UWCScholar :: Browsing by Author "Fernandez, Lovell"

Browsing by Author "Fernandez, Lovell"

Now showing 1 - 20 of 56

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, Lovell
Money 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.
An assessment of anti-money laundering mechanisms for politically exposed persons in Mauritius
(University of the Western Cape, 2017) Devi, Mungar Divya Luxmi; Fernandez, Lovell
Money 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.
An assessment of Anti-Money laundering mechanisms for politically exposed persons in Mauritius
(University of the Western Cape, 2017) Devi, Mungar Divya Luxmi; Fernandez, Lovell
Money 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.
An Assessment of Ghana's Legal and Institutional Anti-Money Laundering Framework
(University of the Western Cape, 2017) Adade, Nancy Aku; Fernandez, Lovell
The 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.
An evaluation of Zimbabwe's national peace and reconciliation commission Bill, 2017
(University of the Western Cape, 2017) Maribha, Sheilla Kudzai; Fernandez, Lovell
This 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.
Analysis of political corruption trends in transitional states
(University of the Western Cape., 2011) Maguchu, Prosper Simbarashe; Fernandez, Lovell
An analysis of the critical shortcomings in South Africa's anti-money laundering legislation
(University of the Western Cape, 2016) Williams, Carol; Fernandez, Lovell
An Analysis of the Critical Shortcomings in South Africa’s Anti-Money Laundering Legislation
(University of the Western Cape, 2017) Williams, Carol; Fernandez, Lovell
From 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.21
An analysis of the difficulties related to victim participation before the International Criminal Court and the extraordinary chambers in the courts of Cambodia
(University of the Western Cape, 2012) Mwesigwa, Peter Katonene; Fernandez, Lovell; NULL
By any standard, victim participation is a relatively new phenomenon in international criminal law proceedings. Incredible advances have been made in the effort to end impunity for crimes against umanity, war crimes, genocide and, more recently, aggression. As a result, great strides have been made in ensuring the direct participation of victims of grave violations of human rights in court proceedings against their perpetrators. Prior to this, grave violations of human rights committed during conflicts or periods of mass violence were either largely ignored or even if action was taken, victims of the crimes hardly had a ‘say’ in the proceedings. With the advent of the International Criminal Court (ICC) and the Extraordinary Chambers in the Courts of Cambodia (ECCC) new dawn in the proceedings of international criminal law has emerged. The statutes that govern the ICC and ECCC have given a voice to victims in court proceeding buy ensuring victims participation.Despite these advances, scholars have criticized victim participation for being inconsistent in its application at the International Criminal Court.1 The criticism has come from scholars who have highlighted the unintended consequences of victim participation in court proceedings, arguing that their participation has resulted in the under- or misrepresentation of the actual experience of survivors of war, mass violence, or repression. These problems have arisen largely because the need to establish the guilt or innocence of the accused and to protect their due process rights, to abide by the rules of evidence and procedure, and to conserve judicial resources all cut against victim-witnesses'ability to tell their stories at these tribunals thereby resulting in a limited, and sometimes inaccurate, record of victims' experience.
An analysis of the difficulties related to victim participation before the International Criminal Court and the Extraordinary Chambers in the courts of Cambodia
(University of the Western Cape, 2012) Katonene, Peter Mwesigwa; Fernandez, Lovell
By any standard, victim participation is a relatively new phenomenon in international criminal law proceedings. Incredible advances have been made in the effort to end impunity for crimes against humanity, war crimes, genocide and, more recently, aggression. As a result, great strides have been made in ensuring the direct participation of victims of grave violations of human rights in court proceedings against their perpetrators. Prior to this, grave violations of human rights committed during conflicts or periods of mass violence were either largely ignored or even if action was taken, victims of the crimes hardly had a ‘say’ in the proceedings. With the advent of the International Criminal Court (ICC) and the Extraordinary Chambers in the Courts of Cambodia (ECCC) a new dawn in the proceedings of international criminal law has emerged. The statutes that govern the ICC and ECCC have given a voice to victims in court proceeding buy ensuring victims participation. Despite these advances, scholars have criticized victim participation for being inconsistent in its application at the International Criminal Court. The criticism has come from scholars who have highlighted the unintended consequences of victim participation in court proceedings, arguing that their participation has resulted in the under- or misrepresentation of the actual experience of survivors of war, mass violence, or repression. These problems have arisen largely because the need to