Search results

The purpose of this paper is to evaluate the role of customs and morality on financial crime control in developing countries, against the background of inherited foreign laws and international best practice.

The research is explanatory, descriptive and exploratory, relying extensively on existing anti-graft journals, text books, decided cases, constitutional provisions, statutory provisions and United Nation Conventions.

The research findings and analysis propose that the existing financial crime control measures in developing nations fail to consider local customs and circumstances in formulating anti-corruption policies and laws; consequently, a meaningful and effective financial crime control in developing nations, especially in Nigeria, requires the customs and culture to be examined and evaluated with a view to designing a pragmatic policies and laws.

The paper contributes practical options to observed lapses in the existing financial control laws, especially corruption. The paper will be valuable to African Governments, corporations and the academic community.

Torture has been practiced for millennia, albeit the means, rationales, and objectives have changed. (For an extended discussion of torture's past, see Hajjar, 2009.) Starting in the 12th century, the rediscovery of Roman law in western Europe revived torture as an aspect of criminal legal processes, both ecclesiastical and secular. According to Edward Peters (1996, p. 41), “the inquisitorial procedure displaced the older accusatorial procedure. Instead of the confirmed and verified freeman's oath, confession was elevated to the top of the hierarchy of proofs…[T]he place of confession in legal procedure…explains the reappearance of torture in medieval and early modern law.”

In England and Wales the Crown Prosecutor is a lawyer who is independent from the investigation and is charged with assessing evidence and evaluating whether a prosecution should proceed or not. The CPS is intentionally authorised to override the decisions of the police to curb any potentially over‐zealous investigations and evidence gathering that might subsequently tarnish the standards of procedure in the courts when applying the criminal law. The increasingly burdensome rules of disclosure have made demands on the CPS which are akin to the overall requirement on the investigating magistrate of civil law jurisdictions to find the truth by examination of the prosecution and defence evidence. The recent moves to return a limited number of lawyers to police stations is a further indication that the future role of the CPS may include an active rather than solely passive role in evidence gathering. The Serious Fraud Office are directly involved in the investigation and prosecution of complex frauds. This office has statutory and judicial authority to conduct investigations which follow an inquisitorial rather than accusatorial model. The juge d'instruction in France has authority to direct and control police investigations and subsequently to compile a dossier of evidence for presentation before a trial court. This paper points out that there are close parallels emerging in pre‐trial procedures in England and Wales and in France and the criticisms of the role of the investigating magistrate, the ‘sick man’, may hold lessons to be learnt for investigators and prosecutors within this jurisdiction.

It has become increasingly popular and fashionable in Nigeria to enact penal laws which regulate and impinge on business activities. Although scattered corruption and economic crime provisions are found in some of the pre‐1980 statutes, the new phenomenon of enforcing economic regulations through the criminal law instrumentality in Nigeria attained great visibility from about 1984 and has become firmly entrenched in the last eight years.

The privilege against self‐incrimination was invented by judges in 1645 to curb the excesses of their colleagues in the Court of Star Chamber. Since then, it has become embedded in the common Law with no specific legislative imprimatur. It has also been held to be an implied right under the European Convention on Human Rights (ECHR) which is yet another development of the privilege that has not been democratically sanctioned. By comparison, the privilege against self‐discrimination is an express right under the Fifth Amendment in the American Constitution.

This case arose out of the criminal trial in 1990 of Mr Ernest Saunders, the former chief executive of Guinness plc, on charges of conspiracy, theft and false accounting for his role in the unlawful share support operation conducted by Guinness plc during the course of its 1986 contested takeover bid for Distillers plc.

The Drug Offences (Forfeiture of Proceeds) Act (the Act) was passed in 1994 by the Jamaican Parliament in fulfilment of its obligations under the 1988 Convention Against the Illicit Traffic in Drugs and Psychotropic Substances. The purpose of the Act is to enable the state to forfeit the proceeds, instrumentalities used to commit as well as any benefit derived from the commission of drug trafficking offences. Under the Act drug traffickers can be deprived of their criminally acquired property and also any property used in the commission of drug trafficking offences can be forfeited even if the property does not belong to the convicted person.

In a country where judicial institutions are known to be inefficient and where activists have traditionally not engaged in legal mobilization, what explains the emergence of NGO strategic litigation? The author argues that a change in the legal opportunity structure impacts how activists interact with the legal system. Comparing two states in Mexico, the author demonstrates that the introduction of private prosecution rights opened the door for activists to litigate femicide cases. The emergence of strategic litigation has helped improve compliance with international human rights law and has had a demonstration effect on how to use the law to press for accountability.

South Africa’s mixed, pluralistic legal order demands a nuanced approach to cultural expertise in litigation. Culture in general and cultural expertise in particular have always played an important role in all areas of law, both state and non-state, and a rich collection of jurisprudence is available to serve as illustration. Even though both the common law and the customary law are both recognized legal systems, they are treated differently by the judiciary. The general rule is that judicial notice must be taken of the common law rules and that judicial notice of customary law may only be taken “in so far as such law can be ascertained readily and with sufficient certainty.” The ascertainment of customary law provides a challenge to the judiciary because of its adaptive inherent flexibility and indeterminate nature, especially where the rules are oral or so-called “living” customary law. Cultural expertise also plays an important role in the case of non-state law. A considerable quantity of case law exists where the courts have considered expert evidence regarding the content of certain religious legal systems to provide protection to litigants claiming that they are subject to those systems. The aim of this contribution is to investigate the diverse approaches of the South African courts when it comes to the admissibility of expert evidence in cases where culture (both custom and religion in both state and non-state law) is relevant. The fact that the South African legal system has its roots firmly in Western law and has been confronted with cultural diversity for a very long time might provide some lessons to the Western world, even if those lessons are only to prevent it from making the same mistakes as the South African legal system has made or might still be doing.

Some of the Sustainable Development Goals (SDGs) adopted by the United Nations (UN) General Assembly are related to violence, crime and crime control issues. In what seems to be an innovative approach, the so-called ‘international community’ has seemed to reach the commonsensical agreement that, in order to enjoy sustainable development and strengthen the capabilities, well-being and freedom of the citizens of the global south, their governments must reduce violence and crime (SDG 16.1). The SDGs also seem to provide the response to tackle crime and violence in the global south. SDG 16.3 aims at ‘promoting the rule of Law at the national and international level and ensuring equal access to justice for all’. Thus, the promotion of the rule of law has commonly been understood as the strengthening of the criminal justice system and State security forces to reduce crime and impunity in the global south. Focussing on Latin America, this article will critically discuss the problematic presuppositions and implications of such a paradigm, which tends to impose, reproduce and legitimise the particular worldviews of global north countries and institutions. This approach is counterproductive, for it does not acknowledge the particularities and historical trajectories of Latin American countries, while naturalising specific global north political, economic and truth regimes.