Law on the Recognition and Protection of Human Rights Defenders
Type of instrument: Law and Protection Mechanism
Status: (as of 1 January 2022)
In Progress; Text with Minister of Justice.
Comments on the instrument:
The draft law is comprehensive, containing all the rights and obligations enshrined in the Model Law, with a very similar text. The articles related to the Protection Mechanism are less comprehensive, with several aspects in the Model Law absent or incomplete (i.e., protective measures are granted but there is no specific requirement for a risk assessment). Ideally, these elements are elaborated in a revised draft or supporting regulations.
Does the instrument contain specific provisions easily used to restrict human rights defenders’ rights?
No
Comparison to the Model Law
Below is a short summary of the instrument as compared to the Model Law. For additional information and analysis by ISHR on Madagascar, click here.
A selection of fundamental rights for human rights defenders incorporated in the instrument:
|
Provision |
Covered? |
Analysis / articles |
|
Definition of Human Rights Defender |
FULL |
2(1) |
|
Right to promote and protect human rights and fundamental freedoms |
FULL |
1(a), 3 |
|
Right to Form Groups, Associations, and Organisations |
FULL |
4 |
|
Right to Solicit, Receive and Utilise Resources |
FULL |
7 |
|
Right to freedom of expression and to seek, receive and disseminate Information |
FULL |
8, 9, 11 |
|
Right to access and cooperate with NGOs, government organisations and intergovernmental organisations |
FULL |
5, 6, 12-14 |
|
Right to participate in public affairs |
FULL |
15, 16 |
|
Right to Peaceful Assembly |
FULL |
17, 18 |
|
Right to represent and advocate |
FULL |
19-21 |
|
Right to freedom of movement |
FULL |
22-24 |
|
Right to Privacy |
FULL |
25, 26, 44 |
|
Freedom from intimidation or reprisal |
FULL |
27 |
|
Freedom from defamation and stigmatisation |
FULL |
2(3), 28 |
State obligations regarding human rights defenders in the instrument?
|
Provision |
Covered? |
Analysis / articles |
|
Obligation to respect, promote, protect and fulfil rights of human rights defenders |
FULL |
33, 34, 40 |
|
Obligation to facilitate the activities and work of human rights defenders |
FULL |
41-43, 50 |
|
Obligation to prevent and to ensure protection against arbitrary or unlawful intrusion, interference, and intimidation or reprisal |
FULL |
45, 46, 51-53 |
|
Obligation to investigate, provide an effective remedy and ensure reparation |
FULL |
30-32, 47, 48, 49, 60-63 |
Mechanism on the protection of human rights defenders established in the instrument?
Yes, in Part IV, section 34, article 54 and onwards.
|
Provision |
Covered? |
Articles |
|
Cooperation with human rights defenders, civil society, and national and international human rights bodies |
FULL |
54, 55(d) |
|
Training of mechanism’s personnel on human rights and fundamental freedoms |
PART |
54 |
|
Periodic reviews with independent experts and CSOs on the functioning of the Mechanism |
NONE |
|
|
Resources for adequate functioning of the Mechanism / transparency on resource usage |
FULL |
57-59 |
|
Public acknowledgement of human rights defenders’ work and rights (promotion of UN Declaration) |
FULL |
55(e) |
|
Disseminate information on protection programmes for human rights defenders, Mechanism’s work |
NONE |
|
|
Development of protocols and guidelines based on best practices to protect human rights defenders |
NONE |
|
|
Assist investigations for prosecuting offences against human rights defenders |
FULL |
55(c) |
|
Granting of protective measures based off a specific risk assessment |
PART |
2(4)(d), 51, 55(a,b) |
|
Review / appeal of Mechanism decision before courts or independent authority |
NONE |
|
|
Confidentiality and personal data protection |
FULL |
56 |
|
Actions to achieve structural changes (annual reports on the situation of human rights defenders, advising government on laws and policies related to human rights defenders) |
NONE |