establish the guilt or innocence of the accused and to protect their due process rights, to abide by the rules of evidence and procedure, and to conserve judicial resources all cut against victim-witnesses' ability to tell their stories at these tribunals thereby resulting in a limited, and sometimes inaccurate, record of victims' experience. Background: The idea that victims should be allowed to participate in international criminal proceedings stems from a broader movement over the last several decades advocating for restorative, as opposed to merely retributive justice. Proponents of this restorative justice movement maintain that “justice should not only address traditional retributive justice, i.e., punishment of the guilty, but should also provide a measure of restorative justice by, inter alia, allowing victims to participate in the proceedings and by providing compensation to victims for their injuries.” In other words, advocates of this movement believe that criminal justice mechanisms should serve the interests of victims, in addition to punishing wrongdoers, and that the participation of victims in criminal proceedings is an integral part of serving victims' interests. Although the concept of victim participation in criminal proceedings is not easily defined, it has been described as victims “being in control, having a say, being listened to, or being treated with dignity and respect.” Human rights activists supported the concept for several reasons. Many believed, as did victim advocates more generally, that participation in criminal proceedings has a number of potential restorative benefits, including the promotion of victims' “healing and rehabilitation.” Indeed, in its recommendations to the Preparatory Committee on the Establishment of the International Criminal Court (Preparatory Committee I), “participation is significant not only to protecting the rights of the victim at various stages of the proceeding, but also to advancing the process of healing from trauma and degradation.” Some believed that victim participation would bring the court “closer to the persons who have suffered atrocities” and thus increase the likelihood that victims would be satisfied that justice was done. set of recommendations on the ICC elements of crimes and rules of procedure and evidence, noted “the right of victims to participate in the proceedings was included in the Rome Statute to ensure that the process is as respectful and transparent as possible so that justice can be seen to be done . . .” Finally, and significantly for the purpose of this study, human rights activists thought that victim participation might help address the under- or misrepresentation of the experiences of victims. Research questions and objectives of the study: The question this research paper poses is whether victim participation has increased the visibility of the actual lived experience of survivors in the context of war, mass violence, or repression? Under the Rome Statute, victims of the world's most serious crimes were given unprecedented rights to participate in proceedings before the court. Nearly a decade later, a similar scheme was established to allow victims to participate as civil parties in the proceedings before the Extraordinary Chambers in the Courts of Cambodia, created with UN support to prosecute atrocities committed by leaders of the Khmer Rouge during the period of 1975 to 1979. Although there are some significant differences in how the schemes work at the ICC and ECCC, both courts allow victims to participate in criminal proceedings independent of their role as witnesses for either the prosecution or defence. In other words, both have victim participation schemes intended to give victims a voice in the proceedings. Have these new participation schemes before the ICC and ECCC, in fact, helped in satisfying the victims? What impact have they had on the ability of survivors of war crimes, crimes against humanity and genocide to tell their story and to talk about their experiences in their own words? In particular, has victim participation enabled more of them to tell their stories than would have been possible under the more traditional adversarial model employed by the ad hoc tribunals such as the International Criminal Tribunal for Rwanda (ICTR). Has it allowed them to expand the historical record produced by these tribunals with narratives that would otherwise have been left out because of prosecutorial or judicial decisions not to prosecute violations committed against them? Has it enabled victims to communicate a richer, more nuanced picture of their experiences than they were able to in the context of prior tribunals? The aim is to explore whether these novel victim participation schemes, as implemented by the ICC and ECCC thus far, have actually allowed for greater recognition of victims' voices and experiences than was possible in proceedings before their predecessor tribunals. Have these schemes actually allowed victims to communicate a fuller and more nuanced picture of their experiences than they would have been able to do as victim-witnesses before the International Criminal Tribunal for the Former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR)? In other words, can the victim participation schemes at the ICC answer the call for increased visibility of the actual lived experience of survivors of human rights violations in the context of war, mass violence, or repression?.
