The Gendered Impact of COVID-19 Directives on Access to Criminal Justice in South Africa

by | Mar 25, 2023 | AJCJ, AJCJ 2022

The Gendered Impact of COVID-19 Directives on Access to Criminal Justice in South Africa

Author: Emma Charlene Lubaale

ISSN: 2958-8162
Affiliations: Faculty of Law, Rhodes University
Source: Africa Journal of Crime and Justice 2022, p. 1 – 27
https://doi.org/10.47348/AJCJ/2022/a1

Abstract

Gender-based violence (GBV) knows no boundaries, and no region has been immune to this scourge. In the South African context, GBV had reached pandemic levels long before the COVID-19 virus. With the outbreak of the COVID-19 pandemic and the resultant lockdown measures adopted in response to it, cases of GBV rose steeply. The pandemic also saw major criminal justice players in South Africa, including the South African Police Service, the National Prosecuting Authority, the judiciary, and Correctional Services, adopt directives to regulate criminal justice during the lockdown periods. The directives took the form of general directives, arguably having no implications for women’s right to access to criminal justice. In this article, I examine selected directives by criminal justice players with a focus on those issued by the judiciary. I assess whether these directives could have been gendered, thus negatively impacting women’s access to criminal justice during the COVID-19 pandemic. I conduct this analysis using the concept of intersectionality, which underscores that the social categorisation of an individual, such as gender, race, nationality, and class can sometimes overlap or compound, thus causing disadvantage or discrimination. Based on this analysis, I conclude that some of these directives were gendered and could have exacerbated the challenge of access to justice by survivors of GBV. This conclusion seeks to confirm the view that seemingly gender-neutral directives and regulations may in fact contain gendered elements.

Alternative Dispute Resolution: The Opportunities and Challenges of COVID-19 for the Plea-Bargaining Model in Uganda

by | Mar 25, 2023 | AJCJ, AJCJ 2022

Alternative Dispute Resolution: The Opportunities and Challenges of COVID-19 for the Plea-Bargaining Model in Uganda

Author: Esther Nalungi

ISSN: 2958-8162
Affiliations: Judiciary, Uganda
Source: Africa Journal of Crime and Justice 2022, p. 28 – 54
https://doi.org/10.47348/AJCJ/2022/a2

Abstract

In Uganda, the plea bargaining model has primarily been used as a form of alternative dispute resolution (ADR). Even before the COVID-19 pandemic, prisons across the country grappled with congestion and long pre-trial detentions. The outbreak of COVID-19 augmented these challenges. However, several opportunities, such as the automation of courts through the establishment of an electronic case management information system, online trials, and the reduction of cases without enormous costs, were gained. At the same time, COVID-19 exacerbated the risk of innocent accused entering guilty pleas, especially for offences triable in magistrates’ courts because trials take long. Moreover, Uganda’s criminal justice system is retributive and more concerned with inflicting punishment and suffering on the accused than rehabilitating them. The state is the primary victim of the criminal offence. In contrast, the people harmed by the offence are mere witnesses. Nevertheless, plea bargaining was often conducted in the absence of or without the involvement of the victims of crime. The victims’ rights remained significantly neglected, increasing the lack of trust in the courts. This article examines these issues by discussing plea bargaining as an instance of ADR. The article also explores the opportunities and challenges arising from plea bargaining conducted during the COVID-19 locksdowns by discussing the lived experiences of the accused, victims, and magistrates.

Alternative to Prosecution in Criminal Law: A Case for Plea Agreements in Corporate Crime

by | Mar 25, 2023 | AJCJ, AJCJ 2022

Alternative to Prosecution in Criminal Law: A Case for Plea Agreements in Corporate Crime

Authors: Lillian Akinyi Okumu and Henry K Murigi

ISSN: 2958-8162
Affiliations: Office of Director Public Prosecutions, Kenya; Office of Director Public Prosecutions, Kenya
Source: Africa Journal of Crime and Justice 2022, p. 55 – 77
https://doi.org/10.47348/AJCJ/2022/a3

Abstract

The legal order in Kenya abhors ethereal companies from engaging in serious corporate transactions with government since therein lies the possibility for economic and corporate crime to thrive. Those who commit economic crime and embezzle public funds often attempt to hide behind the legitimate legal fiction of company law. This is part of the reason why corruption is rampant. This article seeks to accentuate the reality of corporate criminal responsibility and to propose a way to ensure that corporates embrace alternative dispute resolution (ADR) to settle criminal cases. The article highlights the schools of thought on the use of ADR in fighting crime and responds to the objections to the use of ADR in resolving corporate crime. This article further suggests that these principles engraved in the criminal-law tradition must be reconsidered with appropriate responses to corporate crime.

