Madagascar

Journal Officiel n° 2928 of September 16, 2004 (Special edition)

REPOBLIKAN’I MADAGASIKARA Tanindrazana – Fahafahana - Fandrosoana --------------PRESIDENCY OF THE REPUBLIC --------------Law n° 2004 - 030 of September 9, 2004 On the fight against corruption

SUMMARY OF MOTIVES This law on the fight against corruption takes its place within the framework of the priority action plan undertaken by the Government, in terms of reinforcement of good governance, the implementation of the rule of law and the protection of human rights.

In fact, corruption constitutes in Madagascar a sufficiently grave and preoccupying phenomenon that profoundly affects the mechanism of normal functioning of the administration as well as public enterprises, and that negatively impacts the image of State servants.

Faced with these facts, it is necessary to « energetically fight against the practice of corruption ». The fight against this « national plague » includes the adoption of the legislative dispositions favoring its prosecution and curbing and especially the extension of the field of application of the existing laws.

The notion of corruption includes misappropriation of public funds, interference, favoritism, corruption itself and trading in influence; offences that have dangerously and scandalously become commonplace, not only within public powers and enterprises, but equally in the private sector, to the point of being qualified as a « national plague ».

The existing penal provisions are not sufficient to fight efficiently against this plague.

Secrecy, the non-diffusion of information concerning State operations, the insufficiency of controls and a number of administrative dysfunctions are also factors favoring corruption that repressive provisions alone cannot fight.

As a result, the implementation of a global action plan, adapted to societal needs and the administrative and legal context, is required in order to obtain a real and effective result.

In addition, all the aspects of public life must be governed by the general principles of the fight against corruption, ie. Integrity, objectivity, transparency and honesty.

But the general principles of corruption prevention cannot be limited only to simple rules of ethics, but must have a legal value.

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It is thus necessary to modify certain provisions of the Penal Code in order to update the quantum of penalties and to introduce new offences that could be assimilated with corruption, in order to favor its prosecution and curbing.

In addition, international experience shows that the penal laws are insufficient if they are not linked to a larger action of increased moralization of public life, including preventive action, such as that put in place in Benin, or including real programs of fight against corruption, such as those adopted in Singapore, Hong Kong, Tanzania, Uganda, etc.

The creation of an organism specialized in the fight against corruption thus seems useful and necessary.

This specialized organism is put in charge of leading the implementation of a national anti-corruption strategy including three elements: • law enforcement ; • prevention by elimination of the opportunities for corruption of the systems in the public and private sector ; • education through the increase of awareness of communities on the negative effects of corruption and the mobilization of public support.

In the face of the difficulty, if not impossibility, of assembling the evidences in matters of corruption, this specialized organism must be given the powers of investigation, a right to increased communication and the maximum of independence.

The effective functioning of the organism will be watched by the High Council for the Fight against Corruption (or COnseil SUpérieur de Lutte contre la Corruption), which shall be a supervisory and advisory organism for its General Manager, and by provincial Advisory Committees.

This law includes 39 articles and is divided into three titles.

The first title entitled « On the prevention and curbing of corruption » is composed of three chapters: the first chapter includes 2 articles and relates to the declaration of personal wealth ; chapter II including 13 articles relates to the modifications brought to the Penal Code ; chapter III including 2 articles relates to the effects of corruption offences.

Title II relative to the institutional framework includes 5 chapters: the first chapter including 2 articles relates to the High Council for the Fight against Corruption and the Independent Anti-Corruption Bureau; chapter II including 2 articles relates to the guaranty of independence and the obligation to report of the Independent Anti-Corruption Bureau; chapter III composed of 9 articles relates to the mission and powers of the Independent Anti-Corruption Bureau ; chapter IV composed of 1 article relates to the obligation to respect confidentiality and secrets; chapter V composed of 4 articles concerns the protection of whistle-blowers and witnesses; Title III of this law, including 4 articles, relates to final provisions.

Such is the object of this law.

