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Wednesday News Wall 06 April 2016

CORRUPTION

The use of shell companies is a thing of wonder in Kenya: the chairman of the Youth Enterprise Fund was allegedly paying himself while pretending to hire service providers for the Fund.

The Kenya Police Service regularly finds itself at the top of corruption rankings. But even Kenya’s crooked cops might chuckle at NYPD officers who allegedly took football tickets and paid holidays as bribes to do things like funeral escort services.

Were whistleblowers forced out for blowing the lid off corruption in an Australian firm?

There’s a lucrative career for ex-Mossad agents in spying on anti-corruption chiefs.

The good news: fighting bribery is on the agenda of 60% of CEOs- the bad news: fighting bribery is not on the agenda of 40% of CEOs.

This writer notes that it is not by accident that many of the top countries named in the Panama papers are also those that rank poorest when it comes to corruption.

The argument continues as to whether non-prosecution agreeements, deferred prosecution agreements and other forms of settlement are sufficient means of fighting graft.

Impunity has a hideous cost- because Mexicans are suspicious of their police force’s ability to enforce the law without corruption, they sometimes lynch suspects– 63 in 2015 alone. I wonder if anyone is keeping track of the number of people lynched in Kenya

CRIMINAL LAW

Balancing compassion with justice is a dilemma when it comes to HIV-positive persons who knowingly infect another with the virus. On the one hand, it can be incredibly difficult to reveal to a loved one that one has HIV, on the other you owe them a duty of care not to knowingly harm their health. Fear of the criminal consequences that knowledge brings may also deter some from getting tested.

Nonetheless, many countries (including Kenya) criminalise knowingly or intentionally infecting another with a serious disease. In Australia the test for the mental element of the offence is quite high- one must intend to transmit the disease, simply having foresight of the risk of infection (otherwise referred to as recklessness) is not enough. This led to the quashing of the conviction of a Zimbabwean acrobat and substitution of a conviction for a lower offence of causing grievous harm.

On the other side of the criminal scale are brutal crimes where its difficult to have compassion- such as these two girls who tortured and murdered a frail alcoholic and took selfies while doing so. They’ve been convicted of murder.

Given how critical absent witnesses turned out to be in the ICC Kenya cases, I was quite interested in a recent European Court of Human Rights decision that lays out the test for when inability to examine (and cross-examine) an absent witness is a violation of the right to fair trial. Here is a commentary on the decision.

This case is an example of what a blessing conspiracy-based convictions are to prosecutors- allowing a broad sweep-up of as many defendants as possible. It also allows prosecutors to capture a long course of conduct in service of the conspiracy in one indictment. Thus, 14 members of a gang were found guilty of a conspiracy to steal valuable museum artefacts from multiple museums (including several failed attempts).

Finally, making false bomb threats will soon be a crime in Maryland and could be prosecuted in the jurisdiction where the bomb (‘destructive device’) or toxic material was falsely claimed to be planted regardless of where the call or threat originated.

SENTENCING

One of the key issues in sentencing in corruption cases is calibrating the fines correctly so that they offer a maximum of deterrence and a minimum incentive to brush off the fine as a ‘cost of doing business’ while not being so harsh as to be disproportionate to the wrongdoing or disproportionate to sentences for other similar offences. Apparently Indonesia is getting the balance wrong, thereby leading to a situation where the taxpayer in effect subsidises corruption (and still has to pay for the entire anti-corruption enforcement system). Worse still those who benefited most from corruption seem to have received the lowest fines and penalties while those who benefitted least were punished hardest.

It then makes sense that some advocate against over-emphasising the conviction-based approach to combatting corruption.

MONEY LAUNDERING

Even prior to the Panama Papers, Switzerland was still a number 1 haven for Russians keen to stash loot abroad.

Leaders of European states and organisations have been galvanised into action (or at least into talking about acting) by the Panama papers. An aunt of the Spanish King has been named in the papers. This is a few months after the sister to the King appeared in court for unrelated tax fraud charges. And Lionel Messi who is a magician with the football but apparently not so magical when it comes to paying taxes.

 

 

 

 

A former Nigerian Senate President allegedly used fake names to launder billions of Naira. His personal assistant allegedly moved the money by breaking it down into smaller amounts of 600,000 and 900,000 Naira during transactions. The bank through which the transactions passed argues that it did its part by reporting the suspicious movements to the Nigerian Financial Intelligence Unit.

A Nigerian governor is also on trial for money laundering related charges.

Another lawyer charged with money laundering among other things.

Update 07/04/2016: the Director of Public Prosecutions has recommended prosecution of the governors of Machakos (for abuse of office) and Busia (for sending offensive text messages)

More from the OTP on the mistrial in the Ruto, Sang case:-

And more from the defence teams; Joshua arap Sang may appeal to seek a full acquittal:-

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