REVIEW OF THE LEGAL FRAMEWORKS IN THE ESA-IO REGION - … · 2021. 2. 8. · FMg Malagasy franc ICCAT International Commission for the Conservation of Atlantic Tuna ICCM Implementation

REVIEW OF THE LEGALFRAMEWORKS IN THE ESA-IO REGION

December 2011

REPORT/RAPPORT : SF/2011/13

EuropeanUnion

Funded by

Implementation of a Regional Fisheries StrategyFor The Eastern-Southern Africa and India Ocean Region

Programme pour la mise en oeuvre d'une stratégie de pêche pour laregion Afrique orientale-australe et Océan indien

Review of the Legal Frameworks in the ESA-IO Region

SF/2011/13Phil Snijman

December 2011

EuropeanUnion

Funded by

1 Programme SmartFish Rapport SF/2011/13

TABLE OF CONTENTS LIST OF ANNEXES 4TABLES, FIGURES AND PICTURES 4ABBREVIATIONS AND ACRONYMS 4EXECUTIVE SUMMARY 6RESUME EXECUTIF 71. INTRODUCTION 91.1. OBJECTIVE OF THE REVIEW 91.2. CONTEXT 101.3. BACKGROUND 102. METHODOLOGY 143. PERFORMANCE IN RELATION TO THE TERMS OF REFERENCE 154. ASSESSMENT, IDENTIFICATION OF LEGAL CHALLENGES AND BARRIERS AND RECOMMENDATIONS 174.1. COMOROS 174.1.1. LEGAL FRAMEWORK AND ASSESSMENT 174.1.2. EVALUATION 204.1.3. RECOMMENDATIONS 204.2. KENYA 214.2.1. LEGAL FRAMEWORK AND ASSESSMENT 214.2.2. EVALUATION 254.2.3. RECOMMENDATIONS 264.3. MADAGASCAR 264.3.1. LEGAL FRAMEWORK AND ASSESSMENT 264.3.2. EVALUATION 324.3.3. RECOMMENDATIONS 344.4. MAURITIUS 344.4.1. LEGAL FRAMEWORK AND ASSESSMENT 344.4.2. EVALUATION 424.4.3. RECOMMENDATIONS 434.5. SEYCHELLES 444.5.1. LEGAL FRAMEWORK AND ASSESSMENT 444.5.2. EVALUATION 474.5.3. RECOMMENDATIONS 494.6. SOMALIA 494.6.1. LEGAL FRAMEWORK AND ASSESSMENT 494.6.2. EVALUATION 544.6.3. RECOMMENDATIONS 554.7. THE UNITED REPUBLIC OF TANZANIA 574.7.1. LEGAL FRAMEWORK AND ASSESSMENT 574.7.2. EVALUATION 644.7.3. RECOMMENDATIONS 655. CONCLUSIONS AND RECOMMENDATIONS 675.1. LEGAL BARRIERS TO ACHIEVING THE DESIRED END STATE OF MCS IN THE REGION 67

Programme SmartFish Rapport SF/2011/132

5.2. EVALUATION OF AREAS REQUIRING ATTENTION AND SPECIFIC RECOMMENDATIONS ON ACTIONS AND ASSISTANCE REQUIRED 695.3. IN CONCLUSION 72


LIST OF ANNEXES

ANNEX 1 Terms of ReferenceANNEX 2 Schedule and people metANNEX 3 Aide Memoire ANNEX 4 Country specific evaluation tables ANNEX 5 Proposed Terms of Reference for specific legal assista

TABLES, FIGURES AND PICTURES

All photographs by Phil Snijman ©

ABBREVIATIONS AND ACRONYMS

AFRC Albion Fisheries Research Centre ASCLME Agulhas and Somali Current Large Marine EcosystemCCAMLR Convention for the Conservation of the Antarctic Marine Living ResourcesCFA franc Currency used in Central Africa guaranteed by French treasuryCLS Collecte Localisation Satellites, French companyCOI Indian Ocean CommissionCOMESA Common market for Eastern and Southern AfricaCPCs IOTC Contracting Parties and Cooperation Non-Contracting partiesCSP Centre de Surveillance des PechesCPS Contracting Party StatesDPP Director of Public ProsecutorsDSFA Deep Sea Fishing Authority EAIFFPA East Africa Industrial Fishing and Fish Processing Association EEZ Exclusive Economic ZoneEPA Economic Partnership AgreementESA Eastern and Southern AfricaESA-IO Eastern and Southern Africa-Indian Ocean (Region)EU European UnionEU-NAVFOR European Union’s Operation Atalanta Naval Force Somalia FAO United Nations Food and Agricultural OrganisationFAO PSM FAO Port State Measures AgreementFJTFCA Federation of Japan Tuna Fisheries Co-operative associations FMC Fisheries Monitoring Centre FMg Malagasy franc ICCAT International Commission for the Conservation of Atlantic TunaICCM Implementation of International Fishery Conservation and Management MeasuresIOC Indian Ocean CommissionIOR-ARC Indian Ocean Rim Association for Regional Cooperation IOTC Indian Ocean Tuna CommissionIRFS Implementation of the Regional Fisheries StrategyIUCN International Union for Conservation of NatureIUU Illegal Unreported and Unregulated (fishing)IWC International Whaling Commission LOSC 1982 United Nations Convention on the Law of Sea


EXECUTIVE SUMMARY

This review consists of a detailed study of the legal frameworks in the Comoros, Kenya, Madagascar, Mauritius, Seychelles, Somalia and the United Republic of Tanzania as far as they pertain to fisheries laws, and are related to MCS and actions agreed upon in RFMO Agreements, and as far as they enable effective prosecution. The aim of the study is to provide recommendations for the improvement of these legal frameworks. The general legal review of the above countries is based on a desktop study, which was followed up by in-country specific investigations for Tanzania, Madagascar and Seychelles. Since there are already numerous other reports that consider this same topic, an attempt was made to avoid duplication thereof, and to focus on additional issues where possible. A distinct emphasis was placed on the use of criminal sanctions as a tool to ensure compliance with fisheries legislation.

The majority of the report comprises of an assessment of the specific areas that require updating and harmonisation and identification of legal challenges and barriers to enforcement for each country. This assessment is divided into three parts for each country, namely an assessment of the legal framework, an evaluation thereof, and finally, recommendations on how the legislation may be improved. Within the evaluation, legal challenges and barriers to the implementation or adoption of regional agreements and standards and barriers to regional cooperation and information sharing were specifically considered.

The principle fisheries legislation in the Comoros is a 2007 decret, which, while quite extensive, lacks the necessary implementing text. In Kenya the principle fisheries legislation that regulates marine and inland fisheries, as well as aquaculture is comparatively outdated and lacking in many areas, however it was found that the 2011 Bill is extensive, and is in many respects a clear improvement. In Madagascar it was found that the current legislation is currently inadequate and contains numerous outdated provisions, such as outdated and inadequate penalties, and inadequate powers of fisheries inspectors. However, as is the case of Kenya, the new 2007 Bill addresses most of these issues. It has however not as yet been finalised, nor is it clear when it will be promulgated. Suggested interventions include a review of all supporting legislation, such as decrees and orders in order to adapt to the Bill. In Mauritius the principal legislation governing fisheries was found to have numerous key shortcomings. The recommendation is for a review of the legislation, in order that a comprehensive approach can be taken to ensure that the recent international fisheries instruments to which Mauritius is party are fully implemented. In the Seychelles, there are a number of main pieces of fisheries legislation governing fisheries, and a new Fisheries Bill has been prepared. The new Fisheries Bill, which is expected to become law before the end of 2011 is in the final stages of development, and is a fine effort to modernize fisheries management. While the Fisheries Act of 1987 does not provide an adequate legal framework for MCS, the 2011 draft Bill is a huge improvement in this regard. In Somalia, it was found that the fisheries legislation is currently outdated and insufficient with regard to the creation of offences and the powers of inspectors, and is no longer an effective tool for fisheries management. There is also an inadequate legal framework for effective MCS, both for the enforcement of domestic legislation as well as the enforcement of regional requirements. The legislative framework requires urgent attention if effective MCS on local and regional level is to be achieved. In Tanzania, there are currently five main pieces of Fisheries’ legislation, because the fishery sector is not a union matter and as a result, Mainland Tanzania and Tanzania Zanzibar each have their own specific pieces of legislation that regulate this sector. The Deep Sea Fishing Authority Act of 1998, as amended in 2007, and the Deep Sea Fishing Authority Regulations of 2009 are comprehensive, and recommendations have been made for their improvement and strengthening.

The following findings and conclusions were reached on the evaluation of the legislative framework above, as well as an evaluation of 19 additional factors as specified in the TOR:• Almost all the countries need some form of assistance to enhance the legal framework, but the

degree of assistance will depend on the status of the legislation in each country.• Training and other assistance for the fisheries inspectorate to ensure better enforcement and

investigations is required in all countries• There is a need to train and support prosecutors and legal officers on the prosecution of fisheries

offences.• There is a need to establish closer co-operation between enforcement officials, including investigators,

and the prosecution authority in each country.• There is a need to increase awareness amongst presiding officers.• Regional forums for prosecutors and presiding officers can be helpful.• Case specific support with investigations and prosecutions is required.• Assistance with the revision of the IOTC resolutions is required. • Assistance with the finalisation of the NPOA-IUU is required in some countries

The following recommendations and proposals are made: • Country specific assistance to strengthen the legal framework through a combination of an international

expert and a consultant from the specific country.• Training, and the compilation of a manual and a comprehensive set of SOPs for the fisheries

inspectorate in each country. • Training, and the compilation of a guide to the prosecution of fisheries offences for the prosecuting

authority and legal officers in each of the countries. • Awareness training for presiding officers must take place in each country. • The creation of a national fisheries crime enforcement forum combining fisheries inspectors,

investigators and prosecutors should be examined.• The creation of regional forums for presiding officers and prosecutors must be examined.• Case specific support with investigations and prosecutions must be provided.• Assistance with the revision of the IOTC resolutions must be provided.• Assistance with the finalisation of the NPOA-IUU can be provided to the countries that have not yet

finalised these plans.


RÉSUMÉ EXECUTIF

Cetexamencomprenduneétudedétaillée des cadres légauxdans les Comores, le Kenya, Madagascar, Maurice, les Seychelles, la Somalie et la République-Unie de Tanzaniedans la mesureoùils se rapportent à la législationsur les pêches, et sontliées aux SCS et les actions convenuesdans les accords ORGP, et dans la mesureoùellespermettentl’efficacité des poursuites.L’objectif de cetteétudeest de fournir des recommandations pour l’amélioration de ces cadres légaux.L’examenjuridiquegénéral des pays ci-dessusestbasésuruneétude de bureau, qui a étésuivie par des enquêtesspécifiques pour la Tanzanie, Madagascar et les Seychelles.Commeilexiste déjà de nombreuxautres rapports qui tiennentcompte dumêmesujet, une tentative a étéfaiteafind’éviterla duplication de celle-ci, et de se concentrersur les questions supplémentairessi possible.Un accent particulier a étémissurl’utilisation des sanctions pénalescomme un outil pour assurer la conformité avec la législation des pêches.

La majorité du rapport comprenduneévaluation des zones spécifiques qui nécessitent la mise à jour, l’harmonisationetl’identification des défisjuridiques et les obstacles à la mise en application pour chaque pays.Cetteévaluationestdivisé en trois parties pour chaque pays notammentuneévaluation du cadre juridique, uneévaluation de celui-ci, et enfin, des recommandationssur la façondont la législationpeutêtreaméliorée.Danscetteévaluation, les défisjuridiqueset les obstacles à la mise en œuvreoul’adoption des d’accordsrégionaux et les normesainsiqueles obstacles à la coopérationrégionale et à l’échange des informationsontétéspécifiquementexaminés.

La principalelégislationsur la pêcheaux Comoresest un Décret 2007, qui, tout en étanttrèsvaste, ne dispose pas destextesd’applicationprévus.Au Kenya, lalégislationprincipalequi réglemente la pêche maritime et les pêchesintérieures, ainsiquel’aquacultureestrelativementobsolète et déficientedans de nombreuxdomaines,cependantil a étéconstatéque le projet de loi 2011 estapprofondi, et est à maintségardsunenetteamélioration.A Madagascar, il a étéconstatéque la législation en vigueurestactuellementinsuffisante et contient de nombreuses dispositions obsolètes, tellesque des sanctions obsolète et inadéquates, et les pouvoirsinsuffisants des inspecteurs de pêche.Cependant, commec’est le cas au Kenya, le nouveauprojet de loide 2007 répond à la plupart de ces questions.Iln’acependant pas encore étéfinalisé, et on ne saitquandil sera promulgué.Des interventions suggéréesincluentune revue de toutes les lois à l’appui, telsque les décrets et les ordonnances en vued’adapter le projet de loi.À Maurice, la législationprincipalerégissant la pêches’estavéréeavoirde nombreuseslacunesessentielles.La recommandationestunerévision de la législation, afinqu’uneapprochecomplètepuisseêtre prise pour s’assurerque lesrécentsinstruments internationauxsurpêcheauxquels Maurice estpartiesontpleinementmises en œuvre.Aux Seychelles, ilyaun certainnombred’élémentsprincipaux de la législation des pêches, et un nouveau projet de loisur la pêche a étépréparé.Le nouveau projet de loisur les pêches, qui devraitentrer en vigueuravant la fin de 2011 estdansune phase finale de développement, et est un bel effort pour moderniser la gestion des pêches a étéentrepris.Bien que la Loisur les pêches en 1987 ne fournisse pas un cadre juridiqueadéquat pour le SCS, le projet de loide 2011estuneénormeamélioration à cetégard.En Somalie, il a étéconstatéque la législationsur la pêcheestactuellementobsolète et insuffisante en ce qui concerne la constatationd’infractions et les pouvoirs des inspecteurs, et n’est plus un outilefficace pour la gestion des pêches.Il ya aussi un cadre juridiqueinadéquat pour un SCS efficace, tant pour l’application de la législationnationalequepour l’application des exigencesrégionales.Le cadre législatifexigeune attention urgentesiunSCS efficace au niveau local et régionaldoitêtreatteint.En Tanzanie, il y a actuellementcinqélémentsprincipaux de la législation de la pêche, comme le secteur de la pêchen’est pas une question syndicale. La Tanzaniecontinentaleetla Tanzanie Zanzibar ontchacunleurspropresélémentsspécifiques de la législation qui réglemententcesecteur.


Le Deep Sea Fishing Authority Act de 1998, tellequemodifiée en 2007, et le Deep Sea Fishing AuthorityRegulations de 2009 sontcomplètes, et des recommandationsontétéfaites pour leuramélioration et le renforcement.

• Les résultats et les conclusions suivantesontété prises surl’évaluation du cadre législatif ci-dessus, ainsiqued’uneévaluation de 19 autresfacteurstelquespécifiédans les termes de référence (TOR):

• Presque tous les pays ontbesoind’unecertaineformed’assistance pour améliorer le cadre juridique, mais le degréd’assistancedépendra de l’état de la législationdanschaque pays.

• La formation et d’autres assistances pour l’inspection de la pêcheafind’assurer une meilleure application et d’enquêtessontnécessairesdanstous les pays

• Ilestnécessaire de former et de soutenir des procureurs et des officiersjuridiquessur la poursuite des infractions sur la pêche.

• Ilestnécessaired’établirunecoopération plus étroite entre les responsables de l’application, y compris les enquêteurs, et l’autorité de poursuitedanschaque pays.

• Ilyaunenécessitéd’accroître la sensibilisation des officiersprésidents.• Des forums régionaux pour les procureurset les officiersprésidentpeuventêtre utile.• Le soutiensur descasspécifiquesd’enquêtes et depoursuitesestnécessaire.• Une assistance à la révision des résolutions de la CTOI estnécessaire.• Une assistance à la finalisation du PAN-INN estnécessairedanscertains pays

Les recommandationset les propositions suivantessontfaites:

• Une aide spécifique au pays pour renforcer le cadre juridique par unecombinaison d’un expert international etd’un consultant en provenance du pays.

• La formation, et la compilation d’un manuel et un ensemble complet de modes opératoires standard (SOP) pour l’inspection despêchedanschaque pays.

• La formation, et la compilation d’un guide pour la poursuite des infractions de pêche pour l’autorité de poursuite et les officiersjuridiquesdanschaque pays.

• La sensibilisationet la formation des officiersprésidentsdoiventavoir lieu danschaque pays.• La création d’un forum national pour la luttecontre le crime de la pêchecombinant les inspecteurs

des pêches, les enquêteurset les procureursdevraientêtreexaminés.• La création de forums régionaux pour les officiersprésidentset les procureursdoiventêtreexaminés.• Le soutien de casspécifiques avec des enquêtes et des poursuitesdoitêtrefournis.• Une assistance à la révision des résolutions de la CTOI doitêtrefournie.• Une assistance à la finalisation du PAN-INN peutêtrefournie aux pays qui n’ont pas encore

finaliséces plans.

Regulations de 2009 sontcomplètes, et des recommandationsontétéfaites pour leuramélioration et le renforcement.

• Les résultats et les conclusions suivantesontété prises surl’évaluation du cadre législatif ci-dessus, ainsiqued’uneévaluation de 19 autresfacteurstelquespécifiédans les termes de référence (TOR):

• Presque tous les pays ontbesoind’unecertaineformed’assistance pour améliorer le cadre juridique, mais le degréd’assistancedépendra de l’état de la législationdanschaque pays.

• La formation et d’autres assistances pour l’inspection de la pêcheafind’assure une meilleure application et d’enquêtessontnécessairesdanstous les pays


• Ilestnécessaire de former et de soutenir des procureurs et des officiersjuridiquessur la poursuite des infractions sur la pêche.

• Ilestnécessaired’établirunecoopération plus étroite entre les responsables de l’application, y compris les enquêteurs, et l’autorité de poursuitedanschaque pays.

• Ilyaunenécessitéd’accroître la sensibilisation des officiersprésidents.• Des forums régionaux pour les procureurset les officiersprésidentpeuventêtre utile.• Le soutiensur descasspécifiquesd’enquêtes et depoursuitesestnécessaire.• Une assistance à la révision des résolutions de la CTOI estnécessaire.• Une assistance à la finalisation du PAN-INN estnécessairedanscertains pays

Les recommandationset les propositions suivantessontfaites:• Une aide spécifique au pays pour renforcer le cadre juridique par unecombinaison d’un expert • Les recommandationset les propositions suivantessontfaites:• Une aide spécifique au pays pour renforcer le cadre juridique par unecombinaison d’un expert

international etd’un consultant en provenance du pays.• La formation, et la compilation d’un manuel et un ensemble complet de modes opératoires

standard (SOP) pour l’inspection despêchedanschaque pays.• La formation, et la compilation d’un guide pour la poursuite des infractions de pêche pour l’autorité

de poursuite et les officiersjuridiquesdanschaque pays.• La sensibilisationet la formation des officiersprésidentsdoiventavoir lieu danschaque pays.• La création d’un forum national pour la luttecontre le crime de la pêchecombinant les inspecteurs

des pêches, les enquêteurset les procureursdevraientêtreexaminés.• La création de forums régionaux pour les officiersprésidentset les procureursdoiventêtreexaminés.• Le soutien de casspécifiques avec des enquêtes et des poursuitesdoitêtrefournis.• Une assistance à la révision des résolutions de la CTOI doitêtrefournie.• Une assistance à la finalisation du PAN-INN peutêtrefournie aux pays qui n’ont pas encore

finaliséces plans.

Introduction


1. INTRODUCTION

1.1. Objective of the review

The primary objective of this review is to provide a comprehensive study of the legal frameworks pertaining to fisheries laws, as far as they are related to MCS and actions agreed upon in RFMO Agreements. Recommendations have also been made for improvement of the legal frameworks based on this study. The Terms of Reference (“TOR”) dictates that this review shouldpatently emphasise the legislative framework in so far as it enables effective prosecution of offences. The general legal review is based on a desktop study of the following countries in the ESA-IO region:

• Comoros • Kenya • Madagascar • Mauritius • Seychelles • Somalia • The United Republic of Tanzania

In addition in-country specific investigations for the United Republic of Tanzania, Madagascar and Seychelles wereundertaken.

The TOR determined that the first part of the review is comprised of anassessment of the current level of compliance in the fishing sectors of the abovementioned countries. This assessment includes compliance with both national laws as well as with regional RFMO requirements, including freshwater sectors where applicable. It should be noted a factual assessment of compliance levels was performed in a concurrent study, and the legal assessment therefore focuses mainlyon the adequacy of the legal framework of each of the countries.

The second part of the review is focused on specific areas or issues that require updating or harmonisation, and an attempt was made to identify barriers to the implementation of effective MCS, as well as barriers that inhibit effective prosecution of offences.

The above will serve as the basis for recommendations on how to address each of the areas of investigation. TheTOR requires that the recommendations must include immediate actions that can be undertaken in each country.

A further outcome of the evaluation and recommendations will be the preparation of TOR for proposed specific legal assistance to countries in the regions that require further assistance in order to obtain the desired end state, as set out below.

The terms of reference is attached as Annex 1.


1.2. Context

As is set out in the TOR, MCS is a collection of activities, which function together to support fisheries management. MCS takes place primarily within a legal and policy framework. In short, MCS strives to detect, deter and prevent IUU fishing from taking place, through monitoring the activity of the resource users and controlling and verifying the actions of resource users.

The development and implementation of MCS has advanced considerably in recent years in a number of countries in the ESA-IO region. Support from the EU, SADC and other countries have served to strengthen the capacity of MCS in several countries, both at national and at the regional level. Unfortunately, these programmes have fallen short in terms of implementing a strictly regional MCS programme. The desired “end state” of the Implementation of the Regional Fisheries Strategy (IRFS) requires a fully integrated and harmonised regional MCS system.

There are currently several projects on parallel paths to the IRFS. These include the Regional Component 6 of the SWIOFP project, which is also geared towards regionalisation of MCS activities, along with the South West Indian Ocean Fisheries Commission (SWIOFC). Similarly, the ACPFISH II project shares many of the same objectives as the IRFS, and will assist countries in the region with implementation of their national plans of action (NPOAs) and updating their framework legislation.

In light of the above an attempt was made to avoid duplication of previous studies, and to focus on additional issues where possible. A distinct emphasis was placed on the use of criminal sanctions as a tool to ensure compliance with fisheries legislation.

In summary, the aim of this paper is to identify, within the legal context of each country, which issues need to be updated and harmonised in order to make them compatible with the aims of effective MCS between the countries. The aim of this paper is furthermore to determine the barriers to the effective implementation of MCS, with specific focus on the ability to prosecute offences effectively, and lastly to determine whether the regional agreements to which such countries are a party, are being effectively implemented through the enforcement of the relevant national legislation of each country.

1.3. Background

TheTOR determines that legal challenges and barriers to effective MCS and the ability to prosecute offences should be identified.

From a legal perspective effective enforcement, both on a national and regional level, requires firstly that enforcement officials must have sufficient powers in terms of the legislation. For our purposes, enforcement officials are mainly fisheries inspectors, whose powers include, but are not limited to, powers of inspection, search, seizure and arrest. It is of utmost importance that the powers of inspection should not be linked to a requirement of suspected non-compliance, but that inspectors should have the power to conduct simple routine inspections. The powers of the fisheries inspectorate should be sufficiently comprehensive, in order to providea solid basis for affective enforcement action.

As far as the requirements for membership of RFMO are concerned, the first requirement is that the country’s law makes provision for the acceptance of RFMO agreements, which will usually be contained in the Constitution. Incorporation of such agreements into domestic legislationcan be achieved in more than

Introduction


one way, but the most common is their incorporation into domestic legislation via additional legislation or amendments to existing legislation. It must be added that in many instances the implementation of RFMO requirements dealing with enforcement will not necessarily require legislative amendments.

The adoption of regional agreements and standards, and the incorporation of relevant provisions into domestic legislation, is governed by the legal process. The failure to do so is however often more a question of poor management, as opposed to an inadequate legal framework. It was not possible within the ambit of this review to investigate all the individual resolutions or provisions, however a few general remarks follow below with reference to the IOTC resolutions dealing with MCS issues to illustrate this point:

• Several resolutions, for example par. 5(e) and (f) in Resolution 07/02, obliges states to take certain measures “consistent with their relevant laws”, and does not oblige members to adapt their legislation to accommodate, or better accommodate, the implementation of the resolution.

• Several resolutions e.g. Resolution 09/05 which prohibits the use of large-scale drift nets on the high seas in the IOTC area, may require a specific amendment to domestic legislation if the legislation does not already prohibit this (a prohibition on the use of such nets can be made a condition of registration or licensing, however in that case there will nevertheless be no additional recourse against a non-licensed vessel using such a net). Another example would be the prohibition on transhipment of tuna and tuna like species at sea as specified in section 1(1) of Resolution 11/05.

It is often not necessary to amend legislation in order to accommodate these resolutions, for example:• Par. 3 in Resolution 01/02 provides for standards in the marking of vessels and logbooks to be kept

by certain vessels, or Resolution 10/03 obliging IOTC Contracting Parties and Cooperation Non-Contracting parties(“CPCs”) to ensure that all purse seine vessels flying its flag and authorised to fish species managed by the IOTC are subject to a data recording system. Such resolutions may simply be implemented by making such conditions a standard part of the registration or licensing conditions.

• In many other instances, the domestic law already accommodates the obligations created by the resolution, and can be implemented without any amendments, provided that fisheries inspectors have sufficiently wide powers.

• In some instances the obligation has no legal component, for instance in par. 6 in Resolution 06/03, which provides that Flag states must ensure that VMS on board of its vessels are tamper resistant or Resolution 10/07 requiring CPCs which issue licenses to foreign vessels to fish tuna and swordfish in their EEZ to submit annually to the Secretariat a list of foreign vessels to which such licenses have been issued or the requirement that CPS must, at least 70 days before the Annual Meeting, submit a list of vessels presumed to have been carrying out IUU fishing activities in the IOTC area during the current and previous year, as is determined by par. 2 of Resolution 11/03.

• Some resolutions e.g. par 11 in Resolution 10/11 on the “conduct of inspections” require proper training and/or SOPs as opposed to any legislative amendment.

Notwithstanding the aforementioned, effective prosecution necessitates comprehensive and clearly formulated transgressions1 and penalties in the applicable legislation. Also, clear definitions of words contained in the legislation are vital in order for offences to be created. Definitions are usually contained in the first section of a particular piece of legislation, and these definitions play an important role in the clear formulation of both powers and offences.

1 This is part of the requirement of legality.


Prosecution is the last step in a lengthy process of criminal enforcement, and in order for criminals to be brought to book, and sentenced to penalties that have a deterrent effect on other offenders, there are a number of other requirements that must be met. Firstly, there must be a reasonable possibility that the transgression will be detected. Though this aspect depends heavily on adequate resources, well-trained and experienced inspectors and effective management, the incorporation in the legislation of aspects, such as compulsory VMS on board fishing vessels, can add to the effectiveness of detection. Sufficient powers of fisheries inspectors to inspect or search, also plays an important role. On a regional level, the sharing of information is also an important aspect.

Secondly, there must be a reasonable possibility that the transgressor will be apprehended and brought before court or that administrative action will be taken against the transgressor. This aspect is also heavily dependant on adequate resources, well-trained and experienced inspectors and effective management. Sufficient powers in the legislation, whichenable fisheries inspectors to inspect or search; and to seize and arrest also plays an important role. In certain instances, regional cooperation is required in order to apprehend transgressors.

Thirdly, there must be a reasonable possibility that the transgressor will be convicted, or that appropriate administrative action will be taken against the transgressor. This aspect depends on the availability of sufficient, admissible evidence, and a knowledgeable and experienced prosecutor to present the case. The gathering of sufficient admissible evidence again depends on a number of factors, which include adequately trained, and capable inspectors, but also adequate powers in the legislation to enable the inspectors to do a proper investigation. In addition, the use of, and consequently the evidence obtained by technologically advanced techniques such as VMS or other electronic data, is notoriously difficult to present to court, and requires legislative provisions, which accommodates the presentation and admissibility of such evidence. As far as administrative enforcement action is concerned, a defensible and effective system is required, which takes into account the principles of administrative justice.

Fourthly, the conviction must lead to appropriate, and where necessary, severe, punishment or strict administrative measures. The first requirement is that the maximum penalties must be adequately high, and where appropriate, should include imprisonment without the option of a fine2 . This further depends on a few factors, namely that sufficient evidence in aggravation be gathered by the investigating officer and presented to court, as well as a presiding officer being willing to hand down an appropriately harsh sentence.

Fifthly, supplementary orders such as forfeiture of the catch, gear and vessel used in the commission of the offence, and the forfeiture of the proceeds of the crime are required, in order to act as an additional deterrent. The legislation must firstly make provision for such forfeiture, and secondly the presiding officers must be willing to make such an order in light of the seriousness of the offence. Another advantage of forfeiture is the possibility that a forfeited vehicle or vessel might in appropriate cases be utilised as a patrol vessel.

Finally, successes should be published, in order to deter other would be perpetrators. This can be done via the various forms of media, including websites. Publication carries the additional advantage of “name and shame”, which can also play a role in deterrence.

2 It is appreciated that the provisions of UNCLOS place some limitation on the possibility of imprisonment.

Introduction


The above also applies, with the necessary adaptations, to following an administrative enforcement process. Few countries have administrative measures such as compliance notices and directives in their fisheries legislation, but the suspension or cancellation of licences in cases of non-compliance can be an effective deterrent as well. In this context, as compounding is often an option in the legislation, it must be stressed that this is seen as part of, albeit an alternative method,the criminal enforcement process.


2. METHODOLOGY

The general legal review of the seven countries is based on a desktop study and this was followed up by an in-country specific investigation for Tanzania, Madagascar and Seychelles. The desktop study is based on available reports and reviews on the subject matter, as well as legislation.The in-country specific investigation was based on personal consultations with various officials from Tanzania, Madagascar and Seychelles, as well as officials from the IOTC. The schedule of visits and persons that were consulted with are attached as Annex2.

Some of these officials also supplied additional information in the form of statistics, reports, copies of draft legislation and even a very helpful academic dissertation. In some cases gaps or uncertainties, or the need for additional information led to further contact with these and other officials, mostly by mail. We are indebted to all of the officials who assisted us in this matter.

As was pointed out above, the first part of the review comprises of an assessment of the current level of compliance with both national law as well as with regional RFMO requirements in the fishing sectors of these countries. The factual assessment of compliance levels was done in a parallel study, whereas this report is focused on whether there is an adequate legal framework in place and therefore also serves as the legal background to the factual assessment.

The second part of the report, which considers areas that should be updated or harmonised and the identification of legal challenges and barriers to effective MCS, as well as the ability to prosecute offences,is based on the nineteen specific issues as set out in the TOR. This was done in table format, and compiled mainly during the in-country investigations and additional interviews during the subsequent workshop. These country specific evaluation tables are contained in Annex 4.

In light of the fact that some of the listed issues overlap to a certain degree, and in an effort to follow a more logical approach, the issues were grouped under three main headings.The tables created for each country, as contained in Annex 4, reflect these three main headings as follows:

• Legal Framework (deals with points 3, 1, 19, 6, 2, 4, 9 and 7 from the TOR)• Legal Challenges and Barriers to the Adoption and Implementation of Regional Agreements and

Standards (deals with points 5, 10, 8, 11, 15, 18 and 2 from the TOR)• Legal Challenges and Barriers to Regional Co-operation & Information Sharing (deals with points

12,13, 14, 16 and 17 from the TOR)

Note that point 2 from the TOR was included under both the first two headings above, under the first heading it deals with internal harmonisation, and under the second heading it deals with regional harmonisation. Where necessary, and this sometimes differs from country to country, due to the difference in legal systems, subheadings referring to specific issues were used. In addition to the requirements noted in the TOR, or sometimes as a subheading or related issue, the specific issues as discussed in 1.3 above, were investigated. Each of the three general headings also contains general remarks on the subject matter at the outset, in order to prevent unnecessary duplication of material under the individual headings.

In an effort to follow a logical approach, and make the report easier to use, the first and the second part of the review are combined in a single chapter for each country. While the tables in Annex 4 refer to all the relevant points, the discussion in each of these chapters are solely focussed on the legal framework and the issues requiring attention, and are grouped under the three main headings, which include recommendations. The final chapter containsfinal conclusions and recommendations.

Performance in Relation to the Terms of Reference


3. PERFORMANCE IN RELATION TO THE TERMS OF REFERENCE

As pointed out above, all the specifications in the TOR were examined for each of the countries, as is reflected in the country tables contained in Annex 4. The in-country visits proved to be very valuable, despite the constraints such as very limited time, diverse legal systems and language barriers in the case of Madagascar. The following factors played a role in the amount of valuable information, and the ability to draw conclusions from such information:

• Very little information could be found on Somalia. The political instability is an apparent cause of the lack of comprehensive national fisheries legislation, as well as the lack of available information about such legislation.

• Very limited information was available on Comoros.• Many of the studies previously done were outdated, and therefore were not helpful.• Some studies provided incorrect or inaccurate information, which will be pointed out where

appropriate.• Where reports and legislation were only available in French, we used translation programs and

assistance from colleagues to interpret these. Whilst this was a limitation, we are satisfied that we were able to effectively use and interpret this information. Where there is a misinterpretation, we appreciate feedback on it.

Other aspects with regard to the performance in relation to the TOR:• A desktop study of all the countries was completed prior to the in-country visits, and submitted;• Preparation and briefing by Skype was replaced with two personal meetings, one in Cape Town on

7 July 2011 and one in Mauritius on 11 July 2011, both prior to the in-country visits;• Seychelles, Tanzania and Madagascar were visited in the period from 12- 27 July 2011. The visit to

the United Republic of Tanzania included Mainland Tanzania as well as the fishery authority and the Deep Sea Fishing Authority in Zanzibar.

• All the visits included a meeting with the relevant Fisheries Authority• We were very fortunate in having had the opportunity to meet the Acting Attorney-General of

Seychelles, and the national Director of Public Prosecutions in Mainland Tanzania. In Madagascar we met with the legal council who is appointed to act on behalf of the fisheries authority in enforcement matters.

• A debriefing was held in Mauritius on 28 July 2011. • A first draft was submitted after this initial stage.• A regional workshop was held in Mauritius during 27-30 September 2011 and this included reporting

back on initial findings, as well as discussions around the various issues.• The workshop also provided the opportunity for individual consultations with each of the countries,

which proved to be extremely valuable to obtain information on outstanding issues and to discuss the findings, needs and recommendations.

• Assistance was provided with the drafting of TORs to address the legal challenges and barriers identified during the study (also see Annex 5 in this regard).

The list of people met and institutions visited is attached as Annex B, and additional persons consulted with via e-mail or other methods of communication are also listed, as well as the list of persons who attended the regional workshop where individual consultations with each of the countries’ representatives took place.


the review are combined in a single chapter for each country. While the tables in Annex 4 refer to all the relevant points, the discussion in each of these chapters are solely focussed on the legal framework and the

Assessment, Identification of Legal Challenges and Barriers and Recommendation


4. ASSESSMENT, IDENTIFICATION OF LEGAL CHALLENGES AND BARRIERS AND

RECOMMENDATIONS

4.1. Comoros

4.1.1. Legal Framework and Assessment

The principle fisheries legislation in the Comoros is Decret N°07-159/PRPortant promulgation de la loi N°07-011/AU du aout 2007, portant Code de Pêches et de l’Aquaculture de l’Union des Comoros, referred to as the 2007 Act anddiscussed further below. Also of relevance is the Arrête No 0731, Portantcréation d’un Centre National de Côntroleet du Survellance des Pêsches, which creates the Centre National de Côntrole et du Survellance des Pêsches (CNCSP). It inter alia sets out the mission of the CNCSP in article 5, responsibilities of the CNCSP in article 7, the creation, composition and functions of the steering committee in article 8 to 10 and the sources of financing for the CNCSP in article 14.

Comoros is a member of the Indian Ocean Commission, (IOC), the Indian Ocean Tuna Commission (IOTC)3, the Southwest Indian Ocean Fisheries Commission (SWIOFC)4 , and it has also signed the South Indian Ocean Fishing Agreement (SIOFA)5 . Comoros is also a member of the IOTC6.

The Union of the Comoros consists of four islands, namely Grande Comore (Ngazidja), Anjouan (Nzwani), Moheli (Mwali) and Mayotte.Anjouan has economic and legislative independence within the Union of the Comoros and is a self-governing island within the new Union of the Comoros. Anjouan does not seem to have any fisheries laws, and the State of Anjouan Port Authority Act is silent on fisheries. The islands have a large amount of autonomy within the Union. The Comorian legal system is based on Islamic law, an inherited French (Napoleonic) legal code, and customary law. Village elders, kadis or civilian courts settle most disputes. The judiciary is independent of the legislative and the executive. The Supreme Court also acts as a Constitutional Council and High Court of Justice.

It was reported that fisheries governance in the Comoros is informally shared among state fisheries departments, national and island fishing syndicates, and village fishing associations. Although the overall development and management of fisheries is shared among the three levels of authority, the actual implementation of management strategies is largely undertaken at the local level. The national government maintains no formal regulations on fishing and due to limited staff, resources, expertise, and funding, they have little capacity for effective management. As a result, local fishing associations have taken on a pivotal role in managing fisheries in their own communities. They function much like cooperatives and collectively design, monitor, and enforce local regulations7.

3 http://acpfish2-eu.org/index.php?page=eastern-africa-2&hl=en4 http://acpfish2-eu.org/index.php?page=eastern-africa-2&hl=en5 http://www.fao.org/Legal/treaties/035s-e.htm6Report of the IOTC Performance Review Panel, January 2009.Indian Ocean Tuna Commission.7http://www.seafdec.or.th/wsfc2010/CZAP-WSFC%20Conference%20Proceedings/Concurrent%20session%203-4/Melissa_Hauzer_Full_Paper_CZAP_WSFC_2010.pdf EFFECTIVENESS OF LOCAL GOVERNANCE OF ARTISANAL FISHERIES MANAGEMENT, NGAZIDJA ISLAND, COMOROS


Decisions are based on local knowledge and experience, and management strategies are adaptive and based on low-cost practical solutions. Nevertheless, the multi-level fisheries governance structure provides a strong foundation upon which to build effective management strategies.

Talla8 and others in a 2004 report provided a summary of legislation applicable to the fisheries sector, which includes legislation from the colonial period as far back as 1852. More recent texts identified by the same authors includeLaw No. 82-005 (Loi N°82-015/ Relative à l’activité des Navires de pêcheétrangers) containing fairly comprehensive provisions9. This legislation has however been replaced by a 2007 Act which is discussed below.

Customary law still plays a huge role in the artisanal fishing sector, but these rules vary between islands, regions or villages. Village committees have also developed rules on fishing. It is reported that customary rules are respected above the written rules in the Comoros, and that the fishermen themselves are responsible for enforcing these rules by preventing and punishing transgressors10.

Comoros does not as yet have an NPOA-IUU, but have indicated that they would take steps in the near future to finalise their national plans of action in order to implement the International and National Plans of Action to Prevent, Deter, and Eliminate Illegal, Unreported and Unregulated Fishing11.

The National Centre for Control and Surveillance of Fisheries of the Union of Comoros has a VMS system that has been operational since December 17, 2009. The VMS allows the authorities to monitor the activity of a sample of 15 small-scale fishing vessels of the Comoros, and to follow the activities of industrial fishing vessels licensed, while fishing in the waters of the Comoros12. It was also reported already in 2005, that each foreign fishing vessel will be required to have a Comorian observer on board13.

Decret N°07-159/PR Portant promulgation de la loi N°07-011/AU du aout 2007, portant Code de Pêches et de l’Aquaculture de l’Union des Comoros, governs fisheries and aquaculture, and is divided into seven parts, which are referred to as “Titles”. These parts are then further divided into chapters and sections, which further comprise of articles.

Part 1 covers general provisions and is divided into two chapters. Chapter 1 deals with general principles and chapter 2 contains definitions in two sections: section 1 deals with fishing and section 2 deals with aquaculture.

Part 2 covers sustainable management of fisheries resources, and is divided into 3 chapters. Chapter 1 deals with the development of the fisheries and aquaculture sectors, while chapter 2 deals with the management of fisheries and aquaculture.

8 FAO Final Report and Compendium of project documents TCP/COI/2902 Overhaul of the legal definition an operational strategy: Fisheries Management. UNION OF COMOROS, by Patrice Talla, Legal LEGN, Cassandra De Young, Planning Analyst Fisheries, FIPP, John Gallen, Fisheries Technologist Consultant, Rome, 2004.9 A summary of this was done and is available should it be required. The remark by the authors that “[i]n the EEZ, under Law No. 82-005, only the scientific or technical research shall be subject to licensing by the state of the Comoros”, is however, it is submitted, incorrect. This is discussed in the summary.10 FAO Final Report and Compendium of project documents TCP/COI/2902 Overhaul of the legal definition an operational strategy: Fisheries Management. UNION OF COMOROS, by Patrice Talla, Legal LEGN, Cassandra De Young, Planning Analyst Fisheries, FIPP, John Gallen, Fisheries Technologist Consultant , Rome 2004.11 http://bycatch.nicholas.duke.edu/Countries/Comoros/ComorosCP12 MCS Regional Plan for the South West Indian Ocean website: http://www.prsp-coi.org/13 http://bycatch.nicholas.duke.edu/Countries/Comoros/ComorosCP

Comoros


Chapter 2 is further divided into 3 sections; Article 15 in chapter 3 provides that the Minister can, through or by way of an order regulate certain measures, which are set out in Article 15(a) – (v). Chapter 3 is divided into 9 sections, and governs the exploitation of fisheries resources, namely various types of fishing, including commercial fishing, fishing by foreign vessels, fishing for sport, and traditional fishing.

Part 3 governs the protection of aquatic species and ecosystems, and is divided into 4 chapters. Chapter 1 governs the control of activities that may affect fishing and aquaculture. Chapter 2 creates “conservation environments”, while chapter 3 governs marine protected areas. Chapter 4 deals with prohibited activities and sets out prohibited activities such as prohibited methods of fishing involving toxic substances, and explosives in Articles 77. Article 78 prohibits certain activities without permission from the Minister.

Part 4 deals with economic and financial provisions. It is interesting to note that in Article 80 it is provided that monies gained from rights, loyalties and taxes shall be repaid to the treasury, and in an account designed to support fishing in terms of regulations (also see article 14 of Arrête No 0731).

Part 5 is entitled policing of fishing and aquaculture. Chapter 1 is entitled monitoring of fisheries and aquaculture, and chapter 2 is entitled research and recording of offences. Section 1 deals with surveillance officers, i.e. monitoring officials. According to Article 85, surveillance officials include the following: officers of the Army (National Development); captains of the autonomous islands; internal security officials in the autonomous islands; sworn in customs officials; and sworn in officers in the “Environmental Administration”. Section 2, sets out the powers of these surveillance officials in Article 88, and these powers are fairly extensive. Article 89 details how foreign vessels engaging in prohibited activities should be handled. Article 90 provides certain measures, which can be taken without a warrant in certain circumstances. Article 91 provides for the methods that should be followed in order to bring a ship to a stop, and the circumstances under which this can be done. Section 3 governs the processes to be followed when an offence has occurred, and section 4 sets out what happens to seized material and gear. Section 5 governs evidence, and provides importantly in Article 98, that any information obtained or transmitted by a device for locating ships or fishing boats is prima facie admissible (or authentic) until proven otherwise, and the article further provides that surveillance officers are competent to read and analyse the information from a tracking device located on ships or fishing boats, and can by way of a certificate, set out certain facts therein, which are set out in Article 98(a)-(d). Chapter 3 provides for compounding in detail. Chapter 4 is entitled offences and penalties, and divides offences into categories. The first category, in Article 112 is entitled very serious contraventions of fishing legislation, and is comprised of 4 contraventions, the first of which is fishing without a licence or authorisation. Each category carries a separate penalty. On a second or subsequent conviction in terms of Article 112, namely very serious offences, the court may forfeit the vessel used in the commission of the offence. Article 115 is a kind of “catch-all” provision, which provides that any violation of this Act not expressly referred to in this Act or regulations is punishable by a fine, however it is not expressly clear that these violations constitute offences.

Part 6 contains final provisions, and covers issues such as repeal provisions.

For additional remarks and more information on these aspects, please refer to the country table in Annex 4.


4.1.2. Evaluation

Legal Framework

While it is clear from the above discussion that the 2007 Act provides a strong framework for effective MCS, the lack of implementing text is a huge concern. This aspect should be addressed as a matter of urgency. It will be expedient to do a more detailed evaluation of the 2007 Act during this process, to ensure that all aspects are fully covered.

Legal Challenges and Barriers to the Adoption or Implementation Regional Agreements and Standards

The fundamental law of the Union of Comoros (Constitution of the Union of the Comoros of 23 December 2001) provides for ratification of treaties in Article 10. Comoros is a member of various regional bodies, as was pointed out above. No additional legal barriers to the adoption and implementation of regional agreements and standards were reported or detected, save for the absence of implementing text. No provisions dealing with this issue were however found in the legislation.

See the general remarks on this issue in Part 5 below.

Legal Challenges and Barriers to Regional Cooperation and Information Sharing

There are no comprehensive provisions on this in the 2007 Act. The establishment of compatibledata collection or reporting systems and the sharing of data and information regionally do not necessarily require any legislative prescriptions. In view of the problems experienced in practice, it might however be expedient to incorporate some of the regional obligations in this regard into domestic legislation. This can possibly be further explored in the drafting of implementing text for the 2007 Act, or an amendment of the 2007 Act.

Also see the general remarks on this issue in Part 5 below.

4.1.3. Recommendations

The following recommendations are based on the desktop study, the evaluation of the legislation above, the in-country visits and consultations and the consultations conducted during the workshop, as contained in this text and the country table in Annex 4.

Immediate action:Though it might be more appropriate marking this as urgent, and not immediate, assistance with the drafting of the implementing text for the 2007 Act should be provided as soon as possible.

Proposed further legal assistance: • Assistance with the drafting of a NPOA-IUU, and ensuring that the NPOA, the 2007 Act and the

implementing text are harmonised;• Training of fishery inspectors;• The drafting of a comprehensive set of SOPs and/or a manual for fisheries inspectors;• Training of legal officers/prosecutors (but excluding the lawyers in private practice who are being

appointed to prosecute in certain instances);• The drafting of a manual on the prosecution of fisheries offences for prosecutors;

Kenya


• Awareness programs for presiding officers; • The compilation of a bench book for presiding officers; • Setting up of a national network for the enforcement of fisheries legislation; • Joining a regional network of prosecutors; • Joining a regional network of presiding officers.

Please see Part 5 for more detail on the contents and scope of the above proposals.

4.2. Kenya


The principle fisheries legislation in Kenya is the Fisheries Act, CAP 37814 , Laws of Kenya of 1989, which regulates marine and inland fisheries, as well as aquaculture. There are various other pieces of subsidiary legislation, including the 2009 Fisheries (Foreign Fishing Craft) Regulations. The Ministry of Fisheries Development was created in April 2008 and comprises of the Department of Fisheries and the Kenya Marine and Fisheries Research Institute, a semi-autonomous government agency. The Ministry of Fisheries Development is charged with the management, development and utilization of fisheries resources. The Department of Fisheries, established under the 1989 Fisheries Act, is mandated to provide for the exploration, exploitation, utilization, management, development and conservation of fisheries resources. The Department has four directorates: Marine and Coastal Fisheries, Inland and Riverine Fisheries, Aquaculture and Fish Quality Assurance and Marketing15.

A new draft Fisheries Management and Development Bill 2011 is currently being drafted to replace the 1989 Fisheries Act. It will consolidate elements of the policy and strategy and provide a clear foundation for the powers and responsibilities of the Ministry as well as the underlying institutional arrangements16.

Kenya is a member of the Indian Ocean Tuna Commission (IOTC)17 , the Southwest Indian Ocean Fisheries Commission (SWIOFC)18, the South West Indian Ocean Fisheries Project (SWIOFP) and the Lake Victoria Fisheries Organisation, (LVFO)19. The objectives of the LVFO are namely to foster cooperation among the contracting parties, harmonize national measures for the sustainable utilization of the living resources of Lake Victoria and to develop and adopt conservation and management measures. Among other things, the LVFO aims to promote the proper management and optimum utilization of the fisheries and other resources of the Lake and enhance capacity building of existing institutions and develop additional institutions dedicated to, or likely to contribute to the purposes of the Convention in cooperation with existing institutions established in or by the Contracting Parties and with such international, regional or non-governmental organizations. Member states of the LVFO are bound by agreements reached by the LVFO Council of Ministers and a series of policy documents have been developed in recent years: Regional Plan of Action on Illegal, Unregulated and Unreported (RPOA-IUU) fishing (2004), the Fisheries Management Plan (2001) and Fisheries Management Plan 2 for Lake Victoria 2009 – 2014 (2008);

14 In the “Legal and Capacity Assessment” referred to in the footnote below, it is wrongly indicated as CAP 250. See paragraph 3.1.3.15 “Legal and Capacity Assessment of Mauritius, Mozambique, Seychelles, Tanzania and Kenya of readiness to implement the IOTC Port State Measures Resolution 10/11, June 2011”, Ref: CU/PE1/UG/10/00816 “Legal and Capacity Assessment of Mauritius, Mozambique, Seychelles, Tanzania and Kenya of readiness to implement the IOTC Port State Measures Resolution 10/11, June 2011”, Ref: CU/PE1/UG/10/00817http://acpfish2-eu.org/index.php?page=eastern-africa-2&hl=en18 http://acpfish2-eu.org/index.php?page=eastern-africa-2&hl=en19 http://acpfish2-eu.org/index.php?page=eastern-africa-2&hl=en


the Regional Plan of Action on Management of Fishing Capacity (RPOA-Fishing Capacity) covering Lake Victoria and, the Nile Perch Fishery Management Plan for Lake Victoria July 2009 – June 2014 (2009). The Technical Committees of the LVFO have been strengthened in recent years through the participation of representatives of the fishers themselves (through the Regional Beach Management Unit network chair) and industry through the East Africa Industrial Fishing and Fish Processing Association (EAIFFPA)20.

Kenya is also a party to the 1982 UN Convention and the 1995 UN Fish Stocks Agreement and has signed the FAO Port State Measures Agreement21 .

Kenya does not have a National Plan of Action, (NPOA), however a National Oceans and Fisheries Policy and Strategic Plan for the Ministry of Fisheries Development was adopted in 2008. The Policy addresses, inter alia, MCS, regional and international agreements and cooperation, an institutional framework and a legislative framework22 . One of the aims of this policy is to create a harmonized legal framework to guide management, coordination and regulation of the oceans and fisheries sector. The Strategic Plan complements the Policy and its strategies include institutional, policy and legal reforms.

The principle legislation that governs Kenyan fisheries is the Fisheries Act of 1989, which was revised in 1991. Part I of the Act contains preliminary provisions, whilst part II covers administration, and part III covers registration of fishing vessels. Part IV provides for licensing provisions, which includes provisions for foreign fishing vessels as follows: • Section 8 covers general licensing provisions; • Section 9 covers local fishing vessel licenses; • Section 10 deals with the validity of local fishing vessel licenses; • Section 11 deals with fishing and entry into Kenyan fishing waters by foreign fishing vessels; • Section 12 provides for the issuing of foreign fishing licenses; • Section 13 deals with the validity of foreign fishing licenses; • Section 14 deals with other licenses.

Part V provides for offences and penalties, which are set out below: • Section 15 deals with prohibited methods of fishing; • Section 16 deals with receiving fish in respect of which an offence has been committed; • Section 17 deals with obstruction of officers; • Section 18 deals with powers of officers; • Section 19 deals with forfeiture; • Section 20 deals with compounding of offences.

Part VI concludes the act with general provisions, which includes a section that deals with the conduct of prosecutions.

Fisheries Management and Development Bill of 2011is comprised of 9 Parts. Part I deals with preliminary provisions, and Part II deals with Kenya Fisheries Service. Part III covers financial provisions,

20 http://acpfish2-eu.org/index.php?page=eastern-africa-2&hl=en21 “Legal and Capacity Assessment of Mauritius, Mozambique, Seychelles, Tanzania and Kenya of readiness to implement the IOTC Port State Measures Resolution 10/11, June 2011”, Ref: CU/PE1/UG/10/008

22 Legal and Capacity Assessment of Mauritius, Mozambique, Seychelles, Tanzania and Kenya of readiness to implement the IOTC Port State Measures Resolution 10/11, June 2011”, Ref: CU/PE1/UG/10/008

Kenya


and Part II deals with Kenya Fisheries Service. Part III covers financial provisions, and Part IV deals with fisheries development, management and conservation. Part IV contains 13 sections that deal specifically with MCS. The following sections should be noted:

• Section 34(1) provides that the Minister may by notice in the Gazette, designate any device or machine, or class of device or machine as an observation device for use in the monitoring and surveillance of fishing vessels. Section 34(2) provides that monitoring and surveillance of vessels shall be carried out in such a manner as the Minister may prescribe in regulations. Note that making regulations relating to VMS is not mandatory, and is left to the discretion of the Minister.