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REPOBLIKAN’I MADAGASIKARA Tanindrazana – Fahafahana - Fandrosoana --------------PRESIDENCY OF THE REPUBLIC --------------Law n° 2004 - 030 of September 9, 2004 On the fight against corruption

The National Assembly and the Senate each having adopted in their respective sessions of July 28, 2004 and July 29, 2004, THE PRESIDENT OF THE REPUBLIC, In light of the Constitution, In light of Decision n° 27- HCC/D3 of September 8, 2004 of the High Constitutional Court, Promulgates the law whose contents follows:

TITLE ONE ON PREVENTION AND CURBING OF CORRUPTION CHAPTER ONE ON THE DECLARATION OF PERSONAL WEALTH

Article first – The obligation for periodic declarations of personal wealth for certain categories of high level personalities and State servants has as its objective the promotion of transparency in the exercise of public functions, to guaranty the integrity of public servants and to strengthen the confidence of the public toward public institutions.

The categories of applicable high level personalities and State servants, as well as the terms and conditions to follow relative to the obligation of declaration, will be set forth by regulatory means.

Art. 2 - The Independent Anti-Corruption Bureau is in charge of receiving the declarations of persons subject to this requirement.

The terms and conditions for reception, filing and use of the declarations of personal wealth will be established by regulatory means.

CHAPTER II ON MODIFICATIONS TO THE PENAL CODE Art. 3 – The terms of article 174 of Section II of Chapter III of Title One of Book III are amended and completed as follows: « Art. 174 – On misappropriation of public funds committed by persons exercising a public function

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The fact that, a person entrusted with a public power or charged with a public service, receives, requires or orders as a payment of fees, dues or taxes or payment of public salaries or wages, an amount that such person knows is not due, or exceeds what is due, will be punished with 2 to 10 years of imprisonment and a fine of 5 million FMG or 1 million Ariary to 1 billion FMG or 200 million Ariary, or of one or the other penalty only. » Art. 4 – It is inserted, after article 174, three articles numbered 174.1, 174.2 et 174.3 drafted as follows: « Art.174.1 – On illegal exemptions or exonerations Will punished with the same penalties the fact that, by the same persons enumerated in the preceding paragraph, there is a grant, under whatever form and for whatever reason, without authorization under the law, of exonerations or exemptions from public fees, dues or taxes, or to give free of charge a product of State establishments. » « Art. 174.2 – On misappropriation of public funds by court clerks (greffiers) The terms of the two preceding articles are applicable to court clerks and ministerial officers when the fact is committed with respect to revenues they are charged by law to collect ». « Art. 174.3 – On attempts Any attempt of the violations cited in the preceding articles is punishable by the same penalties. » Art. 5 – The terms of article 175 of Section II of Chapter III of Title One of Book III are amended and completed as follows: « Art. 175 - On the taking of an unjustified advantage Without prejudice to particular legislative terms, will be punished with imprisonment of three to five years and a fine of 5.000.000 FMG or 1 million Ariary to 200.000.000 FMG or 40 million Ariary, or of one or the other penalty, any State servant, any person invested with public authority or in charge of a public service mission or invested with a public electoral mandate that has, during the exercise of such functions or for two years after the end of such functions, taken, received or conserved, directly or by intermediate person, an advantage or interest of any kind in a company or operation in which such person has or had, in part or in full, responsibilty for supervision, administration, dissolution or payment. » Art. 6 - Two articles numbered 175.1 and 175.2 are inserted after article 175 and drafted as follows: « Art. 175.1 – Of the taking of prohibited employment Without prejudice to particular legislative terms, will be punished with imprisonment of one to two years and a fine of 5.000.000 FMG or 1 million Ariary to 100.000.000 FMG or 20 million Ariary, or of one of the two penalties only, any public civil servant, agent or official in charge of, by reason of such person’s position, the direct supervision or control of a private company, or to enter into agreements with a private company, or to express an opinion on the operations undertaken by the private company and that, either during vacation or part-time disposal, or after retirement, or after resignation, destitution or removal, and during the immediately following three years, exercises in such company a societal mandate (directorship or other) of any kind or a paid activity of any sort.

The exercise by the same persons of any societal mandate (directorship or other) or any paid activity in any private company that owns at least 30% of capital in common with the companies mentioned in the preceding paragraph or that enters into a contract with such company granting an exclusive right, in law or in fact, will be punished with the same penalties.

For purposes of this article, any public company exercising an activity in a competitive sector and in accordance with the private rule of law is considered to be a private company.

