ZANZIBAR eGOVERNMENT AGENDA LEGAL PROVISION, EFFECTIVENESS AND LEGITIMACY

29 November 2011 Overview In Zanzibar up to the end of last decade we have been experiencing profound social and economic changes in what may well amount to a country rebirth, though the country continuing socio-economic problems should not be understated, it is clear that current country developments do not hold the promise of carrying Zanzibar into a new era of great improved prospects for socio-economic developments in relation to education, health service and wealth creation, more needs to be done in a professional and ethical way, as the country has a legacy of unequal distribution of socio-economic development based on geological location, due to the lack of adequate resources. Zanzibar problems in the backdrop, needs a critical strategic entry-point as a strategic need, which could enhance socio-economic development of the islands, eGovernment has been promoted as a key useful tool for socio-economic developments1. It has a profound effectiveness in sharing resources, research information, government openness and distance services. It has also been used to facilitate official communications2. As over the years now Zanzibar government has been battling to address the problem of inequitable services to its citizen as a legacy of poverty. eGovernment like most information technology platforms, is here to stay and has some great potential in socio-economic developments, but will have a long way to go before all of people in Zanzibar would need to use it.

HAJI, H. M. (2000) Internet is a Strategic Need for Socio-Economic Development in Sub Saharan Africa, De Montfort University, September 2000, Milton Keynes, UK. 2 RITA SANTOS et. al. (2009), Understanding Adoption of eGovernment: Principals, Agents and Institutional Dualism, Institute for Development Policy and Management, 2009, UK

eGovernment is critical to social and economic activities that comprise the development process, as a means of interaction between government and the citizen, and not simply a connection between government and citizen, but a link in the chain of the development process and openness of the government to its citizens3. eGovernment will help Zanzibar to accelerate its development plans, stimulate growth and provide new opportunities in education, business, healthcare, job creation and food security. It is a process to leapfrog stages of socio-economic development and raise citizen access to their government4. Along with the benefits of eGovernment it also come with issues, which pose great challenges to reap the full benefits of the transformation, it is therefore very important that these issues to be considered as top priority and addressed accordingly before the word go. The issues can be easily identified through Zanzibar eGovernment agenda impact assessment, which needs to be properly designed for a good return. eGovernment Agenda and Legal Provision The concept of Zanzibar eGovernment agenda technically derived from Act No 2 of 2011 section 97 which established the institution relating to information and communication technology policy and operation within the public service5. That there will be a department under public service ministry, which shall execute all functions related to the use of information and communication technology within the government. It is that department according to the laws of Zanzibar empowered and vested a mandate to create policies and implement the agenda and maintain the resource. It is therefore illegitimate for any one outside the department and the ministry under the interpretation of the Act No 2 of 2011 section 3 and subsequently section 51 to proceed as government agent on this regard. It is only that department mentioned under this Act will have to co-ordinate the process toward fully decorated eGovernment. It is therefore
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PROF. RICHARD HEEKS (2000), Government Data: Understanding the Barriers to Citizen Access and Use IDM, Manchester 2000, UK 4 G. DAVID BRIN (1999), The Transparent Society : Will Technology Force Us to Choose Between Privacy and Freedom, Perseus Publishing, 1999 5 ZANZIBAR GOVERNMENT (2011), The Public Service Act No. 2 of 2011 House of Representative of Zanzibar, 27 January 2011, Tanzania, United Republic of.

