Browsing by Author "Fernandez, L."
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Item An evaluation of Zambia’s asset recovery laws(2013) Soko, Cassandra; Fernandez, L.Contrary to Common perception, corruption is not all that ails Africa. It is only a component of the multifaceted economic criminality that leads to illicit capital flight from developing states and those undergoing political transition. The siphoning away of economic resources has a devastating impact on such countries, both economically and socially. This leads to an erosion of public confidence in government departments and in the administration of justice generally. The clandestine nature of economic criminality makes it particularly hard to prosecute. There has thus been an international consensus that asset recovery would be the most apt mode of deterrence and reparation. Having its genesis in the 1989 Vienna convention, asset recovery has now become a useful tool with which developing countries can recoup some of the assets plundered by criminals. The United Nations Convention against corruption has also made it possible for states to recover stolen assets by way of non--‐criminal or non--‐conviction—based procedures. The main challenge for developing states is to make international treaties part of their national law. The democratization of former dictatorial states, especially those in Africa, also means that whatever international norms are domesticated in national legislation, should be in line with the tenets of their respective democratic constitutions, thus making them legally irreproachable. This paper evaluates Zambia’s Forfeiture of proceeds of crime Act. It discusses Zambia’s asset recovery provisions against the backdrop of international benchmarks and the laws of a few other countries that also have asset recovery laws. The paper concludes with a set of recommendations.Item An evaluation of Zambia’s asset recovery laws(2013) Soko, Cassandra; Fernandez, L.Contrary to Common perception, corruption is not all that ails Africa. It is only a component of the multifaceted economic criminality that leads to illicit capital flight from developing states and those undergoing political transition. The siphoning away of economic resources has a devastating impact on such countries, both economically and socially. This leads to an erosion of public confidence in government departments and in the administration of justice generally. The clandestine nature of economic criminality makes it particularly hard to prosecute. There has thus been an international consensus that asset recovery would be the most apt mode of deterrence and reparation. Having its genesis in the 1989 Vienna convention, asset recovery has now become a useful tool with which developing countries can recoup some of the assets plundered by criminals. The United Nations Convention against corruption has also made it possible for states to recover stolen assets by way of non--‐criminal or non--‐conviction—based procedures. The main challenge for developing states is to make international treaties part of their national law. The democratization of former dictatorial states, especially those in Africa, also means that whatever international norms are domesticated in national legislation, should be in line with the tenets of their respective democratic constitutions, thus making them legally irreproachable. This paper evaluates Zambia’s Forfeiture of proceeds of crime Act. It discusses Zambia’s asset recovery provisions against the backdrop of international benchmarks and the laws of a few other countries that also have asset recovery laws. The paper concludes with a set of recommendations.Item Have truth commissions succeeded in dealing with gross human rights violations? a critical evaluation(2010) Human, Nuraan; Fernandez, L.Item Have truth commissions succeeded in dealing with gross human rights violations? a critical evaluation(2010) Human, Nuraan; Fernandez, L.Item The international mechanisms relating to mutual assistance in the field of information exchange and civil forfeiture(2009) Şuman, Silvia; Fernandez, L.Several international instruments relating to the forfeiture of assets derived through unlawful means have been developed in the last decade. These relate to both civil and criminal forfeiture proceedings. Nevertheless, the processes of tracing the assets and having them forfeit to the State present formidable obstacles to justice authorities enforcers around the world. The fact of the matter is that the advent of the internet has made it easier for money launderers to camouflage the nature and the physical locality of their ill-got gains. This has made it all the more necessary for states and financial institutions to co-operate more closely in hitting the criminals where it hurts most – their pockets. However, the international structures that provide for mutual legal assistance procedures are drafted in broad terms or in guideline-form. Most of the books and journal articles dealing with money laundering devote scant attention to this very important aspect of combating transnational economic criminality. In most of the literature, this topic is simply avoided. This paper, which confines itself to civil recovery proceedings, strives to determine first, what international mechanisms are available for obtaining information located abroad that could be used for domestic civil forfeiture, and second, to identify some of the most intractable problems encountered by justice authorities in their attempts to attach property situated abroad. The