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The leaders of the abovementioned companies considered to be accomplices will be liable for the same penalties. » « Art. 175.2 – On favoritism Will be punished with three months to one year imprisonment and a penalty of 1.000.000 FMG or 2 thousand Ariary to 20.000.000 FMG or 4 million Ariary, or of one or the other penalty only, any person invested with public authority or charged with a public service mission or invested with a public election mandate or exercising the functions of a government official, agent of the State, of the Decentralized Communities, public establishments, or any person acting for the account of any of the above, that has obtained or attempted to obtain from another an unjustified advantage by an act that is contrary to legislative or regulatory provisions having as their aim the guaranty of the equality of access and the equality of bidders for public markets and the contractual transfer of the management of public services. » Art. 7 – The terms of articles 176 et 177 of Section II of Chapter III of Title One of Book III are amended and completed as follows: « Art. 176 - On commerce inconsistent with quality standards Any commander of public forces or armies, of districts or places and towns, any prefects or sub-prefects, that has, in the jurisdiction over which he exercises power, openly or by simulated act, or by intermediate persons, engaged in the commerce of first necessity products, wine or drinks, or any others having these properties, shall be punished by a fine of 1 000 000 FMG or 2 thousand Ariary at least, to 50 000 000 FMG or 10 million Ariary at most, and the confiscation of the goods belonging to such commerce. » « Art. 177 – On passive corruption by persons exercising a public function Will be punished with two to ten years of imprisonment and a fine of 5 million FMG or 1 million Ariary to one billion FMG or 200 million Ariary or of one or the other penalty only, the fact that any person invested with public authority or charged with a public service mission or invested with a public election mandate, has solicited or agreed, without right directly or through intermediate person, offers, promises, donations, presents or advantages of any kind in order to accomplish or to abstain from accomplishing an act of such person’s function, mission or mandate, or facilitated by such function, mission or mandate. »

Art. 8 - Two articles numbered 177.1 et 177.2 are inserted after article 177 and drafted as follows: « Art. 177.1 – On active corruption Will be punished with two to ten years of imprisonment and a fine of 5 million FMG or 1 million Ariary to one billion FMG or 200 million Ariary or one or the other penalty only, the act of proposing, without the right to do so, directly or through intermediate person, offers, promises, donations, presents, or advantages of any kind to obtain from a any person invested with public authority or charged with a public service mission or invested with a public election mandate : 1° either that such person accomplishes or abstains from accomplishing an act of such person’s function, mission or mandate; 2° or that such person facilitates by such function , mission or mandate the accomplishment or not of an act it; 3° or that such person use her real or supposed inf luence in light of obtaining from a public authority or administration distinctions, employment, markets or any other favorable decision.

Will be punished with the same penalties the fact of giving to any person invested with public authority or charged with a public service mission or invested with a public election

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mandate that solicits it, any offers, promises, donations, presents or advantages of any kind to accomplish or abstain from accomplishing any of the acts described in paragraphs 1° et 2°, or to use such person’s influence in the conditions described in 3°.

Will be punished with the same penalties any person that acted as an intermediate in the commitment of a violation under this article. » « Art. 177.2 – On active corruption by foreign public agents and the State servants of public international organizations Will be punished with two to ten years of imprisonment and a fine of 5.000.000 FMG or 1 million Ariary to one billion FMG or 200 million Ariary or one or the other of these penalties, the fact of promising, offering or granting to a foreign public agent or to a civil servant of a public international institution, directly or through an intermediate person, an undue advantage, for himself or another person or entity, in order that he may accomplish or refrain from accomplishing an act during the exercise of such person’s official functions, in view of obtaining a market or other undue advantage in connection with international commercial activities.

Will be punished with the same penalties any person having served as an intermediate in the commitment of the offences cited in this article. » Art. 9 – The terms of articles 178 and 179 of Section II of Chapter III of Title One of Book III are amended and completed as follows: « Art. 178 –On the corruption of managers, shareholders and employees of companies and members of the liberal professions Will be punished with imprisonment of two to five years and a fine of 10 million FMG or 2 million Ariary to 500 millions FMG or 100 million Ariary or one or the other of these penalties, any manager or shareholder in a private company, who without the right will have, directly or through an intermediate person, either solicited or agreed to offers or promises, or solicited or received donations, presents, commissions, discounts or premiums, to do or to abstain from doing an act during the exercise of such person’s functions.

