Browsing by Author "Koen, Raymond"
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Item All roads lead to property: Pashukanis, Christie and the Theory of Restorative Justice(North-West University, 2013) Koen, RaymondThe 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.Item 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, RaymondAlthough 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.Item Carpe Pecuniam: Criminal forfeiture of tainted legal fees(Pretoria University Law Press, 2020) Hamman, Abraham; Koen, RaymondA 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.Item A case for civil forfeiture in Ethiopia(University of the Western Cape, 2014) Gebremeskel, Saba Hailu; Koen, RaymondThis 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.Item Cave pecuniam: Lawyers as launderers(North-West University, 2012) Hamman, Abraham; Koen, RaymondIn 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.Item Civil recovery of corruptly acquired assets in Uganda(University of the Western Cape, 2014) Bogere, Philippa; Koen, RaymondItem Confronting corruption: past concerns, present challenges and future strategies(2017) Koen, RaymondThe 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.Item 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, RaymondThe 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.Item 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, RaymondThe 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.Item A critical assessment of the Ethiopian civil forfeiture law(University of the Western Cape, 2019) Tufa, Girma Gadisa; Koen, RaymondEconomic 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.Item A critical evaluation of the Zimbabwe Anti-Corruption Commission(University of the Western Cape, 2019) Matebwe, Annet Tanyaradzwa; Koen, RaymondCorruption 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.Item A critical examination of the law relating to cyber-crime in Uganda(University of the Western Cape, 2019) Amanya, Timothy; Koen, RaymondOver 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.Item Foreign aid and corruption in Zambia(University of the Western Cape, 2014) Banda, Tangu; Koen, RaymondThis 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.Item 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, RaymondEssays in honour of Lovell Derek Fernandez, Lawyer, Linguist, MenschItem The law of assets declaration in Malawi(University of the Western Cape, 2015) Chapita, Ellen Chiyamiko; Koen, RaymondItem The legal framework of illicit enrichment in Ethiopian anti-corruption law.(University of the Western Cape, 2012) Meskele, Mesay Tsegaye; Koen, RaymondCorrupt practices such as bribery and other abuses of public functions for private gain have been criminalised in almost all legal systems. Criminalisation of acts of corruption constitutes one of the major dimensions of the international anti-corruption instruments. The clandestine nature of corruption crimes creates difficulties in gathering evidence for prosecution and effective implementation of the law. To overcome such problems, some indicators of corruption such as possession of property that far exceeds legitimate sources of income need to be criminalised. It is also imperative to deal with the challenges associated with such criminalisation. This paper tries to analyse the challenges related to due process of law in the investigation and prosecution of illicit enrichment. Further, complexities associated with the process of recovering illicitly acquired assets, such as resources and expertise, as well as effective co-operation among various jurisdictions, need to be explored. Special consideration will be given to the criminalisation of illicit enrichment and its prosecution in the Ethiopian anti-corruption legal framework.Item Lobbying against democracy(University of the Western Cape, 2021) Kollmar, Laura; Koen, RaymondThis essay seeks to excavate the anti-democratic propensities of corporate lobbying. It begins by considering the nature of lobbying and then attempts to comprehend the relationship between corporate lobbying and democracy in terms of Crouch’s theory of post-democracy. The political culture of post-democracy is blatantly corporatist and promotes the anti-democratic proclivities of the corporate lobby by providing ready opportunities for non-transparent lobbying. Cohen-Eliya & Hammer classify non- transparent lobbying as an index of the failure of the democratic process. The essay applies the typology developed by them to Germany as a case study of anti-democratic corporate lobbying in action. It concludes by considering regulation and criminalisation as two possible remedies for the anti-democratic transgressions of non-transparent corporate lobbying. The former is explored by way of an analysis of the regulatory regimes of Germany and the USA; the latter by considering non-transparent corporate lobbying as a homologue of the crime of corruption.Item On the threshold of political corruption : the case against lobbying in Germany(University of the Western Cape, 2012) Kollmar, Laura; Koen, RaymondPolitical lobbying is a recent and widespread phenomenon that arises in countries where many big and economically important companies are located. It is a relatively new phenomenon and the term 'lobbying' has featured in political science literature only since the 1990s.¹ Lobbying groups are ubiquitous and are located in the centres of competence where political decision-making takes place.