Papers by Norman Mugarura
Bishop Stuart University Journal of Development, Education & Technology
The term “BRICS” represents a group of five emerging economies of Brazil, Russia, India China and... more The term “BRICS” represents a group of five emerging economies of Brazil, Russia, India China and South Africa, which started in 2009. These economies have caught the attention of literally everyone--international financial law practitioners, political scientists, countries, international organizations and other stakeholders. The emergency of a unified geopolitical bloc, started to reframe international financial outlook with a new set of new ideas and values. include reforming the global financial and economic architecture, strengthening the principles and standards of international law in many sectors of their economies. The paper highlights prospects and challenges that lie ahead of BRICS countries to fully realize their mandate and to co-exist with the World bank and International Monetary Fund (IMF). The World Bank and IMF have supported economic development of countries since their inception, I however do not see any harm posed by the introduction of more capital from BRICS, i...
The paper discusses the impediments inherent in using anti-corruption laws to repatriate stolen a... more The 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.
Journal of Money Laundering Control, Apr 2, 2020
Purpose-This paper aims to examine how central Banks (in the narrow purview of Bank of Uganda) ex... more Purpose-This paper aims to examine how central Banks (in the narrow purview of Bank of Uganda) exercise their supervisory mandate to foster an efficient sound business environment for banks to operate efficiently. The authors were motivated to write on the subject of bank supervision because of the closure of Crane Bank and putting it under administration in 2016. The closure of this bank generated a lot of controversies on both sides of the political divide and in the press. Initially, the popular view was that Crane bank was poorly supervised, and as a result, it was exploited by insiders to commit money laundering, fraud, insider dealing, just to mention but a few. This put Bank of Uganda (the Central Bank) in a negative spotlight for failure to provide the required oversight of this bank. In Uganda, the supervision of banks and other financial institutions is the responsibility of Bank of Uganda. Design/methodology/approach-The authors adopted a qualitative research approach using secondary data sources, including books, journal papers and websites, and evaluating primary legislation but also empirical evidence both in Uganda and other jurisdictions. The secondary data was evaluated to draw comparative analyses of causes of banks failures in countries both in Africa, Europe, USA and others jurisdictions across the globe. Findings-It would be onerous to charge central banks with the responsibility of preventing bank failures, even though they would are required to institute measures to prevent banks from collapsing and its ripple effects on the economy. Effective banking supervision is a core factor for the success of every bank, but it cannot single-handedly prevent a bank from collapsing. A well-supervised bank can also fail not necessarily because of inherent weaknesses within its banking supervision, but it could fail because of extraneous factors beyond the control of individual banks. For example, Lehman Brothers Ltd (a highly leveraged of broker dealers) collapsed due to factors beyond its control, the Northern Rock and Royal Bank of Scotland in the UK were nationalised by the British Government. Research limitations/implications-The limitation of the paper was that data on central banks and failed banks both in Uganda and other jurisdictions (the scope of the paper) was overwhelming, and it was daunting to sift through and analyse it in depth. Practical implications-Banks play a fundamental role in the social-economic development of countries, and how they are regulated is significantly important for the stability of economies. They provide loans, guarantees and other financial products to businesses, and they are engines for economic growth and development. Social implications-Banks affect, people, societies, businesses, markets and governments. Therefore, this paper has wider implications for the foregoing constituencies. Originality/value-The originality of the paper is that this paper is unique, draws experiences across jurisdictions and evaluates in the narrow purview of banking regulation in Uganda.