• Section 35(1)(a) provides that the operator of each foreign fishing vessel in respect of which a fishing licence is issued under this Act and such other fishing vessels or persons as the Director may require shall comply with monitoring, control and surveillance requirements for the operation of a vessel monitoring system in respect of the vessel and ensure that any information or data which may be required to be transmitted by an automatic location communicator is transmitted continuously, accurately and effectively to the designated receiver.

Part V deals with registration and licensing, in sections 47-63, as set out below:

• Section 47 deals with registration of vessels. Section 47(1) provides that no fishing vessel shall be operated in Kenya fishery waters, and no local fishing vessel shall be used in or outside the Kenyan fishery waters for fishing or related activity, unless the Board has registered such vessel or ship and issued with the appropriate license.

• Section 49(1) provides that no person other than persons fishing for their own consumption shall catch or assist in catching fish in Kenyan fishery waters otherwise than under and according to the terms and conditions of a valid licence issued to him under the act, and section 49(6) provides that non-compliance with subsection 49(1) is an offence, which is punishable with a fine not exceeding two hundred thousand shillings or imprisonment for a terms not exceeding one year.

• Section 52 allows the Director General to cancel or revoke licenses, and 52(1)(b) lists as one of the reasons for cancellation or revocation, breach of any applicable access agreement or arrangement entered into under section 51.

• Section 55 provides for licensing of locally based foreign fishing vessels under a separate and distinct license;

• Section 56, 57 and 58 together regulate foreign fishing in Kenyan waters. Section 56 provides that the Minister may enter into agreements with other states, intergovernmental organisations or associations representing foreign fishing vessel operators allocating fishing rights to vessels of those states, organisations or associations.

• Section 57(1) provides that no foreign fishing vessel shall be used for fishing or related activities in Kenyan waters unless a foreign fishing vessel license has been issued to such vessel, and non-compliance with this subsection is an offence in terms of subsection 57(6). Section 57(4) provides that no foreign fishing vessel license shall be issued to any foreign fishing vessel unless there is in force an arrangement the Government of the flag state of the vessel or with an association of which the owner or charterer is a member.

• Section 59 provides that no license shall be issued under this Act for a foreign fishing vessel to fish within Kenya’s territorial waters.

• Section 60-63 provides for other licenses for other activities such as sport fishing. • Although there are numerous provisions dealing with licenses in this part, there is much repetition,

and nothing substantive is actually set out in terms of conditions for licenses, apart from some general conditions.


Part VI deals with enforcement in sections 64 – 77, as set out below: • Section 64 deals with the powers of authorised officials; and provides that for the purpose of enforcing

the act, and any regulations made in terms of the act, an authorised officer may without a warrant, perform the actions specified in subsection 64(1)(a)-(j). The powers of these officers are wide and comprehensive.

• Section 65 deals with seizure of vessels by authorised officers; • Section 66 deals with seizure of vehicles or aircrafts by authorised officers;• Section 67 deals with immobilizing of seized vessels, vehicles or aircrafts;• Section 68 deals with the powers of authorised officers to direct persons under their command;• Section 69 deals with the duty to comply with instructions;• Section 70(1) deals with the powers of officers beyond the Kenyan fishery waters; and provides that

following the commission of an offence, they may be pursued, and authorised officers are empowered to exercise their full range of powers, to the “extent recognised by international law”. This provision is essentially the power of “hot pursuit”, and therefore incorporates the provision contained in article 111 of UNCLOS.

• Section 71 deals with the identification of authorised officers;• Section 72 deals with the compounding of offences; and provides that the Minister may by notice in

the Gazette issue a schedule of offences under this act or regulations made under the act, which may be settled by the Director-General through compounding according to 72(2). Section 72(2) then empowers the Director General to compound offences in the notice by accepting a sum of money not exceeding one hundred thousand shillings.

• Section 73 deals with offences committed against authorised officers, and comprises of a lengthy list of offences;

• Section 74 deals with impersonating authorised officers; • Section 75 deals with the destruction of evidence and avoidance of seizure; • Section 76 deals with receiving fish in respect of which an offence has been committed;• Section 77 deals with the illegal importing of fish.

Part VII covers prosecution, handling of seized goods and evidence. Part VIII covers the fish levy, and Part IX deals with aquaculture development.

Part X covers fish safety and quality, and Part XI covers community participation. Part XII covers miscellaneous provisions, and Part XIII deals with repeals and transitional provisions.

In a June 201123 report it was stated that there are no provisions in the existing 1989 Fisheries Act that would allow the implementation of the IOTC Port State Measures Resolution. As recognized in the Policy, the existing Fisheries Act is extremely weak and outdated. MCS arrangements are weak or non-existent. If a vessel on the IOTC IUU Vessel List were in port, there would be nothing that could be done under current laws and procedures. There is no or minimal legal basis for compliance tools that are complementary to port State measures, such as regulation of VMS, the appointment of authorized officers, the appointment of observers and the duties and rights of each as well as the range of requirements for persons to support them, and to assist them to do their job, and to provide information that is true, complete and correct. Requirements relating to information systems and decision-making are also not provided.

23 Legal and Capacity Assessment of Mauritius, Mozambique, Seychelles, Tanzania and Kenya of readiness to implement the IOTC Port State

Measures Resolution 10/11, June 2011”, Ref: CU/PE1/UG/10/008

Kenya


The report further remarks that “authorized officers” are currently described in the “Interpretation” part of the law rather than the part dealing with enforcement. There is no substantive empowerment in the Act for the Minister or others to appoint personnel, or for the standards of accountability of such personnel. Officers have very limited powers under section 18 of the Fisheries Act, and there are no requirements for the master, etc. of the vessel to obey and assist MCS personnel in carrying out their duties.

The Fisheries (Foreign Fishing Craft) Regulations 2009 provide for observers in section 44, but the report describes this as a very weak provision. It simply empowers the Director to “assign an observer” and does not provide for the appointment in writing or standards for observers. An observer typically has broad “scientific, compliance and monitoring” functions, but the Regulations describe the functions more loosely, as collecting scientific data and carrying out such other management and enforcement activities as the Director may authorize. It does not provide for duties assigned to observers by the operators, masters and crew of a vessel. Observers should be empowered to provide key information to port inspectors, including information that relates to compliance matters, but the Regulations do not permit this.

The report indicated that government demonstrated its political will to move forward at a solid pace by introducing a new Fisheries Bill in a relatively short space of time after the establishment of the Ministry. The draft was reviewed, and it was found that it did not contain provisions to implement the PSMR, either directly or indirectly through providing robust requirements for complementary compliance tools and enforcement powers. In addition, it was found that although the Bill is a positive start, it is still outdated, and updating, coherence, as well as further development and review by an expert in international fisheries law is required. The Bill should ideally be forward looking, robust, and comprehensive, in order to bring positive long-term benefits to the sector and the nation. Initiatives were taken to seek technical assistance in this regard 24.

For additional remarks and more information on these aspects, please refer to the country table in Annex 4. 4.2.2. Evaluation

Legal Framework

While it is clear from the above that the 1989 Act is outdated and lacking in many respects, it is respectfully submitted that in spite of valid criticism as reported above, the 2011 Bill is a huge improvement, but requires strengthening of the MCS provisions and further refinement.

Legal Challenges and Barriers to the Implementation or Adoption of Regional Agreements and Standards

Chapter 2(5) of the Constitution of Kenya, 2010 provides that the general rules of international law shall form part of the law of Kenya, and Chapter 2(6) further provides that any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution.

The 2011 Bill is however silent on the matter of the implementation of regional agreements, and according to the report discussed above, does not contain adequate provisions to implement the PSMR.

24 Also see the general remarks on this issue in Part 5 below.Legal and Capacity Assessment of Mauritius, Mozambique, Seychelles, Tanzania and Kenya of readiness to implement the IOTC Port State Measures Resolution 10/11, June 2011”, Ref: CU/PE1/UG/10/008




No legal barriers were detected or reported, but it might be helpful to incorporate more extensive obligations in this regard into the 2011 Bill.




Immediate action:Assistance with the finalisation and strengthening of the 2011 Bill should be provided as soon as possible.

Proposed further legal assistance: • Assistance with the finalisation of the draft NPOA-IUUand ensuring that the NPOA and the 2011 Bill

is harmonised;• Training of fishery inspectors;• The drafting of a comprehensive set of SOPs and/or a manual for fisheries inspectors;• Training of legal officers/prosecutors;• The drafting of a manual on the prosecution of fisheries offences for prosecutors;• Awareness programs for presiding officers;• The compilation of a bench book for presiding officers; • Setting up of a national network for the enforcement of fisheries legislation;• Joining a regional network of prosecutors;• Joining a regional network of presiding officers.


4.3. Madagascar


The principle fisheries legislation in Madagascar is Ordonnance No 93-022, Portantreglementation de la pecheet de l’aquaculture, which regulates marine and inland fisheries, as well as aquaculture. In addition, the Decret No 94-112, Portant organisation generale des activites de peche maritime and the Decret No 2007-957, Portant definition des conditions d’eercice de la peche des crevettescotieres also forms part of the legal framework. There are variousdecrees(hereafter referred to as “decrees”) and arrete(hereafter referred to as “orders”) that support the implementing text. We were provided with a list of these decrees and orders, which amounts to a total of exactly 100 of these instruments, which have been promulgated between 1921- 2011. The 2010 ArreteMinisteriel No 34.031/2010 creates and regulates the nomination of members of the national fisheries advisory consultative committee (ConselConsultatif National pour la Gestion des Pecheries). There is however a 2007 Bill which is intended to replace the 1993 framework legislation.The marine fisheries sector in Madagascar is divided into traditional, artisanal and industrial fishing25 . MCS is largely focussed on the industrial sector, and minimal enforcement effort is made in the traditional fishing sector.

Madagascar


The Ministry of Agriculture, Livestock and Fisheries manages the fishing sector through the intermediary of the Directorate of Fisheries and Fishery Resources(DirectionGenerale de la Pecheet des RessourcesHalieutiquess). On a regional level, the Regional Services for Fisheries and Fishery Resources is responsible for the regulation of the fisheries sector. Most importantly, the Centre de Surveillance des Peches (hereafter referred to as the “CSP”)takes primary responsibility for MCS functions, and reports directly to the Minister.

The legislation relies primarily on a criminal enforcement system, but also provides for an administrative penalty scheme to enforce the regulations governing the shrimp industry26. In practice, very few fishery cases are prosecuted, as most transgressions are currently being dealt with through the compounding process.The Malagasy State is an active member of the Indian Ocean Tuna Commission (IOTC), and a member of the Southwest Indian Ocean Fisheries Commission (SWIOFC), the Western Indian Ocean Tuna Organization (WIOTO) and the Indian Ocean Commission (COI)27 .

Whilst the legislation is in dire need of an update, a process that has already culminated in a 2007 Bill, the overall impression we received, based on the desktop study, the interviews undertaken during the in-country visit, and the parallel reports on MCS and governance, was that the main barriers to effective MCS can befound in the area of the implementation of MCS or poor governance, and not in the shortcomings in the legal framework. This conclusion must however not be interpreted to mean that the updating of the fisheries legislation should not be a priority, as any increase in the effectiveness of MCS will soon lead to inadequacies in the legislation being used to escape liability. The increase of the maximum penalties in the legislation also requires urgent attention. These issues are dealt with below in the evaluation.

As stated above, Ordinance No 93-022 is the principle piece of fisheries legislation in Madagascar. The Ordinance is divided into 7 titles, or parts. The study of this Ordinance is based on a direct translation from French to English.

Part I envisages the establishment of the general framework and provides definitions. The definitions section appears to be scant, and missing vital definitions such as “fish”, and “vessel”. “Fishing” is defined as all activities designed to capture, by any means and for all purposeswhatsoever, biological resources living in water. This definition is problematic,as “biological resources” are not further defined, and “water” is not defined. Article 4 provides that fishing vessels are classified as national fishing vessels, foreign fishing vessels, foreign fishing vessels based in Madagascar and foreign fishing vessels chartered by Malagasy persons or entities. Furthermore, it is provided that the plan of each class of ship is fixed by decree.

Part II deals with the management of fisheries by establishing an “Interministerial Commission” for fisheries and aquaculture at national level whose functions;composition and operating procedures will be set out in regulations.

25 FAO Fisheries Technical Paper 488, Review of the state of the world marine capture fisheries management: Indian Ocean, Cassandra de Young (ed), Rome, 2006. Country Review: Madagascar, Mathieu Soumy, August 2004; Draft NPOA; Interviews.26 www.stopillegalfishing.com27 FAO Fisheries Technical Paper 488, Review of the state of the world marine capture fisheries management: Indian Ocean, Cassandra de Young (ed),

Rome, 2006. Country Review: Madagascar, Mathieu Soumy, August 2004.


Part III governs the conditions of fishing. Article 7 provides that other instruments such as fisheries management plans and regulations should set guidelines to determine:

• The areas in which certain types of fishing will be permitted; • The times of opening and closing of various fisheries, • Prohibited gear and fishing methods;• The sizes of capture and protection of spawning; • Bait; • Prohibited or limited capture of certain species;• Special measures for the establishment of aquaculture establishment; and• Any other provision or measure

Article 8 envisages that on the proposal of the Ministry of Fisheries and Aquaculture, in cooperation with other relevant ministers, parks and nature reserves can be designated, where fishing activities will be banned or severely restricted.

Article 10 provides that without the express permission from the Ministry of Fisheries and Aquaculture, the following methods of fishing are prohibited:

• The use of toxic substances to stun, weaken or kill fish;• The use of explosives; • The use of electrical processes in the fish • The use of any device “to an immersion longer than that permitted by the single natural breath”. This

presumably refers to oxygen tanks used by divers.

Article 10, as discussed below is extremely vague, to the extent that it may even be unenforceable because the terms used in the article, such as “ toxic substances”, “explosives”, “electrical processes” and “device” are not defined in the Ordinance. Without a clear definition of these terms the provision cannot be properly enforced and is therefore rendered useless.

Article 11 provides that in the “Intertidal zone” and mangroves, regulations should set out special measures for protection of marine plants and animals.Part IV directly translated means, “the categorizing of the legal status, or the legal regime of the fishing and aquaculture”, which basically sets out the rules governing fishing. This part is comprised of article 12-15.

• Article 12 provides that fishing in the waters referred to in article I of the Ordinance is subject to prior approval of the Minister for Fisheries and Aquaculture according to conditions prescribed by this Ordinance, and the regulations made in terms of this Ordinance.

• Article13 (1) provides that in waters under national jurisdiction, fishing is primarily limited to ships flying the Malagasy flag. For artisanal and industrial fishing, a licence is required in terms of article 12.

• Article 13(2) provides that artisanal and industrial fishing may be permitted for vessels from other states which have concluded agreements with the Malagasy government or that received a license issued by the Malagasy State.

• Article 13(3) provides that the licensing regime and the conditions of operations of the vessels involved are fixed by “regulatory”, which presumably means regulations.

• Article 14 provides that in private waters, fishing rights belong to the owner. It is unclear what “private waters” refers to. The practice of fishing in public waters can be subject to the rules of the concession according to conditions set by decree.

• Article 15 governs aquaculture.

Part V contains provisions on the safety control and product quality fishing and aquaculture.

Madagascar


Part VI lists the control agents, and defines their powers. Article 18 provides that violations of this Ordinance and regulations made in terms thereof are investigated and recorded by the following “control agents”:

• The staff of the Administration of fishing and aquaculture;• Authorised police officials;• The commanding officers of the buildings and boats of the Malagasy government; • Agents of the merchant navy and customs; • The agents recognized as a result of agreements between the Malagasy state and third party states.

These agents requirespecific authorisation, and must be sworn in.

Article 19(1) provides that the authorised persons referred to in Article 18 may do the following when non-compliance is detected:

• Order any fishing vessel found in the waters defined in article I to stop and perform all operations “useful to facilitate the visit”;

• Search the vessel and control its nets and other fishing gear and catches that are on board;• Check and make copies of all the administrative and technical documents of the vessel;• Enter and search any premises, buildings and places a professional;• Take samples of the catch on board vessels or vehicles and premises, buildings and places where they

conduct a search.

It is submitted that the powers in article 19(1) are somewhat limited because no provision is made for the power to arrest. Furthermore, officials are only empowered to take the action set out in section 19(1) when non-compliance is detected, as opposed to where there is a reasonable suspicion of non-compliance, which is limited.

As provided in 19(2), and as discussed below, officials may detain the crew of a foreign vessel, but note that this is only when they “find an infringement”, meaning that the Ordinance does not provide a power to detain, or arrest when non-compliance is detected, or where there is a reasonable suspicion that an offence was committed.

Article 19(2) provides that in the event of a finding of infringement, enforcement officers may: • Conduct the vessel on which the offence was committed to a Malagasy port, in order to use it as

evidence of the offense. In all cases, however, a foreign fishing vessel found to be fishing in Malagasy waters without proper authorization, under Article 13 of this Ordinance, will be conducted together with the crew, to the nearest Malagasy port to be detained until the end of the procedures provided by this Ordinance or until payment of the security provided for in Article 29 below (namely compounding);

• Enter a vehicle, machine or other instruments and fishing equipment, which the officers suspect was used in the commission of the crime as a precaution.

Article 19(3) provides that the Minister for Fisheries and Aquaculture will proceed to do the following with regards to the seized objects; namely

• Destroy the prohibited machines, instruments and substances; or• Sellthe fishery products likely to deteriorate, or donate them to a charity, the product of the sale

will be deposited with the Treasury until the finalisation of the proceedings.

Article 20 provides that the report prepared and signed by the “control agents” listed in article 18 is deemed to be authentic until proven otherwise. Part VII covers offences and penalties in article 21- 29. Article 21 provides that any master of a fishing vessel flying a foreign flag that has begun fishing in Malagasy marine waters, without the proper authorization under


article 13 of the present Ordinance is punishable by a fine, to be paid in “convertible currency”, amounting to 80 000 - 400 000. Special Drawing Rights (SDRs). Added to this the following can be done: • Confiscation28 of the vessel in accordance with Articles 19(a) and 29 of this Ordinance; • Confiscation of the catch on board or the proceeds of their sale; • Confiscation of fishing gear and substances used to commit the offence.

Article 22(a)-(g) provides that a person who:Violates the general prohibition in Article 10 of this Ordinance, Uses a prohibited method or fishing gear;

• Fishes in prohibited areas and during prohibited times, and or fishing a prohibited species or fish whose dimensions are less than those authorized (undersize);

• Fishes without prior authorization under Article 12 of this Order; • Fishes beyond the limited amount of authorized species (bag limits); and • Violates the provisions relating to the quality and the safety, processing and marketing of fishery

products; • Deliberately prevents enforcement officers to perform their duties,• Is liable to a fine of up to 150 000 FMga case of recreational or subsistencefishing,up to 250000 FMg

in the case of traditional fishing, up to 5 million FMg in the case of artisanal fishing, up to 150000000 FMg in the case of a scientific or experimental fishing and up to 500 000 000 FMgin the case of industrial fishing.

In addition the court may confiscate the catch, or the proceeds of their sale; and forfeit the fishing gear or instrumentalities used to commit the offence. It is unfortunate that some of the terms used above, suchas “toxic substances”, “explosives”, and “electrical processes” and “devices” are not further defined in the Ordinance.

• Article 23(a) and (b) provides that violations of the provisions of this Ordinance and its implementing regulations that are not included under Articles 21 and 22 above are subject to a fine of 10 000 to 100 000 FMg. In addition, the court may impose the following measures:

º The confiscation of the catch or the proceeds of their sale; º The forfeiture of fishing gear or substances used to commit the offense. Once again,

provision is not made for forfeiture of vessels.• Article 24 provides that anyone who creates an unauthorized aquaculture facility is liable to a fine. In

addition, the court may order the forfeiture of that establishment, in favour of the Administration or its immediate destruction at the expense of the offender.

• Article 25 provides that anyone who violently assaults or obstructs “control agents” in the performance of their duties as provided for in Article 19, or make any threat of violence to the said agents, shall be punishable under the provisions of the Penal Code.

• Article 26 provides that in case of repeat offenders, the fines provided in the preceding articles are doubled.

• Article 27 provides that the owners of aquaculture establishments will also be held responsible for fines imposed on their employees., and in the case of a captain of a fishing vessel being criminally liable, the owner will be jointly liable for the payment of fines imposed.

28 Seen the context of this provision, “forfeiture” might be a more appropriate term than “confiscation”.

Madagascar


• Article 27 provides that the owners of aquaculture establishments will also be held responsible for fines imposed on their employees., and in the case of a captain of a fishing vessel being criminally liable, the owner will be jointly liable for the payment of fines imposed.

• Article 28 provides that the Minister for Fisheries and Aquaculture may follow the compounding process in the case of violations of Articles 21, 22, 23, and 24. The amount of the fine may not exceed the maximum amount of the fine for the offence. The minimum amount may be less than the minimum amount of the fine corresponding to the offence as determined by the Ordinance. The confiscation of catchand gear, and thewithdrawal of the fishing license, concession or authorisation may be ordered.

• The payment of the fine levied via the compoundingprocess requires an admission of guilt from the offender and serves as a first conviction for the determination of repeat offenders. In the absence of compounding, or in the event of default, the Minister for Fisheries and Aquaculture shall immediately forward the case to the prosecutor for prosecution.

• Article 29 provides that foreign fishing vessels not authorised to operate in Malagasy waters, together with their crew, kept in accordance with Article 19(a) above, must deposit an appropriate amount as security to the Treasury to guarantee the payment of fines, confiscation and costs.

• The above amount, which is paid as security, will be returned immediately in the event of an acquittal, or dismissal, or on payment of the fine imposed, as well as any costs which the defendant had to cover.

Part VIII covers miscellaneous provisions.

With the exception of article 28, the Ordinance only seems to provide for criminal enforcement of the provisions contained therein. As discussed above, it would seem that there are limited powers of forfeiture in the Ordinance, especially in relation to vessels. There are no provisions in the ordinance relating to VMS systems. The Ordinance is also silent on information sharing and regional co-operation. The Ordinance is also silent on stowage of gear.

Traditional fishing is not subject to licensing and maintains an open access system, though there are a series of decrees and orders regulating the fishery. It is regulated like individual fishing, with, for example, certain fishing methods being prohibited29. It is however a management decision whether this system should change or not, and only then can the need for changes in the legal framework be investigated.

There are various inadequate or outdated provisions in the current legislation. Most importantly, the outdated and inadequate penalties, and a revision of the powers of fisheries inspectors, must be addressed urgently.

The 2007 Bill however addresses most of these issues, but it has not yet been finalised, nor is it clear when it will be promulgated.Penalties have lost their deterrent power due to the devaluation of the currency over the past years30 . Even the IOC/MRAG report on the economic impact of tuna on the Malagasy economy refers to the current levels of fines that need to be reconsidered by the policy makers as one of their recommendations on the management of the fishery31. A perusal of the 2007 Bill indicates a substantial increase in the maximum penalties32.

29 FAO Fisheries Technical Paper 488, Review of the state of the world marine capture fisheries management: Indian Ocean, Cassandra de Young (ed), Rome, 2006. Country Review: Madagascar, Mathieu Soumy, August 2004.30 Draft NPOA for Madagascar (due to the translation used, it is not possible to provide specific page numbers, but see under Part 3: Responsibilities of States).31The Economic Impact of Tuna and Tuna Like Species on the Economy, Country Report, IOC/MRAG, June 2006 in Part 4: Conclusions and Recommendations.


The compounding of fines is a simpler and quicker process than prosecution, and this system is retained in the new Bill33. The maximum amounts that can be set in the compounding process are limited to the maximum prescribed penalties, and the current low level of fines therefore also limits the fines that may be determined through the compounding process.

The deterrent value of sufficiently high fines, while an important factor, is limited as it is often amounts to little more than a business expense for syndicates and large corporations. Imprisonment of natural persons involved in the commission an offence is usually much more of a deterrent. While short-term imprisonment is a possibility in certain instances, and taking into account the limitations set by Article 73 of UNCLOS, the absence of long-term imprisonment as a sentencing option is a matter of concern34. This position remains the same in the Bill.

The Bill provides for automatic forfeiture of the catch (or the proceeds of the sale of the catch), as well as the gear used in the commission of the offence, in the case of unlicensed fishing by foreign vessels in Malagasy waters. The forfeiture of the vessel is left to the discretion of the court, though in the case of repeat offenders, such forfeiture is automatic35. These provisions add substantially to the deterrent value of the criminal penalty.

Part VII of the Bill also deals extensively with the authority and powers of fisheries inspectors. It is not possible to evaluate the adequacy of these powers within the scope of this report, but a quick perusal indicates that there is a comprehensive set of powers. The provisions on the admissibility of VMS and photographic evidence in Chapter 3 of Part VII is an essential tool to assist with presenting such evidence to a court, and is therefore to be welcomed. Lack of knowledge of fisheries legislation amongst prosecutors, legal practitioners and the judiciary was a factor that was highlighted both in interviews and the draft NPOA36. While the draft NPOA recommends the training of judges and prosecutors in fisheries legislation37, the information received during the in-country visit was that due to the very low amount of cases that are prosecuted, and the fact that there is a high turnover in officials, it may prove to be a waste of resources to invest in such training (see the proposal on regional training in Part 5 of this review).

4.3.2. Evaluation

Legal Framework

The 2007 Bill is clearly a huge improvement of the current legislation, and serves as a good basis for a revised legislative framework. The sentiment often expressed during the interviews however, is that this Bill needs to be revised, updated and strengthened.


Article 82 VIII of the Constitution of the Republic of Madagascar: adopted on 19 August 1992, provides for the process of ratification or approval of treaties (“alliances or commercial treaties, treaties or agreements regarding international organization which commit State finances”).

33 See Part VIII: Chapter 3 of the Bill.34 The same sentiment was expressed in the draft NPOA (due to the translation used, it is not possible to provide specific page numbers, but see under Part 3: Responsibilities of States, and the proposal in Measure 3.5).35 See Article 67 of the Bill.36Also see remarks regarding this issue the draft NPOA (due to the translation used, it is not possible to provide specific page numbers, but see under Part 3: Responsibilities of States.

37 Measure 3.6.

Madagascar


It was already reported in 2004 that the Malagasy State has integrated some of the provisions of the regional conventions into its legislation, such as the setting up of a satellite surveillance system for boats in order to deter illegal fishing38 . The 2007 Bill makes provision for the establishment of conservation measures applicable to, and the management of shared, straddling or highly migratory stocks, and furthermore places an obligation on the Minister of Fisheries to consult with the other states in the region or sub-region, in order to harmonise and to ensure compatibility of such measures with those adopted by each state and in accordance with the provisions of the international conventions and agreements to which the Malagasy state is a party39. This provision is valuable, but some resolutions or provisions may require a further amendment to domestic legislation in order to be properly implemented. As a general statement, and not specific to Madagascar, the failure toimplement regional agreements is however often more a question of poor management, as opposed to an inadequate legal framework.

Measured against the background provided in part 2 on methodology, it is clear that while some legislative amendments may be required, most resolutions and decisions of RFMO can be implemented without such a requirement. Regular legal review to ensure that domestic legislation can accommodate these regional measures will however be beneficial. Rafomanana, Secretary General of the Ministry, also emphasised the need for regular (and therefore ongoing) legal review in light of the fact that, new IOTC resolutions are a regular occurrence. Gerard Domingue, Compliance Coordinator of the IOTC, expressed the same sentiment.

In a 2011 interview40 with the Honourable Minister Ratolojanahary, the Minister emphasised the need for harmonisation of the legal frameworks between the countries in the region with specific reference to the levels of fines. He remarked that “[f]ines should be on the same level in different countries” as it is “problematic when one country applies a fine that is less than the others, and which has no effect on offences committed by ship owners.” The draft NPOA highlighted the same issue, and proposes this as a specific measure41.

This issue of regional harmonisation is discussed below under Part 5 of this review.


In the same 2011 interview42 with the Honourable Minister Ratolojanahary referred to above, the Minister also highlighted the need to share information on illegal fishing. No legal barriers were detected or reported in this regard, but as is the case with the other countries in the region, it might be helpful to incorporate more extensive obligations in this regard into the 2007 Bill.

The provisions on the admissibility of VMS and photographic evidence in Chapter 3 of Part VII of the Bill is to be welcomed.

38 FAO Fisheries Technical Paper 488, Review of the state of the world marine capture fisheries management: Indian Ocean, Cassandra de Young (ed), Rome, 2006. Country Review: Madagascar, Mathieu Soumy, August 2004.39 See article 3-5 of the Bill.40Interview conducted by Gilles Hosch, Stop Illegal Fishing Programme, www,stopillegalfishing.com41 Measure 3.10 in the draft NPOA.42 Interview conducted by Gilles Hosch, Stop Illegal Fishing Programme, www,stopillegalfishing.com




Immediate action:Legal assistance is required for the finalisation, strengthening, adoption and implementation of the 2007 Bill. Other interventions that are required include a review of all supporting legislation (decrees and orders) in order to adapt to the Bill and investigation of their possible consolidation (both of these interventions were also recommended in the draft NPOA).

Proposed further legal assistance: • Assistance with the finalisation of the draft NPOA-IUU and ensuring that the NPOA and the 2007 Bill

is harmonised;• Training of fishery inspectors, including other supporting personnel, being the Gendarmerie, Police

and Navy (based on the information, the fisheries inspectors have undergone a fair amount of training, but as soon as the new Bill is finalised, and preferably before it comes into operation, it is of utmost importance that these officials are trained on the contents thereof, as well as further training on investigative skills);

• The drafting of a comprehensive set of SOPs and/or a manual for fisheries inspectors;• Training of legal officers and possibly prosecutors (the review indicates that the current amount of

cases culminating in prosecution is minimal, and the training should therefore rather focus on the legal officers);

• The drafting of a manual on the prosecution of fisheries offences for legal officers and prosecutors;• Awareness programs for presiding officers and the compilation of a bench book for presiding officers

(this should however be re-evaluated against the number of cases landing up in court); • Setting up of a national network for the enforcement of fisheries legislation;• Joining a regional network of prosecutors;• Joining a regional network of presiding officers.


4.4. Mauritius


The principle fisheries legislation is the Fisheries and Marine Resources Act 2007 (No. 20 of 2007); the Merchant Shipping Act 2007 (No. 26 of 2007), the Consumer Protection (Control of Imports) Regulations 1999 (G.N. No. 135 of 1999); and the Fisheries and Marine Resources (Vessel Monitoring System) Regulations 2005 (G.N. No. 87 of 2005). There are also various other relevant regulations such43 as: • Prohibition of the Use of Hooks of Small Size Regulations of 2011 • Export of Fish and Fish Products (Amendment) Regulations of 2010 • Extension of Net Fishing Season Regulations of 2010 • Export of Fish and Fish Products Regulations of 2009 • Extension of Net Fishing Season Regulations of 2009 • Fishing of Sea Cucumbers Regulations of 2009 43http://www.gov.mu

Mauritius


• Prohibition of Removal of Coral and Sea-shell Regulations of 2006 • The Fishing of Sea Cucumbers Regulations of 2008 • The Toxic Fishes Regulations of 2004 • The Undersized Fish Regulations of 2006 • Vessel Monitoring System Regulations of 2005The Ministry of Fisheries and Rodrigues includes, inter alia, a Fisheries Planning Division and a Fisheries Management Division, as well as a Fisheries Protection Service. Fisheries Research and Fisheries Training Services have also been established, but their focus is not on the offshore fisheries .

The Fisheries Planning Division is responsible for the analysis and implementation of fisheries policies and legislation, planning, economics and fisheries information management functions. Amongst other things, this division is responsible for following up on matters relating to international and regional organizations, bilateral matters and fishing agreements.

The Fisheries Management Division includes the tuna fishery, monitoring of foreign fishing vessels, licensing of fishing vessels and MCS – these are all highly important aspects of the management of the offshore fishery and they fall specifically within the duties of the Divisional Scientific Officer for Fisheries under this Service. Its goals are to develop and manage fisheries and marine resources, facilitate the import and export of fish and fish products and to provide a rapid and efficient service to fishing vessels docked at Port Louis for various activities, and to monitor fishing vessels operating in the EEZ .

The Licensing Unit of the Ministry is responsible for issuing fishing licences that authorise local and foreign fishing vessels to fish in the Exclusive Economic Zone of Mauritius. Fishing licences are issued under a set of conditions and against payment of the appropriate licence fees. Foreign vessels are provided with licences to practice mainly longline fishing. Mauritius has also concluded Fishing Agreements with the European Union, the Government of Seychelles and the Federation of Japan Tuna Fisheries Co-operative Associations (FJTFCA). A number of licences are issued under these agreements46 .

The priorities of the Fisheries Management Division are to provide a quick service regarding the transhipment by fishing vessels, import and export of seafood through the one-stop shop (Seafood Hub) and ensure a constant monitoring of the activities of both local and foreign licensed fishing vessels in the EEZ through VMS. The Division provides clearance for unloading or transhipment for fishing vessels calling at Port Louis47 .

The Fisheries Protection Service is responsible for the enforcement of all fisheries law and regulations. The priorities and objectives of the FPS include monitoring fishing activities and combating illegal fishing48 .

Mauritius is a member of the Indian Ocean Commission, (IOC), the Indian Ocean Tuna Commission (IOTC) , the Southwest Indian Ocean Fisheries Commission (SWIOFC)50, and a party to the Convention on Conservation of Antarctic Marine Living Resources (CCAMLR)51 .

46 http://www.gov.mu/47 “Legal and Capacity Assessment of Mauritius, Mozambique, Seychelles, Tanzania and Kenya of readiness to implement the IOTC Port State Measures Resolution 10/11, June 2011”, Ref: CU/PE1/UG/10/00848 “Legal and Capacity Assessment of Mauritius, Mozambique, Seychelles, Tanzania and Kenya of readiness to implement the IOTC Port State Measures Resolution 10/11, June 2011”, Ref: CU/PE1/UG/10/00849 http://acpfish2-eu.org/index.php?page=eastern-africa-2&hl=en50 http://acpfish2-eu.org/index.php?page=eastern-africa-2&hl=en51Legal and Capacity Assessment of Mauritius, Mozambique, Seychelles, Tanzania and Kenya of readiness to implement the IOTC Port State Measures Resolution 10/11, June 2011”, Ref: CU/PE1/UG/10/008


Mauritius is also a party to the 1982 UN Convention, the 1995 UN Fish Stocks Agreement, the 1993 FAO Compliance Agreement and the SADC Fisheries Protocol52 . It has also signed the South Indian Ocean Fishing Agreement (SIOFA) and the FAO Port State Measures Agreement.

In so far as SADC is concerned, the Ministry of Economic Development, Productivity and Regional Development is the National Contact Point for SADC and the sectoral contact points relevant to appropriate Ministries have been officially designated. They are expected to ensure proper follow-up on decisions taken by SADC and to help in the formulation of project proposals. The current project portfolio of the Marine Fisheries Sector Coordinating Unit includes marine fisheries training in the areas of inter alia fisheries law as well as SADC Monitoring, Control and Surveillance and SADC Regional Fisheries Information System53 .

Mauritius adopted an NPOA-IUU in 2010. It describes the existing laws and initiatives that combat IUU fishing, and for the most part, undertakes to maintain the existing situation54 .

Jehangeer55 also notes the impact of various non-fisheries legislation on fisheries management, including inter alia the National Coast Guard Act (1988). The National Coast Guard which is a specialised agency within the Police Force, provides additional assistance for enforcement of national fisheries laws and regulations, and is responsible for: • The enforcement of any laws related to security of the state of Mauritius; • The enforcement of any laws relating to protection of the maritime zones; • The detection, prevention and suppression of any illegal activity within the maritime zones

(including illegal fishing).

The NCG therefore supplements and reinforces the enforcement capacity of the fisheries law and regulations beyond the limits of the territorial sea (in the EEZ) and especially in the distant outer islands.

The EC-Regulations on Illegal, Unreported and Unregulated (IUU) Fishing(the IUU Regulation), are being implemented as of January 201056 . The IUU Regulation seeks to establish a system of conditional access through which access to its markets will be partly conditioned to the extent to which the country, area or region of origin of the exported fish product is free from IUU fishing57. .

All local vessels require a fishing licence to fish in Mauritian waters, the continental shelf, and the high seas as well as in the fishing zone of a foreign state. All foreign vessels need to have a licence to fish in Mauritian waters. A VMS is in place on all licensed vessels and in May 2008 it was reported that the Ministry of Agro-Industries and Fisheries has recently negotiated a protocol for the satellite monitoring of EU vessels fishing in the EEZ58.

52 Legal and Capacity Assessment of Mauritius, Mozambique, Seychelles, Tanzania and Kenya of readiness to implement the IOTC Port State Measures Resolution 10/11, June 2011”, Ref: CU/PE1/UG/10/00853 http://www.gov.mu54 See above at page 16.55 FAO Fisheries Technical Paper 488, Review of the state of the world marine capture fisheries management: Indian Ocean. Cassandra de Young (ed), Rome, 2006. Country Review: IsmetJehangeer, April 2004.56 http://fisheries.gov.mu/57 “The New EC Regulation on Illegal Fishing: Implications for ACP Countries”, Issue 56: Commonwealth Trade Hot Topics, February 2009: Martin Tsamenyi, Mary Ann Palma, Ben Milligan and Kwame Mfodwo: http://www.thecommonwealth.org/files/187911/FileName/THT56TheNewECRegulationonIllegalFishing.pdf58 Stop Illegal Fishing in Southern Africa, publication by Stop Illegal Fishing Programme, Gabarone, Botswana, May 2008:29. Web….

Mauritius


The Fisheries Protection Service, with a staff compliment of approximately 264 officers (in May 2008) is responsible for the enforcement of all fisheries law and regulations. In addition, the National Coast Guard also enforce the provisions of the Fisheries and Marine Resources Act59.

The Fisheries and Marine Resources Act, Act 27 of 2007 is the principal legislation in Mauritius.

Part I is entitled “Preliminary”, and the definitions section contained therein are extensive and seems to define all relevant terms in the Act. Part II is entitled management of fisheries and administration, and envisages the designation of Marine Protected Areas. Part III covers fish farming, and Part IV covers control of fishing activities, as discussed further below.

Part IV covers the following issues in the following sections:• Section 11 deals with registration of fishermen• Section deals with 12 prohibited fishing methods and gear:

- Section 12(1)(a) provides that no person shall fish with a gunny bag, canvas or cloth, creeper, leaf or herb. However none of these words are defined in section 1.

- Section 12(1)(b) provides that fishing with a “poisonous substance” is prohibited. The term “poisonous substance” is defined in the definitions section as “any substance likely to kill, stun or injure any fish or damage or pollute aquatic ecosystems”. The term “likely”, which is used in the section, unfortunatelymakes this somewhat difficult to enforce, and should rather have read,“has the potential to”.

- Section 12(1)(c) provides that no person may fish with any explosive, and “explosive” is defined as having the meaning assigned to it by the Explosives Act.

- Section 12(1)(d) deals with fishing with any drift net; which is defined.- Section 12(1)(e) deals with using or keeping on board a boat or vessel or any device that may be

used to transform gear; - Section 12(1)(h) provides that no person may fish with, or have in his possession, a spear gun,

except with the written approval of the Permanent Secretary. “Spear gun” is defined as a device fitted with a trigger and a spear.

• Section 13 deals with the prohibition of underwater fishing;• Section 14 deals with closed periods;• Section 15 deals with fish aggregating devices;• Section 16 deals with protection of fish, which includes the prohibition of fishing of “undersized fish”,

which is defined as a fish the size of which is less than the size prescribed for that species of fish. • Section 17 deals with the landing, possession and sale of fish. According to this section, no person may

land or cause another person to land, sell or have in their possession any “toxic fish”; • Section 18 deals with fishing with the aid of artificial light;• Section 19 deals with fishing in pass;• Section 20 deals with fish landing stations, and provides that no fisherman shall land fish at a place

other than a fish landing station, which is prescribed by the Minister. Section 20(3)(a) provides that any person who lands fish at a fish landing station shall, where requested by a fishery control officer, cause the fish to be weighed,

59 Stop Illegal Fishing in Southern Africa, publication by Stop Illegal Fishing Programme, Gabarone, Botswana, May 2008:29: http://illegal-fishing.info/

uploads/sifbrochureeng.pdf


and shall keep and store the fish in the manner and place as directed by the fishery control officer, and shall not expose the fish to rain, sun, flies or other unhygienic conditions.

• Section 21 deals with the sale and origin of fish. This section does not apply to fishermen who sell fish at a fish landing station. Section 21(1) provides that no person shall sell or have in his possession for sale any fish unless he holds a fishmonger’s licence, which is issued by the Permanent Secretary.

• Section 21(3) provides that no person shall purchase fish from a fisherman at any place for the purpose of sale other than at a fish landing station, which is another control mechanism;

• Section 21(4) provides that no fishmonger who purchases fish from a fisherman shall refuse to sell fish at a fish landing station; and

• Section 21(5) provides that a person found in possession of fish shall, on being required to do so by a fishery control officer, furnish the fishery control officer with the particulars of the origin or source of the fish, which is another control mechanism.

Part V covers import, export and manufacturing. Part VI consists of sub part A and B. Subpart A covers gear, and provides that no person may use or have in their possession gear, without a gear license. Subpart B covers fishing boats and fishing vessels. Subpart B consists of sections 34 – 38, and provides for foreign fishing boat or foreign fishing vessel licences, and international agreements, as well as licences issued to a Mauritian fishing boat or fishing vessel, and the conditions such licences as follows:

• Section 34 deals with foreign fishing boat or foreign fishing vessel licences, and provides that no person shall use a foreign fishing boat or foreign fishing vessel for fishing or any related activity within the maritime zones, unless he is the holder of a foreign fishing boat or foreign fishing vessel licence. The Minister may, on such terms and conditions as he thinks fit and subject to the approval of the Prime Minister, issue a licence in a prescribed form, for the use of a foreign fishing boat or foreign fishing vessel for the purpose of fishing or any related activity within the maritime zones. Section 34(4) provides, importantly, that the Minister shall refuse to issue a licence under this section where:- The foreign fishing boat or foreign fishing vessel in respect of which the licence is sought has a

history of non-compliance with international fishery conservation and management measures, except where the ownership of the fishing boat or fishing vessel has subsequently changed and the new owner provides sufficient evidence that the previous owner or master has no legal, beneficial or financial interest in, or control of, the fishing boat or fishing vessel;

- The foreign fishing boat or the foreign fishing vessel does not comply with the requirements of a regional fisheries management organisation to which Mauritius is a party, or has not complied with the measures adopted by that organisation. This is evidence of incorporation of RFMOs into licensing conditions for foreign vessels, and is a very important control measure.

• Section 35 covers licences and international agreements, and is a further control measure, which provides that a foreign fishing boat licence or foreign fishing vessel licence shall not be issued under section 34, unless there is an agreement –- Between the Government of Mauritius and the State in which the fishing boat or fishing vessel is

registered;- Between the Government of Mauritius and an economic integrated organization to which a

member State of the organisation in which the fishing boat or fishing vessel is registered has delegated the power to negotiate fishing agreements; or

- Between the Government of Mauritius and a fishing association of which the owner or charterer of the fishing boat or fishing vessel is a member. However in the absence of any such agreement, the Minister may also issue a licence under this section if the applicant provides such financial or other guarantees as he may determine.

Mauritius


• Section 36 covers licences issued to Mauritian fishing boats or fishing vessels. Note that section 36(3) provides that the Minister may exempt any fishing boat less than 12 metres in length from the requirements of subsection (1)(a), subject to such terms and conditions as he may determine.

• Section 37 covers conditions of licences, this section provides that the terms and conditions mposed by the Minister for licensing of both foreign and Mauritian vessels may include the listed conditions found in 37(a)-(f), which includes (e) reporting obligations; and (f) the carrying on board of communications, position fixing or other equipment.

Part VII covers obligations relating to fishing boats and fishing vessels. This part consists of 3 subparts, namely subpart A, B and C. Subpart A consists of general provisions, whilst subpart B covers Mauritian fishing boats and Mauritian fishing vessels, and subpart C covers foreign fishing boats or foreign fishing vessels. Subpart C provides in section 52(a) and (b), that the master of a foreign fishing boat or a foreign fishing vessel shall keep the gear stowed:

• While the boat or vessel is within the maritime zones and is not licensed under section 34; and• While being in a place where the boat or vessel is not authorised to fish.

These are important control measures to prevent illegal fishing.

Part VIII covers enforcement, in sections 55-68. These sections cover the following issues: • Section 55 covers warrants to enter and search;• Section 57 covers the implementation of international fishery conservation and management measures;• Section 58 covers powers of search and seizure, note that fishery control officers cannot search a

premises without a warrant as provision is not made for such search in this section;• Section 59 covers powers to arrest and detain. Section 59(a) and 59(b)(i) and (ii), provide that where

a fishery control officer finds a person fishing or conducting any related activity, or in possession of any fish or gear, or selling fish caught in breach of this act, he may without a warrant stop that person; and require that person to give his name and address; and the name and address of the owner of any boat or vessel used in the commission of the suspected breach of the act. It would seem that this provision does not actually empower fishery control officers to arrest and detain, but merely to stop and question.

• Section 60 covers the seizure of fish;• Section 61 covers the duties of fishery control officers;• Section 62 covers the pursuit beyond the maritime zones;• Section 63 covers the custody of seized items;• Section 64 covers the custody and disposal of found items;• Section 65 covers security for release of seized items;• Section 66 covers disposal of fish;• Section 67 covers application of the Public Officers Protection; and lastly• Section 68 covers suspension and cancellation.

Part IX covers offences and penalties and only consists of 4 sections as follows• Section 69 covers protection of the aquatic ecosystem. Section 69(1) provides that no person shall

place, throw, discharge any poisonous substance or cause such substance to be placed, thrown or discharged into the maritime zones or into a river, lake, pond, canal, stream, tributary or wetland. “Poisonous substance” is defined in Part I as meaning any substance likely to kill, stun or injure any fish or damage or pollute aquatic ecosystems. Section 69(2) provides that no person shall, except with the written approval of the Permanent Secretary, cut, take; remove; or damage, a mangrove plant.


Section 69(3) provides that no person shall place, construct or cause to be placed or constructed, any structure within the territorial sea or internal waters as defined in the Maritime Zones Act 2005, except with the written authorisation of the Permanent Secretary.

• Section 70 covers offences and penalties. There is no general provision that provides that non-compliance with any provision of the act is an offence, thus non-compliance with provisions that are not specifically mentioned in section 70 will not amount to an offence in terms of this act. It would seem that interfering with fishery control officers in the execution of their duties is not an offence in terms of this section.

• Section 71 covers forfeiture and is a fairly comprehensive provision.• Section 72 covers giving false information and tampering with evidence. This section is silent on

tampering or falsifying documents connected with applications for licences and falsification of fishing licences.

The final Part X contains miscellaneous provisions; the relevant provisions are listed below:• Section 74 provides that the Minister may make regulations that cover a very broad spectrum of

issues and areas. Section 74(1)(d) provides that the Minister may make regulations that prescribe the conditions for licensing of fishing boats and fishing vessels, format and content licences and the procedure for their issuance, cancellation and revocation. Section 74 (1) (e) provides that the Minister may make regulations requiring a fishing boat or a fishing vessel to be equipped with specified communications, position fixing instrument, and other equipment. Section 74 thus provides for a comprehensive list of issues that the Minister is empowered to make regulations concerning, and these areas include administrative enforcement measures, such as revocation of licenses, as well as conditions for licences as well as vessel monitoring devices.

• Section 75 provides for compounding of offences. According to this section, the permanent secretary may compound certain offences. A Compounding Commission, according to section 75(2) shall be set up to assist the permanent secretary in determining the amount to be paid by the offender under subsection (1), having due regard, inter alia, to the circumstances of the case and the past behaviour of the offender.

• Section 77(1) provides that where a photograph is taken of any fishing or related activity and simultaneously the date and time and position from which the photograph is taken are superimposed upon the photograph, it shall be prima facie evidence that the photograph was taken on the date, at the time and in the position so appearing.

A 2011 report60 remarked that the Fisheries and Marine Resources Act 2007 contains many components that constitute a positive approach to Port State measures, however there remain a number of key areas that still require strengthening, such as an update of definitions, requirements for mandatory denial of use of ports and associated laws, as well as requirements and forms used for prior notice of entry into ports and reporting of the results of inspection. Importantly, power to take Port State measures in respect of related activities must still be included.

60 “Legal and Capacity Assessment of Mauritius, Mozambique, Seychelles, Tanzania and Kenya of readiness to implement the IOTC Port State Measures Resolution 10/11, June 2011”, Ref: CU/PE1/UG/10/008

Mauritius


Other comments from this report includes the following: • Regarding definitions, those definitions that relate to “fish”, “fishing”, “related activity” and “vessel”

require strengthening in order to bring them in line with the IOTC Port State Measures Resolution (PSMR). The definitions are currently much more restrictive than the definitions used in the PSMR, and the definitions of “fishing boat” and “fishing vessel” are highly confusing.

• Some of the more troublesome provisions address enforcement and “related activities”. These provisions set out the legal basis for appointment and powers of fishery control officers.

• The Act does not empower an authority to appoint fishery control officers, nor does it provide them with a clear legal status. They are merely defined in the “use of terms” and there is therefore no transparency.

• The 2007 Act specifically confines port inspection and enforcement powers under section 57, “Implementation of International Fishery Conservation and Management Measures” to “fishing” activities. However, because these international measures are not defined, it would be impossible to technically prove that the IOTC PSMR falls within this term.

• In addition, “related activities” which are not defined as broadly as in the PSMR, are currently not covered under section 57(3), which allows the Permanent Secretary to prohibit landings or transhipments. This would limit enforcement of the PSMR to fishing only, and not related activities.In addition, this section does not authorize denial of the full range of uses of port described in the PSMR such as packaging, processing, refuelling, resupplying, dry-docking, and does not provide for mandatory denial of use of port as required in the PSMR.

• Fishery control officers have basic powers of search and seizure under section 58 of the Fisheries and Marine Resources Act. However, the Act is weak in the sense that it does not cover the range of inspection activities normally found in legislation including entering and searching for general purposes of compliance (not confined to where the officer “suspects an offence” as currently required) or entering and searching of premises.

• Search and seizure involving gear and equipment is included, but the Act provides a restrictive definition of “gear”, and there is no definition of “equipment” (e.g. helicopters on purse seiners). This could hamper inspection and enforcement operations.

• Fisheries control officers are given the power in section 58 to inspect any Mauritian fishing boat or fishing vessel or any such boat or vessel flying the flag of a state party to an international agreement to which Mauritius is also a party.This is however framed in the context of “stop board and search”, and should ideally apply more broadly to port inspections.

• There is furthermore no clear definition of an “international agreement”. Under section 58, vessels and their gear, and other items may be seized where there is reason to believe that a violation of a “fisheries management measure under an international agreement to which Mauritius is party” has occurred, however such a measure is not defined. Added to this confusion is the inconsistent and undefined term “international fishery conservation and management measure” used in section 57. These measures appear to be two different things; neither of which are defined, which would in turn give rise to serious technical difficulties when trying to establish whether any IOTC Resolution had been undermined.


• As was also pointed out above, section 59 is entitled “power to arrest and detain” but no such power is given in the Act. Instead, section 59 only gives the fishery control officer the power to stop a person in violation of the Act and require him to give his name and address as well as the name and address of the owner of any relevant boat or vessel.

• The Fisheries and Marine Resources Act prohibits the use of a “foreign fishing boat or foreign fishing vessel” for “fishing or any related activity within the maritime zones” without a “foreign fishing boat or foreign fishing vessel licence”, however it is understood that the Fisheries Ministry does not licence vessels for related activities. The Shipping Division of the Ministry of Public Infrastructure, Land Transport and Shipping under the Merchant Shipping Act license vessels greater than 24 metres.

• The Act does not require, as a condition of licence, that foreign vessels that undertake fishing must comply with relevant international conservation and management measures. It is presumed that the licences issued for vessels carrying out related activities also have no such requirement.

• In terms of the provisions relating to vessels not licensed by Mauritius that call at port, it would be difficult to take Port State measures against vessels that engage in fishing, and impossible to take measures against those that engage in related activities to support IUU fishing for reasons described above, this includes undermining IOTC conservation and management measures.

The report, which focuses on the incorporation and implementation of port state measures, comes to the conclusion that while the above points out some key shortcomings of the act, the entire act should be reviewed, and a comprehensive approach taken to ensure that the recent international fisheries instruments to which Mauritius is party are fully implemented, including port state measures.