The One-Two Punch: Utilising Community Prosecution and Victim-Centred Strategies to Successfully Prosecute Trafficking in Persons in Uganda

by | Mar 25, 2023 | AJCJ, AJCJ 2022

The One-Two Punch: Utilising Community Prosecution and Victim-Centred Strategies to Successfully Prosecute Trafficking in Persons in Uganda

Authors: Christy Salzman and Tyler Dunman

ISSN: 2958-8162
Affiliations: Boston University School of Law; Human Trafficking Institute
Source: Africa Journal of Crime and Justice 2022, p. 78 – 98
https://doi.org/10.47348/AJCJ/2022/a4

Abstract

Since the passage of the Palermo Protocol in 2000, most states have increased their efforts to investigate and prosecute trafficking in persons. According to the annual Department of State Trafficking in Persons Report, Uganda currently ranks as a Tier 2 country, partly due to ongoing difficulties in investigating and prosecuting of trafficking in persons. This article suggests community prosecution in Uganda could improve trafficking in persons prosecutions. Community prosecution is a non-traditional method of prosecution that focuses on preventing crime before it happens. By combining community prosecution methods with other prosecutorial best practices, such as prosecutor-led investigations, multi-disciplinary teams, and a continuum of care, prosecutors in Uganda could better prevent trafficking in persons and serve victims through a trauma-informed approach. This article outlines relevant community prosecution practices, including the advantages and challenges, and then proposes several recommendations for how Ugandan prosecutors could implement community prosecution methods specifically to address trafficking in persons cases.

Victimisation and the Fear of Cybercrime during the COVID-19 Pandemic: Experience of Undergraduate Students in Kenya

by | Mar 25, 2023 | AJCJ, AJCJ 2022

Victimisation and the Fear of Cybercrime during the COVID-19 Pandemic: Experience of Undergraduate Students in Kenya

Authors: Anthony Kahuthia Weru and Peterson Mwai Kariuki

ISSN: 2958-8162
Affiliations: Institute of Criminology, Forensics and Security Studies, Dedan Kimathi University of Technology; Institute of Criminology, Forensics and Security Studies, Dedan Kimathi University of Technology
Source: Africa Journal of Crime and Justice 2022, p. 99 – 125
https://doi.org/10.47348/AJCJ/2022/a5

Abstract

The victimisation model in the context of cyberspace suggests that previous cybercrime victimisation results in fear of cybercrime. Previous researchers have found mixed results in their findings. The current study uses five prevalent cybercrimes in Kenya, namely, impersonation, cyberbullying, online fraud, phishing, and computer virus, to establish the nature of the relationship between victimisation and the fear of cybercrime. A convenient sample of 55 university students pursuing a Bachelor’s degree in criminology at Dedan Kimathi University of Technology was used. Findings indicated that those who have experienced cyberbullying and impersonation and those who spend much time on social media are more fearful of cyberbullying. Moreover, those who have experienced online fraud and those who are less frequent shoppers are more fearful of online fraud, while those who have experienced phishing and those who receive a high number of spam emails are more fearful of hacking when opening links embedded in emails. Finally, those who have experienced computer viruses, as well as those who complete zero downloads per day, are more fearful of computer viruses. High internet usage, experiences of online fraud and phishing attacks and attempts which are positively related to fear of cyberbullying, can be attributed to COVID-19 times when most Kenyans were vulnerable and not working.

The Efficacy of National and International Accountability Mechanisms in Combating the Al-Shabaab in Somalia

by | Mar 25, 2023 | AJCJ, AJCJ 2022

The Efficacy of National and International Accountability Mechanisms in Combating the Al-Shabaab in Somalia

Authors: Kenneth Wyne Mutuma and Benson Waweru Thuo

ISSN: 2958-8162
Affiliations: University of Nairobi, School of Law; Advocate of the High Court of Kenya
Source: Africa Journal of Crime and Justice 2022, p. 126 – 166
https://doi.org/10.47348/AJCJ/2022/a6

Abstract

Decades of power struggles among political rivals have resulted in Somalia being regarded as a ‘failed state’. The absence of a central government has allowed Al-Shabaab to take control of parts of Somalia and commit war crimes as well as crimes against humanity. Despite compelling prima facie evidence of these
crimes, Al-Shabaab has not been held sufficiently accountable, leaving many victims without redress. This is due to the shortcomings of existing national and international accountability mechanisms. Somalia’s judicial branch faces significant capacity challenges that prevent it from adequately investigating and prosecuting war crimes. Countermeasures by religious fundamentalists and excessive reliance on informal dispute-resolution methods further frustrate the justice system’s efforts. Peacekeeping missions by international bodies such as the United Nations Security Council (UNSC) have also been ineffective. In addition, there are growing fears that the group’s reach will grow due to an increase in the revenue that it is able to generate. This article examines the shortcomings of the aforementioned accountability framework and offers solutions to address the gaps to ensure justice for the victims of Al-Shabaab.

