Final Report on Advocating for Judiciary Reforms Appropriate to Tourism in Zanzibar Influencing Stage.

Transcription

1 Final Report on Advocating for Judiciary Reforms Appropriate to Tourism in Zanzibar Influencing Stage. February 2015 Consultants: Omar Said Shabaan & Bobby McKenna Client: Zanzibar Association of Tourism Investors (ZATI)

2 Final Report on Advocating for Judiciary Reforms Appropriate to Tourism in Zanzibar Influencing Stage. Project name Advoca(ng for Judiciary Reforms appropriate to tourism in Zanzibar Influencing Stage Objec.ve for this Phase Based on the study recommenda(ons, to influence the government to introduce tourism safety and security reforms in Zanzibar for the benefit of the stakeholders Final Objec.ve To influence the government to introduce tourists safety and security reforms for Zanzibar, including improving the legisla(ve systems to handle tourist related court cases and hence restore the image of Zanzibar as a tourist des(na(on of choice Execu.ve Summary A report detailing proposed amendments to the exis(ng security and judiciary framework for tourism- related crime was compiled on behalf of Zanzibar Associa(on of Tourism Investors (ZATI), with donor support from Business Environment Strengthening Tanzania Advocacy Component (Best AC) in November This report suggested necessary amendments and changes to the Zanzibar legal system to expedite the processing, evidence- gathering, prosecu(on and sentencing of crimes carried out against visitors. With tourism now recognized by the Zanzibari Government as the principle sector and driver of the economy, a rise in crime could have serious long- term effects on the economic and social landscape of the islands. With security the number one considera(on for visitors when assessing the suitability of a tourism des(na(on, it is vital that Zanzibar maintains a reputa(on as a secure and safe place to visit. A recent rise in crime against tourists on the island, including several high- profile cases documented in global media, and growing concerns that the security and judicial follow- ups were insufficient, has prompted ZATI to take a pro- ac(ve response in assis(ng the Government to find solu(ons before tourism to the des(na(on is nega(vely impacted in the long term. The influencing stage was planned to expedite a commitment between public and private sectors to adop(ng the recommenda(ons made in the report, and absorbing them into policy and law on the island wherever possible.

3 Methodology and Process Constraints. Whilst every effort was made to follow the guidelines laid out in the Grant Agreement document provided by Best AC, local condi(ons, poli(cal events and the sensi(ve nature of discussing poli(cal and security affairs with Government all prevailed during the course of the influencing work that was undertaken. When planning the one- to- one mee(ngs, it became clear that we would not be able to openly discuss the content of the reports and our recommenda(ons with journalists present taking notes of what was discussed. The interviewees made it clear that they did not want statements and thoughts on the record for fear of poten(al repercussions and open debate in the media of an issue considered paramount to Na(onal importance. As a result, the decision was taken to hold a press conference for radio, TV and newspaper journalists in which the report was introduced as part of a general presenta(on on tourism and security. AZer the opening Presenta(on workshop, it also became clear that a comprehensive Legal Reform Programme was already underway, and that in order to affect the outcomes and decisions made, it would be necessary to target those ins(tu(ons within the Government legal framework that were involved in this process. Thus, the order in which the processes were undertaken were reshuffled, and rather than a general PPD workshop with invitees from these ins(tu(ons, we should instead focus on the key decision- makers in more direct one- to- one discussions. The other influencing factor on process and (meline was the ongoing Cons(tu(onal debate taking place in Dodoma, which affected the availability of many of the principal poli(cians and government employees. Ul(mately, it was to lead to the departure of the A`orney General for Zanzibar himself, and the subsequent processes to iden(fy, inaugurate and establish his successor further compromised access to key poli(cal and legal figures, delaying the planned (meline for the Project. It was also made clear that any PPD influencing workshops that might be held during this period would only be a`ended by middle to lower ranking civil servants, whose presence could not be assured, nor any outcomes as a result of their a`endance guaranteed. Finally, azer a series of successful one- to- ones and influencing mee(ngs, the draz document of the Legal Reform Programme was released, featuring many of the key recommenda(ons of the ZATI report. The report covers a 5 year implementa(on and monitoring programme, meaning that there was unlikely to be any further changes to the legal framework during this period. Furthermore, the process of analysing and implementa(on made it unlikely that any senior decision- makers would be available for consulta(on and discussion on legal reform proposals in the immediate future It was therefore proposed to Best AC that rather than use the remaining funding without guarantees of results, the influencing stage should be wound up. The recommenda(on was upheld by Best AC management by and in a subsequent mee(ng.