Journal of Financial Crime, May 2, 2017
Purpose This paper aims to articulate the complexities posed by tax havens and offshore financial... more Purpose This paper aims to articulate the complexities posed by tax havens and offshore financial centres (OFCs) in the global fight against financial crimes such as tax avoidance and money laundering. It suggests possible measures to mitigate the effect of tax avoidance on economic development of countries, especially less developed poor countries. Design/methodology/approach Data were evaluated using examples and case studies drawn from tax havens and OFCs in newspaper reports to demonstrate how illicit proceeds of crime are spirited out of countries for safe custody in tax haven jurisdictions around the globe. The author also carried out a scoping review of the literature to delineate the correlation between tax havens, OFCs and the growth in financial crimes such as tax avoidance and money laundering. Findings There is a close correlation that bank secrecy laws in OFCs fuel the growth of financial crimes such as tax avoidance and money laundering around the globe. The findings also suggest that while imposition of sanctions on countries which transgress international financial regulatory regimes is an essential component in the international efforts against financial crimes, they need to be enforced on all states so that they are not seen as politicized and subsequently undermined. Research limitations/implications It is important that states work in tandem to initiate desired regimes to address financial crimes but enunciating regimes alone cannot generate a far reaching impact unless they are enforced against all transgressing states. Practical implications The paper has practical implications for states, people, governments, oversight institutions, markets and other stakeholders because it unravels varied issues relating to tax avoidance, money laundering and policies that need to be adopted to address these challenges. Social implications The paper draws attention to the impact of asymmetric information and data generation capacity in some countries on tax avoidance and other financial crimes and the need for international harmonization of tax and AML regimes. Originality/value The issues explored in this paper help to highlight the challenges posed by tax havens and OFCs for economic development of countries. While the paper was undertaken by the review of primary and secondary data, it offers important contributions that could potentially enhance the fight against tax avoidance.
International Journal of Law and Management, Nov 13, 2017
Purpose This paper aims to explore the role of public and private international law and how they ... more Purpose This paper aims to explore the role of public and private international law and how they are used differently in regulation of global markets. Data were sourced from both primary and secondary materials – journal papers, court decisions, textbooks and international legal instruments to gain insights into the role of law and the varied contexts in which it is used in regulation of markets. In an ordinary sense of the word, law sets operational limits to protect normative values and practices in a state – trade, peace, security, just to mention but a few. However, law cannot be confined to deterring undesired behaviours or to settling disputes, but more importantly, a good law should prevent disputes from happening. Law dictates the way of life of a society and its efficacy often depends on how well it is used to order the proper functioning of the system. International law is the set of rules which govern and foster effective relations of states. The paper explores the chasm between public and private international law, with a view to demonstrate how they are used differently in regulation of markets. Public and private international law encompass norms evolved by multilateral treaties, customs, judicial decisions, model laws and soft law instruments by different oversight bodies governing states and other stakeholders in their relationship with each other. These norms/rules create a platform for interstate cooperation on varied regulatory issues of shared interests. While treaties create a uniform framework of rules in all signatory states, their implementation often depends on individual states willingness to transpose them into national law. Owing to the inherent challenges of public international law (interstate practice), it has become imperative for markets to use rules of private international law. While public regulates the relationship of states and their emanation, private international law helps to bridge gaps in the mainstream international legal systems of states and in so doing enhances their co-existence on overlapping regulatory issues. The engendered trans-national norms will over time generate a positive impact on local sustainability and co-existence of different regulatory domains. Design/methodology/approach This paper uses cases studies and experiences of countries to demonstrate the complimentary relationship of public and private international law and how they work in tandem in international legal practice. The paper has also used the varied experiences of states to demonstrate how public and private international law interact in regulation of global markets. Data were sourced from both primary and secondary sources – journal papers, court decisions, textbooks and international legal instruments – to gain insights into the law and the varied contexts in regulation of markets. The case law and experience of states alluded to undertaking this research reflect the complimentary relationship of states for markets to operate effectively. Findings The findings of the paper comport with the hypothesis that markets cannot effectively work unless they are pursued within the framework of rules of public and private international law. The paper has alluded to the experience in national jurisdictions and global to highlight the chasm between different regulatory domains for markets to operate effectively. The paper articulates important practical issues relating to public and private international law in regulations of markets. Research limitations/implications The practical implication of the paper is that it underscores significant legal issues relating to regulation of markets drawing examples within national jurisdictions and globally. Social implications The paper has social implications because markets affect people, jobs and social life in varied ways. It addresses pertinent issues related to the complementarity of public and private international law and how they are manifested in national jurisdictions. Originality/value The paper is original because it nuances the interrelationship of public and private international law, teasing out their interaction in regulation of global markets in a distinctive way.
