From Electoral Rhetoric to Legal Reality: Challenges in Enforcing Accountability

Qs & As

Under the MSM, arrests were made without due evidence. The new government must affirm that justice requires investigation, evidence, and due process — not arbitrariness

Soopramanien Kistnen’s murder: ‘The lingering question is whether political interference played a role in hindering a proper investigation’

By Lex

In the wake of the electoral victory of the Alliance du Changement, the electorate has placed its trust in the new government to deliver on its promises of accountability, transparency, and reform. However, as the months pass, public impatience is growing over the perceived slow pace of investigations and actions taken against those suspected of corruption and misconduct. The public expects swift and decisive action, but the government must balance this demand with the critical need for due process and fairness in legal proceedings.

From the pursuit of justice in high-profile cases, such as the murder of Soopramanien Kistnen, to the implementation of robust anti-corruption measures and the enforcement of the rule of law, the challenge remains: how can the government deal with these complexities while upholding the principles of justice and fairness that form the foundation of a democratic society? Lex explores the legal frameworks, challenges, and potential reforms necessary to meet these expectations and ensure that accountability is not only promised but delivered.

* The electorate, having voted for the Alliance du Changement based on their commitment to bring about positive change in the country and promote accountability, now expects decisive action and accountability for those suspected of wrongdoing. There is growing public impatience regarding the perceived slow progress in holding individuals accountable. How can the government balance the public’s demand for swift action with the need for due process and fair trials for any individual implicated?

During the electoral campaign, politicians promised that, in the event of victory, defeated MSM politicians would be sent straight to jail. This was a mistake, and they got carried away by their passion. They should have recognized that Mauritius is a country committed to the rule of law.

What occurred during the MSM’s time in power was a complete disregard for the rule of law and constitutional principles, with people being arrested without a prima facie case.

The politicians currently in the majority should now explain to the public that citizens cannot be arrested arbitrarily. Investigations must take place, evidence must be gathered, and due process must be followed. It’s important to convey that while the MSM was focused on political vengeance, the Alliance du Changement is committed to upholding the rule of law.

* To what extent does the concept of reasonable suspicion protect individuals from arbitrary arrest in a democratic society?

The principle of individual liberty is a cornerstone of both democratic societies and human rights. Deprivation of liberty is a serious matter and can only be justified if it is lawful and necessary. Any deprivation of liberty is subject to judicial scrutiny.

Article 5 of the Constitution states that no person shall be deprived of their personal liberty except as authorized by law, and only upon reasonable suspicion of having committed, or being about to commit, a criminal offence.

Arrest is an exception to the right to personal liberty. The responsibility to justify an arrest lies with the person making the arrest. They must cite the specific law under which the arrest is being made and demonstrate that the power to arrest was properly exercised. An arrest cannot be made based merely on an allegation or vague suspicion; the suspicion must be reasonable.

“Reasonable suspicion” is a key safeguard in relation to police powers of arrest under both the Constitution and relevant laws. This requirement ensures that the power of arrest is not exercised arbitrarily. While the threshold for establishing reasonable suspicion is low — there is no need for a prima facie case before an arrest can occur — it is crucial that the safeguards in place prevent the unnecessary arrest of innocent individuals.

* On the other hand, what legal avenues remain available to ensure a thorough and impartial investigation into the murder of Soopramanien Kistnen, particularly in light of possible political connections?

The case has been pending for an unusually long time, raising serious concerns about whether any meaningful outcome will emerge from further investigations. From the outset — when the police hastily concluded that Kistnen had taken his own life — it appears there was a lack of genuine effort to pursue the matter with the rigour it deserved.

This is troubling, especially given that investigative procedures are well established and well within the competence of the police. The lingering question is whether political interference played a role in hindering a proper investigation.

* One would expect the current government to ensure that all investigations and any resulting legal proceedings are conducted with full transparency and in strict adherence to the rule of law. This is essential for maintaining public trust and avoiding any perception of political vendetta. That should not be a tall order — should it?

Indeed, “reasonable suspicion” that a criminal offence has been committed presupposes the existence of facts or information that would lead an objective observer to believe that the individual in question may have committed an offence.