4 Influencing Presentation Workshop Present: Minister of Finance Hon. Omar Yusuf Mzee Execu(ve Director of ZIPA, Salum Nassor Chief Commissioner of Police, Zanzibar Commissioner Hamdani Omar Presiden(al Advisor on Investments and Overseas Trade Hon. Mbalozi Ramia Deputy Principal Secretary, Minister of Tourism Hon Issa Mlingo( Board Members of ZATI, ZATO, ZNCIAA, ZAA all present. The occasion of the Annual General Mee(ng of ZATI, where a dis(nguished guest list of public and private sector a`endees were present was the perfect opportunity to launch the Influencing Stage of the Project. A presenta(on detailing the report was prepared and introduced by Bobby McKenna, highligh(ng the security situa(on in Zanzibar, recent crimes in Zanzibar involving visitors and tourism establishments, followed by the recommenda(ons of the report. The presenta(on was well- received and subsequently commented on in their speeches by both the Chief Commissioner, Minister of Finance and the Presiden(al Advisor on Investments and Overseas Trade. They all confirmed the Government s commitment to improving security on the island and reassured the investors present that safety was a major commitment of the government. The Minister of Finance subsequently gave TV and radio interviews on the subject of tourism security, reitera(ng the Government s commitment to a safe des(na(on for visitors. h`p://archive.dailynews.co.tz/index.php/local- news/ z- bar- govt- lays- accent- on- security- of- tourists

5 Zanzibar Investment Promotion Authority (ZIPA) Present: Salum Nassor, Execu(ve Director Shariff Shariff, Director of Investment Facilita(on and Development Nasriya Nassor, Director of Investment Promo(on and Services Inter Alia As the Government umbrella organiza(on for investment in Zanzibar, ZIPA are at apex of the public sector tourism interface. As a result, they are in a be`er posi(on that many within Government to recognize the effects on the investment and economic landscape if tourism numbers were to be nega(vely affected by security concerns. As ZATI s principal public sector partner, it was also considered a courtesy to inform them of our mandate, an appropriate star(ng point for public sector influencing. We met with all of the senior Directors of ZIPA for an extended presenta(on and discussion session in the Boardroom. Ul(mately, ZIPA has a vested interest in ensuring the steady flow of investment into Zanzibar, and with tourism now formally recognized as the principal driver of the economy, they shared our concerns over the crime situa(on. The summarized version of the report s findings were distributed in hard copy and the Execu(ve Director, Mr. Salum Nassor, promised to include the mee(ng s conclusions in his monthly report to the President. They also published pictures and details of the mee(ngs in their social media pages.

6 Press Conference Present: Zanzibar Leo Mwananchi TV Zanzibar Radio Zanzibar The Guardian Given the understandable diffidence of the Government to discuss security ma`ers with journalists present, we took the opportunity to brief the Press Corps of Zanzibar on the security situa(on, the report, its recommenda(ons and our hopes for a Public Private Partnership response to the concerns. Many had been present at the ini(al Influencing Workshop, and were familiar with the program that we were undertaking, as well as the core issues at stake, but it proved a worthwhile exercise in providing another perspec(ve for the Press to report, namely of the need for the Government to review their exis(ng framework and make necessary changes. They were issued with press packs, consis(ng of the report s summarised findings, an abridged copy of the PowerPoint Presenta(on, a ZATI profile and were later ed soz copies of the report itself.

