National Crime Agency: How Independent Will It Really Be?
Qs & As
Constitutional status alone will not guarantee independence
By Lex
The proposed National Crime Agency is being presented as a major new pillar in Mauritius’ fight against serious and organised crime. But its effectiveness will depend not only on the powers it is given, but also on the safeguards put in place to protect its independence, ensure accountability and prevent political interference. From the appointment of its director-general and control of its finances to surveillance powers, unexplained wealth investigations and its relationship with the DPP, several constitutional and institutional questions remain. We discuss these issues with Lex and the safeguards needed to ensure that the NCA serves the public interest while remaining subject to effective democratic and judicial oversight.
* Recent press reports on the proposed National Crime Agency (NCA) Bill suggest that the NCA will be an independent agency with constitutional protection. But will this alone ensure its independence, or will other safeguards be needed?
Constitutional status alone will not guarantee the operational independence of the proposed NCA. While a constitutional amendment is vital for shielding the agency from arbitrary dissolution or standard political interference, experience in Mauritius and globally demonstrates that true independence requires robust institutional safeguards. The process for selecting the director-general must be non-partisan. If the head is appointed entirely by the executive, the agency’s actual and perceived neutrality could be compromised from the outset.
* Past experience with anti-corruption bodies shows that the appointment of the director-general can be a weak point in ensuring independence. Under the proposed bill, the NCA director-general would be appointed by the President on the advice of an Independent Advisory Panel, after consulting the Prime Minister and the Leader of the Opposition. Is this process sufficiently protected from political influence?
No, this mechanism is not entirely insulated from political influence, as it still leaves significant gate keeping and final decision-making power in the hands of political actors. While the inclusion of an Independent Advisory Panel and consultation with the Leader of the Opposition are positive safeguards, experience with anti-corruption bodies around the world shows that “consultation” does not necessarily amount to a veto power. Executive discretion therefore remains a potential weakness.
This mechanism may still leave room for political influence because, even when the President acts “on the advice” of the panel, the executive may retain significant discretion to accept, reject or delay an appointment from the shortlist.
* Should the director-general (DG) serve a fixed, non-renewable term to avoid potential political pressure, and what removal procedure — involving Parliament, the judiciary, or an independent body — is needed to secure institutional independence?
The rules governing the NCA director-general’s tenure and removal involve a balance between executive oversight and the agency’s independence. Under Mauritian law, there is no single formula for determining the DG’s tenure and removal; the key is to strike the right balance between accountability and institutional independence.
* Is constitutional status alone an insufficient shield if the executive controls an agency’s budget, staffing, and resources, or can legal guarantees ensure independence without complete financial and operational autonomy?
Constitutional status alone may not be enough to protect the NCA’s independence if the executive controls its funding, staffing and resources. Without financial and operational autonomy, the government could limit its resources or influence investigations through control over appointments. Strong legal safeguards, however, can provide important protection for the agency’s independence.
* The proposed legislation reportedly gives the NCA modern investigative tools, including data preservation, production orders and surveillance. The government says that the most intrusive surveillance measures will require judicial authorisation. What standards would a judge apply before authorising surveillance?
A judge must assess the request against strict constitutional and legal safeguards.
The judicial authority will generally apply a two-part test based on international human rights principles: necessity and proportionality. The government or law enforcement agency must show that surveillance is necessary and justified. The judge will assess this against clear and legitimate criteria.
The surveillance must be directly linked to the investigation of serious offences. Investigators must also demonstrate that the information or evidence sought cannot reasonably be obtained through less intrusive means.
* What specific remedies — such as compensation, suppression of illegally obtained evidence, or disciplinary sanctions — should be available to individuals subject to unlawful privacy breaches?
To ensure that the proposed NCA and its surveillance powers respect the Constitution of Mauritius, the law should provide clear remedies for individuals whose privacy has been unlawfully breached. Constitutional principles alone are not enough; these rights must be supported by specific legal provisions.
First, there should be financial and compensatory remedies. The law should allow individuals affected by unlawful surveillance to seek compensation from the State or the agency. This should cover material losses, such as business disruption, as well as non-material harm, including psychological distress and damage to reputation.
Second, the NCA Bill should be clearly aligned with the Data Protection Act 2017. It should explain how national security and surveillance powers interact with data protection rights and provide clear remedies where surveillance fails to meet the principles of necessity and proportionality.
Third, the law should include a strong exclusionary rule for unlawfully obtained evidence. Digital evidence, communications or location data obtained without a valid judicial order should generally be inadmissible in court. Any evidence or investigative information obtained directly from such unlawful surveillance should also be excluded. This would help deter abuse of surveillance powers and strengthen judicial oversight.
* The NCA is expected to investigate unexplained wealth and trace assets connected to criminal activity. Should the State have to prove that assets are criminal proceeds, or can the burden in certain circumstances shift to the person concerned to explain the source of wealth?
The investigative authority does not initially have to prove that the asset came from a specific crime. In these civil proceedings, it must first provide the court with objective evidence showing that a person’s wealth or a particular property is significantly greater than their known lawful income and assets.
Once the court is satisfied that there is a credible case of unexplained wealth, the burden shifts to the individual concerned. They must then show, on the balance of probabilities, that the property was acquired lawfully, for example through a documented inheritance, legitimate business income or verifiable salary.
* Does past experience indicate that specific safeguards are required to prevent unexplained-wealth provisions from being used selectively against targeted individuals?
The history of unexplained-wealth laws in Mauritius — from the Good Governance and Integrity Reporting Act 2015 to their integration under the Financial Crimes Commission and the proposed National Crime Agency framework — shows the need for strong safeguards.
