Rough Justice

Rough Justice

By Stuart Finlayson

The case of Ahmed Zaoui, an Algerian refugee who has been imprisoned in New Zealand for almost two years, has uncovered deep flaws in the policies and attitudes of government agencies and officials across the Tasman when it comes to the law, records management and access to records as instruments of accountability when dealing with such cases. Stuart Finlayson reports.

Upon reading the history of Algerian refugee Ahmed Zaoui's movements over the last few years, as presented by the RSAA (Refugee Status Appeals Authority) as part of the exceedingly lengthy legal proceedings that will ultimately determine whether he will be allowed to stay in his present abode of New Zealand, it is not difficult to imagine the anguish both Zaoui and his family must have suffered in recent years, forced as they have had been to move across borders and continents to escape the clutches of the tyrannical government of his homeland, who want him dead as a result of his outspoken views against the brutal regime.

The path worn by Zaoui and his family from Algeria to New Zealand has been a long one that dates some 12 years and has been fraught with much legal wrangling and government bureaucracy. To begin to understand his current predicament, it is critical to know the circumstances which led to him fleeing the country of his birth.

A country in crisisAlgeria was once a colony of France, and the two countries retain very close military, political and economic links. Indeed, one of France's-and the world's-most famous soccer stars, Zinedine Zidane, is of Algerian descent, with both his parents-who were born in Algeria-having left the country in 1962 just after it declared independence, relocating to Marseille, where the player known to fans around the world as Zizou was born.

For the next 27 years, Algeria was ruled by an authoritarian government backed up by a powerful military regime. But in 1989, mass civil unrest and public pressure led to the government introducing changes that would allow democratic elections to take place.Following that decision, an Islamic political party, the front Islamique du Salut (FIS), was formed to contest elections at local and legislative level. After enjoying great success in both the local and legislative elections of 1990 and 1991, the FIS looked set to take control of the government in the second round of legislative elections in January 1992.

But no sooner had the results of the elections been released, that the existing government, which was on the verge of losing power, declared a state of emergency, and in doing so aborted the election process and handed control of the country over to the military.Following this turn of events, the military set about arresting a number of high profile FIS representatives, as well as around 30,000 FIS supporters. In the ensuing chaos, an extremist group known as the Group Islamique Arme (GIA) formed. The group became quickly known for its violent resistance. While some FIS activists did join the GIA, the vast majority did not, as the FIS rejected the GIA's view that the only way to replace the "irredeemably corrupt" Algerian system was through its complete destruction, instead sticking to its stated aim of achieving peaceful resolution of Algeria's problems through negotiation.

In the intervening years between 1992 and 1999, the military regime grew increasingly brutal in its efforts to quell civil unrest, with around 100,000 people estimated to have been killed during that period.

Why Zaoui had to flee

Zaoui had a deeply religious upbringing as a consequence of his father being what is known in Algeria as an Imam, which means a leader of prayer. It was no surprise then that Zaoui opted to study theology at university in Saudi Arabia.

He married in 1984 and graduated the following year, which was also when the first of his four children was born.

Upon graduating, he returned to Algeria, where he started teaching in a mosque, eventually becoming a Sheikh (the equivalent of a priest or pastor). It was during this period that he came under the radar of the government, as he was well known for his outspoken political views and his abhorrence of violence, much of which was being perpetrated by the government through the military. This resulted in his interrogation by government agencies on numerous occasions, and by joining the FIS in 1991, initially as an advisor on the party's religious approach to policy, he only served to attract more unwanted attention to himself.

His views on achieving political aims through peaceful, democratic means quickly won him admirers within the party, and it was not long before he was elected to the Algerian National Assembly. But in February 1992, just a month after his election success, Zaoui was arrested but was subsequently released after 24 hours.

He continued to teach at his local mosque, but the Algerian military's increased determination to destroy what remained of the FIS forced him to leave the stricken country.

The long road to NZ

On two occasions in 1993, Zaoui travelled to Morocco in an attempt to secure travel documents that would allow him to flee Algeria, where the threat to his own and his family's safety was intensifying. It was whilst in Morocco that Zaoui learnt that he had been convicted in absentia in Algeria on terrorist charges and had been sentenced to death.

It was at this point that Zaoui's nomadic existence began. He obtained false travel documents in Morocco and fled to France, but knowing that France was not a viable long term option for him or his family to stay because of France's support of the Algerian military from whom he was fleeing, he moved to Belgium.

