‘Can an ICAC investigation override the constitutional powers of the Director of Audit?

Safe City Project, Audit Report & ICAC

Surely the better opinion would be that the supremacy of the Constitution should prevail’

By Lex

The Director of Audit made some scathing comments in his Report for the year 2019/20 wherein it is stated that for the Safe City Project “access to important documents were denied or delayed thereby severely affecting and heavily impairing his audit and preventing him from carrying out his duties under the Constitution”. He also mentioned that his office could not have access to other procurement files from the Ministry of Health and Wellness as well as from the Ministry of Commerce, which had been secured by ICAC for enquiry in relation to the procurement of medical supplies following the outbreak of the Covid-19 pandemic. This matter was taken up by the Leader of the Opposition in his PNQ addressed to the Prime Minister last Tuesday. What follows, in the form of Qs & As, addresses some of the other issues that had not been addressed in the PNQ.

* Does the Director of the National Audit Office (NAO) benefit from some form of constitutional protection in the same manner as the Director of Public Prosecutions, the Commissioner of Police, the Judiciary – such that it can be classified as an independent institution? Or are there nuances in each case?

Yes, he does as he cannot be removed from office except by way of a special procedure just like a judge or the Director of Public Prosecutions by virtue of section 89 of the Constitution.

* The Prime Minister stated, in reply to last Tuesday’s PNQ, regarding the inability for the NAO to consult certain documents in relation to the Safe City project that the NAO should have sought advice from the Attorney General on the constitutionality or otherwise of that decision by the police. Is the PM right?

Annex 3 of the Lease 2 Agreement, signed between the Mauritius Police Force and Mauritius Telecom, makes provision for a Mutual Nondisclosure Agreement at Clause 3, which reads as follows:

“Non-Disclosure of Proprietary Information

Recipient undertakes to retain the Proprietary Information in strict confidence, not to make any use of such Proprietary Information other than as stipulated herein, and not to disclose such Proprietary Information to any third party without the expressed prior written authorisation from an officer of the Discloser.”

In his answer the PM quoted part of section 17(1) of the Finance and Audit Act to criticize the Director of Audit who allegedly did not consult the Attorney General. What specifically should the Director of Audit have consulted the AG about? Is it to interpret the confidentiality clause? The question may be asked whether the confidentiality clause in a lease agreement is an enactment within the meaning of section 17 (1)(d) which reads:

In the exercise of his duties under this Act, the Director of Audit may —

(d) lay before the Attorney-General a case in writing as to any question regarding the interpretation of any enactment concerning the powers of the Director of Audit or the discharge of his duties and the Attorney-General shall give a written opinion on such case.”

The law speaks of enactment. Should we interpret enactment henceforth to include a clause or a condition in a contract?

What the PM omits to mention is section 17(1)(d) which confers the following powers on the Director of Audit:

In the exercise of his duties under this Act the Director of Audit may – (a) call upon any public officer for any explanations and information which he may require in order to enable him to discharge his duties.

Can a clause in a contract or can an ICAC investigation override the constitutional powers of the Director of Audit? Surely the better opinion would be that the supremacy of the Constitution should prevail.

* What could or should have been the advice of the Attorney General if it had been sought by the NAO?

First of all, the answer given by the PM cannot have been prepared without consultation with the Attorney General (AG), who under the Constitution is the principal adviser to the government.

The present one is a member of a political party. One would expect the AG to give a totally independent advice irrespective of party politics or party allegiance.

* Without casting doubt on the integrity and good faith of the Solicitor General’s office, and the Attorney General, the latter is a political appointee. Should that be taken in consideration?

Of course. Can you imagine an AG in the present political climate prevailing in Mauritius go against the wishes of the government? That could be a tough call.

* The director of the NAO states in his report: “… the contract for the “Safe City Project” for some Rs 16 billion was awarded directly to a private company on an operating lease model for a 20-year period. No evidence was produced to NAO to the effect that an assessment was made to ascertain the fairness of the lease payments made by the Police Service under the contract, and thus that the procurement was undertaken in the most economical manner.” Would these explain why more information was not made available to the NAO?

It is difficult to give a clear answer in the absence of all the facts. One may surmise that this may have been the reason if we go by the yardstick of how contracts involving millions of rupees were awarded for the purchase of masks and other medical supplies during the first wave of Covid-19.

* The agreement signed between the Mauritius Police Force and Mauritius Telecom makes provision for a Mutual Non-Disclosure Agreement. Similar contracts had been signed in the past for the supply of fuel. Is this practice in the public interest?

When it comes to public funds, opacity has no place. It is public money, and those who juggle with that money should do so in a transparent manner and be accountable to the people and not to their own private interests.

* These non-disclosure agreements (NDAs) are usually meant to “keep people/institutions from sharing trade secrets, proprietary knowledge, client information, product information, and strategic plans. NDAs keep people from making a profit on any secret company information…” The NAO surely does not fall into that category?

The NAO is a responsible body and should be credited with the integrity and honesty that have always characterised it in the discharge of its functions.

* The NAO also informs us that its “staff faced considerable difficulties to obtain records”. It could not have access to 60 procurement files from the Ministry of Health and Wellness (MOHW), which had been secured by ICAC for its enquiry. It’s only on 25 January 2021, “after the completion of audit, the Ministry informed NAO that there is no objection on its part for NAO Officers to access these files at ICAC.” Is that in order or should the NAO have “préséance” when it comes to access to files over other institutions?

There is a perception the start of an investigation by ICAC could have been a strategy to block any answers being given in Parliament on the transactions in question and which would also, so doing, deny access to the documents by the Director of Audit. That’s hopefully not the case.

* Published in print edition on 2 April 2021

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