7 Legal Sector Reform Programme Present: Judge Mshibe, Chairman of Zanzibar Law Review Commission Ali Juma Legal Officer/Member of Secretariat of Law review Commission Sabra Mohammed Legal Officer / Member of Secretariat of Law Review Commission Khamis Mwita Khamis Legal Officer/ Member of Secretariat of Law Review Commission As one of the project consultants involved in the influencing process also a member of the Legal Sector Reform Programme, we were aware that a law review process was already underway, funded by the UNDP. It was thought prudent to meet with the Chairman and Board members at the earliest opportunity to share the report s recommenda(ons to ensure that our opinions might be considered as part of this process.. The Judge acknowledged the importance of tourism to the islands economic well- being and lamented the lack of awareness of this importance amongst law enforcement agencies. Similarly, he agreed that the Government must work harder to improve its case flow, and suggested that a 24 hour court for dealing with tourism crimes was poten(ally possible, from an administra(ve perspec(ve, with simng magistrates on rota(on. Our observa(ons regarding the criminal procedures act were acknowledged and we were told that the review process currently underway would be addressing many of the issues that we raised in the Security and Judiciary Review Report. However, he welcomed the ini(a(ve as it allowed the Commission to The judge observed that the (me was ripe for a comprehensive review of the Zanzibar Legal Framework, and that our report would form part of their considera(ons. It was clear that tourism crime specifically had not previously formed part of their delibera(on, but that case- flow, rota(ng Magistrate courts and Evidence Decrees would all be reappraised from a tourism perspec(ve. Chief Commissioner, Community Policing Division, Tanzania Present: Commissioner Mussa Ali Mussa, Commissioner of Polisi Jamii for Tanzania Regional Police Commissioners We took advantage of a visit from Police HQ in Dar es Salaam to meet with Commissioner Mussa Ali Mussa at ZATI office and introduce him to our recommenda(ons on tackling tourism- related crime at a security framework level. Community policing (polisi jamii) was officially introduced in Tanzania in 2006 as part of an ongoing police reform programme. In addi(on to a`emp(ng to improve communica(on between police and the public, the police have promoted ulinzi shirikishi (par(cipatory

8 security), whereby ci(zens are encouraged to form neighbourhood policing ins(tu(ons to prevent and detect crime Commissioner Mussa was formerly Commissioner of Police in Zanzibar and was familiar with the problems faced on the island, His new pos(ng as Commissioner for Community Policing for the Republic of Tanzania was in keeping with the Police s inten(ons of raising the profile of Community Policing across the country. Co- opera(on between Community Police groups and tourism stakeholders is a key recommenda(on of the report, as it also strengthens (es between key stakeholder groups. Areas with ac(ve Community Police groups and strong tourism presence are those with the lowest crime rates in Zanzibar. Commissioner Mussa was keen to stress the need for private tourism stakeholders to further engage Community Police in their areas, and support their efforts with the construc(on of bandas, provision of uniforms, meals, torches etc. One of the obstacles to effec(ve community policing is that it has proved difficult to sustain collec(ve ac(on through community policing and the costs and benefits of par(cipa(on have been unequally distributed across communi(es. We were keen to point out that whilst it was an effec(ve means of policing, it could not replace the Police and nor could it be seen as a cost- effec(ve security organ, paid for solely by the private sector. Mussa took the dis(lled copy of the report with him, and promised to share it with his colleagues at Police Headquarters in Dar es Salaam.

9 Office of Director of Public Prosecutions Present: Ibrahim Mzee Ibrahim, Director of Public Prosecu(ons Muumin Kh Kombo Deputy Director Rashid Abdallah Fadhil Officer in charge of Regional Courts Hassan Shein Research and advisory service Raya Mselem senior State A`orneys Walid State A`orney Haji Mgongo State A`orney We were invited to the Office of the Director of Public Prosecu(ons on Miembini to introduce our recommenda(ons from the report. The primary func(ons of the office are to prosecute, to take over and to withdraw any criminal case before all law courts except court marshal, for an offence commi`ed in Zanzibar either wholly or in part. The DPP is required in the performance of his du(es to make sure that jus(ce is done, and no abuse of legal process and public interest is observed. A full team from all departments of the office were in a`endance for the presenta(on, which was well received. Given the legal exper(se amongst them, it was not perhaps surprising that the debate focused very much on the legali(es of our recommenda(ons and the effects they would have on the prosecu(on process.

10 it was felt that a be`er law to invoke in order to make crimes against tourism a crime against the state, and thereby a`ract stronger sentencing, was the Zanzibar An(- Corrup(on and Economic Crimes Act. it was felt that the poten(al consequences of using the Terrorism Act on minor incursions against tourists would flood courts and prisons accordingly. The Public Prosecutors strongly recommend the inclusion of the rota(onal court as this will expediently dispose the criminal cases of which tourists are vic(ms. The worries by the DPP office is the process may be delayed and may not achieve the goal when the accused hire the defence counsel to present them. It seems to their experience that the advocates are the one who delays the fast proceedings in court. Zanzibar Police Headquarters Present: Assistant Commissioner Aziz Regional Police Commander, Stone Town Commander Mkadam Regional Police Commander South Region Regional Police Commander North Region Head of Forensic Unit Police Headquarter Ziwani Having already presented to the Chief Commissioner of Police for Zanzibar, Hamdani Omar earlier in the year, we were invited to brief the remainder of the senior Police Officers in Zanzibar at the Police HQ. This was the longest and liveliest of all the mee(ngs that we had, with the Police officers present all very interested in the report and its conclusions. They requested copies for their own reference. They agreed that greater co- opera(on between security enforcement and tourism stakeholders was required, and supported the idea of a Security Code agreed by both par(es to ensure that responsibili(es for security were shared. It was suggested that this be enforced through the Zanzibar Commission for Tourism. Their sugges(on was for the ZCT to issue Security Cer(ficates as part of the annual licenses process. They also advocated a vemng process of all employees in hotels, as the Police believe that the majority of crimes in tourism establishments are inside jobs a result of poor security assessments of their employees by tourism employers. They said that cultural differences between locals and foreigners made their work harder.