An analysis of the difficulties related to victim participation before the International Criminal Court and the Extraordinary Chambers in the courts of Cambodia
(University of the Western Cape, 2012) Katonene, Peter Mwesigwa; Fernandez, Lovell
By any standard, victim participation is a relatively new phenomenon in international criminal law proceedings. Incredible advances have been made in the effort to end impunity for crimes against humanity, war crimes, genocide and, more recently, aggression. As a result, great strides have been made in ensuring the direct participation of victims of grave violations of human rights in court proceedings against their perpetrators. Prior to this, grave violations of human rights committed during conflicts or periods of mass violence were either largely ignored or even if action was taken, victims of the crimes hardly had a ‘say’ in the proceedings. With the advent of the International Criminal Court (ICC) and the Extraordinary Chambers in the Courts of Cambodia (ECCC) a new dawn in the proceedings of international criminal law has emerged. The statutes that govern the ICC and ECCC have given a voice to victims in court proceeding buy ensuring victims participation. Despite these advances, scholars have criticized victim participation for being inconsistent in its application at the International Criminal Court. The criticism has come from scholars who have highlighted the unintended consequences of victim participation in court proceedings, arguing that their participation has resulted in the under- or misrepresentation of the actual experience of survivors of war, mass violence, or repression. These problems have arisen largely because the need to establish the guilt or innocence of the accused and to protect their due process rights, to abide by the rules of evidence and procedure, and to conserve judicial resources all cut against victim-witnesses' ability to tell their stories at these tribunals thereby resulting in a limited, and sometimes inaccurate, record of victims' experience. Background: The idea that victims should be allowed to participate in international criminal proceedings stems from a broader movement over the last several decades advocating for restorative, as opposed to merely retributive justice. Proponents of this restorative justice movement maintain that “justice should not only address traditional retributive justice, i.e., punishment of the guilty, but should also provide a measure of restorative justice by, inter alia, allowing victims to participate in the proceedings and by providing compensation to victims for their injuries.” In other words, advocates of this movement believe that criminal justice mechanisms should serve the interests of victims, in addition to punishing wrongdoers, and that the participation of victims in criminal proceedings is an integral part of serving victims' interests. Although the concept of victim participation in criminal proceedings is not easily defined, it has been described as victims “being in control, having a say, being listened to, or being treated with dignity and respect.” Human rights activists supported the concept for several reasons. Many believed, as did victim advocates more generally, that participation in criminal proceedings has a number of potential restorative benefits, including the promotion of victims' “healing and rehabilitation.” Indeed, in its recommendations to the Preparatory Committee on the Establishment of the International Criminal Court (Preparatory Committee I), “participation is significant not only to protecting the rights of the victim at various stages of the proceeding, but also to advancing the process of healing from trauma and degradation.” Some believed that victim participation would bring the court “closer to the persons who have suffered atrocities” and thus increase the likelihood that victims would be satisfied that justice was done. set of recommendations on the ICC elements of crimes and rules of procedure and evidence, noted “the right of victims to participate in the proceedings was included in the Rome Statute to ensure that the process is as respectful and transparent as possible so that justice can be seen to be done . . .” Finally, and significantly for the purpose of this study, human rights activists thought that victim participation might help address the under- or misrepresentation of the experiences of victims. Research questions and objectives of the study: The question this research paper poses is whether victim participation has increased the visibility of the actual lived experience of survivors in the context of war, mass violence, or repression? Under the Rome Statute, victims of the world's most serious crimes were given unprecedented rights to participate in proceedings before the court. Nearly a decade later, a similar scheme was established to allow victims to participate as civil parties in the proceedings before the Extraordinary Chambers in the Courts of Cambodia, created with UN support to prosecute atrocities committed by leaders of the Khmer Rouge during the period of 1975 to 1979. Although there are some significant differences in how the schemes work at the ICC and ECCC, both courts allow victims to participate in criminal proceedings independent of their role as witnesses for either the prosecution or defence. In other words, both have victim participation schemes intended to give victims a voice in the proceedings. Have these new participation schemes before the ICC and ECCC, in fact, helped in satisfying the victims? What impact have they had on the ability of survivors of war crimes, crimes against humanity and genocide to tell their story and to talk about their experiences in their own words? In particular, has victim participation enabled more of them to tell their stories than would have been possible under the more traditional adversarial model employed by the ad hoc tribunals such as the International Criminal Tribunal for Rwanda (ICTR). Has it allowed them to expand the historical record produced by these tribunals with narratives that would otherwise have been left out because of prosecutorial or judicial decisions not to prosecute violations committed against them? Has it enabled victims to communicate a richer, more nuanced picture of their experiences than they were able to in the context of prior tribunals? The aim is to explore whether these novel victim participation schemes, as implemented by the ICC and ECCC thus far, have actually allowed for greater recognition of victims' voices and experiences than was possible in proceedings before their predecessor tribunals. Have these schemes actually allowed victims to communicate a fuller and more nuanced picture of their experiences than they would have been able to do as victim-witnesses before the International Criminal Tribunal for the Former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR)? In other words, can the victim participation schemes at the ICC answer the call for increased visibility of the actual lived experience of survivors of human rights violations in the context of war, mass violence, or repression?.
