Browsing by Author "Fernandez, Lovell"
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Item An appraisal of the Institutional framework under the Kenyan proceeds of crime and Anti-Money laundering act, 2009(University of the Western Cape, 2017) Moroga, Denis wangwi; Fernandez, LovellMoney laundering (ML) evolves in tandem with global technological advancement. This phenomenon calls for multi-faceted responsive measures at national and international levels to combat this nefarious crime.1 Today, combating ML requires co-operation among, inter alia, financial intelligence units (FIUs), reporting institutions, law enforcement agencies, the judiciary, as well as inter-state co-operation. In response to the ML threat, Kenya has adopted comprehensive anti-money laundering (AML) laws, such as the Proceeds of Crime and Anti- Money Laundering Act No. 9 of 2009 (POCAMLA) and the Prevention of Terrorism Act No. 30 of 2012. These, among other statutes, constitute the principal arsenal of the AML legal framework.Item An assessment of anti-money laundering mechanisms for politically exposed persons in Mauritius(University of the Western Cape, 2017) Devi, Mungar Divya Luxmi; Fernandez, LovellMoney laundering is a practice 'as old as money itself'. In 1931, after the conviction of Al Capone for tax evasion, there was a noticeable trend in the use various methods to camouflage assets deriving from crimes. Indeed, the practice of money laundering became not only more prevalent, but also more detectable. However, the term "money laundering" was used for the first time in connection with the Watergate Scandal in the United States, when the Republican Party channelled money obtained illegally via Mexican banks to fund its election campaign. In 1986, the US Congress adopted the Money Laundering Control Act to criminalise money laundering. The US recognised that, having an international character, money laundering could not be combated with domestic laws and controls alone, and that, being the only country implementing strict regulations, the US had placed itself in an economically disadvantageous position. Therefore, the US brought the issue of money laundering to the attention of the international community.Item An assessment of Anti-Money laundering mechanisms for politically exposed persons in Mauritius(University of the Western Cape, 2017) Devi, Mungar Divya Luxmi; Fernandez, LovellMoney laundering is a practice 'as old as money itself'.1 In 1931, after the conviction of Al Capone for tax evasion, there was a noticeable trend in the use various methods to camouflage assets deriving from crimes. Indeed, the practice of money laundering became not only more prevalent, but also more detectable. However, the term "money laundering" was used for the first time in connection with the Watergate Scandal in the United States, when the Republican Party channelled money obtained illegally via Mexican banks to fund its election campaign. In 1986, the US Congress adopted the Money Laundering Control Act to criminalise money laundering. The US recognised that, having an international character, money laundering could not be combated with domestic laws and controls alone, and that, being the only country implementing strict regulations, the US had placed itself in an economically disadvantageous position. Therefore, the US brought the issue of money laundering to the attention of the international community.Item An Assessment of Ghana's Legal and Institutional Anti-Money Laundering Framework(University of the Western Cape, 2017) Adade, Nancy Aku; Fernandez, LovellThe primary aim of an individual who engages in criminal activity, particularly at an organised level, is to make profit. However, criminals are not merely bent on gaining financial profit, but are especially desirous of enjoying the proceeds of the crimes that they perpetrate and reinvesting the illicit proceeds in other criminal schemes. Such reinvestments have to be made carefully, without drawing attention to their criminal provenance. Financial institutions, such as banks, are used to launder the illegally obtained monies. Money laundering and the financing of terrorism are transnational crimes which constitute a great economic, social and political threat to national economies and political stability. The devastating effects of money laundering and the financing of terrorism have activated the international community to develop a comprehensive anti-money laundering legal framework at both the international and regional level. Most countries in the world today have adopted antimoney laundering laws and policies.Item An evaluation of Zimbabwe's national peace and reconciliation commission Bill, 2017(University of the Western Cape, 2017) Maribha, Sheilla Kudzai; Fernandez, LovellThis is a study of Zimbabwe's National Peace and Reconciliation Commission Bill (hereafter NPRC Bill). The NPRC Bill seeks to bring the National