11 It was acknowledged that the shoroall in resources available to the Police was exacerba(ng the problem, as it was making it difficult for them to fulfill their du(es. More police sta(ons were required in tourism zones (as recommended in the report), be`er communica(on methods were needed to quicken Police response, and more Police allocated to patrolling and crime- solving. The presence of the Tourism Police would go some way to suppor(ng their efforts and bring addi(onal resources to support them. A tourist offender register was welcomed as a posi(ve tool for iden(fyingand policing repeat offenders whom, as one policeman stated, are many, par(cularly amongst drug users in town. All Officers present regularly insisted upon CCTV becoming mandatory for all hotels to improve surveillance. There was also an insistence that it be installed across Stone Town, although it was not known as to who would pay for this and which department would monitor the cameras. It was also acknowledged that the exis(ng Evidence Decree does not allow for video evidence to be accepted in court, which would undermine the relevance of CCTV in crime solving. Greater co- opera(on between tourism stakeholders and community policing (Polisi Jamii) ini(a(ves was encouraged by the Police also There were concerns that the Commission for Tourism was not sharing its data on tourism crime with the Police, and the officers present felt that more poli(cal support was required to improve the legal confines in which they work, a reference to the need for

12 more legal reform. This was par(cularly true of the evidence act, which the Police officers felt was an obstruc(on to the fulfillment of their mandate. Overall, the general message was the co- opera(on was needed between tourism stakeholders, Government agencies and the Police (including auxiliary forces like tourism police and Polisi Jamii) to improve the recent figures on tourism crime. It was an encouraging mee(ng over all, with enthusias(c contribu(ons from the Senior Police members, who were very much engaged in what we were seeking to achieve. Criminal Investigation Department Salum Msangi SACP Deputy Director of Criminal Inves(ga(on Unit The presenta(on was given in the Head Office of the CID in Stone Town Central Police Headquarters. Mr. Msangi was generally approving of our proposals and agreed that there was much could be done to expedite and improve inves(ga(on procedures. He also believed that the construc(on of barracks at key police sta(ons would improve police presence in tourism zones but wanted private sector stakeholders to fund them because the standard would be be`er. He believed this a key factor to improving security on the island. He was also a keen advocate of a rota(ng tourism court, in order to speed up prosecu(on and free up holding cells in police sta(ons, as it costs money to hold suspects in police sta(ons, further deple(ng resources. Mr Msangi was also keen to mobilise police presence further, again insistent that this be funded by the Private Sector tourism stakeholders, as it was they who were being protected and, in his opinion, should therefore pay. We were promised the full support of the CID in our endeavors. Attorney General Offices, Zanzibar Present: Said Hassan, A`orney General, Zanzibar The poli(cal fallout as a result of the late September resigna(on of the previous A`orney General of Zanzibar, Hon. Othman Masoud Othman had caused many delays in the influencing programme.

