Illicit Financial Flows, Asset Recovery, the Power Game and the Right to Development in Africa

Illicit Financial Flows, Asset Recovery, the Power Game and the Right to Development in Africa

Author Serges Djoyou Kamga

ISSN: 2522-3062
Affiliations: Associate Professor at the Thabo Mbeki African Leadership Institute, University of South Africa.
Source: Comparative and International Law Journal of Southern Africa, The, Volume 51 Issue 2, p. 193 – 214

Abstract

The right to development (RTD) is controversial. This controversy is built on the identification of the international community as one of the duty bearers of the RTD. This means that state members of the international community should fund development projects outside their territory or should contribute to resource mobilisation for the achievement of the RTD beyond their borders. Against this backdrop the article seeks an alternative solution for resource mobilisation for the achievement of the RTD. It shifts the RTD from depending on donors and developed countries to the recovery of assets stolen from developing countries through illicit financial flows. The article relies on the power game theory that posits that in the international arena, initiatives are informed by self-interest. However, it also recognises the challenges linked to asset recovery and articulates this position considering the new institutional theory, which believes in ‘the common good’. Another key issue associated with anticorruption and anti-money laundering initiatives which informs asset recovery is that different countries have different norms and values, which are likely to influence the interpretation of the laws and regulations in consideration of the context. Ultimately, successful asset recovery requires a joint adoption and harmonisation of common strategies by actors.

Journal of Ocean Governance in Africa 2021

Journal of Ocean Governance in Africa

Prof P Ndlovu; Prof M Tsamenyi; Prof P Vrancken; Ms A Buchanan; Mr S Ntola

ISSN: 2710-4044
Year: 2021
Published: Annually

About this publication

iilwandle zethu: The Journal of Ocean Law and Governance in Africa is a blind peer reviewed Journal of note, under the editorship of the South African Research Chair in the Law of the Sea and Development in Africa. The journal publishes submissions relating to marine law, maritime law or ocean governance as they apply to the African continent, or to one or more African states.

In 2020, it was decided to rename the publication the Journal of Ocean Governance in Africa in order to remove any suggestion that the Journal might focus primarily on ocean law by removing the word ‘law’ from the title of the Journal. The  disciplinary and geographical width of the editorial team has also been broadened. The vision of the journal is to encourage and support the fast-growing pool of emerging African ocean-governance scholars in publishing excellent research outputs on a scientific and policy platform with which they are as comfortable as possible.

VOLUMES AND ISSUES

Volume / Issue

2021

Sexual abuse of pupils by teachers in South African schools: The vicarious liability of education authorities

Sexual abuse of pupils by teachers in South African schools: The vicarious liability of education authorities

Author K Calitz & C de Villiers

ISSN: 1996-2177
Affiliations: Emeritus Professor, Faculty of Law, Stellenbosch University; Part-time Lecturer, Stellenbosch University
Source: South African Law Journal, Volume 137 Issue 1, p. 72-107

Abstract

The high incidence of sexual abuse of pupils by teachers in South African schoolshas a profound effect on the constitutional rights of children, especially the right to a basic education. There is a comprehensive legal framework in terms of which steps could be taken against perpetrators. Despite this, and as a result of the intricacy and inconsistent implementation of existing measures, perpetrators are not appropriately disciplined. This exacerbates the infringement of the constitutional rights of victims. The failure to take action against perpetrators exposes education authorities to delictual claims for harm suffered by victims. Instituting claims based on vicarious liability against education authorities would serve the goals of deterrence and of victim compensation. To determine whether a claim based on vicarious liability could succeed in South Africa, we compare the development of vicarious liability in certain common law countries in the context of institutional sexual abuse of children. The conclusion is that such a claim could be successful if the constitutional duties of teachers, the constitutional rights of pupils, and elements of power, control, trust, and intimacy in the relationship between teacher and pupil point to a close connection between the teacher’s employment and the unlawful act. We conclude that, where a coherent strategy is adopted, sexual abuse could be prevented if education authorities were to focus on the implementation of preventative measures. We make recommendations which could assist in developing a coherent prevention strategy and simultaneously reduce the possibility of claims for vicarious liability against the department.