End of land rights in Mayotte: why must the Constitution be changed?

An exceptional measure. The Minister of the Interior and Overseas Territories Gérald Darmanin announced this Sunday, February 11, upon arriving on the French archipelago, “the end of land rights in Mayotte”. This “radical measure” will be permitted by a “constitutional revision that the President of the Republic will choose”, specified the tenant of Place Beauvau. Before deciding: “It will therefore no longer be possible to become French if you are not yourself the child of a French parent.” The objective being to “cut off the attractiveness that there is in the Mahorais archipelago”.

But is it possible? “Yes”, unanimously decide the constitutionalists interviewed by Le Figaro. “Theoretically, if you revise the Constitution, you can put everything in it because the latter is considered “the norm above the hierarchy of national norms””, explains public law lecturer Benjamin Morel straight away.

But why resort to such an approach when the island in the Indian Ocean already has a special status? “We have in fact already singled out Mayotte, as a department, via article 73 of the Constitution which provides that “if the laws and regulations are automatically applicable there, these provisions may be subject to adaptations taking into account to the particular characteristics and constraints of these communities.” The uniqueness of Mahor is due in particular to its proximity to the Comoros, located some 70 kilometers from the archipelago and where a significant amount of illegal immigration comes from. In Mayotte, one in two inhabitants is foreign.

Since the Asylum and Immigration law of 2018, land law is already limited in the 101st French department. Concretely, it is required for children born to foreign parents in Mayotte that at least one of their two parents has, on the day of birth, resided on French territory for more than three months and on a regular basis. This particular provision is not valid anywhere else. “The archipelago therefore already has a special regime with a unique application of the law on immigration matters,” explains specialist Benjamin Morel.

“We can therefore try to go further by adapting the law. But the Constitutional Council could prevent it, because ultimately, it is the latter which will set limits. The question is therefore: at what point do we leave article 73 of the Constitution?”, asks the constitutionalist again. Because “by removing land rights in Mayotte, we would go very far in the question of adapting laws in local communities,” insists an academic, expert in asylum and immigration issues. “And the Constitutional Council could consider that this is opposed to the principle of state unity.”

The desire of the executive to go through a constitutional revision could thus come from its conviction of having “already gone far in terms of twisting the law”, analyzes Benjamin Morel. And this would make it possible to “secure” the particular regime of the archipelago.

Constitutional revisions, however, require a long procedure because they must be submitted to the Assembly and the Senate before being voted on by 3/5 by Congress. “In the current configuration of Parliament, the vote on this revision does not seem simple,” maintains the constitutionalist.

Before warning: “And if you include this Mahorese exception in the Constitution, you are structurally singling it out,” warns Benjamin Morel. “Because, when we single out communities in the Constitution, we single them out with regard to their degree of autonomy (depending on whether they are COM, DROM, or common law communities)”.

However, here, the executive wants to single out the Mahorais case “to provide for mitigation of the rights of individuals in the territory”, details the lecturer in public law. “We would therefore include a “baroque” if not “bizarre” mention in the Constitution, because Mayotte would only be mentioned there for the restriction of certain rights. And the latter would not concern the rights of communities but the rights of individuals,” asks Benjamin Morel.

Especially since the effectiveness of such a measure “is far from obvious”, warns the academic. “Soil law actually has nothing to do with the problems of Mayotte,” he says, detailing: “The migrants who come from the Comoros come first because of the gap in living standards between the two archipelagos. This concerns income, with gaps of 1 in 10, but also the presence of maternity centers and schools.

According to the expert, Mayotte is therefore a major land of immigration because it appears like an “El Dorado”. “And not because it offers nationality to migrants, which, moreover, is not automatic” [to obtain French nationality at the age of 18 when one was born in France to foreign parents, the rule of common law stipulates that 'you must have lived at least five years in the country since the age of 11, Editor's note]. Moreover, “the 2018 law, already restrictive, had no effect on the attractiveness of the archipelago while it made it harder to obtain nationality,” underlines the expert, describing this announcement as real “red rag”.