An analysis of the difficulties related to victim participation before the International Criminal Court and the extraordinary chambers in the courts of Cambodia
(University of the Western Cape, 2012) Mwesigwa, Peter Katonene; Fernandez, Lovell; NULL
By any standard, victim participation is a relatively new phenomenon in international criminal law proceedings. Incredible advances have been made in the effort to end impunity for crimes against umanity, war crimes, genocide and, more recently, aggression. As a result, great strides have been made in ensuring the direct participation of victims of grave violations of human rights in court proceedings against their perpetrators. Prior to this, grave violations of human rights committed during conflicts or periods of mass violence were either largely ignored or even if action was taken, victims of the crimes hardly had a ‘say’ in the proceedings. With the advent of the International Criminal Court (ICC) and the Extraordinary Chambers in the Courts of Cambodia (ECCC) new dawn in the proceedings of international criminal law has emerged. The statutes that govern the ICC and ECCC have given a voice to victims in court proceeding buy ensuring victims participation.Despite these advances, scholars have criticized victim participation for being inconsistent in its application at the International Criminal Court.1 The criticism has come from scholars who have highlighted the unintended consequences of victim participation in court proceedings, arguing that their participation has resulted in the under- or misrepresentation of the actual experience of survivors of war, mass violence, or repression. These problems have arisen largely because the need to establish the guilt or innocence of the accused and to protect their due process rights, to abide by the rules of evidence and procedure, and to conserve judicial resources all cut against victim-witnesses'ability to tell their stories at these tribunals thereby resulting in a limited, and sometimes inaccurate, record of victims' experience.
An analysis of the Zimbabwean money laundering and proceeds of crime amendment act of 2018
(University of Western Cape, 2020) Nyarugwe, Raymond Tendai; Fernandez, Lovell
Financial 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.
Anti-cyberlaundering regulation and control
(University of the Western Cape, 2010) Leslie, Daniel A.; Fernandez, Lovell; Faculty of Law
This paper is inspired by the ills borne out of the internet. The internet has become a modern day tool for criminals seeking to conceal the proceeds derived from their crime, hence the problematic notion of cyberlaundering. This paper journeys through the world of cyberlaundering by looking into the structure of the crime in great depth. It explores various possibilities, and tries to hatch out viable solutions to the dilemma.
The co-operation regime of the international criminal court: the obligation of states to arrest and surender
(University of Western Cape, 2009) Gidey, Maereg Gebregziabher; Fernandez, Lovell
The study attempts to identify the concrete mechanisms inherent in the co-operation regime of the ICC in relation to the arrest and surrender of suspects. By doing so, it attempts to contribute to a better understanding of the procedural mechanisms pertinent to the question of arrest and surrender, thereby augmenting the emerging body of international literature focusing on this issue. Moreover, by examining real cases will identify practical deviations and suggests measures that need to be considered to remedy the problem. It is important that the procedures are clarified and followed properly. Otherwise, the ICC will lose credibility internationally, thus undermining the purpose of its creation, which was to combat impunity and to contribute towards achieving justice, peace and well being worldwide.
The co-operation regime of the international criminal court: the obligation of states to arrest and surender
(University of Western Cape, 2009) Gidey, Maereg Gebregziabher; Fernandez, Lovell
The study attempts to identify the concrete mechanisms inherent in the co-operation regime of the ICC in relation to the arrest and surrender of suspects. By doing so, it attempts to contribute to a better understanding of the procedural mechanisms pertinent to the question of arrest and surrender, thereby augmenting the emerging body of international literature focusing on this issue. Moreover, by examining real cases will identify practical deviations and suggests measures that need to be considered to remedy the problem. It is important that the procedures are clarified and followed properly. Otherwise, the ICC will lose credibility internationally, thus undermining the purpose of its creation, which was to combat impunity and to contribute towards achieving justice, peace and well being worldwide.
The criminal accountability of child soldiers in the light of armed conflict
(University of the Western Cape, 2009) Nortje, Windell; Fernandez, Lovell
The criminal accountability of child soldiers in the light of armed conflict
(University of the Western Cape, 2009) Nortje, Windell; Fernandez, Lovell
The Criminalization of Torture in South Africa
(2016) Fernandez, Lovell; Muntingh, Lukas
This 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 .
The criminalization of torture in South Africa
(Cambridge University Press, 2016) Fernandez, Lovell; Muntingh, Lukas
This 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.

Browsing by Author "Fernandez, Lovell"

Results Per Page

Sort Options