idea is to identify the principal point of discordance, and to suggest ways in which the international instruments governing civil forfeiture could be amended so as to make them more user friendly.Item The international mechanisms relating to mutual assistance in the field of information exchange and civil forfeiture(2009) Şuman, Silvia; Fernandez, L.Several international instruments relating to the forfeiture of assets derived through unlawful means have been developed in the last decade. These relate to both civil and criminal forfeiture proceedings. Nevertheless, the processes of tracing the assets and having them forfeit to the State present formidable obstacles to justice authorities enforcers around the world. The fact of the matter is that the advent of the internet has made it easier for money launderers to camouflage the nature and the physical locality of their ill-got gains. This has made it all the more necessary for states and financial institutions to co-operate more closely in hitting the criminals where it hurts most – their pockets. However, the international structures that provide for mutual legal assistance procedures are drafted in broad terms or in guideline-form. Most of the books and journal articles dealing with money laundering devote scant attention to this very important aspect of combating transnational economic criminality. In most of the literature, this topic is simply avoided. This paper, which confines itself to civil recovery proceedings, strives to determine first, what international mechanisms are available for obtaining information located abroad that could be used for domestic civil forfeiture, and second, to identify some of the most intractable problems encountered by justice authorities in their attempts to attach property situated abroad. The idea is to identify the principal point of discordance, and to suggest ways in which the international instruments governing civil forfeiture could be amended so as to make them more user friendly.Item Laking corruption a crime against humanity, an investigation ink possibility(2010) Mdukuti, Angela; Fernandez, L.Item Laking corruption a crime against humanity, an investigation ink possibility(2010) Mdukuti, Angela; Fernandez, L.Item Obstacles to the Implementation of the Financial Action Task Force’s Recommendations in the Eastern and Southern African Anti-Money Laundering Group (ESAAMLG)(University of the Western Cape, 2011) Phillipo, Jean; Fernandez, L.Money laundering is a global problem that has adverse effects on both the developed and developing countries. If unchecked, it accelerates crime and criminal activities, affects the economy, undermines the integrity of financial markets, undermines the legitimate private sector, causes loss of revenue, poses security threats to privatisation efforts and brings about reputational risks as well as social costs.1 Given the transnational and cross-border nature of money laundering, the fight against it is global. This is why in 1989 the G72 countries decided to set up the FATF3 as a global standard-setting body for Anti-Money Laundering (AML) and combating of terrorist financing (CFT). The FATF has since developed standards for countries across the globe to adopt so as to facilitate this global fight. The standards are in the form of recommendations, and so far there are Forty Recommendations on money laundering (hereafter referred so as the Recommendations), Eight Special Recommendations on CFT, and a Ninth Special Recommendation on cash-couriers. In order to enhance its work and the adoption of its Recommendations, the FATF has also facilitated the establishment of FATF- styled regional bodies (hereinafter referred to as FSRBs) across the world. One such group is ESAAMLG, which was established in 1999. Its mandate is to coordinate and guide its member countries in the implementation of the Recommendations and guidelines. Currently, it has 15 member countries.8 Over the first ten years of its existence, among other things, ESAAMLG has through its members, achieved the following in its mandate: all members except Uganda have enacted AML legislation and some have set up structures that are essential for the implementation of the Recommendations Despite the above-mentioned achievements, the overall implementation of the Recommendations has been generally slow and low. Most of the member countries have not yet enforced their enacted AML legislation as evidenced by low rate of money laundering prosecutions in the region. Some have not yet established financial intelligence Units (FIUs) nor ratified or domesticated important AML related international legal instruments, let alone train personnel adequately. The international instruments comprise the 2000 United Nations Convention against Transnational Organised Crime (Palermo Convention) and the1988 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (Vienna Convention). There are also inordinate delays in the passing of AML legislation as well as the amendment of other domestic legislation, which is necessary in order to harmonise such laws with the AML standards. This gives rise to unevenness, disconnectedness and time variability in the implementation of the Recommendations among the member countries. The main question this paper seeks to answer is this: Are there obstacles to the implementation of the Recommendations in Eastern and Southern Africa?Item Terrorism and international criminal law(2009) Schmidt, Sebastian; Fernandez, L.Item Terrorism and international criminal law(2009) Schmidt, Sebastian; Fernandez, L.