Are Commissions of Inquiry being trivialised as soapbox tools for political ends?
By Jan Arden
The report submitted these days by the Presidential Commission set up in April 2017 to inquire into the facts and circumstances in which Mauritius had sold the shares which BAI Company Ltd and its related entities held in Britam Holdings Ltd (Kenya), plunges us back into the 2015-2017 era, where power politics, raw ambitions and reckless decision-making, ended up in our countrymen being forced to foot the colossal bills that ensued.
“The Commission has some choice words for ex-Minister Bhadain, duly elected in Quatre-Bornes and entrusted by late SAJ with high responsibilities: 1242. To get a ministerial position soon after one’s first election happens only to a few fortunate ones, one would argue. Except that when he took his ministerial chair, he had everything that goes into it except the little desk experience essential for running public affairs…Landlubber boys embarking on a rescue mission on the high seas without buoys. That and other querulous statements of a similar nature are in effect a damning broadside at late SAJ’s judgement and his ability to control his cabinet…”
Sir Anerood Jugnauth became PM and Vishnu Lutchmeenaraidoo Minister of Finance and Economic Development, but both for different reasons, were to vacate their substantive posts by the end of that most turbulent of eras, the second in early 2016, (accepting Foreign Affairs), and the first in January 2017, (accepting the newly created post of Mentor in Cabinet). With Pravind Jugnauth assuming the twin mantles of PM and Finance in January 2017, and the Ministry of Good Governance of then Minister Roshi Bhadain left vacant, a bitter public fall-out between those two former close comrades led to the latter’s resignation from the National Assembly in June of that year.
That is the known political context surrounding the setting up in April 2017 of the Britam Commission of Inquiry which in other circumstances may never have seen the light of day. Even though the Commission spends chapters defending itself from accusations of bias, conflict of interest or political witch-hunting, the timing and circumstances of its birth cannot be interpreted in vacuo and has everything to do with the seismic political upheavals of the times. Nowhere was this more evident than in the key Terms of reference (TOR) that was to guide the Commission’s agenda and which reads as follows:
(vi) “whether in relation to the above transaction [sale of Britam shares] there has been any fraud, malpractice, corruption, undue influence or, other misdeeds by any person involved in negotiating and finalizing the sale of said shares and whether any financial prejudice has thereby been caused to any person in Mauritius;”
We will leave the political dimensions to the politicians and the promise of immediate judicial challenges for the Supreme Court to thrash out, but any reasonable man would infer that the bow was strung and the arrow directed squarely at former close acolyte Bhadain.
Nevertheless, we can surely recognise that if there have been indeed shady circumstances around the sales of the BAI shares in Britam (Kenya) leading to a loss to the exchequer of Rs 1.3 to 1.9 billion, as alleged in TOR (ii) of the Commission, then these deserved to be investigated and reported on. This was the basis of the investigation by the Commission, to look into
(ii) “the circumstances in which the Special Administrators, Messrs Yacoob Ramtoola and Georges Chung, did not proceed with the sale of the BAI Company (Mauritius) Ltd and related entities shares in Britam Holdings Ltd (Kenya) for the sum of MUR 4.3bn offered by a potential buyer, namely, MMI Holdings Ltd (South Africa) and, instead proceeded to sell the said shares to the existing shareholders, namely, Messrs Peter Munga and other investors (Kenya) for the sum of only MUR 2.4bn;”
The allegation that there have been better offers, most notably from South African firms and conglomerates, in particular MMI Holdings, had been widely rooted in the media and, while we certainly would have much to say about former Minister Bhadain’s overbearing actions during the period of political turmoil between 2015 and 2017, the question needed to be laid to rest definitively. Were there such binding concrete offers from South Africa or MMI or was it just rumours, allegations or obfuscation for political reasons?
And this is precisely what the Commission might have considered as its first essential task, clearing the ground zero, as it were, for its investigations. The Commission does answer the question but to locate it and its specifics, we had to wade through pages of materials and testimonies to piece together the essential facts, noticeably parked away in various parts of the Report.
We summarize them below as they come from two of the most reliable sources, the Financial Secretary at Ministry of Finance and Economic Development (MOFED) and the first appointed Special Administrator (Yacoob Ramtoola):
(a) The only offer from MMI Holdings was never concrete and binding but, at best, a proposal based on prevailing Kenya stock market listings, subject to due diligence being carried out in Kenya by MMI. The formula proposed was Quoted Share price times 1.5 to take account of the premium value of those shares and this was vetted and reckoned as fair by MOFED and the Financial Secretary.
(b) The Kenyan authorities made it clear to the MOFED and our FS, Dev Manraj, that for their own sovereign reasons, they were unwilling to allow South African penetration into the important Kenyan player that was Britam (Kenya), which meant therefore that no offer could be entertained from MMI or from South Africa.
The Commission would have been perfectly entitled to close the whole inquiry there and then and send the dossier, fuelled by highly mediatised but unsubstantiated allegations, back to the President of the Republic. But as they ploughed on, let us probe further in the Report as mere profanes.
(a) Given the very official Kenyan stance, there was no other alternative admitted the Financial Secretary than to negotiate the best possible deal with Kenyan buyers as the matter was relatively pressing to compensate the SCBG policy-holders or re-imburse the Bank of Mauritius advances. Besides share prices were tumbling fast on the Kenyan stock market, shaving value off the Britam shares.
(b) As a key witness, then Special Administrator, Yacoob Ramtoola explained:
“…that MMI Holdings, according to him while proposing the figure of MUR 4.3bn had based itself on the prevailing share price of Britam on the NSE which was then Kes 26.90, including a premium of 50%.
He stated to the Commission that the decision to accept the offer of MUR 2.4bn made by Plum LLP was taken at a meeting chaired by ex-Minister Bhadain in his office in the presence of officials of the MFSGG & IR, its Advisors, the FS, the FSC, NPFL and himself…”
It is worth noting from the Report that at that time of consensus agreement, the share price on the NSE was 11Kshs (Kenyan Shilling) per share and Plum (Munga et al) were actually offering 16 Kshs per share, a figure that the whole Mauritian side considered to be advantageous and the deal was accordingly settled. Given the above averments, derived from the Commission’s Report itself, one wonders whether there was any worthwhile cause to pursue over several years at probably substantial costs to the taxpayer.
Whether the Commission was somewhat peeved and empty-handed on the TOR (ii) or (vi) quest, they ploughed on and did find some comfort in alleged derailments elsewhere, notably two versions of a Note of meeting for which police enquiry is recommended.
The Commission has some choice words for ex-Minister Bhadain, duly elected in Quatre-Bornes and entrusted by late SAJ with high responsibilities:
1242. To get a ministerial position soon after one’s first election happens only to a few fortunate ones, one would argue. Except that when he took his ministerial chair, he had everything that goes into it except the little desk experience essential for running public affairs…Landlubber boys embarking on a rescue mission on the high seas without buoys.
That and other querulous statements of a similar nature are in effect a damning broadside at late SAJ’s judgement and his ability to control his cabinet in that short-lived two-year prime ministership that left such a heavy legacy for the population to bear. There seems little reason to celebrate an Inquiry that could have been closed after a few months, represents a waste of taxpayer money and whose credibility suffers so seriously from its political broadsides.
Another Commission that has been appointed after the Betamax affair which has already cost taxpayers a hefty price, is widely perceived as having political dimensions at its root. Are Commissions of Inquiry being trivialised as soap-box tools for political ends?
* Published in print edition on 3 August 2021
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