Will be punished with one to three years imprisonment and a fine of 5 million FMG or 1 million Ariary to 250 million FMG or 50 million Ariary or one or the other of these penalties, any agent, employee, official or salaried or person remunerated of any kind, either directly or through an intermediate person, who will have in the name of and without the consent of such employer, either solicited or agreed to offers or promises, or solicited or received donations, presents, commissions, discounts or premiums, to do or to refrain from doing an act during the exercise of such person’s employment.

Will be punished with imprisonment of two to five years and a fine of 10 million FMG or 2 million Ariary to 500 million FMG or 100 million Ariary or one or the other of these penalties, any member of a liberal profession, who without the right will have directly or through an intermediate person, either solicited or agreed to offers or promises, or solicited or received donations, presents, commissions, discounts or premiums, to do or to refrain from doing an act during the exercise of such person’s functions.

In accordance with the cases provided for in the preceding paragraphs, will be punished with the same penalties any person having acted as an intermediary in the commitment of the offences cited in this article. » « Art. 179 – On trading in influence Will be punished with imprisonment of one to five years and a fine of 5 million FMG or 1 million Ariary to 500 million FMG or 100 million Ariary or one or the other of these penalties, that fact by whomever of soliciting or agreeing, directly or through an intermediate person, of offers, promises, donations, presents or advantages of any kind to peddle such person’s real or supposed influence in order to obtain from a public authority or administration distinctions, decorations, employment, markets or any other favourable decision.

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Will be punished with the same penalties the fact of giving in to the solicitations described in the preceding paragraph or the proposal, without right, directly or through an intermediate person, of offers, promises, donations, presents or advantages of any kind so that a person peddle his real or supposed influence in order to obtain from a public authority or administration distinctions, decorations, employment, markets or any other favourable decision.

Will be punished with the same penalties any person having served as an intermediate in the commitment of the offences cited in this article. » Art. 10 – An article numbered 179.1 is inserted after article 179 and is drafted as follows: « Art. 179.1 – On the abuse of function Will be punished with three months to one year imprisonment and a fine of 500.000 FMG or 100 thousand Ariary to 5.000.000 FMG or 1 million Ariary, or one or the other of these penalties, the fact that a public agent using his position or post, while accomplishing or abstaining from accomplishing, in the exercise of his functions violates the laws and regulations in order to obtain an undue advantage for himself or an affiliated person or entity.

Will be punished with the same penalties any person that has acted as an intermediate in the commitment of the violations cited in this article. » Art. 11 – The terms of article 180 of Section II of Chapter III of Title One of Book III are amended and completed as follows: « Art. 180 – On incidental penalties In the cases provided for in articles 177 and 179, if the guilty person is a military or similar person, then in terms of penalties, the terms of article 200 of the Justice Code for national service shall apply. If the guilty person is an officer, he is subject in addition to destitution.

In the cases provided in articles 174 to 174.3 and 177 to 179 inclusive, the convict will be declared incapable of holding a public function for a period of at least two years. » Art. 12 – After article 180 in Section II of Chapter III from first Title of Livre III, two articles numbered 180.1 and 180.2 are inserted and drafted as follows : « Art. 180.1 – On additional penalties In all the cases provided for in articles 174 to 179 new inclusive, the tribunals may pronounce as an additional penalty one or two of the following measures: 1° permanent ban from the territory or for a determ ined period that cannot be less than two years for all foreigners; 2° permanent ban or for a determined period that ca nnot be less than two years from the exercise of a profession during the exercise of which the offence was committed; 3° ban from the rights cited in article 42 of this Code for a period of two to ten years.

Without prejudice, if applicable, to the provisions providing for more sever penalties, whoever shall contravene one of the offences enumerated in this article will be punished with an imprisonment of three months to three years and a fine of 100.000 FMG or 20 thousand Ariary to 2.000.000 FMG or 40 thousand Ariary. » « Art. 180.2 - On exemptions and reductions of penalties Except in the case of a subsequent offence relating to corruption, will be exempted from any penalty any person, author of active corruption as per one or more of the offences set forth in articles 177 to 179, who, before any investigation, will have revealed the offence to the administrative or legal authority and assisted in the identification of other persons involved.