Journal of Anti-Corruption Law
The paper discusses the impediments inherent in using anti-corruption laws to repatriate stolen a... more The 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 ...
Journal of Financial Crime, 2017
Purpose This paper aims to articulate the complexities posed by tax havens and offshore financial... more Purpose This paper aims to articulate the complexities posed by tax havens and offshore financial centres (OFCs) in the global fight against financial crimes such as tax avoidance and money laundering. It suggests possible measures to mitigate the effect of tax avoidance on economic development of countries, especially less developed poor countries. Design/methodology/approach Data were evaluated using examples and case studies drawn from tax havens and OFCs in newspaper reports to demonstrate how illicit proceeds of crime are spirited out of countries for safe custody in tax haven jurisdictions around the globe. The author also carried out a scoping review of the literature to delineate the correlation between tax havens, OFCs and the growth in financial crimes such as tax avoidance and money laundering. Findings There is a close correlation that bank secrecy laws in OFCs fuel the growth of financial crimes such as tax avoidance and money laundering around the globe. The findings a...
Bishop Stuart University Journal of Development, Education & Technology
The paper deconstructs the law relating to WTO, Dispute Settlement Mechanisms (DSMs) to establish... more The paper deconstructs the law relating to WTO, Dispute Settlement Mechanisms (DSMs) to establish why African Countries have failed to harness it to leverage their international trade Interests. There is compelling evidence to affirm that many African Countries are marginalized in international trade because many odds including failure to harness the WTO Dispute Settlement are stacked against them. 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 handle the complexity of the World trade disputes mechanisms. This paper posits that the marginalization of African Countries in the World trade system is partly caused by inherent factors that saddle them as Les...
Contents: Foreword Preface The conceptualization of money laundering offences and typologies The ... more Contents: Foreword Preface The conceptualization of money laundering offences and typologies The dynamics of globalization and money laundering The global anti-money laundering/countering the financing of terrorism framework The evolution of a global anti-money laundering paradigm Corruption and the domestication of global anti-money laundering regimes Challenges to the localization of global anti-money laundering standards in less developed economies Harmonization of global anti-money laundering laws The proposed reforms to transpose global anti-money laundering regimes into the local economy A glimpse into law and global markets Conclusion Appendices Bibliography Index.
The thesis examines the intricacies of the global AML/CFT framework focusing largely on the three... more The thesis examines the intricacies of the global AML/CFT framework focusing largely on the three jurisdictions of United Kingdom, Uganda and South Africa. These jurisdictions were selected to test the hypothetical model on which this study was undertaken. While appreciating the importance for states to embrace global prohibition regimes to deal with overlapping interstate issues such as money laundering, these regimes often tend to overlook practical realities in member countries they are implemented. Since the global AML framework is implemented through the compliance of individual states, its efficacy would depend on the propensity of individual states to harness it. There is anecdotal evidence to corroborate the thesis that the current global AML/CFT framework is not compatible with the regulatory environment across the majority of LDCs. Thus, this presupposes that it cannot be applicable globally. LDCs are saddled by general systemic failure, lack of economic and social infrast...
