Browsing by Author "Norman, Mugarura"
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Item ‘Anti-money Laundering Law and Policy as a double edged Sword!’(Norman Mugarura (Ph.D.), 2022) Norman, MugaruraThe thesis of this paper was drawn from the author’s presentation to security agencies in Kampala in August 2019.2 In his presentation, the author opined that investigations into money laundering offences should be triggered when a financial institution forms suspicions of potential money laundering offences to have been committed. 3 Some of the questions he sought to answer during the presentation was whether sharing information on “accountable persons or the regulated sector” in Uganda’s AML 2013 with newspapers before investigations are concluded doesn’t amount to tipping off presumed money laundering culprits? How should investigations be conducted? The foregoing questions call upon oversight agencies not to be overzealous when conducting investigations into suspicious money laundering transactions but to ensure caution and desired due diligence. This proposition does not mean that oversight agencies like Bank of Uganda (BoU) or the Financial Intelligence Authority (FIA) or any other oversight agencies for that matter should not carry out the required investigations. It should also be noted that banks are bound by contracts with clients and therefore ill-advised disclosure of information to a newspaper could amount to a breach of contract. Information can only be shared under compulsion by the law or to protect the public from harm, which is the main responsibility of security agencies.4 What happens if “accountable persons or those the Statute is designed to regulate” who are being investigated and have been published in newspapers are found to be innocent after they have been named and shamed? This would jeopardize the interests of the bank involved in many ways, not least that it could find itself involved in protracted costly litigations. The purpose of the paper is therefore to articulate the intricate balance of the need for regulation and ensuring that businesses are able to operate with minimal interference.Item ‘Anti-money Laundering Law and Policy as a double edged Sword!’(Emerald, 2019) Norman, MugaruraThe thesis of this paper was drawn from the author’s presentation to security agencies in Kampala in August 2019.2 In his presentation, the author opined that investigations into money laundering offences should be triggered when a financial institution forms suspicions of potential money laundering offences to have been committed.3 Some of the questions he sought to answer during the presentation was whether sharing information on “accountable persons or the regulated sector” in Uganda’s AML 2013 with newspapers before investigations are concluded doesn’t amount to tipping off presumed money laundering culprits? How should investigations be conducted? The foregoing questions call upon oversight agencies not to be overzealous when conducting investigations into suspicious money laundering transactions but to ensure caution and desired due diligence. This proposition does not mean that oversight agencies like Bank of Uganda (BoU) or the Financial Intelligence Authority (FIA) or any other oversight agencies for that matter should not carry out the required investigations. It should also be noted that banks are bound by contracts with clients and therefore ill-advised disclosure of information to a newspaper could amount to a breach of contract. Information can only be shared under compulsion by the law or to protect the public from harm, which is the main responsibility of security agencies.4 What happens if “accountable persons or those the Statute is designed to regulate” who are being investigated and have been published in newspapers are found to be innocent after they have been named and shamed? This would jeopardize the interests of the bank involved in many ways, not least that it could find itself involved in protracted costly litigations. The purpose of the paper is therefore to articulate the intricate balance of the need for regulation and ensuring that businesses are able to operate with minimal interference.Item Can state prioritise environment protection(New Vision, 2023) Norman, MugaruraItem CAN TAX AVOIDANCE IN AFRICA BE AVOIDED?(Norman Mugarura (Ph.D.), 2023) Norman, MugaruraItem CAN TAX AVOIDANCE IN AFRICA BE AVOIDED?(By Norman Mugarura (Ph.D.), 2023) Norman, MugaruraThe term “tax avoidance” refers to avoiding paying the right amount of taxes and in many countries, it is not a criminal offence. On the other hand, “tax evasion” is committed when a person uses forged or falsified documents such as falsified financial statements, salary certificates, and formal declarations on ownership of assets or other certificates that are generally accepted as valid proof of a certain fact to hoodwink tax authorities and as a result gain unfair advantage.” Tax avoidance, unlike tax evasion, is legally committed when corporations or individuals take advantage of legal grey areas through the use of aggressive schemes to increase “tax efficiency.” Tax avoidance is often committed by the rich or Multinational Corporations (MNCs) using tax experts such as lawyers and Accountants to avoid paying the right amount of taxes. The irony of it is that those who cannot afford to hire tax experts pay all their tax dues to tax authorities while the rich cheat the system by dodging taxes. Ironically also this means that the poor subsidize the rich instead of it being the other way round. The Asset recovery process is not only tedious and expensive for victim countries, there is also unwillingness of countries where assets have been secreted to release them. Also, Mutual Legal Assistance Treaties (MLAT) are not easy to use where evidence on stolen Assets has been destroyed, assets dissipated, or law enforcement agencies deficient in requisite capacity to initiate and execute the Asset recovery processItem “The closure of Crane Bank and bank failures in other Jurisdictions”(2019) Norman, MugaruraItem “THE CURRENT SPATE OF FINANCIAL CRIMES WITHIN BANKS IS A SETTING A VERY DANGEROUS PRECEDENT”(2022) Norman, MugaruraItem Financial Service Regulation and Financial Inclusion in Uganda(New Vision, 2023) Norman, MugaruraThe surveys were carried out in 2006, 2009 and 2013 by Finscope to correlate whether the improved regulatory environment for financial services had a corresponding effect on increased demand, access to financial services and products in Uganda or not. The