Except for the case provided in the immediately preceding paragraph, the maximum penalty applicable to any person, author or accomplice of one of the offences set forth in

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articles 177 to 179 et 181, who after the beginning of the investigation, will have permitted or facilitated the arrest of other persons involved, will be reduced by half. In addition, such person will be exempted from optional incidental or additional penalties provided for in articles 180 et 180.1.

Except in the case provided for in the first paragraph of this article, there will never be restitution to the corrupting person the objects delivered by him, nor of their value. They will be confiscated for the benefit of the Treasury. » Art. 13 – The terms of articles 181, 182 and 183 of Section II of Chapter III of Title One of Book III are amended and completed as follows: « Art. 181 – On aggravating circumstances If a judge deciding on a criminal matter or a juror was corrupted, either in favor or against an accused, such person will be punished with criminal imprisonment, in addition to the fine provided for in article 177.

If a magistrate, assessor or any person sitting on a judicial panel, an administrator, arbitrator or expert nominated either by a jurisdiction or the parties, was corrupted, then such person shall be imprisoned for five to ten years, in addition to the fine set forth in the new article 177. » « Art. 182 - On conflicts of interest A conflict of interest arises when the private interests of a public agent or of any public authority coincides with that of the public interest and is likely to influence the exercise of official duties.

Any conflict of interest must be immediately declared to the hierarchical authority. The non-respect of this obligation will be punishable by 6 months to two years of imprisonment and a fine of 500.000 FMG or 100 thousand Ariary to 50 million FMG or 10 million Ariary or one or the other of these penalties. »

« Art.183 – On Gifts Will be punished with imprisonment of 6 months to two years and a fine of 500.000 FMG or 100 thousand Ariary to 50 million FMG or 10 million Ariary or one or the other of these penalties, the fact that a public agent or public authority has accepted a gift or any undue advantage that is likely to influence or has influenced the treatment of a procedure or transaction linked to his functions.

The gift giver will be punished with the same penalties. » Art. 14 – Two articles numbered 183.1 and 183.2 are inserted after article 183 and drafted as follows: « Art. 183.1 – On illicit enrichment Will be punished with an imprisonment of 6 months to 5 years and a fine of 50 million FMG or 10 million Ariary to 200 million FMG or 40 million Ariary, any person invested with public authority or in charge of a public service mission, any person invested with a public electoral mandate, any leader, proxy or employee of a public company that cannot reasonably justify a substantial increase in such person’s personal wealth relative to his or her lawful revenues.

Will be punished with the same penalties any person that will have knowingly held the goods or resources of the persons cited above.

Illicit enrichment is a continuous offence characterized by the holding of personal wealth and the use of illicit resources.

Evidences of the licit origin of the enrichment or the resources can be brought forth by any means.

However, will be exempted from prosecution pursuant to this article the person who, before the opening of an inquiry or direct citation, will have revealed facts to the

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administrative or legal authorities and permitted the identification and condemnation of the principal author.

The decision of condemnation may also pronounce the confiscation for the benefit of the State, government organization, public and para-public organisms, of all or part of the condemned party up to the amount of the prejudice sustained». « Art. 183.2 – On the default on the declaration of personal wealth Will be punished with an imprisonment of 6 months to 5 years and a fine of 50 million FMG or 10 million Ariary to 200 million FMG or 40 million Ariary, any person subject to a declaration of personal wealth who, two months after a reminder delivered by legal means, knowingly, will have not made a declaration of personal wealth or will have made an incomplete, false or faulty declaration, or formulated false observations, or who will have deliberately transgressed the obligations that are applicable to such person by the law and its texts of application.

Will be punished with an imprisonment of 6 months to 5 years and a fine of 50 million FMG or 10 million Ariary to 200 million FMG or 40 million Ariary, any person who will have divulged or published, in any way possible, any or part of the declarations or observations received by the organism charged with receiving the declarations of personal wealth. » Art. 15 – An article numbered 373.1 is inserted after article 373 of Section VII of Chapter One of Title II of Book III, drafted as follows: « Art. 373.1 – On abusive denunciation A denunciation based on non-existent facts or facts not constituting a case of corruption or similar violation constitutes the offence of abusive denunciation.

