Zanzibar

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Background

Zanzibar is a semi-autonomous region of Tanzania and, although it is integrated into Tanzania’s governmental and party structure, has its own president, court system, and legislature.

Zanzibar elects a president who is head of government for matters internal to Zanzibar; Ali Mohamed Shein was elected to office on 31 October 2010 and was sworn in on 3 November 2010. Similar to the presidency, Zanzibar has its own House of Representatives that legislates specifically for Zanzibar. The Zanzibar House of Representatives has 50 seats; members elected by universal suffrage serve five-year terms. [1]

Type of System

The Zanzibar legal systems are based on British common law and also recognize customary and Islamic law in civil cases. In criminal matters both Christians and Muslims are governed by statutory or common law. A Judicial Service Commission, chaired by the chief justice of the Court of Appeal, appoints all judges except those for the Court of Appeal and the high courts, who are appointed by the president. All courts, including Islamic courts in Zanzibar, are staffed by civil servants.

Tanzania, which includes Zanzibar, has a five-tier judicial system whose highest court is the Court of Appeal. In almost all respects the Zanzibar court system is similar to the system on the mainland. However, since Zanzibar’s population is almost completely Muslim, there is a system of Islamic Kadhi courts with its own hierarchy and appellate court. These courts deal with family matters, such as divorce, child custody and inheritance, and only arbitrate cases involving Muslims. Cases concerning Zanzibar constitutional issues are heard only in Zanzibar's courts. All other cases may be appealed to the national Court of Appeal.

Under international law, the government of the United Republic of Tanzania, which is located on the mainland, has the power to ratify international treaties. Tanzania has ratified the ICCPR and ACHPR. Legislative action locally is necessary to ratify international treaties, but courts are directed by the directive to uphold human dignity in accordance with the Universal Declaration of Human Rights and government legislation.

Defendants' Rights

Pre-Trial

Zanzibar is ruled by its own constitution and the constitution of the Mainland. Also, in accordance with article 24 (3) the duty to deal with fundamental rights and freedoms is conferred to the High Court. This brings problems of access to justice for the poor as these are only in few places and a lawyer is necessary. Both constitutions have provisions that are relevant for rights and freedoms in case of arrest and criminal procedure. Articles 15(2)(a) of the Union Constitution and 14(2)(a) of the Zanzibar Constitution provides that “… no person shall be arrested … confined, detained or otherwise deprived of his freedom save only under circumstances and in accordance with procedures prescribed by law”.

The sections 21 and 22 of the Criminal Procedure Act provide the legal space surrounding arrest and pre-trial detention. One of the important sections is 21 (a) dictating the need for “reasonable suspicion” before a person is arrested or detained. Additionally, the presumption of innocence is guaranteed in article 13 of the Union Constitution and in article 12 of the Zanzibar Constitution, insists that “no person charged with a criminal offence shall be treated as guilty of the offence until proved guilty of that offence”. The Criminal Procedure Act in its section 30(1)(b) requires the arrested individual to be informed to the specifics of his/her arrest. Torture has been outlawed by the Zanzibar Constitution in its Article 13 that prohibits subjecting any person under custody to torture or inhuman or degrading punishment or treatment. Habeas corpus provisions are safeguarded through section 388(b) of the CPA.

Right to Counsel

In Zanzibar, the right to legal counsel is a constitutional right and is part of the right to fair trial (article 13(6)(a) of the Union Constitution and article 12(a) of the Zanzibar Constitution) which extends this right to all poor suspects accused of all offences which might attract a sentence of over five years imprisonment. Consequently, many who are accused of petty crime do not have access to legal aid and are in pre-trial detention for long periods of time. Section 30(3) of the Criminal Procedure Act entitles the pre-trial detainees to legal counsel during police interrogation. Section 28 limits detention period in police custody not to exceed twenty-four hours unless the extension is granted by a magistrate.[2]

Few of the problems with providing access to legal assistance for all people in Zanzibar is the proximity and availability to courts, shortage of manpower, court fees, lack of legal education and awareness among the population, lack of legal aid and a pro bono culture and delay of cases. [3]


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Prison conditions are harsh. There have reports of torture and other ill-treatment. Local human rights groups recorded a marginal decrease in prison overcrowding and noted that the problem was mainly due to delays in adjudicating court cases and an inadequate use by courts of non-custodial sentences. According to the Legal and Human Rights Centre and Zanzibar Legal Services Centre, almost half of the prison population comprised pre-trial detainees [4]

Notes

  1. US Department of State (2010), 2009 Human Rights report: Tanzania
  2. Hamad, Hamad Khamis (2006), Pre-Trial Detention in Zanzibar: A Study of Human Rights of Pre-trial Detainees under domestic law and practices, University of Oslo
  3. Legal Human Rights Centre (2010) ‘Tanzania Human Rights Report 2009’
  4. Amnesty International Report 2010, at http://www.unhcr.org/refworld/country,,,,TZA,456d621e2,4c03a7fac,0.html
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