Browsing by Author "Koen, Raymond"

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    All roads lead to property: Pashukanis, Christie and the Theory of Restorative Justice
    (North-West University, 2013) Koen, Raymond
    The name of Evgeny Pashukanis, the Bolshevik jurisprudent, is linked umbilically to the so-called commodity form theory of law. In his Law and Marxism Pashukanis develops a general theory of law which turns upon the relationship between the commodity form and the legal form. The fundamental postulates of the general theory are, firstly, that the legal form is the analytical fulcrum of the general theory of law, and secondly, that the commodity form is the key to the analysis of the legal form. Law and Marxism, which first appeared almost ninety years ago, continues to occupy pride of place in the Marxist analysis of the law. Indeed, if there is a classical Marxist theory of law it is the so-called commodity form theory of law.
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    An assessment of assets declaration by public officers as an anti-corruption measure in Nigeria
    (University of the Western Cape, 2019) Ayinde, Dare Joseph; Koen, Raymond
    Although corruption is a global problem, its nature, extent and consequences in Nigeria are alarming. Nigeria has a plethora of laws, policies and institutions that have been put in place by the government to keep corruption at bay. One such law is the Code of Conduct Bureau and Tribunal Act of 1989 (CCBT Act) which regulates, inter alia, the declaration of assets by public officers. However, corruption has defiled all these initiatives. Eloquent evidence of unsuccessful attempts at curbing corruption in Nigeria is the fact that the country consistently has been rated by Transparency International as one of the most corrupt countries in world. For example, in the 2017 Corruption Perceptions Index, Nigeria was ranked 148 out of 180 countries that were assessed. The Corruption Perceptions Index is based on a scale of 0 to 100: any score above 50 denotes low levels of corruption in the public sector and any score below 50 denotes high levels of corruption in the public sector. Nigeria scored 27. This indicates that the public sector in Nigeria is perceived to be significantly corrupt.
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    Bail and the presumption of innocence: a critical analysis of section 60(1-1) of the criminal procedure Act 51 of 1977 as amended
    (UWC, 2012) Matshoba, Mzwandile Reuben; Koen, Raymond
    In South Africa, as in most jurisdictions, the presumption of innocence is a guaranteed constitutional right. The rationale of the presumption lies in the protection which it offers, since a person charged with a criminal offence stands to lose dearly in personal liberty, in social life and psychological well-being. The presumption is, therefore, a pivotal element of a culture of democracy and human rights. This study is prompted by the realisation that the presumption of innocence, which ought to constitute one of the most fundamental rights in any criminal justice system, is being eroded steadily in South Africa. In this regard, a significant area of concern is the current bail laws which, in my estimation, make a big dent into the right to be presumed innocent. The bail laws are part of government’s policies directed at fighting crime. However, the pre-occupation with crime control measures threatens to reverse the hard-won rights of the accused and threatens to undermine individual liberty. Also, these measures are incompatible with the constitutional commitment to a culture of human rights.
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    Carpe Pecuniam: Criminal forfeiture of tainted legal fees
    (Pretoria University Law Press, 2020) Hamman, Abraham; Koen, Raymond
    A person charged with money laundering has a right to legal representation and a lawyer is entitled to defend such person. What if the lawyer is paid with dirty money? This paper explores the legal status of tainted fees, to determine whether such moneys should be forfeitable and, if so, what forfeiture means for the client’s right to legal representation and the lawyer’s right to practise his\her profession. This is an issue of international import and the paper considers criminal forfeiture of tainted legal fees in South Africa, the USA and Canada. All three jurisdictions provide for the criminalisation of tainted fees. However, South African lawyers are most in peril both of prosecution and conviction for accepting tainted fees and of having such fees confiscated. Whereas the USA and Canada uphold the right of lawyers to practise their profession, South Africa appears to negate it. The South African position requires reform.
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    A case for civil forfeiture in Ethiopia
    (University of the Western Cape, 2014) Gebremeskel, Saba Hailu; Koen, Raymond
    This research paper aims to clarify and argue the need for Ethiopia to include civil forfeiture in its assets forfeiture legal framework. It will analyse the existing domestic assets forfeiture laws and international instruments on assets forfeiture. It will show how the new Anti-Money Laundering and Terrorist Financing Proclamation and the other anti-corruption laws deal with assets forfeiture in general and civil forfeiture in particular. For a number of reasons, Ethiopian law enforcement is struggling to investigate crimes such as money laundering and corruption to obtain convictions.
