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Journal articles on the topic 'Criminal law – Zimbabwe'
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1
Maguchu, Prosper Simbarashe. "The law is just the law: analysing the definition of corruption in Zimbabwe." Journal of Financial Crime 25, no. 2 (May 8, 2018): 354–61. http://dx.doi.org/10.1108/jfc-06-2017-0055.
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Purpose The purpose of this paper is to highlight the shortfalls of the legal definition of corruption in Zimbabwe. Design/methodology/approach Defining corruption is a universal challenge. Thus, in reviewing Zimbabwes definition, this paper also draws on other common law system jurisdictions based on English traditions and Sharia law to make a comparative analysis. The paper also takes a multi-disciplinary approach that transcend fields of law and anthropology. Findings Although criminal law can be used as the normative basis in the fight against corruption, it can also be used by the powerful to shield themselves from corruption, through its indeterminacy and interpretation. Be this as it may, real and firm law can assist in curbing the vice. Research limitations/implications The paper’s purview is limited both in terms of subject and scope. Although it starts by considering the definition of corruption to get a broad overview of this subject, it mainly focuses on the meaning of two popular concepts that are popularly identified with our understanding of corruption – abuse of power and public office. Originality/value The paper tries to establish a framework for understanding and curbing corruption through the use of statutory law.
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Menezes, S. B., F. Oyebode, and M. S. Haque. "Mentally disordered offenders in Zimbabwe and in England and Wales: a socio-demographic study." Medicine, Science and the Law 47, no. 3 (July 2007): 253–61. http://dx.doi.org/10.1258/rsmmsl.47.3.253.
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Our aim was to compare socio-demographic, clinical and criminal characteristics of mentally disordered offender patients in a special institution in a developing and a developed country. Zimbabwe data from 1980-1990 was obtained from a hospital patient survey, in a written semi-structured format. The English special (high security) hospital patients' data for the same period was obtained from the case register. The sample size for Zimbabwe was 367 patients (337 males, 30 females) and for England and Wales it was 1,966 patients (1,643 males, 323 females). The average age for Zimbabwean patients was 36 years, with standard deviation of 9.7; for England and Wales the average age was 29.7 with standard deviation of 9.6. There was significant difference in marital status in the two countries. Seventy-eight per cent of patients were single in England and Wales, compared with 49% in Zimbabwe. There were 20% illiterate patients in Zimbabwe, compared with 4% in England and Wales. Thirty-seven per cent of the patients in England and Wales had a diagnosis of personality disorder, compared with 6% in Zimbabwe. There were 53% of homicides in Zimbabwe, compared with 20% in England and Wales. Employment in the two countries was similar: 34% in Zimbabwe and 33% in England and Wales. There were differences in the socio-demographic characteristics in the two countries, except for employment status. Differences were also noticed in the diagnoses of the patients, types of crime and the methods of assault.
3
Zimudzi, Tapiwa. "African women, violent crime and the criminal law in colonial Zimbabwe, 1900-1952." Journal of Southern African Studies 30, no. 3 (September 2004): 499–518. http://dx.doi.org/10.1080/0305707042000254047.
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Hatchard, John. "The Fall and Rise of The Cane in Zimbabwe." Journal of African Law 35, no. 1-2 (1991): 198–204. http://dx.doi.org/10.1017/s0021855300008445.
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The legality of judicial corporal punishment is an issue which has caused considerable disagreement amongst jurists, legislators and criminal justice personnel, for its use has serious moral, constitutional and penological implications. In Zimbabwe, two decisions handed down by the Supreme Court together with a later constitutional amendment Act have highlighted the divergence of views on this matter. It is thus the intention of this article to examine critically the issue from a constitutional and penological perspective.In 1987 in S v. Ncube a full bench of the Supreme Court of Zimbabwe unanimously held that the sentence of whipping for adults contravened section 15(1) of the Declaration of Rights which is contained in the Constitution of Zimbabwe in that it constituted a punishment which in its very nature was both inhuman and degrading. In his seminal judgment, Gubbay, J. A., had regard to four factors, namely: (i) the current trend of thinking amongst distinguished jurists and leading academics; (ii) the abolition of whipping in many countries of the world as being repugnant to the consciences of civilized men; (iii) the progressive move of the courts in countries in which whipping is not susceptible to constitutional attack to restrict its imposition to instances where a serious, cruel, brutal and humiliating crime has been perpetrated; (iv) the decreasing recourse to the penalty of whipping in Zimbabwe, especially over the previous ten years and the declining number of laws on the statute book in which it remained a permissible penalty.
