
③
Encyclopédie universelle.
9
 b- Customary law as a right

In traditional Malagasy societies, customs are at the same time, social uses, moral rules,
religious imperatives and legal norms. Custom is the most absolute right of citizens. The law①
is the set of interpretative provisions or directives which, at a particular time and in a
particular State, regulate the status of persons and property, as well as the relations that public
or private persons maintain. We can have legal and non legal customs. The customs in the
field of marriage, succession, commercial contracts and relations between public authorities
are customary law. Whereas customs of a social character, such as clothing② or the rules of a
game, would be described as a non-legal custom.

2- Modern law

A- Origin of Malagasy environmental law

The history of Madagascar already knows examples of a system of management of natural

resources. In the 18th century, King ANDRIANAMPOINIMERINA declared③:
“Here is the forest, I make the great undivided inheritance, the means of subsistence for orphans,
single women and all the unfortunate ... I decide that no one can prevent them from coming to
the forest which I make the means of Subsistence of all the poor and all women. ... I charge you
to watch over the forest”. The Malagasy royalty has left the management of local resources to
the free use of the local population.
The origin of Malagasy environment law was already established since the royalty.
In 1960, just before the independence of Madagascar, Philibert TSIRANANA④ proclaimed:
"he who burns the forest, burns the country." Concerning Malagasy environmental law, the
codification ⑤ of traditional customs and customs was deliberated by the representative
assembly on May 7th, 1958. But it was on June 2nd, 1959 that Malagasy law had taken its real
place at the national level by the adoption of the National Legislative Assembly, following long
discussions with regard to the codification of customs, in line with the Malagasy people's desire

①
Serge Braudo et Alexis Baumann, Private Law Dictionary, 1996.
②
Ratovoson, Deschamps Hubert, History of Madagascar, “Mondes d'Outre Mer” Third
Edition, page 346, 1965.
③
Bertrand and al. 2009.
④
First President of the Malagasy Republic (14 October 1958 - 11 October 1972), speech at the
time of the adoption of Order No. 60-127 of 3 October 1960 fixing the system of clearing and
wildfires, as amended by the Ordinances Nos. 62-127 and 75-028.
⑤
Alfred RAMANGASOAVINA, Grade of Seals, Minister of Justice of the Malagasy
Republic, Malagasy Civilization, page 14.
10
for development and progress. But this system of law remains nevertheless inspired by western
law, more precisely that of France, but also influenced and imposed by the financial partners
and the international donors in the matter of protection of the environment.

B- Legal basis of Malagasy environmental law

Malagasy environment law must necessarily be based on texts, regulations and laws that are
sometimes complex but complementary. Firstly, Law 96-025 on the local management of
natural resources is an intersectoral and transversal law, which means, it concerns several
natural resources (forests, fisheries resources, etc.). Also, supported by the Decree 2001-122
of 14 February 2001, setting out the conditions for the implementation of contractualized
forest management (GCF).
The two main decrees implementing Law 96-025 were enacted in 2000, four years after the
adoption of this law. The first text is Decree 2000-027 of 13 January 2000 on basic
communities responsible for the local management of natural resources. This decree① aims to
define the structure and the rules of operation of the basic communities within the framework
of the management of the natural resources. This decree also contains an indicative model of
internal rules governing basic communities. The second decree is Decree 2000-028 of 13
January 2000 on environmental mediators, the purpose of which is to define the conditions②
required for the approval of mediators, the modalities of the environmental mediation
procedure and the causes of cessation of mission of mediators in environmental issues. In
addition, Decree 98-610, which regulates the implementation of the Relative Land Security③
(SFR), adopted in 1998. This decree stems from Law 97-012 of 6 June 1997 amending and
supplementing Law 90- 033 bearing the Malagasy Environment Charter. This decree is also a
text for the application of Law 96-025. In its article 1, the decree defines Relative Land
Security as a procedure consisting in the delimitation of the whole territory of a basic
community and beneficiary of the management of the natural resources, as well as the
observation of the occupations included in the territory (Area or delimited zone, provided for
in the DINA).
Legislators④ only recognize the right of enjoyment of the occupants and may constitute a step
towards land registration. Although still insufficient, forest laws and regulations complement