Peace and Reconciliation Commission (hereafter NPRC) of Zimbabwe into operation. The NPRC is a truth commission set to promote post-conflict justice, national peace and reconciliation in Zimbabwe. The study discusses the prospects of establishing an effective NPRC in Zimbabwe by examining the provisions of the NPRC Bill. The view of the paper is that, without proper guidance from a comprehensive law, the NPRC is bound to be a victim of its own failure.Item Analysis of political corruption trends in transitional states(University of the Western Cape., 2011) Maguchu, Prosper Simbarashe; Fernandez, LovellItem An analysis of the critical shortcomings in South Africa's anti-money laundering legislation(University of the Western Cape, 2016) Williams, Carol; Fernandez, LovellItem An Analysis of the Critical Shortcomings in South Africa’s Anti-Money Laundering Legislation(University of the Western Cape, 2017) Williams, Carol; Fernandez, LovellFrom failing to arrest and surrender Sudanese President Omar Al-Bashir1 in accordance with its obligations under the Rome Statute of the International Criminal Court2 (Rome Statute), to its President acting inconsistently with its Supreme law3, it is evident that the rule of law is under threat in South Africa. Furthermore, South Africa has witnessed the cultivation of a culture of impunity for corruption in high office. South Africa has also experienced an increase in heinous crimes committed against women and children. The South African Rand recently plummeted given that its Minister of Finance Pravin Gordhan, recently faced charges of fraud4, as well as the ripple effect caused by the Fees Must Fall Movement.5 Against the backdrop of the above-mentioned issues that plague South Africa and hinder its development, the fight against money laundering hardly seems of pivotal importance in achieving the desired stability and development of the country. There is a public perception that money laundering is a crime of little consequence.8 This perception derives from the fact that money laundering does not have a direct impact on its victims and in some instances benefits the economy as it increases the profits for the financial sector and results in a greater availability of credit.9 Laundered money arguably is not harmful but rather beneficial to developing economies because money remains money, whether it is proceeds of crime or honestly earned.10 Although an increase in money is appealing to developing countries, the benefits that accompany laundered money are short-lived as the crime affects society adversely in the long run.11 However, where a country fails to prevent and prosecute money laundering offences, the prevalence of money laundering will impede the development of a state as it not only increases the profitability of crime and encourages the prevalence of corruption, but it also causes damage to critical financial sector institutions.12 Money laundering influences the commission of crimes that generate large amounts of profit, namely, organised crime, which is often described as the twin brother of money laundering.13 This is because criminals do not commit crimes to make money only but to enjoy this money as well.14 However, criminals need to launder their money in order to enjoy the proceeds of their criminal activities without drawing attention to these activities.15 Countries that combat money laundering effectively make it more difficult for criminals to launder the proceeds of their crimes. It becomes more risky for them to indulge in their ill-gotten gains, thus dissuading them from engaging in economic criminality.16 Money laundering is a process where the proceeds of crime are concealed and disguised in order to make them appear lawful.17 Criminals are thus able to enjoy the financial benefits of the crimes they commit.18 The pervasiveness of money laundering in a country does not only affect the confidence the public have in the country’s financial institutions but also undermines the confidence foreign investors and financial institutions have in a developing state’s financial institutions.19 A country can, therefore, run the risk of not benefitting from foreign direct investment.20 The financial institutions rely heavily on what the public think about their integrity.21Item An analysis of the Zimbabwean money laundering and proceeds of crime amendment act of 2018(University of Western Cape, 2020) Nyarugwe, Raymond Tendai; Fernandez, LovellFinancial crimes are transnational in nature, and no country is immune from them. They are an international problem that can best be solved through international cooperation on a global scale. It is therefore necessary to have rules and norms that apply worldwide in order to deal with these crimes comprehensively.1 Of particular prominence is the crime of money laundering (ML), which may be defined as the processing of criminal proceeds to disguise their illegal origin.2 