He remained with his family in Belgium while his application for refugee status was being considered. His appeal was rejected in 1994 after it was widely reported that Zaoui had joined the GIA, following the issue of a number of press releases stating such, purportedly from the GIA, but in actual fact almost certainly generated from the Algerian military, which was looking to undermine Zaoui's efforts to gain support for his cause. The allegations led to his arrest, and he was charged and convicted of being the head of a criminal association (the GIA), although a subsequent deportation tribunal ruled that there was insufficient evidence of any such link. Nevertheless, this did not end Zaoui's time in prison, where he was held for a further year.

After being subjected to house arrest in Belgium for a further year after his release from prison, Zaoui moved to Switzerland, but his stay there was short lived, as the Swiss Government also held him under house arrest for several weeks before deporting him to Burkina Faso in Africa, flying him and his family over there by private jet, much to the outcry of human rights organisations.

It was while in the tiny African nation that he heard that criminal charges had now been laid against him in France, relating to his stay there in 1993, for the possession of the false travel document he had used to escape Algeria, and of "association with criminals with intent to prepare a terrorist act." No explanation was offered by the French as to why there was a delay of almost eight years between the date of the alleged offences and the trial.

Like the Belgians before them, the French court failed to distinguish between the FIS and the GIA, meaning that his high profile within the FIS counted against him, when it ought to have sent the message that he opposed violence, rather than partook in it.

In his absence, he was found guilty. But the leniency of the sentence (he was given a three year suspended sentence and banned from re-entering French territory) belied the severity of the charge. France did not even request extradition.

Indeed, the RSAA (Refugee Status Appeals Authority) in New Zealand noted "many substantive and procedural defects in these convictions." They added that it was well accepted internationally that military courts in Algeria are inherently unreliable, and that convictions have been entered without any substantive evidence, or based solely on evidence extracted under torture. It also noted that "Algerian laws that allowed the passing of a death sentence for terrorist acts defined "subversive or terrorist act" in such a way that it "could include a wide range of non-violent actions, including public speeches, sermons in mosques, and associations between individuals and between groups", or to distribute documents or publications criticising the government."

In conclusion, the RSAA stated: "We tend to the view that the laying of these charges is part of a well orchestrated campaign by the Algerian regime to discredit (Zaoui) and other FIS leaders in exile and to place further pressure on those governments who allow them to reside in their countries."

In January 2000, Zaoui began to feel unsafe in Burkina Faso and so, with the assistance of the Burkina Faso government, who supplied him with plane tickets and false passports, Zaoui and his family made for Malaysia, where he took up studies in Kuala Lumpur.Why New Zealand?

Zaoui had been in Malaysia for a little over two years when in mid-2002 he heard through a friend that the Algerian authorities had learned of his whereabouts and planned to detain him. This news prompted Zaoui and his family to go into hiding while he pondered what to do next.

Given that he has been incarcerated the whole time he has been there (in solitary confinement) and has been subjected to poor treatment as a result of a legislative system ill-equipped to deal with a case such as his, it is deeply ironic that Zaoui's decision to go to New Zealand was partly influenced by the NZ Prime Minister Helen Clarke's humanitarian response to the Tampa refugee crisis. But then that incident was not on her doorstep. The absence of an established Algerian presence in NZ was also a contributing factor in his decision, reducing the likelihood of such figures falsely accusing him of being associated with terrorists, as happened in France and Belgium.

Deborah Manning, of McLeod & Associates, an Auckland-based law firm that specialises in immigration cases, is one of Zaoui's legal representatives. Manning, together with colleague Richard McLeod, has been working tirelessly on his behalf since he arrived in New Zealand and has achieved 100 percent success in every step of the legal process to date.

"In terms of the specific decision to come to NZ (as opposed to another Refugee Convention country), there are a number of reasons. These include the fact that NZ has a reputation for independence on the international world stage, a good reputation from human rights, and he did not think we would be influenced by the Algerian regime or countries with other vested interests, such as France (due to the Rainbow Warrior incident). He also respected Helen Clark and had heard she was one of the only world leaders to acknowledge the families of the disappeared in Algeria," says Manning.Zaoui's experience with bungling officialdom began, but certainly did not end, with his arrival at Auckland airport. According to the RSAA report, he was detained at the airport and interviewed by an inexperienced Customs official, who interviewed him over a period of three hours with no interpreter present, despite repeated requests for one.

The lack of an interpreter allied to Zaoui's extremely poor grasp of English, meant that a misunderstanding was inevitable, but it was one that was to prove catastrophic for Zaoui. When asked whether he was a member of the extremist GIA, Zaoui responded "FIS", but this was recorded by the officer as "yes". On the basis of this, the NZ Police were informed that he had categorically confessed to being a member of a terrorist organisation and he was detained in a maximum security prison in solitary confinement, a decision which his lawyers are still trying to have reversed. Apparently, no one in NZ officialdom deemed it strange or questioned why Zaoui should suddenly "confess" to being part of an organisation, when for the last decade or more of being questioned about this alleged link, he has consistently denied it.

