The Power of Prosecution: Does Mauritius Need Stronger Checks and Balances?

What the Lagesse case reveals about prosecutorial power after twelve years of litigation

Qs & As

By LEX

The powers and independence of the Director of Public Prosecutions (DPP) have come under renewed public scrutiny following a series of high-profile legal battles, including the Thierry Lagesse case before the Privy Council and constitutional arguments raised in the Baboolall appeal. These cases have reopened a fundamental question: how can Mauritius preserve a strong and independent prosecutorial authority while ensuring that such extensive powers remain subject to appropriate checks and balances? Lex provides his perspective on this issue. Read on.

* Several recent cases — including the Thierry Lagesse matter before the Privy Council and the constitutional challenge in the Baboolall appeal — have brought renewed focus to the issue of the powers of the DPP. Do these cases expose weaknesses in our constitutional framework, or are they simply examples of the judicial process functioning as intended?

In the Lagesse case, following the DPP’s application for special leave to appeal against a second acquittal, the Privy Council ruled: “Permission to appeal is refused on the ground that it is not arguable that there has been a serious miscarriage of justice.”

There is no weakness in the system. Rather, this case illustrates that where significant powers are entrusted to a high public official, particularly in matters of prosecution, they should be exercised with due care and sound judgment, bearing in mind the potential implications for the administration of justice and the use of public resources.

* The Constitution grants the DPP extensive independence in deciding whether to institute, continue or discontinue criminal proceedings. Does it provide sufficient constitutional checks and balances to ensure accountability in the exercise of the DPP’s powers, or has the office become one of the few institutions wielding a level of constitutional authority that is difficult to scrutinise?

The Office of the Director of Public Prosecutions (DPP) in Mauritius balances extensive prosecutorial independence with meaningful, if carefully constrained, constitutional and judicial checks. While the DPP is free from executive control, the office remains accountable to the Supreme Court, the Judicial Committee of the Privy Council, and the requirements of the rule of law.

The debate is not whether such checks exist, but whether they are sufficient, or whether the office enjoys a degree of insulation that limits public accountability. This discussion centres on the nature and scope of the safeguards built into the Mauritian constitutional and legal framework.

Unlike certain other constitutional offices that submit comprehensive annual reports for scrutiny by the National Assembly, the DPP is generally not required to publicly explain the reasons for initiating, discontinuing or declining prosecutions. Those decisions are largely protected by prosecutorial independence and legal privilege, a framework that safeguards impartial decision-making but can also give rise to perceptions of limited transparency.

* Independence is often regarded as essential to protect prosecutors from interference — political or otherwise. In the United Kingdom, although prosecutorial decisions are operationally independent, the Attorney General remains politically accountable to Parliament. Could Mauritius draw inspiration from that model without compromising prosecutorial independence?

Integrating a political figure, such as the Mauritian Attorney General, into the prosecutorial chain could expose the justice system to executive and legislative pressures. As the UK Attorney General is a political appointee who is answerable to the government of the day, transplanting this model to Mauritius could undermine public confidence, particularly if prosecutorial decisions in high-profile corruption or politically sensitive cases were perceived as being influenced by political considerations.

* Would it be constitutionally desirable for the DPP to appear periodically before a parliamentary committee — not to justify individual prosecutorial decisions, but to explain policies, priorities, statistics and the administration of the Office? Or would parliamentary scrutiny risk undermining prosecutorial independence?

Under the Constitution of Mauritius, the DPP operates entirely independently of executive and legislative control. Whether it is constitutionally desirable for the DPP to appear before a parliamentary committee involves balancing democratic accountability with the preservation of prosecutorial independence.

Requiring the DPP to appear before a parliamentary committee, such as the Public Accounts Committee or a sectoral committee, could help demystify the functioning of the Office of the DPP.

Periodic reviews of broader policies, systemic backlogs, conviction statistics, and budgetary administration could strengthen public trust. They would reassure the public that state resources are being used efficiently without interfering with individual criminal cases.

Proponents argue that no public office in a democracy should be entirely exempt from accountability. Explaining the criteria or guidelines governing prosecutorial decisions could make the justice system more responsive to national concerns without undermining its core independence.

* One of the current debates concerns whether the Constitution actually confers a general right upon the DPP to appeal against acquittals. Should such an important power be expressly stated in the Constitution rather than inferred from legislation or judicial interpretation?

The question of whether the DPP’s right to appeal acquittals should be expressly enshrined in the Constitution, rather than derived from legislation, remains a central issue in Mauritian jurisprudence. The debate turns on the principles of constitutional supremacy, the separation of powers, and the rule of law.

Expressly defining the scope of the DPP’s appellate powers in the Constitution could provide a clearer framework for the Supreme Court and the Judicial Committee of the Privy Council to review the exercise of those powers and ensure that they are exercised in accordance with constitutional principles, not arbitrarily.

* From the standpoint of constitutional principle, should appeals against acquittals be exceptional rather than routine? How should the legal system balance the need to correct judicial errors with the protection of citizens from repeated prosecutions and prolonged uncertainty?

The tension between correcting judicial errors and protecting individuals from state overreach lies at the heart of Mauritian criminal jurisprudence and is anchored in the Constitution of Mauritius. Under Section 10 of the Constitution, every person is guaranteed the presumption of innocence and the right to a fair trial. Subjecting an acquitted person to an appeal may expose that individual to renewed uncertainty and prolonged legal proceedings.