①
Article 1 of Decree 2000-027 of 13 January 2000 on grassroots communities responsible
for the local management of renewable natural resources.
②
Article 1 of Decree 2000-028 of 13 January 2000 on environmental mediators.
③
Decree No. 98 610 regulating the modalities of the implementation of Relative Property
Security. Application of Law No. 97-072 of 6 June 1997 amending and supplementing Act No.
90 033 of 21 October 1990 on the Environment Charter.
④
Article 2 of the Decree N. 98-610 regulating the modalities of the implementation of the
property security.
11
the legal framework for community forest management in Madagascar. First, Law 97-017① of
17 August 1997 revising forestry legislation is considered to be a special and sectorial law②
insofar as it refers to Law 41-025 in its article 41: Effective participation of rural populations
in the sustainable conservation of natural resources, as provided for in the law on local
community management of natural resources.
The FOKONOLONA is authorized to exercise their traditional right of use, individually or
collectively in the forests of the State, decentralized territorial authorities, public
establishments and private individuals. Law 96-025 aims to transfer the management of
natural resources to the basic communities. Law 97-017 adds and provides③ that the State
may delegate the management of its forests to other public or private persons. This article will
lead to the adoption of the Decree 2001-122 of 14 February 2001 setting out the conditions
for the implementation of contractualized forest management (GCF). For its part, Decree
97-1200④ redefines the role of the forest administration and establishes a new mode of
relationship between the various environmental participants, in particular through the
participation of basic communities in the management of forest resources. Participation is
conditional and involves empowerment of basic communities⑤: Sustainable management of
forest resources cannot be envisaged without taking responsibility at local government level.
Thus, the Forestry Administration may transfer, on a contractual basis, the management of
forests belonging to the domain of the State. However, this transfer of management does not
in any way imply a transfer of ownership. The forest remains inalienable and imprescriptibly
to the Malagasy State.
Decree 98-782 on logging in application of Law 97-017 of 17 August 1997 on the revision of
forestry legislation⑥ stipulates that the State and decentralized territorial authorities may, by
means of management contracts, Transfer the management and exploitation of their forests to
the basic communities in accordance with the specific provisions of Law 96-025 of 30
September 1996 on the local management of renewable resources. Its Article 12 stipulates that
the exploitation of the forests of the State and decentralized local and regional authorities may
be carried out either by management or by delegation to operators licensed under operating
agreements or under contract Transfer of management to basic communities pursuant to Act
No. 96-025.
Finally, article 31 reiterates that contracts for the management of the State with the grass-roots

①
Law 97-017 of 17 August 1997 on the revision of forestry legislation.
②
The expression comes from the legal experts consulted in the evaluation of management
transfers, RESOLVE-PCP-IRD Consortium, Assessment and Prospects of Natural Resource
Management Transfers within the framework of the Environmental Program 3, Intermediate
Report (Phase 2) for the cooperation and cultural action service of the French Embassy, 2004.
③
Article 24, paragraph 2 of the Law No. 97 - 017 August 17, 1997, amending forest law.
④
Article 81 of the Decree 97-1200 of 2 October 1997 on the adoption of Malagasy forestry
policy.
⑤
Article 85 of the Decree 97-1200 of 2 October 1997 on the adoption of Malagasy forestry
policy.
⑥
Decree 98-782 on forestry exploitation pursuant the Law No. 97-017 of August 17, 1997 on
the revision of forestry law.
12
communities are governed by the provisions of Law 96-025. This article also introduces the
possibility of delegating the transfer of management①: The management community may,
either in accordance with the management plan and operating rules, either directly carry out
logging or entrust it in whole or in part and Period of time to an approved forestry operator.
Decree 2001-122 of 14 February 2001② is a text for the application of Law No. 97-017 of 8
August 1997 on the revision of forestry legislation. The Law 96-025 remains the official legal
framework governing the community management of natural resources in Madagascar.

C- Natural resources management and protection system

The environmental management and protection system applied in Madagascar is a

participatory protection system. It is the population itself that is responsible for the
management and protection of the natural resources in its vicinity. This involves Transfer of
Natural Resources Management (TGRN). It is a procedure for transferring natural resource
management responsibilities from one legal entity to another③: State and Basic Community.
The transfer is carried out following a contract defining the responsibilities of each and the
basic rules of resource management. The legal entity (Basic community) becomes responsible,
for a specified time, of the resources inscribed on the inventory of the contract (Fauna and
flora) and is accountable to the legal entity that granted this responsibility (State).
The objective④ is to make effective and efficient the management of natural resources that
provide a balanced protection with human development. The principle is to delegate the
responsibility to a legal person, where the members are physically close to the resources
concerned in order to act and to raise awareness among the local populations so that they are a
direct source of virtuous management of the green space. The Basic Community is therefore
guarantor and responsible for the project of transfer of management. This corresponds to the
principle of subsidiary highlighted in the State's Sustainable Development policies from the
1990s onwards. The natural resources transferred are generally forest areas⑤ covered by the
transfer system known as Community Forest Management (GCF).

①
Article 31, Decree 98-782 on forestry exploitation pursuant the Law No. 97-017 of August
17, 1997 on the revision of forestry law.
②
Decree 2001-122 of 14 february 2001 laying down the conditions for the implementation of
contracted management of forest (GCF)
③
Maldidier, 2001.
④
Article 06 of the charter of the environment of Madagascar, annex 04.
⑤
Law 96-025 for the transfer of the management of resources on the national territory.
13
II- Customary law and modern law in Malagasy environment law

Customary law is a traditional and ancestral practice. It is a right closer to the written law, more
precisely, to the modern law. Of course, there is a difference between these two terms because
there are unwritten laws in many societies, especially in the countryside. This right is very
special and original for the Malagasy because it shows the mores and the daily uses in the
societal life.

