‘The genuineness and authenticity of the ‘Kistnen Papers’ will have to be established…

Qs & As Electoral Expenses

It will be up to the DPP to assess their veracity and relevance and decide whether they would be admissible in a court of law’

‘Candidates should tread carefully and choose their words with the utmost care at public meetings when it comes to making promises or recruiting people in the public service’

By Lex

The Police have started investigations in the so-called Kistnen Papers that have come to light in the Judicial Inquiry into the circumstances of the MSM agent’s tragic demise. If credible, these would point to breach of electoral expenditure ceilings in a constituency where there is already a judicial challenge on allegations hinging on electoral promises for votes. Lex provides insight on these and related questions.

* It appears that the police has now started an investigation into the allegations of breach of electoral laws in light of what have come out of the judicial inquiry into the murder of MSM activist Soopramanien Kistnen and the details of electoral expenses contained in what are called the ‘Kistnen Papers’. Can these papers be produced in a court of law and do they constitute damning evidence of electoral breaches?

Any documentary evidence is subject to the rules of evidence of the country. Mauritius has adopted the common law principles of evidence which is exclusionary in nature. That means only relevant evidence can be admitted. At times, evidence will be excluded even though it may be relevant if the admissibility of such evidence would be unfair to one party against whom the evidence is sought to be adduced.

With regard to the ‘Kistnen papers’, their genuineness and authenticity will have to be established. If these papers form part of the police file, it will be up to the Director of Public Prosecutions to assess their veracity and relevance and decide whether they would be admissible in a court of law and what weight can be attached to them.

* Assuming that the police succeeds in making a robust case of breaches of the electoral law, what happens next? does the Representation of the People Act contain the appropriate sanctions for such breaches?

Under the Representation of the People Act, the maximum amount that a candidate who does not belong to a party, or where there is no other candidate belonging to the same party at the election in a constituency, is Rs 250,000. As for a candidate who is not the only candidate belonging to a party, election expenses in the constituency are limited to Rs 150,000.
It is an offence amounting to illegal practice when the ceiling authorized by law has been breached.

* We understand that the Electoral Commission and the Electoral Supervisory Commission are not empowered to carry out investigations in suspected offences of illegal practices under the Representation of the People Act. Could it be that the drafters of our Constitution in their wisdom thought it inappropriate to have parallel centres of power at work in the country? Were they right?

The Electoral Commissioner or the Electoral Supervisory Commission is not empowered by law to investigate any offences in relation to election expenses. One cannot expect the Electoral Commissioner or the Electoral Supervisory Commission to don the garb of investigators. That would place them in an invidious position. Their mandate is to see to it that elections are held in accordance with existing rules and regulations. In so doing they must be scrupulously independent. Whether the police will initiate an investigation into the various allegations levelled by Opposition candidates and within what delay remains to be seen.

* Everything therefore hinges on a serious police investigation for the successful prosecution of offenders – whether in relation to a murder case, fraud/corruption or illegal electoral practices?

That’s not very reassuring in light of the trend of investigations by the authorities, including ICAC, since the 2019 elections involving members of the government or their followers. Not very flattering in terms of public perception, the more so in view of the uncertainty around certain investigations or the absence of explanations regarding where matters stand.

Let us also recall how the DPP had to ask the police to probe further in different cases, the latest being the one relating to former minister Sawmynaden. Can the police be trusted with carrying out an impartial and thorough investigation into the allegations of unlawful spending by candidates of the ruling party? Let’s wait and see.

* Justice Albie Sachs observed in his report on the Commission on Constitutional Reform 20001-2002 that ‘it is common knowledge that… ceilings on expenditure are observed only in their breach. Gross violations take place and false returns of expenses… are filed with impunity’. Yet, it does not appear that any election has ever been annulled or any candidate condemned for any offence of unauthorised expenditure above the ceilings prescribed by the Representation of the People Act. Why is that so?

The Sachs Commission also commented that “the presently prescribed ceilings on expenditure are totally unrealistic”. It recommended that “The ceilings would therefore need upward revision to a reasonable and realistic level so as to match the cost of election. The ceilings for party as well as independent candidates should be the same, but the ceiling should cover all expenditure incurred by the candidate in his or her constituency including the amount incurred by the party and friends and associates of the candidates.”

Can one imagine Rs 250,000 to constitute a realistic amount of money in terms of election expenses? That’s simply ridiculous from ground realities. So long as the ceiling is low, the returns would not reflect the reality of true expenses.

No election has ever been invalidated on the ground of illegal expenses in modern Mauritius because it is difficult to prove such allegations. Since all parties resort to the same stratagem, they have no interest to challenge an election on this ground.

* There is moreover the practice of expenditure incurred by third parties on behalf of election candidates, which defeats the principle of imposition of ceilings on electoral expenses. What does the law provide in that case?

Section 55(1) of the Representation of the People Act provides that “A candidate shall not be guilty of an illegal practice by reason of any other person having incurred any expenditure in connection with the candidature of the candidate unless it is proved that such expenditure was incurred with his consent.”

This section affords blanket protection to a candidate as no candidate who is returned would confess that he consented to such expenses. The classic explanation would be: “so and so decided to do me a favour, but I was not aware about it.”

* It would seem however that vote buying through electoral promises or through recruitment exercises, award of licences on the eve of elections can be more easily proved and punished if we go by the Commission of Inquiry on the Recruitment of Community Workers chaired by Justice Ralsoomer Lallah in 1982 as well as the Ashock Jugnauth vs Raj Ringadoo case of 2007. Is that correct?

Certainly. We saw that in the Ashock Jugnauth case. Justice Lallah highlighted this fact in his report. As no candidate of the outgoing government was elected, no election had to be invalidated. The merit of the Lallah report is that it delineates in clear terms what would amount to illegal electoral promises. It is to be hoped that those who are challenging the 2019 elections on the ground of illegal promises will read the report. The courts should also peruse the report

* What in fact do the Commission of Inquiry and the Jugnauth vs Ringadoo case inform us what is and is not permissible under the Representation of the People Act?

Candidates should tread carefully and choose their words with the utmost care at public meetings when it comes to making promises or recruiting people in the public service during an electoral campaign.

The Privy Council summarized the complaints against Ashock Jugnauth as follows: “The complaint raised four matters. The first arose out of what the appellant was alleged to have said, at a public meeting on 29 June at St Pierre in constituency no 8, about the availability of government money for the acquisition of land to provide additional space for the Moslem section of the local cemetery. The other three matters were broadly similar to one another and were treated together by the Supreme Court. They concerned exercises carried out by the Ministry of Health – of which the appellant was the Minister – to recruit three groups of staff in the period before the general election in July 2005. The three groups were General Workers, Hospital Servants and Health Care Assistants.”

The Privy Council endorsed the finding of the Supreme Court that “one of the purposes, even if not the sole purpose, of the recruitment exercises was to attract voters to vote in return for the jobs in the civil service”.

The lessons to be learnt from the Ashock Jugnauth case and from the Lallah report are that candidates should be extremely careful in regard to the nature of the promises they make, and they should exclude from their campaign any reference that the promises are in exchange for votes.

* In light of the judgement in the Jugnauth vs Ringadoo case, can it be anticipated which way the judges will go as regards the electoral petitions in relation to the 2019 elections?

The principles on electoral promises are there. It is a question of evidence that is presented and what credibility the courts would place on such evidence. As the Privy Council stated in the Ashock Jugnauth case: “The Supreme Court based its judgment to a significant extent on findings of fact which the judges made after due consideration of the oral evidence which they had heard and which they accepted.”

* Published in print edition on 17 August 2021

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