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PARLIAMENTARY OVERSIGHT OF EXTRACTIVE INDUSTRIES

Africa has experienced a boom in extractive industries since the beginning of this century. Extractive companies often are exposed not just to government patronage, but also to requests to consider local third-party agents, vendors or applications for employment. But is corruption a necessary evil? While there is consensus that multi-faceted strategies are required to curb corruption, heretofore there has been little research on how legislative oversight can help reduce corruption in general and on legislative oversight of corruption in the extractive sector in particular.

 

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A SURVEY OF CORRUPTION AND ANTI-CORRUPTION INITIATIVES IN AFRICA

Corruption has blighted national economies in Africa. Although most African states have subscribed to and ratified international and regional anti-corruption conventions, corruption continues unabated. Failure to incorporate treaty provisions into national law is one of the barriers to combating corruption effectively. The devastating impact of this economic crime on the lives of vulnerable groups has prompted the emergence of self-help groups intent on tackling corruption frontally. These initiatives hold much promise. However, corruption emanating from the private sector and multinational companies poses a veritable challenge that needs to be overcome.

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IS IT CYBERFRAUD OR GOOD OL’ OFFLINE FRAUD? A LOOK AT SECTION 8 OF THE SOUTH AFRICAN CYBERCRIMES BILL

This paper discusses section 8 of the South African Cybercrimes and Cybersecurity Bill, a section which deals with the crime of cyberfraud. It argues that there are certain fraudulent acts which have been presented incorrectly as examples of cyberfraud when they are classified better as ordinary offline fraud. The mere presence of an internet element in the commission of a fraud crime is not enough to elevate the crime to cyberfraud status. Therefore, for an act to be called a cyberfraud crime, it must meet the minimum requirement of being a computer-dependent crime rather than being merely a computer-enabled crime.

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DRIVEN OUT OF PARADISE: ILLICIT FINANCIAL FLOWS AND OFFSHORE LEAKS

Illicit financial flows and recent offshore leaks constitute the topic of this article. As regards illicit financial flows, the focus is on two countries: Switzerland as an example of a country from the North, and South Africa as an example of a country from the South. The text is structured as follows. First, the concept and scale of illicit financial flows are discussed, as well as the problems related to them. Thereafter, illicit financial flows and their impact are examined from a North-South perspective. The next part looks at the responsibilities and strategies of countries of the North and of the South when it comes to tackling illicit financial flows. Finally, the role of offshore financial centres and selected issues arising from recent offshore leaks are addressed. The conclusion then tries to pull the threads of the discussion together.

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CORRUPTION IN THE NEW PUBLIC PROCUREMENT REGIME IN NIGERIA

This paper examines the causes of corruption in the new Nigerian public procurement policy and practice. It finds that certain notable factors give rise to the persistence of corruption in the country’s procurement sphere. These factors include the following: collusion between public procurement officials and contractors; inadequacies in the Public Procurement Act of 2007 and the compromising of the procurement regulatory framework; government’s partial implementation of and non-compliance with the Public Procurement Act; and political interference and nepotism.

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ABUSING THE ACCUSED? UNPACKING THE USE OF ENTRAPMENT IN UGANDA’S FIGHT AGAINST CORRUPTION

In Uganda, an accused person enjoys a right to a fair trial. It is a requirement that the circumstances surrounding the collection and admission of evidence do not violate this right. This article argues that the use of entrapment in cases of corruption may lead to an abuse of the fair trial rights of an accused. The lack of a legislative framework regulating entrapment, the institutional entrenchment of entrapment in the criminal justice system and the inadequate guidance from judgments substantiate this argument. This article recommends amendments to the Criminal Procedure Code Act with a view to preventing abuse of the accused by agents of the criminal justice system.

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Transnational Economic Crime: The Example of “Gold Laundering"

Gold has an extreme attraction, both to corporate interests (large-scale mining or LSM) and to impoverished communities trying to make a living (artisanal and small-scale mining or ASM). At the same time, gold extraction occurs in highly problematic circumstances. Gold extraction as such is usually not illegal, but it attracts criminal operators of all kinds – as experienced during the times of the gold rushes in the 19th century. The typical stages of the supply chain are mining for new gold, either by LSM or ASM (which may include dredging), or recycling of old gold (normally the quota worldwide is two thirds in mined gold to one third in recycled gold).

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The Threat of Trade-Based Money Laundering to the African Continental Free Trade Area

Africa has dedicated considerable effort to establishing a Continental Free Trade Area to facilitate intra-African trade and deepen economic integration.  However, the liberalisation and facilitation of trade on the continent would increase trade openness significantly in the markets for goods and services, thereby expanding the threat of trade-based money laundering (TBML) and undermining the potential benefits the agreement would bring to economic growth, industrialisation and sustainable development in Africa.  This paper focuses on the threat of TBML to the African Continental Free Trade Area (AfCFTA), typically perpetrated through trade mis-invoicing as the main vehicle for illicit financial flows.

 

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Bitcoin Regulation? Imperfect Knowledge of Identities and the Money Laundering Risk: A West African Perspective

Arguments for regulating Bitcoin are built mainly on the technologically disruptive nature of the currency and its susceptibility to facilitating financial crimes on a scale larger than financial institutions.  This paper questions this notion and proposes instead that the disruptive nature of Bitcoin is not technological but legal.  The legal disruption requires a legislative response aimed at ensuring suitable regulation that can circumvent the identity crises in Bitcoin transactions.

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Arbitration and Corruption: A Toolkit for Arbitrators

In international commercial or investment arbitration proceedings, the appointed arbitral tribunal may suspect or one of the parties may allege that corruption, especially in the form of foreign public bribery, has influenced the underlying dispute between the parties. Over the past 25 years, the international and domestic legal frameworks to combat economic crime, including foreign public bribery, have become much stronger. Arbitrators therefore cannot ignore suspicions or allegations of corruption but, at the same time, they have limited means to address such suspicions or allegations, and they have to handle conflicting priorities.

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SECTION 9B OF THE PROTECTED DISCLOSURES AMENDMENT ACT 5 OF 2017: DISCOURAGING WHISTLEBLOWING IN SOUTH AFRICA?

The Protected Disclosures Act 26 of 2000 provides protection for individuals who blow the whistle on corrupt activities in South Africa.  The Protected Disclosures Amendment Act 5 of 2017 widens the scope of the original Act.  This article focuses on the provision in the amendment which criminalises the disclosure of false information by a potential whistleblower.  It is argued that this provision may operate as a hurdle for those individuals contemplating divulging information related to corruption.

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CYBERLAUNDERING AND THE FUTURE OF CORRUPTION IN AFRICA

Corruption has been given considerable attention as one of the major causes of the socio-economic ills that plague Africa.  Statistics reveal that staggering amounts of money are lost annually to corruption.  Many discussions about corruption focus on its meaning, its causes and its impact but one pertinent issue goes unexamined: what happens to the money?  The answer is money laundering.  And while we are trying to grapple with the challenges of today, it is imperative that we consider the troubles that await.  This paper discusses the relationship between corruption and money laundering, with a focus on the technique of cyberlaundering. It recommends that regional research units be created to address the issues raised.

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