1- Relationship between customary law and modern law

A- Manifestations of the relationship between

customary law and modern law

Practically in everyday life, there is opposition and incompatibility between Malagasy

customary law and modern environmental law. For example, in the very isolated villages, the
trading economy is based on natural resources, where agriculture was the main resource①.
Which means, they can make use of forests and natural resources according to their regulations
(e.g. DINA②), whether for agriculture, livestock or spiritual (In the forests shelter the places
Sacred ancestors). While by the new laws, the state wants to prohibit categorically the access to
the forests, causing conflicts between the traditional practice and the modern law (Example
case of the National park of RANOMAFANA③).
In principle, customary law and environmental law are contradictory, as a result of changes in
legislation and laws coming from the central government that cause changes in the inner life of
the Basic community. Knowing that the regulations do not represent the interests of the
community, and therefore are not respected. One of the phenomena that marked this tension
was the creation of national parks in the traditional territories of the villages, encouraging the
basic communities in the peripheral areas of the parks to change④ their local rules (DINA).
For example, in 1996, the DINA of a village concerning the National Park of
TSIMANAMPETSOTSY⑤ prohibits the spread of cultivable land, prohibits the cutting of

①
Country Commercial Guide Madagascar, Fiscal year 1998, US Department of State, page
1-3.
②
Collective agreement of basic Community (Law No. 2001-004 of 25 october 2001, on the
general regulation of DINA on public safety).
③
Paul Hanson, “The Politics of Need Interpretation in Madagascar's Ranomafana National
Park”, U. Penn., 1997, p. 370, 69.
④
Rasoamampionona, Clarisse, FANIAHY Museum, University of Fianaratsoa, 1998.
⑤
Jacqueline Rakotoarisoa, Legislation on protected areas, ANGAP, “Workshop on the
14
trees for the construction of houses and wooden materials. Even looking for Palm trees in the
park was forbidden. In fact, anyone who wanted to practice the TAVY or look for timber
should apply for a logging license from the Chief Canton, under the authority of the Regional
Directorate of Waters and Forests. Thus, anyone not respecting the DINA should be sent to
FANJAKANA① (State Authority).
The legalization of customary law had therefore caused destabilization in rural life. Also, the
isolation of the FOKONTANY seems to be a factor of ignorance of the villagers to the rules
and laws of government, which shows the predominance of the traditional right.
The local population recognizes DINA as a legitimate right because it does not have full
solidarity with governmental laws. It is also noted that the influence and form of traditional
institutions have changed since the arrival of Donors in Natural Resource Management. In
some ethnic communities MAHAFALY②, the MPANJAKA (King) observe the collapse of
respect for the hierarchy. The people no longer obey them. A King said③: "Before, the
MPANJAKA were respected and they worked with the local state authorities. Now people
forget this respect and it is the MPANJAKA who are rather afraid of the people". Another
MPANJAKA (King) says④: "We can work with the park if they tell us what they want, only
we want to manage our own resources, we can do it, I have children, grandchildren who are
literate".
The legal language in the texts of laws 94-007⑤ and 94-008⑥ concerning decentralized
communities does not coincide with the culture of the villagers, initiator of the DINA, so it is
still difficult to integrate customary law in modern environment law. But this progressed
according to time especially in the early 2000s. The forestry law⑦, in its decree n ° 2001-122⑧
formalizes the relations between the basic community and the State with regard to the
management of the forests. This is a sign that there is a gradual improvement in Malagasy
environmental texts.

establishment of effective environmental law in Madagascar”, May 1999.

①
FANJAKANA is the Malagasy translation of the state: public power or government of a
people living under the domination of a prince or in republic, French Academy of 1696,
Goyard-Fabre, page 17.
②
One of the biggest ethnic groups in the southwest of Madagascar.
③
King’s word of the village of Ambatovory.
④
King’s word of the village of Sahavoemba.
⑤
Law No. 94-007 of 26 April 1995 on power, competence and resources of the
responsabilities of decentralized communities. Official Journal N° 2304 of 05 June 1995, page
1241.
⑥
Law No. 94-008 of 26 April 1995 laying down the rules relating to the organization,
operation and the responsabilities of decentralized communities, Official Journal N° 2304 of
05 June 1995, page 1197.
⑦
Conservation Internationale, Raul Branes, «Institutional and Legal Aspects of the
Environnement in Latin America, Including the Participation of Nongovernmental
Organizations in Environmental Management», Inter-American Development Bank, page 21,
1991.
⑧
Decree 2001-122 of 14 february 2001 laying down the conditions for the implementation of
contracted management of forest (GCF).
15