Whoever will have knowingly, by any means possible, made an abusive denunciation will be punished by imprisonment of six months to 5 years and a fine of 500.000 FMG or 100 thousand Ariary to 5 000 000 FMG ou 1 million Ariary. The imprisonment penalty may be doubled.

The tribunal may in addition order the publication of the sentence, in part or in full, in one or more newspapers, and at the cost of the condemned person. »

CHAPTER III ON THE EFFECTS OF A CORRUPTION VIOLATION Art. 16 – Illicit revenues and goods originating in corruption may be seized, frozen or confiscated by judicial decision.

Art. 17 – Any contract, licence, permit or authorization obtained by corrupt means shall be automatically null and void.

Any company holding a contract, licence, permit or authorization obtained by corrupt means shall be deprived of the right to participate in any public procurement.

TITLE II OF THE INSTITUTIONAL FRAMEWORK CHAPTER ONE ON THE HIGH COUNCIL FOR THE FIGHT AGAINST CORRUPTION AN THE INDEPENDENT ANTI-CORRUPTION BUREAU

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Art. 18 - In order to implement the national policy of the fight against corruption, the following institutional framework is put into place: - a High Council for the Fight against Corruption (CSLCC) ; - an Independent Anti-Corruption Bureau (BIANCO).

The organization and functioning of these organisms will be set forth by regulatory means.

Art. 19 - The High Council for the Fight against Corruption is an advisory organism of the Independent Anti-Corruption Bureau and has as its mission the supervision and monitoring of the implementation of the national policy and strategy for the fight against corruption.

It must be consulted namely on the general effectiveness of the fight against corruption, the functioning procedures, the needs in human resources and the general conditions of recruitment of the personnel of the Independent Anti-Corruption Bureau.

CHAPTER II ON THE GUARANTY OF INDEPENDENCE AND ACCOUNTABILITY OF THE INDEPENDENT ANTI-CORRUPTION BUREAU Art. 20 - The Independent Anti-Corruption Bureau is led by a Director General. He is assisted by a Deputy Director General.

The independence of the Bureau is guaranteed by the security of the positions of its leaders, the availability of sufficient resources and the autonomy of its operations.

In the exercise of his duties, the Director General is protected from any form of pressure or intimidation coming from political or economic entities or other.

The Director General is nominated, for a 5 year non renewable mandate, by decree of the President of the Republic among three candidates proposed by the High Council for the Fight against Corruption, by simple majority of the members called for a special meeting to this effect.

The Deputy Director General is appointed for a 3 year mandate renewable only once, by decree of the President of the Republic among two candidates proposed by the Director General.

The duties of the leaders of BIANCO cannot be terminated before the expiration of their mandates unless there is a revocation decision taken as a result of complaints or denunciations brought to the attention of, and proven based on the incapacity or undignified or inappropriate behaviour, and based in accordance with a recommendation of the High Council for the Fight against Corruption deciding with an unanimous decision of its members and being of a sufficiently grave nature.

Before beginning their duties, the Director General and the Deputy Director General must take an oath in before the Supreme Court.

The revocation decision is set forth in a decree of the President of the Republic.

The necessary funds for the accomplishment of the mission of BIANCO are set forth in the finance law.

Art. 21 - The General Manager of the Bureau reports on the results of its activities by way of an annual report sent to the President of the Republic and the Parliament.

The Revenue Court is charged with an annual review of the accounts of BIANCO.

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CHAPTER III MISSION AND POWERS Art. 22 - The Independent Anti-Corruption Bureau is mandated to: 1° use the information and investigate the complain ts or grievances relative to suspected cases of corruption and related offences brought before it; 2° review the law, regulations, procedures and admi nistrative practices that are factors of corruption and recommend reforms in order to eliminate them; 3° advise all public or private persons or organiza tions on the prevention of corruption and recommend measures, namely of a regulatory and legislative order, to prevent corruption; 4° educate the population on the danger of corrupti on and the necessity to fight it, mobilize public support; 5° collect and file declaration of personal wealth of persons in public life; 6° refer to the Prosecutor office at the end of its investigation, the facts that are likely to constitute corruption offences; 7° submit to advisory committees on investigations, the facts not constituting corruption offences and the complaints not likely to lead to full investigation; 8° at their request, assist legal authorities; 9° cooperate with national, foreign and internation al organisms in the fight against corruption and related offences.

