‘The fairness resides in how the inquiry is conducted and its integrity and independence’
* ‘ It is clear to any objective observer that the allusion to the anonymous letter and its referral to ICAC were a purely political gamble. What did ICAC do?’
The Report of the commission of inquiry set up to assess specifically the actions of former President Ameenah Gurib-Fakim is being taken for a Judicial Review before the Supreme Court though its conclusions have already been termed damning by the PM and his ministerial bench. In the light of those political condemnations, Lex comments on the extent of immunity granted to the former President either in the Constitution or in the POCA legislation which could handicap ICAC or Police investigations. What then is precisely “indecorous” remains open to question as the advisability of having sitting judges on arbitration or Commission duties.
* Would it be fair to argue that it’s the composition — the chairperson and his/her commissioners/assessors, and more importantly its Terms of Reference (TOR) — both of which are decided by the government of the day — that play a crucial role in what will eventually come out of from any such inquiry?
There is nothing unfair in the composition of the commission nor in the terms of reference. The fairness resides in how the inquiry is conducted and its integrity and independence.
* But it’s the government that sets the agenda and decides in most cases what it wants to be looked into, and the Commissioners are bound by the TOR; they cannot go beyond those terms, right?
Yes, the commission of inquiryis bound by itsterms of reference.
* Besides the ‘coercive powers’ that allow a commission of inquiry to summon witnesses to appear before it and to require them to answer questions under oath, what’s the rationale behind the provisions of not allowing such commissions to prosecute individuals nor to make their recommendations binding?
The rationale is based on fairness. Before a commission of inquiry (COI) a witness cannot refuse to answer questions on pain of a penalty, even if some answers may be incriminating. This is why no evidence gathered by a COI can or should be used against an individual.
* It appears that the Police and ICAC will investigate into the findings of the Caunhye Commission on Ameenah Gurib-Fakim, former President of the Republic. Would it be correct to say that it should not take both agencies too much time to get to the bottom of this case given that the groundwork has already been done by the Commission?
Why did ICAC stop the inquiry it had started initially? Hopefully it was not politically motivated or could it be that it was informed or was aware that a COI would be instituted. It is not a question of how much time the present investigation will take, but whether in law the ICAC can inquire into the acts of the former President. In the first place, what mandate did ICAC have to start its initial inquiry? Was it to investigate on AG Fakim or to inquire into the whole Sobrinho saga?
* In accepting that assignment and its very narrow terms of reference, would the Commissioners be aware that they were expected not to delve into other key high-level players involved in the tenebrous Alvaro Sobrinho affair?
It is not fair to impute such a motive to the commissioners. They were appointed to look into matters as per the terms of reference. The terms of reference were limited to the acts of the former President.
* Neither the Police nor ICAC is constrained by any TOR as in the case of the Caunhye Commission. Does this therefore mean that both investigative agencies can go beyond the findings of the Commission?
The police and ICAC investigators will look at the facts gathered before the COI and direct their investigations accordingly. They can probe further as they are not bound by any terms of reference except investigating offences known to law and respecting the rights of the persons under investigation.
* There is to date the non-resolved mystery around the issue of the anonymous letter, which was received by the Prime Minister and which contained allegations against Ameenah Gurib-Fakim. The PM had himself revealed in a press conference on the day the former President resigned (23 March 2018) that he had referred the matter for investigation by the ICAC. Whatever happened to that investigation, or whether it was suspended due to the then ongoing Caunhye Commission is not known. What’s your take on that?
It is clear to any objective observer that the allusion to the anonymous letter and its referral to ICAC were a purely political gamble. What did ICAC do? Did it start an inquiry and thereafter put it on hold or what? We will never know. Read More… Become a Subscriber
Mauritius Times ePaper Friday 23 September 2022
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