Journal of Money Laundering Control, 2020
Purpose Regulators have a duty to enforce anti-money laundering (AML) and countering financing of... more Purpose Regulators have a duty to enforce anti-money laundering (AML) and countering financing of terrorism regulation. However, in doing so, they should not to be overzealous especially in carrying out investigations into suspicious money laundering transactions. This does not mean that oversight agencies should not carry out the required investigations with due diligence. This study aims to propose that banks cannot be allowed to operate in a lawless environment; however, there is a need ensure that businesses are able to operate with minimal regulatory interference. Design/methodology/approach Data was collected from primary and secondary sources such as Uganda’s Anti-Money laundering Act 2013 (amended 2017), Patriot Act 2001, Proceeds of Crime Act 2000 International legal instruments, case law, books, websites, journal papers, policy documents and scholarly debates and evaluated to foster the objectives of the paper accordingly. The paper has also been enriched by empirical expe...
Journal of Money Laundering Control, 2020
Purpose The purpose of this paper is to decipher the law relating to cybercrimes regulation and b... more Purpose 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. Cyber...
Journal of Money Laundering Control, 2018
Purpose The purpose of this paper is to explore the law relating to European Union (EU) Anti-Mone... more Purpose The purpose of this paper is to explore the law relating to European Union (EU) Anti-Money Laundering (AML) Directives and the effect of Brexit on money laundering regulation in the UK and the EU. The first part of the paper involves a review of AML Directives and how they are transposed into the UK. The question whether the fourth AML directive or other directives due to become law in the UK will be implemented or culled will largely depend on the relationship between the UK and the EU going forward. The UK will have the full autonomy in terms of making decisions as to which laws to implement or which laws to scrap or to cull, as it sees fit. The UK having relinquished its membership of the EU notwithstanding could still be bound by EU anti-money directives particularly if it chooses to remain in the EU single market. The UK could also forge alliances with EU member states and in which case it will be expected to apply the same EU market rules as its other EU counterparts. ...
Journal of Financial Crime, 2018
Purpose The purpose of this research paper is to underscore that harmonization of laws, much as i... more Purpose The purpose of this research paper is to underscore that harmonization of laws, much as it might not offer a lasting cure of tax avoidance and other forms of financial crimes, can enhance the fight against it and subsequently help to forestall it. Tax avoidance has remained an intractable challenge and costs governments astronomical sums of money, largely because taxation is a sensitive issue in the realm of sovereign national jurisdictions. The first part of this paper involves a review of empirical data on tax avoidance to create a context for evaluating theoretical issues on tax avoidance and how they are manifested in practice. It draws examples in a cross-jurisdictional perspective given the global character of tax avoidance and evasion as financial crimes. The last part of this paper discusses possible recommendations that could be implemented to tackle tax avoidance and its attendant challenges on economies. Design/methodology/approach The author has carried out a sco...
African Journal of International and Comparative Law, 2019
The widespread mobile phone usage across Africa and in other regions where the number of telephon... more The widespread mobile phone usage across Africa and in other regions where the number of telephone subscribers has now exceeded the number of bank account holders has changed the ease with which banks and other financial services are regulated. Bearing this in mind, the article articulates that mobile phones can be used to plug the gaps in the regulation of the banking and financial markets, not only in Africa but also in other regions. It is worth noting that the data on mobile phones have been used to enhance the ability of oversight institutions to generate information and plug regulatory gaps, especially in the economies of less developed countries. Some countries lack the capacity for robust data generation and as a result have utilised mobile phones to fix the gaps in the regulation and delivery of financial services. Mobile phones have been utilised to effect payment to workers and to pay household bills, and are used by small businesses to effect international business trans...
Journal of Money Laundering Control, 2017
Purpose The purpose of this paper is to explore dynamic issues relating to Ponzi and other fraudu... more Purpose The purpose of this paper is to explore dynamic issues relating to Ponzi and other fraudulent investment schemes to demonstrate how scammers convince victims of investment opportunities that turn out to be nothing but fraudulent. Specifically, it explores the nature of Ponzi, Pyramid, Advance fees scams and the mechanisms used to defraud unsuspecting victims of their money. The risks associated with Ponzi schemes can be gleaned in the fraud case of Bernie Madoff (1998) who had been running a Ponzi scheme in the USA for 20 years and reaping investors of their returns without ever discovering it until the business collapsed. The other notorious investment scams include “the Nigerian letter frauds” which combine the threat of impersonation fraud with a variation of an advance fee scheme in which a letter is mailed to offer recipients the “opportunity” to share in a percentage of millions of dollars that the author – a self-proclaimed government official – is trying to transfer ...