² One can distinguish two main aims of lobbying: lobbying for a government contract (Beschaffungslobbyismus) and lobbying with regard to laws (Gesetzeslobbyismus).³ The focus of this paper is on the latter. It is concerned to analyse how lobbyists influence the lawmaking process and what the consequences are for society. Lobbying is the influence on decision makers and decision-making processes through the provision of information.⁴ Politicians need information to contribute to ministerial or 1 parliamentary discussions and for their decisions in elections and votes. They often do not have the capacity to collect enough information. That is when the lobbying groups become important. They provide the politicians with information needed and thus ensure that their point of view ends up in the draft law and later in the law.⁵ There is also lobbying in the private sector. Representatives of the pharmaceutical industry, for instance, try to influence doctors by giving them free specimens and computer programmes, paying for education workshops and other benefits with the aim that the doctors prescribe the products of the pharmaceutical companies.⁶ To analyse this aspect of lobbying as well would exceed the scope of this paper and will not be attempted. An interesting aspect is that lobbying has become more integrated and international. Lobbyists do not work exclusively in their countries of origin. In the EU it is as important to lobby decision makers in the European institutions as to lobby them in the national institutions because a significant part of politics is decided now in Brussels.⁷ Furthermore, lobbyists from different countries meet to harmonise their lobbying strategies. In Brussels, for example, American and German lobbyists meet regarding restrictive export rules into the US and the EU. The American Chamber of Commerce (AMCHAM) is an American interest group that works in Brussels to ensure the effective representation of US businesses in Europe.⁸ Nevertheless, the national level remains important for lobbyists. The policy of the EU relies always on national policy and through the Council of Ministers - as the most powerful part of the EU - national interests are represented strongly in Brussels. Directives, moreover, have to be implemented on a national level. One can see that national lobbying is also an important tool to influence European policy.⁹ The scope of this paper, however, is to shed light on lobbying activities in the Federal Republic of Germany. Therefore, lobbying in the EU will play a lesser role.Item Pashukanis on crime and punishment(University of Pretoria, 2013) Koen, RaymondEvgeny Pashukanis deservedly is famous as the author of the so-called commodity form theory of law. In his Law and Marxism he postulated that the form of legal relations held the key to the Marxist critique of law and that, in turn, the key to comprehending the legal form lay in its relation to the commodity form. The crucial concept here is the principle of equivalence or the equality postulate, which Pashukanis classifies variously as the “first truly juridical idea”1 or the “juridical soul” of criminal proceedings. Just as commodity exchange pivots upon mutual recognition by commodity owners of one another as equals, so legal exchange stipulates reciprocal acceptance by legal subjects of one another as compeers. Indeed, juridification is the alter ego of commodification, in that the evolution of the legal form tracks the evolution of the commodity form. In a word, Pashukanis theorised the legal form as the homologue of the commodity form, with both delimited in terms of the principle of equivalence. Pashukanis made it clear always that the historical genesis of his general theory lay in private law, specifically the law of contract. It is the branch of law which is both the historical and logical repository of the notion of equivalence.3 By contrast, criminal justice appears to be far removed from the commodity form and the idea of equivalence. This article investigates the relationship between Pashukanism and criminal justice, attempting to prove that the private law derivation of the commodity form theory does not preclude its extrapolation to public law in general and to criminal law in particular. It seeks to convince that the disjunction between Pashukanism and criminal justice is more apparent than real. Pashukanis formulated the commodity form theory as a general theory of law, and the argument herein thus may be read as a defence of that generality.Item Pecunia non olet: dirty money as legal fees(Bellville: University of the Western Cape, 2017) Hamman, Abraham; Koen, RaymondIt is axiomatic that lawyers have to be paid for their services. Regrettably, lawyers who represent money launderers may be offered dirty money, that is, proceeds of crime as fee payments by their clients. This essay explores the question of such tainted legal fees in South Africa through an analysis of its anti-money laundering (AML) legislation. It then compares the South African position to the approaches taken in the USA and Canada. South African AML legislation criminalises tainted fees. The USA amended its AML legislation to decriminalise tainted fees. And tainted fees never have been criminalised in Canada. The South African approach threatens both the right of accused persons to legal representation and the right of lawyers to practise their profession. It is recommended that the South African AML statutes be amended to decriminalise tainted legal fees.