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du Plessis, Max, and Jolyon Ford. "TRANSITIONAL JUSTICE: A FUTURE TRUTH COMMISSION FOR ZIMBABWE?" International and Comparative Law Quarterly 58, no. 1 (January 2009): 73–117. http://dx.doi.org/10.1017/s002058930800081x.
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AbstractAn eventual sustained democratic transition process in Zimbabwe may include a ‘truth and reconciliation’ commission. The need for—and possible form of—any such institution is situated in a number of discussions: the balance of principle and pragmatism that peace deals sometimes require; comparative experiences in other societies and the promise and limits of institutional modelling; the dynamic between global expectations or prescriptions and ground-level exigencies; the interface of international criminal law and institutions with national-level justice processes; the content of the State's international legal duty to afford a remedy. In considering the extent of an international normative framework limiting the justice options of transitional States, a certain margin of appreciation may be appropriate or necessary to enable a society to reconcile with its violent past on its own terms.
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Nakitto, Saidat. "South Africa’s Exercise of Universal Jurisdiction." International Human Rights Law Review 3, no. 1 (June 4, 2014): 146–58. http://dx.doi.org/10.1163/22131035-00301005.
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On 27 November 2013 the Supreme Court of Appeal of South Africa affirmed the decision of the High Court that South Africa’s Implementation of the Rome Statute of the International Criminal Court Act 2002 (icc Act) empowered South African officials to initiate investigations into crimes against humanity committed in Zimbabwe in the absence of the perpetrators in South Africa. This decision was in response to the true interpretation of section 4(3)(c) of the icc Act providing for universal jurisdiction. This paper examines the judgment of this Court, arguing that though customary international law is silent on the requirement for presence of the perpetrators for initiation of investigation, the Court should have given proper examination of this section by taking into consideration of the previous presence of some of the perpetrators in South Africa after the alleged crimes were committed.
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Chipaike, Ronald, Nduduzo Tshuma, and Sharon Hofisi. "African Move to Withdraw from the ICC: Assessment of Issues and Implications." India Quarterly: A Journal of International Affairs 75, no. 3 (August 1, 2019): 334–50. http://dx.doi.org/10.1177/0974928419860918.
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Africa’s relationship with the International Criminal Court (ICC) has been strained over the past few years. Threats by a number of African states to withdraw from the ICC’s jurisdiction have marked a crescendo in the strained relationship. This study looks at the issues surrounding the proposed or threatened mass withdrawal by African countries and the implications for peace and justice in the African continent. Utilising interviews with a cross section of key informants including members of the African diplomatic community resident in Zimbabwe, this study highlights that it is difficult for African states to withdraw en masse since not all states are agreeable to this stance. The study further highlights that although the ICC is not a perfect institution, it is the only alternative court of last resort that can deal with human rights and international humanitarian law violations as well as impunity in the continent. The proposed African Court of Justice and Human Rights (ACJHR) has not yet taken root owing to a shortage of adequate ratifications of the protocol establishing it. Thus, although concerns of unfair targeting of African leaders and individuals by the ICC could be considered valid, African states need to find a way of establishing a cordial relationship with the ICC to ensure the protection of individual rights while they establish regional institutions to deal with cases currently being referred to the ICC.
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Govender, Karthy, and Paul Swanepoel. "Cynicism and the Rule of Law: A Critical Analysis of President of the RSA V M&G Media Limited 2012 2 SA 50 (CC) and Associated Judgments." Southern African Public Law 30, no. 2 (December 1, 2017): 580–97. http://dx.doi.org/10.25159/2522-6800/3593.
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In June 2015 the High Court granted an interim order prohibiting Sudanese President Omar al-Bashir from leaving South Africa. Although Al-Bashir is wanted by the International Criminal Court for war crimes and South Africa is a signatory to the Rome Statute and has passed the Implementation Act, the government failed to arrest him as required by an order of court. Short-term political considerations appear to have outweighed the need to respect the rule of law. Parallels can be drawn between this incident and the decision by the executive to refuse access to the Khampepe Report when requested to do so by the Mail and Guardian newspaper. The report was prepared at the request of former President Mbeki by two senior South African judges, after a visit to Zimbabwe shortly before the election held in that country in 2002. In an attempt to prevent disclosure, the executive approached various courts on six different occasions and drew out the process for more than six years. The main issue in this case is the use of section 80 of the Promotion of Access to Information Act by the courts, a discretionary power that is applied sparingly. In terms of PAIA, the state is prevented from making reference to the content of a record in order to support a claim of exemption. In such instances, section 80 provides courts with the power to inspect the record – a procedure known as a ‘judicial peek’ – in order to make a determination as to whether the exemption is justified. This case provides a clear example of how the state cynically used this provision as a dilatory tactic in refusing access to the report. The current system that relies solely on the courts to handle access to information matters undermines the main objectives of the Act and is inefficient and costly. It is recommended that PAIA be amended to provide for an information commissioner with powers to mediate and make binding decisions.