These safeguards are essential to prevent unexplained-wealth provisions from being applied selectively or being used against political opponents. Past legal controversies, including high-profile cases involving former and current Prime Minister Navin Ramgoolam, underline the importance of independent judicial oversight.
Anti-corruption bodies are often accused of conducting “witch-hunts” when investigations take place close to elections. Strong judicial safeguards are therefore necessary to ensure that unexplained-wealth laws are applied fairly, consistently and independently of political considerations.
* The proposed framework reportedly maintains the Director of Public Prosecutions’ (DPP) exclusive responsibility for decisions on prosecution. However, tension could arise if the NCA finds sufficient evidence to charge but the DPP decides otherwise. Should the NCA have any legal power to challenge or review a decision by the DPP not to prosecute?
Whether the NCA should have the legal power to challenge or review a decision by the DPP raises an important constitutional issue: how to balance an independent investigative agency with the DPP’s prosecutorial authority. There is no single approach, as different countries deal with this balance in different ways.
Allowing the NCA to request a formal review ensures that a single individual or office (the DPP) does not hold an absolute, unchallengeable veto over high-profile or complex investigations. In complex cases involving financial crime, cybercrime or crimes with international ramifications, the NCA may possess specialised expertise that a general prosecutorial body like the DPP may lack. The NCA could therefore be better placed to assess the “sufficiency of evidence” and provide a credible assessment.
* The proposed Internal Affairs Division would investigate serious allegations against and unexplained wealth involving NCA officers. Who should investigate Internal Affairs itself if allegations are made against its officers?
Independent oversight bodies, such as an Internal Affairs Division or an independent anti-corruption tribunal, would typically handle allegations against law enforcement or oversight personnel in Mauritius.
When misconduct or corruption allegations involve internal affairs officers or specialised enforcement personnel, the case should generally be referred to an external, independent body to avoid conflicts of interest. Internal divisions operate under statutory governance rules, meaning serious criminal allegations or unexplained-wealth claims against internal investigators should be referred to national anti-crime and prosecution authorities.
Asset declaration requirements and independent criminal investigations should apply equally to officers within oversight units to maintain institutional integrity.
* If the director-general is accused of wrongdoing, the Independent Advisory Panel would apparently assume operational oversight of Internal Affairs. Is that sufficient independence, or should there be an entirely external complaints mechanism for serious allegations against NCA officers?
The oversight structure proposed in the NCA Bill in Mauritius seeks to strike a delicate balance between operational independence and institutional accountability. Shifting oversight of the Internal Affairs Division to the Independent Advisory Panel when the Director-General is accused of wrongdoing is an innovative safeguard, but whether it provides sufficient independence remains to be seen.
* The Independent Advisory Panel is expected to report every two years, and its report would be tabled in Parliament. Is reporting every two years adequate for an agency with such extensive powers?
A biennial reporting system for an agency with extensive powers raises serious concerns about effective public oversight. While reporting every two years may allow for more comprehensive reviews and reduce administrative burdens, it can also create significant delays in accountability.
The accountability gap is too long. If the agency misuses its powers, acts inefficiently or causes unintended harm, Parliament and the public may not be officially informed for up to 24 months. In areas such as technology, national security and finance, problems can develop rapidly, making a two-year reporting cycle inadequate for timely parliamentary scrutiny.
Biennial reports may also contain two years of complex information, making them difficult for MPs to assess and debate effectively. By the time a report is tabled, political circumstances or responsible ministers may have changed, allowing important findings to be treated as “old news”.
The NCA should therefore have the power to issue ad hoc or interim reports to Parliament when urgent issues involving public safety or abuse of power arise. If biennial reporting remains the statutory requirement, additional safeguards will be necessary to bridge the accountability gap.
There should also be regular parliamentary oversight, through a dedicated Parliamentary Committee, as was the case with the former ICAC and is now the case with the FCC.
* In light of the previous regime’s weaponisation of investigative bodies, what safeguards are required to prevent a powerful National Crime Agency from becoming a political instrument?
To prevent the NCA from being used as a political instrument, there must be strong institutional safeguards, effective oversight and clear legal limits. When law enforcement agencies are too closely tied to the executive, there is a risk of selective prosecution and political intimidation. The NCA must therefore have both structural and operational independence.
The director-general of the NCA should serve a single, fixed term, such as five to seven years, that does not coincide with the political election cycle. This would reduce any incentive to seek favour with the government in order to secure reappointment. The appointment should require approval by a parliamentary supermajority or a bipartisan legislative committee, rather than being left to the executive alone.
The director-general should only be removed for proven misconduct or incapacity, following an independent process involving the Judicial and Legal Service Commission. The NCA’s budget should also be protected to prevent financial pressure from being used to influence its work.
A cross-party parliamentary committee should oversee the NCA’s strategic priorities, budget and broad operational framework, while having no power to interfere in ongoing investigations.
* Would it be possible for a future government to amend ordinary legislation and weaken the NCA’s independence, despite its constitutional status?
Yes, technically, a future government could attempt to do so. However, any ordinary legislation that undermines a constitutionally protected institution would be subject to judicial review and could be struck down as unconstitutional. As the supreme law of the land, the Constitution takes precedence over ordinary legislation.
However, governments may still use complex legislative measures to test these constitutional limits. A relevant example was the amendment introduced under the MSM government led by Pravind Jugnauth, which sought to give the then director-general of the FCC, Navin Bheekarry, greater powers to initiate financial-crime proceedings without the consent of the DPP, raising important questions about the constitutional balance between investigative and prosecutorial powers.
Mauritius Times ePaper Friday 11 September 2026
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