This term is relatively new and is broadly defined, with the definitions varying from jurisdiction to jurisdiction. In Zimbabwe, money laundering acts are listed in the Money Laundering and Proceeds of Crime Act 34 of 2013 (the Principal Act).3 The Financial Action Task Force (FATF) is the main international inter-governmental body formed specifically to set AML standards and to promote their implementation globally.Item The criminalization of torture in South Africa(Cambridge University Press, 2016) Fernandez, Lovell; Muntingh, LukasThis article describes the politics related to the criminalization of torture in South Africa. It studies the differences between torture as an international crime and as a crime under international human rights law. The South African anti-torture law is analysed and critiqued against the standards and provisions set out in the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The article recommends amendments to the South African law, aimed at making the combating of torture more effective.Item The Criminalization of Torture in South Africa(2016) Fernandez, Lovell; Muntingh, LukasThis article describes the politics related to the criminalization of torture in South Africa. It studies the differences between torture as an international crime and as a crime under international human rights law. The South African anti-torture law is analysed and critiqued against the standards and provisions set out in the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The article recommends amendments to the South African law, aimed at making the combating of torture more effective .Item A critical appraisal of the current anti-money Laundering laws of Malawi with specific focus on trusts(University of the Western Cape, 2015) Mtonga, Edwin Madalo; Fernandez, LovellItem An evaluation of the effectiveness of the transitional justice process in Kenya since the 2007-2008 post-election conflict(University of the Western Cape, 2016) Kamau, Caroline Wairimu; Fernandez, LovellThe concept of transitional justice keeps changing as the concept of conflict changes. The paper analyses the transitional justice process in Kenya after the 2007-2008 Post-Election Violence. Very little has been written on the success or failure of transitional justice in Kenya after eight years of the implementation of transitional justice mechanisms which included truth commission, criminal prosecutions and recommendations on reparations. Furthermore, the architects of Kenya’s transitional justice process failed to put in place a mechanism against which the progress of transitional justice could be measured. It was therefore necessary to analyse the overall transitional justice process in Kenya to determine its efficacy. Kenya’s transitional justice process seemed to be a stand-alone occurrence with no ties to the laws or the various institutions in the country compared to Uganda's national transitional justice policy. The transitional justice process as a whole did not assign rights and responsibilities to the public, the three arms of government, the devolved governments, civil society or non-governmental organisations so that the various stakeholders could then check and balance each other with the aim of ensuring that transitional justice would be implemented. To date, there are still calls for the full implementation of the transitional justice processes especially in light of the International Criminal Court having terminated the last case in relation to the post-election violence as well as Kenya’s impending general elections in 2017. This paper begins by introducing transitional justice in Kenya and providing the 2007-2008 PEV as a background. The paper then investigates the ideal circumstances for implementing transitional justice mechanisms. In the case of Kenya, it is concluded that the situation in 2007-2008 PEV did not conform to the traditional context of societies in transition. Whereas there was no regime change that preceded the 2007-2008 PEV, there were human rights violations which were ethnically driven. The study illustrates how the violation of human rights depended on the ethnic tribe the person belonged to, hence identifying the main problem in the 2007-2008 PEV as negative ethnicity. Looking at the contextual precedence set by Latin American countries and later followed by other countries undergoing change, ethnicity has not been dealt with and to this extent Kenya presents a unique situation. The paper concludes that each of the transitional justice mechanisms implemented in Kenya had no impact on Kenya and as a result, the whole transitional justice process had failed. The paper recommends that stakeholders address and solve the inter-tribal fears and suspicions in order to create an opportunity for the different tribes to establish a relationship based on transparency. In the alternative, the paper recommends the adoption of the Territorial