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Maguchu, Prosper Simbarashe. "Money laundering, lawyers and President’s intervention in Zimbabwe." Journal of Money Laundering Control 20, no. 2 (May 2, 2017): 138–49. http://dx.doi.org/10.1108/jmlc-01-2016-0004.
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Purpose This study aims to analyse the effects of the Presidential Powers (Temporal Measures), amendment to the Money Laundering and Proceeds of Crime Act to include legal practitioners under the list of designated non-financial business and professions. Design/methodology/approach The study is a textual analysis of anti-money laundering legislation [anti-money laundering (AML) legislation] within the context of legal practice in Zimbabwe. Findings The amendment put Zimbabwe on the international standard in the fight against money laundering, as legal practitioners have become a soft target for money laundering. Despite its noble aim, in Zimbabwe there is anecdotal evidence that the AML legislation turns lawyers into watchdogs or law enforcement agents. On the contrary, the amendment prevents lawyers from falling to the mercy of organised criminals and money launderers. Furthermore, there is a dearth of empirical research that can demystify the impact of some of the provisions of this law on contested issues, such as legal professional privilege. Research limitations/implications This study aims to outline the rationale for anti-money laundering policy and law. This study will analyse how the issue has been approached in other jurisdictions such as England and Wales. The paper will then try to establish coherent principles in the prevention of money laundering. This study will also suggest a number of recommendations as to how Zimbabwe could approach some of the issues while still considering the need to balance competing influences of legal privilege and money laundering regulations. Practical implications The paper will bring this issue to the fore and initiate an informed debate, as well as provide practical talking points for legal practitioners to embrace the AML regime and to engage policymakers on the issues that need reform. Originality/value This paper provides the first in depth analysis of the money laundering legislation in the legal fraternity in Zimbabwe and goes to offer practical tips and entry points on the application of the regulations or for advocacy towards any reform as might be needed.
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Warbrick, Colin. "Judicial Jurisdiction and Abuse of Process." International and Comparative Law Quarterly 49, no. 2 (April 2000): 489–96. http://dx.doi.org/10.1017/s0020589300064265.
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British cases used to be widely relied upon to show that courts were entitled to hear criminal proceedings against defendants brought before them without having to enquire into the process by which custody over them had been obtained: and specifically, that there was no bar to proceeding where the allegation was made that custody had been obtained in breach of international law.1 The consistency of the doctrine was breached by Mackeson2 when the English court refused to hear the case against a defendant who, it accepted, had been brought to England by a collusive process between the English and Zimbabwean authorities, which arguably breached both national laws, even if it did not involve a breach of international law. While the previous orthodoxy soon reasserted itself in Driver,3 the edifice of authority was substantially undermined in Bennett4 when the House of Lords acceded to the claim of the applicant that proceedings against him would be an abuse of process, given the circumstances in which his presence in the United Kingdom had been achieved. Outside the United Kingdom, the practice in other States continued in different directions, sometimes confirming the old position of male captus, bene detentus,5 sometimes the reverse.6
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"New Legislation on Legal Aid in Zimbabwe." Journal of African Law 41, no. 2 (1997): 247. http://dx.doi.org/10.1017/s0021855300009451.
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The Legal Aid Act, 1996, greatly improves access to legal aid. It provides that a person is eligible for legal aid in connection with any criminal, civil or other related matter if, in die opinion of the Director of Legal Aid, diat person (i) omerwise has insufficient means to obtain the services of a legal practitioner; (ii) has reasonable grounds for initiating, carrying on, defending or being a party o t the case; and (iii) is in need of and would benefit from such legal assistance. An individual may apply direct to the Director of the Legal Aid Directorate or a judge, magistrate or die Attorney-General may recommend to the Director that a person should be provided with legal aid.
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Nyathi, Mkhululi, and Matshobana Ncube. "The 2017 military coup in Zimbabwe: Implications for human rights and the rule of law." African Human Rights Law Journal 20, no. 2 (2020). http://dx.doi.org/10.17159/1996-2096/2020/v20n2a21.