important that Zanzibar government needs to show some seriousness on good governess of the agenda and not let individuals to act on behalf of the government contrary to the law, and for their own personal desire to grab headline while messing around with future potential country resources to improve citizen engagement with government6. It is about time for Zanzibar government to implement the legal requirement of the Act No. 2 of 2011, and establish the institution which will allow Zanzibaris to get the best out of Zanzibar eGovernment agenda, while reaching the needs to adopt the agenda in a professional way, explore our in-house ICT capacity, potential skills to the fullest extent and takes the lead of the vision to the right direction. It is a requirement of the law for that department to establish framework to be used by all government institutions, facilitate and co-ordinate the development and enhancement of electronic service and access of citizens to the scheme, who dont have access to electronic services. It is that department will have a specific strategic function that includes to build and maintain quality country backbone ICT infrastructure with adequate international connectivity, to build and maintain quality ICT infrastructure for Zanzibar eGovernment agenda, to acquire and implement a portfolio of key integrated eGovernment applications, to ensure quality management information systems services, to develop and enforce relevant ICT standards and policies, to ensure security of systems and data, to build a sustainable in-house human capacity to implement, support and exploit ICT resources more effectively and efficiently, to create and operationalise an appropriate governance structure for eGovernment agenda, and ensure adequate and sustainable process for the benefit of all. eGovernment Agenda Effectiveness and Legitimacy Zanzibar government under the implementation of Act No. 2 of 2011 needs to balance the advancement of the technology within Zanzibar eGovernment agenda and our legal
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DAILY NEWS (Last Updated : 11 October 2011), Zanzibar to Adopt eGovernment 2012, (Tanzania - In by : Ali Sultani) Available at http://www.dailynews.co.tz/business/?n=24431&cat=business (Accessed : 28 November 2011).

framework, there are many area in our legal framework desired to be enhanced before the word go to a fully decorated eGovernment agenda. These including citizen privacy, crimes related to the use of the automated system, national security and government functionalities under the new system facilitating eGovernment concept. Zanzibar traditional common law principles to protect citizen privacy and dignity are unable to deal effectively with the privacy issues arise from using automated processing systems to be within Zanzibar eGovernment initiative. In Saltman Engineering v

Campbell [1948] 65 RPC 203, LORD GREENE held that individual privacy is something
which is not a public property and for public knowledge. But apart from the constitution itself in Zanzibar, there is no legislation which deals specifically and fully with data protection should we move to a new era of electronic life7. In 1970, ALAN WESTIN, a professor of public law and government in Columbia University the early philosopher on the topic of privacy and the technology, alarmed the world on the need to consider a new paradigm to protect citizen in information technology8. While in mankind history the recognition of the privacy is deeply rooted. Evidence suggests that every society, even the most primitive one, adopts principles that dont allow encroachment from others whatever strong they were, including governments9. In

Gaskin v United Kingdom [1989] 12 EHRR 36, the court held that certain personal data
relate to individual privacy and family life in such a way that the issue of access falls within the ambit of natural justice. The 1948 Universal Declaration of Human Rights is the benchmark of the modern privacy on information technology arena at an international level, the so called data protection10.

ZANZIBAR GOVERNMENT (1984), Constitution of Zanzibar 1984 as amended, Zanzibar Government Press, Zanzibar, January 12, 1985. 8 DR. ALAN F. WESTIN, Professor of Public Law and Government : Columbia University (1996), Privacy and American Business, In : Testimony, Before the House Banking and Financial Services Committee, Domestic and International Monetary Policy Subcommittee, Federal News Service, June 11, 1996, Available in LEXIS : Nexis Library. 9 CAROL LEVIN (1993), Digital Privacy : Who Has the Right to Read Your Data? , PC Magazine. v12, n20. Nov. 23, 1993. 10 UNITED NATIONS, (1948), Universal Declaration of Human Rights, adopted and proclaimed by General Assembly Resolution 217 A (III), December 10, 1948.