4.4.2. Evaluation

Legal Framework

As remarked and reported above the Fisheries and Marine Resources Act 2007 contains fairly extensive provisions providing a good basic framework, but requires strengthening and refinement. It was reported that Mauritius has already started the process to update the 2007 Act. A revision of the definitions, powers of inspectors and implementation of regional agreements revealedaspects (that were specifically mentioned) that require attention.


The Constitution of 1968 makes no reference to the adoption and incorporation of international and regional agreements, but no barriers or challenges were reported in this regard.

Mauritius has a 5-year Fishery Development Plan that states the following regarding regional co-operation61 :

“Regional Cooperation in fisheries management and development and marine conservation is of utmost importance to small island states like Mauritius.

61 http://www.gov.mu

Mauritius


In this context, the ministry will actively participate in the activities of the relevant Regional Fisheries Organisations such as the Indian Ocean Tuna Commission (IOTC), the Convention for the Conservation of Antarctic Marine Living Resources, (CCAMLR), the South West Indian Ocean Fisheries Commission (SWIOFC). It will also participate in the regional pilot project for Monitoring Control and Surveillance of large pelagic fishes in the Western Indian Ocean and the regional tuna-tagging project. These measures will result in improved collaboration amongst countries of the region for the control of IUU fishing and improved knowledge of the regional fish stocks, which will ultimately lead to a more sustainable utilisation of resources. Besides cooperation under the SADC, COMESA and Indian Ocean Rim Association for Regional Cooperation (IOR-ARC) will be continued”.

It was however reported that the Fisheries and Marine Resources Act 2007 contains many components that constitute a positive approach to Port State measures specifically, but requires strengthening in some regards. Also see the remarks on the legal framework directly above.


As far as the sharing of information is concerned, the legislation contains a provision dealing with this aspect. Due to the existence of a confidentiality clause, and while there seems to be no reluctance or unwillingness to share information; the impression gained from the consultations was that a high degree of caution is exercised before information is shared. It is respectfully submitted that the provision in the legislation is well formulated, but possibly interpreted too narrowly.



Immediate action:Legal assistance with thereview and amendment process of the 2007 Act to refine and strengthen the MCS provisions is required.

Proposed further legal assistance: • Training of fishery inspectors in various aspects, including investigation and prosecution, are required

(the fishery officers conduct the prosecutions of less serious cases). • The drafting of a comprehensive set of SOPs and/or a manual for fisheries inspectors;• Training of officials from the State Law Office dealing with fisheries prosecutions and/or the inspectors

involved in prosecutions. Most of the more serious cases are settled via the compounding process, but it will be beneficial to prepare at least a few prosecutors from the prosecuting authority to be able to conduct such matters.

• The drafting of a manual on the prosecution of fisheries offences for legal officers, prosecutors and fisheries inspectors involved in prosecutions;

• Awareness programs for presiding officers and the compilation of a bench book for presiding officers; • Setting up of a national network for the enforcement of fisheries legislation;• Joining a regional network of prosecutors;• Joining a regional network of presiding officers.



4.5. Seychelles


The main pieces of fisheries legislation are namely the Fisheries Act of 1987, which was revised in 1991 and has been amended numerous times, namely by Act 8 of 1993, and Act 2 of 20062 , the Regulations published under section 4 of that Act, and in addition to that the Maritime Zone Act of 1977, the Seychelles Fishing Authority (Establishment) Act 10 of 1984 and the Licenses (Fisheries) Regulations of 1987. Most importantly, a new Fisheries Bill has been prepared and we have been provided with a 2011 draft of this legislation. The new Fisheries Bill is in final stages of development, and is a fine effort to modernize fisheries management. The new draft Bill is expected to become law before the end of 2011, and has been commented on in a recent report63 , which has been taken into consideration.

Other pieces of legislation that are of relevance because the Act invokes their application to certain fisheries management activities, are the Seychelles Licensing Authority Act, as licences under the Act are issued by the Seychelles Licensing Authority, the Town and Planning Authority Act, as the Town and Planning Authority gives approval for granting exclusive rights to propagate, raise and take fish and other aquatic organisms and the Public Officers (Protection) Act of 1976, as this Act provides protection for fisheries officers64.

Fisheries fall under the mandate of the Seychelles Ministry of Environment, Natural Resources and Transport. The executive body responsible for implementing guidelines set by the Ministry is the Seychelles Fishing Authority (SFA), created in 1984 by the Seychelles Fishing Authority (Establishment) Act. The aim of the SFA is to develop the fishing industry to its fullest potential and to safeguard the resource base for sustainable development, endorsing the long-term policy of the Government65.

Seychelles is a party to the 1982 UN Convention, the 1993 FAO Compliance Agreement and the 1995 UN Fish Stocks Agreement66 . It is a Member of IOTC67 , IOC, SWIOFC68 and cooperates with ICCAT69 , CCAMLR70 and SADC71. The SFA has is an active participant in the Regional Fishery Surveillance project managed by the Indian Ocean Commission.

62 http://faolex.fao.org/docs/pdf/sey26166.pdf63 “Legal and Capacity Assessment of Mauritius, Mozambique, Seychelles, Tanzania and Kenya of readiness to implement the IOTC Port State Measures Resolution 10/11, June 2011”, Ref: CU/PE1/UG/10/00864 Report of the Workshop on the Harmonization of Marine Fisheries Policy within Coastal Countries of the Southern African Development Community, Zanzibar, United Republic of Tanzania, 24-27 July 2001FAO Fisheries Report No. 662, APPENDIX D - Comparative analysis of the fisheries legal frameworks of SADC coastal countries: status and options, by BlaiseKuemlangan65 “Legal and Capacity Assessment of Mauritius, Mozambique, Seychelles, Tanzania and Kenya of readiness to implement the IOTC Port State Measures Resolution 10/11, June 2011”, Ref: CU/PE1/UG/10/00866 “Legal and Capacity Assessment of Mauritius, Mozambique, Seychelles, Tanzania and Kenya of readiness to implement the IOTC Port State Measures Resolution 10/11, June 2011”, Ref: CU/PE1/UG/10/00867 http://acpfish2-eu.org/index.php?page=eastern-africa-2&hl=en68http://acpfish2-eu.org/index.php?page=eastern-africa-2&hl=en69 “Legal and Capacity Assessment of Mauritius, Mozambique, Seychelles, Tanzania and Kenya of readiness to implement the IOTC Port State Measures Resolution 10/11, June 2011”, Ref: CU/PE1/UG/10/00870“Legal and Capacity Assessment of Mauritius, Mozambique, Seychelles, Tanzania and Kenya of readiness to implement the IOTC Port State Measures Resolution 10/11, June 2011”, Ref: CU/PE1/UG/10/00871 “Legal and Capacity Assessment of Mauritius, Mozambique, Seychelles, Tanzania and Kenya of readiness to implement the IOTC Port State

Measures Resolution 10/11, June 2011”, Ref: CU/PE1/UG/10/008

Seychelles


Seychelles ratified the 1982 UN Convention on 16 September 1991, and became a party to the Compliance Agreement on 7 April 2000 and the UN Fish Stocks Agreement on 20 March 199872 .

Seychelles has an NPOA for the conservation and management of sharks. It is made up of 11 work programmes and is currently in the fourth year of application with a review to be done at the end of 2011. Seychelles also reported that they have a general NPOA-IUU that has been partly implemented. They are however awaiting the enactment of the Fisheries Amendment Bill to enable the SFA to proceed with certain aspects of the NPOA.

The Fisheries Act, Chapter 32, Law of the Seychelles, is comprised of four Parts. Part I covers preliminary provisions, and Part II deals with Management of Fisheries. Part III is entitled Enforcement, and is comprised of sections 19 – 26.

• Section 19 deals with powers of authorised officers• Section 20 deals with hot pursuit• Section 21 deals with public officers• Section 22 deals with regional arrangements• Section 23 deals with custody of seized articles• Section 24 deals with offences• Section 25 deals with forfeiture• Section 26 deals with compounding of offences

Part IV concludes the Act by dealing with regulations.

Kuamlangan73 makes extensive comments on the current fisheries legislation in his report. This is however not examined any further here, since there is already a new draft Bill that will repeal the old Fisheries Act. This Bill is discussed immediately below.

The Fisheries Bill is comprised of 5 Parts. Part I covers Preliminary Provisions, and Part II deals with Management of Fisheries. Part III covers Enforcement, and Part IV deals with Offences and Penalties. Part V concludes the Bill with Miscellaneous provisions.

For these purposes Part III and IV are the most relevant. Part III comprises of sections 21-29, and provides as follows:

• Section 21 deals with the appointment of authorised officers;• Section 22 deals with areas where an authorised officer may exercise his powers with respect to

fishing vessels;• Section 23 deals with the powers of authorised officers regarding fishing vessels and premises;• Section 24 deals with procedures for detained vessels and persons;• Section 25 deals with procedures for detained fish;• Section 26 deals with Port State measures;• Section 27 deals with the establishment of observer programmes;• Section 28 deals with public officers;• Section 29 deals with regional cooperation in surveillance and enforcement.

72 73 Report of the Workshop on the Harmonization of Marine Fisheries Policy within Coastal Countries of the Southern African Development Community, Zanzibar, United Republic of Tanzania, 24-27 July 2001FAO Fisheries Report No. 662, APPENDIX D - Comparative analysis of the fisheries legal frameworks of SADC coastal countries: status and options, by BlaiseKuemlangan


Part IV covers offences and penalties in sections 30- 45 as follows: • Section 30 covers Category 1 offences; • Section 31 covers Category 2 offences; • Section 32 covers Category 3 offences; • Section 33 covers Category 4 offences; • Section 34 covers Category 5 offences; • Section 35 covers Category 6 offences; • Section 36 covers Category 7 offences; • Section 37 covers Category 8 offences; • Section 38 covers offences in relation to the length of vessels; • Section 39 covers second and subsequent offences; • Section 40 covers the procedure regarding articles in custody of court; • Section 41 covers presumptions; • Section 42 covers compounding; • Section 43 covers the rules of evidence regarding VMS information; • Section 44 covers the rules of evidence regarding vessel monitoring device information; • Section 45 covers photographic evidence.

While the impression gained was that the new Fisheries Bill will add substantially to more effective legislation from a compliance and enforcement point of view, the 201174 report views the draft Bill as inadequate to implement the IOTC PSMR and reports that it also has weaknesses and inconsistencies on a more general level. The main areas of concern noted included the following remarks:Section 45 of the 2011 Fisheries Bill deals specifically with port state measures, but it falls short of implementing the IOTC PSMR. It is a seriously weak and restrictive provision, which is based on terms that are not defined in the draft Bill. There are also some fundamental problems with the requirement in section 45 that “SFA” must have “reasonable grounds to believe that a foreign fishing vessel has engaged in, or supported, IUU fishing...” before it could deny the use of a port. Firstly, it is not “SFA” that should be required to have reasonable grounds for a range of reasons. This precludes any other authorized officer – e.g. the police – from taking action as necessary. Secondly, an institution cannot have “reasonable grounds to believe”, as only a person can. It is standard drafting to simply use a broad reference and provide “where there are reasonable grounds...” Thirdly, the standard of proof is not the same as required in the PSMR (“reasonable grounds” rather than “sufficient proof” and “clear grounds”).

In addition, the provision does not expressly cover fishing related activities. Although reference is made to “supporting” IUU fishing, the draft Bill does not define “supporting”. It is best to incorporate the definitions of “fishing related activities” from the PSMR and track the language of the PSMR, which refers to the vessel “being engaged in fishing related activities in support of (IUU) fishing”.

Finally, there is no definition of IUU fishing. This omission means there is no clear basis for the authority to deny use of port and, compounded with all the other inconsistent and confusing provisions, would destroy any chance of a successful case and possibly invite some form of retribution from the ship-owner75.

74 “Legal and Capacity Assessment of Mauritius, Mozambique, Seychelles, Tanzania and Kenya of readiness to implement the IOTC Port State Measures Resolution 10/11, June 2011”, Ref: CU/PE1/UG/10/00875 “Legal and Capacity Assessment of Mauritius, Mozambique, Seychelles, Tanzania and Kenya of readiness to implement the IOTC Port State Measures Resolution 10/11, June 2011”, Ref: CU/PE1/UG/10/008

Seychelles


There needs to be clarity in several respects, for example:• Fishing and fishing related activities need to be clearly and separately defined, and consistent with the

PSMR;• Port State measures should clearly be applicable to both fishing and fishing related activities; • Port State measures should be applicable for IUU fishing, but this needs to be defined consistently

with international instruments and the area of application should be clear (i.e. areas beyond national jurisdiction);

• There must be a clear description of the uses of port that may be denied, which should be consistent with the PSMR (PSMR requires all uses to be denied: “landing, transshipping, packaging and processing of fish...” The draft Bill is far more restrictive and refers to denial of “landing, transshipping, packaging or processing of fish...”), otherwise the port State measures will not be harmonized or effective;

• Denial of the use of port should be based on the same standard of proof as required in the IOTC PSMR (this varies from “sufficient proof” to “clear grounds”, depending on whether there has been an inspection);

• The draft Bill must require denial of entry and use of port without an inspection under certain circumstances, consistent with paragraphs 7 and 9 of the IOTC PSMR;

• The draft Bill must require denial of use of port in the circumstances stated in the PSMR, it is not discretionary in some specified circumstances;

• The draft Bill should enable Seychelles to take action or measures under certain circumstances consistent with its national laws, IOTC measures and international law, rather than simply empower SFA to request the flag State to investigate the matter.

It however seems that the above assessment was based on an earlier draft of the Bill76 , and that some of these issues have in the mean time been addressed. In addition, this review does not allow for such a detailed analysis on specific aspects. Should further assistance to finalise the Bill be given to the Seychelles, the above very valuable comments should therefore be taken into account.

4.5.2. Evaluation

Also see the country specific table for the Seychelles in Annex 4.

Legal framework

The Fisheries Act of 1987 does not provide an adequate legal framework for MCS, but the 2011 Bill is a huge improvement in this regard. In certain places the Fisheries Bill however falls short of ensuring that all MCS aspects are addressed and that sufficient powers are granted to inspectors to enable them to detect non-compliance and take appropriate enforcement action,

The maximum penalties provided for in the 1987 Fisheries Act are between SR 5000 up to an amount of SR 50 000, depending on the offence (see section 24). These fines are clearly inadequate to serve as a deterrent. There is also no provision for imprisonment as a penalty option, bearing in mind that UNCLOS places certain limitations on such a possibility. The new set of offences and penalties in section Part XII of the 2011 Fisheries Bill are quite extensive and provide for penalties of up to USD 2 500 000, and a further provision for the increase of fines in certain circumstances in terms of section 57 and 58, which seems to rectify the situation.

76 E.g. looking at comments on the definition of fishing and related activities, and that the report refers to section 27, which is now section 45.


Legal framework

The Fisheries Act of 1987 does not provide an adequate legal framework for MCS, but the 2011 Bill is a huge improvement in this regard. In certain places the Fisheries Bill however falls short of ensuring that all MCS aspects are addressed and that sufficient powers are granted to inspectors to enable them to detect non-compliance and take appropriate enforcement action,

The maximum penalties provided for in the 1987 Fisheries Act are between SR 5000 up to an amount of SR 50 000, depending on the offence (see section 24). These fines are clearly inadequate to serve as a deterrent. There is also no provision for imprisonment as a penalty option, bearing in mind that UNCLOS places certain limitations on such a possibility. The new set of offences and penalties in section Part XII of the 2011 Fisheries Bill are quite extensive and provide for penalties of up to USD 2 500 000, and a further provision for the increase of fines in certain circumstances in terms of section 57 and 58, which seems to rectify the situation.


The Constitution of the Republic of Seychelles of 1993 provides in section 64 for the authorization and ratification of treaties, agreements or conventions by the President and that these instruments shall bind the Republic if ratified in the manner stipulated in the section.

As a general remark, and not specific to the Seychelles, the failure to adopt and implement regional agreements and standards, and the incorporation of relevant provisions into domestic legislation, where necessary, is governed by the legal process. The failure to do so is often rather a question of poor management, rather than an inadequate legal framework.

Section 48 and 67(1) of the Bill deals specifically with this issue, but the above discussion also shows that the Bill falls short of ensuring the implementation of regional agreements and standards in certain respects, and this should also be addressed during a review.


As a general remark, and not specific to the Seychelles, the lack of provisions on the sharing of information in legislation was highlighted as a problem area by the IOTC. Section 6 of the 2011 Fisheries Bill deals with the duty of the SFA regarding the collection of information, and section 6(5) provides for the Minister to enter into agreements on the exchange and format of information, including evidentiary information relating to breach of national fisheries legislation and international fisheries conservation and management measures. In practice some countries are reluctant to share information, and while the sharing of data and information does not necessarily require any legislative prescriptions, it might be expedient to incorporate obligations on this into domestic legislation in view of this situation. No intervention in terms of legal provisions is required in this case, and this provision can serve as a good example for other countries in the region.

The 2011 Fisheries Bill contains fairly detailed provisions on the admissibility of VMS and vessel monitoring device evidence, as well as photographic evidence (see sections 64-66 of the Bill).

Somalia




Immediate action:

Legal assistance with the review and refinement of the 2011 Bill is required in order to ensure that all problematic aspects mentioned above are addressed. As the Bill is still pending finalisation, it might be useful to ensure that all regulations published under the Act are compatible with the Bill (see section 67 of the Bill). Section 69(2) of the Bill contains a transitional provision providing that subsidiary legislation made under the Fisheries Act will stay in force.

Proposed further legal assistance: • Training of fishery inspectors in various aspects, including the subject of investigations was highlighted

as the most important issue to be addressed;• The drafting of a comprehensive set of SOPs and/or a manual for fisheries inspectors;• Training of the SFA legal advisors and prosecutors from the office of the Attorney general is required;• The drafting of a manual on the prosecution of fisheries offences for legal advisors and prosecutors;• Awareness programs for presiding officers and the compilation of a bench book for presiding officers; • Setting up of a national network for the enforcement of fisheries legislation;• Joining a regional network of prosecutors;• Joining a regional network of presiding officers;• Though not strictly speaking a legal issue, assistance with the full implementation of the general NPOA

IUU is a possible intervention.


4.6. Somalia


Fisheries legislation in Somalia is outdated and is no longer an effective tool for fisheries management. The ability to implement and enforce any fisheries legislation is another serious concern at present. The current Somali fisheries law dates from 1985 (Somali Fishery Law No. 23 of 30 November 1985). A Maritime Security Bill, which was intended to establish an EEZ, and which incorporates some IUU aspects, is currently being drafted. There is no national fisheries policy in Somalia, but the Government of Puntland, through the Ministry of Fisheries, Ports, Marine Transport and Marine Resources, in 2006 prepared a Marine Fisheries Policy and Strategy for their own coastline. Somalia is part of the ESA negotiating group for the Economic Partnership Agreements (EPA) with the European Union.

In Somalia, fisheries is the responsibility of the Ministry of Fisheries and Marine Resources (MoFMR) of the Transitional Federal Government (TFG). The semi-autonomous region of Puntland to the north has its own Ministry of Fisheries which co-ordinates fisheries management with the MoF of the Transitional Federal Government (TFG)77 .

77 http://acpfish2-eu.org/index.php?page=somalia&hl=en


In another source this is indicated as the Ministry of Fisheries, Ports and Sea Transport of Puntland, inter alia responsible for the control, conservation and protection of marine resources78.

Somalia is a member of the Southwest Indian Ocean Fisheries Commission, (SWIOFC)79 . It was reported as not being a member of the IOTC, but this position has changed as they have joined the IOTC in 201180.

The waters around Somalia are reported to be rife with illegal fishing due to the absence of a functioning government and lack of any coastal protection or enforcement on the part of the state. Due to the absence of a functioning government with maritime surveillance and enforcement agencies and capabilities, the country’s waters are essentially not policed. The Food and Agriculture Organisation of the United Nations (FAO) estimates that around 700 foreign fishing vessels are engaged in unlicensed fishing in Somali waters. IUU fishing vessels come from both within the region and outside it81. Some European vessels captured by Somali pirates, such as the Alakrana in October 2009, were reportedly involved in illegal fishing. Watchdog groups such as fishsubsidy.org confirmed this allegation. In Violence at Sea: Piracy in the Age of Global Terrorism, Peter Lehr of St Andrews University describes the situation as a “resources swap”, with Europeans and Asians poaching US$300 million in fish annually and Somalis, in return, taking US$100 million in ransoms82.

There is very little current information available on Somalia. Some of the principles and objectives of the Somalia Ministry Of Fisheries, Ports, and Marine Transport’s Fisheries/Marine Policy and Strategy of 2004 are as follows83:

• To develop a proper legislative system that regulates the use of the marine and coastal resources of Puntland, to promulgate such laws and regulations and to ensure enforcement of such laws and regulations at local, national and regional levels, and to specify fines and penalties;

• To promote the ratification and adoption of relevant and appropriate international conventions by the president of Puntland State via parliament;

• To foster co-operation with neighbouring countries concerning straddling and migratory stocks;• To implement a programme of surveillance compliance, to apprehend transgressors, and to lay

charges and submit these to the court. The information immediately below was taken from a January 2005 FAO report :The Ministry of Fisheries and Marine Resources (“MoFMR”) issues fishing licences for foreign fishing vessels, and established management measures as a condition for granting fishing licences. Conditions include reporting requirements, namely:

• On or prior to departure from the zone;• On commencement or cessation of fishing operations;• On or prior to entry into national ports;• Timely position reporting;• Regular catch and effort reporting; and• Submission of logbooks and catch reports at the end of each voyage and upon permit expiry.

78 http://www.puntlandchamber.com/view.php?id=8779 http://www.fao.org/fishery/rfb/swiofc/en80 Report of the IOTC Performance Review Panel: January 2009. Indian Ocean Tuna Commission.81“The Piracy-Illegal Fishing Nexus in the Western Indian Ocean”, Future Directions International, Strategic Analysis Paper, Jasmine Hughes, 10 February 2011: http://somfin.org/files/0/9/6/4/8/293199-284690/Piracy_IUU_relation.pdf82“The Piracy-Illegal Fishing Nexus in the Western Indian Ocean”, Future Directions International, Strategic Analysis Paper, Jasmine Hughes, 10 February 2011: http://somfin.org/files/0/9/6/4/8/293199-284690/Piracy_IUU_relation.pdf83 Feasibility Study for the Fishery Sector in Puntland 2005 - Consultant’s findings: Annex 7: Fisheries/Marine Policy and Strategy, DawladGoboleedka, The Government of Puntland, , Somalia Ministry Of Fisheries, Ports, and Marine Transport Fisheries /Marine Policy and Strategy, Final Draft, April 200484 http://www.fao.org/fi/oldsite/FCP/en/SOM/body.htm

Somalia


The information immediately below was taken from a January 2005 FAO report :The Ministry of Fisheries and Marine Resources (“MoFMR”) issues fishing licences for foreign fishing vessels, and established management measures as a condition for granting fishing licences. Conditions include reporting requirements, namely:

• On or prior to departure from the zone;• On commencement or cessation of fishing operations;• On or prior to entry into national ports;• Timely position reporting;• Regular catch and effort reporting; and• Submission of logbooks and catch reports at the end of each voyage and upon permit expiry.

Enforcement procedures for fishery laws and regulations and MCS requirements and procedures reflect the provisions of LOSC and the International Flag States Convention.

Furthermore, arrested vessels and their crews are to be released promptly on posting of reasonable bond or other security. Penalties include possible imprisonment for second offences (captains face a possible sentence of 3 to 10 years imprisonment). When foreign vessels are arrested or detained, the MoFMR promptly notifies the relevant Flag State. Fines imposed for illegal fishing by foreign vessels range from about US$ 100 to more than US$ 2 million. In addition to fines, the Somali courts are empowered to order forfeiture of the catch and fishing gear, and the vessel itself in the case of a second offence.

Somali MCS measures have however not recovered since the civil war of 1991, and regionally the mechanisms have not materialized due to lack of interest and disagreements among the Indian Ocean coastal states, distant-water fishing nations, and others with an interest in the matter85.

As far as the rather basic provisions, consisting of 17 articles on 3 pages, the Somali Fishery Law of 30 November 1985 is the principle legislation. It covers both marine and inland waters. The following references are of particular reference to MCS:

• Article 1 contains only 9 definitions, with many terms such as “fish”, used in article 5(3)), as well as “ship”, and “marine transport” not being defined. “[A]quatic animals are defined as all animals in sea nd inland water, and include oysters, crustaceans, plankton and algae.

• Article 5 contains three basic prohibitions:• No activities may be undertaken, or equipment used, which may cause damage to aquatic

animals;• No person may possess equipment which can cause damage to aquatic animals;• No person may sell or exchange fish or other aquatic animals.

• Article 6 provides that the Minister may declare closed seasons. The granting of licenses is regulated by article 7, but these provisions are not applicable to persons “not using marine transport”, a sector apparently unregulated. A register of such licenses must be maintained, containing certain details, including that of the “ship”, the number of the licence, the name of the ship and that the registered port must be “clearly written and shown on the ship”.

• Article 8 obliges persons who have a fishing licence to obey the legislation and submit catch eports. The provisions on “Control and Inspection” are very basic and contain only 3 subsections. These determine that “specialised agencies, the regional and district authorities or any other “authorised person may, with the prior approval of the Minister inspect or search any person conducting fishing activities”.

85 The information up to this paragraph from the FAO report.


Article 13 determines that the Somali Navy Force have the powers and responsibility to enforce of this law. A person, who violates the legislation, can be taken to the nearest port. As far as a ship crossing into the waters of another country is concerned, the article simply states that such a matter must then be discussed with the concerned authority “according to International Law”. It does not refer to the position with regard to “hot pursuit”.While not dealing with MCS per se, article 11, read with the definitions in article 1, provides that the Ministry must promote the development of traditional and “modern” fishing. Traditional fishing is defined as fishing with small boats in the coastal areas, whilst modern fishingmeans “fishing in the high seas using ships and modern technology such as trawlers”. The term “high seas” is not defined, and raises the question of how fishing in the EEZ is controlled.

• Article 12(1) provides for fines for the contravention of articles 8 and 10. These range between 1000 So.Sh. to 50 000 So.Sh. depending on the size of the boat and engine. For ships of more than 101 HP, the fine is between 1 700 000 – 4 000 000 So.Sh. In the case of repeat offenders, the Criminal Procedure Act apparently makes provision for an increased fine. What is of serious concern is that article 8 only applies to persons who have been granted licences, and article 10 describes the powers of inspection and search, but does not contain any prohibitions. No imprisonment is provided for as an alternative to the fine.

• Article 12(2) provides for imprisonment of between 3-10 years or a fine of So.Sh. 5 000 000 – 50 000 000 (or both) for the following offences:• Use of explosives;• Fishing or possessing materials or equipment in prohibited areas (although it is not clear

what materials or equipment and prohibited areas are referred to (possibly these may be contained in separate notices or regulations) – apparently the materials and equipment are those referred to in article 5)

• Fishing during closed periods;• Fishing “prohibited types of fish or other aquatic animals”;• Fishing with prohibited materials or equipment.

• A person who fails to submit the required reports can be punished with a fine of between So.Sh. 20 000 and 50 000So.Sh. Article 12(3), also seems to provide for a “catch all”penalty, making it applicable to any person “who fails… to fulfil the provisions of this law”.

• Article 12(4) stipulates that any person who fails to perform their duties and to fulfil the terms and conditions of a contract with the Ministry shall lose their license. One can assume that this will be done via an administrative process, but the Act does not specify this. If a person commits an offence under this law, the equipment, engine and other materials used in the offence may be forfeited in terms of article 14(1). Strangely this article only refers to forfeiture and not to seizure, whereas article 14(2), with relation to fish and other aquatic animals, only provides that these may “also” be seized, but is silent about forfeiture. Neither of these two provisions makes any reference to the seizure or forfeiture of a boat, ship or vessel.

• Whilst article 14(3) provides that offences under this law shall come under the competence of the National Security Court, article 15 seems to create an administrative penalty as an alternative measure, but is extremely vague. It only stipulates that unless “the offence constitutes a crime punishable with a more serious penalty, the Ministry shall discuss the matter with the authorities concerned”.

Somalia


Article 16 provides for the making of regulations, but it is unclear whether this is the set of regulations attached to the Goboleedka report86 as Annex 8 and dated April 2004, is proposed regulations, or regulations already promulgated87. In contrast to the Act itself, the regulations made under the Fisheries Law No.23, which are sited as the “Fisheries Regulations of Puntland State of Somalia”are much more detailed and extensive than the Act. Provisions of particular relevance to MCS activities are the following:

• It contains fairly extensive definitions;• Regulation 8 provides for fisheries data and information dissemination, and even provides for

harmonisation and exchange of information with other states;• Regulation 11 provides for the registration of fishing vessels and article 13 provides that all persons,

except those fishing for their own consumption, may only fish in “Puntland fishery waters” (a term unfortunately not clearly defined – see regulation 1) in terms of a license, and in accordance with terms and conditions of such a license;

• Regulation 14 prohibits foreign fishing vessels to fish without a license, and prescribes that the stowage of gear by non-licensed vessels andthat fishing without a license is an offence for both the master and the owner of the vessel;

• Regulation 15(2) deals with national fishing which, except for certain exemptions, is also prohibited without a license, thereby rectifying the possible gap in Act 23;

• Regulation 18 provides that Licenses must be kept on board and made available to an authorised officer on request;

• Regulation 26 on the obligations of licensed fishermen is almost identical to Article 8 of Act 23;• Regulation 27 makes provision for the Minister to appoint an authorised officer “for the purpose of this

Regulation” (note the difference in the provisions in Act 23 on this, and the note below on Article 30);• Regulation 28 establishes a Fisheries Advisory Council and prescribes its composition, but the

egulations are silent on the purpose and powers of the Council; • Regulation 29(1) prohibits the fishing of “endangered species” (a term not defined – the term that is

defined in Article/ Regulation? 1 is “protected marine species”, which is the title of Article/ Regulation 29);

• Regulation 29(2) provides that accidentally caught endangered species must be released;• Regulation 29(3) prohibits the taking and destruction of coral reefs, mangrove trees and shells;• Regulation 30 on “Control and Inspection” is almost identical to Article 10 in the Act, but refers to

“authorised persons” whereas Article 27 refers to “authorised officers”. • Regulation 31 rectifies, the lack of sufficient powers for inspectors in Act 23 to a certain degree, but

refers to “authorised inspectors”. From the context it would seem that “authorised officers”, “authorised persons” and “authorised inspectors” are used as synonyms. Article 31 does howevercontain wider powers of inspection, search and seizure, which are absent in the Act.

• Regulation 32 creates various offences (some of which overlap with offences in the Act) and Regulation 33 prescribes penalties. Imprisonment is not a sentencing option, but the penalties are defined in USD, and range between USD 200-5000 (penalties for small boats and dhows) to fines up to USD100 000 for a contravention of Article 31(1)(a)(i) and USD 50 000 for some other offences in Article 31. These are clearly incorrect references, as Article 31 does not prescribe any prohibitions and does not create any offences (it deals with the powers of authorised inspectors).

• Regulation 34 on the “Confiscation of Property” is almost identical to Article 14 of Act 23, except that it now includes a vessel as one of the objects that may be forfeited.

• It is not clear to what extent Article 33(4)(f) and 35 allow for compounding, payment of admission of guilt fine or an administrative penalty process.

86 See fn 99.

87 Even after consultations this position have not been clarified.


4.6.2. Evaluation


Legal Framework

It is clear from the above that the provisions in Act 23 of 1985 are insufficient with regard to the creation of offences and the powers of inspectors. This results in an inadequate legal framework for effective MCS, both for the enforcement of domestic legislation as well as the enforcement of regional requirements. Two aspects from the Act that are to be welcomed, are namely that imprisonment is a penalty option in certain cases and that article 12 of the Act creates a type of catch-all offence. Both these provisions are very valuable. Forfeiture of catch and gear, and in the case of a subsequent conviction, the vessel, was reported to be a possibility in terms of the legislation, but article 12 is silent on this.

It is not clear whether the Regulations are in force, but judging from the large number of mistakes found therein, it would seem that it is probably a proposed draft. The Regulations create more offences and provide for wider powers of inspectors, however due to the poor drafting, it will currently not contribute to a more effective legal framework. It might however serve as a good basis for a revision.

Another matter of concern is whether the vague and broadly worded article 16 in Act 23 of 1985 is sufficient to authorise the extent of the Regulations, as the Regulations often deal with similar subject matter, but contain much wider and more extensive provisions. Examples of this are the powers of inspection, search and seizure.


As far as the adoption of international and regional agreements are concerned, the following came to light on perusal of the relevant legislation:

• Article 10 of the Somaliland Constitution of 1960 entitled “Foreign Relations”, provides that the Republic of Somaliland shall observe all treaties and agreements entered into by the former state of Somalia with foreign countries or corporations, provided that these do not conflict with the interests and concerns of the Republic of Somaliland (it is not clear whether this is still in place).

• Article 69 of the Transitional Federal Charter of the Somali Republic provides that international laws shall be accepted and adopted subject to the legislative acts of Parliament.

• Article 11(1) of the transitional Constitution of Puntland Regional Government of 2001 provides for the maintenance of the international conventions that the Somali Republic convened with foreign governments, if such conventions are not contradictory to the interests of Puntland. The Constitution does not specify anything further on the adoption or ratification of the agreements.

It is unclear what the current status is regarding the above, but all of these constitutions do makesome form of provision for the adoption of international and regional agreements. There is currently however no reference to the implementation of regional agreements neither in the Act, nor in the Regulations. It has however been mentioned as a priority in terms of Somalia Ministry Of Fisheries, Ports, and Marine Transport’s Fisheries/Marine Policy and Strategy of 2004.

Somalia



Act 23 of 1985 is silent on regional cooperation and information sharing. The same applies to the Regulations, with the exception of Article 8, which provides for fisheries data and information

dissemination, and explicitly provides for harmonisation and exchange of information with other states. Article 10(3) in Act 23 and the parallel regulation 30(3) in the Regulations both refer to the application of international law where an offence is committed in Somali waters and the vessel then crosses the border into another state, however they are silent on other issues, such as article 111 of UNCLOS on hot pursuit which is not referred to.



Immediate action:

There is unfortunately insufficient information available to draw clear conclusions on detailed issues, and the state of the legislation is also unclear. The one general conclusion that can be drawn with confidence is that the legislative framework requires urgent attention if effective MCS on local and regional level is to be achieved.

Proposed further legal assistance: • Training of fishery inspectors in various aspects, including the subject of investigations was requested

during consultations.• The drafting of a comprehensive set of SOPs and/or a manual for fisheries inspectors;• Due to a lack of information it is difficult to evaluate the need for training and other assistance such

as a prosecution manual for legal advisors and prosecutors, or awareness programmes and a bench book for presiding officers.

• Setting up of a national network for the enforcement of fisheries legislation (it is however not clear if the political situation currently allows for this);

• Joining a regional network of prosecutors;• Joining a regional network of presiding officers.• Though not strictly speaking a legal issue, assistance with the drafting of a NPOA IUU is a possible

intervention• In addition, as Somalia only became a member of the IOTC this year, they will require assistance with

the incorporation and implementation of the resolutions.


The United Republic of Tanzania


4.7. The united republic of tanzania


There are five main pieces of Fisheries’ legislation in Tanzania. The reason for this is that the fishery sector is not a union matter and as a result, Mainland Tanzania and Tanzania Zanzibar each have their own specific pieces of legislation that regulate this sector. The Fisheries Act of 2003, which came into operation in 1st August 2005 is the main piece of fisheries legislation in Mainland Tanzania, and the Fisheries Act of 2010 is the main piece of legislation that governs fisheries in Zanzibar. There are two pieces of legislation that cover the entire United Republic of Tanzania and are therefore applicable in both sides of the union, these are namely the Territorial Sea and Exclusive Economic Zone Act of 1989 and the Deep Sea Fishing Authority Act of 1998 (note that this Act has undergone amendments by the Deep Sea Fishing Authority (Amendment) Act of 2007). The former Act declares the EEZ of the United Republic of Tanzania while the later establishes the Deep Sea Fishing Authority. These Acts are intended to assist Tanzania in regulating fishing activities in the territorial sea and the EEZ88 .

The Deep Sea Fishing Authority Act (CAP No. 388) Regulations of 2009 are the most relevant for port inspections and licensing of foreign fishing vessels. They were reported to be not yet in force in Zanzibar89 , but during consultations it was confirmed that that are in force. Fisheries matters were moved to the Ministry of Livestock and Fisheries Development in 2008. The Ministry’s work is concerned with fisheries within inland waters and the territorial sea, and the newly established Deep Sea Fishing Authority (DSFA) addresses foreign fishing in the EEZ. The DSFA brings together both the mainland Tanzanian and the Zanzibar fisheries authorities, which both provide personnel, and also get assistance from other enforcement entities.

Tanzania is party to the 1982 UN Convention and the 1995 UN Fish Stocks Agreement. A task force has been established to develop a Cabinet paper for accession to the FAO Port State Measures Agreement. Tanzania participates in several regional programmes and organizations including IOTC90 , SWIOFC91 , SWIOFP92 , SADC93 , IWC94 , ASCLME95 and the LVFO96 . Tanzania has a draft NPOA, which applies within the Exclusive Economic Zone (EEZ) of the United Republic of Tanzania and to fishers of all

88 Some of this information are from the “Enforcement Procedures Offences and Sanctions in Tanzania, Legal Assessment and Review” Working Paper No 42, February 2006 and additional information were sourced during the in country visits. Some information is from the “Legal and Capacity Assessment of Mauritius, Mozambique, Seychelles, Tanzania and Kenya of readiness to implement the IOTC Port State Measures Resolution 10/11, June 2011”, Ref: CU/PE1/UG/10/008, but that report refers to the Fisheries Act of 1970 and the Fisheries Act of 1988 (Zanzibar). This is apparently incorrect as the Fisheries Act of 2003 is in force in Mainland Tanzania, and the Fisheries Act of 2010 in Zanzibar.89 “Legal and Capacity Assessment of Mauritius, Mozambique, Seychelles, Tanzania and Kenya of readiness to implement the IOTC Port State Measures Resolution 10/11, June 2011”, Ref: CU/PE1/UG/10/00890 http://acpfish2-eu.org/index.php?page=eastern-africa-2&hl=en91 http://acpfish2-eu.org/index.php?page=eastern-africa-2&hl=en92 “Legal and Capacity Assessment of Mauritius, Mozambique, Seychelles, Tanzania and Kenya of readiness to implement the IOTC Port State Measures Resolution 10/11, June 2011”, Ref: CU/PE1/UG/10/00893 “Legal and Capacity Assessment of Mauritius, Mozambique, Seychelles, Tanzania and Kenya of readiness to implement the IOTC Port State Measures Resolution 10/11, June 2011”, Ref: CU/PE1/UG/10/00894 “Legal and Capacity Assessment of Mauritius, Mozambique, Seychelles, Tanzania and Kenya of readiness to implement the IOTC Port State Measures Resolution 10/11, June 2011”, Ref: CU/PE1/UG/10/00895 http://illegal-fishing.info/uploads/sifbrochureeng.pdf96 http://acpfish2-eu.org/index.php?page=eastern-africa-2&hl=en


types and nationalities within the EEZ. The draft NPOA-IUU contains a focused framework for the prevention and elimination of IUU fishing activity in the EEZ and details the range of measures and responsibilities necessary to facilitate this97 .

In 2006 it was reported that given the myriad of fisheries legislation in Tanzania and the fact that fisheries management falls under two distinct and independent departments, the Tanzanian fisheries legal regime is fragmented and provides contradictory sanctions especially with regard to the management of the EEZ. This will be corrected under the Deep Sea Fishing Authority, which will have jurisdiction and mandate over the EEZ and not the fisheries department on the two sides of the Union98 . This situation has however changed and the DSFA is now functional.

The following conclusions were reached in a recent academic study:99 The main gaps in the fisheries legislation are as follows, in the Fisheries Act of 2003, the wide range of regulations, such as the Minister’s power to make exemptions and reservations can be abused and consequently undermine the proper management of fisheries. Added to this, the jurisdiction scope of the fishery activities, resources conservation and management purposes of the Act are not well explained. The Zanzibar Fisheries Act provides weak penalties for the offence of using explosives in URT EEZ, which may result in many people using explosives because a fine is not a deterrent. The DSFA (2007) lacks a strong and explicit provision on the need to initiate plans for implementing international agreements on sustainable fishing. The Act does not include a collaborative system on how the authority collaborates with other institutions to implement the MCS, and furthermore, the officers of the institutions mentioned under the Act are not recognized under the Act as “Authorized Officers”. This can have a directly or indirect influence on management of fisheries resources. The DSFA lacks provisions on enforcement, and it is important that these provisions are included in order to ensure that an offender does not escape because of the lack of a legal basis for pursing the individual beyond national jurisdiction. There is no specific and clear provision on MCS, which is very important in management of marine resources in the EEZ.

The following comments from the June 2011 report:100

The 2009 Deep Sea Fishing Authority Regulations are the most relevant for port inspections and licensing of foreign fishing vessels. They are not yet in force in Zanzibar. The Regulations do not allow implementation of the PSMR. The DSFA Regulations identify categories of persons who have the designation of authorised officer (section 35) but they have no apparent authority under the Regulations. The only persons who are given compliance authority under the Regulations are inspectors and members of the Surveillance Unit, and their powers and authority could be strengthened to reflect best practices. Procedures for inspection of vessels are set out, but only in relation to pre-licensing and offloading. The criminal fisheries sanctions are largely inadequate to deter non-compliance. This is due to the fact that the fisheries legislation has not been amended to take into account factors such as inflation and depreciation of the Tanzanian currency on the one hand and the failure to take into account the severity of each different type of offence on the other. Even where they have been amended

97 Abstract from the NPOA-IUU for Tanzania http://www.mcs-sadc.org/Publications/NPOA%20IUU%20-%20Tanzania.pdf98 “Enforcement Procedures Offences and Sanctions in Tanzania, Legal Assessment and Review” Working Paper No 42, February 200699 “Analysis of Tanzania’s legislation in the context of the international law relating to the protection and preservation of endangered marine species” Gloria KaviaYona, Oceans and Law of the Sea , The United Nations-Nippon Foundation Fellowship Programme 2010 – 2011100 “Legal and Capacity Assessment of Mauritius, Mozambique, Seychelles, Tanzania and Kenya of readiness to implement the IOTC Port State Measures Resolution 10/11, June 2011”, Ref: CU/PE1/UG/10/008101It was already mentioned that they have been reported to be in force.



or newly enacted the inflation rate has reduced the severity of the fine in a very short time. As a result, it is currently seen by offenders as cheaper to violate the law than to comply with it. Again, the uncoordinated mandates of the fisheries departments in Mainland Tanzania and Tanzania Zanzibar have led to inaction and institutional rivalry. The need for cooperation and harmonization of the legislation cannot be overemphasised as the two sides share the same water bodies. Furthermore, the Ministers and directors of fisheries are given wide discretionary powers to exempt any person from compliance with the provisions of the existing legislation, powers that are largely not accompanied by a system of transparency and accountability and thus provide an avenue for corruption.

While the above comments should be taken into account, it was reported, and a perusal of the legislation seems to confirm this, that the DSFA Regulations are indeed in force, and these regulations also make provision for much stronger penalties (even up to 20 years imprisonment, see the discussion further below).

The principle legislation that governs mainland Tanzania is the Tanzania Mainland Fisheries Act of 2003. Part I of the Act contains preliminary provisions, including definitions, and part II deals with administration. Part III deals with development of the fishing industry, whilst part IV deals with aqua cultural development.

Part V is entitled management and control of the fishing industry, and contains sections 17- 23. • Section 17 deals with management and control measures;• Section 18 deals with beach management units;• Section 19 deals with the prohibition of foreign fishing in territorial waters;• Section 20 deals with licensing of foreign vessels;• Section 21 deals with certificate of registry;• Section 22 deals with the prohibition of certain activities without a license;• Section 23 deals with conservation of fisheries resources.

Part VI is entitled fish quality management and standards, and part VII s entitled financial provision, and sets out the Fisheries Development Fund, and the power to charge fees.

Part VII deals with enforcement, is divided into 10 sections, as set out below:• Section 31 deals with the Surveillance Unit;• Section 32 deals with the functions of the Unit;• Section 33 deals with the powers of the Unit;• Section 34 deals with the power to prosecute;• Section 35 deals with certificates of evidence;• Section 36 deals with the powers of search and seizure;• Section 37 deals with seizure of things used for commission of the offence;• Section 38 deals with forfeiture of things used for commission of the offence;• Section 39 deals with forfeiture upon conviction, and • Section 40 deals with the power to compound offences.

Part IX deals with offences and penalties, and this part is also divided into 10 sections, as set out below:• Section 41 deals with obstruction of officials;• Section 42 deals with indemnity;• Section 43 deals with the penalty for possessing and using explosives;• Section 44 deals with the penalty for using poison;• Section 45 deals with the penalty for using a foreign fishing vessel without a license;• Section 46 deals with the penalty for violating fish quality standards;• Section 47 deals with the penalty for other offences;


• Section 48 deals with abandoned vessels, gear, fish or fishery products;• Section 49 deals with rewards;• Section 50 deals with protection of informers.

Part X is entitled general provisions and concludes the act by dealing with regulations, exemptions and administrative provisions, as well as research information.

The principle legislation governing Zanzibar fisheries is the Fisheries Act of 2010. This recent act is divided into 6 parts, and is fairly short in comparison to the other legislation governing fisheries in Tanzania.

Part I of this act covers preliminary provisions, while part II deals with administration, and envisages the establishment of a Department. Part I defines a “fishing vessel” and “fishing”, but does not define “vessel”.

Part III is entitled development and control of the fishing industry, while part IV deals with licensing of fishing operations. Section 15 of part IV deals with the general conditions for licensing, and is divided into 8 sub sections which detail the process for licensing, which is governed principally by regulations. Section 15 allows the Minister to revoke or suspend a license issued under this act for failure to comply with the provisions of this act, or regulations made there under, or any condition of the license, or furthermore where such action is necessary for the proper management of fisheries. This section does not expressly make VMS a mandatory condition for a license.

Part V and VI are of direct relevance and importance for the purpose of this paper, as these parts deal with conservation measures and offences and penalties respectively.

Part V deals with conservation measures in 8 sections, and provides as follows:• Section 19 deals with the Marine Conservation Unit;• Section 20 deals with prohibited methods of fishing;• Section 21 deals with use of prohibited gear; • Section 22 deals with catching immature fish;• Section 23 deals with powers of authorised officers. These powers are wide and may be exercised

without a warrant. The lack of definitions of terms such as “premises” may be problematic;• Section 24 deals with seized fish that may be sold;• Section 25 provides that a person arrested is to be sent before court;• Section 26 deals with the release of a vessel;• Section 27 deals with forfeiture and destruction of prohibited gear.

Part VI deals with offences and penalties in 9 sections, which concludes the act, they provide as follows:• Section 28 creates an offence for fishing using explosive and noxious substances; however the

penalty provided is weak, being a fine or term of imprisonment not less than three months and not more than five years, or both such fine and imprisonment;

• Section 29 creates an offence and penalty relating to licenses, and again the penalty of a fine or term of imprisonment not less than three months and not more than two years is weak;

• Section 30(3) creates a general offence for non-compliance with any provision of the act, however once again the penalty provided is weak, and the above comments apply;

• Section 31 deals with penalties for wilful obstruction of an authorised officer. This is somewhat limited and does not include other related offences such as intimidation, and assault of such officer;

• Section 32 deals with payment of a fine by foreigners;



• Section 33 deals with exemptions, and provides that the Minister may exempt any person or organisation from any provision of this act or regulations made under the act, if it is in the public interest.;

• Section 34 deals with regulations, and provides a long list in subsection 34(1)(a)-(y) of the issues upon which the minister may make regulations;

• Section 35 deals with compounding of offences, whereby the Minister, again, is authorised to compound the offence by accepting a reasonable sum of money to compensate the damage caused;

• Section 36 deals with repeal and saving.

The Deep Sea Fishing Authority Act of 1998 is divided into 6 parts, of which only part V is of direct relevance in this context. Part I to IV deal with preliminary provisions, and the establishment of a Deep Sea Fishing Authority, the management of such authority, and financial provisions respectively. Part VI concludes the act with miscellaneous provisions that deal with appeals, regulations and other miscellaneous issues. In terms of preliminary provisions it should be noted that “vessel”, “fish” and “fishing” are not defined.

Part V is entitled offences and penalties, and comprises of three sections. Section 17 deals with the power to call for information and the penalty for refusal, while both section 18 and 19 deal with fishing contrary to this act, as well as general offences as follows:

• Section 18 provides that every person who carries out fishing activities in the EEZ contrary to this act or regulations made under this act commits an offence and upon conviction is liable to a fine of not less than one billion shillings or to imprisonment for a term of not less than 20 years. As discussed below compounding is now also included under section 18. The court may also order forfeiture of the vessel, structure, equipment or thing in connection to the offence committed.

• Section 19(a) to (e) creates an offence and penalty for various actions committed against authorised officers in 19(a) to (d), and subsection 19(e) provides a penalty for a general offence of contravention of any provision of the act for which no penalty is provided in the regulation102.

The Deep Sea Fishing Authority Act of 1998 is not very detailed, and in fact is focussed primarily on the establishment and management of the Deep Sea Fishing Authority. Section 23 concludes the act by providing that the Minister may make regulations on specific topics. However, many of the regulations published in terms of this section were not included in the section authorising the Minister to do so. One example being that the authorisation to make regulations on the powers of inspectors and officers does not appear in this section, however the regulations contain these powers as discussed below.

The Deep Sea Fishing Authority Amendment Act of 2007 does not alter the principle act in any major way with the exception of section 4, 6 and 14, which are of relevance. Section 4 of the Amendment Act amends section 4(4) of the principal act by inserting new paragraphs (g) and (h), which provide that the functions of the Deep Sea Fishing Authority shall be to safeguard the EEZ environment, and to implement any agreement reached at regional and other international levels to which the United Republic is a party. Section 6 amends section 7 of the principal act such that the Director General shall be responsible, for monitoring and surveillance in the EEZ beyond 12 nautical miles and the territorial sea. Section 7 also amends section 6 in order to provide the Director General the power to revoke licenses in cases where the principal act has been breached. Section 14(2) of the Amendment act amends section 18 of the principle act by substituting section 18 to make a new 18(1), and adding subsections (2) and (3), such that section 18(2) provides for compounding of the offence, by accepting a sum of money, and the new subsection 18(3) provides that the sum collected shall be remitted to the treasury.

102 See however the provision in regulation 71 discussed further below.


The Deep Sea Fishing Authority Regulations of 2009, Government Notice No. 48 published in 2009, and made in terms of section 23 of the principle act is divided into eleven parts. Part I sets out preliminary provisions while part II deals with licensing of fishing operations. In terms of preliminary provisions again it should be noted that a “vessel” is not defined. A “foreign fishing vessel” is also not defined, and although this is defined in the act, as discussed above, there is no provision in the regulations that links the definitions in the act to the regulations. Lastly, “fishing” is not defined in the regulations, nor in the Act.

Of relevance in part II are the following:• Regulation 6, which provides for the following licenses, namely licenses for foreign fishing vessels, local

fishing vessels, and special licenses; • Regulation 10 provides for licensing conditions, one of which is that the vessel is linked to a VMS

installed in the office of the Authority;• Regulation 13 provides for surrender of license;• Regulation 14 deals with inspection of fishing vessels;• Regulation 15 deals with registering of licenses, and provides that a register shall be kept and maintained

by the Director General in respect of each type of license. No provision is made for sharing this information however;

• Regulation 16 deals with suspension and revocation of licenses. This administrative tool is provided to the Director General, where the holder of a license contravenes the conditions of the license, or has furnished false or incomplete information in the application for the license, or has contravened the act, or importantly, contravenes the fisheries management measures set out by a regional organisation, bilateral arrangement or international convention to which the United Republic is a party. In these circumstances the Director General may require the holder to show good cause as to why the license should not be revoked or suspended within 7 days, and after such time he may suspend, revoke, or allow the licensee to proceed under the terms and conditions of the license.

Part III deals with management of fishery resources and protection of the marine environment. Of relevance in this part is regulation 26, which provides for information sharing, however this is not a mandatory provision, and merely provides that the Director may prepare fisheries statistics and vessels information and submit it to the FAO of the UN, and other bilateral agreements, regional or international organisations which the United Republic is a part.