Art. 23 – Within the framework of the terms of the Penal Procedure Code and without prejudice to the powers given to officers of the judicial police, the Director General is invested with the powers granted to officers of the judicial police.

By derogation to articles 123 to 128 of the aforementioned Code and in the exercise of its investigative mission, he is nonetheless not subject to the hierarchical control of general prosecutors and of the superior officers of the judicial police. He may keep the results of investigations confidential until the closing of the file and its transmittal to the Public Prosecutor office.

In this regard, he is entitled to find corruption and related offences, to collect evidences, to search for the perpetrators and if applicable to carry out an arrest.

In this respect, he may give written orders to officers and agents of the Independent Anti-Corruption Bureau.

If needed, the Director General may directly request the help of public forces.

In all respects, the present terms do not exclude any form of cooperation between the different entities empowered with the powers of the judicial police.

Art. 24- In the exercise of his duties, the Director General has the power to authorize an Officer to lead investigations and search.

A written order from the General Manager is required for: 1° access and verify data, documents, output on any medium relative to the public service of the State, Territorial Public authorities or public establishment, notwithstanding any contrary provisions; 2° enter into public locations and buildings and re quest of public agents or authorities regardless of their rank in the hierarchy in order to furnish information on the organization, functioning and powers within the service and to produce related documents; 3° examine and use the information contained in the declarations of personal wealth; 4° audit the accounts of private sector entities and require the production of any document needed for the investigation. The secret or confidential nature of the documents cannot be argued in order to oppose this request; 5° inspect the bank accounts or accounts with other financial institutions of the suspect, his spouse, parents or children, and require the production of any document required of the investigation. The secret or confidential nature of the documents cannot be argued in order to oppose this request;

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6° require the written declaration by the suspect o f the assets belonging to him or in his possession, or those of his agents or associates during the course of the last three years, with precision as to the co-ownership, origin, price or other of such assets ; such written declaration can be used as proof against him; 7° require a written declaration from the suspect a s to the movements in his personal wealth during the course of the last three years; 8° require from all persons elements of information as to the ownership of assets and/or information related to the investigation, and/or produce the documents in such person’s possession or under such person’s control; 9° and more generally, to exercise some of his personal powers and attributes in very specific conditions.

Art. 25 – Aside from flagrante delicto, the Officer may carry out a search that complies with the terms of the Penal Procedure Code. In this case, all papers, documents, objects or substances that may be elements of exhibit, as well as objects, valuables and merchandise linked to acts of corruption and related violations may be seized and sealed.

He may take fingerprints, take photos, and generally undertake any process that he deems useful for the establishment of a case of offence.

Art. 26 – With an express and written authorization of the Director General, an Officer may proceed with an immediate arrest of a suspect for the needs of the investigation.

The Officer, in this respect, disposes of the necessary powers and means to arrest and has the right to directly request the assistance of public forces in the execution of his mission.

The arrest suspect must be taken to the offices of the Independent Anti-Corruption Bureau or to police station to be interrogated. In all cases, the legal rules applicable to custody and rights to defence must be respected.

Art. 27 – Every refusal or impediment to the investigative powers of the Director General in the exercise of his duties is considered as an obstruction to the proper functioning of justice and is qualified in this respect as an offence, punishable by imprisonment of one month to three years and a fine of 250 000 FMG or 50.000 Ariary to 1 000 000 FMG or 200 thousand Ariary or one of the two penalties only.

The same applies to any falsification of documents.

Any violation of paragraph 2, 1° et 2° of article 2 4 will be considered, when it comes from a public agent, as a fault separate from his public duties, and may, as such engage the personal liability of the agent.

Art. 28 - The Director General may request the delivery of a preventive seizure order in order to keep the suspect from disposing of the assets until the end of the investigation.