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    Cave pecuniam: Lawyers as launderers
    (North-West University, 2012) Hamman, Abraham; Koen, Raymond
    In South Africa there is something almost sacrosanct about an attorney's trust account. It is the prescribed destination of all funds paid in trust by a client to an attorney. Clients tend to have complete confidence in the fact that their money is entrusted thus. Its very designation as trust money encourages such confidence. The trust account is also the account in respect of which the Attorneys Fidelity Fund requires an annual audit to determine if an attorney is awarded the Fidelity Fund Certificate which he requires to practise. All in all, the trust account is the barometer of the good standing of a law practice, and the index of its trustworthiness. Hence the aura of venerability which surrounds it.
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    Civil recovery of corruptly acquired assets in Uganda
    (University of the Western Cape, 2014) Bogere, Philippa; Koen, Raymond
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    Confronting corruption: past concerns, present challenges and future strategies
    (2017) Koen, Raymond
    The literature on corruption and anti-corruption has mushroomed over the last decade or so. Of course, all research and writing on the problem of corruption and the fight against it are to be welcomed. Regrettably, however, with volume come fragmentation and specialisation and their concomitant quandaries. Indeed, any person wanting to understand the field would be hard-pressed to find a source or even a manageable bundle of sources which encompasses the crucial issues lucidly and logically. Let it be said upfront that Confronting Corruption by Fritz Heimann and Mark Pieth is not the storied single-volume holdall of definitiveness in the field. No doubt, the authors would be the first to dissociate themselves, smartly and tartly, from any such claim. Be that as it may, theirs remains a rather impressive cornucopia of accumulated knowledge, distilled wisdom and practical know-how. In fewer than 300 pages they manage to give us a fairly holistic delineation of the past, present and future of corruption and anti-corruption. Little wonder that President Jimmy Carter took the time to write the foreword.
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    The criminalisation of trading in influence in international anti-corruption laws
    (University of the Western Cape, 2009) Philipp, Julia; Koen, Raymond; Faculty of Law
    This paper will analyse critically the main sources, namely UNCAC, the African Union Convention on Prevention and Combating Corruption (AU Convention), the Southern African Development Community Protocol against Corruption (SADC Protocol) and the Council of Europe Criminal Law Convention on Corruption (CoE Convention). Furthermore, the paper will examine the corresponding explanatory notes and try to provide a picture of the most important aspects of the issue. As many countries are obliged to consider the criminalisation of trading in influence, drawing an overview of it may make a substantial contribution to its comprehension. Due to the limited space, the paper is unable to cover all provisions of trading in influence in countries where it exists. Accordingly, the discussion will be restricted to the situation in France, Spain and Belgium. By analysing the position in these countries, the different approaches to criminalisation can be highlighted.
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    Critical Analysis of the SADC Legal and Policy Framework for combating corruption in human trafficking
    (University of the Western Cape, 2017) Chimwaga, Juliet Cindy; Koen, Raymond
    The fight against human trafficking requires a broad range of approaches, including the eradication of crimes that facilitate trafficking of human beings. The idea of committing crimes within crimes is common in most national regimes just as it is in transnational and organised crimes. For instance, transnational crimes such as money laundering and human trafficking always are accompanied by various types of corruption such as petty, grand or bureaucratic corruption. As the Southern African Development Community (SADC) States Parties strengthen strategies to address human trafficking, the region continues to face an increase of trafficking of persons into Europe and Asia, as well as within Africa. There are various causes of human trafficking, such as poverty, hunger and deteriorating economies, as victims are promised luxurious lives in the countries to which they are trafficked. The poverty and stunted economies in most African countries make it easy for corruption to flourish because most police and immigration officers occupy low-paying ranks, making them highly susceptible to bribery and other corrupt incentives.