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November 2017 saw the Zimbabwean Defence Forces executing a military coup against Mr Robert Mugabe, Zimbabwe's long-serving President. The military sought to justify the coup on the basis that there were divisions in the party in government - ZANU-PF - and that it was stepping in to protect what it called the gains of the liberation struggle. The military demanded, among other things, the reinstatement of those ZANU-PF party members who had been removed from their government and party positions. By brazenly involving itself in politics, let alone aligning itself with a political party, the military violated a number of constitutional provisions that prohibit the involvement of the security services in politics. Several individual freedoms and liberties, including the right to liberty, freedom of expression, freedom of movement and the right to security and freedom from torture, were violated during the coup. There are also allegations that there was loss of life directly linked to the coup. In effecting the coup, the military immobilised the police service and arrogated to itself the role of civilian policing, including the setting up of roadblocks on major roads and arresting and detaining those it identified as 'criminal elements'. The Zimbabwean Defence Forces have a long history of serious human rights violations, including politically-related torture and murder. They also stand accused of chronic involvement in politics, including the unleashing of violence during elections on behalf of ZANU-PF. Therefore, there is no hope that human rights protection and promotion will be on the agenda of the post-coup government - itself consisting of the main coup leaders and most of the ministers that served in the repressive Mugabe government. There is a need to establish mechanisms to ensure that those responsible for the coup and its attendant human rights violations and crimes are brought to account.
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Mujuzi, Jamil Ddamulira. "Private prosecutions in Zimbabwe: Victim participation in the criminal justice system versus prosecutorial independence." South African Crime Quarterly, no. 56 (June 28, 2016). http://dx.doi.org/10.17159/2413-3108/2016/v0i56a44.
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There have been two recent developments that have changed the face of private prosecutions in Zimbabwe: (1) whether private companies may institute private prosecutions; and (2) whether the Attorney-General, in the event that he has declined to prosecute, is obliged to issue a certificate to a crime victim to institute a private prosecution. Both questions have been answered in the negative by the Prosecutor-General and the result is that crime victims have gone to court to seek clarity on these issues. The Supreme Court has held that private companies have a right to institute private prosecutions and that the Prosecutor-General is obliged to issue a certificate should he decline to prosecute. In response, the Prosecutor-General had adopted two strategies: (1) to appeal to the Constitutional Court against the Supreme Court’s ruling that he is obliged to issue such a certificate; and (2) to have the relevant sections of the CPEA amended so that the law is very clear that he is not obliged to issue such a certificate and that companies are not permitted to institute private prosecutions. In this article the author argues that even in the light of the latest amendments to the CPEA, there cases where the Prosecutor-General may be compelled to issue a certificate to a crime victim to institute a private prosecution.
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Mujuzi, Jamil Ddamulira. "Private prosecutions in Zimbabwe: Victim participation in the criminal justice system versus prosecutorial independence." South African Crime Quarterly, no. 56 (June 28, 2016). http://dx.doi.org/10.17159/2413-3108/2016/v0n56a44.
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There have been two recent developments that have changed the face of private prosecutions in Zimbabwe: (1) whether private companies may institute private prosecutions; and (2) whether the Attorney-General, in the event that he has declined to prosecute, is obliged to issue a certificate to a crime victim to institute a private prosecution. Both questions have been answered in the negative by the Prosecutor-General and the result is that crime victims have gone to court to seek clarity on these issues. The Supreme Court has held that private companies have a right to institute private prosecutions and that the Prosecutor-General is obliged to issue a certificate should he decline to prosecute. In response, the Prosecutor-General had adopted two strategies: (1) to appeal to the Constitutional Court against the Supreme Court’s ruling that he is obliged to issue such a certificate; and (2) to have the relevant sections of the CPEA amended so that the law is very clear that he is not obliged to issue such a certificate and that companies are not permitted to institute private prosecutions. In this article the author argues that even in the light of the latest amendments to the CPEA, there cases where the Prosecutor-General may be compelled to issue a certificate to a crime victim to institute a private prosecution.
15
Rau, Markus. "After Pinochet: Foreign Sovereign Immunity in Respect of Serious Human Rights Violations - The Decision of the European Court of Human Rights in the Al-Adsani Case." German Law Journal 3, no. 6 (June 2002). http://dx.doi.org/10.1017/s2071832200015066.