Journal of Financial Crime, 2016
Purpose The paper aims to explore a multiplicity of corporate governance issues in the narrow pur... more Purpose The paper aims to explore a multiplicity of corporate governance issues in the narrow purview of different corporate governance systems and procedures across jurisdictional contexts. It shows a correlation between proper implementation of rules and procedures in a corporation for determining the success or failure of corporations. The paper also posits that however robust internal corporate rules and procedures are, the recent experiences have demonstrated that the fate of corporation could also be dictated beyond the remit of individual corporations by extraneous factors such as globalisation. This was vividly underscored by the recent global financial crisis (2008-2010) and its devastating consequences on well-managed corporation worldwide. The author has structured the paper into two parts – part one and part two. Part one is designed to explore the dynamics of corporate governance in fostering the success or failure of corporations. In part two, the paper examines the in...
Journal of Financial Crime, 2016
Purpose The purpose of this paper is to articulate the mandate of the International Monetary Fund... more Purpose The purpose of this paper is to articulate the mandate of the International Monetary Fund (IMF) not least in promoting a sound legal regulatory environment for markets to operate globally and its inherent challenges. While acknowledging the plausible work done by the IMF in supporting countries to achieve their macro-economic stability, the paper articulates some of its shortcomings as a global institution. It is evident that the post-war climate in which the World Bank and IMF were created has drastically changed – which presupposes that these institutions now need to reposition themselves to reflect on contemporary global challenges accordingly. The author has argued in the past that a robust regulatory system should be devised taking into account the dynamic challenges in the market environment but also to prevent them from happening again. Design/methodology/approach The paper has utilized empirical evidence to evaluate the mandate of the IMF in addressing its dynamic ch...
International Journal of Law and Management, 2016
Purpose The purpose of the paper is to examine the law relating to different types of guarantee s... more Purpose The purpose of the paper is to examine the law relating to different types of guarantee schemes and the circumstances in which they are used to safeguard against default risks in international commercial practice. Different types of guarantee schemes are used in different contexts, often depending on which types and the purpose they have been sought. Design/methodology/approach The paper was undertaken by evaluating secondary data sources, empirical examples and case law to underscore the pitfalls commercial parties need to always bear in mind with regard to guarantees and factoring and their usage in international commercial practice. Findings The paper articulates the law relating to different types of guarantees and how they are harnessed to provide security against default risks in international commercial practice. By the very nature of guarantees, they tend to be in high demand in times of economic uncertainties when banks and other financial institutions find it less ...
Journal of Money Laundering Control, 2016
Purpose The purpose of this paper is to articulate that ill-defined global prohibition regimes su... more Purpose The purpose of this paper is to articulate that ill-defined global prohibition regimes such as anti-money laundering (AML) could potentially cause more harm than good. The author has carried out a scoping review of some anti-money laundering regimes such as the USA PATRIOT Act to demonstrate how they have been harnessed in some jurisdictions. It deconstructs the broad scope in which money laundering offences are conceptualized and applied by different jurisdictions and its inherent challenges. It has scoped a wide range of issues, often articulating the inherent controversies in some engendered AML regimes such as the USA PATRIOT Act (2001) and its revised Know Your Customer (KYC) model. Design/methodology/approach This paper was undertaken by straddling a wide range of issues in relation to the shortcomings that are inherent in AML regulatory regimes and their application in practice. However, the analysis focuses on the failures of some AML regimes concentrating largely on...
Uploads
Papers by Norman Mugarura