Combating corruption while respecting human rights : a critical study of the non-conviction based assets recovery mechanism in Kenya and South Africa
- Authors: Obura, Ken Otieno
- Date: 2014
- Subjects: Human rights -- Kenya , Human rights -- South Africa , Corruption -- Kenya , Corruption -- South Africa , Reparation (Criminal justice) -- Kenya , Reparation (Criminal justice) -- South Africa , Political corruption -- Kenya , Political corruption -- South Africa , Corruption investigation -- Kenya , Corruption investigation -- South Africa
- Language: English
- Type: Thesis , Doctoral , PhD
- Identifier: vital:3719 , http://hdl.handle.net/10962/d1013159
- Description: The thesis contributes to the search for sound anti-corruption laws and practices that are effective and fair. It argues for the respect for human rights in the crafting and implementation of anti-corruption laws as a requisite for successful control of corruption. The basis for this argument is threefold: First, human rights provide a framework for checking against abuse of state’s police power, an abuse which if allowed to take root, would make the fight against corruption lose its legitimacy in the eye of the people. Second, human rights ensure that the interest of individuals is catered for in the crafting of anti-corruption laws and practices thereby denying perpetrators of corruption legal excuses that can be exploited to delay or frustrate corruption cases in the courts of law. Third, human rights provide a useful framework for balancing competing interests in the area of corruption control – it enables society to craft measures that fulfils the public interest in the eradication of corruption while concomitantly assuring the competing public interest in the protection of individual members’ liberties – a condition that is necessary if the support of the holders of these competing interests is to be enlisted and fostered in the fight against corruption. The thesis focuses on the study of the non-conviction based assets recovery mechanism, a mechanism that allows the state to apply a procedure lacking in criminal law safeguards to address criminal behaviour. The mechanism is thus beset with avenues for abuse, which if unchecked could have debilitating effects not only to individual liberties but also to the long term legitimacy of the fight against corruption. In this regard, the thesis examines how the human rights framework has been used in Kenya and South Africa to check on the potential dangers of the non-conviction based mechanism and to provide for a proportional balance between the imperative of corruption control and the guarantee against arbitrary deprivation of property. The aim is to unravel the benefits of respecting human rights in the fight against corruption in general and in the non-conviction based assets recovery in particular. Kenya and South Africa are chosen for study because they provide two models of non-conviction based mechanisms with different levels of safeguards, for comparative consideration.
- Full Text:
- Date Issued: 2014
- Authors: Obura, Ken Otieno
- Date: 2014
- Subjects: Human rights -- Kenya , Human rights -- South Africa , Corruption -- Kenya , Corruption -- South Africa , Reparation (Criminal justice) -- Kenya , Reparation (Criminal justice) -- South Africa , Political corruption -- Kenya , Political corruption -- South Africa , Corruption investigation -- Kenya , Corruption investigation -- South Africa
- Language: English
- Type: Thesis , Doctoral , PhD
- Identifier: vital:3719 , http://hdl.handle.net/10962/d1013159
- Description: The thesis contributes to the search for sound anti-corruption laws and practices that are effective and fair. It argues for the respect for human rights in the crafting and implementation of anti-corruption laws as a requisite for successful control of corruption. The basis for this argument is threefold: First, human rights provide a framework for checking against abuse of state’s police power, an abuse which if allowed to take root, would make the fight against corruption lose its legitimacy in the eye of the people. Second, human rights ensure that the interest of individuals is catered for in the crafting of anti-corruption laws and practices thereby denying perpetrators of corruption legal excuses that can be exploited to delay or frustrate corruption cases in the courts of law. Third, human rights provide a useful framework for balancing competing interests in the area of corruption control – it enables society to craft measures that fulfils the public interest in the eradication of corruption while concomitantly assuring the competing public interest in the protection of individual members’ liberties – a condition that is necessary if the support of the holders of these competing interests is to be enlisted and fostered in the fight against corruption. The thesis focuses on the study of the non-conviction based assets recovery mechanism, a mechanism that allows the state to apply a procedure lacking in criminal law safeguards to address criminal behaviour. The mechanism is thus beset with avenues for abuse, which if unchecked could have debilitating effects not only to individual liberties but also to the long term legitimacy of the fight against corruption. In this regard, the thesis examines how the human rights framework has been used in Kenya and South Africa to check on the potential dangers of the non-conviction based mechanism and to provide for a proportional balance between the imperative of corruption control and the guarantee against arbitrary deprivation of property. The aim is to unravel the benefits of respecting human rights in the fight against corruption in general and in the non-conviction based assets recovery in particular. Kenya and South Africa are chosen for study because they provide two models of non-conviction based mechanisms with different levels of safeguards, for comparative consideration.
- Full Text:
- Date Issued: 2014
The war againts organised crime: a critical assessment of South African asset forfeiture law and its impact on redress for victims of crime
- Ndzengu, Nkululeko Christopher
- Authors: Ndzengu, Nkululeko Christopher
- Date: 2009
- Subjects: Forfeiture -- South Africa , Organized crime , Victims of crimes -- Legal status, laws, etc. -- South Africa , Reparation (Criminal justice) -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10173 , http://hdl.handle.net/10948/905 , Forfeiture -- South Africa , Organized crime , Victims of crimes -- Legal status, laws, etc. -- South Africa , Reparation (Criminal justice) -- South Africa
- Description: This research will be undertaken in the field of both criminal and civil law with particular focus on international interventions in the fight against organized criminal activities, assets forfeitsure in South Africa in general and its treatment of victims of the underlying forfeitsure crimes ("the victims") in assert forfeitsure, more specifically.
