‘Rules and ethics exist; ministers must apply them with sound judgment, integrity and common sense’

Qs & As

Rethinking Board Appointments in Parastatal Bodies

By Lex

The process of appointing board members to parastatal bodies and State-Owned Enterprises (SOEs) has long been a source of debate in Mauritius. These appointments, while central to the governance and efficiency of public institutions, have too often been clouded by perceptions of political patronage and personal favouritism. Despite the existence of ethical guidelines and established conventions, the discretion afforded to ministers in making such appointments continues to raise questions about transparency, meritocracy, and accountability in public administration. The following Qs&As explores the legal, ethical, and institutional dimensions of board appointments, with particular attention to recent developments involving the National Empowerment Foundation (NEF). It considers whether existing safeguards are adequate, the extent to which ministerial iscreation is constrained by law, and whether reforms — legal, procedural, or cultural — are needed to restore public trust in these critical processes.

* For decades, the appointment of board members to parastatal bodies and SOEs has been a contentious issue. These positions are often highly coveted for their prestige, privileges, and remuneration, leading some ministers to frequently appoint political agents, financial contributors to their campaigns, and even personal acquaintances. Are there mechanisms currently in place, or could be implemented, to prevent the appointment of individuals to such boards based on political patronage or personal connections rather than merit and suitability?

While it’s a common practice for any government to appoint individuals they trust to boards, and often, supporters of the winning party are indeed appointed as a reward for their loyalty, this doesn’t mean there are no mechanisms in place or that couldn’t be implemented to promote merit over political patronage.

While independent mechanisms of this nature may not be fully established here, many other countries have some form of legislation or governance frameworks for SOEs that outline criteria for board appointments, such as requiring relevant experience and qualifications. Furthermore, mechanisms like independent nomination panels, public calls for applications, and enhanced parliamentary oversight are increasingly being advocated for and, in some cases, partially implemented, precisely to reduce appointments based purely on political connections and ensure greater suitability and merit.

* Closely linked to the matter of board appointments is ministerial discretion, the power legally granted to a minister to make decisions regarding, among other things, the appointment of board members and senior executives, typically in areas where the law does not explicitly prescribe a specific outcome. It’s said that such discretion allows for flexibility in public administration, but are there limits to what ministers can or cannot do?

The issue isn’t about flexibility; rather, the discretion granted to a minister or the prime minister is intended to allow them to appoint individuals they trust. However, the paramount criterion for such appointments should unequivocally be the appointees’ ability to deliver. We’ve seen the disastrous consequences of departing from this principle, notably under the previous Pravind Jugnauth regime, where unqualified individuals were appointed to critical boards, leading to significant failures.

* Does the Minister’s discretion to appoint NEF board members create a binding legal obligation to follow a transparent and impartial process, especially after an open call for expressions of interest?

How can transparency be truly evident when an appointment fundamentally rests on the discretion of a minister? What factors, then, genuinely guide the exercise of that discretion? In essence, while the Minister possesses the ultimate power to appoint, the legitimacy and efficacy of their decision-making hinge on visible adherence to these principles, transforming ‘sole discretion’ into ‘accountable discretion’ in the public interest.

* Are there legal or ethical guidelines in Mauritius that explicitly prohibit close personal or political associates of a Minister from serving on selection committees for public appointments, and if so, how would such guidelines apply to a situation where the Minister’s partner and a party colleague are part of the selection panel, potentially constituting a conflict of interest?

A sacrosanct rule ought to dictate that appointments to the public service and parastatal bodies are made without any involvement from politicians, political party members, or their close associates. This ensures that merit, not political affiliation or personal ties, remains the sole criterion for selection, a standard that should prevail even in the absence of explicit guidelines.

*What legal consequences exist if board members are appointed for political reasonsrather than strictly on their professional merit?

In practice, there are often no legal consequences. Board members are typically appointed at the discretion of the minister, without any requirement for a formal interview process or transparent selection criteria. The minister may simply handpick individuals. Challenging such appointments in court is extremely difficult, unless it can be clearly demonstrated that the process violated a specific legal or constitutional provision.

* Given that the NEF is funded by public money, does the Minister have a fiduciary duty to ensure that appointments reflect national — not partisan — interests?

Absolutely. The use of public funds carries with it a fundamental obligation to act in the public interest. This means the Minister has a fiduciary duty to ensure that appointments to the NEF — or any publicly funded body — are made based on competence, integrity, and alignment with national priorities, rather than partisan loyalty. This principle should apply to all public appointments.

*What would a court typically consider in assessing whether a minister acted ultra vires (beyond legal powers) in such appointments?

If candidates are formally called for interviews, an unsuccessful candidate may challenge the appointment decision. However, such challenges are rarely successful. To succeed, it must be demonstrated that the appointing authority acted with improper motives, relied on irrelevant considerations, or failed to follow required procedures. In rare instances, courts have annulled

*We are not aware whether there are precedent cases in Mauritius where appointments as board members were overturned or questioned due to partisan bias or flawed selection processes, but could this selection process be legally challenged on grounds of procedural impropriety or abuse of discretion?

A legal challenge is only feasible if the position was publicly advertised and candidates were invited for interviews. In such cases, an unsuccessful applicant may contest the outcome if there is evidence of procedural impropriety, bias, or abuse of discretion. However, where appointments are made solely at the minister’s discretion, legal recourse is extremely limited. In such situations, public opinion is the ultimate judge.

* Could the involvement of the Minister’s companion violate any anti-nepotism or anti-cronyism provisions in Mauritian public administration law?

Even if the Minister’s wife conducted herself with full propriety, the mere perception of nepotism can undermine public trust — and perception is critically important.

* While the call for expressions of interest from civil society for NEF board membership was a commendable initiative, it appears ReA ultimately blurred the lines regarding what is permissible for a political party within public administration. What is your assessment of this situation?

Initially, the call for expressions of interest was a commendable step. The Minister, rather than relying solely on his discretion, invited applications and held interviews — a welcome move. However, this otherwise laudable initiative was overshadowed by the inclusion of the Minister’s companion on the interview panel.

Let us imagine that Minister Subron was not part of the government, and that another Minister had included their spouse or partner on a selection panel for a parastatal appointment. How might Citizen Subron have reacted in that scenario?

* What legal reforms, if any, would you recommend to ensure greater transparency and meritocracy in public board appointments?

None. The rules, procedures, and ethical conventions already exist. What is needed is for ministers to exercise sound judgment, integrity, and common sense in applying them.

Rules and ethics exist; ministers must apply them with sound judgment, integrity and common sense.

Mauritius Times ePaper Friday 30 May 2025