13 Structurally, the Zanzibar A`orney General is the Principal legal advisor to the Revolu(onary Government of Zanzibar and we needed his advice on our recommenda(ons in order to be sure that we had the most senior member of the Governmental legal sector on side. The new incumbent, Said Hassan, was unable to see us for some (me azer being nominated for the post of A`orney General, but kindly agreed to an appointment when his schedule quietened down. His enthusiasm for our work was welcome but he stressed that the Government was already commi`ed to finding solu(ons to the ques(on of tourism- related crime, was already looking into it. He described our sugges(ons as short term solu(ons, when what was required was ongoing discussions between all stakeholders. His proposal was for a Security Round Table, involving the Ministry of Local Government, Shirikia la Ulinzi, tourism stakeholders and legal sector advisers to find solu(ons to the problem. He said that weekend courts were needed to deal with the case flow, par(cularly of tourism crimes and that a rota(ng magistrate s court would be a possible solu(on also. Convic(ons are the only deterrent for criminals targe(ng tourists was his sincere conclusion. However, he reiterated that whilst our sugges(ons were all of merit, they required further and ongoing discussion to make them workable for all sides. He assured us that the Government were ac(ve on many levels already, which would become clear in good (me. His willingness to see us and discuss our proposals for a long period one azernoon was a very welcome gesture, his polite steering of our ideas into a more workable poroolio of solu(ons being both useful and gra(fying. CONCLUSIONS AND OUTCOMES As a result of the one to one mee(ngs, some of the proposals were considered and included in the ZANZIBAR LEGAL SECTOR REFORM STRATEGY 2014/ /19. This was released by the Government to ZATI in December 2015, whereupon it became clear that some of our key recommenda(ons had been considered and adopted. It also signified the end of the influencing stage as there would be no further amendments considered to the legal and security framework un(l the (meline of this mandate had been completed. The key amendments relevant to the influencing are as follows:

14 1. Strengthen Criminal Jus.ce framework As a strategic interven(on in reforming Criminal Jus(ce in Zanzibar, the government is intending to review the Evidence Decree, Cap 5 (1917) with the aim of pumng it in the contemporary context of Zanzibar. This was a key recommenda(on of the original report, as it expedited evidence gathering, catalysing prosecu(on and improving case flow. The review will include the provisions to allow the use of electronic evidence (including incidents recorded by CCTV camera), taking of evidence of a witness, even if they are not able to be present in the court room (through video conference) amongst other things. The Criminal Procedure Act and Penal Act will also be reviewed in order to establish expedient procedures in disposing of criminal suits as well as accommoda(ng new and emerging crimes such as cyber crimes and armed robbery, which are not currently contained in the exis(ng Penal Act. The Inves.ga.ve and Prosecu.on capacity of Police force and Prosecutors will be enhanced and improved. This will include the undertaking of five tailor- made, intense training courses targe(ng 200 staff from the Police, Prosecutors, Judiciary officers and other related stakeholders. The strategy indicated that the training will be undertaken by various Interna(onal and na(onal experts with exper(se in the field, an ac(on recommend by the ini(al The strategy clearly stated on the introduc.on of effec.ve crime detec.on mechanisms to be in place by December, This will include the conduct of a needs assessment to iden(fy requirements, procurement and installa(on of DNA machines, CCTV cameras, high frequency communica(on radios and other modern equipment. Further to this strategic interven(on, there was the formula(on and implementa(on of the new Zanzibar Crime Preven(on Strategy and Public safety law. Key elements of this relevant to our work were as follows:- 2. Enactment of JKU Security Agent Law As part of the ZATI advocacy Judiciary reforms the government has brought the Bill and eventually passed by the House of the Representa(ve early this year was the Act establishing the Security Agent under Jeshi la Kujenga Uchumi (JKU). Sec(on 6 of the Act specifically read as follow 6. Kazi za Shirika zitakuwa:- Func(on of the Act will be: a. kutoa huduma za ulinzi wa kibiashara kwa taasisi zinazoshughulika na huduma za utalii na nyenginezo; Offer security services to the tourism business and others b. kufanya doria na ulinzi ka9ka maeneo ya uwekezaji na mengineyo; Conduct security patrol in all investment areas and others c. kutoa ushauri wa kiulinzi na kiusalama kwa watalii, wadau wa utalii na taasisi nyenginezo;

15 To give professional security advice to Tourists, tourism stakeholders and other ins(tu(ons d. kutoa mafunzo ya kiulinzi na usalama kwa taasisi zinazojihusisha na utalii na nyenginezo; Offer security related trainings to tourism related business en((es. The above quoted sec(ons give special emphasis to tourism and show that the Act was meant primarily for Tourism security. The law is now awai(ng the President s signature of Assent before the Minister responsible issues the no(ce of its opera(on. Given the strategic lobbying of Security Forces and Tourism Organisa(ons put in as part of this influencing stage, it is our hope that implementa(on of a dedicated security provision for the support of tourism stakeholders and visitors to Zanzibar is a proven outcome from our efforts. We thank the ZATI Board for their support, the BEST AC management for their pa(ence and the various members of the Zanzibari Government and Tanzanian Police Force for their willingness to engage us and discuss these issues openly in search of mutually- appropriate se`lements.