Lest we forget ICAC

Editorial

In the heat of debate on the highly contentious Financial Services Commission and the removal of the powers of the Director of Public Prosecutions (DPP) as to whether to prosecute or not, which would now seemingly be possible under the new FCC Bill and which would be tantamount to circumventing the Constitution by a simple legislation, we have missed out on a necessary and objective appreciation of the Independent Commission Against Corruption’s track record to date, and to what extent it has been able to effectively fulfil its mandate as well as what it has not been able, or has not wished, to achieve since its establishment. That assessment would have allowed us to take the full measure of what might be in store with a more powerful version of ICAC in the currently proposed Financial Crimes Commission  (which will come with a broader mandate given the scope of offences under its responsibility extended to all financial crimes).

Section 19 (4) the Prevention of Corruption Act 2002 (PoCA), as amended, provides for the appointment of the Director-General of ICAC by the Prime Minister after consultation with the Leader of the Opposition. The same provision will apply as regards the appointment of the head of the Financial Crimes Commission. Given the weight that is given to the “after consultation” proviso in the law, it is the Prime Minister who in fine decides who shall head the institution. Successive governments seem to have taken comfort with this legal provision (rather than a more transparent and independent mechanism), that is open to the suspicion that it allows Prime Ministers to influence if not ‘monitor’ the performance of the institution. Does this place the Director-General of ICAC (and any future head of the FCC) in an uncomfortable position vis-à-vis the head of government?

In an earlier contribution to our Qs & As column, Lex expressed the view that ‘the PoCA 2002 guarantees the independence of ICAC. The law is there. Its proper functioning depends on the holders of power within the ICAC.’ Moreover, even if the PoCA 2002 does not provide for any oversight mechanism that could have monitored the ICAC at its operational level, especially as regards the conduct of investigations, Section 20 (2) & (3) provides that ‘the Commission shall act independently, impartially, fairly and in the public interest’, and ‘subject to this Act, the Director-General shall not be under the control, direction of any other person or authority’ respectively.

To the question as to whether these legal provisions help further the public interest, Lex opined that ‘it is in the public interest, and for the sake of the integrity of investigations it is necessary that an institution that is mandated to fight financial crimes should be independent and not be under the control or authority of anybody or any other institution. The only monitoring mechanism resides in the people who man ICAC. How they do it and how the public react to their actions can be said to constitute a form of monitoring.’ He added however that ‘the perception in the public is that it is not functioning independently. Why, it may be asked, but this would be a rhetorical question.’

In fact, the performance of ICAC and its handling of a large number of high-profile cases has been under the scanner since many years now – even under the preceding government. Its inexplicable turnaround in the MedPoint gave rise to a number of questions as to its independence and impartiality. The list of affairs where it is yet to be known where its inquiries stand, such as the Dufry scandal (2015); the Alvaro Sobrinho scandal (2018); the Sugar Insurance Fund Board’s highly excessive overpayment of land v/s valuation scandal (2018); the Yerrigadoo/Bet 365 scandal (2018); the Glen Agliotti affair (2019), the Serenity Gate/Film Rebate Scheme scandal (2019), St Louis Power Station Redevelopment Project, keeps getting longer. All these pending inquiries highlight the absence of a credible and respected investigative agency capable of handling white collar crime independently of political proximity.

Moreover, the Opposition’s dissatisfaction with the workings of the Parliamentary Committee, whose functions is to monitor and review the general manner in which the Commission fulfils its functions – but it cannot query progress being made, still less intervene or interfere in any specific case under investigation by the Commission. This situation as well as the case filed against ICAC by the Integrity Reporting Services Agency for allegedly failing to furnish it with detailed reports on cases of unexplained wealth have done little to help the image of the ICAC.

Most of the provisions, starting with the appointment of the head of ICAC, and those that prescribe the rules of its functionings will also apply in the case of a future Financial Crimes Commission, which it should be emphasised will come with significantly more powers. It should not be difficult therefore for any reasonable person to guess what that future FCC would be able to achieve – or not wish to achieve.

Mauritius Times ePaper Friday 15 December 2023