Part V deals with quality management programme in one section, and part V, which is of more direct relevance, provides for MCS. All of the sections in this part are set out below, as they are of particular reference to MCS:

• Regulation 28 provides for a Vessel Monitoring System. Regulation 28(1) provides that a fishing vessel licensed under these regulations shall be equipped with an Automatic Location Communicator linked to the vessel monitoring system, capable of transmitting messages automatically to a land based vessel monitoring operations centre, to allow continuous monitoring of the vessel, and as it is a condition for licensing, non-compliance is an offence as discussed below;

• Regulation 29 provides for Vessel Monitoring Operation centre, equipped with receivers and other equipment that will receive and record information transmitted from all fishing vessels by the Automatic Location Communicator’s approved under the regulations;

• Regulation 30 provides for confidentiality of VMS information. Sub regulations 30(1)(a)-(e) provide for exceptions to confidentiality, and one such exception contained in 30(1)(c) is that such information may be granted to a person who is empowered to ensure compliance of the United Republic with the obligations under international law. This is seemingly the only provision that relates to information sharing;

• Regulation 31 provides for a Surveillance Unit, which shall consist of enforcement officers. This Unit



is established within the authority;• Regulation 32(1) provides that the functions of the Unit shall be the protection of the fishery resources

and marine environment against illegal, unreported and unregulated fishing in the EEZ, and general enforcement of the act. Regulation 32(3)(a)-(g) sets out the powers and functions of the Unit. These powers are granted to enforcement officers, and they are generally authorised to cause a vessel to stop and to board the vessel and require a captain or crewmember to produce information and thereafter order the captain to sail to port. Regulation 32(d) provides that the members of the Surveillance Unit shall be able to exercise all the powers of authorised officers once on board the vessel (the term “authorised officers” \is not defined in the regulations, but is defined in the Act). “Authorised officials” are defined in the act as officers of the authority, fisheries officers, members of the police force, and defence force, customs and any other person approved by the minister. However, the Act does not specifically set out the powers of these officers, their powers will be set out in other legislation. ”Authorised officers” are also designated in terms of regulation 35(a)-(g), which includes all the mentioned persons that are referred to in the definition of the act, and others that were not included.

• Regulation 33 provides for fisheries inspectors. Regulation 33(2)(a)-(f) provides wide powers for these inspectors, including the power to interrogate in sub regulation 33(2)(d). However, it is unclear whether a warrant is required in certain circumstances and there is no reference to the power to arrest.

• Regulation 34 provides for fishery observers, and their powers are set out in 34(2)(a)-(e). These powers are limited to observation and do not include powers such as search and seizure, although added powers may be granted to them by the minister in terms of sub regulation 34(2)(e);

• Regulation 35 provides for designation of authorised officers as discussed above;• Regulation 36 provides for pre-licensing inspection procedures;• Regulation 37 provides for off-loading inspection procedures, which basically provides for verification

of authorisations for fishing and related activities;• Regulation 38 provides for sea inspection procedures;• Regulation 39 provides for stowage of fishing gear. A captain shall in terms of this regulation ensure

that all fishing gear cannot be used in fishing by securing and covering it, whilst in an unauthorised fishing area or time in the Republic;

• Regulation 40 provides for logbooks, the requirements as set out are fairly detailed and stringent in terms of the information that should be recorded on a daily basis;

• Regulation 41 provides for radio call signs;• Regulation 42 provides for hot pursuit or long arm jurisdiction. According to this regulation, both

fisheries inspectors and authorised officers have the power to pursue a vessel beyond the waters of the United Republic based on evidence from numerous specified sources, including VMS. Regulation 42(2) provides that a fishery inspector or authorised officer shall take into consideration relevant bilateral, regional or international instruments to which the Republic is party to in the exercise of this right. This regulation incorporates UNCLOS article 111.

• According to 42(4), a fishing vessel that violates the law of another state and flees to the Republic shall be arrested and charged according to the provisions of the act or these regulations or any other written law, or handed over to the where the offence was committed.

• Regulation 43 provides that where a person is in the Republic, and undertakes certain specified illegal acts related to fishing that are contrary to the laws of another state, they shall be arrested and handed over the he state where the offence was committed. Regulation 43(2) provides that any fish found onboard a fishing vessel within the EEZ shall be presumed to have been taken within the EEZ of the Republic by such vessel.


Part VI provides for administration of the authority, and is divided into 8 regulations that detail with the administration of the authority, and Part VII deals with financial provisions. Part VIII deals with appeals, in regulation 60. Part IX deals with capacity building, awareness and research, in regulations 61 to 64.

Part X deals with offences and penalties in regulations 65 to 71, which are set out below:• Regulation 65 deals with falsification of documents; • Regulation 66 deals with possession of shark fins without the carcass; • Regulation 67 deals with offences relating to fishing without a license, and forfeiture is included. The

penalty provided for such an offence is twenty years, and it is unclear whether this is a maximum term or whether a terms of less than twenty years may be imposed;

• Regulation 68 deals with offences relating to contravention of licensing conditions, however no provision is made for forfeiture for this offence. The penalty provided is a fine or imprisonment for a period of “not less than” 20 years, which seems to be an error, and was intended perhaps to rather refer to a maximum term of twenty years, given the fact that there is an option of a fine;

• Regulation 69 deals with obstruction of inspectors and observers;• Regulation 70 deals with offences relating to pollution;• Regulation 71 deals with general penalties, and provides a general penalty where no specific penalty

has been provided for a specific offence under these regulations. While this regulation does not create a general offence for non-compliance with any other regulation not specifically mentioned in Part X, section 18 of the Deep Sea Fishing Authority Actprovides than non-compliance with the act and regulations is an offence.

• The general penalty provided in regulation 71 allows for a fine of not less than one million shillings or for imprisonment of not exceeding 2 years.

Part XI deals with general provisions, which are divided into 5 regulations from regulation 72 to regulation 76. Regulation 75 deals with access to information, which is relevant for these purposes. Regulation 75 provides that any member of the public may, on showing reasonable cause, and on payment of a fee set out in the Second Schedule of the regulations access entries from the registers.

4.7.2. Evaluation

Also see the country specific table for Tanzania in Annex 4.

Legal Framework

Based on the above discussion as well as consultations with various officials from Tanzania, the Fisheries Act of 2003, which applies to Mainland Tanzania, provides a basic legal framework, but is in need of a revision and update. The Fisheries Act of 2010, which regulates artisanal and small-scale fishing in Zanzibar has just recently come into operation and no intervention is required. The Deep Sea Fishing Authority Act of 1998, as amended in 2007, and the Deep Sea Fishing Authority Regulations of 2009, should be revised and strengthened.


Neither the Constitution of Tanzania of 1977, nor the Constitution of Zanzibar seems to make reference to the subject of recognition of international treaties. There does however not seem to be a problem in practice.



The Deep Sea Fishing Authority Act of 1998, as amended in 2007, and the Deep Sea Fishing Authority Regulations of 2009, should be revised and strengthened with regard to additional provisions required to be able to effectively implement the IOTC resolutions and other regional agreements and obligations.


While, as a general remark, some countries are reluctant to share information, and while the sharing of data and information does not necessarily require any legislative prescriptions, it might be expedient to incorporate obligations on this into domestic legislation in view of this situation. A good example of such a provision is to be found in section 6 of the 2011 Seychelles Fisheries Bill.



Immediate action:

No immediate action is required.

Proposed further legal assistance: • The Fisheries Act of 2003, applying to Mainland Tanzania, is in need of a revision and update;• The Deep Sea Fishing Authority Act of 1998, and the Deep Sea Fishing Authority Regulations of 2009,

should be revised and strengthened;• Training of fishery inspectors in various aspects, including the subject of investigations (this should

include other agencies which plays a supportive role, such as the police, Navy and Coastguard); • The drafting of a comprehensive set of SOPs and/or a manual for fisheries inspectors;• Training of the legal advisors and prosecutors from the office of the Director of Public Prosecutions is

required. As they are in the process of replacing police prosecutors with graduated prosecutors from the DPP, it might be unnecessary to include the police in the training effort, although it is not clear when this process will be finalised.

• The drafting of a manual on the prosecution of fisheries offences for legal officers and prosecutors (including police prosecutors);

• Awareness programs for presiding officers and the compilation of a bench book for presiding officers (see the comments below);

• Setting up of a national network for the enforcement of fisheries legislation;• Joining a regional network of prosecutors;• Joining a regional network of presiding officers.• Though not strictly speaking a legal issue, assistance with the finalisation of the draft NPOA IUU is a

possible intervention that was requested.


Mainland Tanzania indicated that they are implementing an awareness program with magistrates, in cooperation with various government partners (including the Ministry of Justice, DPP and Police), as well as


NGOs. These workshops are aimed at creating awareness on the importance of the fisheries sector, which will take place in the three coastal regions. The need for these workshops, as well as follow-up workshops was identified based on the low conviction rate. In addition, due to the prosecutor system at local level, and problems with poor preparation of cases, police officials will also receive training. This is an excellent example of the type of the awareness training that is recommended for all countries, and support for this program can be considered.

Previously regional training courses were presented via Mbegani under the SADC-EU project (one of the institutions reported that a total of 49 inspectors from both Mainland and Zanzibar were trained during this period). Mbegani FDC currently presents various relevant courses such as a national enforcement course, a junior and senior inspectors course, a sea fishery inspectors course etc. The one aspect that is not included in the Mbegani program is a course on investigation of fisheries offences. Mbegani also has all the necessary facilities to act as a possible training venue.

Conclusions and Recommendations


5. CONCLUSIONS AND RECOMMENDATIONS

5.1. Legal barriers to achieving the desired end state of mcs in the region

This review should be read with the two simultaneous reviews that took place at the time of drafting this review, the one on the state of MCS and the other on governance. The overall impression when these three aspects are consideredholistically is that while there are clearly legal barriers and challenges present, and in some cases these should be addressed urgently, it is rather the state of MCS and lack of proper governance that is a hindrance to effective MCS and control of IUU fishing. Currently, either due to a lack of resources or other hindrances, the MCS effort does not result in many transgressors being brought to book, which this is especially true in the industrial fishing sector. Also for various reasons, one of which is that many of the countries reviewed use the compounding system, not many of the serious matters result in prosecution. The reason for this is that, generally, the transgressors also choose to follow the compounding route as a faster and more effective way of dealing with such matters. Because so few of the more serious cases land up in court, the legislation as well as the admissibility of evidence gathered, are not often challenged.

As MCS efforts become more effective and good governance increases, more and more of these cases will result in prosecution, especially in light of the heavier penalties that are in the process of being incorporated via amendments, or introduced via new acts. Is it at this stage that one can expect transgressors to increasingly attack the validity of legislation, and challenge the admissibility of evidence.

Similarly, where the legislative framework does not make provision for sufficiently wide and extensive powers to fisheries inspectors, or fails to incorporate the provisions of regional agreements, the fisheries inspectors might have to look on powerlessly while IUU fishing and related activities continue.

Some of the most serious legal barriers and challenges that were identified:• Lack of incorporation of the provisions of regional agreements into domestic legislation, where

required;• Insufficient powers granted to fisheries inspectors;• Inadequate penalty provisions;• Insufficient powers to courts to forfeit vessels;• Lack of evidentiary provisions on the admissibility of VMS and other electronically generated evidence;

Some other provisions that are sometimes lacking, and could improve the effectiveness of MCS provisions are:

• Provisions on regional cooperation and information sharing;• Harmonisation of legislation on regional level, taking into account that this has certain limitations;• The incorporation of a catch-all offence;• The introduction of a Lacey offence in the legislation (which is quite a simple and effective way of

improving regional harmonisation). Related issues that require attention:

• Some fisheries inspectors only have a basic qualification, while other countries employ only graduated officials. Irrespective of the background of these officials, only a few have the capacity to undertake a thorough investigation;


• Legal officers and prosecutors require training and support in the prosecution of fisheries related offences;

• Presiding officers often lack awareness of the importance of the fisheries sector;• Only two of the seven countries that were the subject of this study had an NPOA IUU (while this is

not strictly speaking a legal aspect, a NPOA also contains a review of the legal framework, and can be used as a helpful tool to identify areas that should be improved)

As far as the adoption, incorporation and implementation of the IOTC resolutions are concerned, the following comments were received:

• The IOTC process is still not engrained in the members. Many members are under the impression that the secretariat/IOTC must implement the agreement, and states consequently fail to implement it. It seems there is a lack of understanding regarding the implications of adopting resolutions;

• Members will easily agree to resolutions, but then not implement them. Members may enter a reservation (and have 90 days to do it), but do not use the mechanism;

• Members do not take action against other members that do not adhere;• One of the main gaps in legislation is inadequate provision for inspections at port and the lack of

provisions on the sharing of information;• National legislation should be revised in tandem with resolutions that come into force, and an annual or

regular revision of national legislation is necessary to ensure that national legislation can accommodate the resolutions;

• Members agree to the IOTC PSMR, but then incorrectlyassume it will only become binding when FAO-PSMA comes into effect;

• The IOTC resolutions are not “user friendly” and should be consolidated and arranged according to the subject matter. With the introduction of new resolutions, older ones become obsolete, but are not always repealed. There are also numerous inconsistencies in the resolutions.

This review has the purpose of identifying legal barriers and challenges, and therefore, to a large degree, focuses on what is lacking. It has however also uncovered many positive aspects:

• Many of the countries either have introduced more comprehensive legislation recently, are in the process of updating or reviewing legislation, and quite a few have recently introduced new Bills;

• Most of the above makes provision for more comprehensive powers of inspectors, higher penalties and the admissibility of VMS and other evidence, to name but a few aspects;

• Training courses and other initiatives such as those presented by Mbegani Fisheries College is ongoing;• In two of the countries that were visited, there was a close and good working relationship between

the inspectorate and the prosecution authority;• Some countries have started initiatives to increase awareness amongst presiding officers.• The above is in no way meant to be an exhaustive list, but is simply intended to illustrate some of the

positive developments.



5.2. Evaluationofareasrequiringattentionandspecificrecommendations on actions and assistance required

The country specific chapters above, read with the country tables in Annex 4, provides country specific evaluations as well as recommendations of both immediate, or at least urgent, as well as medium or long term, interventions. Below follows a consolidation of these proposals, as well as regional interventions required.

Legal Framework:

Almost all the countries examined require some form of assistance, but the degree of assistance will depend on the status of the legislation in each country. It is proposed that two international short-term experts should be appointed to assist the countries. The experts should have the required background to deal with the different approaches in the legal systems of the countries. In addition, a legal expert from each of these countries with an in-depth knowledge of the domestic fisheries legislation and industry should be appointed to work closely with the international expert. It is proposed that the international experts should firstly focus on the individual countries with the assistance of the country expert, and then collaborate closely in an attempt to harmonise the legislation as far as is possible. The issue of the harmonisation of maximum penalties should receive priority.

The specific assistance required per country is as follows: • Comoros: The drafting of the necessary implementing should receive priority. • Somalia: Urgently requires a revision of all fisheries legislation• Seychelles: The 2011 Bill is extensive and but assistance to finalise, refine and strengthen it, will be

valuable, and will also help to ensure harmonisation with the other countries in the region • Tanzania & Zanzibar: Mainland Tanzania Fisheries Legislation requires revision. The Zanzibar Fisheries

Legislation of 2010 does not require any intervention.• Deep Sea Fishing Authority: Although fairly new, revision and strengthening of the provisions is

required. • Kenya: The 2011 Bill is extensive, but requires strengthening of the MCS provisions and further

refinement.• Mauritius: Assistance will be required with the review of the Act• Madagascar: A Bill dating from 2007 have been drafted, but has still not been enacted. Madagascar

should be provided with support to finalise and update the draft Bill.

Where Bills are finalised and promulgated as Acts, such countries might also require assistance with the drafting of regulations.

As far as immediate action is required, both Somalia and the Comoros require urgent assistance. As some of the other countries already have draft Bills, which could be finalised in the near future, such assistance must also be seen as urgent. These countries are namely Seychelles, Kenya and Madagascar.

Please see Annex 5 for a more detailed explanation of aspects requiring attention.


NPOA-IUU:

Although not strictly speaking part of the legal framework, the following countries require assistance with the drafting of a national NPOA-IUU:

• Comoros• Somalia• Tanzania & Zanzibar (still in draft form)• Kenya (commenced with a draft)• Madagascar (still in draft form)

Inspectors:

Training on all aspects, but as far as the legal component is concerned;the training must also focus on the legislation (this will be especially valuable where new acts or implementing texts come in place). The training should focus on:

• the powers of fishery inspectors (inspection, search, seize and arrest);• the offences created by the legislation;• evidentiary provisions in the legislation;• basic investigation techniques (crime scene management; gathering of evidence; pocket books and

statements; presentation of evidence)

A manual, covering the same aspects, was also identified as a need, as was the need for a comprehensive set of SOPs. This was identified as a need in all countries.

Please see Annex 5 for a more detailed explanation of aspects that should be covered during training and included in a manual, as well as a list of SOPs required (please note that this focuses on legal aspects, and that additional SOPs on other operational MCS matters are also required).

Prosecutors:

Training on the prosecution of fisheries offences is required for prosecutors as well as legal officers of fisheries departments or the relevant organ of state assisting with prosecution and other enforcement action.

The training of prosecutors is a need in all the countries with the exception of Madagascar and Comoros, as these two countries utilise private lawyers to conduct prosecutions. The legal officers attached to the fisheries department or other organs of state, who often assist with investigations and prosecutions, should of course be included.

The setting up of a national enforcement forum, which combines the prosecuting authority, fisheries department and other relevant role players in the investigation and prosecution of fisheries offences is a model that has worked well in other countries103 , and this option should be discussed by the authorities in the various countries. It is noted under this heading because the initiative should come from the prosecuting authority in the country. The setting up a regional network of prosecutors to share experiences, expertise and enhance co-operation mayalso prove to be very helpful. This does not necessarily imply meeting regularly, but rather the regular sharing of information and ideas through e.g. the electronic media.

103 In South Africa both divisional (roughly following provincial borders) and a national forum has been created. Some of the divisional forums have

existed for the last few years and have proved to be invaluable in enhancing co-operation between enforcement officials, investigators and prosecutors.



This idea can be further explored and discussed at the proposed training sessions with prosecutors.

Please see Annex 5 for a more detailed explanation of aspects that should be covered during such training, and should also be included in a guide to the prosecution of fisheries offences.

Inspectors and Prosecutors:

It is strongly suggested that the prosecution and inspectorate training courses run parallel and that the two groups are combined for a day or two. There are various reasons for this suggestion:

• The case studies will be relevant to, and valuable for, both groups;• The two groups need to discuss the idea of a national fisheries crime forum and make a joint decision; • An inspector’s/investigator’s course should contain a practical exercise during which their skills are

tested and evaluated. This will normally be done via the acting out of a scenario where such officials must take the necessary action, gather evidence, compile a case docket/file and present their case in a mock court. It is ideal in such circumstances to have the prosecutors present. They can assist in the evaluation and debriefing of the inspectors, and can play the necessary roles during the mock court session;

• This will also serve to create a better understanding of each other’s role and a closer relationship between the inspectorate and the prosecution team.

PresidingOfficers:

Awareness training for presiding officers (magistrates and judges) is of utmost importance. This is a need in all the countries, and the introduction of abenchbook, simply containing all the relevant fisheries legislation, will also be valuable.

The setting up a regional network of presiding officers to share experiences and expertise may prove to be very helpful. It will also contribute to the harmonisation of penalties and sentences in the region. This does not necessarily imply meeting regularly, but rather the regular sharing of information and ideas through e.g. the electronic media. This idea can be further explored and discussed at the proposed awareness training sessions.

IOTC Resolutions:

Assistance with the revision of the IOTC resolutions and the creation of a compendium of resolutions and recommendations is required. Additional assistance to member countries on the integration and implementation of the resolutions would be extremely valuable. The consultants assisting with the finalisation or redrafting of legislation could possibly fulfil this role.

Case-specificInvestigationandProsecutionSupport

Case-specific support in serious cases, especially those committed by foreign vessels, wouldbe extremely valuable. This would include assistance with the investigation as well as the prosecution of such cases. Such assistance would have a twofold purpose: it would increase the chance of success, but as the support team would work closely with the investigator and prosecutor in the case, it would also empower the investigator and prosecutor, and wouldmake a large contribution to establish expertise in the country itself.


5.3. In conclusion

The taking of effective enforcement action, especially criminal prosecution is dependent upon an efficient, experienced and trained inspectorate, that have the necessary powers in terms of the legislation to take enforcement action. A successful case relies on the gathering of sufficient, admissible evidence. Even where the compounding process is followed, the persuasive value of such evidence to enter into an agreement should not be underestimated.

It is for this reason that the legal review not only investigated whether the legislative framework is adequate, but also looked at the ability of fishery inspectors to prepare a case for court. Without this basis, a successful prosecution is unlikely. The recommendations have therefore included the following elements:

• Revision of the legislation to ensure effective powers for fishery inspectors;• Training of fishery inspectors, including training on investigative techniques;• A manual for inspectors (it can be based on, or serve as, the training material).

In addition, the drafting of a comprehensive set of SOPs was proposed. Not only do SOPs assist inspectors in effectively performing their tasks, but they also provide binding prescriptions104.

Effective prosecution of fisheries offences of course also requires a solid legislative framework, and evidentiary provisions on the admissibility of VMS and other similar evidence is necessary to assist the prosecutor in proving the case. The need for the training of prosecutors, and a manual on such prosecutions, is clear from the review. It was also suggested that via joint training, the creation of a national forum for the enforcement of fisheries offences and case-specific support in investigations and prosecutions would contribute to more effective MCS.

To a large extent, harmonisation with regard to sanctions can be achieved, even within the diverse legal frameworks, in countries that have similar offences with similar prescribed penalties. This solution in itself is however still inadequate, as in most cases the discretion of the amount of the fine is left up to the court, or is fixed by way of the compounding process. Joint programmes or workshops for the judiciary can however ensure a more uniform approach to quantifying fines in the region. Because fines act as a deterrent to would-be transgressors, large discrepancies between the countries would lead to higher levels of IUU in countries with a more lenient approach. The same would apply to the compounding of offences.

It is lastly submitted that the proposals made in this report will serve to empower the individual countries as well as the region, and if they are efficiently executed, will have a sustainable positive impact thereon.

104 This has an additional advantage that failure to follow these can also lead to disciplinary action if required.


ANNEX


Annexe 1 : Terms of référence

Assignment Name Comprehensive review the legal frameworks, including fisheries base laws, where they pertain to MCS and RFMO agreed actions, in the ESA-IO region, to determine areas to be updated and harmonized and identify barriers implementation of effective MCS

Mission Schedule Number Output 3.M.1.1NumberCoordinator Marcel Kroese, Coordinator of Module 3.M.3Technical Verifier PMUBackground to assignment MCS is a collection of activities with the intent to support fisheries

management. MCS takes place primarily within a legal and policy framework. In brief, MCS strives to detect, deter and prevent IUU fishing from taking place, monitors the activity of the resource users and controls/verifies the actions for resource users.

To enable MCS actions, a range of tools is deployed which range from technologically advanced solutions such as vessel monitoring systems (VMS), to deployment of observers, to simple robust hardware such as a net gauge to measure the mesh size of nets. Increasingly more attention is paid the unregulated and unreported components of the fisheries as international measures are implemented. Thus aspects such as catch reporting and accuracy of data, as well as converting unregulated fisheries, in many cases artisanal fisheries, to a regulated framework, are gaining increasing importance.

The development and implementation of MCS has considerably advanced in the last few years in a number of countries in the ESA-IO region. Despite most countries having implemented MCS for domestic fisheries, these vary hugely in terms of scale, capacity and regional impact. Support from the EU, SADC and others have strengthened the MCS capacity in several counties, including at the regional level. Unfortunately, these programmes have fallen short in fully sharing regional resources and implementing a truly regional MCS programme.

The desired “end state” of the Implementation of the Regional Fisheries Strategy (IRFS) is a bold expectation that will require nothing less than the fully integrated and harmonised regional MCS system. This envisioned MCS system will address IUU fishing in a comprehensive manner by firstly:

IOC IRFS ProgrammeEDF 10

AGROTEC CONSORTIUM

Annex 1


implementing harmonized system of fisheries data collection and dissemination on a national and regional level for transboundary stocks and especially where it concerns the collection of fisheries data to be submitted to RFMOs. Secondly, it will require a system of data sharing on a regional level of relevant MCS data that can be used by a Regional MCS Data and Operational centre (RMDOC). Thirdly, the enhancement of human resources in the ESA-IO region to a dedicated fully trained, professional fisheries inspectorate. Fourthly, the development of a national and regional response to IUU fishing through, inter alia joint patrols operations at sea. There are currently several projects on parallel paths to the IRFS. Some of these include the Regional Component 6 of the SWIOFP project, which is also geared towards regionalisation of MCS activities, as indeed is the South West Indian Ocean Fisheries Commission (SWIOFC). Similarly, the ACPFISH II project share many objectives of the IRFS, and will assist countries in the region with implementation of their national plans of action (NPOAs) and updating their framework legislation.

Implementation of the MCS componentIn order to understand theposition of this project in the MCS component, a brief outline of the MCS component is provided.

Part 1- Assessment and analyses

The implementation of the MCS component of the IRFS will take place in several parts designed to give maximum use of the available time. Part 1 is the analyses and assessment. The first set of activities to be undertaken will be “gaps analysis”, since duplication of components undertaken by other programs is to be avoided. In stead our focus will be on harmonizing with these programs and seeking to implement the recommendations the other programs, thereby avoiding duplications and maximising complementarities.

Part 2 - Implementation and strengthening national and regional capacity Regional coordination and Joint patrols

With the envisioned expansion of the joint patrol concept in the greater ESA-IO region, the existing multilateral requirement for harmonised action has already forged contact on an operational and political level between countries. It is planned that through cooperation and expansion of the IOC MCS Regional Joint Patrol Project to include the ESA-IO region, as well as othereligible countries, additional multilateral joint patrols in the region will be harmonized and undertaken.


Information technology and data

It is also noted that traditionally MCS operation to combat Illegal, Unrported and Unregulated fisheries in the ESA-IO region has focussed mainly on industrial fisheries. However, the region has not progressed to more comprehensive regional measures such as a harmonisation of licensing requirements. This has been a significant step in other RFMO and regions with common dependence on transboundary resources, to initiate a common regional standards for licensing vessels and sharing information. In addition, the focus on industrial fisheries may be a risk to the sustainability of regional resources as artisanal fisheries may well reach similar, or larger total landings as larger fleets. These small scale fisheries will also be included on the overall MCS approach, in particular to address the Unregulated and Unreported component of IUU fishing. Close collaboration with SWIOFP, SWIOFC and SADC will be forged to address the issue. Risk management procedures will also be investigated to determine if counties are indeed responding to the correct risks to their fisheries.

Fisheries data lies at the heart of any successful development and management strategy. In particular it relates to the methodology used by individual countries in their collation and reporting to FAO and the IOTC. It will be a task of the IRFS strategy to ensure that the FAO data are fully compatible and harmonised. Ultimately the “Unreported” component of fisheries data are a fundamental part of the actions to combat IUU fishing and it is the intention to enable countries to compile such date to ultimately enable forensic accounting investigations.

Similarly, the use of VMS systems relates to both MCS and IUU fishing. While a number of countries have established their own VMS facilities, only SADC countries have signed a protocol on data exchange, however it has not been implemented due to technical difficulties and the low number of countries with fully functioning VMS systems.. Such a system of data sharing on a regional level of relevant MCS data that can be used by a Regional MCS Data and Operational centre (RMDOC), which has greatly added value to the data in other regions and assisted in decreasing IUU fishing. Training and capacity building

The enhancement of human resources in the ESA-IO region to a dedicated fully trained, professional fisheries inspectorate is a very large part of the vision of MCS in the region. Therefore considerable time will be spent in providing the training mechanisms and methodology and operational training to the regions fisheries inspectorate to enable them to implement existing international, RFMO and national legal obligations. Specific regional priorities such as the implementation of the Port State Agreement will receive dedicated attention.

Annex 1


Note: The countries of the ESA-IO region comprise Burundi, Comoros, Djibouti, DR Congo, Eritrea, Ethiopia, Kenya, Madagascar, Malawi, Mauritius, Rwanda, Seychelles, Somalia, Sudan, Swaziland, Tanzania, Uganda, Zambia and Zimbabwe.

Issues to be addressed This intervention is required to addressed a comprehensive legal review to enable the “end state” MCs to function within a legal framework. So that:

1. implementing harmonized system of fisheries data collection and dissemination on a national and regional level for transboundary stocks and especially where it concerns the collection of fisheries data to be submitted to RFMOs.

2. a system of data sharing (including , inter alia VMS) on a regional level of relevant MCS data that can be used by a Regional MCS Data and Operational centre (RMDOC).

3. the enhancement of human resources in the ESA-IO region to a dedicated fully trained, professional fisheries inspectorate.

4. the development of a national and regional response to IUU fishing through, inter alia joint patrols operations at sea.

is achieved

Activities of the Consultant The expert shall perform the following tasks:Comprehensive review and provision of recommendations on the legal frameworks, including fisheries base laws, where they pertain to MCS and RFMO agreed actions, with a strong emphasis on the ability to prosecute offences. The general legal review will be of the following countries: Comoros, Kenya, Madagascar, Mauritius, Seychelles, Somalia and The United Republic of Tanzania in ESA-IO region, and will be based on a desktop study and an in-country specific investigation for Tanzania, Madagascar and Seychelles.

Specifically the review will consist of the following parts:

Part 1. An indicative assessment of the current level of compliance in the fishing sectors (artisanal, semi-industrial, industrial, DWFN, FPA, local licensed foreign vessels) with national law and with regional RFMO requirements of the ESA-IO countries. The indicative assessment is to encompass freshwater and marine sectors where applicable.

Part 2. The specific areas to be updated and harmonized/compatible and identify barriers implementation of effective MCS and the ability to prosecute offences, including legal challenges and barriers to :


1. improving compliance levels in ESA-IO region, with national law and the provisions of RFBs. [are the challenges to improving compliance with national laws and the conservation measures of RBO as a result of operational issues or loopholes in the law? If the latter – please elaborate]

2. identifying which areas of legislation should be harmonised to improve effectiveness in terms of domestic legislation ( for example the criminal procedures act or similar and the fisheries operational limitations such as confiscation of large volumes of fish, foreign nationals etc)

3. the legal capacity/ability to undertake MCS in countries, including prosecution processes (including administrative penalties) for offenders

4. implementation of effective national and regional MCS actions (where effective MCS actions are defined as inter alia, a list of authorised fishing vessels, VMS, observers on board vessels, powers of inspection and/or apprehension, ability to investigate crime, exchange of information domestically and with other (neighbouring) enforcement agencies

5. implementation by countries of the provisions of their IUU fishing (NPOA-IUU) plan/s (ie, specifically in terms of the

NPOAs, determine what, if any, legal barriers there are to implementation of NPOAs.

6. existing fisheries laws of the country that are barriers to implementing an effective fisheries inspectorate, for example the appointment, powers and duties of officers and inspectors.

7. the provision for a Fisheries Inspector career path in national laws (It may be necessary to consult human resources and labour laws).

8. implementing the existing provisions of the IOTC Port State Measure resolutions and FAO PSM Agreement provisions

9. the adoption of a Risk analysis methodology in order to support for a diversified and centrally planned set of MCS tasks including more effective targeting of fishing vessels at sea and in port. [The consultant has to determine if there are any provisions in the current (fisheries) legislation that will hinder a central planned, and risked based approach to MCS – for example, that the local governor is in charge of the fisheries management and surveillance falls under him/her. Or, that the law requires the Fisheries officers can only monitor/control industrial fisheries - such type of situations.]

Annex 1


10. participating in the “IOC” MCS Regional Plan for the South West Indian Ocean”.

11. developing and implementing existing provisions of IOTC regulations related to MCS and combating IUU fishing in addition to those mentioned in Number 8. .

12. establishing a compatible data collection system and processing and sharing such information with other national organisations, neighbouring countries and RFMOs. This includes data for scientific purposes and for MCS, such as a list/register licenses, a register of fishing vessels, permits and licenses, the information collected in terms of the PSMA.

13. establishing a compatible reporting systems for tuna fishery statistics to the IOTC on tuna fisheries in the ESA-IO regions

14. 14. Specifically, the implementing a national VMS and sharing the data VMS Data regionally

15. strengthening other central MCS functions prescribed by the IOTC (for example the List of authorised vessels).

16. pooling and sharing operational MCS information on a bilateral basis of all potentially relevant data types including VMS specifically related to confidentiality.

17. sharing data to enable the development and operationalization of a Regional MCS Data and Operations Centre (RMDOC) (emphasis here is on the regional nature of the sharing, where it may be shared with a wider audience than the specific regional economic grouping, such as SADC and with the members of an RFB, such as IOTC)

18. adoption of common ESA-IO regional standards for licensing of fishing vessels, including establishing a regional register of authorised fishing vessels,

19. the legal procedures for arrest, confiscation seizures and disposal of evidences, including for example large volumes of product seized from local of foreign vessels. Do counties, MCS authorities, have the ability (and legislative back-up to undertake such large scale apprehensions – Use the Experience of Tanzania as a reference case).

Part 3. Contribute data/information/analyses for Chapter 2 and 3 of the “Comprehensive review of progress made to improve Governance of the Marine Fisheries sector in the ESA-IO region and the identification of Priority areas for actions of regional significance that could be undertaken by the IRFS program inrelation to key principles of good governance.”


A. The experts shall produce one report detailing their activities, the specific legal barriers to the achieving the desired end state of MCS in the regions, along with specific recommendation on how to address each of the specific areas of evaluation identified above

B. Recommend what immediate actions could be undertaken per country to address the issues in the interim period should the legal frameworks need to be amended

C. Prepare TORs for proposed specific legal assistance to the countries in the regions that require further assistance county to obtain the desired end state.

Expected outputs The Expert shall produce a report demonstrating the work done, namely:D. The experts shall produce one report detailing their activities, the

specific legal barriers to the achieving the desired end state of MCS in the regions, along with specific recommendation on how to address each of the specific areas of evaluation identified above

E. Recommend what immediate actions could be undertaken per country to address the issues in the interim period should the legal frameworks need to be amended

F. Prepare TORs for proposed specific legal assistance to the countries in the regions that require further assistance county to obtain the desired end state.

The report (in English) to be produced using MS Word (and other MS Office software if necessary) and be available in hard copy and electronic form, both in Word (and other MS Office Programmes as appropriate) and all the elements together in single file pdf format. All training materials and questionnaires should form part of the report.

Format of each report MS Word Styles for IRFS Programme Reports and Technical Papers

StructureTitle pages in model format as per other Programme ReportsTable of contents, to three levels ( ex. 1.1.1)List of annexesTables of tables, figures and picturesAbbreviations and acronymsExecutive Summary (1 page)IntroductionMain body of report divided into different sections as appropriate, normally Context, Methodology, Performance in relation to TOR, and Discussion (up to 20 pages)

Annex 1


Conclusions and recommendations Annex 1 Terms of reference (if appropriate)Annex 2 Schedule and people met (with contacts)Annex 3 Aide Memoire (max. one page on execution of mission, findings, conclusions, and recommendations in bullet points)Any other annex(es) as appropriate

Report to be reviewed by PMU / PMCDuration Action – Legal MCS Expert Working days

Preparation and briefing by Skype 1Program methodology development 3Travel to countries in the region 5Briefing with PS/ Prosecutor /EC Delegation in country 3Visits to MCS and legal institutions 6Preparing the general action plan 3Debriefing to Authorities (TAT) 1Travel to Home port 1Report writing 10Report editing and debriefing 2Planning of Work Shop in Mauritius 3Presentation of Work Shop in Mauritius + 2 travel days 7Total 45

Total input days working days

Start date Mid June 2011 or soon afterDraft reportComments from PCMFinal report

Final report basis for relevant paymentsExperience and qualification Legal and Prosecution

Qualifications and skills: University degree in Law, fluency in English and working knowledge of the other language; knowledge of French would be an attribute.

General professional experience: significant experience in the drafting of fisheries legislation and specialist prosecution of marine/fisheries offences (ten years), experience in working with RFMOs and international organisations, experience in working in ACP countries.

Completion dates for Reports and fee payment schedule

8 working days after the return to Home baseWithin 2 weeks after reception5 working days after reception of comments by TAT including comments of authorities


Specific professional experience: Prosecution of Fisheries offences, Fisheries Legislation, regulation, MCS, Operational procedures, Legal and administrative action of enforcement.

Locations and travel STE based in xx: 2 x travel Home Base - MRU – Home Base1 x MRU -Seychelles- Tanzania - Madagascar – MRU up to 26 nights per diem (15 nights in Mission and 11 in Mauritius)

Annex 2


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istry

of

Ag

ricul

ture

an

d Fis

herie

s, A

ntan

anar

ivo,

Mad

agas

car

Geo

rge

Raf

oman

ana,

Se

cret

ary

Gen

eral,

M

inist

ry o

f Agr

icultu

re a

nd F

isher

ies

(261

) 20

22 2

93 1

4ra

fo.g

eo@

blue

line.

mg

25 J

uly

2011

, G

roup

emen

t de

s Aq

uacu

lteur

s et

Pe

cheu

rs

de

Cre

vette

s de

M

adag

asca

r (G

APC

M),

Anta

nana

rivo,

Mad

agas

car

Andr

ianiri

naR

aliso

n,

Secr

etar

iat

Gen

eral,

G

APC

M(2

61) 2

0 22

628

29

gapc

m.s

g@ne

tclu

b.m

g

25

July

20

11,

Cen

tre

de

Surv

eilla

nce

des

Pech

es, A

ntan

anar

ivo,

Mad

agas

car

Har

iman

dim

byR

asol

onjat

ovo,

Che

f de

Cen

tre,

Cen

tre d

e Su

rvei

llanc

e de

s Pe

ches

Tel:

+26

1 20

22

400

65M

obile

: +26

1 32

07

467

42E-

mail

: R

asol

o.ve

vey@

blue

line.

mg

25 J

uly

2011

, H

otel

Col

bert,

Ant

anan

ariv

o,

Mad

agas

car

Mait

reAl

irava

kaR

amar

injan

ahar

y, Av

ocat

a

la co

uran

d le

gal

advi

sor

to t

he

Cen

tre d

e Su

rvei

llanc

e de

s Pe

ches

(+26

1) 2

0 22

262

11

alira

vaka

@gm

ail.c

om

ADD

ITIO

NAL

CO

NTA

CT

VIA

MEE

TIN

GS

OR

E-M

AIL

(not

inc

ludi

ng a

dditi

onal

e-m

ail

cont

act w

ith p

erso

ns li

sted

abo

ve)

PERS

ON

CO

NTA

CT

DET

AILS

Annex 2


10

Oct

ober

20

11,

Silv

er

Sprin

gs

Hot

el,

Nair

obi,

Keny

a.Kh

adija

H

assa

n,

lega

l co

nsul

tant

(a

dvoc

ate)

, Ke

nya

(dra

fted

the

Som

ali M

ariti

me

Secu

rity

Bill)

hass

ankh

adija

1@gm

ail.c

om

11

Oct

ober

20

11,

Silv

er

Sprin

gs

Hot

el,

Nair

obi,

Keny

aAm

bakis

yeSi

mto

e, M

bega

ni F

DC

, Bag

amoy

oam

bakis

yes@

yaho

o.co

m

18 O

ctob

er 2

011,

via

e-m

ailW

endy

Per

reau

, Pro

cess

ing

Offi

cer,

Seyc

helle

s Fis

hing

Aut

horit

yw

perr

eau@

sfa.s

c

AT C

ON

FERE

NC

EPE

RSO

NC

ON

TAC

T D

ETAI

LSC

onsu

ltatio

ns

wer

e he

ld

with

th

e th

ree

repr

esen

tativ

es o

f eac

h co

untry

See

the

list o

f atte

ndee

s.Se

e th

e lis

t of a

ttend

ees.


AN

NEX

3: A

IDE

MEM

OIR

E

Exec

utio

n:

• 4-

8 Ju

ly 2

011:

Des

ktop

stu

dy o

f all

coun

tries

•

Two

brie

fings

, one

in C

ape

T ow

n on

7 Ju

ly 2

011

and

one

in M

aurit

ius

on 1

1 Ju

ly 2

011.

•

12-2

7 Ju

ly 2

011:

Visi

ted

Seyc

helle

s, T

anza

nia

(inclu

ding

Zan

zibar

) and

Mad

agas

car w

ere

visit

ed in

the

perio

d fro

m 1

2- 2

7 Ju

ly 2

011.

• 28

July

201

1: D

ebrie

fing

in M

aurit

ius.

• Su

bmiss

ion

of fi

rst d

raft

•

27-3

0 Se

ptem

ber 2

011:

Reg

iona

l wor

ksho

p in

Mau

ritiu

s (r

epor

t bac

k on

initi

al fin

ding

s, d

iscus

sions

and

add

ition

al co

nsul

tatio

ns w

ith e

ach

of

th

e 7

coun

tries

).

• As

sista

nce

was

pro

vide

d w

ith th

e dr

aftin

g of

ToR

s to

add

ress

the

lega

l cha

lleng

es a

nd b

arrie

rs id

entifi

ed d

urin

g th

e st

udy

(also

see

Ann

ex 5

in

this

rega

rd).

•

Subm

issio

n of

sec

ond

draf

t and

feed

back

•

Subm

issio

n of

fina

l dra

ft

Findi

ngs

and

Con

clusio

ns:

•

Alm

ost a

ll th

e co

untri

es n

eed

som

e fo

rm o

f ass

istan

ce to

enh

ance

the

lega

l fra

mew

ork,

but

the

degr

ee o

f ass

istan

ce w

ill de

pend

on

the

stat

us

of

the

legi

slatio

n in

eac

h co

untry

.

• Tr

ainin

g an

d ot

her a

ssist

ance

for t

he fi

sher

ies

insp

ecto

rate

is re

quire

d.

• Th

ere

is a

need

to tr

ain a

nd s

uppo

rt pr

osec

utor

s an

d le

gal o

ffice

rs o

n th

e pr

osec

utio

n of

fish

erie

s of

fenc

es.

•

Ther

e is

a ne

ed to

est

ablis

h clo

ser c

o-op

erat

ion

betw

een

enfo

rcem

ent o

fficia

ls, in

cludi

ng in

vest

igat

ors,

and

the

pros

ecut

ion

auth

ority

in e

ach

coun

try.

•

Ther

e is

a ne

ed to

incr

ease

aw

aren

ess

amon

gst p

resid

ing

offic

ers.

•

Regi

onal

fora

for p

rose

cuto

rs a

nd p

resid

ing

offic

ers

can

be h

elpf

ul.

•

Cas

e sp

ecifi

c su

ppor

t with

inve

stig

atio

ns a

nd p

rose

cutio

ns is

requ

ired.

•

Assis

tanc

e w

ith th

e re

visio

n of

the

IOTC

reso

lutio

ns is

requ

ired.

• As

sista

nce

with

the

finali

satio

n of

the

NPO

A-IU

U is

requ

ired

in s

ome

coun

tries

Annex 3


Reco

mm

enda

tions

:

• C

ount

ry s

pecifi

c as

sista

nce

to s

treng

then

the

lega

l fra

mew

ork

via

a co

mbi

natio

n of

an

inte

rnat

iona

l exp

ert a

nd a

con

sulta

nt fr

om th

e sp

ecifi

c

co

untry

is p

ropo

sed.

•

Train

ing,

and

the

com

pilat

ion

of a

man

ual a

nd a

com

preh

ensiv

e se

t of S

OPs

for t

he fi

sher

ies

insp

ecto

rate

in e

ach

coun

try is

pro

pose

d.

•

Train

ing,

and

the

com

pilat

ion

of a

gui

de to

the

pros

ecut

ion

of fi

sher

ies

offe

nces

for t

he p

rose

cutin

g au

thor

ity a

nd le

gal o

ffice

rs in

eac

h of

the

coun

tries

is p

ropo

sed.

• Aw

aren

ess

train

ing

for p

resid

ing

offic

ers

mus

t tak

e pl

ace

in e

ach

coun

try.

•

The

crea

tion

of a

nat

iona

l fish

erie

s cr

ime

enfo

rcem

ent f

orum

com

bini

ng fi

sher

ies

insp

ecto

rs, i

nves

tigat

ors

and

pros

ecut

ors

shou

ld b

e

ex

amin

ed.

•

The

crea

tion

of re

gion

al fo

r a fo

r pre

sidin

g of

ficer

s an

d pr

osec

utor

s m

ust b

e ex

amin

ed.

•

Cas

e sp

ecifi

c su

ppor

t with

inve

stig

atio

ns a

nd p

rose

cutio

ns m

ust b

e pr

ovid

ed.

•

Assis

tanc

e w

ith th

e re

visio

n of

the

IOTC

reso

lutio

ns m

ust b

e pr

ovid

ed.

•

Assis

tanc

e w

ith th

e fin

alisa

tion

of th

e N

POA-

IUU

can

be

prov

ided

to th

e co

untri

es th

at h

ave

not y

et fi

nalis

ed th

ese

plan

s.


AN

NEX

4: T

ABL

ES4.

1 C

omor

os4.

2 Ke

nya

4.3

Mad

agas

car

4.4

Mau

ritiu

s4.

5 Se

yche

lles

4.6

Som

alia

4.7

Uni

ted

Repu

blic

of T

anza

nia

Annex 4


4.1

CO

MO

ROS

TOR

ISSU

ESRE

VIE

WEV

ALU

ATI

ON

The F

ishin

g Law

of C

omor

os o

f 200

7 is

the p

rincip

al ac

t go

vern

ing

the

fishe

ries

sect

or a

nd i

t w

as

repo

rted

that

the

legi

slatio

n pr

evio

usly

app

licab

le,

inclu

ding

Act

No.

82-1

5, w

hich

reg

ulat

ed fo

reig

n fis

hing

in th

e EE

Z a

s wel

l as t

he o

ther

frag

men

ted

and

outd

ated

leg

al te

xts,

has

bee

n re

peale

d.

Unf

ortu

nate

ly t

he r

elev

ant

impl

emen

ting

text

of

the

2007

Act

is n

ot y

et in

exi

sten

ce (

spec

ifica

lly

the

text

dea

ling

with

reg

ulat

ion

and

cond

ition

s of

lice

nses

, fis

hing

met

hods

etc

). In

the

arti

sana

l fis

hing

sec

tor

cust

omar

y law

is s

till p

layin

g a

big

role

. The

200

7 Ac

t doe

s pro

vide

for t

he re

gulat

ion

of th

e ar

tisan

al or

trad

ition

al se

ctor

. It i

s ba

sed

on

a fre

e or

ope

n ac

cess

sys

tem

, but

fish

ing

can

be

subj

ecte

d to

var

ious

lim

itatio

ns.

The

lack

of

the

rele

vant

im

plem

entin

g te

xt h

as t

he e

ffect

of

leav

ing

the

sect

or

large

ly

unre

gulat

ed,

with

th

e ex

cept

ion

of t

he a

rtisa

nal s

ecto

r. Th

e 20

07 A

ct w

as

how

ever

re

porte

d to

pr

ovid

e a

good

ba

sic f

ram

ewor

k, a

nd t

hat

harm

onisa

tion

with

the

leg

islat

ion

of o

ther

cou

ntrie

s in

th

e re

gion

was

one

of

the

obje

ctiv

es o

f th

e ac

t. Th

e lac

k of

an

impl

emen

ting

text

m

ust h

owev

er b

e ad

dres

sed

as a

mat

ter o

f ur

genc

y.Pl

ease

see

the

main

text

for a

mor

e de

taile

d di

scus

sion

of th

e 20

07 A

ct.

3Le

gal C

apac

ity to

Und

erta

ke M

CS

• Pr

osec

utio

nIn

th

e ar

tisan

al se

ctor

, se

lf-re

gulat

ion

thro

ugh

cust

omar

y law

is u

sed

to e

nfor

ce t

he la

ws

and

the

syst

em i

s re

porte

d to

wor

k w

ell.

Fishi

ng

Coo

pera

tives

ta

ke

disc

iplin

ary

actio

n ag

ainst

m

embe

rs th

at tr

ansg

ress

.D

ue t

o th

e lac

k of

impl

emen

ting

text

the

re a

re

curr

ently

ver

y fe

w m

atte

rs b

eing

pro

secu

ted.

Law

yers

in p

rivat

e pr

actic

e th

at a

re a

ppoi

nted

by

the

stat

e in

spec

ific

mat

ters

con

duct

pro

secu

tions

.Ve

ssel

ow

ners

hire

ver

y co

mpe

tent

law

yers

who

m

ight

“int

imid

ate”

pre

sidin

g of

ficer

s.

The

syst

em i

s re

porte

d to

wor

k w

ell

in

the

artis

anal

sect

or, a

nd n

o in

terv

entio

n is

prop

osed

. W

hile

law

yers

in

pr

ivat

e pr

actic

e m

ust

be e

xclu

ded

from

tra

inin

g in

itiat

ives

, le

gal

offic

ers a

ttach

ed to

the

fishe

ries d

epar

tmen

t m

ust

be t

rain

ed t

o be

abl

e to

ass

ist w

ith

inve

stig

atio

ns a

nd p

rose

cutio

ns. A

war

enes

s tra

inin

g fo

r pr

esid

ing

offic

ers

mus

t als

o be

pr

ovid

ed.

Som

e G

ener

al Re

mar

ks o

n th

e Le

gal F

ram

ewor

k


Annex 4


• Ad

min

istra

tive

pena

lties

/ com

poun

ding

/ ad

miss

ion

of g

uilt

fines

It w

as re

porte

d th

at th

e 20

07 A

ct m

akes

pro

visio

n fo

r co

mpo

undi

ng (

“tra

nsac

tion”

). It

prov

ides

for

a

tribu

nal/c

omm

issio

n co

nsist

ing

of m

embe

rs o

f va

rious

dep

artm

ents

and

exp

erts

to

deal

with

th

ese

appl

icatio

ns (

not

yet

in p

lace)

. A

depo

sit

is re

quire

d be

fore

th

e co

mpo

undi

ng

proc

ess

com

men

ces.

No

furth

er i

nter

vent

ion

is re

quire

d, b

ut

the

lack

of i

mpl

emen

ting

text

mus

t be

ad

dres

sed.

Also

see

the

disc

ussio

n in

the

m

ain te

xt.

1Le

gal

Cha

lleng

es &

Bar

riers

to

Impr

ovin

g C

ompl

iance

Lev

els

with

Nat

iona

l La

w a

nd

Prov

ision

s of

RFB

s

• Pe

nalti

esIt

was

repo

rted

that

the

max

imum

pen

altie

s in

the

2007

Act

allo

ws

for

a fin

e to

the

valu

e of

50-

100

times

the

valu

e of

the

lice

nsin

g fe

e in

indu

stria

l fis

hing

in th

e se

ctor

(lic

ense

fees

are

cur

rent

ly a

t 30

00 e

uros

). Fin

es in

the

artis

anal

sect

or fo

r lo

cal

fishi

ng a

re s

et a

t be

twee

n 15

0 00

0 -

300

000

Com

oros

fran

cs.

Link

ing

the

max

imum

fine

in th

e in

dust

rial

sect

or to

the

valu

e of

the

licen

se is

a g

ood

met

hod

of a

ccom

mod

atin

g th

e up

datin

g of

pe

nalti

es w

ithou

t the

nee

d fo

r a

legi

slativ

e am

endm

ent.

It w

as a

lso re

porte

d th

at th

ere

was

an

atte

mpt

to h

arm

onise

the

pena

lties

w

ith th

ose

in n

eigh

bour

ing

coun

tries

.Al

so s

ee th

e di

scus

sion

in th

e m

ain te

xt.

• O

ther

m

easu

res

that

ca

n se

rve

as

a de

terr

ent

(forfe

iture

, su

spen

sion

or

canc

ellat

ion

of l

icenc

es,

supp

lem

enta

ry

or o

ther

adm

inist

rativ

e or

ders

)

It w

as r

epor

ted

that

the

200

7 Ac

t all

ows

for

confi

scat

ion

and

forfe

iture

of t

he c

atch

and

gea

r in

the

cas

e of

a t

rans

gres

sion

and

conv

ictio

n. A

ve

ssel

can

how

ever

onl

y be

forfe

ited

in th

e ca

se

of a

sec

ond

or s

ubse

quen

t con

vict

ion.

Forfe

iture

of v

esse

ls is

only

allo

wed

in th

e ca

se o

f cer

tain

repe

at o

ffenc

es.

Idea

lly fo

rfeitu

re o

f the

ves

sel s

houl

d be

a

poss

ibilit

y (a

t the

cou

rt’s

disc

retio

n) fo

r firs

t of

fend

ers

as w

ell

as t

his

acts

as

a st

rong

de

terr

ent.

Also

see

the

disc

ussio

n in

the

main

text

.


Annex 4


19•

Lega

l Ba

rrie

rs

in

the

Proc

edur

es

for

Seizu

re,

Con

fisca

tion

and

Disp

osal

&

Han

dlin

g of

Evi

denc

e

It w

as r

epor

ted

that

the

catc

h ca

n be

con

fisca

ted

and

sold

or d

onat

ed.

No

inte

rven

tion

requ

ired,

tho

ugh

it m

ight

be

exp

edie

nt to

look

at t

his i

n m

ore

deta

il if

the

impl

emen

ting

text

is d

rafte

d.