When a police officer — or any authority vested with the power of arrest — acts, they must consider the full context. This includes not only the available evidence but also the explanations offered by the suspect and the possible motives of the complainant or declarant.

Any suspicion held by the police must be balanced against factors that may favour the suspect. Ignoring the suspect’s explanations altogether may lead to the conclusion that the suspicion was neither reasonable nor based on just cause. In such cases, the arrest would likely breach section 5(1)(e) of the Constitution, which protects against unlawful deprivation of personal liberty.

* Are there legal protections in place for whistleblowers who might come forward with information related to alleged wrongdoing?

Unfortunately, Mauritius lacks a comprehensive legal framework dedicated to the protection of whistleblowers. While the Financial Crimes Commission Act has provisions to protect the identity of individuals who report corruption, these measures are limited in scope and do not constitute a full whistleblower protection regime.

Additionally, while law enforcement agencies — such as the police — do rely on informants to detect and investigate crimes, this informal reliance does not offer robust legal safeguards for those who risk coming forward with sensitive or politically charged information.

* What are the potential legal challenges and limitations the government might face in pursuing these investigations and prosecutions?

One of the primary challenges lies in the complexity of financial crimes. These offences often involve intricate networks of transactions, layered through multiple entities and jurisdictions, making investigations time-consuming and resource-intensive.

While the Financial Crimes Commission (FCC) is vested with broad investigative powers, dealing with the complexities of financial records — especially when they span several years or involve sophisticated concealment tactics — can significantly delay the process.

Moreover, certain investigations may require access to information or witnesses located in foreign jurisdictions. In such cases, the authorities must rely on international cooperation mechanisms provided under mutual legal assistance treaties.

* What legal reforms, if any, could be implemented to strengthen anti-corruption measures and prevent similar issues from arising in the future?

In truth, the need may not be for additional laws, but for integrity and accountability in the enforcement of existing ones. The effectiveness of anti-corruption frameworks ultimately hinges on the honesty and independence of those entrusted with public institutions.

Ministers and politicians, in particular, must adhere strictly to the principles of good governance and integrity. It is not the role of a minister to interfere in the daily operations of public institutions. Public procurement and the awarding of contracts are governed by established procedures, typically managed by civil servants. Ministerial interference in these processes is unjustifiable — unless there is a hidden agenda or personal interest in the outcome.

Moreover, civil servants and leaders of public or semi-public bodies must act with independence and professionalism. Blind obedience to political directives undermines the rule of law and erodes institutional credibility. Strengthening a culture of accountability, rather than introducing more legislation, may be the most effective way forward.

* What are the legal protocols and international cooperation mechanisms that could be leveraged if evidence of wrongdoing extends beyond national borders?

Mauritius has a robust legal framework for international cooperation in criminal matters, primarily through the Mutual Assistance in Criminal and Related Matters Act 2003. This Act, which came into force in September 2003, enables Mauritius to both provide assistance to foreign states and international tribunals in criminal investigations and related matters, as well as to receive such assistance in return.

Under this law, Mauritius can assist in investigating and prosecuting serious offenses that have transnational elements, such as money laundering, corruption, or other financial crimes. Similarly, the Act facilitates the sharing of evidence and the execution of requests for extradition, allowing for a more effective response to criminal activities that cross borders.

* Considering the promise of a “politique de rupture,” what specific legal and institutional changes can the government implement to demonstrate a clear departure from past practices and foster a culture of accountability?

The enactment of a Fiscal Responsibility Act would be highly beneficial. In a 2003 research paper, the World Bank explained that fiscal responsibility laws are designed to help institutions and governments avoid irresponsible fiscal behaviour that may offer short-term advantages but would ultimately be collectively damaging.

Fiscal policy without political responsibility will not work in practice. Political forces play a key role in shaping financial policies, and a lack of vision often leads to the accumulation of government debt, in line with long-term political trends and political economy incentives that promote further debt accumulation. While legislation on fiscal policy would establish rules and norms for government management of public finances and spending, there may be situations that require some flexibility in adhering strictly to the rules outlined in fiscal policy legislation.

Mauritius Times ePaper Friday 25 April 2025