Self-Governance (TSG) which allows ethnic groups in a particular sovereign region to regulate their own affairs thus reducing the risk of ethnic tensions on account of one group's concerns not being addressed adequately. Ultimately, the paper recommends that the Truth Justice and Reconciliation report be tabled before Parliament for approval in order for the transitional justice mechanisms to be implemented fully.Item Examining the effectiveness of the Malawian Financial Intelligence Authority in the fight against money laundering(University of the Western Cape, 2018) Francisco, Felisters; Fernandez, LovellMoney laundering (hereafter ML) is a multidisciplinary topic which has become important since the late 1980s. The term ‘laundering’ literally means ‘washing’ or ‘removing dirt’. It has been defined as the conversion of criminal income into assets that cannot be traced back to the underlying crime. Criminals use ML as a way of keeping control over the proceeds of crime and to provide, ultimately, a cover for their income and wealth. ML occurs every time any transaction takes place, regardless of whether it involves any form of property or benefit, whether tangible or not tangible, which is derived from criminal activity. ML is regulated at the global, regional and national levels. To combat ML and other financial crimes, Malawi enacted the Financial Crimes Act (hereafter FCA). The FCA establishes the Financial Intelligence Authority (hereafter FIA) as an institution whose objectives include collecting financial intelligence regarding suspicious transactions.Item Has the failure to conduct post-Truth and Reconciliation Commission prosecutions in South Africa contributed to a culture of impunity for economic crimes?(University of the Western Cape, 2015) Mabunda, Sagwadi; Fernandez, LovellThe end of Apartheid and the transition to a new constitutional democracy in South Africa was ushered in by the Truth and Reconciliation Commission (TRC). The purpose of the TRC was to promote a dialogue between victims and perpetrators of gross human rights violations to try and achieve reconciliation in the country. To this end, the TRC was given the power to grant conditional amnesty to those who came forward to reveal the full truth to the country about the crimes that they had committed. Those who refused to apply for amnesty or who did apply but were denied amnesty were supposed to be prosecuted. A number of years have passed since the final TRC report was submitted and hardly any prosecutions have taken place. This paper argues, by comparing the transitions in Argentina and Chile to the one in South Africa, that the lack of post-Truth Commission prosecutions in South Africa has contributed to nurturing a culture of impunity for acts of corruption in high offices of state. It argues that in countries transitioning from repressive and authoritarian regimes to democratic governments, prosecutions of gross human rights violations are necessary for the creation and strengthening of the rule of law and a human rights culture. Therefore, the impunity for economic crimes such as corruption is detrimental to democracy.Item Illegal, unreported, and unregulated fishing : a paradigm shift from a regulatory issue to a transnational organised crime(University of the Western Cape, 2016) Siwale, Winjie; Fernandez, LovellThe importance of the fisheries sector to world sustenance is extensive, ranging from being a source of employment and protein for subsistence farmers, particularly in developing countries, to providing social and economic opportunities for food security and environmental protection. It is estimated that the fisheries sector assures the livelihoods of 10 percent to 12 percent of the world’s population. Most countries have, however, neglected to formulate effective policies to manage this sector and to give it adequate attention, despite its value to the health and wealth of a nation. The need to devote more attention to the fisheries sector is pressing, given the rising demand for fish, which has resulted in over-exploitation of fish reserves. De Coning and Witbooi postulate that ‘85% of worldwide fish stocks are now over and fully exploited, with 53% being fully exploited, therefore these fisheries cannot be expanded’. This, in turn, has led to difficulties in maintaining ecosystems. This over-exploitation of fish and other edible freshwater resources is not restricted to small-scale inland fishing activities, but extends also to the oceans.Item Implementing the Rome statute of the international criminal court domestically: a comparative analysis of strategies in Africa(University of the Western Cape, 2003) Olugbuo, Benson Chinedu; Fernandez, LovellOn 17 July 1998, a total of 120 states voted to adopt the Rome Statute of the International Criminal Court (Rome Statute) 1 in a UN sponsored conference in Rome. The International Criminal Court (ICC or 'the Court') has jurisdiction to try people accused of such international crimes as genocide, crimes against humanity, war crimes and aggression.2 The Court has power to provide redress to victims and survivors of these crimes and some argue that the mere presence of the ICC has a deterrent effect on future dictators and their collaborators. 