Also

see

the

disc

ussio

n in

the

main

text

.

6Le

gal

Barr

iers

to

Impl

emen

ting

an E

ffect

ive

Fishe

ries

Insp

ecto

rate

• Ap

poin

tmen

t of F

isher

ies

Insp

ecto

rsTh

ere

are

limite

d pr

ovisi

ons

on th

is in

the

2007

Ac

t. Th

e re

peale

d ar

ticle

12

of A

ct N

o.82

-15

prov

ided

for

vario

us o

fficia

ls (in

cludi

ng C

usto

ms

and

Nav

y) t

o ha

ve t

he p

ower

s se

t ou

t in

the

Ac

t, bu

t do

es n

ot i

nclu

de a

ny o

ther

ref

eren

ce

to t

he a

ppoi

ntm

ents

of

offic

ials.

No

addi

tiona

l in

form

atio

n av

ailab

le.

Also

see

the

disc

ussio

n in

the

main

text

.

• SO

P’s

& M

anua

lsTh

ere

is a

“reg

iona

l pr

oced

ures

gu

ide”

fo

r in

spec

tion,

but

no

othe

r man

uals

or S

OPs

A m

anua

l an

d SO

Ps f

or i

nspe

ctor

s w

ill co

ntrib

ute

to e

ffect

ive

MC

S.•

Fund

ing

from

fine

s, p

enalt

ies

and

sale

of

forfe

ited

fish.

The

issue

of

whe

ther

fine

s et

c w

ill go

to

the

fishe

ries

auth

ority

or

tre

asur

y ha

s no

t be

en

dete

rmin

ed y

et.

This

issue

sho

uld

be a

ddre

ssed

whe

n th

e im

plem

entin

g te

xt is

dra

fted.

2H

arm

onisa

tion

of L

egisl

atio

n (In

tern

al)Th

e cu

stom

ary

rule

s, (w

hich

gov

ern

the

artis

anal

sect

or t

o a

large

deg

ree)

and

the

200

7 Ac

t ca

uses

a fr

agm

ente

d ap

proa

ch,

but

regu

latio

n in

th

e ar

tisan

al se

ctor

is r

epor

ted

to w

ork

wel

l in

prac

tice.

No

inte

rven

tion

is re

quire

d, b

ut t

his

issue

m

ust

be a

ddre

ssed

in

the

draf

ting

of t

he

impl

emen

ting

text

4Le

gal

Cha

lleng

es

and

Barr

iers

to

th

e Im

plem

enta

tion

of

Effe

ctiv

e N

atio

nal

&

Regi

onal

MC

S (n

ote

that

th

e sh

arin

g of

in

form

atio

n w

ill be

add

ress

ed u

nder

(16

) be

low

)•

Inve

stig

ativ

e Ab

ility

Fishe

ry in

spec

tors

hav

e qu

alific

atio

ns a

nd tr

ainin

g as

set

out

bel

ow,

but

have

not

bee

n tra

ined

in

inve

stig

atio

ns.

Train

ing

on b

asic

inve

stig

ativ

e te

chni

ques

is

a re

quire

men

t.


Annex 4


• Tr

ainin

gTh

e in

spec

tors

hav

e a

univ

ersit

y le

vel d

egre

e, a

nd

addi

tiona

l tra

inin

g ha

s be

en p

rovi

ded

such

as

the

IOTC

train

ing

cour

ses,

bas

ic se

curit

y at

sea

etc

.

See

dire

ctly

abo

ve.

Cap

acity

bui

ldin

g of

es

pecia

lly y

oung

ine

xper

ienc

ed g

radu

ates

w

as h

ighl

ight

ed a

s a

need

.•

Obs

erve

rsN

o fo

reig

n ve

ssel

s ar

e co

min

g in

to

port

at

Com

oros

cur

rent

ly.Th

ere

are

plan

s to

bui

ld a

fish

ing

port

and

the

issue

of o

bser

vers

sho

uld

be

addr

esse

d.9

Lega

l Bar

riers

to th

e Ad

optio

n of

Risk

Ana

lysis

M

etho

dolo

gyIn

the

arti

sana

l sec

tor

the

fishi

ng a

ctiv

ities

diffe

r fro

m r

egio

n to

reg

ion,

and

req

uire

a d

iffere

nt

appr

oach

dep

endi

ng o

n th

e re

gion

.

The

appl

icatio

n of

cu

stom

ary

law

is re

porte

d to

wor

k w

ell a

nd n

o im

med

iate

inte

rven

tion

is re

quire

d.7

Car

eer P

ath

for F

isher

ies

Insp

ecto

rsTh

ere

are

curr

ently

6 in

spec

tors

, and

the

y ha

ve

been

inc

orpo

rate

d an

d in

tegr

ated

int

o th

e civ

il se

rvice

. The

y ha

ve a

uni

vers

ity le

vel d

egre

e an

d ad

ditio

nal t

rain

ing

and

expe

rienc

e.

No

inte

rven

tion

is re

quire

d.

The

Con

stitu

tion

prov

ides

for t

he ra

tifica

tion

of

treat

ies.

No

inte

rven

tion

is re

quire

d.

5Im

plem

enta

tion

of th

e IU

U N

POA

No

IUU

NPO

A is

in p

lace,

but

hav

e in

dica

ted

that

th

ey w

ill pu

t one

in p

lace.

Assis

tanc

e w

ith t

he d

rafti

ng o

f an

IU

U-

NPO

A w

ill be

hel

pful

.10

Parti

cipat

ion

in t

he I

OC

MC

S Re

gion

al Pl

an

for t

he S

outh

Wes

t Ind

ian O

cean

No

addi

tiona

l leg

al ba

rrie

rs in

thi

s re

gard

wer

e re

porte

d or

det

ecte

d.N

o im

med

iate

inte

rven

tion

is re

quire

d, b

ut

this

plan

mus

t be

tak

en in

to c

onsid

erat

ion

in th

e dr

aftin

g of

the

impl

emen

ting

text

.8

Impl

emen

tatio

n of

IOTC

Por

t Sta

te M

easu

re

Reso

lutio

ns

&

FAO

Po

rt St

ate

Mea

sure

Ag

reem

ent P

rovi

sions

The

lack

of im

plem

entin

g te

xt d

oes

not a

llow

for

this,

but

cur

rent

ly th

ere

are

no fi

shin

g po

rts.

This

mus

t be

addr

esse

d vi

a th

e dr

aftin

g of

th

e im

plem

entin

g te

xt.

Lega

l ch

alle

nges

an

d Ba

rrie

rs

to

the

Impl

emen

tati

on/A

dopt

ion

of

Regi

onal

Agr

eem

ents

& S

tand

ards

Som

e ge

nera

l re

mar

ks

on

Lega

l C

halle

nges

an

d Ba

rrie

rs

to

the

Impl

emen

tati

on/A

dopt

ion

of R

egio

nal

Agr

eem

ents

& S

tand

ards


Annex 4


11Ad

ditio

nal L

egal

Barr

iers

to th

e D

evel

opm

ent

&

Impl

emen

tatio

n of

Ex

istin

g IO

TC

Reso

lutio

ns

The

lack

of i

mpl

emen

ting

text

doe

s no

t all

ow

for

prop

er i

mpl

emen

tatio

n th

ereo

f. In

add

ition

, pr

actic

al di

fficu

lties

with

dat

a an

d st

atist

ics w

ere

repo

rted.

This

mus

t be

addr

esse

d vi

a th

e dr

aftin

g of

th

e im

plem

entin

g te

xt.

15Le

gal B

arrie

rs to

the

Stre

ngth

enin

g of

Oth

er

Cen

tral

MC

S Fu

nctio

ns P

resc

ribed

by

the

IOTC

No

addi

tiona

l leg

al ba

rrie

rs in

thi

s re

gard

wer

e re

porte

d or

det

ecte

d, b

ut se

e th

e re

mar

ks a

bove

.Se

e th

e re

mar

ks a

bove

.

18Ad

optio

n of

C

omm

on

ESA-

IO

Regi

onal

Stan

dard

s fo

r Lice

nsin

g of

Ves

sels

(inclu

ding

a

natio

nal r

egist

er o

f ves

sels)

No

lega

l ba

rrie

rs i

n th

is re

gard

wer

e re

porte

d or

det

ecte

d.

All v

esse

ls ab

ove

a ce

rtain

size

are

re

gist

ered

.

No

inte

rven

tion

is re

quire

d.

2H

arm

onisa

tion

of L

egisl

atio

n (b

etw

een

ESA-

IO c

ount

ries)

The

harm

onisa

tion

of

certa

in

prov

ision

s,

espe

cially

pen

altie

s, t

hrou

ghou

t th

e re

gion

is

a re

quire

men

t as

is se

t out

in th

e di

scus

sion

of th

e m

ain te

xt. C

omor

os in

dica

ted

that

the

2007

Act

is

very

sim

ilar

to t

hat

of o

ther

cou

ntrie

s in

the

re

gion

, and

har

mon

isatio

n w

as a

fact

or ta

ken

into

co

nsid

erat

ion

durin

g th

e dr

aftin

g of

the

Act.

This

need

s to

be

ad

dres

sed

with

th

e dr

aftin

g of

the

impl

emen

ting

text

.

As a

gen

eral

rem

ark

not s

pecifi

c to

Com

oros

, the

lac

k of

pro

visio

ns o

n th

e sh

arin

g of

info

rmat

ion

in le

gisla

tion

was

hig

hlig

hted

as

a pr

oble

m a

rea

by th

e IO

TC. E

xcep

t for

wha

t is

indi

cate

d be

low

, no

spe

cific

lega

l pr

oble

ms

in t

his

rega

rd w

ere

repo

rted

or d

etec

ted.

In p

ract

ice s

ome

coun

tries

ar

e ho

wev

er re

luct

ant t

o sh

are

info

rmat

ion.

The

esta

blish

men

t of

co

mpa

tible

da

ta

colle

ctio

n or

rep

ortin

g sy

stem

s an

d th

e sh

arin

g of

dat

a an

d in

form

atio

n re

gion

ally

do n

ot n

eces

saril

y re

quire

any

leg

islat

ive

pres

crip

tions

. In

vi

ew

of

the

prob

lem

s ex

perie

nced

in p

ract

ice, i

t m

ight

how

ever

be

exp

edie

nt t

o in

corp

orat

e so

me

of t

he

regi

onal

oblig

atio

ns

in

this

rega

rd

into

do

mes

tic le

gisla

tion.

Th

is ca

n be

fur

ther

ex

plor

ed i

n th

e dr

aftin

g of

im

plem

entin

g te

xt fo

r the

200

7 Ac

t.

Lega

l C

halle

nges

and

Bar

rier

s to

Reg

iona

l C

o-op

erat

ion

& In

form

atio

n Sh

arin

g

Som

e ge

nera

l rem

arks

on

Lega

l Cha

lleng

es

and

Barr

iers

to

Regi

onal

Co-

oper

atio

n &

In

form

atio

n Sh

arin

g


Annex 4


12Es

tabl

ishm

ent

of

a C

ompa

tible

D

ata

Col

lect

ion

Syst

em (

This

inclu

des

data

for

sc

ient

ific

purp

oses

and

for

MC

S, s

uch

as a

lis

t/reg

ister

of

licen

ses,

a r

egist

er o

f fis

hing

ve

ssel

s, p

erm

its a

nd li

cens

es, t

he in

form

atio

n co

llect

ed in

term

s of

the

PSM

A).

No

lega

l bar

riers

wer

e re

porte

d or

det

ecte

d.N

o in

terv

entio

n in

te

rms

of

lega

l re

quire

men

ts is

requ

ired.

13Es

tabl

ishm

ent o

f a C

ompa

tible

Rep

ortin

g Sy

stem

for T

una

Fishe

ries

Stat

istics

No

lega

l bar

riers

wer

e re

porte

d or

det

ecte

d.N

o in

terv

entio

n in

te

rms

of

lega

l re

quire

men

ts is

requ

ired.

14Im

plem

enta

tion

of a

Nat

iona

l VM

S &

Sha

ring

of D

ata

Regi

onall

yTh

e N

atio

nal C

entre

for C

ontro

l and

Sur

veilla

nce

of F

isher

ies

of t

he U

nion

of

Com

oros

has

a

VMS

syst

em,

whi

ch h

as b

een

oper

atio

nal s

ince

D

ecem

ber 1

7, 2

009.

Thi

s is

used

to m

onito

r the

ac

tivity

of a

sam

ple

of 1

5 sm

all-s

cale

fish

ing

vess

els

of th

e C

omor

os a

nd th

e in

dust

rial fi

shin

g ve

ssel

s lic

ense

d to

fish

in th

e w

ater

s of

the

Com

oros

.

A re

lated

issu

e of

ext

rem

e im

porta

nce

to th

e us

e of

VM

S da

ta in

pro

secu

tions

or o

ther

pro

ceed

ings

, is

the

diffi

culti

es e

xper

ienc

ed w

ith th

e ad

miss

ibilit

y of

such

evi

denc

e (it

is se

en a

s com

pute

r gen

erat

ed

evid

ence

).

Both

the

adm

issib

ility

of V

MS

evid

ence

as

wel

l as

the

inco

rpor

atio

n of

pro

visio

ns

on

the

shar

ing

of

data

re

gion

ally

mus

t re

ceiv

e at

tent

ion

durin

g th

e dr

aftin

g of

the

impl

emen

ting

text

.

16Sh

arin

g of

Ope

ratio

nal M

CS

Info

rmat

ion

No

addi

tiona

l le

gal

barr

iers

wer

e de

tect

ed o

r re

porte

d,

but

see

the

com

men

t im

med

iatel

y ab

ove.

See

the

com

men

t im

med

iatel

y ab

ove.

17Le

gal C

halle

nges

and

Bar

riers

to th

e Sh

arin

g of

D

ata

to

Enab

le

Dev

elop

men

t an

d Fu

nctio

ning

of

the

Regi

onal

MC

S D

ata

and

Ope

ratio

ns C

entre

No

addi

tiona

l le

gal

barr

iers

wer

e de

tect

ed o

r re

porte

d, b

ut s

ee th

e co

mm

ent u

nder

14

abov

e.Se

e th

e co

mm

ent u

nder

14

abov

e.


Annex 4


4.2

KEN

YATO

RIS

SUES

REV

IEW

EVA

LUA

TIO

N

The

prin

cipal

legi

slatio

n is

the

Fishe

ries

Act,

CAP

37

8, L

aws

of K

enya

of

1989

, w

hich

app

lies

to

both

fre

shw

ater

and

mar

ine

fishi

ng.

Ther

e is

a 20

11 D

raft

Bill,

and

som

e se

ctio

ns o

n M

CS

in th

is Bi

ll sh

ould

be

rein

forc

ed (s

ee s

.34

and

onw

ards

). It

may

be

nece

ssar

y to

dra

ft ne

w r

egul

atio

ns a

s w

ell.

3Le

gal C

apac

ity to

Und

erta

ke M

CS

• P

rose

cutio

nM

ost fi

sher

ies

case

s go

to th

e m

agist

rate

’s co

urts

, bu

t th

ere

are

not

a hi

gh n

umbe

r of

cas

es in

the

co

urts

. In

man

y ca

ses

the

susp

ects

flee

, an

d on

ly il

lega

l cat

ch a

nd g

ear

is co

nfisc

ated

, bu

t no

pr

osec

utio

n fo

llow

s. T

he m

ost c

omm

on o

ffenc

es

in t

he a

rtisa

nal

mar

ine

envi

ronm

ent

are

illega

l ne

ts,

fishi

ng in

pro

tect

ed a

reas

and

ille

gal fi

shin

g m

etho

ds.

In

the

fresh

wat

er e

nviro

nmen

t th

e m

ost c

omm

on o

ffenc

es re

late

to g

ear (

mes

h siz

es

etc)

, an

d th

e ca

tchi

ng o

f und

ersiz

ed fi

sh (

mos

tly

artis

anal,

and

the

main

com

mer

cial a

ctiv

ity is

the

tra

nspo

rtatio

n of

fish

).Th

ere

is on

ly o

ne in

dust

rial K

enya

n ve

ssel

fish

ing

in th

e EE

Z. A

s fa

r as

fore

ign

long

liner

s an

d pu

rse

sein

ers

are

conc

erne

d, t

he a

mou

nt o

f lic

ense

s de

crea

sed

from

93

in 2

007

to 2

0 in

201

0, a

nd is

st

ill de

crea

sing

(due

to th

e ef

fect

of p

iracy

). Th

ere

are

no p

atro

l ves

sels,

and

no

vess

els

have

bee

n ar

rest

ed fo

r ille

gal fi

shin

g in

the

EEZ

.

Lega

l Fra

mew

ork

Som

e G

ener

al R

emar

ks o

n th

e Le

gal

Fram

ewor

k


Annex 4


Fishe

ries

insp

ecto

rs

ofte

n gu

ide

and

assis

t pr

osec

utor

s in

ca

ses,

an

d w

ill e.

g.

draf

t th

e ch

arge

she

et. I

t is

mos

tly p

olice

pro

secu

tors

that

ar

e us

ed,

thou

gh t

he i

nten

tion

is to

gra

duall

y re

plac

e th

em w

ith g

radu

ate

pros

ecut

ors.

Som

e fis

herie

s in

spec

tors

wer

e tra

ined

in

pros

ecut

ion

in 2

000/

2001

, bu

t th

ey w

ere

neve

r ap

poin

ted.

Th

e he

ad o

f pro

secu

tions

is th

e D

irect

or o

f Pub

lic

Pros

ecut

ions

.N

o st

atist

ics o

n th

e co

nvict

ion

rate

wer

e av

ailab

le,

but

it is

repo

rtedl

y fa

irly

low

. Po

lice

pros

ecut

ors

have

to

face

tra

ined

and

exp

erie

nced

law

yers

in

such

cas

es.

Mag

istra

tes

shou

ld b

e gi

ven

awar

enes

s tra

inin

g,

and

a be

nch

book

will

be v

aluab

le. I

n a

rece

nt c

ase

the

accu

sed

was

acq

uitte

d be

caus

e th

e m

agist

rate

w

as u

naw

are

of th

e ne

w le

gisla

tion.

•

Adm

inist

rativ

e pe

nalti

es/

com

poun

ding

/

adm

issio

n of

gui

lt fin

esC

ompo

undi

ng is

a p

ossib

ility

unde

r the

legi

slatio

n,

but t

he p

roce

ss is

sel

dom

use

d.N

o in

terv

entio

n re

quire

d.

1Le

gal

Cha

lleng

es &

Bar

riers

to

Impr

ovin

g C

ompl

iance

Lev

els

with

Nat

iona

l La

w a

nd

Prov

ision

s of

RFB

s•

Pena

lties

Offe

nder

s in

the

arti

sana

l sec

tor

are

repu

ted

to

brea

k th

e law

with

impu

nity

bec

ause

the

pena

lties

ar

e to

o lo

w. T

hey

mus

t hav

e fis

hing

lice

nses

, but

th

e lic

ense

s are

ver

y ch

eap.

If a

licen

se is

revo

ked,

th

ey c

an s

impl

y bu

y an

othe

r lic

ense

. Th

ey h

ave

a re

gist

er o

f lice

nses

, but

the

beac

h m

anag

emen

t un

its i

ssue

the

se l

icens

es,

and

it is

diffi

cult

to

cont

rol.

The

pena

lties

, an

d po

ssib

ly t

he l

icens

ing

syst

em, m

ust b

e re

vise

d.


Annex 4


• O

ther

m

easu

res

that

ca

n se

rve

as

a de

terr

ent

(forfe

iture

, su

spen

sion

or

canc

ellat

ion

of lic

ence

s, su

pple

men

tary

or

othe

r adm

inist

rativ

e or

ders

)

Forfe

iture

and

can

cella

tion

of l

icens

es a

re b

oth

poss

ibilit

ies.

The

Dire

ctor

has

can

celle

d lic

ense

s in

the

pra

wn

indu

stry

(bu

t als

o se

e th

e re

mar

ks

imm

ediat

ely

abov

e).

19Le

gal B

arrie

rs in

the

Proc

edur

es fo

r Se

izure

, C

onfis

catio

n, D

ispos

al &

Han

dlin

g of E

vide

nce

The

Insp

ecto

rate

hav

e th

e po

wer

to se

ll or d

onat

e se

ized

fish.

A re

ceip

t is

issue

d an

d ke

pt.

No

inte

rven

tion

requ

ired.

6Le

gal

Barr

iers

to

Impl

emen

ting

an E

ffect

ive

Fishe

ries

Insp

ecto

rate

• Ap

poin

tmen

t of F

isher

ies

Insp

ecto

rsTh

ere

are

39 fi

sher

y in

spec

tors

res

pons

ible

for

fis

h qu

ality

con

trol

and

2 po

rt in

spec

tors

and

an

add

ition

al m

arin

e in

spec

tor,

who

has

also

be

en tr

ained

as

an o

bser

ver.

Ther

e is

not a

hig

h tu

rnov

er o

f ins

pect

ors.

No

inte

rven

tion

requ

ired.

• SO

P’s

& M

anua

lsTh

ere

are

no m

anua

ls or

SO

Ps a

vaila

ble

or in

use

.A

com

preh

ensiv

e m

anua

l an

d SO

Ps f

or

insp

ecto

rs c

an b

e ve

ry v

aluab

le a

nd w

ere

requ

este

d.•

Fund

ing

from

fine

s, p

enalt

ies

and

sale

of

forfe

ited

fish.

All fi

nes

and

proc

eeds

from

con

fisca

ted

fish

goes

to

the

gene

ral s

tate

cof

fer.

Thou

gh it

can

be

adva

ntag

eous

to h

ave

a fu

nd u

sed

for

MC

S an

d m

anag

emen

t fo

r su

ch p

roce

eds,

the

impr

essio

n is

that

ther

e ar

e no

t hug

e am

ount

s in

volv

ed h

ere.

2•

Har

mon

isatio

n of

Leg

islat

ion

(Inte

rnal)

No

lega

l bar

riers

wer

e re

porte

d or

det

ecte

d.N

o in

terv

entio

n re

quire

d.4

Lega

l C

halle

nges

an

d Ba

rrie

rs

to

the

Impl

emen

tatio

n of

Ef

fect

ive

Nat

iona

l &

Re

gion

al M

CS

(not

e th

at

the

shar

ing

of

info

rmat

ion

will

be a

ddre

ssed

und

er (

16)

belo

w)

• In

vest

igat

ive

Abilit

yTr

ainin

g in

ba

sic

inve

stig

ativ

e te

chni

ques

w

as

requ

este

d.Tr

ainin

g in

bas

ic in

vest

igat

ive

tech

niqu

es is

re

quire

d.•

Train

ing

Insp

ecto

rs h

ave

parti

cipat

ed in

a re

gion

al pa

trol i

n 20

09, b

ut th

ey h

ave

not b

een

train

ed in

boa

rdin

g,

dise

mba

rkin

g,

prot

ectiv

e ge

ar,

pres

erva

tion

of

evid

ence

, arr

est o

r the

pre

ssin

g of

cha

rges

.

Train

ing

in M

CS

and

vario

us o

ther

asp

ects

is

requ

ired.


Annex 4


• O

bser

vers

Ther

e ar

e tw

o tra

ined

obs

erve

rs,

but

curr

ently

no

obs

erve

rs o

n ve

ssel

s. T

rain

ing

of o

bser

vers

fo

r ves

sels

is re

quire

d in

the

futu

re fo

r the

shr

imp

indu

stry

spec

ifica

lly, a

s wel

l as t

o ge

nera

lly c

ompl

y w

ith th

e IO

TC re

solu

tions

.

No

inte

rven

tion

from

a le

gal p

ersp

ectiv

e is

requ

ired.

9Le

gal B

arrie

rs to

the

Adop

tion

of R

isk A

naly

sis

Met

hodo

logy

Oth

er c

ontro

l mea

sure

s su

ch a

s clo

sed

seas

ons

and

a clo

sed

num

ber o

f ves

sels

on L

ake

Naiv

asha

w

ork

wel

l.

No

inte

rven

tion

is re

quire

d.

7C

aree

r Pat

h fo

r Fish

erie

s In

spec

tors

See

the

rem

arks

und

er 6

abo

ve.

No

inte

rven

tion

is re

quire

d.

5Im

plem

enta

tion

of th

e IU

U N

POA

Ther

e is

a dr

aft

NPO

A th

at r

equi

res

finali

satio

n.

Lake

Vict

oria

has

a sh

ared

IPO

A.As

sista

nce

with

the

finali

satio

n of

the

draf

t N

POA

is re

quire

d.10

Parti

cipat

ion

in t

he I

OC

MC

S Re

gion

al Pl

an

for t

he S

outh

Wes

t Ind

ian O

cean

The

only

bar

rier

that

was

rep

orte

d is

a lac

k of

re

sour

ces.

No

inte

rven

tion

from

a le

gal p

ersp

ectiv

e is

requ

ired.

8Im

plem

enta

tion

of IO

TC P

ort S

tate

Mea

sure

Re

solu

tions

&

FA

O

Port

Stat

e M

easu

re

Agre

emen

t Pro

visio

ns

The

barr

iers

rep

orte

d w

ere

not o

f a le

gal n

atur

e (th

e ro

le o

f por

t ins

pect

ors

is no

t cle

arly

defi

ned,

lac

k of

not

ifica

tion

and

com

mun

icatio

n, p

ort s

tate

fu

nctio

n of

fish

erie

s is

uncle

ar e

tc).

They

req

uire

le

gisla

tion

or a

men

dmen

ts o

n th

e du

ty o

f PS

M

and

the

func

tions

and

pow

ers

of in

spec

tors

, who

als

o re

quire

train

ing.

Thou

gh so

me

of th

e ba

rrie

rs ar

e a p

ract

ical

issue

, pl

ease

see

the

main

tex

t fo

r m

ore

com

men

ts o

n th

e ba

rrie

rs in

the

legi

slativ

e fra

mew

ork.

Lega

l ch

alle

nges

an

d Ba

rrie

rs

to

the

Impl

emen

tati

on/A

dopt

ion

of

Regi

onal

Agr

eem

ents

& S

tand

ards

Som

e ge

nera

l re

mar

ks

on

Lega

l C

halle

nges

an

d Ba

rrie

rs

to

the

Impl

emen

tati

on/A

dopt

ion

of R

egio

nal

Agr

eem

ents

& S

tand

ards


Annex 4


11Ad

ditio

nal L

egal

Barr

iers

to th

e D

evel

opm

ent

&

Impl

emen

tatio

n of

Ex

istin

g IO

TC

Reso

lutio

ns

It w

as r

epor

ted

that

res

olut

ions

are

som

etim

es

agre

ed t

o an

d pa

ssed

as

the

coun

try w

ants

to

coop

erat

e, b

ut t

hen

prob

lem

s ar

ise w

ith t

he

impl

emen

tatio

n th

ereo

f. A w

orks

hop

for o

fficia

ls on

th

e ad

optio

n, in

corp

orat

ion

and

impl

emen

tatio

n of

the

IOTC

reso

lutio

ns w

as p

ropo

sed.

See

the

rem

arks

imm

ediat

ely

abov

e.

15Le

gal B

arrie

rs to

the

Stre

ngth

enin

g of

Oth

er

Cen

tral

MC

S Fu

nctio

ns P

resc

ribed

by

the

IOTC

See

imm

ediat

ely

abov

e.Se

e th

e re

mar

ks a

bove

.

18Ad

optio

n of

C

omm

on

ESA-

IO

Regi

onal

Stan

dard

s fo

r Li

cens

ing

of V

esse

ls (in

cludi

ng a

na

tiona

l reg

ister

of v

esse

ls)

Ther

e is

a na

tiona

l reg

ister

of v

esse

ls in

the

lake

ar

ea,

whi

ch is

cur

rent

ly b

eing

inco

rpor

ated

into

a

data

base

. Th

ere

is ho

wev

er a

pro

blem

with

re

gist

ratio

n an

d lic

ensin

g, w

hich

is

bein

g do

ne

by d

iffere

nt d

epar

tmen

ts,

and

the

lists

not

bei

ng

harm

onise

d.

Alth

ough

mor

e of

a p

ract

ical

prob

lem

, th

e iss

ue

can

also

be

addr

esse

d by

in

corp

orat

ing

certa

in o

blig

atio

ns i

nto

the

legi

slatio

n.

2H

arm

onisa

tion

of L

egisl

atio

n (b

etw

een

ESA-

IO c

ount

ries)

See

the

rem

arks

in th

e m

ain te

xt.

See

the

rem

arks

in th

e m

ain te

xt.

12Es

tabl

ishm

ent

of

a C

ompa

tible

D

ata

Col

lect

ion

Syst

em

(Thi

s in

clude

s da

ta

for

scie

ntifi

c pu

rpos

es a

nd f

or M

CS,

suc

h as

a

list/r

egist

er o

f lic

ense

s, a

reg

ister

of

fishi

ng

vess

els,

per

mits

and

lice

nses

, the

info

rmat

ion

colle

cted

in te

rms

of th

e PS

MA)

.

Ther

e is

a fu

nctio

ning

dat

a co

llect

ion

syst

em, a

nd

no le

gal b

arrie

rs w

ere

repo

rted

or d

etec

ted.

Thes

e ba

rrie

rs a

re n

ot o

f a le

gal n

atur

e,

but s

ome

oblig

atio

ns in

this

rega

rd c

an b

e in

corp

orat

ed in

to th

e le

gisla

tion.

Lega

l Cha

lleng

es a

nd B

arri

ers

to R

egio

nal

Co-

oper

atio

n &

Info

rmat

ion

Shar

ing

Som

e ge

nera

l rem

arks

on

Lega

l Cha

lleng

es

and

Barr

iers

to

Regi

onal

Co-

oper

atio

n &

In

form

atio

n Sh

arin

g


Annex 4


13Es

tabl

ishm

ent

of

a C

ompa

tible

Re

porti

ng

Syst

em fo

r Tun

a Fis

herie

s St

atist

icsSo

me

prac

tical

prob

lem

s w

ere

repo

rted

(suc

h as

pu

rse

sein

ers n

ot su

bmitt

ing

data

, whi

le lo

nglin

ers

usua

lly d

o), b

ut th

ese

are

not d

ue to

gap

s in

the

legi

slatio

n.

Ther

e ar

e no

leg

al ba

rrie

rs t

hat

wer

e re

porte

d or

det

ecte

d.

14Im

plem

enta

tion

of a

Nat

iona

l VM

S &

Sha

ring

of D

ata

Regi

onall

yTh

e VM

S sy

stem

was

rep

orte

d to

be

func

tioni

ng,

and

prob

lem

s ex

perie

nced

wer

e of

a p

ract

ical

natu

re (

e.g.

no

paym

ent

to t

he s

ervi

ce p

rovi

der

resu

lting

in th

e se

rvice

bei

ng te

rmin

ated

)

Ther

e ar

e no

leg

al ba

rrie

rs t

hat

wer

e re

porte

d or

de

tect

ed.

The

shar

ing

of

data

reg

iona

lly is

ref

erre

d to

imm

ediat

ely

belo

w.

16Sh

arin

g of

Ope

ratio

nal M

CS

Info

rmat

ion

The

syst

em o

f sha

ring

of in

form

atio

n in

the

Vict

oria

regi

on w

as re

porte

d to

be

wor

king

wel

l. Al

so se

e be

low

.

Ther

e ar

e no

leg

al ba

rrie

rs t

hat

wer

e re

porte

d or

det

ecte

d, b

ut le

gal in

terv

entio

n m

ight

be

adva

ntag

eous

. See

the

disc

ussio

n in

the

main

text

.17

Lega

l Cha

lleng

es an

d Ba

rrie

rs to

the

Shar

ing

of

Dat

a to

Ena

ble

Dev

elop

men

t and

Fun

ctio

ning

of

the

Reg

iona

l M

CS

Dat

a an

d O

pera

tions

C

entre

It w

as re

porte

d th

at d

ata

is sh

ared

with

the

IOTC

, bu

t th

at s

omet

imes

sha

ring

of i

nfor

mat

ion

with

ne

ighb

ourin

g co

untri

es o

r ot

her

coun

tries

in t

he

regi

on d

oes

not

take

plac

e, a

lthou

gh t

here

is a

ne

ed fo

r it.

As a

bove

, the

re a

re n

o le

gal b

arrie

rs th

at

wer

e re

porte

d or

de

tect

ed,

but

lega

l in

terv

entio

n m

ight

be

adva

ntag

eous

. Se

e th

e di

scus

sion

in th

e m

ain te

xt.


Annex 4


4.3

MA

DA

GA

SCA

RTO

RIS

SUES

REV

IEW

EVA

LUA

TIO

N

The

curr

ent

1993

leg

islat

ion

is ou

tdat

ed,

but

mos

t of t

he g

aps

and

insu

fficie

ncie

s ar

e ad

dres

sed

via

the

2007

Bill.

The

y ar

e als

o in

the

pro

cess

of

pre

parin

g a

law o

n aq

uacu

lture

and

hav

e re

ques

ted

assis

tanc

e in

this

rega

rd.

The

2007

Bill

is no

t ye

t in

for

ce.

The

draf

t als

o or

igin

ates

fro

m

2005

, an

d alr

eady

req

uire

s up

datin

g. In

add

ition

, the

ne

cess

ary

impl

emen

ting

text

mus

t also

still

be d

rafte

d.Th

e rev

iew

, fina

lisat

ion a

nd im

plem

enta

tion

of

the

2007

Bi

ll m

ust

rece

ive

urge

nt

atte

ntio

n. S

ome

amen

dmen

ts h

ave

alrea

dy

been

pre

pare

d an

d th

ey a

re w

aitin

g fo

r pa

rliam

ent

to c

onve

ne.

Assis

tanc

e w

ith

the

prep

arat

ion

of

the

legi

slatio

n on

aq

uacu

lture

can

also

be

prov

ided

.Th

e Bi

ll ha

s be

en

pres

ente

d to

st

akeh

olde

rs in

the

fishi

ng s

ecto

r, an

d th

e de

ep-w

ater

shr

imp

indu

stry

has

alre

ady

hire

d a

cons

ulta

nt t

o as

sist

them

in

this

rega

rd.

3Le

gal C

apac

ity to

Und

erta

ke M

CS

• Pr

osec

utio

nIn

the

last 3

-4 y

ears

onl

y on

e ca

se c

once

rnin

g th

e in

dust

rial fi

shin

g se

ctor

was

pro

secu

ted.

Thi

s w

as

a m

atte

r of

ille

gal fi

shin

g by

an

Indo

nesia

n ve

ssel

. W

hile

ther

e w

ere

othe

r cas

es o

f non

-com

plian

ce,

both

th

e au

thor

ities

an

d pe

rpet

rato

rs

pref

er

usin

g th

e co

mpo

undi

ng p

roce

ss (

also

desc

ribed

as

arb

itrat

ion/

med

iatio

n).

If

a fin

e is

not

paid

, th

e ve

ssel

can

be

seize

d an

d so

ld.

As fa

r as

the

tra

ditio

nal

fishi

ng

sect

or

is co

ncer

ned,

ty

pica

l co

ntra

vent

ions

inclu

de th

e us

e of

ille

gal g

ear a

nd

Know

ledg

e of

fish

erie

s le

gisla

tion

in t

he

judi

ciary

and

pro

secu

tion

is ve

ry lo

w, i

f not

to

tally

lack

ing.

The

lack

of a

ny r

etrib

utiv

e ac

tion

again

st

perp

etra

tors

in

th

e tra

ditio

nal

fishi

ng

sect

or is

a c

once

rn. W

hile

the

confi

scat

ion

of g

ear

and

catc

h is

to a

cer

tain

deg

ree

a de

terr

ent,

an a

dditi

onal

pena

lty,

even

if

fairl

y lo

w a

nd p

aid a

s an

adm

issio

n of

gui

lt fin

e, w

ill se

rve

as a

n ad

ditio

nal d

eter

rent

,

Lega

l Fra

mew

ork

Som

e G

ener

al

Rem

arks

on

th

e Le

gal F

ram

ewor

k


Annex 4


non-

com

plian

ce w

ith th

e pr

escr

iptio

ns r

egar

ding

clo

sed

seas

ons.

Som

e m

inor

case

s go

to co

urt,

but

mor

e of

ten

than

not

, in

spec

tors

onl

y co

nfisc

ate

the

gear

and

cat

ch,

and

do n

ot t

ake

any

furth

er

actio

n. T

he r

easo

ns fo

r th

is ar

e na

mel

y th

at t

he

max

imum

fine

s are

ver

y lo

w, t

he p

erpe

trato

rs a

re

very

poo

r, an

d th

e ef

fort

and

cost

of a

pro

secu

tion

is th

eref

ore

not j

ustifi

able

. Th

e C

SP c

ases

are

pre

pare

d by

a le

gal a

dviso

r, an

d th

en r

efer

red

to t

he p

erso

n in

cha

rge

of

the

com

pete

nt j

urisd

ictio

n. B

ecau

se t

here

are

so

few

cas

es g

oing

to

cour

t (m

ost

case

s ar

e co

mpo

unde

d),

ther

e is

very

lit

tle

know

ledg

e an

d ex

perie

nce

amon

gst

pres

idin

g of

ficer

s an

d pr

osec

utor

s on

fish

erie

s le

gisla

tion.

The

re is

also

a

huge

turn

over

am

ongs

t suc

h of

ficial

s. T

he lo

cal

terti

ary

inst

itutio

n do

es n

ot o

ffer

any

cour

ses

on

mar

ine

reso

urce

s law

. Th

e m

ore

serio

us c

ases

are

pro

secu

ted

usin

g law

yers

from

priv

ate

prac

tice.

The

re a

re h

owev

er

two

lawye

rs a

t th

e M

inist

ry w

ho a

ssist

with

the

pr

osec

utio

ns,

and

they

will

bene

fit f

rom

suc

h tra

inin

g.

In t

he la

st f

ew y

ears

som

e Fr

ench

and

Spa

nish

ve

ssel

s ha

ve

pref

erre

d go

ing

to

cour

t ov

er

com

poun

ding

. Th

ere

have

bee

n pr

oble

ms

with

th

e ad

miss

ibilit

y of

evi

denc

e, a

s w

ell a

s in

get

ting

info

rmat

ion

from

nei

ghbo

urin

g co

untri

es i

n an

ef

fort

to p

rove

the

viol

atio

ns. I

f con

vict

ed, t

hey f

ace

a fin

e an

d po

ssib

le fo

rfeitu

re, b

ut im

priso

nmen

t is

not a

pen

alty

optio

n.

and

shou

ld c

ontri

bute

to

low

erin

g th

e le

vels

of i

llega

l fis

hing

. Th

ere

does

not

se

em to

be

a le

gal b

arrie

r pre

vent

ing

this,

an

d it

is ra

ther

a m

atte

r of p

olicy

.D

ue t

o th

e ve

ry l

ow a

mou

nt o

f ca

ses

that

are

pro

secu

ted,

and

the

fac

t th

at

this

is do

ne o

n re

gion

al le

vel,

ther

e do

es

not

seem

to

be m

uch

valu

e in

tra

inin

g in

divi

duals

with

in th

e ju

dicia

l sys

tem

, as

it is

unlik

ely

that

they

will

actu

ally

be d

ealin

g w

ith s

uch

mat

ters

. As

law

yers

in p

rivat

e pr

actic

e ar

e pr

osec

utin

g th

e m

ore

serio

us

case

s, i

t m

ight

be

cont

ra p

rodu

ctiv

e to

pr

ovid

e tra

inin

g to

them

. Tr

ainin

g in

pros

ecut

ion

for t

he tw

o law

yers

ba

sed

at th

e M

inist

ry is

how

ever

requ

ired.

O

fficia

ls in

dica

ted

that

the

y ar

e ke

en t

o of

fer c

apac

ity tr

ainin

g in

thei

r ow

n of

fice.

It is

not

quite

cle

ar

whe

ther

su

ch

a sy

stem

of a

dmiss

ion

of g

uilt

fines

can

be

acco

mm

odat

ed

by

the

Mala

gasy

le

gal

syst

em. I

n ad

ditio

n, su

ch a

syst

em c

reat

es

a hu

ge a

dmin

istra

tive

burd

en, a

nd is

ope

n to

abu

se.

The

issue

s of

ad

miss

ibilit

y of

VM

S an

d ph

otog

raph

ic ev

iden

ce

are

bein

g ad

dres

sed

in th

e ne

w B

ill.


Annex 4


• Ad

min

istra

tive

pena

lties

/ co

mpo

undi

ng /

ad

miss

ion

of g

uilt

fines

Both

th

e au

thor

ities

an

d pe

rpet

rato

rs

pref

er

com

poun

ding

, as

it

is a

muc

h qu

icker

, sim

pler

pr

oces

s.

The

curr

ent

max

imum

fin

e fo

r th

e in

dust

rial fi

shin

g se

ctor

is fa

r to

o lo

w.

Paym

ents

de

term

ined

by

com

poun

ding

can

be

anyt

hing

be

twee

n th

e m

inim

um

and

max

imum

fin

es,

depe

ndin

g on

the

ser

ious

ness

of

the

offe

nce.

Fo

r th

e of

fenc

e of

fish

ing

with

out

a lic

ence

, th

e fin

e w

ill us

ually

be

the

max

imum

. Th

ere

is als

o a

syst

em o

f adm

inist

rativ

e fin

es fo

r tra

nsgr

essio

ns

in t

he fi

sh-t

radi

ng s

ecto

r, w

hich

see

ms

to w

ork

wel

l. Th

e co

mpo

undi

ng p

roce

ss is

not

use

d in

the

tradi

tiona

l fish

ing

sect

or.

Tran

sgre

ssio

ns s

uch

as fi

shin

g w

ithou

t lic

ence

or

the

fail

ure

to s

ubm

it ca

tch

data

, ar

e of

ten

com

poun

ded.

If

no c

onse

nsus

can

be

reac

hed,

th

e ca

se w

ill be

refe

rred

to c

ourt

for p

rose

cutio

n.

Max

imum

pe

nalti

es,

whi

ch

also

limit

the

amou

nt

paya

ble

in

term

s of

th

e co

mpo

undi

ng

proc

ess,

ar

e to

tally

in

adeq

uate

.W

hile

a s

yste

m o

f com

poun

ding

can

be

open

to

abus

e, it

pro

duce

s qu

icker

and

m

ore

succ

essfu

l res

ults

with

in th

e cu

rren

t sit

uatio

n an

d sy

stem

.

See

the

disc

ussio

n on

pen

altie

s be

low

un

der (

1).

1Le

gal

Cha

lleng

es

&

Barr

iers

to

Im

prov

ing

Com

plian

ce L

evel

s w

ith N

atio

nal

Law

and

Pr

ovisi

ons

of R

FBs

• Pe

nalti

esTh

e 19

93

legi

slatio

n is

outd

ated

(th

e te

rm

“obs

olet

e”

has

been

us

ed

as

wel

l) an

d th

e m

axim

um p

enalt

ies a

re in

suffi

cient

. Pen

altie

s giv

en

unde

r th

e co

mpo

undi

ng p

roce

ss w

ere

repo

rted

to b

e to

o lo

w to

ser

ve a

s an

effe

ctiv

e de

terr

ent.

The

new

200

7 Bi

ll ho

wev

er a

ddre

sses

this

issue

.W

hile

impr

isonm

ent i

s no

t an

optio

n fo

r fis

herie

s of

fenc

es in

gen

eral,

impr

isonm

ent

is all

owed

by

the

pena

l sys

tem

if su

ch a

n of

fenc

e is

acco

mpa

nied

by

frau

dule

nt c

ondu

ct. .

The

re w

as a

rep

ort o

f a

case

whe

re s

eize

d go

ods

wer

e re

leas

ed d

ue to

The

curr

ent

max

imum

pe

nalti

es

are

insu

fficie

nt t

o ac

t as

a p

rope

r de

terr

ent.

Long

-ter

m im

priso

nmen

t is

not a

pen

alty

optio

n.

The

finali

satio

n an

d th

e im

plem

enta

tion

of

the

2007

Bill

mus

t rec

eive

urg

ent a

ttent

ion.

Al

so s

ee th

e di

scus

sion

rega

rdin

g th

is an

d im

priso

nmen

t as

a pe

nalty

opt

ion,

in th

e co

untry

disc

ussio

n.


Annex 4


irreg

ular

inte

rfere

nce

in t

he le

gal p

roce

ss b

y th

e tra

nsgr

esso

r. Su

ch c

ondu

ct c

an t

hen

resu

lt in

im

priso

nmen

t.In

the

cas

e of

rep

eat

offe

nder

s, t

he m

axim

um

pena

lty is

dou

bled

.

• O

ther

m

easu

res

that

ca

n se

rve

as

a de

terr

ent

(forfe

iture

, su

spen

sion

or

canc

ellat

ion

of li

cenc

es, s

uppl

emen

tary

or

othe

r adm

inist

rativ

e or

ders

)

The

curr

ent

legi

slatio

n pr

ovid

es f

or f

orfe

iture

of

the

ins

trum

enta

litie

s of

crim

e, a

nd a

Kor

ean

long

liner

w

as

forfe

ited

in

2002

an

d is

bein

g ut

ilised

as a

pat

rol v

esse

l. Th

ere

was

also

a re

port

abou

t a

pros

ecut

ion

in t

he n

inet

ies

whe

re t

he

cour

t ca

ncel

led

a fis

hing

lice

nce

afte

r co

nvict

ion.

In

add

ition

, th

ere

s an

adm

inist

rativ

e pr

oces

s all

owin

g fo

r th

e ca

ncel

latio

n or

sus

pens

ion

of a

lic

ense

(ba

sed

on a

set

of

prot

ocol

s/co

nditi

ons

atta

ched

to th

e iss

uing

of a

lice

nse)

.

The

2007

Bill

cont

ains a

dequ

ate

prov

ision

s on

forfe

iture

(see

arti

cle 6

7). T

here

doe

s no

t se

em t

o be

any

ser

ious

cha

lleng

es

and

barr

iers

rem

ainin

g, p

rovi

ded

the

Bill i

s fin

alise

d an

d im

plem

ente

d. It

was

poi

nted

ou

t tha

t the

200

7 Bi

ll alr

eady

dat

es fr

om

2005

, and

also

alre

ady

requ

ires

upda

ting.

The

finali

satio

n an

d th

e im

plem

enta

tion

of

the

2007

Bill

mus

t rec

eive

urg

ent a

ttent

ion.

Th

is m

ust

inclu

de a

re-

evalu

atio

n of

its

pr

ovisi

ons

to e

nsur

e th

at a

ll th

ese

issue

s ar

e co

vere

d.19

Lega

l Bar

riers

in t

he P

roce

dure

s fo

r Se

izure

, C

onfis

catio

n an

d D

ispos

al &

H

andl

ing

of

Evid

ence

It w

as r

epor

ted

that

no

prob

lem

s w

ith t

hese

pr

ovisi

ons

are

expe

rienc

ed in

pra

ctice

. Fis

herie

s in

spec

tors

can

how

ever

not

join

in jo

int i

nitia

l visi

ts

by c

usto

ms

and

othe

r de

partm

ents

, but

do

thei

r ow

n in

spec

tions

afte

rwar

ds.

If th

ey c

onfis

cate

lar

ge a

mou

nts

of fi

sh,

they

can

imm

ediat

ely

sell

the

fish

to th

e be

st o

ffer o

n te

nder

or c

an d

onat

e it

to a

cha

rity

or o

ther

inst

itutio

n.

Ther

e do

es n

ot s

eem

to

be a

ny s

erio

us

chall

enge

s an

d ba

rrie

rs

in

prac

tice.

Th

e 20

07 B

ill co

vers

the

se i

ssue

s qu

ite

subs

tant

ially,

but

it w

ill be

exp

edie

nt to

do

a th

orou

gh e

valu

atio

n of

thes

e pr

ovisi

ons.

The

1993

legi

slatio

n ho

wev

er, is

out

date

d,

and

thes

e pr

ovisi

ons m

ust b

e re

-eva

luat

ed

and

refin

ed in

the

draf

t leg

islat

ion.

6

Lega

l Ba

rrie

rs t

o Im

plem

entin

g an

Effe

ctiv

e Fis

herie

s In

spec

tora

te


Annex 4


• Ap

poin

tmen

t of F

isher

ies

Insp

ecto

rsTh

e ap

poin

tmen

t re

quire

men

t fo

r fis

herie

s in

spec

tors

is

a 3-

year

ter

tiary

qua

lifica

tion,

and

fu

rther

in-h

ouse

train

ing

is th

en p

rovi

ded.

It w

as

repo

rted

that

the

new

Bill

also

rein

forc

es th

e ro

le

of th

e C

SP.

Ther

e ar

e tw

o ty

pes

of i

nspe

ctor

s: p

olice

and

civ

il. In

spec

tors

are

cuu

rren

tly ro

tate

d ev

ery

thre

e ye

ars:

the

pol

ice i

nspe

ctor

s ro

tate

with

in t

he

polic

e sy

stem

and

the

civil i

nspe

ctor

s to

a di

ffere

nt

loca

tion.

No

lega

l ba

rrie

rs

rega

rdin

g th

e ap

poin

tmen

t of fi

sher

ies

insp

ecto

rs w

ere

repo

rted

or d

etec

ted.

This

aspe

ct i

s de

alt w

ith i

n th

e 20

07

Bill,

and

whi

le t

here

are

no

appa

rent

sh

ortc

omin

gs,

it m

ight

be

ex

pedi

ent

to in

clude

thi

s iss

ue a

s pa

rt of

a g

ener

al re

view

and

eva

luat

ion

of th

e Bi

ll pr

ior

to

impl

emen

tatio

n.

• C

orru

ptio

nRe

ports

an

d co

mpl

aints

of

po

ssib

le

corr

upt

activ

ities

wer

e re

ceiv

ed, b

ut n

o pr

osec

utio

ns fo

r co

rrup

tion

by fi

sher

y in

spec

tors

hav

e ta

ken

plac

e.

The

lack

of t

rans

pare

ncy

in t

he c

ompo

undi

ng

proc

ess

was

also

men

tione

d as

a p

robl

em in

this

rega

rd. A

furth

er c

once

rn w

as th

e cu

mbe

rsom

e ad

min

istra

tive

prov

ision

s, w

hich

gra

nt a

lot

of

pow

er to

the

adm

inist

ratio

n, c

ould

pos

sibly

fost

er

corr

uptio

n.

The

rota

tion

proc

ess

for

insp

ecto

rs

(see

im

med

iatel

y ab

ove)

is

a go

od

met

hod

of

com

batin

g co

rrup

tion.

Cor

rupt

ion

rem

ains

a dr

awba

ck

to

effe

ctiv

e en

forc

emen

t. Th

e on

ly s

trict

ly

lega

l req

uire

men

t is

that

cor

rupt

ion

mus

t be

an

offe

nce

in t

erm

s of

Mala

gasy

law

, w

hich

is th

e ca

se.

The

adm

inist

rativ

e pr

ovisi

ons

in

the

legi

slatio

n, a

nd i

t se

ems

that

thi

s is

also

the

case

with

the

proc

edur

es in

the

2007

Bi

ll, c

an p

ossib

ly a

ccom

mod

ate

corr

upt

activ

ities

.A

poss

ible

in

terv

entio

n co

uld

be

inve

stig

ativ

e an

d le

gal

assis

tanc

e to

co

mba

t cor

rupt

ion.

The

feas

ibilit

y of

suc

h as

sista

nce

mig

ht h

owev

er b

e pr

oble

mat

ic.

A re

view

of t

he 2

007

Bill

mus

t also

focu

s on

th

e ad

min

istra

tive

proc

esse

s in

an

ef

fort

to m

ake

such

pro

cess

es tr

ansp

aren

t an

d en

sure

tha

t th

e pr

oces

ses

do n

ot

fost

er c

orru

pt p

ract

ices.


Annex 4


• SO

P’s

& M

anua

lsTh

ere

are

SOPs

for

the

pat

rol v

esse

ls, b

ut n

ot

for

the

insp

ecto

rate

(the

y ha

ve a

man

ual).

It w

as

repo

rted

that

the

se d

ocum

ents

dat

e fro

m 1

999

and

requ

ire c

ompr

ehen

sive

upda

ting.

The

lack

of c

ompr

ehen

sive

SOPs

and

m

anua

ls fo

r ins

pect

ors

is a

conc

ern.

• Fu

ndin

g fro

m fi

nes,

pen

altie

s an

d sa

le o

f fo

rfeite

d fis

h.Th

e m

ajor

sour

ce o

f the

bud

get

is th

e re

venu

e co

llect

ed fr

om li

cens

es a

nd p

enalt

ies,

of w

hich

a

fairl

y lar

ge p

erce

ntag

e is

used

to fu

nd th

e C

SP (i

t do

es h

owev

er fi

rst g

oes

to th

e ge

nera

l tre

asur

y).

Ther

e do

es n

ot s

eem

to

be a

ny l

egal

chall

enge

s or

bar

riers

in th

is re

gard

.N

o in

terv

entio

n is

requ

ired.