Why the Preference for Xeer in Somalia Surged during the Coronavirus Pandemic

by | Mar 25, 2023 | AJCJ, AJCJ 2022

Why the Preference for Xeer in Somalia Surged during the Coronavirus Pandemic

Author: Doreen Muyonga

ISSN: 2958-8162
Affiliations: United States International University-Africa, Nairobi, Kenya
Source: Africa Journal of Crime and Justice 2022, p. 167 – 183
https://doi.org/10.47348/AJCJ/2022/a7

Abstract

The coronavirus pandemic has tested the resilience of justice systems across the world. The enforcement of public health measures such as lockdowns, curfews, social distancing, and stay-at-home orders posed serious challenges to access to justice in most jurisdictions. However, in Somalia, the resilience of its traditional justice system, Xeer, saw it continue to render relatively quick justice that was otherwise lacking following the closure of the government’s justice system. This article seeks to explain why the preference for Xeer increased during the pandemic. The article begins by providing background information about Somalia’s justice systems. It goes on to explain how Xeer works. It also discusses the challenges posed by the pandemic in respect of Somalia’s formal justice system. More importantly, it explains why Xeer was preferred during the pandemic. The article finds that the realities brought about by the pandemic, such as lockdowns, cessation of movement, social distancing, curfews, and loss of livelihoods, had minimal impact on Xeer’s functioning. This is because the process is conducted at the community level mostly under a tree, by clan elders at no cost, making it possible for locals to continue accessing uninterrupted justice. The article recommends strengthening Xeer since it has demonstrated its ability to fill the gap of a weak government judicial system.

Reparation Orders at the International Criminal Court: The Quest of the Victims in the Bosco Ntaganda Case

by | Mar 25, 2023 | AJCJ, AJCJ 2022

Reparation Orders at the International Criminal Court: The Quest of the Victims in the Bosco Ntaganda Case

Author: Douglas Kipchumba Keter

ISSN: 2958-8162
Affiliations: School of Humanities and Social Sciences, United States International University-Africa, Nairobi, Kenya
Source: Africa Journal of Crime and Justice 2022, p. 184 – 209
https://doi.org/10.47348/AJCJ/2022/a8

Abstract

Article 75 of the Rome Statute of the International Criminal Court (Rome Statute) on reparation has been heralded as a milestone achievement in the history of international criminal justice. Four significant reparation orders have so far been given by the International Criminal Court (ICC). The first was issued on 7 August 2012 against Thomas Lubanga, where the ICC admitted its success was connected to the success of its reparation mechanism. On 8 March 2021, Trial Chamber VI awarded USD 30 million to victims of crimes committed by Bosco Ntaganda. However, to date, victims are yet to benefit. The backbone of reparation in the Ntaganda case was built on a reparation mechanism with a corrective effect on the situation in the Democratic Republic of Congo, prioritisation of the needs of vulnerable victims, and prompt reparation. Archival information reveals that reparation in the Ntaganda case is yet to achieve what it set out to achieve. Restitution and restorative theories of crime form the key theories of discussion in this research. This research sets the centre stage for further research to facilitate improvement in this critical area of the justice process at the ICC. Efficient and effective reparations at the ICC plays a critical role in addressing victims’ plight, resulting in increased confidence in court operations. There is a need for research on how the efficiency of reparation at the ICC can be enhanced, perhaps by forming a restorative justice branch.

Tax policy gap in southern African countries: Reflections on indirect tax coordination and tax diversity in SADC post Covid-19

by | Mar 12, 2023 | JCLA, JCLA V9 I2 2022

Tax policy gap in southern African countries: Reflections on indirect tax coordination and tax diversity in SADC post Covid-19

Author: Puseletso Letete

ISSN: 2521-2605
Affiliations: BA Law, LLB (NUL), LLM (UCT), PhD (Edinburgh). Professor, School of Law, University of South Africa until 31 August 2022
Source: Journal of Comparative Law in Africa, Volume 9 Issue 2, p. 1 – 32
https://doi.org/10.47348/JCLA/v9/i2a1

Abstract

The Southern African Development Community (SADC) tax policy on indirect tax coordination has mainly been guided by an approach toward the harmonisation of tax bases, the convergence of tax rates and the movement of taxes toward tax uniformity. This approach is one envisaged by the member states and reflected in Annex 3 of the Protocol on Finance and Investment. However, in recent studies, writers in this area opine that countries within a regional integration economic area (REC) should instead adopt an approach characterised by tax diversity of the indirect tax systems, as well as mutual coordination and cooperation to contribute towards economic integration. Recent literature proposes that tax coordination of indirect taxes must consider other options that move away from the uniformity of taxes, rates, and tax base. This paper considers this approach of placing tax diversity at the centre of the SADC tax policy of coordination of indirect taxes, particularly VAT and excise taxes. The paper reflects on the previous approaches that have characterised the implementation of the existing legal framework in tax coordination in the SADC and critically examines the implementation of the VAT and excise taxes guidelines and their significance in achieving tax coordination of indirect taxes. The article emphasises the importance of the SADC realising its goal of coordinating indirect taxes, particularly post Covid-19, due to the imminent need to raise more revenue from cross-border trade in the SADC member states to contribute toward the economic growth of member states.