Tomb_of_Nakht_(2)

Wednesday News Wall 20 April 2016

CORRUPTION

Here is a thoughtful explanation of how the Procurement Act 2015 could help prevent the sort of corruption that led to the NYS and YEF procurement scandals.

While on the subject of procurement, this article discusses whether offering citizens a ‘bounty’ for unearthing corruption in government contracts could be a ‘no-lose’ situation. The US currently has such a scheme under the American False Claims Act which allows private citizens to sue if they believe a company is defrauding the government. In return the citizen (if she wins) collects between 15 to 30% of the damages due to the government.

Dilma Rousseff, Brazil’s embattled President lost a key impeachment vote in the lower house of Brazil’s congress. Corruption scandals and allegations of breaching ethical accounting principles in government finances have combined with a struggling economy to bring her low.

The Rio Olympics may also be tainted by the Brazilian scandals.

However, some think that the convictions of powerful Brazilian politicians and business leaders may send a powerful message of general deterrence since such convictions are rare in Brazil.

 

 

 

Finally, Papua New Guinea’s Prime Minister is in the midst of a corruption scandal, so it seems fitting that when an anti-corruption squad was zeroing in on him, it was promptly suspended, reinstated then locked out of its own offices. Why? Because that’s how any self-respecting politician would react to a corruption scandal.

CRIMINAL LAW

Hurray! The loathed offence of ‘improper use of a telecommunications system’ has been declared unconstitutional. Thank you Justice Ngugi giving us for this timely piece of jurisprudence. And thank you Geoffrey Andare for taking the battle to the courts- and winning. However, the decision is still subject to a possible appeal so this tempers the celebration. I’ll try and blog more about the decision (once it comes out) and the reasons why this offence was obnoxious to the constitution, the rule of law and basic principles of criminal law.

There’s a plot afoot to give the Deputy President immunity from criminal prosecution while in office (what international lawyers call personal immunity). Currently only the President has such immunity while in office. But neither President nor Deputy has such immunity when it comes to international crimes. There’s more on the side-effects of such immunity in other countries in the section below on money laundering.

While on the subject of encouraging impunity, the ICC pointed out that Kenya faces possible penalties for failing to cooperate with the court on the surrender of 3 men- Walter Barasa, Paul Gicheru, Phillip Bett- wanted for witness interference.

When should kids be criminally liable? And when should they be liable for the conduct of others? Incredibly a number of children between 8-11 were arrested in Tennessee for failing to stop a fight amongst their peers. The offence alleged is ‘criminal responsibility for the conduct of another’. The article gives useful background as to why this is bad law and bad law enforcement. In Kenya the minimum age for criminal responsibility is 8 but where a child is under 12, the prosecutor must prove that at the time of doing the act or making the omission, the child had capacity to know that he ought not to do the act or make the omission (in other words, had the capacity to know that what he was doing was wrong).

Bitcoin could get a lot more illegal in Russia with the proposed introduction of an offence of “illegal issuance and circulation of cryptocurrencies”. The chief problem that the offence tries to address seems to be anonymity, crypto’s possible destabilisation of the economy and the fear that crypto may be used to finance terrorism. Interestingly, from the text that I saw, it seems that mere possession is not explicitly prohibited.

Are cyber operations interventions that constitute a violation of the UN Charter prohibitions on unlawful interventions and use of force? Or is there a dangerous legal gap?

Here is a look at the ethical sources of war crimes laws.

Indian law criminalises violence within a marriage (under the Domestic Violence Act) but not marital rape. And before you laugh at India, remember that Kenya has a similar loophole in its Sexual Offences Act that makes it tough to prosecute rapist husbands. Yet we too passed the Protection against Domestic Violence Act 2015 with a straight face.

While on the subject of violence against women, remember the Pinoy Judge Dredd Rodrigo Duterte? He made some…peculiar comments about gang rape and nuns that have sparked anger while coincidentally raising his visibility.

Remember my post on the comedian who got under Recep Tayepp Erdogan’s paper-thin skin? This case could eventually move to the German Constitutional Court according to a German media lawyer.

SENTENCING

I’m a big fan of reducing the prison population through innovative community-based punishments. So hearing that a UK man who urinated on a war memorial (the Manchester Cenotaph) has been sentenced to 200 hours cleaning war memorials across the Manchester City sounds like a win-win. Think of the cost of imprisoning, feeding, clothing and sheltering someone who urinated on a Mau Mau memorial like the Dedan Kimathi statue in Nairobi vs. the cost + benefit of the city council supervising that same person (or a group of offenders) while they clean all the memorials in Nairobi (and you’d be surprised at how many memorials there are). Not to mention that the punishment fits the crime.

The Panama leaks contained over 11.5 million documents; we still don’t know who leaked them. So its sobering to consider that selling 150,000 state documents was enough to get Huang Yu a death sentence in China. While the two situations are not analogous (there’s no evidence that the Panama leaks contain state information or that there was a corrupt purpose or intent), it does show the risk whistleblowers take world over.

Here is a sobering reminder that a quashed conviction is not the same thing as a finding of innocence. A man whose conviction for assaulting his daughter when she was a baby was quashed went on to kill her six years later.

MONEY LAUNDERING

According to this article, there is value in earlier engagement of forfeiture and more formal measures of success in depriving criminals of the proceeds of crime.

The sister to criminal forfeiture, civil forfeiture, is being questioned in the US; this article asks whether it is right for the government to seize assets without a conviction and whether the power is being abused by law enforcement.

The first lady of Peru, Nadine Heredia, is under suspicion for money laundering. A former president Alberto Fujimori was convicted of crimes including enforced disappearances and other crimes against humanity as well as corruption (his voyeuristic intelligence chief enjoyed videotaping politicians, editors and judges to whom he gave bribes on behalf of Fujimori). This Peruvian urge to collect self-incriminating evidence also hurt Nadine Heredia- she had set out the various payments and money transfers in her notebooks detailing sources of campaign financing.

Incidentally Fujimori’s daughter, Keiko, is a strong contender to be the next president. I hope the apple fell far from the tree.

While on the topic of first families, the former President of Romania, Traian Basescu, is also under investigation for money laundering. Add that to former Brazilian President Lula da Silva and his family’s alleged involvement in laundering and you begin to see a pattern of political crimes only being investigated after incumbency (when the personal immunity that William Ruto wants badly ends).

 

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