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For want of an effective and accessible universal system for redress of international human rights abuses, victims of human rights violations increasingly seek reparations in domestic civil courts. In the United States in particular, the federal courts, since the 1980 Filártiga decision of the U.S. Court of Appeals for the Second Circuit, have already decided on a remarkable number of civil suits alleging human rights violations committed abroad, the most recent example of this trend being a class action of members and supporters of opposition political groups in Zimbabwe who invoke the so-called Alien Tort Claims Act (ATCA) against President and Foreign Minister Robert Mugabe with respect to alleged acts of torture. According to the proponents of such lawsuits, international human rights litigation in domestic civil courts can serve as an important tool in the worldwide effort to enforce international norms concerned with the protection of the individual which may complement criminal prosecutions of the offenders. As stated by Professor Stevens, who has litigated many of the international human rights cases in the U.S. federal courts, \\\“civil lawsuits for human rights violations […] serve a role similar to tort litigation in a domestic forum: to offer victims of violence a legal remedy which they control and which may satisfy needs not met by the criminal law system.\\\”
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Chuks Okpaluba. "STATE LIABILITY FOR MUTINOUS ACTS OF POLICE AND MILITARY OFFICERS: A CRITIQUE OF LESOTHO AND ZIMBABWE CASES IN LIGHT OF THE MODERN TEST FOR VICARIOUS LIABILITY IN SOUTH AFRICA." Obiter 39, no. 2 (August 15, 2018). http://dx.doi.org/10.17159/obiter.v39i2.11353.
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A mutiny by soldiers or police officers is no doubt, a serious criminal offence. So is the rape of a young girl or woman by police officers, or shooting someone by the police or military personnel without lawful authority, or supplying military hardware by a defence official charged with guarding the armoury to those who use them for armed robbery purposes? However, if the State as the employer is held vicariously liable for these acts of misconduct, why should it be absolved from liability for the wrongful acts of the soldiers or police officers for injuries caused in a situation of mutiny? It seems clear from the case law that an argument that the State is vicariously liable in such circumstances is bound to hit a dead end if it is based on the old “standard test” which contemplated only negligent, at most, reckless conduct of the employee. This was the beginning of the collapse of the arguments of the plaintiffs in the Lesotho Court of Appeal in Chabeli v Commissioner of Police; the High Court in Seoane v Attorney General; and the Harare High Court in Munengami v Minister of Defence, where the question of the liability of the State was canvassed on the basis of the old “standard test” for determining vicarious liability. It is submitted that if these cases were argued around the “close connection” test as enunciated by the Constitutional Court in K v Minister of Safety and Security and affirmed in F v Minister of Safety and Security, the outcomes might have been different. It seems compelling, therefore, that in analysing these Lesotho and Zimbabwean cases, one must do so with the hindsight of the modern test for determining vicarious liability in South Africa, where the conduct of the employee is not merely negligent in character but deliberate or dishonest in nature.
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Benyera, Everisto. "ON THE COMPLEXITIES OF PROSECUTING ROBERT MUGABE AT THE INTERNATIONAL CRIMINAL COURT." AUSTRAL: Brazilian Journal of Strategy & International Relations 6, no. 12 (March 20, 2018). http://dx.doi.org/10.22456/2238-6912.77616.
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One of the most desired actions by human rights activists the world over is to see Zimbabwe’s President Robert Mugabe brought to The Hague to answer to allegations of genocide and crimes against humanity committed during his more than three decades in office. This desire notwithstanding, there are both legal and practical imperatives that render his prosecution highly improbable judging by the failed attempts to do so by various organisations. This article is a contribution to the debate on the fate of heads of states accused of genocide and crimes against humanity by focusing on the complexities surrounding the various attempts at having Mugabe brought before the International Criminal Court (ICC). The conclusion reached is that, no matter how desirable, the prosecution of Mugabe at the ICC, or any other court of law, is a distant reality due to various reasons outlined in the article.
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Marita Carnelley and Shannon Hoctor. "SENTENCING THE ELDERLY – AN ACT OF MERCY OR DISCRIMINATION? S v Phillips (unreported, DCLD), case no CC141/08." Obiter 31, no. 1 (September 17, 2021). http://dx.doi.org/10.17159/obiter.v31i1.12389.
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In 2008, the authors’ note on advanced age as a mitigating factor in the South African criminal courts set out the Roman-Dutch history and the South African case law with regard to this issue. Brief reference was made to the position of the elderly offender in the Zimbabwean, English and Australian jurisdictions. The aim of this note is not to repeat what was said before, but to provide a wider perspective on the pertinent issues relating to sentencing the elderly (a contested term, but for present purposes referring to offenders over the age of 60), especially the concept of mercy. It should be reiterated that old age does not exclude criminal liability, but it can serve as one of many mitigating factors during sentencing although it is not a bar to imprisonment. The case of S v Phillips is no exception. The structure of this note is the following: it commences with a discussion of the Phillips judgment and to place it within a general problematic sentencing framework vis-a-vis the elderly. The concept of mercy is then examined in light of recent Commonwealth jurisprudence; whereafter parallels are drawn between the sentencing of a battered wife and the sentencing of a battered geriatric. The note concludes with a brief mention of the post-sentencing options available to an offender in the form of mercy and as well as parole.