2H

arm

onisa

tion

of L

egisl

atio

n (In

tern

al)D

urin

g th

e in

terv

iew

s it

was

poi

nted

out

tha

t as

th

e Bi

ll w

as a

lread

y dr

afte

d in

200

5, it

req

uire

s up

datin

g.

As

far

as

inte

rnal

harm

onisa

tion

is co

ncer

ned,

the

nec

essa

ry i

mpl

emen

ting

text

m

ust

still

be

draf

ted

(opi

nion

ex

pres

sed

durin

g th

e in

terv

iew

s),

or

the

curr

ent

decr

ees

and

orde

rs m

ust

be

adap

ted

to th

e Bi

ll, an

d ou

ght t

o ev

entu

ally

be c

onso

lidat

ed (

info

rmat

ion

from

the

dr

aft N

POA)

.Si

nce

the

2007

dra

ft re

quire

s rev

ision

, and

th

e im

plem

entin

g te

xt m

ust s

till b

e dr

afte

d,

or a

dapt

ed fr

om th

e cu

rren

t dec

rees

and

or

ders

, thi

s asp

ect m

ust a

lso b

e ta

ken

into

co

nsid

erat

ion

durin

g th

at p

roce

ss.

4Le

gal

Cha

lleng

es

and

Barr

iers

to

th

e Im

plem

enta

tion

of

Effe

ctiv

e N

atio

nal

&

Regi

onal

MC

S (n

ote

that

th

e sh

arin

g of

in

form

atio

n w

ill be

ad

dres

sed

unde

r (1

6)

belo

w)


Annex 4


• In

vest

igat

ive

Abilit

yTh

e fo

cus

of e

nfor

cem

ent

is on

ind

ustri

al an

d ar

tisan

al fis

herie

s, b

ut tr

aditi

onal

fishe

ries

are

not

exclu

ded.

It w

as in

itiall

y re

porte

d th

at in

spec

tors

ar

e em

pow

ered

to d

o in

vest

igat

ions

, and

do

have

th

e ne

cess

ary

skills

to d

o so

. An

add

ition

al re

port

how

ever

con

tradi

cted

thi

s to

som

e de

gree

and

re

ques

ted

that

insp

ecto

rs b

e pr

ovid

ed w

ith m

ore

train

ing

in in

vest

igat

ive

tech

niqu

es.

A re

lated

iss

ue,

thou

gh m

ore

relat

ed t

o th

e de

tect

ion

than

the

inve

stig

atio

n of

offe

nces

, is

a pr

opos

al in

the

draf

t NPO

A th

at in

form

ers s

houl

d be

paid

a p

erce

ntag

e of

the

pena

lty w

here

thei

r in

form

atio

n or

evi

denc

e le

ads

to a

con

vict

ion.

Insp

ecto

rs r

equi

re a

dditi

onal

train

ing

on

inve

stig

ativ

e te

chni

ques

and

skil

ls.

Rega

rdin

g th

e pr

opos

al in

the

draf

t NPO

A th

at in

form

ers s

houl

d be

paid

a pe

rcen

tage

of

the

pena

lty w

here

thei

r in

form

atio

n or

ev

iden

ce le

ads

to a

con

vict

ion:

Thi

s is

a fa

irly

com

mon

pr

ovisi

on

in

legi

slatio

n,

but t

he p

ract

ical e

ffect

of s

uch

a pr

ovisi

on

is of

ten

misu

nder

stoo

d.

The

fact

th

at

a w

itnes

s m

ay

stan

d to

ga

in

finan

cial

adva

ntag

e by

a c

onvi

ctio

n, i

mm

ediat

ely

cast

s do

ubt

on t

he t

ruth

fuln

ess

of s

uch

evid

ence

.•

Train

ing

Whi

le th

e m

ore

seni

or in

spec

tors

hav

e un

derg

one

train

ing,

ther

e ar

e qu

ite a

few

you

ng r

ecru

its th

at

requ

ire tr

ainin

g.

Also

see

the

rem

arks

reg

ardi

ng t

he u

se o

f VM

S da

ta a

s ev

iden

ce u

nder

(14)

bel

ow.

Ther

e is

a ne

ed fo

r tra

inin

g of

insp

ecto

rs.

It w

as p

oint

ed o

ut b

y an

MC

S sp

ecial

ist

that

the

engi

ne lo

g, fr

eeze

r log

and

ves

sel

navi

gatio

n sy

stem

are

all

valu

able

tool

s in

pr

ovin

g ce

rtain

act

ions

tha

t m

ight

ser

ve

as e

vide

nce

of t

he c

omm

issio

n of

the

of

fenc

e. T

he p

ract

ical a

pplic

atio

n of

suc

h as

pect

s sh

ould

be

cove

red

in p

ossib

le

train

ing

inte

rven

tions

.Ba

sic

train

ing

for

new

re

crui

ts

and

spec

ialise

d tra

inin

g fo

r m

ore

expe

rienc

ed

insp

ecto

rs, e

.g. o

n in

vest

igat

ion

tech

niqu

es

and

skills

, will

be v

aluab

le•

Obs

erve

rsO

bser

vers

are

pres

ent o

n in

dust

rial fi

shin

g ve

ssel

s.

The

prim

ary

role

of

obse

rver

s is

still

scie

ntifi

c m

onito

ring,

but

the

y do

rep

ort

on i

nfra

ctio

ns.

Ther

e is

daily

con

fiden

tial d

irect

com

mun

icatio

n w

ith o

bser

vers

.


Annex 4


Whi

le

non-

scie

ntifi

c ob

serv

ers

wer

e in

itiall

y re

crui

ted,

the

y all

had

scie

ntifi

c de

gree

s. T

here

ar

e no

w 8

obs

erve

rs a

ppoi

nted

at v

ario

us le

vels,

an

d th

ey h

ave

rece

ived

add

ition

al tra

inin

g.9

Lega

l Bar

riers

to th

e Ad

optio

n of

Risk

Ana

lysis

M

etho

dolo

gyTh

ere

are

no l

egal

barr

iers

dire

ctly

infl

uenc

ing

this

issue

. Rel

ated

issu

es h

owev

er in

clude

the

fact

th

at li

mite

d en

forc

emen

t is

done

in th

e tra

ditio

nal

fishe

ries

sect

or. A

noth

er is

sue

that

was

rep

orte

d w

as t

hat

the

Nav

y w

ants

mor

e re

spon

sibilit

y w

ith r

egar

d to

enf

orce

men

t of fi

sher

ies

offe

nces

. At

tem

pts

have

bee

n m

ade

to a

gree

to

a M

OU

, bu

t the

se h

ave

been

uns

ucce

ssfu

l.

Ther

e do

es n

ot s

eem

to

be a

ny l

egal

chall

enge

s or

bar

riers

in th

is re

gard

.N

o in

terv

entio

n is

requ

ired.

7C

aree

r Pat

h fo

r Fish

erie

s In

spec

tors

It w

as r

epor

ted

that

the

re is

no

form

al gr

adin

g sy

stem

for i

nspe

ctor

s, b

ut th

at m

ore

expe

rienc

ed

offic

ials g

et a

hig

her s

alary

. Ins

pect

ors f

orm

par

t of

the

civil

serv

ice.

Ther

e do

es n

ot s

eem

to

be a

ny l

egal

chall

enge

s or

bar

riers

in th

is re

gard

.N

o in

terv

entio

n is

requ

ired.

Artic

le 3

of

the

2007

Bill

does

pro

vide

for

the

es

tabl

ishm

ent o

f con

serv

atio

n m

easu

res a

pplic

able

to

, and

the

man

agem

ent o

f, sh

ared

, stra

ddlin

g or

hi

ghly

mig

rato

ry s

tock

s, a

nd p

laces

an

oblig

atio

n on

the

Min

ister

of

Fishe

ries

to c

onsu

lt w

ith t

he

othe

r st

ates

in th

e re

gion

or

sub-

regi

on, i

n or

der

to h

arm

onise

and

to e

nsur

e co

mpa

tibilit

y of

suc

h m

easu

res

with

thos

e ad

opte

d by

eac

h St

ate

and

in a

ccor

danc

e w

ith th

e pr

ovisi

ons

of in

tern

atio

nal

conv

entio

ns

and

agre

emen

ts

to

whi

ch

the

Mala

gasy

sta

te is

a p

arty

.

Ther

e ar

e ho

wev

er in

adeq

uacie

s in

the

le

gisla

tion.

Sin

ce t

he 2

007

draf

t re

quire

s re

visio

n,

and

the

impl

emen

ting

text

m

ust

still

be d

rafte

d, it

will

be e

xped

ient

to

ens

ure

that

the

new

Bill

cont

ains

all

the

nece

ssar

y pr

ovisi

ons

to e

nsur

e th

e im

plem

enta

tion

of r

egio

nal

agre

emen

ts

and

stan

dard

s, a

nd th

at it

gra

nts

suffi

cient

po

wer

s to

insp

ecto

rs to

be

able

to d

etec

t no

n-co

mpl

iance

an

d ta

ke

appr

opria

te

enfo

rcem

ent a

ctio

n.

Lega

l ch

alle

nges

and

Bar

rier

s to

the

Im

plem

enta

tion

/Ado

ptio

n of

Reg

iona

l A

gree

men

ts &

Sta

ndar

ds

Som

e ge

nera

l re

mar

ks o

n Le

gal

Cha

lleng

es

and

Barr

iers

to

the

Impl

emen

tati

on/A

dopt

ion

of R

egio

nal A

gree

men

ts &

Sta

ndar

ds


Annex 4


It w

as r

epor

ted

that

the

200

7 Bi

ll w

as

alrea

dy d

rafte

d in

200

5, a

nd th

at v

ario

us

new

reso

lutio

ns h

ave

been

ado

pted

sinc

e 20

05. T

he 2

007

Bill

shou

ld th

eref

ore

be

revi

ewed

to

ensu

re t

hat

all b

arrie

rs t

o th

e ef

fect

ive

impl

emen

tatio

n of

reg

iona

l ag

reem

ents

and

sta

ndar

ds a

re i

dent

ified

an

d de

alt w

ith.

5Im

plem

enta

tion

of th

e IU

U N

POA

The

NPO

A ha

s be

en

finali

sed,

bu

t st

ill no

t ad

opte

d. T

here

was

how

ever

a r

eque

st th

at th

e dr

aft r

equi

res

upda

ting.

No

dire

ct re

ason

s for

this

delay

wer

e be

pro

vide

d.

Ther

e is

no le

gal b

arrie

r to

the

adop

tion

of

the

NPO

A. A

s fa

r as

the

impl

emen

tatio

n is

conc

erne

d, t

he d

raft

NPO

A hi

ghlig

hts

man

y of

the

sho

rtcom

ings

and

iden

tifies

ce

rtain

mea

sure

s to

be u

nder

take

n, m

any

of w

hich

are

also

inco

rpor

ated

in th

e m

ain

text

of t

he re

view

.N

o in

terv

entio

n is

requ

ired,

but

ass

istan

ce

with

a r

evie

w o

f the

NPO

A dr

aft w

ill be

he

lpfu

l.10

Parti

cipat

ion

in t

he I

OC

MC

S Re

gion

al Pl

an

for t

he S

outh

Wes

t Ind

ian O

cean

Prob

lem

s w

ith t

he p

artic

ipat

ion

wer

e re

porte

d,

and

it w

as r

epor

ted

that

the

nece

ssar

y re

sour

ces

are

alloc

ated

to

this

task

. Th

ere

does

not

see

m

to b

e an

y le

gal b

arrie

r to

par

ticip

atio

n in

the

IOC

M

CS

Regi

onal

Plan

for

the

Sou

th W

est

Indi

an

Oce

an.

No

lega

l ba

rrie

rs i

n th

is re

gard

wer

e re

porte

d or

det

ecte

d.

8Im

plem

enta

tion

of IO

TC P

ort S

tate

Mea

sure

Re

solu

tions

&

FA

O

Port

Stat

e M

easu

re

Agre

emen

t Pro

visio

ns

The

barr

iers

rep

orte

d w

ere

of a

pra

ctica

l nat

ure

– th

e IO

TC P

SMs

are

not

bein

g ap

plie

d du

e to

a

lack

of r

esou

rces

. Th

ere

are

som

e co

ntro

ls in

pl

ace,

but

thes

e ar

e in

adeq

uate

.

Thou

gh n

ot s

trict

ly s

peak

ing

a le

gal i

ssue

, th

ere

wer

e so

me

conc

erns

exp

ress

ed b

y th

e IO

TC.

Thes

e ar

e ad

dres

sed

in t

he

main

text

. The

FAO

-PSM

and

IOTC

-PSM

ar

e ve

ry s

imila

r. Th

e sc

ope

of t

his

stud

y do

es n

ot a

llow

for a

det

ailed

inve

stig

atio

n


Annex 4


into

whe

ther

thes

e re

solu

tions

hav

e be

en

adeq

uate

ly

inco

rpor

ated

in

to

dom

estic

le

gisla

tion

and

a th

orou

gh

revi

ew

of

the

legi

slativ

e fra

mew

ork

is re

quire

d to

en

sure

that

all

reso

lutio

ns a

re a

dequ

atel

y in

corp

orat

ed

in

dom

estic

le

gisla

tion.

Th

is m

ust

take

int

o ac

coun

t th

at n

ew

reso

lutio

ns h

ave

been

ado

pted

sin

ce th

e 20

07 B

ill w

as d

rafte

d in

200

5.11

Addi

tiona

l Leg

al Ba

rrie

rs to

the

Dev

elop

men

t &

Impl

emen

tatio

n of

Exi

stin

g IO

TC R

esol

utio

nsSo

me

of th

e ge

nera

l pro

blem

are

as in

this

rega

rd

are

disc

usse

d in

the

main

tex

t. Th

e in

adeq

uate

pr

ovisi

ons

on in

spec

tion

are

bein

g ad

dres

sed

via

the

new

dra

ft. W

hile

a c

omm

ent w

as m

ade

that

an

ann

ual,

or a

t lea

st r

egul

ar, r

evisi

on o

f nat

iona

l le

gisla

tion

wou

ld b

e id

eal,

it is

mig

ht b

e un

reali

stic

in li

ght

of t

he f

act

the

2007

dra

ft ha

ve n

ot y

et

been

fina

lised

.O

ther

pra

ctica

l iss

ues

inclu

ded

the

fact

that

ther

e ar

e nu

mer

ous

reso

lutio

ns, b

ut li

mite

d re

sour

ces.

Th

ere

was

an

atte

mpt

to c

ompl

y, bu

t the

re is

also

a

very

larg

e ar

ea to

cov

er d

ue to

the

size

of th

e co

untry

’s co

astli

ne a

nd s

ea.

A re

view

of

th

e M

alaga

sy

fishe

ries

legi

slatio

n to

ens

ure

prop

er in

corp

orat

ion

of IO

TC re

solu

tions

wou

ld b

e id

eal.

15Le

gal B

arrie

rs t

o th

e St

reng

then

ing

of O

ther

C

entra

l M

CS

Func

tions

Pre

scrib

ed b

y th

e IO

TC

No

lega

l bar

riers

in th

is re

gard

wer

e re

porte

d or

de

tect

ed.

No

inte

rven

tion

is re

quire

d.

18Ad

optio

n of

C

omm

on

ESA-

IO

Regi

onal

Stan

dard

s fo

r Li

cens

ing

of V

esse

ls (in

cludi

ng a

na

tiona

l reg

ister

of v

esse

ls)

No

lega

l ba

rrie

rs i

n th

is re

gard

wer

e re

porte

d or

det

ecte

d. A

rticle

28

of th

e 20

07 B

ill pr

ovid

es

that

the

reg

istra

tion

of v

esse

ls is

a pr

ereq

uisit

e to

obt

ainin

g a

licen

se.

It w

as r

epor

ted

that

the

y fo

llow

the

IOC

and

IOTC

pre

scrip

tions

in th

is

No

inte

rven

tion

is re

quire

d.


Annex 4


rega

rd,

and

that

a n

atio

nal r

egist

er o

f ve

ssel

s is

in p

lace.

Bef

ore

a ve

ssel

is li

cens

ed, t

hey

will

first

de

term

ine

whe

ther

it is

blac

klist

ed o

r not

.

2H

arm

onisa

tion

of L

egisl

atio

n (b

etw

een

ESA-

IO c

ount

ries)

A re

mar

k w

as m

ade

that

Mala

gasy

pen

altie

s ar

e pr

obab

ly th

e lo

wes

t in

the

regi

on. O

ther

rep

orts

an

d th

e dr

aft N

POA

also

refe

rs to

the

inad

equa

cy

of p

enalt

ies.

Thi

s is

how

ever

bei

ng a

ddre

ssed

in

the

new

Bill.

Thi

s iss

ue is

furth

er d

iscus

sed

in th

e m

ain te

xt.

Inte

rven

tion

is re

quire

d.

The

issue

of

ha

rmon

isatio

n w

as h

ighl

ight

ed a

s a m

atte

r re

quiri

ng a

ttent

ion

if th

e Bi

ll is

revi

sed,

an

d th

ere

is an

eag

erne

ss to

add

ress

this

issue

. Se

e th

e di

scus

sion

in t

he r

evie

w

docu

men

t.

As a

gen

eral

rem

ark

not

spec

ific

to M

adag

asca

r, th

e lac

k of

pro

visio

ns o

n th

e sh

arin

g of

info

rmat

ion

in le

gisla

tion

was

hig

hlig

hted

as

a pr

oble

m a

rea

by t

he I

OTC

. Ex

cept

for

as

indi

cate

d be

low

, no

spe

cific

lega

l pr

oble

ms

in t

his

rega

rd w

ere

repo

rted

or d

etec

ted.

In p

ract

ice s

ome

coun

tries

ar

e ho

wev

er re

luct

ant t

o sh

are

info

rmat

ion.

The

esta

blish

men

t of

co

mpa

tible

da

ta

colle

ctio

n or

rep

ortin

g sy

stem

s an

d th

e sh

arin

g of

dat

a an

d in

form

atio

n re

gion

ally

do n

ot n

eces

saril

y re

quire

any

legi

slativ

e pr

escr

iptio

ns.

In v

iew

of

the

prob

lem

s ex

perie

nced

in p

ract

ice, i

t mig

ht h

owev

er

be e

xped

ient

to in

corp

orat

e so

me

of th

e re

gion

al ob

ligat

ions

in

this

rega

rd i

nto

dom

estic

legi

slatio

n.

This

can

be fu

rther

ex

plor

ed in

a re

view

of t

he 2

007

Bill.

12Es

tabl

ishm

ent o

f a C

ompa

tible

Dat

a Col

lect

ion

Syst

em

(Thi

s in

clude

s da

ta

for

scie

ntifi

c pu

rpos

es a

nd fo

r M

CS,

suc

h as

a li

st/r

egist

er

of lic

ense

s, a

regi

ster

of fi

shin

g ve

ssel

s, p

erm

its

and

licen

ses,

th

e in

form

atio

n co

llect

ed

in

term

s of

the

PSM

A).

The

data

col

lect

ion

syst

em fo

r th

e sh

rimp-

fishi

ng

sect

or h

as b

een

in p

lace

for

man

y ye

ars

and

is w

orkin

g w

ell.

Prac

tical

prob

lem

s ar

e ho

wev

er

expe

rienc

ed in

the

tra

ditio

nal a

nd fo

reig

n fis

hing

se

ctor

. So

me

data

fro

m t

he t

una-

fishi

ng s

ecto

r an

d on

im

ports

and

exp

orts

are

rec

eive

d, b

ut

the

syst

em is

not

wor

king

wel

l and

nee

ds t

o be

ce

ntra

lised

.

No

lega

l bar

riers

wer

e ho

wev

er re

porte

d or

de

tect

ed.

Also

se

e th

e ge

nera

l co

mm

ents

abo

ve.

13Es

tabl

ishm

ent

of

a C

ompa

tible

Re

porti

ng

Syst

em fo

r Tun

a Fis

herie

s St

atist

icsSe

e th

e re

mar

ks im

med

iatel

y ab

ove.

See

the

gene

ral c

omm

ents

abo

ve.

Lega

l C

halle

nges

and

Bar

rier

s to

Reg

iona

l C

o-op

erat

ion

& In

form

atio

n Sh

arin

g

Som

e ge

nera

l rem

arks

on

Lega

l Cha

lleng

es

and

Barr

iers

to

Regi

onal

Co-

oper

atio

n &

In

form

atio

n Sh

arin

g


Annex 4


14Im

plem

enta

tion

of a

Nat

iona

l VM

S &

Sha

ring

of D

ata

Regi

onall

yTh

e VM

S sy

stem

is fu

nctio

ning

wel

l, bu

t the

dat

a is

not c

entra

lised

any

whe

re. T

here

are

acc

redi

ted

pers

onne

l and

insp

ecto

rs t

o re

act

to in

fract

ions

id

entifi

ed v

ia th

e VM

S sy

stem

. A

relat

ed i

ssue

, w

hich

is o

f ext

rem

e im

porta

nce

to th

e us

e of

VM

S da

ta in

pro

secu

tions

or

othe

r pr

ocee

ding

s, is

the

diffi

culti

es e

xper

ienc

ed w

ith t

he a

dmiss

ibilit

y of

su

ch e

vide

nce

(it is

see

n as

com

pute

r ge

nera

ted

evid

ence

). It

was

rep

orte

d th

at th

ere

have

bee

n pr

oble

ms

with

the

cou

rts n

ot w

illing

to

acce

pt

VMS

data

and

sim

ilar

evid

ence

as

adm

issib

le.

Ther

e w

as a

cas

e las

t ye

ar w

here

tw

o Re

unio

n ve

ssel

s w

ere

fined

, bu

t th

ey d

isput

ed t

he V

MS

evid

ence

. Bec

ause

it w

as o

nly

a fe

w w

eeks

bef

ore

they

had

to r

enew

thei

r lic

ense

s, th

ey e

vent

ually

pa

id th

e fin

es.

In t

he la

st f

ew y

ears

som

e Fr

ench

and

Spa

nish

ve

ssel

s ha

ve

pref

erre

d go

ing

to

cour

t ov

er

com

poun

ding

. Th

ere

have

bee

n pr

oble

ms

with

ob

tain

ing i

nfor

mat

ion

from

nei

ghbo

urin

g cou

ntrie

s in

an

effo

rt to

pro

ve th

e vi

olat

ions

.

The

2007

Bill

deals

spe

cifica

lly w

ith t

he

adm

issib

ility

of

VMS

and

phot

ogra

phic

evid

ence

.La

ck o

f as

sista

nce

from

oth

er c

ount

ries

in

the

regi

on

with

th

e ga

ther

ing

and

pres

enta

tion

of e

vide

nce

in c

ourt

have

ca

used

pr

oble

ms

in

prac

tice.

Se

e th

e ge

nera

l com

men

ts a

bove

.

16Sh

arin

g of

Ope

ratio

nal M

CS

Info

rmat

ion

It w

as r

epor

ted

that

Mad

agas

car

main

tain

s an

ef

fect

ive,

bu

t so

met

imes

in

form

al,

syst

em

of

com

mun

icatio

n w

ith R

euni

on a

nd M

ozam

biqu

e,

but

that

som

e ne

ighb

ourin

g co

untri

es d

o no

t pa

rticip

ate

freel

y, cla

imin

g th

at s

uch

info

rmat

ion

is co

nfide

ntial

.

The

auth

oriti

es

have

no

re

serv

atio

ns

abou

t the

shar

ing o

f info

rmat

ion

with

oth

er

coun

tries

in th

e re

gion

. See

how

ever

the

gene

ral c

omm

ents

abo

ve.

17Le

gal C

halle

nges

and

Bar

riers

to th

e Sh

arin

g of

D

ata

to E

nabl

e D

evel

opm

ent a

nd F

unct

ioni

ng

of t

he R

egio

nal

MC

S D

ata

and

Ope

ratio

ns

Cen

tre

See

the

com

men

ts a

bove

. N

o ad

ditio

nal

lega

l ba

rrie

rs w

ere

repo

rted

or d

etec

ted.

See

the

gene

ral c

omm

ents

abo

ve.


Annex 4


4.4

MA

URI

TIU

STO

RIS

SUES

REV

IEW

EVA

LUA

TIO

N

Mau

ritiu

s is i

n th

e pr

oces

s of u

pdat

ing t

heir

Fishe

ries

and

Mar

ine

Reso

urce

s Ac

t 20

/200

7 (d

efini

tions

, po

wer

s of

ins

pect

ors

and

the

impl

emen

tatio

n of

reg

iona

l ag

reem

ents

wer

e fa

ctor

s re

quiri

ng

atte

ntio

n th

at w

ere

spec

ifica

lly m

entio

ned.

Assis

tanc

e w

ith th

e up

datin

g pr

oces

s w

as

requ

este

d an

d is

reco

mm

ende

d.

3Le

gal C

apac

ity to

Und

erta

ke M

CS

• P

rose

cutio

nTh

e At

torn

ey–G

ener

al/D

PP i

s at

the

hea

d of

pr

osec

utio

ns in

the

cou

ntry

. T

he m

ore

serio

us

case

s (o

f w

hich

the

re a

re a

bout

2 o

r 3

a ye

ar)

are

usua

lly s

ettle

d vi

a th

e co

mpo

undi

ng p

roce

ss.

Man

y of

th

e m

inor

of

fenc

es

are

how

ever

pr

osec

uted

. In

such

cas

es th

e fis

herie

s in

spec

tors

co

nduc

t th

e pr

osec

utio

ns (

ther

e ar

e ab

out

200

such

insp

ecto

rs).

The

fishe

ries

auth

ority

doe

s no

t hav

e an

in-h

ouse

law

yer

or le

gal o

ffice

r, bu

t the

sta

te la

w o

ffice

has

a

lawye

r re

spon

sible

for

fish

erie

s m

atte

rs w

ho

assis

ts w

ith th

ese

mat

ters

.

Both

pro

secu

tors

and

fish

erie

s of

ficer

s co

nduc

ting

pros

ecut

ions

req

uire

tra

inin

g.

Awar

enes

s tra

inin

g fo

r pr

esid

ing

offic

ers

was

also

hig

hlig

hted

as

a ne

ed.

• Ad

min

istra

tive

pena

lties

/ co

mpo

undi

ng /

ad

miss

ion

of g

uilt

fines

The

legi

slatio

n pr

ovid

es f

or c

ompo

undi

ng,

and

an e

xper

ienc

ed ju

dge

head

s th

e co

mm

ittee

tha

t de

cides

on

com

poun

ding

. The

tran

sgre

ssor

mus

t ad

mit

guilt

in w

ritin

g. In

200

9 a

Mau

ritian

ves

sel

rece

ived

a 2

70 0

00 U

SD c

ompo

undi

ng fi

ne fo

r th

e co

ntra

vent

ion

of li

cens

e co

nditi

ons.

In

2010

th

ere

wer

e tw

o ca

ses,

a M

aurit

ian v

esse

l th

at

fishe

d w

ithou

t a

licen

se,

and

a Ta

iwan

ese

vess

el

that

had

124

,2 k

g of

sha

rk fi

n. T

he c

ases

wer

e

The

com

poun

ding

pro

cess

is fu

nctio

ning

w

ell a

nd n

o in

terv

entio

n is

requ

ired.

Lega

l Fra

mew

ork

Som

e G

ener

al R

emar

ks o

n th

e Le

gal F

ram

ewor

k


Annex 4


com

poun

ded

resu

lting

in a

1 m

illion

MR

and

800

000

MR

fine

resp

ectiv

ely.

So f

ar i

n 20

11 o

ne

fore

ign

vess

el w

as fi

ned

1 m

illion

MR

for

fishi

ng

with

out

a lic

ense

and

ano

ther

fore

ign

vess

el h

as

been

de

tain

ed.

The

com

poun

ding

pr

oces

s is

only

use

d in

the

cas

e of

ser

ious

tra

nsgr

essio

ns,

and

was

des

crib

ed a

s a

“qui

ck a

nd e

asy”

pro

cess

in

com

paris

on w

ith p

rose

cutio

n. T

here

is

no

adm

issio

n of

gui

lt sy

stem

for m

inor

offe

nces

.1

Lega

l C

halle

nges

& B

arrie

rs t

o Im

prov

ing

Com

plian

ce L

evel

s w

ith N

atio

nal

Law

and

Pr

ovisi

ons

of R

FBs

• Pe

nalti

es•

Oth

er

mea

sure

s th

at

can

serv

e as

a

dete

rren

t (fo

rfeitu

re,

susp

ensio

n or

ca

ncel

latio

n of

licen

ces,

supp

lem

enta

ry o

r ot

her a

dmin

istra

tive

orde

rs)

Ther

e ar

e pr

ovisi

on fo

r for

feitu

re a

nd su

spen

sion,

an

d re

leva

nt t

rans

gres

sions

are

rep

orte

d to

the

IO

TC.

19•

Lega

l Ba

rrie

rs

in

the

Proc

edur

es

for

Seizu

re,

Con

fisca

tion

and

Disp

osal

&

Han

dlin

g of

Evi

denc

e

No

lega

l cha

lleng

es o

r ba

rrie

rs w

ere

repo

rted

or

dete

cted

.N

o in

terv

entio

n is

requ

ired.

6Le

gal

Barr

iers

to

Impl

emen

ting

an E

ffect

ive

Fishe

ries

Insp

ecto

rate

• Ap

poin

tmen

t of F

isher

ies

Insp

ecto

rsN

o le

gal c

halle

nges

or

barr

iers

wer

e re

porte

d or

de

tect

ed.

• SO

P’s

& M

anua

lsM

aurit

ius

is in

the

proc

ess

of p

repa

ring

a SO

P fo

r po

rt in

spec

tion.

Add

ition

al M

anua

ls an

d SO

Ps a

re

requ

ired,

in a

dditi

on to

, or f

ollo

win

g on

train

ing.

• Fu

ndin

g fro

m fi

nes,

pen

altie

s an

d sa

le o

f fo

rfeite

d fis

h.Fin

es a

nd p

enalt

ies g

o to

the

treas

ury,

but a

spec

ial

fund

for t

hese

hav

e be

en p

ropo

sed

in th

e fis

herie

s m

anag

emen

t plan

.

No

inte

rven

tion

is re

quire

d.

2H

arm

onisa

tion

of L

egisl

atio

n (In

tern

al)


Annex 4


4Le

gal

Cha

lleng

es

and

Barr

iers

to

th

e Im

plem

enta

tion

of

Effe

ctiv

e N

atio

nal

&

Regi

onal

MC

S (n

ote

that

th

e sh

arin

g of

in

form

atio

n w

ill be

add

ress

ed u

nder

(16

) be

low

)

No

addi

tiona

l cha

lleng

es o

r bar

riers

wer

e re

porte

d or

det

ecte

d.N

o in

terv

entio

n is

requ

ired.

• In

vest

igat

ive

Abilit

yPe

rson

nel f

rom

the

Fish

erie

s M

inist

ry h

ave

been

tra

ined

to

wor

k on

the

inve

stig

atio

ns le

adin

g to

pr

osec

utio

n. T

hey

will

take

the

stat

emen

t, pr

epar

e th

e fil

e/do

cket

and

han

d it

to th

e St

ate

Law

Offi

ce.

The

pers

on r

espo

nsib

le fo

r fis

herie

s at

the

Sta

te

Law

Offi

ce r

efer

s th

ese

case

s fo

r pr

osec

utio

n (th

ere

are

abou

t 10

offic

ials

invo

lved

in th

is).

No

inte

rven

tion

is re

quire

d.

• Tr

ainin

gAd

ditio

nal t

rain

ing

for t

he “i

nves

tigat

ors”

and

oth

er

fishe

ries

insp

ecto

rs a

re r

equi

red.

Sub

ject

mat

ter

mus

t in

clude

the

boa

rdin

g of

ves

sels,

car

ryin

g ou

t of

sea

rche

s, g

athe

ring

evid

ence

, es

tabl

ishin

g th

e co

ntra

vent

ion,

inv

estig

atio

n te

chni

ques

and

pr

epar

atio

n of

file

s/do

cket

s. S

ome

of th

e fis

herie

s of

ficer

s als

o co

nduc

t pr

osec

utio

ns i

n th

e m

inor

ca

ses,

and

this

shou

ld b

e ad

dres

sed

as w

ell.

• O

bser

vers

No

inte

rven

tion

is re

quire

d.9

Lega

l Bar

riers

to th

e Ad

optio

n of

Risk

Ana

lysis

M

etho

dolo

gyN

o su

ch b

arrie

rs w

ere

repo

rted

or d

etec

ted,

but

se

e th

e co

mm

ent u

nder

18

belo

w.

No

inte

rven

tion

is re

quire

d.

7C

aree

r Pat

h fo

r Fish

erie

s In

spec

tors

In a

dditi

on t

o th

e Fis

herie

s In

spec

tora

te, t

here

is

also

a Po

rt St

ate

Con

trol U

nit.

All o

f the

se o

fficia

ls fo

rm p

art o

f the

civ

il se

rvice

.

No

inte

rven

tion

is re

quire

d.

Lega

l ch

alle

nges

an

d Ba

rrie

rs

to

the

Impl

emen

tati

on/A

dopt

ion

of

Regi

onal

Agr

eem

ents

& S

tand

ards


Annex 4


5Im

plem

enta

tion

of th

e IU

U N

POA

The

IUU

-NPO

A is

in p

lace,

and

whi

le t

here

are

no

spe

cific

barr

iers

to

its i

mpl

emen

tatio

n th

at

wer

e re

porte

d or

det

ecte

d, t

he A

ct is

abo

ut t

o be

rev

iew

ed a

nd d

urin

g th

is pr

oces

s it

mus

t be

en

sure

d th

at t

he N

POA

rem

ains

in li

ne w

ith t

he

legi

slatio

n.

No

inte

rven

tion

is re

quire

d.

10Pa

rticip

atio

n in

the

IO

C M

CS

Regi

onal

Plan

fo

r the

Sou

th W

est I

ndian

Oce

anN

o in

terv

entio

n is

requ

ired.

8Im

plem

enta

tion

of IO

TC P

ort S

tate

Mea

sure

Re

solu

tions

&

FA

O

Port

Stat

e M

easu

re

Agre

emen

t Pro

visio

ns

See

the

com

men

ts fr

om th

e AC

PFish

II r

epor

t in

the

main

text

.Pl

ease

see

the

disc

ussio

n in

the

main

text

.

11Ad

ditio

nal L

egal

Barr

iers

to th

e D

evel

opm

ent

&

Impl

emen

tatio

n of

Ex

istin

g IO

TC

Reso

lutio

ns

It w

as r

epor

ted

that

som

e pr

ovisi

ons

in t

he A

ct

wer

e lac

king,

an

d th

at

the

IOTC

re

solu

tions

ne

ed t

o be

sim

plifi

ed. T

here

are

also

rep

orte

dly

prob

lem

s w

ith

the

inte

rpre

tatio

n of

ce

rtain

re

solu

tions

.

Plea

se se

e th

e di

scus

sion

in th

e m

ain te

xt.

15Le

gal B

arrie

rs to

the

Stre

ngth

enin

g of

Oth

er

Cen

tral

MC

S Fu

nctio

ns P

resc

ribed

by

the

IOTC

No

othe

r leg

al ba

rrie

rs w

ere

repo

rted

or d

etec

ted.

No

inte

rven

tion

is re

quire

d.

18Ad

optio

n of

Com

mon

ESA

-IO R

egio

nal

Stan

dard

s fo

r Lice

nsin

g of

Ves

sels

(inclu

ding

a

natio

nal r

egist

er o

f ves

sels)

No

lega

l ba

rrie

rs w

ere

repo

rted

or d

etec

ted.

Th

e re

gist

er o

f ve

ssel

s is

how

ever

kep

t by

tw

o M

inist

ries.

Ves

sels

long

er th

an 2

4 m

are

regi

ster

ed

with

ship

ping

/mar

itim

e af

fairs

and

ves

sels

less

than

24

m w

ith F

isher

ies.

No

inte

rven

tion

is re

quire

d.

2H

arm

onisa

tion

of L

egisl

atio

n (b

etw

een

ESA-

IO c

ount

ries)

The

max

imum

pen

altie

s ar

e ha

rmon

ised

with

th

ose

of n

eigh

bour

ing

coun

tries

and

det

erm

ined

ac

cord

ing

to in

tern

atio

nal r

ules

.

Plea

se s

ee th

e di

scus

sion

in th

e m

ain

text

.

Som

e ge

nera

l re

mar

ks o

n Le

gal

Cha

lleng

es

and

Barr

iers

to

the

Impl

emen

tati

on/A

dopt

ion

of R

egio

nal A

gree

men

ts &

Sta

ndar

ds


Annex 4


Due

to

the

exist

ence

of

a co

nfide

ntial

ity c

lause

, w

hile

th

ere

seem

s to

be

no

re

luct

ance

or

un

willi

ngne

ss to

sha

re in

form

atio

n, a

hig

h de

gree

of

ca

utio

n is

exer

cised

be

fore

in

form

atio

n is

shar

ed.

It is

resp

ectfu

lly

subm

itted

th

at

the

prov

ision

in th

e le

gisla

tion

is w

ell f

orm

ulat

ed, b

ut

poss

ibly

inte

rpre

ted

too

narr

owly.

12Es

tabl

ishm

ent

of

a C

ompa

tible

D

ata

Col

lect

ion

Syst

em

(Thi

s in

clude

s da

ta

for

scie

ntifi

c pu

rpos

es a

nd f

or M

CS,

suc

h as

a

list/r

egist

er o

f lic

ense

s, a

reg

ister

of

fishi

ng

vess

els,

per

mits

and

lice

nses

, the

info

rmat

ion

colle

cted

in te

rms

of th

e PS

MA)

.

No

lega

l bar

riers

wer

e re

porte

d or

det

ecte

dN

o in

terv

entio

n is

requ

ired.

13Es

tabl

ishm

ent o

f a C

ompa

tible

Rep

ortin

g Sy

stem

for T

una

Fishe

ries

Stat

istics

No

lega

l bar

riers

wer

e re

porte

d or

det

ecte

dN

o in

terv

entio

n is

requ

ired.

14Im

plem

enta

tion

of a

Nat

iona

l VM

S &

Sha

ring

of D

ata

Regi

onall

yN

o le

gal b

arrie

rs w

ere

repo

rted

or d

etec

ted

and

a w

ell-f

orm

ulat

ed s

.78

of th

e Ac

t pro

vide

s fo

r the

ad

miss

ibilit

y of V

MS

evid

ence

in co

urt p

roce

edin

gs.

They

are

also

in th

e pr

oces

s of

rev

ising

the

2005

VM

S re

gulat

ions

.

No

inte

rven

tion

is re

quire

d.

16Sh

arin

g of

Ope

ratio

nal M

CS

Info

rmat

ion

No

lega

l bar

riers

wer

e re

porte

d or

det

ecte

d, b

ut

see

the

gene

ral r

emar

k ab

ove.

No

inte

rven

tion

is re

quire

d.

17Le

gal C

halle

nges

and

Barr

iers

to th

e Sh

arin

g of

D

ata

to E

nabl

e D

evel

opm

ent a

nd F

unct

ioni

ng

of t

he R

egio

nal

MC

S D

ata

and

Ope

ratio

ns

Cen

tre

No

lega

l bar

riers

wer

e re

porte

d or

det

ecte

dN

o in

terv

entio

n is

requ

ired.

Lega

l Cha

lleng

es a

nd B

arri

ers

to R

egio

nal C

o-op

erat

ion

& In

form

atio

n Sh

arin

g

Som

e ge

nera

l re

mar

ks o

n Le

gal

Cha

lleng

es

and

Barr

iers

to

Re

gion

al

Co-

oper

atio

n &

In

form

atio

n Sh

arin

g


Annex 4


4.5

SEYC

HEL

LES

TOR

ISSU

ESRE

VIE

WEV

ALU

ATI

ON

The

main

fish

erie

s le

gisla

tion

is th

e 19

87 F

isher

ies

Act

(and

th

e Re

gulat

ions

pu

blish

ed

unde

r s.

4 of

tha

t Ac

t), a

nd in

add

ition

to

that

the

Mar

itim

e Z

one

Act o

f 197

7, th

e Se

yche

lles F

ishin

g Au

thor

ity

Esta

blish

men

t Ac

t of

19

84

and

the

Lice

nses

(F

isher

ies)

Reg

ulat

ions

of 1

987.

Mos

t im

porta

ntly,

a

new

Fish

erie

s Bi

ll ha

s be

en p

repa

red

and

we

have

be

en p

rovi

ded

with

a 2

011

draf

t of t

his

legi

slatio

n.

Thou

gh

ther

e ar

e lim

ited

reso

urce

s,

inclu

ding

ins

uffic

ient

man

pow

er i

n bo

th

the

SFA

and

the

Offi

ce o

f th

e At

torn

ey

Gen

eral,

the

re d

oes

not

seem

to

be

serio

us le

gisla

tive

barr

iers

to th

e ef

fect

ive

appl

icatio

n of

the

law

. Thi

s w

as a

lso t

he

opin

ion

and

expe

rienc

e of

bot

h SF

A an

d th

e O

ffice

of t

he A

G. T

he n

ew F

isher

ies

Bill

of 2

011

is ap

pare

ntly

in

the

final

stag

es o

f dev

elop

men

t. Th

e of

fice

of th

e AG

has

not

yet

per

used

it, t

houg

h it

will

be r

efer

red

to t

hem

in d

ue c

ours

e (th

e in

tent

ion

is to

do

it be

fore

the

end

of th

e ye

ar).

3Le

gal C

apac

ity to

Und

erta

ke M

CS

• Pr

osec

utio

nTh

ere

is a

good

wor

king

relat

ions

hip

betw

een

the

Atto

rney

G

ener

al’s

offic

e (r

espo

nsib

le

for

pros

ecut

ions

), an

d th

e SF

A, a

nd th

is w

as w

itnes

sed

first

han

d du

ring

a jo

int i

nter

view

.

Ther

e w

as a

n es

timat

ed 1

0 se

rious

fish

ery

case

s in

the

past

yea

r. Th

e m

ost c

omm

on v

iolat

ions

wer

e fis

hing

with

out

a lic

ence

, bre

ach

of a

utho

risat

ions

fo

r hig

h se

as fi

shin

g an

d ille

gal g

ear.

The

majo

rity

of

thes

e m

atte

rs w

ere

com

poun

ded.

The

one

cas

e th

at d

id g

o on

trial

resu

lted

in a

In

gene

ral,

awar

enes

s ab

out

envi

ronm

enta

l and

fish

erie

s m

atte

rs h

ave

incr

ease

d,

how

ever

bo

th

pros

ecut

ors

and

judg

es

requ

ire

train

ing

to

crea

te

awar

enes

s an

d kn

owle

dge

of fi

sher

ies

law.

The

Atto

rney

-Gen

eral’

s of

fice

is ex

perie

ncin

g st

aff p

robl

ems

as t

here

are

no

t su

fficie

ntly

tra

ined

and

exp

erie

nced

Se

yche

llois

citize

ns a

vaila

ble

to a

ppoi

nt a

s pr

osec

utor

s, a

nd th

ey th

us h

ave

to

Som

e ge

nera

l re

mar

ks o

n Le

gal

Cha

lleng

es

and

Barr

iers

to

Re

gion

al

Co-

oper

atio

n &

In

form

atio

n Sh

arin

g

Lega

l Fra

mew

ork


Annex 4


a SR

1 0

00 0

00 fi

ne. T

hese

sta

tistic

s w

ere

verifi

ed

from

the

offi

cial

repo

rt. C

ompo

undi

ng a

mou

nts

varie

d be

twee

n 95

000

USD

(th

ree

case

s),

SR

400

000(

one

case

), SR

1 0

00 0

00 (3

cas

es) a

nd S

R 50

0 00

0 (3

cas

es).

It se

ems

that

the

cas

e w

here

th

e co

urt

hand

ed d

own

a se

nten

ce o

f SR

1 00

0 00

0 w

as a

Nov

embe

r 20

09 m

atte

r. Th

ere

is on

e on

goin

g se

rious

cas

e an

d th

e ve

ssel

is s

till b

eing

de

tain

ed.

The

sent

ence

s han

ded

dow

n by

the

cour

t are

seen

as

not

bei

ng s

uffic

ient

ly s

ever

e.W

here

app

ropr

iate

both

the

nat

ural

and

juris

tic

pers

ons

are

pros

ecut

ed (

e.g.

the

com

pany

with

th

e fis

hing

lice

nse

and

the

capt

ain o

f the

ves

sel).

C

ases

are

dire

ctly

ref

erre

d fo

r pr

osec

utio

n, a

nd

no u

ndue

int

erfe

renc

e in

thi

s pr

oces

s ha

s be

en

expe

rienc

ed.

appo

int p

erso

ns fr

om o

ther

cou

ntrie

s.O

ppor

tuni

ties

for

pros

ecut

ors

to

be

train

ed i

n th

e pr

osec

utio

n of

fish

erie

s of

fenc

es

will

be

wel

com

ed,

and

the

idea

of

ul

timat

ely

getti

ng

dedi

cate

d pr

osec

utor

s to

dea

l with

suc

h of

fenc

es,

wou

ld b

e id

eal.

The

issue

of t

rain

ing

of p

rose

cuto

rs a

nd

judg

es w

as h

ighl

ight

ed b

y va

rious

par

ties

durin

g th

e in

terv

iew

s, a

nd t

his

inclu

ded

the

SFA

and

the

AGs

Offi

ce.

Train

ing

of p

rose

cuto

rs t

o sp

ecial

ise i

n fis

herie

s le

gisla

tion

and

pros

ecut

ion

is re

quire

d. T

his c

an e

ither

take

the

form

of

shor

t cou

rses

to tr

ain a

few

pro

secu

tors

, or

eve

n sp

onso

ring

a m

aste

r’s d

egre

e fo

r on

e or

two

pros

ecut

ors.

Suc

h a

step

will

how

ever

hav

e to

be

care

fully

eva

luat

ed,

as th

at p

erso

n ne

eds t

o be

reta

ined

in th

e po

sitio

n af

ter h

avin

g be

en tr

ained

.

Train

ing

to c

reat

e aw

aren

ess a

nd in

crea

se

know

ledg

e of

fish

erie

s leg

islat

ion

amon

gst

the

judi

ciary

is a

lso re

quire

d.

The

only

res

erva

tion

that

is

expr

esse

d in

thi

s re

gard

is

the

fact

tha

t th

ere

are

not t

hat m

any

case

s be

ing

pros

ecut

ed in

co

urt (

due

to th

e fa

ct th

at th

e m

ajorit

y of

ca

ses

are

bein

g co

mpo

unde

d).


Annex 4


• Ad

min

istra

tive

pena

lties

/ com

poun

ding

/ ad

miss

ion

of g

uilt

fines

Com

poun

ding

, w

hich

is

prov

ided

for

in

sect

ion

26 o

f th

e 19

87 F

isher

ies

Act,

is pr

efer

red

over

pr

osec

utio

n, a

s it

is a

muc

h a

quick

er a

nd s

impl

er

proc

ess.

Abo

ut 9

0% o

f the

mor

e se

rious

mat

ters

ar

e co

mpo

unde

d, a

nd it

was

furth

er re

porte

d th

at

thes

e us

ually

resu

lt in

the

max

imum

fine

of S

R 2,

5 m

illion

, w

hich

is h

ighe

r th

an w

hat

is ac

hiev

ed v

ia pr

osec

utio

n. T

he s

tatis

tics

for t

he p

ast y

ear d

o no

t qu

ite sh

ow th

e sa

me

resu

lt –

see

the

note

s dire

ctly

ab

ove.

In th

e ca

se o

f min

or o

ffenc

es, e

.g. t

hose

occ

urrin

g in

th

e ar

tisan

al fis

herie

s se

ctor

, tra

nsgr

esso

rs

are

take

n to

cou

rt, a

nd t

he c

ourt

can

then

issu

e ad

miss

ion

of g

uilt

fines

.

Ther

e do

es n

ot se

em to

be

any c

halle

nges

an

d ba

rrie

rs in

this

rega

rd, a

nd th

e 20

11

Fishe

ries B

ill als

o pr

ovid

es fo

r thi

s pro

cess

, bu

t no

w

cont

ains

mor

e ex

tens

ive

prov

ision

s (se

e se

ctio

n 63

). In

tere

stin

g to

no

te is

the

prov

ision

in s

ectio

n 63

(1) t

hat

the

proc

ess i

s onl

y av

ailab

le in

the

case

of

a fir

st o

ffenc

e.

It is

clear

that

the

com

poun

ding

pro

cess

is

quick

er (

estim

ated

bet

wee

n 1-

5 da

ys)

easie

r an

d ei

ther

res

ults

in

simila

r or

hi

gher

fine

s, in

com

paris

on t

o fo

llow

ing

the

pros

ecut

ion

proc

ess.

Fin

es g

ener

ated

vi

a th

e co

mpo

undi

ng p

roce

ss g

oes t

o th

e SF

A, a

nd n

ot to

the

gene

ral s

tate

cof

fers

, as

is

the

case

with

fine

s ha

nded

dow

n by

the

cou

rt. T

he o

nly

draw

back

with

th

e pr

oces

s is

that

stri

ctly

spe

akin

g th

e “a

ccus

ed”

then

doe

s no

t hav

e a

prev

ious

co

nvict

ion,

but

sec

tion

63(1

) in

the

2011

Fis

herie

s Bi

ll no

w l

imits

the

pro

cess

to

first

offe

nder

s.

No

furth

er in

terv

entio

n is

requ

ired.

1Le

gal

Cha

lleng

es &

Bar

riers

to

Impr

ovin

g C

ompl

iance

Lev

els

with

Nat

iona

l La

w a

nd

Prov

ision

s of

RFB

s•

Pena

lties

The

max

imum

pen

altie

s pr

ovid

ed fo

r in

the

1987

Fis

herie

s Ac

t ar

e be

twee

n SR

500

0, u

p to

an

amou

nt o

f SR

50 0

00, d

epen

ding

on

the

offe

nce

(see

sec

tion

24).

Thes

e fin

es a

re c

lear

ly in

adeq

uate

to a

ct

as a

n ef

ficie

nt d

eter

rent

. The

re is

also

no

prov

ision

for

impr

isonm

ent

as a

pen

alty

optio

n, k

eepi

ng i

n m

ind

that

UN

CLO

S pl

aces

cer

tain

lim

itatio

ns o

n su

ch a


Annex 4


poss

ibilit

y.

The

new

set

of

offe

nces

and

pen

altie

s in

sec

tion

Part

XII

of t

he 2

011

Fishe

ries

Bill

are

quite

ext

ensiv

e an

d pr

ovid

e fo

r pe

nalti

es o

f up

to U

SD 2

500

000

, and

a

furth

er p

rovi

sion

for

the

incr

ease

of

fines

in c

erta

in c

ircum

stan

ces

in te

rms

of

sect

ion

57 a

nd 5

8.

No

furth

er in

terv

entio

n is

requ

ired,

but

re

fer

to t

he d

iscus

sion

of h

arm

onisa

tion

of p

enalt

ies

in th

e re

gion

.

• O

ther

mea

sure

s th

at c

an s

erve

as

a de

-te

rren

t (fo

rfeitu

re,

susp

ensio

n or

can

cel-

latio

n of

licen

ces,

supp

lem

enta

ry o

r oth

er

adm

inist

rativ

e or

ders

)

The

fishe

ries

legi

slatio

n pr

ovid

es fo

r fo

rfeitu

re, a

s w

ell a

s ca

ncel

latio

n an

d su

spen

sion

of li

cens

es. I

n ad

ditio

n to

the

prov

ision

s in

the

fishe

ries l

egisl

atio

n,

ther

e is

a fair

ly re

cent

Civ

il Con

fisca

tion

Proc

eeds

of

Crim

e Ac

t of 2

008

that

dea

ls w

ith th

e co

nfisc

atio

n of

the

pro

ceed

s of

crim

e. T

his

legi

slatio

n ca

n als

o be

util

ised

with

in t

he c

onte

xt o

f fis

herie

s tra

nsgr

essio

ns. T

here

is n

o pr

ovisi

on fo

r add

ition

al or

supp

lem

enta

ry o

rder

s but

see

the

rem

arks

in th

e ne

xt c

olum

n. A

s fa

r as

adm

inist

rativ

e en

forc

emen

t to

ols

(dire

ctiv

es o

r no

tices

) ar

e co

ncer

ned,

the

re

is a

proc

ess

whe

reby

lice

nses

can

be

revo

ked

or

susp

ende

d in

the

cas

e of

non

-com

plian

ce.

The

SFA

will

first

issu

e an

ulti

mat

um to

the

trans

gres

sor.

It w

as r

epor

ted

that

in t

he m

ajorit

y of

cas

es t

he

trans

gres

sor u

suall

y re

spon

ds to

the

ultim

atum

and

co

rrec

ts th

eir b

ehav

iour

.