The protection of the citizen right to privacy is the fundamental human right appears in Zanzibar constitutions and this do provides an indication of its importance11. Protection offered by constitutions is like its common law discussed earlier contemporary not an absolute protection, as may be limited in terms of law of general application in Zanzibar and has to be balanced with other rights to be entrenched within Zanzibar eGovernment agenda framework12. Much of the quoted dictum comes from Gartside v Outram [1857] 26 LJ Ch 113, where it was justified breaching of citizen privacy in the public interest, if it was related to some misconduct, and this misconduct institute a criminal or unlawful activity or if that public interest is for carrying out public decision. For instance United Republic of Tanzania constitution provides a number of citizen rights such as right to get education, right to work, right to move freely and many more13. But obviously in order to exercise these rights properly, personal data may be necessary needed or exposed, and it is obvious that the government can only fulfil their duty or functions properly if they also have access to sufficient personal data of their subjects. This means laws to protect personal data in the eGovernment concept have to accommodate all these rights and interests in a balanced manner14. Therefore Zanzibar constitution alone cant address issues within the legal requirements for Zanzibar eGovernment agenda. It is therefore the duty of the department to be established under Act No. 2 of 2011 to work on this fundamental issue NOW, rather waiting till when Zanzibar president inaugurate Zanzibar eGovernment initiative to maximise Government accountability and interaction to its citizen, taking into account Tanzania where Zanzibar is part of, signed and adopt Open Data Government Partnership, where eGovernment can facilitate its aim to be more open to its citizen in various decision making process.

URT CONSTITUTION (1984 as amended), Every person is entitled to respect and protection of his person, the privacy of his own person, his family and of his matrimonial life, and respect and protection of his residence and private communications, Article 16(1), Dodoma, 1994 12 DIANE ROWLAND (2003), Privacy, Data Retention and Terrorism, 18th BILETA Conference : Controlling Information in the Online Environment, QMW London, April, 2003 13 URT CONSTITUTION (1984 as amended), Rights and Obligations, Chapter Two Section Three Article 12 to Article 32, Dodoma, 1984. 14 COLIN J. BENNETT (1992), Regulating Privacy : Data Protection and Public Policy in Europe and the United States, Ithaca, Cornell University Press, 1992.

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As it defined above the development of the eGovernment will also pose serious problems to Zanzibar society, others are which instigate crimes activities. Through eGovernment platform online terrorists, cyber criminals, hackers they all present a wide variety of threats and will create new pressure to Zanzibar intelligence, defence and law enforcement agencies. Online criminals have a major advantage, they can use the digital network to inflict damage to country well being, while simultaneously reducing the risks of getting caught. Zanzibar have developed cyber crimes related legislation15, may be that is not enough to curb the problem, cyber security team needs to be formed to block and investigate crimes related to online activities16. As technology rapidly advances, preventing online crime and catching online criminals will only become tougher, since many of the crime facilitated out of geographical boundary17. It is therefore important for this department to direct the government initiative to keep with the pace of technology and involving others such as higher learning institutions for research on system security. Despite the drawbacks of the eGovernment, but Zanzibar is on the threshold of a new revolution from one of 1964, which will change dramatically the paradigm of way of living. This revolution will have an influence practically on every aspect of life, work, recreation and interaction with the government. This revolution will overcome the barriers imposed by political boundaries, physical features and cultural differences. Therefore it will be the duty of the department to be established under Act No. 2 of 2011, to influence changes on our legal framework, trained system security professionals, draw guidelines and standard operating procedure, and making allies with other partner within the region and world at large to address the problem, should not be the impediment not to take the good course to promote Zanzibar way of life18.

ZANZIBAR GOVERNMENT (2004), Zanzibar Penal Code Act No. 6 of 2004, House of Representative of Zanzibar, 2004, Tanzania, United Republic of.

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17 RICHARD HEEKS (1998), Information Technology and Public Sector Corruption, IDPM, University of Manchester, September 1998, UK. pp. 3 18 AFRICA DEVELOPMENT FORUM (1999), The Challenge to Africa Globalisation and the Information Age, AISI, 1999, Addis Ababa, Ethiopia. pp 1-6

PAULA UIMONEN (1997), The Internet as a Tool for Social Development, United Nations Research Institute for Social Development, 1997, Switzerland. pp 1-4