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    Critical analysis of the SADC legal and policy framework for combating corruption in trafficking in persons
    (University of the Western Cape, 2017) Chimwaga, Juliet Cindy; Koen, Raymond
    The fight against human trafficking requires a broad range of approaches, including the eradication of crimes that facilitate trafficking of human beings. The idea of committing crimes within crimes is common in most national regimes just as it is in transnational and organised crimes. For instance, transnational crimes such as money laundering and human trafficking always are accompanied by various types of corruption such as petty, grand or bureaucratic corruption. As the Southern African Development Community (SADC) States Parties strengthen strategies to address human trafficking, the region continues to face an increase of trafficking of persons into Europe and Asia, as well as within Africa. There are various causes of human trafficking, such as poverty, hunger and deteriorating economies, as victims are promised luxurious lives in the countries to which they are trafficked. The poverty and stunted economies in most African countries make it easy for corruption to flourish because most police and immigration officers occupy low-paying ranks, making them highly susceptible to bribery and other corrupt incentives.
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    A critical assessment of the Ethiopian civil forfeiture law
    (University of the Western Cape, 2019) Tufa, Girma Gadisa; Koen, Raymond
    Economic crimes pose a serious problem to the international community as a whole. Crimes, such as corruption, money laundering, terrorist financing, cybercrime and drug trafficking constitute obstacles to the development of a country, the free flow of trade, the fair distribution of wealth and the well-being of all nations.1 Because of the systematic commission of these crimes and their far-reaching effects, it is necessary to fight them with all appropriate means. For instance, the global community already has agreed on the seriousness of the problems that corruption poses to the stability and security of every society.2 It has recognised the fact that corruption weakens the institutions and values of democracy, undermines ethical values and justice, and jeopardises sustainable development and the rule of law.3 Thus, its members have agreed to co-operate in tackling it.
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    A critical evaluation of the Zimbabwe Anti-Corruption Commission
    (University of the Western Cape, 2019) Matebwe, Annet Tanyaradzwa; Koen, Raymond
    Corruption generally is regarded as one of the most serious obstacles to development. It is endemic in many African countries and is being blamed increasingly for weak economic growth, high socio-economic inequalities and poverty. Zimbabwe, over the years, has experienced a surge in the level of corruption, increased state violence and a rapidly declining economy. The country has taken measures to try and curb corruption. At the centre of Zimbabwe’s anti-corruption efforts is the Zimbabwe Anti-Corruption Commission (ZACC). Its primary function is to combat corruption in the private and public sectors. It makes recommendations to the government and the private sector about increasing accountability, promoting integrity and preventing improprieties. It was established in 2005 in terms of Chapter 13, Part 1 of the Constitution of Zimbabwe and the Zimbabwe Anti- Corruption Commission Act of 2004. In addition to constitutional provisions that promote the fight against corruption, Zimbabwe is a signatory to many regional and international anti-corruption instruments. These include the Southern African Development Community Protocol against Corruption (SADC Protocol), which was signed in 2001 and ratified in 2003; the African Union Convention on Preventing and Combating Corruption (AU Convention), signed in 2003 and ratified in 2006; and the United Nations Convention against Corruption (UNCAC) of 2005, ratified in 2007.
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    A critical examination of the law relating to cyber-crime in Uganda
    (University of the Western Cape, 2019) Amanya, Timothy; Koen, Raymond
    Over the last two decades, the world has evolved to an e-era, wherein internet and other digital technologies have become key platforms for the world population, including Ugandans, to enjoy their rights of expression, to associate with other citizens and to engage with leaders. According to the Uganda Communications Commission, the number of internet users is growing steadily, standing at 13 023 114 as of March 2017 and encompassing 31.3% of the population. However, like other countries across the globe, Uganda is experiencing challenges to the advancement of privacy and freedom of expression online. According to the United Nations, these challenges affect how ordinary citizens, the media, human rights activists and political parties communicate via digital technologies. A key challenge is cybercrime. Ugandans lose colossal sums of money and even human life through cybercrime. The government of Uganda, in a bid to avert cybercrime, has enhanced cyber security, improved access to information and regulated telecommunications. They include the Anti- Terrorism Act of 2002, the National Information Technology Authority Uganda Act of 2009, the Regulation of Interception of Communications Act of 2010, the Electronic Signatures Act of 2011, the Computer Misuse Act of 2011, the Electronic Transactions Act of 2011, the Uganda Communications Act of 2013, the Anti-Pornography Act of 2014 and the Evidence Act Cap 6 of 1909.