3 Also the Court has potential to advance the rule of law internationally, for example, by obliging States Parties to investigate and prosecute those indicted, thus strengthening the ability of national jurisdictions to bring to justice perpetrators of these heinous crimes. With the entry into force of the Rome Statue in July 20025 and the election of judges and Prosecutor7 of the Court in 2003, there is need for States Parties to the Rome Statute to enact laws to incorporate the crimes defined in the treaty. Currently, 92 States are Parties to the treaty. 8 The success of the ICC will depend not only on widespread ratification of the Rome Statute but also on States Parties' compliance with obligations under the treaty. For almost every state this will require some change in national law in accordance with existing laws and proceedings in a given legal system.Item Investigation and prosecution of transnational women trafficking: the case of Ethiopia(University of the Western Cape, 2011) Beyene, Selam Gebretsion; Fernandez, Lovell; NULLHuman trafficking is a widespread and growing crime in the world. Trafficking by its nature involves movement from one place to another and in most cases, it comprises crossing international borders. Although the estimation of victims of trafficking stretches to 2 450 000, the number of prosecutions is less than 5 000. This indicates the challenges faced by many countries in the investigation and prosecution of trafficking cases. Transnational human trafficking is committed in different places, making investigation and prosecution very complex. This paper examines how investigation and prosecution can be carried out when the criminal acts are committed in different countries. It also examines how the issue of jurisdiction is entertained. Furthermore, it addresses who can be termed as “traffickers” in dealing with human trafficking issues. Ethiopia is facing a big problem in fighting human trafficking. Like most countries, the issue of human trafficking is closely related to women. Ethiopia uses the criminal justice system as a tool to eradicate women trafficking. The investigation and prosecution of trafficking cases face many problems which have a direct impact on the country‟s efforts to overcome human trafficking. Thus, this research will contribute significantly by highlighting deficits in the criminal justice system as it deals with the investigation and prosecution of women trafficking issues and by making recommendations with regards to them.Item Mobile Money Payments as Vehicles for Money Laundering: A Case Study of Malawi(University of the Western Cape, 2016) Chitsime, Collin Brian Sukali; Fernandez, LovellMoney laundering is defined as the process of converting the proceeds derived from a wide range of underlying criminal offences, called predicate offences, to apparently legitimate property. In other words, it is the process of washing away the stain of illegality from the proceeds of crime in order to give them the appearance of legality. In fact, the nomenclature of the practice itself was inspired by America�s notorious gangster Al Capone�s practice of channelling the proceeds of his criminal enterprise through his laundromats in order to cloak their illegality so as to endow them with an appearance of legality. The crime of money laundering has been a scourge on the economies of the world, hence it has become a crime of international concern. The international community has developed numerous international treaty norms obligating states to criminalise money laundering. These norms, when incorporated into national legislation, are expected to serve as the legal basis not only for national prosecution of money laundering offences but also for international mutual legal assistance in AML (for example, international co-operation in the confiscation of criminal proceeds and extradition of money launderers).Item Namibia's implementation of the financial action task force's international standards on combating the financing of terrorism(University of the Western Cape, 2017) Isaacs, Sandi; Fernandez, LovellTerrorism has become one of the biggest threats to international peace and security. It threatens to destroy basic human rights and freedoms, particularly the rights to life, liberty, security, and in more recent times, religious rights, the methods used by terrorists to carry out their activities have become more sophisticated and complex, making it increasingly difficult to decipher how they operate. there is, however, one aspect that can be pinned down, namely, that terrorists need money to terrorise.