Qs & As
“It appears the Integrity Reporting Services Agency has so far tracked down one individual in great fanfare: Navin Ramgoolam”
* ‘Though the Agency can act on a report, that does not mean that it can or should remain passive and wait for reports from the other investigative agencies to act’
An important requirement in the fight against unexplained wealth or illicit enrichment is the efficacy of the institution/s tasked to investigate and take action against those found culpable. The crucial point of relevance is that such an institution must be totally independent and not be subjected to the influence or control of the executive, not even by perception. Further, too many institutions pursuing the same objective can result in confusion and overlapping of roles that affect the delivery of expected outcomes.
Lex puts these issues, especially the tracking of unexplained wealth, in perspective.
* Snide comments have been made about the track record of the Integrity Reporting Services Agency (IRSA), which was set up under the Good Governance and Integrity Reporting Act 2015, and which costs the public exchequer more than Rs 30 M annually. We have two foreign nationals with undeniable experience heading the Agency – Lord Phillips as Chairperson of The Integrity Reporting Board, and Paul Keyton as director and who comes with an impressive CV. Could there be something fundamentally wrong with the system in which the IRSA operates that does not allow it to deliver?
Prior to the Good Governance and Integrity Reporting Act 2015 (GGIR), there already existed legislations to deal with illicit wealth, like the Prevention of Corruption Act 2002 in the case of ICAC, and the Financial Intelligence and Anti Money Laundering Act (FIAMLA). It would appear in the public perception that the bodies established under these legislations have not been delivering. Whether this is true or not, it is for these bodies to reassure the public about their record of delivery.
Instead of beefing up these institutions, the Government in 2014 with the then minister of Good Governance Roshi Bhadain in the lead decided to amend the Constitution on the protection of property and enact the GGIR. What was the aim? To track down those who cannot explain their wealth or sources of their wealth.
It appears the Integrity Reporting Services Agency, established under the GGIR, has so far tracked down one individual in great fanfare when the former Prime Minister Navin Ramgoolam was arrested for having a substantial amount of money in a safe at his place. We have not heard of any other case where the Agency has acted with such fanfare. Why? Is the law itself – the Good Governance and Integrity Reporting Act 2015 – being used as a political weapon? Maybe individuals are being tracked and assets seized, but we do not get to hear about them. Why?
* During debates on the Good Governance and Integrity Reporting Bill, Paul Berenger had besides criticizing several measures proposed in the Bill as well as the amendments to the Asset Recovery (Amendment) Act and the Constitution, questioned the need for such a bill. His point was that our existing laws could have been amended to fight illicit enrichment. He might have been right, it would seem?
Paul Berenger was perfectly right. The existing laws would have been enough or could have been improved with some amendments. So why create this white elephant called the Good Governance and Integrity Reporting Act that established two bodies – the Integrity Reporting Services Agency and the Integrity Reporting Board?
The weakness of these and other existing institutions lies in the fact that either those at the helm are not capable of delivering, as pointed out by the European Union that has blacklisted our financial sector, or could be at the beck and call of the government of the day – that’s at least the perception.
* It would seem that the tracking of illicit enrichment/unexplained wealth was better taken care of when asset recovery fell under the purview of the Office of the DPP. But the law has since been amended to bring it under the Financial Intelligence Unit (FIU), which falls under the Ministry of Financial Services and Good Governance – that is part of the Executive. Is the public interest best served when the Executive’s power of control over the institutions in charge of the fight against corruption is strengthened?
Let us not mince words and be blunt. The removal of the DPP from the Recovery of Assets was a purely political move aimed at clipping the wings of the present DPP. It was not the aim of the government to strengthen the mechanism for recovery of illicit assets.
Remember the Prosecution Commission Bill, that was destined to place the DPP and by extension the decision to prosecute or not under the Executive. Since Recovery of Assets has come under the purview of the FIU, we have not heard much about its performance on that score, unless action has been taken of which we are not aware.
* The IRSA may well be shielded from Executive/political interference, but how much can it do with a skeletal staff of apparently 4 executives – a far cry from the team of forensic accountants, auditors, lawyers and former senior civil servants, as advertised by the then Good Governance minister Roshi Bhadain when the Agency was in the process of being set up in 2016 ? Do the authorities want it to succeed in its mission?
If after three years of existence the track record of the institutions under the GGIR have failed to deliver, one would have expected those at the helm of these institutions to suggest and advise on reforms that could be undertaken to give more powers to the GGIR institutions. You do not stay put when the machinery is getting rusty.
* We have lately seen the IRSA take the unusual route of dragging another State institution – the ICAC – to court for allegedly failing to fulfil its statutory obligations, as prescribed by the law, to submit detailed reports instead of summary notes on suspected cases of unexplained wealth. Does this point to a breakdown in the system put in place to fight fraud and corruption, or don’t we want the IRSA to fulfil its duties?
Under the GGIR the Board can request another agency to investigate. It appears that the ICAC true to its image has not lived up to the expectations of the GGIR, hence the court case. But it must be added that the Agency has wide powers under the GGIR.
* One wonders how the EU, which has blacklisted the Mauritius jurisdiction, would react to the fact that the IRSA has had to apply to the court in the tussle with ICAC?
All this will not look well in the eyes of the European Union and this may delay our removal from the blacklist. Ghana also was having issues with the EU, and surely it has taken corrective measures to the satisfaction of the EU which explains the removal of this country from the blacklist. In Mauritius, we hear every day that corrective measures are being taken or will be taken. It appears that these so-called correctives have not had any impact on the EU so far.
* There seems to be a problem of effective – or even resistance to – collaboration between investigative agencies operating in the fight against fraud and corruption or drug trafficking. Does it also explain why we have not heard much from the taskforce, set up in the wake of the Lam Sham Leen Drug Commission report, which was mandated to adopt a coordinated approach with a view to implementing the measures recommended by the Commission?
That’s the difficulty when too many institutions are pursuing the same objective. The same powers are wielded by them and at times there may be an overlapping of powers. The taskforce, if ever it came into existence, is either dormant and may wake up when it would be too late. Or, it could even be as extinct as the Dodo.
* Notwithstanding the IRSA’s court action, the Good Governance and Integrity Reporting Act 2015 allows for the Agency ”to investigate on its own initiative” cases of unexplained wealth. It appears there is a huge underground economy lying down there. Does it seem that we are being able to grapple with this particular issue?
It is clear that the Agency can take the initiative to require a person to furnish particulars of his assets. Though the Agency can act on a report, that does not mean that it can or should remain passive and wait for reports from the other investigative agencies to act.
* The leader of the Labour Party has challenged the Good Governance and Integrity Reporting Act and the constitutional amendments preceding the introduction of the law on the ground that this would violate the principle of the separation of powers between the Executive, the Parliament and the Judiciary. Is he right?
It will be for the Supreme Court to determine whether Navin Ramgoolam is right or not. But nothing prevented him from challenging the constitutionality of the legislation. The right of any citizen to challenge the constitutionality of a piece of legislation is guaranteed by the constitution.
* Published in print edition on 25 May 2021
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