Both

the

1987

Fish

erie

s Act

and

the

2011

Fis

herie

s Bi

ll m

akes

pr

ovisi

on

for

the

susp

ensio

n an

d ca

ncel

latio

n of

lice

nces

(s

.15

of t

he A

ct a

nd s

33

and

34 o

f the

Bi

ll) a

nd f

orfe

iture

(s.

25 o

f th

e Ac

t an

d e.

g. s

.58

of th

e Bi

ll, w

hich

eve

n pr

ovid

es

for

man

dato

ry fo

rfeitu

re o

f ves

sels

in th

e ca

se o

f cer

tain

sub

sequ

ent o

ffenc

es).

Ther

e do

es n

ot s

eem

to b

e an

y se

rious

ch

allen

ges

and

barr

iers

re

main

ing,

pr

ovid

ed

the

Bill

is fin

alise

d an

d im

plem

ente

d.

The

prov

ision

s in

th

e 20

11

Fishe

ries

Bill

are

muc

h m

ore

com

preh

ensiv

e th

an t

hose

in t

he 1

987

Act.

It m

ight

how

ever

be

valu

able

to

evalu

ate

thes

e pr

ovisi

ons

in m

ore

dept

h pr

ior t

o th

e pr

omul

gatio

n of

the

Bill.


Annex 4


19Le

gal B

arrie

rs in

the

Proc

edur

es fo

r Se

izure

, C

onfis

catio

n an

d D

ispos

al &

H

andl

ing

of

Evid

ence

Ther

e ar

e so

me

limita

tions

to

the

prov

ision

s on

se

arch

and

sei

zure

, as

the

pow

ers

do n

ot p

rovi

de

for

the

sear

ch o

f pr

emise

s an

d ve

hicle

s. T

hese

pr

ovisi

ons

wer

e de

scrib

ed a

s be

ing

outd

ated

and

it

mus

t be

ensu

red

that

this

is co

rrec

ted

in th

e Bi

ll.As

far a

s ind

epen

dent

actio

n by

offi

cials

is co

ncer

ned,

it

was

indi

cate

d th

at th

ey d

o no

t req

uire

any

spec

ial

perm

issio

n fro

m a

hig

her

auth

ority

e.g

. to

seize

a

vess

el, b

ut c

an u

se th

eir

disc

retio

n ba

sed

on th

eir

pow

ers.

SFA

also

confi

rmed

that

, bas

ed o

n an

ord

er fr

om

cour

t, co

nfisc

ated

fish

can

be

sold

prio

r to

the

case

be

ing

finali

sed,

and

the

pro

ceed

s ar

e pa

id in

to a

sp

ecial

acc

ount

pen

ding

the

outc

ome

of th

e ca

se.

The

shor

tcom

ings

with

reg

ard

to t

he

prov

ision

s on

sea

rch

and

seizu

re h

ave

been

add

ress

ed in

the

new

dra

ft Ac

t. S.

58

of th

e Bi

ll pr

ovid

es fo

r ex

tens

ive

pow

ers

for fi

sher

ies

insp

ecto

rs.

The

prov

ision

s in

the

201

1 Fis

herie

s Bi

ll ar

e m

uch

mor

e co

mpr

ehen

sive

than

th

ose

in t

he 1

987

Act

in t

his

rega

rd.

It m

ight

how

ever

be

valu

able

to re

-eva

luat

e th

ese

prov

ision

s in

mor

e de

pth

prio

r to

th

e pr

omul

gatio

n of

the

Bill.

The

idea

l sit

uatio

n w

ith r

egar

d to

the

di

spos

al of

con

fisca

ted

fish

prio

r to

the

fin

alisa

tion

of a

cas

e is

a pr

ovisi

on in

the

legi

slatio

n th

at a

utho

rises

this

with

out t

he

requ

irem

ent f

or a

cou

rt or

der.

6Le

gal

Barr

iers

to

Impl

emen

ting

an E

ffect

ive

Fishe

ries

Insp

ecto

rate

• Ap

poin

tmen

t of F

isher

ies

Insp

ecto

rsTh

e pe

rcep

tion

is th

at t

here

is le

ss “

resp

ect”

for

fishe

ries

insp

ecto

rs t

han

othe

r law

enf

orce

men

t ag

encie

s. It

was

repo

rted

that

the

leve

l of e

duca

tion

of e

mpl

oyee

s is

not p

artic

ular

ly h

igh.

This

situa

tion

has l

ead

to th

e sit

uatio

n th

at

expe

rienc

ed o

fficia

ls le

ave

the

serv

ice fo

r alt

erna

tive

appo

intm

ents

. It w

as re

porte

d th

at

fairl

y re

cent

ly

two

expe

rienc

ed

offic

ials l

eft t

he S

FA fo

r an

appo

intm

ent a

t th

e dr

ug e

nfor

cem

ent a

genc

y.

This

issue

mus

t rec

eive

atte

ntio

n, th

ough

it

does

not

nec

essa

rily

requ

ire a

leg

al in

terv

entio

n. I

t is

how

ever

pos

sible

to

stip

ulat

e ce

rtain

min

imum


Annex 4


educ

atio

nal a

nd tr

ainin

g re

quire

men

ts fo

r fis

herie

s in

spec

tors

in

legi

slatio

n, a

nd i

t m

ight

be

expe

dien

t to

inclu

de th

is iss

ue a

s pa

rt of

a g

ener

al re

view

and

eva

luat

ion

of

the

new

Bill

prio

r to

finali

satio

n. S

ee s.

37

of th

e Bi

ll in

this

rega

rd, w

hich

dea

ls w

ith

the

appo

intm

ent

of s

uch

insp

ecto

rs,

but

does

not

requ

ire a

min

imum

sta

ndar

d.•

SOP’

s &

Man

uals

Ther

e is

an IO

C r

egio

nal g

uide

for

boar

ding

and

in

spec

tion

and

ther

e ar

e ce

rtain

pro

cedu

res

in

plac

e. A

mor

e co

mpr

ehen

sive

set

of S

OPs

or

a gu

ide

to e

nfor

cem

ent i

s ho

wev

er re

quire

d.

A gu

ide

to e

nfor

cem

ent

and

poss

ibly

a

mor

e co

mpr

ehen

sive

set o

f SO

Ps w

ill be

he

lpfu

l.

• Fu

ndin

g fro

m fi

nes,

pen

altie

s an

d sa

le o

f fo

rfeite

d fis

h.Fin

es g

ener

ated

via

the

com

poun

ding

pro

cess

goe

s to

the

SFA,

and

not

to th

e ge

nera

l sta

te c

offe

rs, a

s is

the

case

with

fine

s by

the

cour

t. It

was

repo

rted

that

the

posit

ion

wou

ld c

hang

e w

hen

the

new

Act

co

mes

into

forc

e, a

nd th

at a

ll fin

es, i

nclu

ding

thos

e ge

nera

ted

by c

ompo

undi

ng, w

ill go

to th

e ge

nera

l st

ate

coffe

rs.

Ther

e is

a su

spen

se a

ccou

nt fo

r the

pro

ceed

s fro

m

confi

scat

ed fi

sh b

eing

sol

d, t

he t

reas

ury

cont

rols

this,

but

the

mon

ey g

oes

to S

FA.

An a

ltern

ativ

e po

ssib

ility

is to

pro

vide

that

all

fine

s, w

heth

er fr

om c

ompo

undi

ng o

r re

sulti

ng f

rom

pro

secu

tion,

as

wel

l as

in

com

e fro

m th

e sa

le o

f for

feite

d fis

h, w

ill ac

crue

to

the

SFA,

or

a fu

nd s

et u

p fo

r th

is pu

rpos

e, to

man

age

this

inco

me

and

ensu

re th

at it

is u

tilise

d fo

r m

anag

emen

t an

d co

mpl

iance

effo

rts o

f the

SFA

.As

thi

s is

how

ever

a p

olicy

dec

ision

, no

le

gal i

nter

vent

ion

is re

quire

d.

2H

arm

onisa

tion

of L

egisl

atio

n (In

tern

al)N

o ba

rrie

rs

in

this

rega

rd

wer

e re

porte

d or

de

tect

ed.

See

how

ever

the

rem

ark

in t

he n

ext

colu

mn.

As t

he B

ill is

still

pend

ing

finali

satio

n,

it m

ight

be

us

eful

to

en

sure

th

at

all

regu

latio

ns p

ublis

hed

unde

r th

e Ac

t ar

e co

mpa

tible

with

the

Bill (

see

sect

ion

67 o

f th

e Bi

ll). A

lso se

e se

ctio

n 69

(2) o

f the

Bill,


Annex 4


whi

ch c

onta

ins

a tra

nsiti

onal

prov

ision

pr

ovid

ing

that

sub

sidiar

y le

gisla

tion

mad

e un

der t

he F

isher

ies

Act w

ill st

ay in

forc

e.

This

aspe

ct sh

ould

form

par

t of a

pos

sible

ev

aluat

ion

and

assis

tanc

e w

ith

the

finali

satio

n of

the

Fish

erie

s Bi

ll, s

houl

d su

ch a

n in

terv

entio

n be

dec

ided

upo

n.

4Le

gal

Cha

lleng

es

and

Barr

iers

to

th

e Im

plem

enta

tion

of

Effe

ctiv

e N

atio

nal

&

Regi

onal

MC

S (n

ote

that

th

e sh

arin

g of

in

form

atio

n w

ill be

add

ress

ed u

nder

(16

) be

low

)•

Inve

stig

ativ

e Ab

ility

Addi

tiona

l tra

inin

g on

inve

stig

ativ

e te

chni

ques

will

be h

elpf

ul.

Thou

gh t

he S

FA h

as le

gal a

dviso

rs,

they

ar

e no

t ne

cess

arily

kn

owle

dgea

ble

or

expe

rienc

ed

in

enfo

rcem

ent

mat

ters

. Th

e id

eal

situa

tion

is to

hav

e in

-hou

se

lega

l sup

port

for

fishe

ries

insp

ecto

rs,

or

for

such

offi

cials

to h

ave

a go

od li

ne o

f co

mm

unica

tion

with

th

e pr

osec

utor

ial

serv

ice.

Luck

ily,

in

Seyc

helle

s,

such

co

mm

unica

tion

exist

s cu

rren

tly.

In a

dditi

on, i

t was

repo

rted

that

a p

ost f

or

a le

gal o

ffice

r ha

s be

en c

reat

ed,

thou

gh

they

stil

l nee

d th

e fu

ndin

g fo

r th

is. If

this

post

is

fille

d, i

t is

impo

rtant

tha

t su

ch

an o

fficia

l will

also

atte

nd t

he p

ropo

sed

pros

ecut

or’s

cour

se, a

s he

/she

will

have

to

ass

ist in

inve

stig

atio

ns a

nd p

rose

cutio

ns

(the

dutie

s of

suc

h an

offi

cer w

ill in

clude


Annex 4


advi

sing

on c

ases

and

the

rev

ision

of

legi

slatio

n)Ad

ditio

nal

train

ing

on

inve

stig

ativ

e te

chni

ques

will

also

be h

elpf

ul.

• Tr

ainin

gTr

ainin

g of

insp

ecto

rs w

as h

ighl

ight

ed a

s th

e m

ost

impo

rtant

an

d ur

gent

iss

ue

to

be

addr

esse

d.

Aspe

cts

that

wer

e re

quire

d to

be

inclu

ded

in

the

train

ing

wer

e th

e le

gal b

ackg

roun

d, p

ract

ical

aspe

cts

of b

oard

ing

and

sear

chin

g of

ves

sels

at s

ea

and

train

ing

in p

ort

stat

e m

easu

res.

Suc

h tra

inin

g sh

ould

hav

e bo

th a

theo

retic

al as

wel

l as a

pra

ctica

l co

mpo

nent

. Tr

ainin

g se

ssio

ns

with

fis

herie

s in

spec

tors

of n

eigh

bour

ing

coun

tries

in th

e re

gion

as

wel

l as

the

crea

tion

of a

tra

inin

g m

anua

l wer

e als

o m

entio

ned.

The

train

ing

of i

nspe

ctor

s is

supp

orte

d fu

lly,

as t

he s

ucce

ss o

f pr

osec

utio

ns o

r ot

her

enfo

rcem

ent m

easu

res

are

heav

ily

depe

ndan

t on

the

cor

rect

pro

cedu

res

bein

g fo

llow

ed b

y fis

herie

s in

spec

tors

, an

d su

fficie

nt e

vide

nce

bein

g ga

ther

ed to

pr

ove

the

com

miss

ion

of a

n of

fenc

e.W

hile

th

e id

ea

of

a re

gion

al tra

inin

g co

urse

for

insp

ecto

rs is

ful

ly s

uppo

rted,

it

mus

t als

o be

kep

t in

min

d th

at p

er

coun

try t

rain

ing

is als

o ne

cess

ary

and

valu

able

. Th

is is

espe

cially

whe

re,

as in

th

is ca

se, n

ew le

gisla

tion

is en

acte

d, r

equi

ring

the

offic

ials

to b

e “r

etra

ined

” on

thei

r dom

estic

legi

slatio

n.

It w

as

also

repo

rted

that

fis

herie

s in

spec

tors

do

not

have

the

pow

er t

o ar

rest

und

er t

he c

urre

nt le

gisla

tion

(the

situa

tion

was

con

firm

ed b

y a

peru

sal o

f s.

19 o

f the

Act

), th

e ne

w d

raft

Act d

oes

cont

ain t

his

pow

er (

this

is co

rrec

t- s

ee

sect

ion

37(5

) of

the

Bill)

. In

spec

tors

will

ther

efor

e be

req

uire

d to

be

train

ed o

n pr

oced

ures

of a

rres

t.

• O

bser

vers

S.46

of t

he B

ill m

akes

it m

anda

tory

that

an

obse

rver

pr

ogra

mm

e m

ust b

e es

tabl

ished

by

Ther

e do

es n

ot s

eem

to

be a

ny l

egal

chall

enge

s or

bar

riers

in th

is re

gard

.


Annex 4


the

SFA.

The

re is

a s

cient

ific

obse

rver

pro

gram

in

plac

e, a

nd m

ore

obse

rver

s ne

ed to

be

recr

uite

d.9

Lega

l Bar

riers

to th

e Ad

optio

n of

Risk

Ana

lysis

M

etho

dolo

gyTh

ere

are

no le

gal b

arrie

rs d

irect

ly in

fluen

cing

this

issue

. The

lice

nsin

g au

thor

ity is

how

ever

sep

arat

e fro

m t

he In

spec

tora

te. B

ecau

se a

pplic

atio

n is

first

m

ade

to t

he S

FA b

efor

e go

ing

to t

he l

icens

ing

auth

ority

, it w

as n

ot re

porte

d as

pro

blem

atic

by th

e SF

A. In

add

ition

, it w

as re

porte

d th

at th

e sy

stem

is

abou

t to

cha

nge,

and

tha

t in

fut

ure

the

SFA

will

beco

me

the

issui

ng a

utho

rity

for l

icenc

es.

No

lega

l ba

rrie

rs i

n th

is re

gard

wer

e re

porte

d or

det

ecte

d.

7•

Car

eer P

ath

for F

ishe

ries I

nspe

ctor

sTh

e ca

reer

pat

h is

base

d on

the

gene

rally

appl

icabl

e pu

blic

serv

ice p

rovi

sions

. O

ne o

f th

e fir

st is

sues

hi

ghlig

hted

du

ring

cons

ulta

tions

w

as

the

need

to

inc

reas

e hu

man

cap

acity

and

to

attra

ct m

ore

peop

le to

the

sect

or, i

nter

alia

by

prov

idin

g tra

inin

g.Al

so s

ee th

e re

mar

ks u

nder

6 a

bove

.

This

mak

es th

e ap

poin

tmen

t as a

fish

erie

s of

ficer

a le

ss a

ttrac

tive

one,

and

it m

ight

als

o le

ad

to

mor

e ex

perie

nced

an

d/or

be

tter-

quali

fied

offic

ials

leav

ing

the

serv

ice f

or a

ltern

ativ

e ap

poin

tmen

ts.

It w

as p

oint

ed o

ut t

hat

two

expe

rienc

ed

insp

ecto

rs r

esig

ned

and

join

ed t

he d

rug

enfo

rcem

ent

agen

cy,

whi

ch p

rovi

de f

or

bette

r pr

ospe

cts

outs

ide

of t

he n

orm

al pu

blic

serv

ice p

rovi

sions

.

This

issue

mus

t fir

st b

e ad

dres

sed

on a

se

nior

man

agem

ent

or m

inist

erial

lev

el

befo

re

any

lega

l in

terv

entio

n ca

n be

co

ntem

plat

ed.

S. 4

8 of

the

Fishe

ries

Bill,

pro

vide

s fo

r the

Min

ister

to

ent

er in

to a

gree

men

ts w

ith o

ther

Sta

tes

in th

e In

dian

Oce

an, e

ither

dire

ctly

or t

hrou

gh a

n

The

failu

re

to

adop

t an

d im

plem

ent

regi

onal

agre

emen

ts a

nd s

tand

ards

, an

d th

e in

corp

orat

ion

of r

elev

ant p

rovi

sions

Lega

l ch

alle

nges

an

d Ba

rrie

rs

to

the

Impl

emen

tati

on/A

dopt

ion

of

Regi

onal

A

gree

men

ts &

Sta

ndar

ds

Som

e ge

nera

l re

mar

ks o

n Le

gal

Cha

lleng

es

and

Barr

iers

to

the

Impl

emen

tati

on/A

dopt

ion

of R

egio

nal A

gree

men

ts &

Sta

ndar

ds


Annex 4


inte

rnat

iona

l or

gani

satio

n,

prov

idin

g fo

r jo

int

or

harm

onise

d su

rvei

llanc

e an

d en

forc

emen

t m

easu

res

in re

spec

t of f

orei

gn fi

shin

g ve

ssel

s.

Sect

ion

67(1

) of t

he F

isher

ies

Bill

prov

ides

for

the

Min

ister

to p

rom

ulga

te b

y no

tice

in th

e G

azet

te an

y co

nser

vatio

n or

man

agem

ent m

easu

re a

dopt

ed b

y a

RFM

O p

r an

y ot

her

regi

onal

fishe

ries

body

or

arra

ngem

ent t

o w

hich

Sey

chel

les

is a

party

.

into

do

mes

tic

legi

slatio

n,

is go

vern

ed

by t

he l

egal

proc

ess.

The

fail

ure

to d

o so

is h

owev

er o

ften

a qu

estio

n of

poo

r m

anag

emen

t, ra

ther

tha

n an

inad

equa

te

lega

l fra

mew

ork.

S. 4

8 an

d 67

(1) o

f the

Bill

deals

spec

ifica

lly

with

thi

s iss

ue.

In a

dditi

on,

the

pow

ers

gran

ted

to in

spec

tors

in th

e Bi

ll ar

e qu

ite

exte

nsiv

e (k

eepi

ng in

min

d th

at it

was

not

po

ssib

le w

ithin

the

am

bit

of t

his

revi

ew

to lo

ok a

t all

thes

e as

pect

s in

det

ail, a

nd

that

the

re a

re s

ome

wea

knes

ses

in t

his

rega

rd).

It w

ill be

ex

pedi

ent

to

do

a m

ore

com

preh

ensiv

e re

view

of t

he Fi

sher

ies B

ill to

ens

ure

that

the

prov

ision

s are

suffi

cient

to

ens

ure

the

impl

emen

tatio

n of

regi

onal

agre

emen

ts a

nd s

tand

ards

, an

d th

at i

t gr

ants

suf

ficie

nt p

ower

s to

insp

ecto

rs t

o be

abl

e to

det

ect

non-

com

plian

ce a

nd

take

app

ropr

iate

enfo

rcem

ent a

ctio

n.5

Impl

emen

tatio

n of

the

IUU

NPO

ASe

yche

lles

has

a N

POA

for

the

Con

serv

atio

n an

d M

anag

emen

t of

Sha

rks

(SFA

, 20

07).

The

repo

rt (s

ee p

.23-

24)

disc

usse

s th

e ap

plica

ble

legi

slatio

n,

and

conc

lude

s th

at a

dditi

onal

legi

slatio

n do

es n

ot

seem

to b

e ne

cess

ary

(p.3

0)

No

lega

l ch

allen

ges

or

barr

iers

w

ere

repo

rted

or d

etec

ted,

and

alth

ough

not

st

rictly

spe

akin

g a

lega

l offi

ce,

assis

tanc

e w

ith th

e dr

aftin

g of

a g

ener

al IU

U N

POA

is a

poss

ible

inte

rven

tion.

10Pa

rticip

atio

n in

the

IOC

MC

S Re

gion

al Pl

an

for t

he S

outh

Wes

t Ind

ian O

cean

No

lega

l bar

riers

in th

is re

gard

wer

e re

porte

d or

de

tect

ed.

Ther

e do

es n

ot s

eem

to

be a

ny l

egal

barr

ier

to p

artic

ipat

ion

in t

he IO

C M

CS

Regi

onal

Plan

for

the

Sout

h W

est

Indi

an

Oce

an.

No

inte

rven

tion

is re

quire

d.


Annex 4


8Im

plem

enta

tion

of IO

TC P

ort S

tate

Mea

sure

Re

solu

tions

& F

AO P

ort S

tate

Mea

sure

Ag

reem

ent P

rovi

sions

S.45

of t

he 2

011

Fishe

ries B

ill de

als sp

ecifi

cally

with

po

rt st

ate

mea

sure

s. It

was

rep

orte

d th

at fi

sher

y in

spec

tors

hav

e at

tend

ed tr

ainin

g on

the

IOTC

and

FA

O P

SMs,

and

no

barr

iers

wer

e re

porte

d.

The

NFD

S Af

rica

Lega

l an

d C

apac

ity

Asse

ssm

ent

iden

tified

sp

ecifi

c iss

ues

with

reg

ard

to t

he i

mpl

emen

tatio

n of

th

e IO

TC P

SM R

esol

utio

n 10

/11.

Thi

s is

disc

usse

d in

mor

e de

tail

in th

e co

untry

re

view

doc

umen

t.

S.45

of

the

2011

Fish

erie

s Bi

ll sh

ould

be

re

view

ed

to

ensu

re

that

it

fully

ac

com

mod

ates

th

e im

plem

enta

tion

of t

he P

SM m

easu

res.

Ple

ase

refe

r to

th

e di

scus

sion

in

the

coun

try

revi

ew

docu

men

t.

11Ad

ditio

nal L

egal

Barr

iers

to th

e D

evel

opm

ent

& Im

plem

enta

tion

of E

xist

ing

IOTC

Re

solu

tions

No

such

bar

riers

wer

e re

porte

d or

det

ecte

d, b

ut

see

the

com

men

ts o

n th

e IO

TC re

solu

tions

in th

e m

ain te

xt. I

t was

repo

rted

that

car

e is

take

n w

ith

the

impl

emen

tatio

n of

the

IOTC

reso

lutio

ns v

ia th

e fo

cal p

oint

.

See

the

gene

ral r

emar

ks a

bove

.

15Le

gal B

arrie

rs t

o th

e St

reng

then

ing

of O

ther

C

entra

l M

CS

Func

tions

Pre

scrib

ed b

y th

e IO

TC

No

lega

l bar

riers

in th

is re

gard

wer

e re

porte

d or

de

tect

ed.

No

inte

rven

tion

is re

quire

d.

18Ad

optio

n of

C

omm

on

ESA-

IO

Regi

onal

Stan

dard

s fo

r Li

cens

ing

of V

esse

ls (in

cludi

ng a

na

tiona

l reg

ister

of v

esse

ls)

No

lega

l ba

rrie

rs i

n th

is re

gard

wer

e re

porte

d or

det

ecte

d. A

rticle

28

of t

he 2

007

Bill

prov

ides

th

at t

he r

egist

ratio

n of

ves

sels

is a

prer

equi

site

to

obta

inin

g a

licen

se a

nd th

ere

is a

natio

nal r

egist

er

of v

esse

ls. T

his

regi

ster

how

ever

fall

s un

der

the

mar

itim

e sa

fety

aut

horit

y an

d no

t the

SFA

.

This

is no

t a b

arrie

r cre

ated

by

legi

slatio

n,

nor

the

lack

ther

eof,

and

no in

terv

entio

n is

requ

ired

from

a le

gal p

ersp

ectiv

e.

2H

arm

onisa

tion

of L

egisl

atio

n (b

etw

een

ESA-

IO c

ount

ries)

Plea

se s

ee th

e re

mar

ks o

n pe

nalti

es a

bove

und

er

1. E

ven

whe

re c

ount

ries

have

sim

ilar

max

imum

pe

nalti

es, t

hey

tend

to d

iffer

in th

eir

appr

oach

and

ca

lculat

ion

of p

enalt

ies.

Inte

rven

tion

on

a re

gion

al ba

sis

is re

quire

d. S

ee th

e di

scus

sion

in th

e re

view

do

cum

ent.


Annex 4


The

lack

of p

rovi

sions

on

the

shar

ing

of in

form

atio

n in

the

legi

slatio

n w

as h

ighl

ight

ed a

s a p

robl

em a

rea

by t

he IO

TC. S

.6 o

f the

201

1 Fis

herie

s Bi

ll de

als

with

the

duty

of t

he S

FA re

gard

ing

the

colle

ctio

n of

in

form

atio

n, a

nd s.

6 (5

) pro

vide

s for

the

Min

ister

to

ente

r int

o ag

reem

ents

on

the

exch

ange

and

form

at

of i

nfor

mat

ion,

inc

ludi

ng e

vide

ntiar

y in

form

atio

n re

latin

g to

bre

ache

s of

nat

iona

l fish

erie

s le

gisla

tion

and

inte

rnat

iona

l fis

herie

s co

nser

vatio

n an

d m

anag

emen

t mea

sure

s.

In p

ract

ice so

me

coun

tries

are

relu

ctan

t to

shar

e ce

rtain

info

rmat

ion,

but

exc

ept f

or

the

rem

arks

in th

e ne

xt c

olum

n, n

o ot

her

lega

l bar

riers

wer

e re

porte

d or

det

ecte

d.

The

esta

blish

men

t of

com

patib

le

data

co

llect

ion

or r

epor

ting

syst

ems

and

the

shar

ing

of d

ata

and

info

rmat

ion

regi

onall

y do

not

nec

essa

rily

requ

ire a

ny le

gisla

tive

pres

crip

tions

, bu

t it

mig

ht b

e ex

pedi

ent

to

inco

rpor

ate

oblig

atio

ns

in

term

s of

in

form

atio

n sh

arin

g in

to

dom

estic

le

gisla

tion,

as

is th

e ca

se h

ere.

No

inte

rven

tion

is re

quire

d,

and

this

prov

ision

mig

ht s

et a

n ex

ampl

e fo

r th

e ot

her

stat

es i

n th

e re

gion

to

adop

t a

simila

r pro

visio

n in

thei

r leg

islat

ion.

12Es

tabl

ishm

ent

of

a C

ompa

tible

D

ata

Col

lect

ion

Syst

em

(Thi

s in

clude

s da

ta

for

scie

ntifi

c pu

rpos

es a

nd f

or M

CS,

suc

h as

a

list/r

egist

er o

f lic

ense

s, a

reg

ister

of

fishi

ng

vess

els,

per

mits

and

lice

nses

, the

info

rmat

ion

colle

cted

in te

rms

of th

e PS

MA)

.

See

the

gene

ral c

omm

ents

abo

ve a

nd s

. 7 o

f the

20

11 B

ill th

at p

rovi

des

for

the

SFA

to m

ake

and

main

tain

a re

cord

of fi

shin

g ve

ssel

ves

sels

that

hav

e be

en g

rant

ed a

lice

nce,

per

mit

or a

utho

rity.

It w

as

how

ever

rep

orte

d th

at t

houg

h co

mpr

ehen

sive

data

is a

vaila

ble,

the

data

is n

ot p

rope

rly c

ompi

led

and

evalu

ated

, due

to a

sho

rtage

of r

esou

rces

.

See

the

gene

ral c

omm

ents

abo

ve.

13Es

tabl

ishm

ent o

f a C

ompa

tible

Rep

ortin

g Sy

stem

for T

una

Fishe

ries

Stat

istics

It w

as re

porte

d th

at th

e st

atist

ics a

re g

athe

red

and

repo

rted

to th

e IO

TC. S

ee th

e ge

nera

l com

men

ts

and

com

men

ts im

med

iatel

y ab

ove.

See

the

gene

ral c

omm

ents

abo

ve.

14Im

plem

enta

tion

of a

Nat

iona

l VM

S &

Sha

ring

of D

ata

Regi

onall

yN

o le

gal b

arrie

rs in

thi

s re

gard

was

rep

orte

d or

de

tect

ed.

The

2011

Fish

erie

s Bi

ll co

ntain

s fa

irly

deta

iled

prov

ision

s on

the

Lega

l Cha

lleng

es a

nd B

arri

ers

to R

egio

nal C

o-op

erat

ion

& In

form

atio

n Sh

arin

g

Som

e ge

nera

l re

mar

ks o

n Le

gal

Cha

lleng

es

and

Barr

iers

to

Re

gion

al

Co-

oper

atio

n &

In

form

atio

n Sh

arin

g


Annex 4


A re

lated

issu

e, w

hich

is o

f ex

trem

e im

porta

nce

to t

he u

se o

f VM

S da

ta in

pro

secu

tions

or

othe

r pr

ocee

ding

s, i

s th

e di

fficu

lties

exp

erie

nced

with

th

e ad

miss

ibilit

y of

suc

h ev

iden

ce (

it is

seen

as

com

pute

r gen

erat

ed e

vide

nce)

.

of V

MS

and

vess

el m

onito

ring

devi

ce

evid

ence

(a

s w

ell

as

phot

ogra

phic

evid

ence

). Se

e se

ctio

ns 6

4-66

of t

he B

ill.Al

so s

ee th

e ge

nera

l com

men

ts a

bove

.

16Sh

arin

g of

Ope

ratio

nal M

CS

Info

rmat

ion

As a

gen

eral

rem

ark,

and

not

spec

ific

to S

eych

elle

s,

ther

e is

a ce

rtain

am

ount

of

relu

ctan

ce t

o sh

are

info

rmat

ion

in th

e re

gion

.

This

relu

ctan

ce s

eem

s to

be

base

d on

a

misi

nter

pret

atio

n of

app

licab

le le

gisla

tive

claus

es, a

s w

ell a

s ag

reem

ents

with

boa

t ow

ners

on

this

issue

. Thi

s iss

ue m

ust b

e ad

dres

sed.

17Le

gal C

halle

nges

and

Bar

riers

to th

e Sh

arin

g of

D

ata

to E

nabl

e D

evel

opm

ent a

nd F

unct

ioni

ng

of t

he R

egio

nal

MC

S D

ata

and

Ope

ratio

ns

Cen

tre

See

the

gene

ral c

omm

ents

abo

ve.

See

the

gene

ral c

omm

ents

abo

ve.


Annex 4


4.6

SOM

ALI

ATO

RIS

SUES

REV

IEW

EVA

LUA

TIO

N

The

main

fram

ewor

k leg

islat

ion

is th

e So

mali

Fish

ing

Law

23

of 1

985,

whi

ch is

in n

eed

of a

revi

sion

and

upda

te. A

Mar

itim

e Se

curit

y Bi

ll, w

ith th

e in

tent

ion

to e

stab

lish

an E

EZ, a

nd w

hich

inco

rpor

ates

som

e IU

U a

spec

ts is

cur

rent

ly b

eing

dra

fted.

It is

not c

lear

if a p

ropo

sed

set o

f reg

ulat

ions

is

in p

lace,

but

the

revi

sion

and

upda

te o

f th

e le

gal f

ram

ewor

k is

urge

ntly

req

uire

d.

The

prop

osed

reg

ulat

ions

, w

hile

muc

h m

ore

exte

nsiv

e th

an th

e 19

85 A

ct, c

onta

in

serio

us e

rror

s.3

Lega

l Cap

acity

to U

nder

take

MC

STh

ere

is alm

ost

no

info

rmat

ion

avail

able

on

th

e as

pect

s of

pro

secu

tion,

com

poun

ding

and

ad

min

istra

tive

pena

lties

. Se

e ho

wev

er

the

disc

ussio

n of

the

legi

slatio

n in

the

main

text

.

See

the

com

men

t abo

ve.

1Le

gal

Cha

lleng

es &

Bar

riers

to

Impr

ovin

g C

ompl

iance

Lev

els

with

Nat

iona

l La

w a

nd

Prov

ision

s of

RFB

s.

See

the

gene

ral

com

men

ts a

bove

. Th

e pe

nalty

pr

ovisi

ons

are

disc

usse

d in

the

main

tex

t, an

d im

priso

nmen

t is

also

a pe

nalty

opt

ion

in c

erta

in

case

s. A

noth

er in

tere

stin

g as

pect

of t

he le

gisla

tion

is a

type

of “

catc

h-all

offe

nce”

in a

rticle

12.

Bot

h th

ese

prov

ision

s ar

e va

luab

le.

Forfe

iture

of

ca

tch

and

gear

, an

d in

the

cas

e of

a s

ubse

quen

t co

nvict

ion,

the

ves

sel,

is a

poss

ibilit

y in

ter

ms

of

the

legi

slatio

n.

See

the

com

men

t abo

ve.

19Le

gal B

arrie

rs in

the

Proc

edur

es fo

r Se

izure

, C

onfis

catio

n an

d D

ispos

al &

H

andl

ing

of

Evid

ence

No

lega

l bar

riers

in th

is re

gard

wer

e de

tect

ed o

r re

porte

d.Se

e th

e co

mm

ent a

bove

.

6Le

gal

Barr

iers

to

Impl

emen

ting

an E

ffect

ive

Fishe

ries

Insp

ecto

rate

No

lega

l bar

riers

in th

is re

gard

wer

e de

tect

ed o

r re

porte

d.Se

e th

e co

mm

ent

abov

e.

SOPs

an

d M

anua

ls w

ill be

a

help

ful

addi

tion

to

train

ing

of fi

sher

y in

spec

tors

.2

Har

mon

isatio

n of

Leg

islat

ion

(Inte

rnal)

If th

e re

gulat

ions

hav

e be

en p

rom

ulga

ted,

the

re

are

som

e iss

ues t

hat r

equi

re to

be

addr

esse

d. T

his

is di

scus

sed

in th

e m

ain te

xt.

See

the

com

men

t abo

ve. S

uch

a re

visio

n or

upd

ate

mus

t loo

k at

the

harm

onisa

tion

of th

e Ac

t and

the

Regu

latio

ns.

Lega

l Fra

mew

ork

Som

e G

ener

al R

emar

ks o

n th

e Le

gal F

ram

ewor

k


Annex 4


4Le

gal

Cha

lleng

es

and

Barr

iers

to

th

e Im

plem

enta

tion

of

Effe

ctiv

e N

atio

nal

&

Regi

onal

MC

S (n

ote

that

th

e sh

arin

g of

in

form

atio

n w

ill be

add

ress

ed u

nder

(16

) be

low

)

Train

ing

for i

nspe

ctor

s on

all

aspe

cts

are

requ

ired

and

wer

e re

ques

ted.

Train

ing

of in

spec

tors

sho

uld

be a

prio

rity.

9Le

gal B

arrie

rs to

the

Adop

tion

of R

isk A

naly

sis

Met

hodo

logy

No

spec

ific

lega

l ba

rrie

rs

wer

e de

tect

ed

or

repo

rted.

Se

e th

e co

mm

ent a

bove

.

7C

aree

r Pat

h fo

r Fish

erie

s In

spec

tors

Insu

fficie

nt

info

rmat

ion

avail

able

, bu

t it

was

in

dica

ted

that

abo

ut 3

0 in

spec

tors

are

req

uire

d to

re

ceiv

e ad

ditio

nal t

rain

ing.

Insu

fficie

nt in

form

atio

n av

ailab

le.

The

num

erou

s C

onst

itutio

ns d

o pr

ovid

e fo

r th

e ra

tifica

tion

of tr

eatie

s. S

ee th

e m

ain te

xt fo

r m

ore

deta

ils.

Som

alia

only

bec

ame

a m

embe

r of

the

IO

TC th

is ye

ar, a

nd re

quire

s ass

istan

ce w

ith

the

inco

rpor

atio

n an

d im

plem

enta

tion

of

the

IOTC

and

oth

er r

egio

nal a

gree

men

ts

and

stan

dard

s.5

Impl

emen

tatio

n of

the

IUU

NPO

ATh

ere

is no

IUU

NPO

A in

plac

e.As

sista

nce

with

the

dra

fting

of

an I

UU

N

POA

is re

quire

d.10

Parti

cipat

ion

in th

e IO

C M

CS

Regi

onal

Plan

fo

r the

Sou

th W

est I

ndian

Oce

anN

o le

gal b

arrie

rs in

this

rega

rd w

ere

repo

rted

or

dete

cted

.N

o in

terv

entio

n is

requ

ired

if th

e ot

her

wea

knes

ses

in t

he l

egisl

atio

n ar

e ad

dres

sed.

8Im

plem

enta

tion

of IO

TC P

ort S

tate

Mea

sure

Re

solu

tions

&

FA

O

Port

Stat

e M

easu

re

Agre

emen

t Pro

visio

ns

Som

alia

only

bec

ame

a m

embe

r of

the

IOTC

this

year

. See

the

rem

ark

imm

ediat

ely

belo

w.

See

the

rem

ark

abov

e.

11Ad

ditio

nal L

egal

Barr

iers

to th

e D

evel

opm

ent

&

Impl

emen

tatio

n of

Ex

istin

g IO

TC

Reso

lutio

ns

As

Som

alia

only

be

cam

e a

mem

ber

of

the

IOTC

thi

s ye

ar,

they

will

requ

ire a

ssist

ance

with

th

e in

corp

orat

ion

and

impl

emen

tatio

n of

th

e re

solu

tions

.

See

the

rem

ark

abov

e.

Lega

l cha

lleng

es a

nd B

arri

ers

to

the

Impl

emen

tati

on/A

dopt

ion

of

Regi

onal

Agr

eem

ents

& S

tand

ards

Som

e ge

nera

l rem

arks

on

Lega

l C

halle

nges

and

Bar

rier

s to

the

Im

plem

enta

tion

/Ado

ptio

n of

Re

gion

al A

gree

men

ts &

Sta

ndar

ds


Annex 4


15Le

gal B

arrie

rs to

the

Stre

ngth

enin

g of

Oth

er

Cen

tral

MC

S Fu

nctio

ns P

resc

ribed

by

the

IOTC

No

addi

tiona

l le

gal

barr

iers

in

this

rega

rd w

ere

repo

rted

or d

etec

ted.

See

the

rem

ark

abov

e.

18Ad

optio

n of

C

omm

on

ESA-

IO

Regi

onal

Stan

dard

s fo

r Li

cens

ing

of V

esse

ls (in

cludi

ng a

na

tiona

l reg

ister

of v

esse

ls)

No

natio

nal r

egist

er o

f ve

ssel

s is

in p

lace,

but

a

regi

ster

of l

icens

es is

pre

scrib

ed b

y ar

ticle

6.

No

lega

l ba

rrie

rs i

n th

is re

gard

wer

e re

porte

d or

de

tect

ed.

See

the

rem

ark

abov

e.

2H

arm

onisa

tion

of L

egisl

atio

n (b

etw

een

ESA-

IO c

ount

ries)

The

harm

onisa

tion

of

certa

in

prov

ision

s,

and

espe

cially

pen

altie

s, t

hrou

ghou

t th

e re

gion

is

a re

quire

men

t, as

it is

set o

ut in

the

disc

ussio

n of

the

main

text

.

Har

mon

isatio

n w

ith o

ther

cou

ntrie

s in

the

regi

on s

houl

d re

ceiv

e pr

iorit

y.

Ther

e ar

e no

pr

ovisi

ons

in

the

legi

slatio

n sp

ecifi

cally

dea

ling

with

thes

e iss

ues,

but

the

polic

y an

d st

rate

gy o

f 200

4 de

als w

ith th

is iss

ue.

Thes

e iss

ues

mus

t be

add

ress

ed i

n th

e pr

opos

ed le

gal r

evisi

on a

nd u

pdat

e.

12Es

tabl

ishm

ent

of

a C

ompa

tible

D

ata

Col

lect

ion

Syst

em

(Thi

s in

clude

s da

ta

for

scie

ntifi

c pu

rpos

es a

nd f

or M

CS,

suc

h as

a

list/r

egist

er o

f lic

ense

s, a

reg

ister

of

fishi

ng

vess

els,

per

mits

and

lice

nses

, the

info

rmat

ion

colle

cted

in te

rms

of th

e PS

MA)

.

See

the

gene

ral c

omm

ents

abo

ve.

See

the

gene

ral c

omm

ents

abo

ve.

13Es

tabl

ishm

ent

of

a C

ompa

tible

Re

porti

ng

Syst

em fo

r Tun

a Fis

herie

s St

atist

icsSe

e th

e ge

nera

l com

men

ts a

bove

.Se

e th

e ge

nera

l com

men

ts a

bove

.

14Im

plem

enta

tion

of a

Nat

iona

l VM

S &

Sha

ring

of D

ata

Regi

onall

yTh

ere

are

no p

rovi

sions

on

the

adm

issib

ility

of

VMS

data

in p

rose

cutio

ns o

r oth

er p

roce

edin

gs.

Thes

e iss

ues

mus

t be

add

ress

ed i

n th

e pr

opos

ed le

gal r

evisi

on a

nd u

pdat

e.16

Shar

ing

of O

pera

tiona

l MC

S In

form

atio

nSe

e th

e ge

nera

l com

men

ts a

bove

.Se

e th

e ge

nera

l com

men

ts a

bove

.17

Lega

l Cha

lleng

es an

d Ba

rrie

rs to

the

Shar

ing

of

Dat

a to

Ena

ble

Dev

elop

men

t and

Fun

ctio

ning

of

the

Reg

iona

l M

CS

Dat

a an

d O

pera

tions

C

entre

See

the

gene

ral c

omm

ents

abo

ve.

See

the

gene

ral c

omm

ents

abo

ve.

Lega

l Cha

lleng

es a

nd B

arri

ers

to R

egio

nal C

o-op

erat

ion

& In

form

atio

n Sh

arin

g

Som

e ge

nera

l re

mar

ks

on

Lega

l C

halle

nges

and

Bar

rier

s to

Reg

iona

l C

o-op

erat

ion

& In

form

atio

n Sh

arin

g


Annex 4


4.7

THE

UN

ITED

REP

UBL

IC O

F TA

NZA

NIA

TOR

ISSU

ESRE

VIE

WEV

ALU

ATI

ON

The

2003

Fis

herie

s Ac

t an

d th

e Re

gulat

ions

pu

blish

ed u

nder

s.57

of t

hat A

ct ap

plie

s to

Main

land

Tanz

ania.

The

Mar

ine

Park

s and

Res

erve

s Act

29

of

1994

dea

ls w

ith th

e es

tabl

ishm

ent o

f mar

ine

park

s an

d re

serv

es.

As fa

r as Z

anzib

ar is

con

cern

ed, t

he

Fishe

ries

Act o

f 198

8 w

as r

ecen

tly r

eplac

ed w

ith

the

2010

Fish

erie

s Ac

t. Th

is 20

10 A

ct c

orre

cted

de

ficie

ncie

s an

d th

e pu

nish

men

t le

vels

wer

e re

porte

d to

be

adeq

uate

. The

re is

also

add

ition

al le

gisla

tion

deali

ng w

ith m

arin

e pr

otec

ted

area

s in

Z

anzib

ar,

whi

ch f

alls

unde

r th

e au

thor

ity o

f th

e M

arin

e C

onse

rvat

ion

Uni

t.

The

Dee

p Se

a Fis

hing

Aut

horit

y Ac

t of

199

8 (a

men

ded

in 2

007)

est

ablis

hes

the

Dee

p Se

a Fis

hing

Aut

horit

y an

d re

gulat

es d

eep-

sea

fishi

ng

in t

he E

EZ.

The

Dee

p Se

a Fis

hing

Aut

horit

y Re

gulat

ions

of 2

009

was

pro

mul

gate

d in

term

s of

th

is Ac

t. Th

ese

appl

y to

bot

h Ta

nzan

ia Z

anzib

ar a

s w

ell a

s M

ainlan

d Ta

nzan

ia.

Ther

e ar

e lim

ited

reso

urce

s,

inclu

ding

in

suffi

cient

fina

ncial

reso

urce

s in

the

offic

e of

the

DPP

(res

pons

ible

for p

rose

cutio

ns),

the

Tanz

ania

Fishe

ries

Dep

artm

ent

(res

pons

ible

for M

CS i

n M

ainlan

d Ta

nzan

ia)

and

the

Mar

ine

Park

s an

d Re

serv

es U

nit,

whi

ch h

ampe

rs e

ffect

ive

MC

S op

erat

ions

, an

d slo

ws d

own

the

pros

ecut

ion

proc

ess.

Ther

e ar

e ch

allen

ges

and

barr

iers

in t

he

lega

l fra

mew

ork,

but

man

y of

thes

e ha

ve

been

add

ress

ed,

or a

re i

n th

e pr

oces

s of

bei

ng a

ddre

ssed

. W

hile

sup

port

for

this

proc

ess

is re

quire

d, t

he b

arrie

rs i

n th

e le

gal f

ram

ewor

k do

not

see

m t

o be

a

majo

r im

pedi

men

t to

affe

ctiv

e M

CS,

sa

ve fo

r th

e fa

ct t

hat

inad

equa

te p

enalt

y pr

ovisi

ons

shou

ld

be

addr

esse

d as

a

mat

ter o

f urg

ency

.

It w

as

repo

rted

that

bo

th

the

2003

Fis

herie

s Ac

t an

d th

e M

arin

e Pa

rks

and

Rese

rves

Act

will

be re

view

ed in

the

near

fu

ture

, an

d th

at t

he m

axim

um p

enalt

ies

will

be in

crea

sed.

Thou

gh

fairl

y re

cent

le

gisla

tion,

th

e D

SFA

has

indi

cate

d th

at

they

w

ould

ap

prec

iate

assis

tanc

e w

ith th

e re

visio

n an

d st

reng

then

ing

of th

e Ac

t and

Reg

ulat

ions

.

Lega

l Fra

mew

ork

Som

e G

ener

al R

emar

ks o

n th

e Le

gal

Fram

ewor

k


Annex 4


3Le

gal C

apac

ity to

Und

erta

ke M

CS

• P

rose

cutio

nTh

ere

is a

good

wor

king

relat

ions

hip

betw

een

the

Offi

ce o

f the

Dire

ctor

of P

ublic

Pro

secu

tions

(r

espo

nsib

le

for

pros

ecut

ions

in

M

ainlan

d Ta

nzan

ia), a

nd th

e Ta

nzan

ia Fis

herie

s Dep

artm

ent.

The

DPP

mak

es u

se o

f pol

ice p

rose

cuto

rs in

min

or

case

s, a

nd is

bus

y w

ith t

he p

roce

ss o

f rep

lacin

g th

ese

pros

ecut

ors

with

gra

duat

ed p

erso

nnel

. In

so

me

mat

ters

the

y ev

en a

ppoi

nt p

rivat

e law

yers

to

con

duct

pro

secu

tions

on

beha

lf of

the

DPP

. C

urre

ntly

ther

e ar

e no

oth

er se

rious

tran

sgre

ssio

ns

unde

r fis

herie

s le

gisla

tion

on t

he c

ourt

role

, bu

t th

e Ta

war

iq I

case

is o

ngoi

ng. T

he H

igh

Cou

rt is

how

ever

not

cur

rent

ly in

ses

sion,

and

is a

wait

ing

the

new

nat

iona

l bud

get

alloc

atio

n be

fore

it c

an

com

men

ce s

essio

ns a

gain

. Th

e D

SFA

repo

rted

that

ano

ther

rea

son

for

the

delay

in fi

nalis

ing

the

case

, is

the

cons

tant

obj

ectio

ns, w

hich

are

lodg

ed

by t

he d

efen

ce in

the

mat

ter,

and

that

the

sta

te

atto

rney

s an

d pr

osec

utor

s ha

ve d

one

very

wel

l in

the

mat

ter.

They

hop

e th

at t

he v

esse

l will

be

forfe

ited

and

can

then

be

used

as

a pa

trol v

esse

l.

Rega

rdin

g tra

nsgr

essio

ns

and

pros

ecut

ions

in

m

arin

e pa

rks

and

rese

rves

, it

was

rep

orte

d th

at

com

plian

ce le

vels

are

very

hig

h in

cer

tain

are

as

e.g.

Mafi

a Isl

and,

whi

le it

is s

ubst

antia

lly lo

wer

in

othe

r ar

eas,

esp

ecial

ly c

lose

r to

the

urba

n ar

eas.

In

man

y ca

ses

the

trans

gres

sors

flee

, and

onl

y th

e ca

tch

and

equi

pmen

t is

seize

d. S

ome

mat

ters

are

co

mpo

unde

d an

d so

me

are

pros

ecut

ed b

efor

e a

dist

rict l

evel

mag

istra

te.

The

Dire

ctor

of

Publ

ic Pr

osec

utio

ns f

or

Main

land

Tanz

ania

appe

aled

for

supp

ort

to

stre

ngth

en

capa

city

to

ensu

re

an

effic

ient

pr

osec

utio

n se

rvice

, po

ssib

ly

with

spe

cialis

ed u

nits

. Th

ere

has

been

an

in

crea

se

in

envi

ronm

enta

l cr

imes

, in

cludi

ng fi

sher

ies

offe

nces

, an

d he

fee

ls th

e tim

e is

ripe

for

spec

ialisa

tion

by

pros

ecut

ors

in th

at fi

eld.

Train

ing

of p

rose

cuto

rs t

o sp

ecial

ise i

n fis

herie

s le

gisla

tion

and

pros

ecut

ion

is re

quire

d, b

ut t

he p

roce

ss o

f re

plac

ing

pros

ecut

ors

with

su

itabl

y qu

alifie

d pe

rson

nel i

s a

long

and

ong

oing

pro

cess

. Th

ere

are

also

very

few

ser

ious

cas

es in

co

urt,

but w

ith in

crea

sed

MC

S ef

fort,

this

situa

tion

can

chan

ge in

futu

re.

Awar

enes

s pr

ogra

ms

and

train

ing

for

pros

ecut

ors

and

pres

idin

g of

ficer

s on

fis

herie

s iss

ues

and

legi

slatio

n w

as a

lso

prop

osed

, an

d st

rong

ly

emph

asise

d,

by t

he v

ario

us fi

sher

ies

role

-play

ers.

In

Main

land

Tanz

ania

they

ha

ve

alrea

dy

com

men

ced

with

an

awar

enes

s pr

ogra

m

for m

agist

rate

s.

The

idea

of r

egio

nal w

orkin

g gr

oups

for

pros

ecut

ors a

nd m

agist

rate

s was

disc

usse

d an

d su

ppor

ted.


Annex 4


Vario

us so

urce

s ind

icate

d a

low

leve

l of c

onvi

ctio

n (o

ne e

stim

ate

indi

cate

d a

20%

con

vict

ion

rate

), or

to

tally

inad

equa

te s

ente

nces

bei

ng h

ande

d do

wn

for

offe

nces

com

mitt

ed o

n M

ainlan

d Ta

nzan

ia by

sm

all s

cale

or

artis

anal

fishe

rmen

, with

alle

gatio

ns

of m

agist

rate

s rec

eivi

ng b

ribes

. The

se p

rose

cutio

ns

are

done

on

dist

rict c

ourt

leve

l with

pol

ice o

fficia

ls se

rvin

g as

mag

istra

tes

and

fishe

ries

insp

ecto

rs

draf

ting

the

char

ge s

heet

s an

d ac

ting

as w

itnes

ses.

The

need

for e

xper

t pro

secu

tors

on

a di

stric

t lev

el

for t

hese

type

s of c

ases

was

exp

ress

ed. T

he p

atro

l ve

ssel

s (u

nder

Main

land

Fishe

ries

Dep

artm

ent)

repo

rted

12

trans

gres

sions

ou

t of

40

ve

ssel

s in

spec

ted

in a

n op

erat

ion

in J

une

2011

(th

ese

are

not

tuna

ves

sels,

but

rat

her

small

er in

shor

e cr

aft).

Nin

e of

the

se t

rans

gres

sions

wer

e fis

hing

w

ithou

t a li

cenc

e, a

ll of

whi

ch w

ere

com

poun

ded

for a

mou

nts b

etw

een

20 0

00-5

0 00

0 TS

(the

law

all

ows

for a

max

imum

of 1

00 0

00 T

S). T

he o

ther

3

case

s co

ncer

ned

dyna

mite

fish

ing,

and

the

se

case

s ar

e st

ill be

ing

pros

ecut

ed (

no p

atro

ls w

ere

unde

rtake

n sin

ce th

en d

ue to

lack

of f

undi

ng).

In Z

anzib

ar, t

he fi

sher

y co

mm

uniti

es fo

rm p

art o

f th

e M

CS

syst

em,

and

ever

y vi

llage

has

a p

atro

l te

am.