Any misappropriation of seized goods is punishable by the penalties set forth in article 406 of the Penal Code.

Art. 29 - The Director General may request a prohibition on leaving the territory for any suspect from the competent authorities.

In this respect, all or part of the travel documents may be confiscated.

Art. 30 - The Director General may request from the judicial authorities the power to intercept communications and telecommunications of suspects.

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CHAPTER IV ON THE OBLIGATION TO RESPECT CONFIDENTIALITY AND SECRECY Art. 31 – The entire personnel of the Independent Anti-Corruption Bureau and its territorial branches are held to preserve the confidentiality and secrecy relative to the internal functioning and the investigations undertaken by the Bureau.

Apart from cases where the law requires or authorizes them to become whistle-blowers all members of the Independent Anti-Corruption Bureau and its territorial branches that will have revealed all of part of confidential information and secrets will be punished with imprisonment of five to ten years and a fine of 5 million FMG or 1 million Ariary to 100 million FMG or 20 million Ariary.

Former members of the Independent Anti-Corruption Bureau are held to this obligation of confidentiality and secrecy. Any violation of this obligation is an offence punishable with the same penalties as set forth in the second paragraph above.

Will be punished with imprisonment for two to five years and a fine of 1 million FMG or 200 thousand Ariary to 20 million FMG or 4 million Ariary any person who will have: revealed the identity or information leading to the identification of a person that is the object of an investigation by the Bureau, except for persons subject to an arrest warrant or subject to a prohibition from leaving the territory; revealed any information that can impair the integrity of an investigation being led by the Bureau.

CHAPTER V ON THE PROTECTION OF WHISTLE-BLOWERS AND WITNESSES Art. 32 - The Director General is responsible for seeing to it that: 1° the identity of the persons involved in a denunc iation is protected, namely that of the whistle-blower(s), of witnesses and of the presumed perpetrators of the act of corruption; 2° the mechanisms aimed as ensuring the protection of the information collected and linked to a denunciation be put in place.

Art. 33 – During the course of a civil or penal trial, the witness to a corruption matter cannot be forced to reveal the name and address of a whistle-blower or informer of the Independent Anti-Corruption Bureau, nor to reply to questions leading to an identification of the name and address of the whistle-blower or informer of the Independent Anti-Corruption Bureau when the whistle-blower or informer himself is not cited as a witness in the trial.

If after a complete investigation of the matter, it becomes evident that the declarations of the whistle-blower were false or did not reflect the truth, or that the judicial system cannot decide on the matter without knowing the identity of the whistle-blower or informer, the tribunal may remove the restriction cited in the preceding paragraph.

Art. 34 – It is forbidden to exercise any reprisals against a whistle-blower or witness.

Art. 35 – Any whistle-blower or witness believing to be a victim of reprisals may file a written complaint with the Independent Anti-Corruption Bureau.

Upon receipt of such a complaint, the Independent Anti-Corruption Bureau may help the parties in the resolution of the dispute or seek to investigate it. If the Bureau concludes that the complainer has indeed been the victim of reprisals, it may approach the competent judicial authority and transmit thereto the results of its investigation. The competent judicial authority may, according to the case, enjoin the administration or employer in question, and take in favour of the victim the following actions if necessary: 1° reintegrate him to his position;

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2° pay him an indemnification equivalent at most to the pay he would have received if not removed from his post; 3° cancel any disciplinary measure or other taken a gainst him. If the person is a public agent, then pay him an indemnification that is equal at most to the pecuniary sanction or other that he was made to pay; 4° reimburse him for the expenses and financial los ses that directly resulted from the reprisals; 5° cause to cease any form of reprisal.

TITLE III FINAL DISPOSITIONS Art. 36 - As a waiver of article 20 paragraph 4 above, the first Director General of the Bureau is nominated directly by the President of the Republic.

Art. 37- The Independent Anti-Corruption Bureau has the competence to know the facts suspected of corruption and related offences starting from the date of entry into force of the present law.

Art. 38 – Regulatory texts will set forth as needed the terms and conditions of application of the present law.

Art. 39 – The present law shall be published in the Official newspaper of the Republic.

It will be executed as law of the State.

Promulgated in Antananarivo, on September 9, 2004 Marc RAVALOMANANA

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