Nairobi Star - John Cleave: Soft Laws Will Lift Tourism Standards

Ginger beer and snails seem a comic mix of subjects but when combined, these humble ingredients created a legal chain reaction that, over time, modified our rights and continues to globally influence consumer protection today.

A manufacturer of ginger beer was held accountable in law to pay damages to a claimant who fell ill after drinking from a bottle she discovered contained the remains of a snail.

At the heart of this legal nicety is the discovery of an irreducible duty of care the average person owes to everyone else on the planet to be "reasonable" in actions and not cause foreseeable harm to another.

Tourists are vulnerable to duty of care and contract issues because they do not stay long, do not wish to waste holiday time confronting problems, are constrained by language differences, and heavily rely on local service providers to obtain the quality of service they expect in their home countries. Preventing problems before they occur is therefore central to sustainable inbound tourism.

Laws covering tourism services are contained in various Acts of Parliament and the new tourism bill, awaiting parliamentary approval, attempts to draw them together in one new bill. The tourism bill, however, focuses mainly on government authority and licensing requirements that for the most part are easily met.

The Tourism ministry has little oversight capability, few training facilities, or inspectorate outside the hotel industry and therefore relies on command and control laws in other sectors. These are not always enforced.

Only mandated membership in designated business member organisations with codes of practice, known as soft laws, can provide overall protection because code infringement results in loss of membership and loss of all tourism licences.

Mandatory membership in an association with soft laws does not infringe individual liberty and the first step towards ethical co-regulation, self-regulation and legal partnership is to link licensing to mandated association membership.

The right of free association and free speech are constitutional protection of individual rights under private law, but consumer protection falls to a sub-section of the constitution that governs relationships between individuals, citizens, companies and the state under public law.

Mandated membership of business associations have been upheld by the European Union and in Kenya, membership in the Kenya International Freight

Warehousing Association is mandated. The Kenya Revenue Authority does not issue a licence without membership.

Tourism Associations welcome mandated membership and those that do not must be hiding some form of oligarchy or monopoly. Self-regulation is about markets and mandated codes must include joining minima and an agreement that membership cannot be withheld provided the minimum joining standards are met. No one is locked out.

An example of enhanced tourist hotel protection is membership that requires a fire self-assessment risk certificate. No certificate, no membership. No membership, no licence.

Fire prevention inspections and the insurance industry will coordinate a process to prevent the continuous outbreak of fires on makuti-roofed tourist facilities at the Coast.

Another example under the code will be the introduction of a new law of tort for harassment to provide arrest of vendors not legally allowed to trade on beaches.

Beach vendors regard strenuous sale routines to be excellent merchandising, whereas overseas visitors regard them as hostile. The soft law leads to a new hard one in a beneficial social and legal relationship.

Another example, highlighted by the recent accidental death of a young British tourist while fishing is still under investigation, so no comment can be made, but it is known that the boat was not owned by a member of the Kenya Sea Anglers Association that has a code of ethics and conduct. Membership may have prevented such a sad occurrence.

An overarching code of practice for the industry is, therefore, desirable to provide high standards in all tourism activities. Soft laws are a social and legal engagement between business and government to add governance where it is needed.

Unscrupulous entrepreneurs are a drain on national resources and reduce credibility in the eyes of potential investors. In a country committed to eradicating poverty and becoming a semi industrialised state within 20 years we need to take these matters very seriously.

Tourism is a vital component of our economy and tourism business licensing linked to mandatory association membership will protect tourists, raise standards and enhance sustainability. This must now be incorporated in the new tourism bill before it is published.

Cleave is the acting chairman of the Kenya Association of Tour Operators.

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