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    Deploying transitional justice mechanisms as anti-corruption tools in Africa
    (University of the Western Cape, 2020) Duri, Jorum; Koen, Raymond
    This thesis advocates the expansion of the field of transitional justice to address corruption in African states emerging from conflict or authoritarianism. There is a close connection between corruption and conflict or repressive regimes in Africa. A good example is the Arab Spring of 2011, where citizens of Tunisia, Egypt and Libya protested against endemic corruption, leading to removal of despotic leaders from power. Dictators or conflicts tend to leave African states in situations where their coffers have been emptied corruptly and their citizens subjected to serious physical violence. What is more, corrupt and oppressive leaders use their ill-gotten assets to escape liability for their crimes. The evident link between the two forms of abuse makes it desirable to address them simultaneously when the dictatorship or conflict ends. Many African countries have deployed transitional justice mechanisms, such as criminal prosecutions, truth commissions, institutional reforms and reparations to address violations of civil and political rights. However, they have neglected corruption and other violations of social and economic rights, notwithstanding their crucial role in the violent past. Many countries still are haunted by the unresolved legacies of corruption and other socio-economic injustices. Recently, scholars and practitioners in the fields of transitional justice and anti-corruption have started to call for corruption and other socio-economic issues to be accommodated within transitional justice programmes. Problems encountered with the expansion of transitional justice mechanisms have not been worked out yet at the level of theory, policy and practice. This thesis subscribes to transformative justice theory as the most viable perspective from which to tackle corruption in transitional societies in Africa. Transformative justice theory is gaining increasing attention in the field of transitional justice, and it has been incorporated in the recent African Union Transitional Justice Policy. It champions locally driven mechanisms which reflect the needs of the victims and local communities, and which pursue socio-economic justice and transformation. The thesis argues that the current transitional justice mechanisms have the potential to become transformative and it will seek to answer how best each of these mechanisms may be implemented to address corruption. It is hoped that this thesis will assist in answering critical questions regarding the proximate relationship between corruption and violence, and in offering guidelines towards the total integration of an anti-corruption agenda into the field of transitional justice in Africa.
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    Exploring a sustainable anti-corruption regime for Tanzania
    (University of the Western Cape, 2017) Lukiko, Lukiko, Vedastus; Koen, Raymond
    Corruption is among the world's devastating social, economic and political problems. It is enormous to the extent that ''not one single country, anywhere in the world, is corruptionfree''. Its effects on the quality of life of billions of people around the world are widely acknowledged. Kofi Annan, former UN Secretary General, in his statement on the adoption of the United Nations Convention against Corruption (UNCAC), proclaimed that: Corruption is an insidious plague that has a wide range of corrosive effects on societies. It undermines democracy and the rule of law, leads to violations of human rights, distorts markets, erodes the quality of life, and allows organised crime, terrorism and other threats to human security to flourish. Corruption takes different forms depending on the time and the social, political and economic circumstances that create avenues for its occurrence. Consequently, scholars construe corruption from different viewpoints. On the one hand, post-colonialists and Marxists perceive corruption as a product of capitalist pursuit of profit and capital accumulation. On the other hand, liberal-rationalists and free-market economists define corruption by looking at its negative effects on development and economic sustainability. The argument is that corruption discourages foreign investment and allows public officials to siphon off resources for their private advantage, thereby defeating the public good. Despite the definitional and ideological differences found in literature, there is an agreement that corruption is a bad thing and should be fought vigorously.
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    Foreign aid and corruption in Zambia
    (University of the Western Cape, 2014) Banda, Tangu; Koen, Raymond
    This paper seeks to examine the relationship between foreign aid and corruption in Zambia. Drawing from the analysis of the two, it then explores whether the existing legal instruments are adequate and effective to combat corruption in the aid context.
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    Law and justice at the dawn of the 21st century: Essays in honour of Lovell Derek Fernandez
    (University of the Western Cape, 2016) Martin, Bernard; Koen, Raymond
    Essays in honour of Lovell Derek Fernandez, Lawyer, Linguist, Mensch