indicators of financial inclusion in 2013 survey included (i) access to formal and informal financial services and products (ii) savings and investment, (iii) credit and borrowing, (iv) remittances and money transfer and (v) insurance and financial literacy. In 2013, the survey results indicated that 54% (compared to 28% in 2009) of the Ugandan adult population (those 16 years and above) had access to bank and non bank financial service institutions. An increase in the use of formal non-bank financial services such as insurance and mobile money services were responsible for enhanced access to financial services in Uganda. For instance, the use of formal non-bank services increased from 20% in 2009 to 52% in 2013 and this trend has been in ascendance. There was an uptake in financial inclusion in Uganda from 70% in 2009 to 85% by 2013 with 20% of the adult population (3.4 million adults) having access and use of formal regulated financial intermediation services. Approximately 34% of the population had access to non-bank formal services as opposed to formal banks. In this same vein, it was found that 5.1 million adults, (which constituted 31% of the adult population in Uganda) preferred to use only formal financial institutions as opposed to the informal financial products and services.Item Intricacies of anti-money laundering and cyber-crimes regulation in a fluid global system(emerald, 2021) Norman, Mugarura; Emma, SsaliPurpose – The purpose of this paper is to decipher the law relating to cybercrimes regulation and benchmarking best practices that could be adopted to address regulatory weaknesses in some countries. In many countries, cybercrimes regulation is undermined by a lack of robust regulatory regimes. The few regimes that are available are fragmented with no coherent global strategy to deal with these offences across countries and regions. There is a lot of scholarly literature to corroborate the fact that lack of requisite laws on cyber and financial crimes has rendered states lame ducks when faced with well-organized and resourced criminal organizations. Design/methodology/approach – This paper articulates intricacies of regulating money laundering and cybercrimes using data from selected African countries and beyond. Generic issues on financial crimes, cybercrimes, case law and policy documents drawn from different jurisdictions have been examined based on the objectives of the study. Cybercrime activities and anti-money laundering (AML) regulatory models have been evaluated drawing on experiences of selected countries in Africa and other countries. Questions whether suspicious activity reports are appropriate as a model to counter incidences of cybercrime activities or whether other options should be considered were also examined. Most notably, the risk-based assessment model such as profiling of high-risk clients rather than reporting every transaction will be compared and possibly suggested as a suitable alternative in financial crimes regulation. The authors have evaluated the data and AML regulatory approaches and other policy measures to curtail the foregoing threats. There is a possibility that AML tools used by financial institutions and banking activities could be used to prevent the growing threat of cybercrimes. The paper has also been enriched by case studies of tenuous legal systems and fragmentation of laws on cybercrimes and financial crimes and how these gaps have been exploited to fuel incidences of illicit criminal activities around the globe. The paper has also used empirical data including visits to banks and financial institutions on the nexus between the threat of cybercrimes and money laundering prevention. The authors have been selective, evaluating cases from 2000s to date. This timeline was particularly important because of the increased incidences of computers and money laundering threats globally. After analysing the data, the authors were able to delineate that there is a close connection between the foregoing two crimes, how they operate in practice, differences and similarities in the counter-measures used to mitigate their negative effect globally. Thus, in the authors’ contention, this is a novel study that is likely to spur farther research on law and policy against cyber and AML crimes not only in Uganda but also in other jurisdictions. At the same time, the findings of the study could complement, and perhaps also complete, the work of scholars who have written papers on cybercrimes to advocate for regulatory changes fight against these offences. The study will also complement the work of other researchers who have challenged the segregation of cybercrimes and financial crimes in local and international regulatory discourses. This research aims to make a significant contribution to the study of cybercrimes and how they are regulated in international law. Findings – The findings of the paper have confirmed that the high incidences of money laundering and cybercrimes today are partly fuelled by inherent weaknesses in the global regulatory system and partly fuelled by weaknesses at an individual state level. Many countries have enacted a raft of anti-cyber and AML legislation but this notwithstanding, these laws have not been used to stem cross-border crimes globallyItem “It’s time African Countries utilized the WTO, Dispute Settlement Understanding more to leverage their International Trade Interests.”(2022) Norman, MugaruraThe paper unravels the law relating to WTO, Dispute Settlement Understanding, pointing out why African Countries have failed to harness it to leverage international trade Interests. The ability of African Countries in international trade has been saddled by many factors that characterize Less Developed Countries. The Uruguay Round (1986-94) introduced many changes such as the reduced timelines (from when disputes are initiated to when they are disposed of), admission of third parties to represent poor Countries which may be deficient in requisite capacity to deal with the complexity of the World trade disputes. The paper articulates that the marginalization of African Countries in the World trade system is partly caused by their inability to harness the Dispute Settlement Measure out whys and other inherent factors that saddle them as Less Developed Economies. We adopted a qualitative research methodology, reviewed existing literature and empirical evidence to foster the objectives for writing the paper. There is ample evidence that African Countries have been sidelined because they have not utilized