Magister Legum - LLM (Criminal Justice and Procedure)
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Item Access to HIV treatment for refugees : case study of South Africa and Uganda(University of the Western Cape, 2015) Njiba, Jessica Tshiosha; Durojaye, EItem Accountability for ISIS atrocities : is the International Criminal Court a viable prosecutorial option?(University of the Western Cape, 2016) Dale, Adi Dekebo; Werle, GerhardThe Islamic State of Iraq and the Levant is a jihadist militant group. The members of this militant group have committed criminal acts of unspeakable cruelty. These staggering criminal conducts are documented by the United Nations, international human rights organisations, and media. Besides, the group itself gives first-hand information through social media and its magazine. Having witnessed the atrocities committed by Islamic State of Iraq and the Levant, the United Nations Security Council affirmed that the Islamic State of Iraq and the Levant’s conduct in Syria and Iraq is a threat to international peace and security. Therefore, the media and various role players have called for the intervention of International Criminal Court. This research paper analyses whether the International Criminal Court is a viable prosecutorial option to account the Islamic State of Iraq and the Levant members for their crimes. For the Court to be a viable prosecutorial avenue, it must have a jurisdiction. Accordingly, this research paper critically examines whether the International Criminal Court has subject matter, personal and/or territorial jurisdictions to try the Islamic State of Iraq and the Levant perpetrators. The study concludes that although the criminal conducts by Islamic State of Iraq and the Levant members constitute crimes under the Rome Statute, the Court, however, has limited jurisdictional reach over the perpetrators. It is submitted that with a limited and fragmented territorial and personal jurisdictional reach over the perpetrators, the Court is not a viable prosecutorial avenue.Item Adopting memory and truth as non-judicial approaches to transitional justice in Cameroon(University of the Western Cape, 2023) Ewi, Gilbert Bua; Mark Iyi, JohnThe right to an effective remedy for victims of mass atrocities and the massive human rights abuses perpetrated in intra-state conflicts remains weak in international law. This is more so when such conflicts involve a ruling government and a section of its population. A host of substantive and procedural legal issues prevent victims from being able to seek redress in national and international courts. This problem is particularly acute where victims seek redress for the abuses perpetrated by the regime’s military and other paramilitary forces in connivance with law enforcement personnel, loyal to the regime in power. The nature of these conflicts, full of the regime’s absolute power over the judiciary, the paramilitary and military forces, the gendarmerie and the police force, makes it difficult to hold the regime accountable for such human rights abuses. This doctrinal research seeks to critically examine and assess other transitional justice measures and then ascertain the effectiveness of the non-judicial mechanisms of memory and truth in a bid to achieve sustainable peace and reconciliation in the conflict-torn state of Cameroon. The research seeks to examine the parameters of an effective remedy under international law and then proceeds to assess the concept of memory and truth as a transitional justice mechanism offering human rights-compliant remedies geared towards achieving sustainable peace when deployed in the Cameroonian conflict.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 Anti-corruption Division of the High Court of Uganda(University of the Western Cape, 2015) Nanyunja, Brenda; Koen, R.AItem An analysis of the challenges in curbing and combatting Covid-19 related money laundering threats and vulnerabilities in South Africa(University of the Western Cape, 2022) Wesso, Coleta Janine; Hamman, AbrahamEarth is confirmed to be the only planet in the entire known universe perfectly located and resourced to host earthly life as we know it.1 It is indeed a phenomenon to behold. South Africa, often referred to as the Rainbow Nation, certainly speaks to this phenomenon. The country is granted miraculous landmarks, tourist attractions, lush vegetation, platinum metals, gold,2 cultural diversity and beautiful citizens.3 Cape Town, the capital city of the Western Cape Province and also the legislative capital of South Africa,4 is in fact named the third greatest city on earth because of its, amongst other aspects, outstanding topography and geography.5 It is, however, incontestably and unfortunately so that with this said splendour, detriment also resides.Item An analysis of the challenges presented to witness protection in combating money laundering in