Due to the colossal security implications facing the eGovernment era, it is vital to redefine our legal framework on official secrets to protect information and other assets relating to national security and government functionalities under eGovernment19. It is highly likely during the course of using eGovernment systems, civil servants will come into contact with information which normal on conventional way of doing government business was not possible and that are protected against disclosure by the Official Secrets Act, all such information must be held in strict confidence not to endanger national security and government functionalities20. It should be explicitly laid down within the new legal framework for eGovernment that one will commit an offence if disclosed any information, document or article obtained under terms of interception of communication while using the system to facilitate eGovernment activities. The new legal framework should not only constitutes crime and offences on disclosing information, document or article classified under new Official Secrets Act, but one should also commit an offence by making through the system facilitate eGovernment a damaging information, document or article this including harassments of any form, sexual harassment, racial or religious harassments. Conclusion It is vital for Zanzibar government to implement the legal requirement of the Act No. 2 of 2011 section 96 and 97, so Zanzibar eGovernment agenda can be properly coordinated, facilitated and implemented in a professional and legitimacy manner. Zanzibaris deserves the best out of Zanzibar eGovernment agenda, personal desire inputs to the concept will derail and send off the course the meaningful eGovernment for the benefit of all. References : HAJI, H. M. (2004), Lack of Uniform Interpretation and Legal Provisions of Data Protection Laws : The Unknown of Its Effectiveness and Legitimacy in Europe and Beyond, University of Strathclyde, September 2004, Glasgow, UK
19 BUTCHER, N. (1998), The Possibilities and Pitfalls of Harnessing ICTs to Accelerate Social Development : A South African Perspective, SAID TALERO, E. E, April 1998, Johannesburg. pp 16-17 20 GIDDENS, ANTHONY (1990),The Consequences of Modernity, Polity Press, 1990, Cambridge. pp 1-5

THE HOUSE OF COMMONS (2003), Anti-terrorism, Crime and Security Act 2001 Review, The Stationary Office, London 18 December 2003. HAJI, H. M. (2003), Do Converged Regulatory Authorities Represent the Optimal Way Forward for the Regulation of the Communications Sector? : A Case of Tanzania University of Strathclyde, June 2003, Glasgow, UK. PAMELA PHILLIPS (2001), Email Ethics and Etiquette, Computer Law Association : Managing the Global Digital Information Technology Explosion, Washington DC, May 2001. GUADAMUZ ANDRS (2000), Habeas Data : The Latin-American Response to Data Protection', The Journal of Information, Law and Technology (JILT) 2000 (2), Warwick University, 2000. DOUWE KORFF (2002), EC Study on Implementation of Data Protection Directive : Comparative Summary of National Laws, Human Rights Centre, University of Essex, Colchester UK, September 2002. CHRIS MADDOCK (2000), Act Delivers New Protection Rights, Business MK, April 2000 Vol.2 No.4, Milton Keynes, p 6. AMAN A. KARUME (1999),Speech for Inauguration of ZANTEL Ground Gateway Satellite, Ministry of Communication Zanzibar, March 1999, Zanzibar. pp. 1-3 HUMAN RIGHTS WATCH (1999), Africa : Human Rights Developments, Human Rights Watch, NY 10118-3299 USA. pp 1-5 USTARAN E. (1997), Data Protection Regulation : The Challenge Ahead', The Journal of Information, Law and Technology (JILT), October 1997. AKDENIZ, Y. (1997),The Regulation of Pornography and Child Pornography on the Internet, The Journal of Information, Law and Technology (JILT), February 1997, Leeds. pp 1-14 HEEKS, R. (1998), Management Information and Management Information Systems, School of Oriental and African Studies, University of London, UK. TALERO, E. et. al. (1998), Harnessing Information for Development: A Proposal for a World Bank Group Vision and Strategy, Information Technology for Development, Washington, USA. BEESON, ANN (1996), Top Ten Threats to Civil Liberties In Cyberspace, Human Rights 23 (1996): 10-13. ROTHFEDER, JEFFREY (1992), Privacy For Sale : How Computerization Has Made Everyone's Private Life an Open Secret. Simon and Schuster, New York 1992.