the Dispute Settlement Understanding to leverage their international trade interestsItem Resilience for banks and other businesses in a cyber attack Incident(Dr Norman Mugarura, 2023) Norman, MugaruraItem ‘STATES AND MARKETS AS TWO SIDES OF THE SAME COIN’(2022) Norman, MugaruraThis chapter provides an elaborate exposition of the law and its application bridging the gap between markets and in so doing enables them to co-exist in fostering desired markets discipline and stability. The term law can used to connote many things, for this reason, the law used to refer to the rules governing global markets. The law in its varied contexts is a subset of politics and therefore whether one is talking of market rules or the law in other respect, the law is a reflection of prevailing political climate in a country and other regulatory domains. The analysis of the law and its usage in regulation of global markets will be limited to interstate agreements adopted by states to govern global markets such as the WTO, IMF and the World Bank and other oversight institutions. The market can be understood in the context of emerging regional initiatives such as the EAC, the WTO rules and those engendered by other supranational initiatives. It is an inescapable fact that the relationship between states and markets is complimentary and mutually reinforcing to the extent that when the market sneezes, the state catches the cold literally speaking. What remains sacrosanct is that there is no market without the state and vice versa, meanwhile, they both need the law as a bridge to co-exist in their respective regulatory domains. The law helps to create the space where markets and states work together harmoniously without overlapping each other’s regulatory roles. The author has drawn examples from the East African Community and the European Union member countries to tease the relationship between states and markets (which are literally two sides of the same coin). The irony however is that most of global regulatory regimes are evolved at the periphery of the State, (for example in Brussels for the case of EU Countries) but implemented within the state. The foregoing challenge tends to create tensions/challenges in implementation of engendered market rules conflict with the constitutional mandate of sovereign states. Desired market rules are evolved either at a regional level such as the East African Community (EAC) or the European Union (EU) or at a global level such as the WTO oversight rules on trade. It worth noting that while the State has seemingly been emasculated by proliferating regional groupings, it still calls the shots and as such dictates the pace at which ratified treaties can be implemented and hence dictate the effectiveness of engendered global market initiatives. A good case in point is the recently concluded Brexit in EU whereby the United Kingdom invoked Article 50 of Lisbon Treaty (2009) and quit the EU.2 Thus, the ability of states to implement their international obligations often depends on the goodwill and the prevailing political climate within a state. The challenge has been that states have been emasculated by ceding constitutional powers to regional markets in areas erstwhile within its exclusive domain where it needs to have a strong presence. For examples, important laws on immigration control in Europe are decided in Brussels (the periphery of states) but implemented within member’s states notwithstanding the far reaching ramifications this has on member states in terms of jobs, housing and other social services provisions within a state.Item “States need to fight financial crimes first to succeed in protecting the environment”(2023) Norman, MugaruraItem “States should be clear minded, not to step on others toes before acceding to Integrated Markets(2023) Norman, MugaruraItem THE WAR AGAINST CORRUPTION IS “A LOST CAUSE” WITHOUT ROBUST MEASURES TO REPATRIATE STOLEN ASSETS TO COUNTRIES OF ORIGIN(2017) Norman, MugaruraThe paper discusses the impediments inherent in using anti-corruption laws to repatriate stolen assets to the victim state. It examines both state laws and the international legal frameworks aimed at overcoming these obstacles. The assets in question are accrued by public officials from the proceeds of corruption, money laundering, tax avoidance and other forms of illicit financial transactions in countries where they have been hidden. While less developed countries are often the countries of origin, destination countries of stolen assets tend to be developed Western countries. There is ample evidence showing that the recovery and repatriation of stolen assets to countries of origin is more easily said than done, given the barriers they face. Victim states not only suffer a loss of revenue as a result of economic criminality, but they also incur huge expenses in attempting to recover criminal assets, without any guarantee that they will succeed in doing so. In essence, this article looks into the generic issues related to asset recovery. It examines the approaches adopted by both common law and civil law jurisdictions in Africa with respect to the repatriation of stolen assets, and explores the practicality of harmonising anti-corruption laws across the African continent, as has been done amongst member states of the European Union.Item “WHAT MORE CAN BANKS DO TO STOP THE GROWING THREAT OF BANK FRAUDS”(2022) Norman, MugaruraBanks deal in money and many other lucrative financial products, making them targets for criminal exploitation and attacks. You would have heard the adage that “crime follows opportunity” and since banks deal in lucrative financial products, there is a possibility to be targeted by criminals either from within or without as we have recently witnessed. With the spate of recent Bank frauds in Uganda, oversight agencies cannot sit back, they have a lot of leg work to reverse to ensure safety of bank assets and shareholders equity. One thing for certain is that criminals invest resources before they can raid banks and the banking system. Uganda Bankers Association (UBA) website provides information on how to stave off the growing threat of financial crimes. Other oversight agencies have also shared information via their websites on how to safeguard against financial crimes. However, it needs to be noted that there is no single safeguard measure that is a silver bullet. Banks and other financial institutions need to enhance their capabilities in real-time fraud-detection and to provide instant solutions once an attack has happened.