- Full Text: false
- Date Issued: 2009
- Authors: Ndzengu, Nkululeko Christopher
- Date: 2009
- Subjects: Forfeiture -- South Africa , Organized crime , Victims of crimes -- Legal status, laws, etc. -- South Africa , Reparation (Criminal justice) -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:10173 , http://hdl.handle.net/10948/905 , Forfeiture -- South Africa , Organized crime , Victims of crimes -- Legal status, laws, etc. -- South Africa , Reparation (Criminal justice) -- South Africa
- Description: This research will be undertaken in the field of both criminal and civil law with particular focus on international interventions in the fight against organized criminal activities, assets forfeitsure in South Africa in general and its treatment of victims of the underlying forfeitsure crimes ("the victims") in assert forfeitsure, more specifically.
- Full Text: false
- Date Issued: 2009
Redress for victims of crime in South Africa: a comparison with selected Commonwealth jurisdictions
- Von Bonde, Johannes Christian
- Authors: Von Bonde, Johannes Christian
- Date: 2006
- Subjects: Victims of crimes -- Legal status, laws, etc. -- South Africa , Reparation (Criminal justice) -- South Africa
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: vital:10268 , http://hdl.handle.net/10948/640 , Victims of crimes -- Legal status, laws, etc. -- South Africa , Reparation (Criminal justice) -- South Africa
- Description: In terms of the Constitution every person has the right to freedom and security of the person. This includes the right to be free from all forms of violence from either public or private sources. The state is charged with the duty to protect the individual from such harm. While the Constitution refers to the protection of victims of crime in broad and general terms without indicating how these rights should be protected, it makes meticulous and detailed provision for the rights of arrested, detained and accused persons. This leads to the popular belief that the Constitution protects the criminal and not the victim, engendering public dissatisfaction with the status quo, which is amplified by the fact that South Africa’s current legal dispensation for victims of crime does not embody the requirements of ubuntu and African customary law, which the Constitution declares to be binding on South African courts. This study analyses the means that exist in South African law for the victim of crime to obtain redress for criminal acts and proposes effective avenues through which victims can obtain redress, should the existing machinery prove to be inadequate. The term restitution is used to indicate recompense obtained from the perpetrator, while the term compensation refers to recompense obtained from the state. A comparative study is conducted to ascertain how the legal position of victims of crime in South Africa compares with that of victims of crime in Great Britain, India and New Zealand, respectively. South Africa does not have a state-funded victim compensation scheme such as those which exist in most developed countries. The respective proposals of the South African Law Commission for a victim compensation scheme and revised legislation to deal with offender/victim restitution are considered critically, inter alia, in the light of the findings of the comparative study. Proposals are made regarding changes to the South African legal system to bring it in line with international developments regarding restitution and compensation to victims of crime, attention being given to the meaning, significance and implementation of the doctrine of restorative justice when dealing with the aftermath of criminal injury. In addition to a complete revision of South African legislation dealing with offender/victim restitution, this study recommends the consolidation of the Road Accident Fund and the Compensation Fund operating in terms of the Compensation for Occupational Injuries and Diseases Act. These two bodies should be amalgamated to create a unified Compensation Scheme to compensate victims of crime, as well as victims of traffic and industrial injuries. General qualifying criteria for claimants would be drafted, with specific criteria applying in cases of traffic, industrial and crime related injuries, respectively.
- Full Text:
- Date Issued: 2006
- Authors: Von Bonde, Johannes Christian
- Date: 2006
- Subjects: Victims of crimes -- Legal status, laws, etc. -- South Africa , Reparation (Criminal justice) -- South Africa
- Language: English
- Type: Thesis , Doctoral , LLD
- Identifier: vital:10268 , http://hdl.handle.net/10948/640 , Victims of crimes -- Legal status, laws, etc. -- South Africa , Reparation (Criminal justice) -- South Africa
- Description: In terms of the Constitution every person has the right to freedom and security of the person. This includes the right to be free from all forms of violence from either public or private sources. The state is charged with the duty to protect the individual from such harm. While the Constitution refers to the protection of victims of crime in broad and general terms without indicating how these rights should be protected, it makes meticulous and detailed provision for the rights of arrested, detained and accused persons. This leads to the popular belief that the Constitution protects the criminal and not the victim, engendering public dissatisfaction with the status quo, which is amplified by the fact that South Africa’s current legal dispensation for victims of crime does not embody the requirements of ubuntu and African customary law, which the Constitution declares to be binding on South African courts. This study analyses the means that exist in South African law for the victim of crime to obtain redress for criminal acts and proposes effective avenues through which victims can obtain redress, should the existing machinery prove to be inadequate. The term restitution is used to indicate recompense obtained from the perpetrator, while the term compensation refers to recompense obtained from the state. A comparative study is conducted to ascertain how the legal position of victims of crime in South Africa compares with that of victims of crime in Great Britain, India and New Zealand, respectively. South Africa does not have a state-funded victim compensation scheme such as those which exist in most developed countries. The respective proposals of the South African Law Commission for a victim compensation scheme and revised legislation to deal with offender/victim restitution are considered critically, inter alia, in the light of the findings of the comparative study. Proposals are made regarding changes to the South African legal system to bring it in line with international developments regarding restitution and compensation to victims of crime, attention being given to the meaning, significance and implementation of the doctrine of restorative justice when dealing with the aftermath of criminal injury. In addition to a complete revision of South African legislation dealing with offender/victim restitution, this study recommends the consolidation of the Road Accident Fund and the Compensation Fund operating in terms of the Compensation for Occupational Injuries and Diseases Act. These two bodies should be amalgamated to create a unified Compensation Scheme to compensate victims of crime, as well as victims of traffic and industrial injuries. General qualifying criteria for claimants would be drafted, with specific criteria applying in cases of traffic, industrial and crime related injuries, respectively.
- Full Text:
- Date Issued: 2006
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