The

Zan

zibar

Fis

herie

s D

epar

tmen

t, w

hile

rep

ortin

g a

huge

inc

reas

e in

the

am

ount

of

fish

erm

en in

the

arti

sana

l sec

tor,

indi

cate

d an

alm

ost 1

00%

con

vict

ion

rate

. •

Adm

inist

rativ

e pe

nalti

es/ c

ompo

undi

ng /

adm

issio

n of

gui

lt fin

esC

ompo

undi

ng

is pr

ovid

ed

for

in

the

vario

us

diffe

rent

pie

ces o

f legi

slatio

n an

d th

e co

mpo

undi

ng

proc

ess

was

repo

rted

to fu

nctio

n ve

ry w

ell.

Ther

e do

es n

ot se

em to

be

any

chall

enge

s an

d ba

rrie

rs in

this

rega

rd.


Annex 4


1Le

gal

Cha

lleng

es &

Bar

riers

to

Impr

ovin

g C

ompl

iance

Lev

els

with

Nat

iona

l La

w a

nd

Prov

ision

s of

RFB

s

No

addi

tiona

l le

gal

barr

iers

wer

e re

porte

d or

de

tect

ed,

but

fore

ign

vess

els

are

not

oblig

ed t

o co

me

into

por

t.

Dep

endi

ng o

n va

rious

pra

ctica

l im

plica

tions

(suc

h as

the

fact

that

the

ports

do

not c

ater

for f

orei

gn fi

shin

g ve

ssel

s), t

his

mat

ter s

houl

d re

ceiv

e at

tent

ion.

• Pe

nalti

esM

axim

um

pena

lties

un

der

the

2003

Fis

herie

s Ac

t an

d th

e M

arin

e Pa

rks

and

Rese

rves

Ac

t w

ere

repo

rted

to b

e to

o lo

w, w

ith u

ncon

firm

ed

repo

rts th

at th

e pr

oces

s to

revi

se a

nd in

crea

se th

e pe

nalti

es h

as a

lread

y co

mm

ence

d (a

nd t

hat

fines

w

ill be

incr

ease

d to

500

000

TS).

S.18

of

the

DSF

AA m

akes

pro

visio

n th

at a

ny

pers

on w

ho c

arrie

s ou

t fis

hing

act

iviti

es c

ontra

ry

to th

e Ac

t or t

he D

SFAR

, com

mits

an

offe

nce

and

is lia

ble

to a

fine

of u

p to

one

billi

on s

hillin

gs o

r to

im

priso

nmen

t of u

p to

20

year

s, o

r to

both

.

The

fines

are

ina

dequ

ate

to a

ct a

s an

ef

fect

ive

dete

rren

t (th

is w

as a

lso a

conc

ern

expr

esse

d by

all

role

play

ers)

. Th

ere

is als

o no

pro

visio

n fo

r im

priso

nmen

t as

a

pena

lty o

ptio

n, k

eepi

ng i

n m

ind

that

U

NC

LOS

plac

es c

erta

in l

imita

tions

on

such

a p

ossib

ility.

• O

ther

m

easu

res

that

ca

n se

rve

as

a de

terr

ent

(forfe

iture

, su

spen

sion

or

canc

ellat

ion

of l

icenc

es,

supp

lem

enta

ry

or o

ther

adm

inist

rativ

e or

ders

)

S.18

of

the

DSF

AA m

akes

pro

visio

n th

at a

ny

pers

on, w

ho c

arrie

s ou

t fish

ing

activ

ities

con

trary

to

the

Act o

r the

DSF

AR, c

omm

its a

n of

fenc

e an

d in

add

ition

to

the

max

imum

pen

alty,

the

Cou

rt “m

ay,”

orde

r fo

rfeitu

re o

f th

e ve

ssel

, st

ruct

ure,

eq

uipm

ent

or t

hing

in c

onne

ctio

n to

the

offe

nce

com

mitt

ed.

Main

land

Tanz

ania

has

star

ted

to im

plem

ent

the

Proc

eeds

of C

rime

Act

(it o

nly

cont

ains

crim

inal,

an

d no

t civ

il, f

orfe

iture

mea

sure

s).

The

lack

of

a civ

il fo

rfeitu

re p

rovi

sion

is pr

oble

mat

ic, a

nd

need

s to

be a

ddre

ssed

via

an a

men

dmen

t, as

was

po

inte

d ou

t by

the

DPP

.

Shou

ld

the

legi

slatio

n be

re

vise

d an

d up

date

d,

it w

ill be

ex

pedi

ent

to

also

prop

erly

revi

ew th

ese

aspe

cts.


Annex 4


The

Zan

zibar

legi

slatio

n pr

ovid

es fo

r fo

rfeitu

re o

f a

catc

h, g

ear a

nd v

esse

ls.

19Le

gal B

arrie

rs in

the

Proc

edur

es fo

r Se

izure

, C

onfis

catio

n an

d D

ispos

al &

H

andl

ing

of

Evid

ence

It w

as re

porte

d th

at tu

na v

esse

ls ra

rely

com

e in

to

port

in M

ainlan

d Ta

nzan

ia, a

nd in

spec

tions

of s

uch

vess

els

ther

efor

e do

not

gen

erall

y fo

rm p

art

of

thei

r ta

sks

(app

aren

tly m

any

landi

ngs

take

plac

e in

Mom

basa

). Fis

h pr

oces

sing

esta

blish

men

ts a

nd

mar

kets

are

insp

ecte

d, b

ut re

stau

rant

s ar

e no

t.Th

e M

ainlan

d Ta

nzan

ia Fis

herie

s In

spec

tora

te a

lso

has

a pr

esen

ce a

t cer

tain

bor

der p

osts

.

Con

flict

ing

repo

rts w

ere

rece

ived

reg

ardi

ng t

he

catc

h on

the

Taw

ariq

I –

it w

as e

ither

sol

d of

f or

beca

me

rotte

n, o

r a c

ombi

natio

n of

the

two.

Fis

h ca

nnot

be

disp

osed

of,

or s

old

back

to

the

owne

r, w

ithou

t a c

ourt

orde

r.

Shou

ld

the

legi

slatio

n be

re

vise

d an

d up

date

d,

it w

ill be

ex

pedi

ent

to

also

prop

erly

revi

ew th

ese

aspe

cts.

6Le

gal B

arrie

rs to

Impl

emen

ting

an E

ffect

ive

Fishe

ries

Insp

ecto

rate

• Ap

poin

tmen

t and

func

tioni

ng o

f Fish

erie

s In

spec

tors

The

DSF

A us

es in

spec

tors

from

the

othe

r fish

erie

s ag

encie

s, i.

e. th

e na

vy e

tc. I

nspe

ctor

s for

m p

art o

f th

e civ

il se

rvice

and

ther

e is

not a

hug

e tu

rnov

er

of i

nspe

ctor

s. T

he r

eque

st w

as h

owev

er t

hat

insp

ecto

rs s

houl

d be

em

pow

ered

by

addi

tiona

l tra

inin

g.

No

lega

l ba

rrie

rs

wer

e de

tect

ed

or

repo

rted.

• SO

P’s

& M

anua

lsTh

e pa

trol

vess

els

(und

er

Main

land

Fishe

ries

Dep

artm

ent)

do h

ave

a SO

P pr

epar

ed u

nder

th

e SA

DC

-MC

S pr

ojec

t. Th

is de

als m

ainly

with

bo

ardi

ng a

nd in

spec

tion.

The

re is

also

a se

a fis

hery

in

spec

tor

sour

ce m

anua

l. Th

ese

do n

ot d

eal w

ith

the

legi

slatio

n an

d ex

clude

the

artis

anal

sect

or.

A co

mpr

ehen

sive

set

of

SOPs

an

d a

man

ual f

or fi

sher

y in

spec

tors

sho

uld

add

to a

mor

e ef

fect

ive

insp

ecto

rate

.


Annex 4


The

idea

of

a co

mpr

ehen

sive

set

of S

OPs

and

a

com

preh

ensiv

e m

anua

l w

as

disc

usse

d an

d w

elco

med

.•

Fund

ing

from

fine

s, p

enalt

ies

and

sale

of

forfe

ited

fish.

It w

as re

porte

d th

at a

ll lice

nsin

g fe

es, fi

nes p

aid e

tc

go to

the

Trea

sury

. S. 2

9 of

the

Main

land

Fishe

ries

Act o

f 200

3 es

tabl

ishes

a F

isher

ies

Dev

elop

men

t Fu

nd, b

ut th

ere

is no

men

tion

of p

enalt

ies,

fees

or

fines

that

mus

t be

paid

into

the

fund

.

S.10

of t

he D

SFAA

dea

ls w

ith fu

nds o

f the

auth

ority

, an

d als

o do

es n

ot c

onta

in s

uch

a pr

ovisi

on.

It do

es h

owev

er p

rovi

de t

hat

whe

re a

ny s

um o

f m

oney

doe

s ac

crue

to th

e Au

thor

ity a

s a

resu

lt of

“d

ischa

rgin

g its

dut

ies u

nder

this

Act”

, the

Aut

horit

y is

only

allo

wed

to r

etain

50%

of t

hose

fund

s. A

ll co

urt f

ees

go to

the

treas

ury.

Con

fisca

ted

fish

are

not u

suall

y so

ld, b

ut ra

ther

don

ated

.

An a

ltern

ativ

e po

ssib

ility

is pr

ovid

ing

that

all

fine

s, f

ees

and

inco

me

from

the

sale

of

forfe

ited

fish,

will

accr

ue to

the

vario

us

fishi

ng

auth

oriti

es

(Main

land,

Z

anzib

ar

and

DSF

A),

or t

hat

a fu

nd s

houl

d be

se

t up

for

thi

s pu

rpos

e, t

o m

anag

e th

is in

com

e an

d en

sure

that

it is

util

ised

for t

he

man

agem

ent

and

com

plian

ce e

fforts

of

the

auth

oriti

es.

A pr

ovisi

on al

low

ing

the

sale

of c

onfis

cate

d fis

h w

ill be

valu

able

and

is a

n as

pect

tha

t sh

ould

be

look

ed a

t if

the

legi

slatio

n is

upda

ted

or a

men

ded.

2

Har

mon

isatio

n of

Leg

islat

ion

(Inte

rnal)

The

DPP

poi

nted

out

that

the

Regu

latio

ns u

nder

th

e 20

03 F

isher

ies A

ct o

nly

cam

e in

to o

pera

tion

in

2009

. The

re is

a n

eed

to h

arm

onise

som

e of

the

prov

ision

s, e

.g. s

ome

of th

e pe

nalty

pro

visio

ns in

th

e re

gulat

ions

are

mor

e se

vere

than

thos

e un

der

the

Act.

The

2003

Fish

erie

s Ac

t an

d th

e 20

09

Regu

latio

ns a

re n

ot h

arm

onise

d. T

here

is

a ne

ed to

rev

iew

and

upd

ate

the

2003

Fis

herie

s Ac

t, an

d en

sure

har

mon

isatio

n w

ith th

e 20

09 R

egul

atio

ns, e

spec

ially

with

re

gard

to th

e pe

nalty

pro

visio

ns.

4Le

gal

Cha

lleng

es

and

Barr

iers

to

th

e Im

plem

enta

tion

of

Effe

ctiv

e N

atio

nal

&

Regi

onal

MC

S (n

ote

that

th

e sh

arin

g of

in

form

atio

n w

ill be

add

ress

ed u

nder

(16

) be

low

)


Annex 4


• In

vest

igat

ive

Abilit

yTh

e N

atio

nal

Pros

ecut

ions

Ser

vice

Act

, Ac

t 27

of

200

8 m

akes

it c

lear

tha

t it

not

only

app

lies

to

crim

inal

pros

ecut

ions

, but

also

to th

e “c

oord

inat

ion

of i

nves

tigat

ion

of c

rimes

in

Main

land

Tanz

ania”

an

d th

at th

is is

the

duty

of t

he D

irect

or o

f Pub

lic

Pros

ecut

ions

(s

ee

sect

ion

2 an

d 4(

3)).

This

prov

ision

cre

ates

the

pot

entia

l fo

r ve

ry c

lose

co

oper

atio

n be

twee

n ag

encie

s re

spon

sible

for

in

vest

igat

ion

(suc

h as

the

Fish

erie

s D

epar

tmen

t an

d th

e D

SFA)

, and

the

DPP

, and

can

be

a hu

ge

adva

ntag

e in

driv

ing

effe

ctiv

e in

vest

igat

ions

and

pr

osec

utio

ns.

Train

ing

in b

asic

inve

stig

ativ

e te

chni

ques

sh

ould

be

pres

ente

d. S

ee th

e co

mm

ents

im

med

iatel

y be

low

.

• Tr

ainin

gT r

ainin

g of

in

spec

tors

an

d ot

her

enfo

rcem

ent

offic

ials

(suc

h as

th

e po

lice

forc

e,

navy

an

d co

astg

uard

, all

pl

ay

a su

ppor

ting

role

) w

as

high

light

ed a

s an

impo

rtant

issu

e to

be

addr

esse

d.

Not

e th

at in

the

“sm

aller

” ca

ses

on d

istric

t le

vel,

polic

e of

ficial

s are

also

cond

uctin

g the

pro

secu

tions

. Sp

ecifi

c iss

ues t

o be

cov

ered

by

train

ing

was

“how

to

sta

te th

e ca

se”,

inclu

ding

asp

ects

suc

h as

bas

ic cr

ime

scen

e m

anag

emen

t, dr

aftin

g of

sta

tem

ents

, ho

w to

test

ify in

cou

rt an

d ba

sic in

vest

igat

ion

skills

. Th

e ne

ed fo

r tra

inin

g on

pro

vidi

ng o

ral t

estim

ony

in c

ourt

was

men

tione

d re

peat

edly

dur

ing

inte

rvie

ws

with

var

ious

offi

cials.

Train

ing

of

insp

ecto

rs

from

th

e Fis

herie

s D

epar

tmen

t an

d th

e M

arin

e Pa

rks

and

Rese

rves

U

nit c

an b

e co

mbi

ned,

due

to s

imila

r nee

ds.

The

succ

ess

of a

pro

secu

tion

or o

ther

en

forc

emen

t m

easu

res

heav

ily

depe

nd

on th

e co

rrec

t pro

cedu

res b

eing

follo

wed

by

fis

herie

s in

spec

tors

, an

d su

fficie

nt

evid

ence

bei

ng g

athe

red

to p

rove

the

co

mm

issio

n of

an

offe

nce.

Spe

cific

area

s th

at sh

ould

be

cove

red

wer

e ba

sic tr

ainin

g fo

r ne

w e

ntra

nts,

insp

ectio

n an

d se

arch

, ha

ndlin

g of

evi

denc

e an

d in

vest

igat

ion.

Train

ing

effo

rts

are

supp

orte

d an

d di

scus

sed

in th

e re

view

.


Annex 4


Regi

onal

train

ing

cour

ses

wer

e pr

evio

usly

pr

esen

ted

via

Mbe

gani

un

der

the

SAD

C-E

U

proj

ect.

One

of t

he in

stitu

tions

repo

rted

that

a to

tal

of 4

9 in

spec

tors

from

bot

h M

ainlan

d an

d Z

anzib

ar

wer

e tra

ined

dur

ing

this

perio

d).

Mbe

gani

FD

C

curr

ently

pre

sent

s var

ious

rele

vant

cou

rses

such

as

a na

tiona

l enf

orce

men

t cou

rse,

a ju

nior

and

seni

or

insp

ecto

rs c

ours

e, a

sea

fishe

ry in

spec

tor’s

cou

rse

etc.

Mbe

gani

also

has

all

the

nece

ssar

y fa

ciliti

es to

ac

t as

a p

ossib

le t

rain

ing

venu

e. T

he o

ne a

spec

t th

at is

not

inclu

ded

in t

he M

bega

ni p

rogr

am is

a

cour

se o

n in

vest

igat

ion

of fi

sher

ies

offe

nces

.

Oth

er a

spec

ts th

at w

ere

requ

ired

to b

e in

clude

d in

tra

inin

g in

terv

entio

ns w

ere

MC

S, le

gal b

ackg

roun

d to

fish

erie

s le

gisla

tion

and

pros

ecut

ion.

Also

see

the

rem

arks

on

awar

enes

s tra

inin

g fo

r m

agist

rate

s in

the

main

text

.

• O

bser

vers

R. 3

4 of

the

DSF

AR d

eals

with

the

app

oint

men

t an

d ta

sks

of o

bser

vers

. The

DSF

A ha

s ob

serv

ers,

bu

t ves

sels

do n

ot c

all in

to p

ort,

as th

ere

are

no

facil

ities

.

Ther

e do

es n

ot s

eem

to

be a

ny l

egal

chall

enge

s or

bar

riers

in th

is re

gard

.

9Le

gal B

arrie

rs to

the

Adop

tion

of R

isk A

naly

sis

Met

hodo

logy

No

lega

l ba

rrie

rs d

irect

ly i

nflue

ncin

g th

is iss

ue

wer

e re

porte

d or

det

ecte

d.

A re

lated

issu

e, a

nd o

ne t

hat

dese

rves

atte

ntio

n,

was

the

fact

that

it w

as re

porte

d th

at th

e in

tent

ion

is to

est

ablis

h m

arin

e pa

rks a

nd re

serv

es w

ithin

the

fresh

wat

er la

kes

as w

ell,

and

that

the

2003

Act

is

bein

g re

view

ed to

acc

omm

odat

e th

is.

No

lega

l ba

rrie

rs

in

this

rega

rd

wer

e re

porte

d or

det

ecte

d.


Annex 4


The

esta

blish

men

t of s

uch

park

s an

d re

serv

es w

ill cr

eate

som

e re

lief

for

the

enfo

rcem

ent

effo

rts

by t

he F

isher

ies

Dep

artm

ent.

They

do

how

ever

re

quire

fund

ing

to e

stab

lish

thes

e.

Anot

her

relat

ed i

ssue

is

the

func

tioni

ng o

f th

e 17

2 be

ach

man

agem

ent

units

, pr

ovid

ing

for

a de

cent

ralis

ed c

o-m

anag

emen

t stru

ctur

e.

7C

aree

r Pat

h fo

r Fish

erie

s In

spec

tors

See

the

rem

arks

und

er 6

abo

ve.

No

inte

rven

tion

is re

quire

d

The

Dee

p Se

a Fis

hing

Aut

horit

y w

as e

stab

lishe

d in

200

7 to

ens

ure

a sin

gle

gove

rnan

ce r

egim

e fo

r fis

hing

in th

e EE

Z, a

nd b

ecam

e fu

nctio

nal in

200

9.

The

Dee

p Se

a Fis

hing

Aut

horit

y (“

the

Auth

ority

”)

is go

vern

ed b

y th

e D

eep

Sea

Fishi

ng A

utho

rity

Act o

f 199

8, a

s am

ende

d in

200

7 (“

the

DSF

AA”)

, an

d th

e D

eep

Sea

Fishi

ng A

utho

rity

Regu

latio

ns o

f 20

09 (“

the

DSF

AR”)

.

S.4

of t

he D

SFAA

pro

vide

s fo

r th

e fu

nctio

ns o

f “t

he A

utho

rity”

to in

clude

neg

otiat

ing

and

ente

ring

into

bila

tera

l, re

gion

al or

int

erna

tiona

l fis

herie

s ag

reem

ents

, and

, bas

ed o

n a

2007

am

endm

ent,

to im

plem

ent a

ny a

gree

men

t rea

ched

at r

egio

nal

or in

tern

atio

nal l

evel

.

The

pow

ers

gran

ted

to v

ario

us o

fficia

ls m

anda

ted

to

enfo

rce

the

DSF

AA

and

DSF

AR a

re q

uite

ext

ensiv

e. I

nter

estin

gly

how

ever

, the

se p

ower

s ar

e co

ntain

ed in

th

e D

SFAR

, and

not

in th

e D

SFAA

, as o

ne

wou

ld e

xpec

t. Th

e D

SFAA

em

pow

ers t

he

Min

ister

to

mak

e Re

gulat

ions

on

certa

in

mat

ters

, but

doe

s no

t ref

er to

the

mat

ter

of p

ower

s of

enf

orce

men

t pow

ers.

The

fact

th

at

the

pow

ers

gran

ted

to

vario

us o

fficia

ls m

anda

ted

to e

nfor

ce t

he

DSF

AA a

nd D

SFAR

are

con

tain

ed in

the

D

SFAR

, and

not

in th

e D

SFAA

, is a

mat

ter

of c

once

rn.

Lega

l cha

lleng

es a

nd B

arri

ers

to t

he

Impl

emen

tati

on/A

dopt

ion

of R

egio

nal

Agr

eem

ents

& S

tand

ards

Som

e ge

nera

l rem

arks

on

Lega

l Cha

lleng

es

and

Barr

iers

to

the

Impl

emen

tati

on/

Ado

ptio

n of

Reg

iona

l Agr

eem

ents

&

Stan

dard

s


Annex 4


The

CEO

of

the

Auth

ority

is

resp

onsib

le f

or

mon

itorin

g an

d su

rvei

llanc

e in

th

e EE

Z

and

terr

itoria

l se

a (s

ee s

. 6(

3)(e

), as

am

ende

d in

20

07).

Inte

rnat

iona

l co

oper

atio

n is

one

of t

he

prin

ciple

s gui

ding

the

man

agem

ent o

f a su

stain

able

fis

hery

(r. 1

9(d)

of t

he D

SFAR

). Th

ere

are

spec

ific

prov

ision

s on

co

oper

atio

n w

ith

othe

r st

ates

w

here

the

laws

of s

uch

stat

es w

ere

cont

rave

ned.

Th

ese

prov

ision

s, in

r.4

2(4)

and

43,

tho

ugh

not

quite

Lac

ey t

ype

prov

ision

s, p

laces

an

oblig

atio

n to

han

d ov

er p

erso

ns t

o th

e co

untry

whe

re t

he

viol

atio

n to

ok p

lace.

Such

pow

ers a

re u

suall

y se

t out

in th

e Ac

t, an

d no

t in

the

Reg

ulat

ions

mad

e un

der

the

Act,

and

in a

dditi

on,

the

Act

does

no

t spe

cifica

lly a

llow

for

regu

latio

ns to

be

mad

e on

this

subj

ect.

This

mig

ht le

ad to

an

atta

ck o

n th

e va

lidity

of t

he e

nfor

cem

ent

pow

ers.

Thi

s iss

ue s

houl

d be

look

ed a

t in

mor

e de

tail

shou

ld t

he l

egisl

atio

n be

re

vise

d an

d up

date

d.

5Im

plem

enta

tion

of th

e IU

U N

POA

The

IUU

NPO

A ha

s no

t be

en fi

nalis

ed (

ther

e is

how

ever

a N

POA

on se

abird

s and

seals

). Su

ppor

t to

fina

lise

a dr

aft I

UU

NPO

A w

as re

ques

ted.

Assis

tanc

e w

ith fi

nalis

ing

the

NPO

A sh

ould

be

con

sider

ed,

and

it m

ust

be e

nsur

ed

that

the

leg

al fra

mew

ork

is ad

equa

te t

o all

ow fo

r its

impl

emen

tatio

n.10

Parti

cipat

ion

in t

he I

OC

MC

S Re

gion

al Pl

an

for t

he S

outh

Wes

t Ind

ian O

cean

Due

to a

lack

of a

n EU

agr

eem

ent,

Tanz

ania

was

re

porte

d to

not

par

ticip

ate

in th

e pr

ogra

m, b

ut h

as

expr

esse

d th

e w

ish to

do

so.

Ther

e do

es n

ot s

eem

to

be a

ny o

ther

le

gal

barr

ier

to p

artic

ipat

ion

in t

he I

OC

M

CS

Regi

onal

Plan

for

the

Sou

th W

est

Indi

an O

cean

.8

Impl

emen

tatio

n of

IOTC

Por

t Sta

te M

easu

re

Reso

lutio

ns

&

FAO

Po

rt St

ate

Mea

sure

Ag

reem

ent P

rovi

sions

Ther

e is

no se

ctio

n or

regu

latio

n sp

ecifi

cally

dea

ling

with

PSM

s, b

ut th

e D

SFAR

dea

ls ex

tens

ivel

y w

ith

relat

ed o

blig

atio

ns.

It w

as r

epor

ted

that

the

Por

t Au

thor

ity d

oes

not a

pply

thes

e m

easu

res

and

that

as

sista

nce

is re

quire

d to

est

ablis

h a

MO

U b

etw

een

the

port

and

fishi

ng a

utho

ritie

s.

Also

see

the

disc

ussio

n in

the

main

text

.

No

such

add

ition

al ba

rrie

rs w

ere

repo

rted

durin

g th

e in

-cou

ntry

visi

t an

d co

nsul

tatio

ns,

but

som

e ge

nera

l pro

blem

are

as (n

ot c

ount

ry sp

ecifi

c) in

this

The

NFD

S Af

rica

Lega

l an

d C

apac

ity

Asse

ssm

ent

iden

tified

spe

cific

issue

s w

ith

rega

rd to

the

impl

emen

tatio

n of

the

IOTC

PS

M R

esol

utio

n 10

/11.

In

terv

entio

n m

ight

be

requ

ired.

Ple

ase

refe

r to

the

disc

ussio

n in

the

cou

ntry

re

view

doc

umen

t.

The

prov

ision

s in

the

DSF

AR g

rant

ing

pow

ers

to e

nfor

cem

ent o

fficia

ls ar

e qu

ite

exte

nsiv

e, b

ut s

ee t

he g

ener

al re

mar

ks

abov

e.Se

e th

e ge

nera

l rem

arks

abo

ve.


Annex 4


this

rega

rd w

ere

repo

rted

and

are

disc

usse

d in

the

main

tex

t. Th

ere

are

how

ever

oth

er p

robl

ems

with

the

impl

emen

tatio

n, su

ch a

s the

impr

actic

ality

of

the

impl

emen

tatio

n of

the

obs

erve

r pr

ogra

m

and

the

NPO

A on

sea

bird

s an

d se

als.

15Le

gal B

arrie

rs to

the

Stre

ngth

enin

g of

Oth

er

Cen

tral

MC

S Fu

nctio

ns P

resc

ribed

by

the

IOTC

No

lega

l bar

riers

in th

is re

gard

wer

e re

porte

d or

de

tect

ed.

No

inte

rven

tion

is re

quire

d.

18Ad

optio

n of

C

omm

on

ESA-

IO

Regi

onal

Stan

dard

s fo

r Lice

nsin

g of

Ves

sels

(inclu

ding

a

natio

nal r

egist

er o

f ves

sels)

No

lega

l bar

riers

in th

is re

gard

wer

e re

porte

d or

de

tect

ed.

R.15

of

the

DSF

AR p

rovi

des

that

the

D

G m

ust

appo

int

a re

gist

rar

of fi

shin

g lic

ence

s w

ho m

ust

keep

a r

egist

er in

res

pect

of

licen

ses

issue

d an

d pa

rticu

lars

of li

cens

ed fi

shin

g ve

ssel

s.

No

inte

rven

tion

is re

quire

d.

2H

arm

onisa

tion

of L

egisl

atio

n (b

etw

een

ESA-

IO c

ount

ries)

In a

dditi

on to

pen

altie

s tha

t sho

uld

be h

arm

onise

d in

the

reg

ion,

oth

er is

sues

tha

t ca

use

prob

lem

s w

ere

also

men

tione

d e.

g. t

he h

arve

stin

g of

sea

cu

cum

ber i

s allo

wed

in M

ozam

biqu

e an

d Z

anzib

ar,

but i

s ille

gal i

n M

ainlan

d Ta

nzan

ia.

Inte

rven

tion

on

a re

gion

al ba

sis

is re

quire

d. S

ee th

e di

scus

sion

in th

e re

view

do

cum

ent.

The

lack o

f pro

visio

ns o

n th

e sh

arin

g of in

form

atio

n in

leg

islat

ion

was

hig

hlig

hted

as

a pr

oble

m a

rea

by t

he IO

TC.

R. 2

6 of

the

DSF

AR p

rovi

des

that

th

e D

G

“may

pr

epar

e fis

herie

s st

atist

ics

and

vess

els

info

rmat

ion

and

subm

it it

to th

e Fo

od a

nd

Agric

ultu

ral

Org

anisa

tion

of t

he U

nite

d N

atio

ns

and

othe

r bi

later

al ag

reem

ents

, re

gion

al or

in

tern

atio

nal o

rgan

isatio

ns to

whi

ch th

e U

nite

d

In p

ract

ice so

me

coun

tries

are

relu

ctan

t to

shar

e ce

rtain

info

rmat

ion,

but

exc

ept

for

the

rem

arks

in th

e ne

xt c

olum

n, n

o ot

her

lega

l bar

riers

wer

e re

porte

d or

det

ecte

d.

The

prov

ision

in

R.26

of

the

DSF

AR i

s no

t on

ly s

omew

hat

vagu

e, b

ut i

s als

o di

scre

tiona

ry, a

nd n

ot o

blig

ator

y.

Lega

l Cha

lleng

es a

nd B

arri

ers

to R

egio

nal

Co-

oper

atio

n &

Info

rmat

ion

Shar

ing

Som

e ge

nera

l rem

arks

on

Lega

l Cha

lleng

es

and

Barr

iers

to

Regi

onal

Co-

oper

atio

n &

In

form

atio

n Sh

arin

g


Annex 4


Repu

blic

is pa

rt”.

Relu

ctan

ce

by

neig

hbou

ring

coun

tries

to s

hare

info

rmat

ion

was

repo

rted.

The

esta

blish

men

t of

co

mpa

tible

da

ta

colle

ctio

n or

rep

ortin

g sy

stem

s an

d th

e sh

arin

g of

dat

a an

d in

form

atio

n re

gion

ally

does

not

nec

essa

rily

requ

ire a

ny le

gisla

tive

pres

crip

tions

, but

in li

ght o

f the

pro

blem

s ex

perie

nced

in

th

is re

gard

, it

will

be

bene

ficial

to

have

a m

ore

deta

iled,

and

ob

ligat

ory

prov

ision

in th

is re

gard

.12

Esta

blish

men

t of

a

Com

patib

le

Dat

a C

olle

ctio

n Sy

stem

(Th

is in

clude

s da

ta f

or

scie

ntifi

c pu

rpos

es a

nd f

or M

CS,

suc

h as

a

list/r

egist

er o

f lic

ense

s, a

reg

ister

of

fishi

ng

vess

els,

per

mits

and

lice

nses

, the

info

rmat

ion

colle

cted

in te

rms

of th

e PS

MA)

.

See

the

gene

ral c

omm

ents

abo

ve. A

lso s

ee r.

15.

Th

ere

is a

regi

ster

of v

esse

ls an

d a

basic

dat

abas

e,

but

the

cont

ents

larg

ely

depe

nd o

n in

form

atio

n su

bmitt

ed b

y th

e ve

ssel

s.

No

inte

rven

tion

from

a le

gal p

ersp

ectiv

e is

requ

ired.

13Es

tabl

ishm

ent

of

a C

ompa

tible

Re

porti

ng

Syst

em fo

r Tun

a Fis

herie

s St

atist

icsSe

e th

e ge

nera

l co

mm

ents

ab

ove.

An

othe

r iss

ue t

hat

cam

e to

ligh

t is

the

lack

of s

harin

g of

in

form

atio

n in

tern

ally

betw

een

the

diffe

rent

fis

herie

s au

thor

ities

.

No

inte

rven

tion

from

a le

gal p

ersp

ectiv

e is

requ

ired.

14Im

plem

enta

tion

of a

Nat

iona

l VM

S &

Sha

ring

of D

ata

Regi

onall

yTh

e VM

S sy

stem

loca

ted

in Z

anzib

ar a

nd fi

nanc

ed

by

the

MAC

EMP

proj

ect

was

re

porte

d to

fu

nctio

n w

ell.

R.28

-30

of t

he D

SFAR

dea

ls w

ith

VMS

(inclu

ding

the

est

ablis

hmen

t of

the

ves

sel

mon

itorin

g op

erat

ion

cent

re).

R.30

spe

cifica

lly

deals

with

the

confi

dent

iality

of V

MS

info

rmat

ion.

It

how

ever

mak

es it

cle

ar t

hat

info

rmat

ion

may

be

reve

aled

for i

nter

alia

pur

pose

s of

inve

stig

atio

n an

d pr

osec

utio

n. I

t m

ay a

lso b

e di

vulg

ed t

o a

pers

on w

ho is

em

pow

ered

to e

nsur

e co

mpl

iance

of

Tan

zani

a w

ith “

oblig

atio

ns u

nder

inte

rnat

iona

l law

”. W

hile

sec

tion

30(2

) pro

vide

s th

at a

per

son

who

obt

ains

such

info

rmat

ion

may

sha

re it

with

an

y ot

her p

erso

n “fo

r the

sam

e pu

rpos

e”.

R.30

is a

valu

able

pro

visio

n, b

ut it

mig

ht

be t

oo n

arro

w t

o ac

com

mod

ate

shar

ing

info

rmat

ion

with

oth

er c

ount

ries

in t

he

regi

on.


Annex 4


A re

lated

issu

e, w

hich

is o

f ext

rem

e im

porta

nce

to t

he u

se o

f VM

S da

ta in

pro

secu

tions

or

othe

r pr

ocee

ding

s, i

s th

e di

fficu

lties

exp

erie

nced

with

th

e ad

miss

ibilit

y of

suc

h ev

iden

ce (

it is

seen

as

com

pute

r ge

nera

ted

evid

ence

). A

ppar

ently

the

VM

S ev

iden

ce in

the

Taw

ariq

I c

ase

was

put

in

disp

ute.

16Sh

arin

g of

Ope

ratio

nal M

CS

Info

rmat

ion

See

the

gene

ral c

omm

ents

abo

ve.

See

the

gene

ral c

omm

ents

abo

ve.

17Le

gal C

halle

nges

and

Barr

iers

to th

e Sh

arin

g of

Dat

a to

Ena

ble

Dev

elop

men

t and

Fun

ctio

ning

of

the

Reg

iona

l M

CS

Dat

a an

d O

pera

tions

C

entre

See

the

gene

ral c

omm

ents

abo

ve, a

s w

ell a

s th

e co

mm

ents

on

the

shar

ing

of V

MS

data

.Se

e th

e ge

nera

l com

men

ts a

bove

.


Annex 4


AN

NEX

4: P

ROPO

SED

TER

MS

OF

REFE

REN

CE

The

follo

win

g is

inte

nded

to a

ssist

in th

e dr

aftin

g of

term

s of r

efer

ence

for a

ssist

ance

to b

e pr

ovid

ed. F

urth

er a

ssist

ance

on

any

of th

ese

or o

ther

pos

sible

in

terv

entio

ns w

ill be

pro

vide

d as

is re

quire

d.

The

Upd

atin

g / S

treng

then

ing

/ Red

rafti

ng o

f Fish

erie

s Le

gisla

tion

to E

nsur

e Ef

fect

ive

MC

S in

the

Cou

ntry

and

Reg

ion

This

proc

ess

mus

t ens

ure

that

the

follo

win

g as

pect

s ar

e ca

refu

lly e

xam

ined

, and

that

the

nece

ssar

y pr

ovisi

ons

are

draf

ted

to c

lear

ly p

rovi

de fo

r th

e fo

llow

ing:

• Th

e pr

ovisi

ons

deali

ng w

ith th

e po

wer

s of

insp

ectio

n of

fish

erie

s in

spec

tors

: Thi

s m

ust s

et o

ut s

uffic

ient

ly w

ide

pow

ers

of in

spec

tion

of v

esse

ls (in

por

t an

d at

sea

), fis

h pr

oces

sing

esta

blish

men

ts,

fish

mar

kets

and

res

taur

ants

. Th

is po

wer

mus

t no

t be

link

ed t

o an

y su

spici

on o

f non

-co

mpl

iance

, but

mus

t cle

arly

gra

nt th

e po

wer

to in

spec

t at a

ny ti

me,

with

out a

war

rant

and

with

out a

requ

irem

ent t

o gi

ve n

otice

. Sim

ilar p

ower

s sh

ould

be

gran

ted

in re

latio

n to

any

mod

e of

tran

spor

t use

d to

con

vey

fish.

•

The

prov

ision

s de

aling

with

the

pow

er t

o se

arch

, sei

ze a

nd a

rres

t: Th

is m

ust

clear

ly s

et o

ut w

hen

a w

arra

nt is

req

uire

d or

not

and

mak

e pr

ovisi

on th

at th

ese

pow

ers

can

be e

xerc

ised

with

out a

war

rant

in c

erta

in c

ircum

stan

ces.

• Th

e ab

ove

pow

ers

mus

t ac

com

mod

ate

all a

ctio

ns r

equi

red

to b

e ta

ken

in o

rder

to

enfo

rce

the

prov

ision

s of

inte

rnat

iona

l and

reg

iona

l ag

reem

ents

.•

The

right

of h

ot p

ursu

it as

set

out

in a

rticle

111

of U

NC

LOS.

• Th

e cr

eatio

n of

pro

hibi

tions

and

offe

nces

; •

Evid

entia

ry p

rovi

sions

that

allo

ws f

or V

MS

and

othe

r com

pute

r gen

erat

ed e

vide

nce,

as w

ell a

s pho

togr

aphi

c an

d vi

deo

mat

erial

to b

e ad

miss

ible

in

cou

rt.•

The

pena

lty c

lause

s an

d su

pple

men

tary

ord

ers

at c

onvi

ctio

n;•

Forfe

iture

ord

ers:

In so

me

coun

tries

the

forfe

iture

of a

ves

sel is

onl

y all

owed

in th

e ca

se o

f a se

cond

con

vict

ion.

It is

stro

ngly

sugg

este

d th

at th

is di

scre

tion

is le

ft to

the

cour

t, bu

t tha

t for

feitu

re o

f the

ves

sel w

ill be

a p

ossib

ility

on a

firs

t con

vict

ion.

• As

far a

s com

poun

ding

is c

once

rned

, it m

ust b

e pr

ovid

ed th

at c

ompo

undi

ng c

an o

nly

take

plac

e af

ter a

n ad

miss

ion

of g

uilt,

and

that

the

paym

ent

of s

uch

a fin

e w

ill se

rve

as a

pre

viou

s co

nvict

ion

for t

he p

urpo

ses

of s

ente

ncin

g.

• Pr

ovisi

ons

on th

e di

spos

al of

con

fisca

ted

fish:

The

se s

houl

d all

ow fo

r co

nfisc

ated

fish

to b

e so

ld o

ff or

don

ated

prio

r to

the

finali

satio

n of

the

case

. A s

yste

m to

ens

ure

that

the

nece

ssar

y pr

oof w

ill st

ill be

ava

ilabl

e at

cou

rt, m

ust b

e de

vise

d. T

his

can

inclu

de e

.g. t

he u

se o

f pho

togr

aphs

, id

entifi

catio

n by

an

expe

rt an

d re

tain

ing

a ra

ndom

repr

esen

tativ

e sa

mpl

e of

the

confi

scat

ed c

atch

;•

The

inco

rpor

atio

n of

inte

rnat

iona

l and

regi

onal

agre

emen

ts in

the

legi

slatio

n: S

pecifi

c at

tent

ion

mus

t be

give

n to

the

inco

rpor

atio

n of

the

IOTC

an

d FA

O p

ort s

tate

mea

sure

s an

d th

e IO

TC re

solu

tions

;•

The

inco

rpor

atio

n of

cle

ar p

rovi

sions

on

regi

onal

info

rmat

ion

shar

ing:

Thi

s mus

t cle

arly

set o

ut w

hat i

nfor

mat

ion

mig

ht b

e sh

ared

and

in w

hich

cir

cum

stan

ces

such

info

rmat

ion

can/

mus

t be

shar

ed.


Annex 4


In a

dditi

on:

• Al

l the

abo

ve p

rovi

sions

mus

t be

clear

ly fo

rmul

ated

and

it m

ust b

e en

sure

d th

at a

ll te

rms

are

clear

ly d

efine

d in

the

defin

ition

s se

ctio

n of

the

legi

slatio

n;•

It is

adva

ntag

eous

to h

ave

a “c

atch

-all”

offe

nce

in th

e le

gisla

tion;

• Pe

nalti

es m

ust p

refe

rabl

y be

defi

ned

in su

ch a

way

that

it w

ill ad

just

to in

flatio

n w

ithou

t the

nee

d fo

r an

amen

dmen

t (se

e th

e C

omor

os e

xam

ple)

;•

As fa

r as i

s pos

sible

, the

legi

slatio

n m

ust b

e ha

rmon

ised

with

oth

er c

ount

ries i

n th

e re

gion

, and

esp

ecial

ly w

ith re

gard

to th

e m

axim

um p

enalt

ies

allow

ed fo

r spe

cific

offe

nces

;•

The

poss

ible

inco

rpor

atio

n of

a L

acey

–typ

e pr

ovisi

on m

ust

be e

valu

ated

as

such

a p

rovi

sion

can

huge

ly c

ontri

bute

to

harm

onisa

tion

in t

he

regi

on.

The

Train

ing

of P

rose

cuto

rs a

nd th

e D

rafti

ng o

f A G

uide

to th

e Pr

osec

utio

n of

Fish

erie

s O

ffenc

es

It is

prop

osed

that

the

train

ing

prog

ram

(to

cove

r the

mat

erial

bel

ow w

ill re

quire

a 5

-day

train

ing

cour

se) a

nd g

uide

con

tain

the

follo

win

g su

bjec

t mat

ter:

Intro

duct

ion:

• Th

e pr

osec

utio

n of

fish

erie

s of

fenc

es w

ithin

the

cont

ext o

f env

ironm

enta

l crim

e •

The

mot

ivat

ion

for t

he c

omm

issio

n of

fish

erie

s of

fenc

es a

nd it

s im

plica

tion

for i

nves

tigat

ions

and

pro

secu

tions

• Re

latio

nshi

p w

ith o

ther

crim

es•

The

impo

rtanc

e of

effe

ctiv

e pr

osec

utio

n of

fish

erie

s of

fenc

es

The

Inte

rnat

iona

l Dim

ensio

n:

• In

tern

atio

nal a

nd R

egio

nal A

gree

men

ts a

nd A

ssist

ance

• Re

leva

nce

to p

rose

cutio

ns•

Proc

ess

of a

dopt

ion

• M

embe

rshi

p an

d in

corp

orat

ion

into

dom

estic

law

• Pr

ovin

g th

e ex

isten

ce a

nd c

onte

nts

of in

tern

atio

nal a

nd re

gion

al ag

reem

ents

• In

tern

atio

nal a

ssist

ance

in th

e pr

osec

utio

n of

fish

erie

s of

fenc

es

Nat

iona

l Fish

erie

s Le

gisla

tion:

• Po

wer

s of

fish

erie

s in

spec

tors

relat

ing

to in

spec

tions

, sea

rch

and

seizu

re•

Offe

nces

cre

ated

by

the

legi

slatio

n•

Prov

ision

s on

com

poun

ding

• Ev

iden

tiary

pro

visio

ns in

the

legi

slatio

n•

Max

imum

pen

altie

s un

der t

he le

gisla

tion


Annex 4


• Pr

ovisi

ons

on s

ente

ncin

g, fo

rfeitu

re a

nd o

ther

ord

ers.

Insp

ectio

ns, S

earc

h an

d Se

izure

in F

isher

ies

Offe

nces

:•

Uni

que

fact

ors

perta

inin

g to

fish

erie

s of

fenc

es•

Insp

ectio

ns, s

earc

h an

d se

izure

pro

visio

ns in

nat

iona

l leg

islat

ion

• C

hain

of E

vide

nce

The

Dec

ision

to P

rose

cute

:•

Gui

ding

Fac

tors

• Al

tern

ativ

es to

Pro

secu

tion

• C

ompo

undi

ng a

nd A

dmiss

ion

of G

uilt

Fines

• C

harg

ing

of c

orpo

rate

bod

ies

and

juris

tic p

erso

ns

Aspe

cts

of th

e Tr

ial:

• Pl

ea a

nd S

ente

nce

Agre

emen

ts/P

lea

barg

ainin

g•

Prep

arin

g fo

r Tria

l•

Expe

rt Te

stim

ony

Sent

encin

g, F

orfe

iture

and

Oth

er O

rder

s:•

Issue

s to

be

cons

ider

ed in

sen

tenc

ing

• Ev

iden

ce in

Agg

rava

tion

• Fo

rfeitu

re o

rder

s re

gard

ing

the

inst

rum

enta

litie

s of

crim

e•

Ord

ers

rega

rdin

g th

e pr

ocee

ds o

f crim

e or

adv

anta

ge g

ained

• O

rder

s re

gard

ing

the

canc

ellat

ion

of li

cens

es o

r oth

er a

utho

risat

ions

• O

rder

s af

fect

ing

the

stat

us o

f the

acc

used

• O

rder

s re

gard

ing

spec

ific

actio

ns a

nd th

e pa

ymen

t of d

amag

e, c

ost a

nd c

ompe

nsat

ion

Cas

e St

udie

s:

• C

ase

Stud

y: T

he H

out B

ay-B

engi

s C

ase

– in

tern

atio

nal c

oope

ratio

n in

fish

erie

s in

vest

igat

ions

and

pro

secu

tions

• C

ase

Stud

y: T

he ro

le o

f the

Env

ironm

enta

l Cou

rt in

the

Prot

ectio

n of

Mar

ine

Livi

ng R

esou

rces

in S

outh

Afri

ca•

Cas

e St

udy:

The

Taw

riq C

ase

in T

anza

nia:

Les

sons

lear

ntM

ore

case

stu

dies

can

be

adde

d.


Annex 4


Ope

n D

iscus

sion:

•

The

need

for s

pecia

lised

and

/or d

edica

ted

pros

ecut

ors

to c

ondu

ct p

rose

cutio

ns o

f fish

ery

offe

nces

• Th

e ne

ed fo

r a

natio

nal fi

sher

ies

enfo

rcem

ent

foru

m t

o in

crea

se t

he e

ffect

iven

ess

of t

he e

nfor

cem

ent

of fi

sher

ies

legi

slatio

n (c

onsis

ting

of

pros

ecut

ors,

fish

ery

man

ager

s, fi

sher

y in

spec

tors

and

oth

er a

genc

ies

invo

lved

in e

nfor

cem

ent,

e.g.

the

Polic

e, C

oast

guar

d an

d C

usto

ms,

with

a

view

to e

nhan

ce c

oope

ratio

n, id

entif

y pr

oble

ms

and

seek

sol

utio

ns, c

omm

ent a

nd a

dvise

on

legi

slativ

e am

endm

ents

etc

) •

The

need

for a

regi

onal

fishe

ries

enfo

rcem

ent f

orum

to in

crea

se th

e ef

fect

iven

ess

of th

e en

forc

emen

t of fi

sher

ies

legi

slatio

n in

a s

pecifi

c re

gion

(c

onsis

ting

of s

enio

r per

sonn

el fr

om th

e D

irect

or o

f Pub

lic P

rose

cutio

ns/ A

ttorn

ey G

ener

al of

eac

h co

untry

). Fu

rther

issu

es c

an b

e ad

ded

to th

e pr

opos

ed s

ubje

cts

abov

e.

Cou

rse

evalu

atio

n an

d fe

edba

ck

The

Dra

fting

of a

Com

preh

ensiv

e Se

t of S

OPs

for t

he In

spec

tora

te

The

SOPs

mus

t be

conc

ise a

nd c

onta

in c

lear

pro

visio

ns d

ealin

g w

ith th

e fo

llow

ing

subj

ect m

atte

r, w

hich

is n

ot in

tend

ed a

s a c

ompr

ehen

sive

or fi

nal l

ist,

and

mig

ht h

ave

to b

e ad

apte

d to

a p

artic

ular

cou

ntry

’s ne

eds.

It a

lso m

ostly

dea

ls w

ith s

ubje

ct m

atte

r rel

evan

t in

the

lega

l con

text

, and

not

with

all

aspe

cts

that

mig

ht b

e re

quire

d. It

is p

ropo

sed

that

the

inpu

ts o

f the

MC

S sp

ecial

ist a

nd o

ther

app

ropr

iate

pers

ons

be o

btain

ed to

fina

lise

this.

Man

y of

thes

e as

pect

s sh

ould

also

be

inclu

ded

in th

e tra

inin

g pr

ogra

m fo

r ins

pect

ors.

1.

Cod

e of

Con

duct

2.

Gui

delin

es o

n th

e Ta

king

of A

ppro

priat

e En

forc

emen

t Act

ion

3.

Agre

emen

ts w

ith O

ther

Org

anisa

tions

(thi

s w

ill e.

g. b

e M

OU

s w

ith o

ther

org

ans

of s

tate

invo

lved

in th

e en

forc

emen

t of fi

sher

ies

legi

slatio

n)4.

G

ener

al O

pera

ting

Proc

edur

es•

Use

of E

quip

men

t•

Hos

tile

Peop

le a

nd S

ituat

ions

• H

andl

ing

of C

onfid

entia

l Inf

orm

atio

n•

Use

of P

ocke

t Boo

k•

Takin

g St

atem

ents

5.

Stan

dard

Ope

ratin

g Pr

oced

ures

for C

ompl

iance

Mon

itorin

g an

d In

spec

tions

• C

ondu

ctin

g Su

rvei

llanc

e•

Insp

ectio

n of

Ves

sels

at P

ort

• In

spec

tion

of V

esse

ls at

Sea

• In

spec

tion

of V

ehicl

es•

Insp

ectio

n of

Fish

Pro

cess

ing

Esta

blish

men

ts•

Insp

ectio

n of

Fish

Mar

kets

and

Res

taur

ants


Annex 4


• In

spec

tions

at P

oint

s of

Impo

rt an

d Ex

port

6.

Stan

dard

Ope

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LIST OF PUBLICATIONS – LISTE DES PUBLICATIONSSmartFish Programme

1. Report of the Inception / Focal Point Meeting of the SmartFish Programme – Flic en Flac, Mauritius, 15th-16th June 2011. REPORT/RAPPORT: SF/2011/01. August/Août 2011. SmartFish Programme. Indian Ocean Commission (55 pages).

2. Report of the First Steering Committee Meeting of the SmartFish Programme – Flic en Flac, Mauritius,17th June 2011. REPORT/RAPPORT: SF/2011/02. August/Août 2011. SmartFish Programme Indian Ocean Commission (51 pages).

3. Rapport de la réunion de présentation du programme SmartFish aux points focaux – Flic en Flac, Ile Maurice, 15-16 juin 2011. REPORT/RAPPORT: SF/2011/03. August/Août 2011. SmartFish Programme. Indian Ocean Commission (55 pages).

4. ESA-IO (IRFS). REPORT/RAPPORT: SF/2011/04. May 2011. SmartFish Programme. Indian Ocean Commission (40 pages).

5. Regional Market Assessment (Supply and Demand). REPORT/RAPPORT: SF/2012/05. March/Mars 2012. SmartFish Programme. Indian Ocean Commission (264 pages).

6. Trade Assessment Study. REPORT/RAPPORT: SF/2012/06. March/Mars 2012. SmartFish Programme. Indian Ocean Commission (120 pages).

7. Gouvernance des Pêches Maritimes dans l’Ouest de l’Océan Indien. REPORT/RAPPORT: SF/2012/07. June/Juin 2012. SmartFish Programme. Indian Ocean Commission (101 pages).

8. Value Chain Assessment of the Artisanal Fisheries – Mauritius. REPORT/RAPPORT: SF/2012/08. June/Juin 2012. SmartFish Programme. Indian Ocean Commission (85 pages).

9. Kenya Fisheries Governance. REPORT/RAPPORT: SF/2012/09. June/Juin 2012. SmartFish Programme. Indian Ocean Commission (36 pages).

10. Training Needs Analysis – Quality and Hygiene: REPORT/RAPPORT: SF/2012/10. June/Juin 2012.SmartFish Programme. Indian Ocean Commission (95 pages).

11. A Review of Somalia’s & (Semi-Autonomous Regions) Fisheries Legislation and Management. REPORT RAPPORT: SF/2012/11. June/Juin 2012 SmartFish Programme. Indian Ocean Commission (49).

12. Assessment of IUU Activities On Lake Victoria. REPORT/RAPPORT: SF/2012/12. June/Juin 2012 SmartFish Programme. Indian Ocean Commission (130 pages).

13. Review Of The Legal Framework for the ESA-IO Region. REPORT/RAPPORT: SF/2012/13. June/Juin 2012 SmartFish Programme. Indian Ocean Commission (149 pages).

Indian Ocean Commission – SmartFish ProgramBlue Tower, 5th �oor, Institute Road - Ebène, MauritiusTél: (+230) 402 6100 Fax: (+230) 465 7933

Documents

REVIEW OF THE LEGAL FRAMEWORKS IN THE ESA-IO REGION - … · 2021. 2. 8. · FMg Malagasy franc ICCAT International Commission for the Conservation of Atlantic Tuna ICCM Implementation