During the initial interview, a number of inexplicable events took place that have served to hamper Zaoui's defence from the outset, events which have caused no small amount of outrage in New Zealand and led to calls for a complete review of the system, which is set to happen once Zaoui's case has been finalised, which of course will be too late for him should his bid to stay in NZ fail.

"When Ahmed Zaoui was interviewed by a Customs Officer (CO), the SIS (New Zealand Security Intelligence Service) had given that Customs Officer a number of questions for Mr Zaoui to answer," explains Manning. "No formal interview was held, and while the CO searched Mr Z's luggage, he chatted to him and asked him these questions. However, the CO did not keep a copy of the SIS questions as he destroyed them. Bizarrely, the CO also said that he did not keep a record of any answers that Mr Z answered which were in the negative."

Having made a complete mess of this initial interrogation, the New Zealand authorities than proceeded to include Zaoui's "confession" in its Interpol reports to 12 countries. It was also supplied to the Refugee Status Board, which subsequently rejected his initial appeal for asylum.

This was bad enough, but worse was to follow for Zaoui, when the police and the SIS jointly conducted an interview with him, which was videotaped without his knowledge or consent, with little or no regard for his human rights.

"Mr Z was interviewed by the SIS on two occasions and they did not keep a copy of their handwritten notes. We were advised that they were destroyed, and this for some reason is standard practice," recalls Manning. "This obviously is a real problem as mistakes can occur as information is typed up. We cannot have access to the typed notes as this is deemed to be 'classified information' even though it was information provided by Mr Z."

The destruction of Police, Security Service and Immigration Service documents in this case is indeed a real cause for concern for the justice system in New Zealand. So too is the process of dealing with such cases, with Zaoui having being kept in a maximum security prison (mostly in solitary confinement), which, according to a psychologist report, has been to the detriment of his mental well being, when he poses no threat to the community. This treatment has ensued as a consequence of a widely criticised Police Threat Assessment which alleged that Zaoui was a "risk" because he poses a political risk in trying to use the media to gain support and may try to build relationships to obtain lawful residence.

"The legislation [in New Zealand] falls short of acceptable standards of fairness," adds Manning. "NZ is far behind legislation in the UK, Canada, and even the US. The Government has consistently stated that the legislation will be reviewed, after Mr Zaoui's case is concluded."

In the UK, for example, the accused in such cases can apply for bail. The defence team is also issued with a summary statement of the classified material. An additional safeguard is the fact that the state cannot use classified material against the accused unless a special advocate has been appointed and has had access to all classified material. That special advocate cannot communicate directly with the accused once they are privy to that classified information, but they are expected to challenge it on their behalf. Also, security certificates in the UK are assessed by a three person commission that includes a senior representative of the judiciary as well as someone else with expertise in immigration issues and laws. This contrasts sharply with New Zealand, where such decisions are taken by a single person.

"Once this process is ended I think we should look at the process. We need to remember that this is the first time the New Zealand Government has issued a security risk certificate," said NZ Prime Minister Helen Clark when interviewed by New Zealand radio and TV presenter Paul Holmes last year.

A life in the balance

So what lies ahead for Zaoui? At the very least it would seem to be several more months of imprisonment before his fate is determined. The NZ Minister of Immigration has gone on record that should Zaoui fail in his bid for asylum, he would not be deported to Algeria, but would be sent to Vietnam, which was his last port of embarkation en route to NZ. But as Vietnam is not a Refugee Convention signatory, has a poor human rights record, and has close diplomatic and trade relations with Algeria, it is almost certain that Zaoui's deportation from New Zealand would result in his deportation to Algeria, where he faces the prospect of a death sentence.

A potentially horrific scenario awaiting a man who the New Zealand Refugee Status Appeals Authority found to be "an articulate, intelligent committed and principled individual who, despite the hurdles placed before him over the last ten years, remains a passionate advocate for peace through democracy in Algeria, and for bringing to justice those guilty of the human rights abuses of the last decade."

Despite the many legal hurdles that she has faced in her fight to secure refugee status for Zaoui, Manning's determination to succeed suggests she would still have agreed to take on the case even if she had prior knowledge of the difficulties the case would pose.

"Mr McLeod and I were approached to seek instructions as Mr Zaoui was in solitary confinement and without counsel. Do I have regrets? No. This case has been extremely challenging and extremely personally difficult at times and has required many sacrifices. However, it is a privilege to represent a man of Mr Zaoui's dignity and calibre. I strongly believe that he is entitled to the best representation he can have and that as a country New Zealand will lose if we do not treat him justly."

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