South Africa(University of the Western Cape, 2022) Makhubele, Ethel Fikile; Albertus, ChesneThe United Nations Asia and Far East Institute (‘UNAFEI’) and the Department of Justice of the Republic of the Philippines held the Fourth Regional Seminar on Good Governance For South East Asian Countries from 6-9 December 2010.1 During that seminar, Haruhiko Ukawa, the Deputy Director of UNAFEI, stated in his introductory remarks that to detect, investigate, and prosecute illegal activities and find offenders guilty, the criminal justice systems depend largely on witnesses’ testimony. Consequently, it is important for witnesses to testify without fear to ensure the criminal justice system operates properly and achieves their goals.2 At the outset, however, it ought to be borne in mind that with many financial crimes, more particularly the crime of money laundering, witnesses are often reluctant to testify. The prosecution for such crimes is thus not easily achieved, and conviction rates may be negatively affected.Item 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 South African legal framework applicable to the arrest and detention of immigrants due to their illegal status(University of the Western Cape, 2022) Sango, Nomzamo Wendy; Albertus, ChesneThe word ‘immigration’ is derived from the word ‘immigrant’ and denotes the act of a foreign national person entering a country to attain permanent residence.1 The correlative term ‘emigration’ denotes the act of such persons leaving their former or home country.2 Despite these clear terms, there are unfortunately, some South Africans who use derogatory terms such as ‘amakwerekwere’ towards immigrants to indicate ‘other’, and they do so frequently.3 Persons who use these terms in reference to foreign nationals usually do so irrespective of the person’s actual legal status in the country.Item An analysis of the South African legislative framework for the reintegration of sentenced adult male offenders.(University of the Western Cape, 2019) Mills, Moses Norman; Albertus, ChesneSouth Africa has one of the highest crime rates in the world. The state aims to reduce the prevalence of crime mainly by sentencing offenders to imprisonment. In turn the goal of imprisonment is to rehabilitate offenders so that they can refrain from reoffending and be reintegrated into society. Unfortunately, due to various factors which exist inside and outside of prisons, rehabilitation and reintegration is difficult to achieve. The study unpacks the perennial question of whether or not the state has a legal duty to reintegrate offenders into society. This question looms particularly, during the post-release phase of offenders’ life. Preliminary indications are that the state currently views reintegration as a ‘societal responsibility.’ This study intends to determine whether or not the state has a legal duty to reintegrate offenders and provide them with support even after their release from imprisonment.Item 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 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 Assets declarations by public officers in Zimbabwe as an anti-corruption tool(University of the Western Cape, 2016) Duri, Jorum; Koen, R.Zimbabwe is regarded as one of the most corrupt countries on the African continent. The absence of an assets declaration regime in Zimbabwe has made it difficult to hold accountable public officers implicated in corruption and found in possession of unexplained assets. Corruption by public officers is hard to detect and prove, especially when there are no measures to ensure official acknowledgement of their assets. This paper confronts an important gap in the anti-corruption laws of Zimbabwe. It examines the importance of assets declarations as a tool to fight corruption by public officers in Zimbabwe. In doing so, it will deal also with the main elements of an assets declaration regime for Zimbabwe. Finally, the research provides recommendations on how Zimbabwe can establish an effective assets declaration system to ensure transparency, accountability and openness in the public sector.Item The balancing of competing rights : the right to disclosure at the International Criminal Court(University of the Western Cape, 2015) Mwale, Brenda; Werle, GerhardIt is trite law that an accused person has the right to have adequate time and facilities to prepare his defence. This is one of the fundamental ingredients for a fair trial well-established in both domestic and international law. One specific requirement that emanates from fair trial guarantees is the right to disclosure of evidence. In this regard, the Rome Statute places an obligation on the prosecution to disclose material within its possession to facilitate the effective and timely preparation of the defence case. However, disclosure has been one of the most contentious procedural issues in the International Criminal Court (ICC).