Conceptually, an acquittal represents the final determination of a criminal charge. Allowing the State to routinely appeal acquittals could weaken the principle of finality in criminal proceedings and, in turn, affect public confidence in the administration of justice.

* The Lagesse case lasted approximately twelve years before the acquittal became final. Does such prolonged litigation raise concerns about legal certainty, fairness, and an accused person’s right to bring proceedings to an end?

Prolonged litigation extending over twelve years raises serious concerns about legal certainty, fairness, and the rights of the accused. Delays of such magnitude challenge fundamental principles of justice, including the right to a fair hearing within a reasonable time and protection against oppressive state action.

Under international human rights law, including the International Covenant on Civil and Political Rights, as well as under national constitutional frameworks such as that of Mauritius, individuals are entitled to have criminal proceedings determined without undue delay. Prolonged litigation can create a state of continuing uncertainty, leaving the accused’s personal life, reputation, and livelihood in limbo.

Protracted legal proceedings can also affect the fairness of a trial. Over a period of twelve years, memories may fade, witnesses may become unavailable or less reliable, and crucial evidence may deteriorate or be lost, potentially placing the defence at a disadvantage.

The law must remain predictable. When a case is repeatedly appealed, retried, and challenged at different levels of the judicial system — including the Financial Crimes Division, the Supreme Court of Mauritius, and the Judicial Committee of the Privy Council — it may undermine public confidence in the justice system’s ability to resolve disputes conclusively and efficiently.

Repeated appeals by prosecuting authorities on the same set of facts, resulting in multiple acquittals and retrials, risk turning a legitimate prosecution into an abuse of process. They may also impose significant financial and psychological burdens on the accused.

 * Some argue that the State’s ability to pursue appeals may create an imbalance between the resources available to the prosecution and those available to ordinary defendants. Should there be statutory or constitutional limits on appeals following an acquittal, or should prior judicial permission be required before such an appeal is pursued?

Under the Constitution of Mauritius, the DPP has independent powers to institute and undertake criminal proceedings, including the right to appeal under the Criminal Appeal Act. Introducing limits or requiring prior judicial permission could help prevent potential state overreach and protect an accused person’s right to finality, while still allowing appeals in cases involving serious legal errors.

An acquittal should generally be regarded as final in order to protect individuals from the significant emotional, financial, and reputational burden of defending themselves against the State on multiple occasions.

The State possesses considerable resources. Without a leave-to-appeal requirement, prosecutorial appeals could potentially place ordinary defendants under prolonged legal and financial pressure through extended appellate proceedings.

 * Constitutions are designed not only for responsible officeholders but also to guard against potential abuses of power. Does the Mauritian Constitution provide sufficient safeguards to prevent such risks, particularly if the office of DPP were, in the future, occupied by a less independent or politically motivated holder?

The Mauritian Constitution provides robust legal protection for the independence of the DPP, effectively insulating the office from direct political interference. However, as with all Westminster-model systems, the effectiveness of these safeguards ultimately depends on the integrity of the appointment process and the strength of judicial oversight.

While prosecutorial discretion is an essential feature of an independent prosecution service, an absence of transparency can raise concerns. The DPP is not generally required to publicly disclose the reasons behind decisions to initiate prosecutions or discontinue charges, which may contribute to perceptions of bias or inconsistency, particularly if the office were occupied by a less independent figure.

* Ultimately, what constitutional reforms, if any, would you recommend to preserve both the independence of the DPP and the democratic principle that no public institution should exercise significant constitutional power without appropriate checks and balances?

The DPP derives its broad authority from Section 72 of the Constitution, which insulates prosecutorial decisions from political interference. Striking the right balance requires ensuring that this independence remains uncompromised while also preventing the potential exercise of arbitrary power. To preserve the independence of the DPP while addressing the need for institutional accountability, a balanced approach would involve strengthening judicial oversight, reviewing appointment mechanisms, and ensuring that the office remains strictly insulated from partisan political influence.

* Looking ahead, do you believe Mauritius should maintain the current constitutional architecture surrounding the Office of the DPP, or is the time ripe for a broader national debate on prosecutorial powers, judicial oversight, parliamentary accountability and constitutional reform?

Mauritius is actively pursuing a broader national debate and structural reassessment of its constitutional framework, including the powers of the DPP. The Constitutional Review Commission Act establishes an independent framework to examine issues relating to the separation of powers, institutional accountability, and prosecutorial oversight.

The debate surrounding the Office of the DPP focuses on several key areas. Critics and proponents of reform argue that the extensive discretion exercised by the DPP requires appropriate checks and balances to enhance accountability in decisions relating to the institution or discontinuation of criminal proceedings. There have also been longstanding calls to clarify the respective roles and boundaries between the police, investigative bodies, and the DPP.

The evolution of legislation, such as the Bail Act, has further prompted discussions on the appropriate balance between the DPP’s role and judicial oversight, particularly regarding detention and objections to bail.

* One should, however, keep in mind that an independent judiciary and an independent DPP, acting in the spirit of the Constitution, can serve as effective bulwarks against an autocratic regime – as was evident during the previous government’s mandate. We must therefore be careful not to go too far in curtailing the powers of the DPP, don’t you think?

Advocates argue that, because the DPP is constitutionally independent and not subject to the direction or control of any other person or authority, the office serves as an important check and balance against autocratic rule and politically motivated prosecutions. Proponents maintain that entrusting prosecutorial decisions to an independent legal officer helps ensure that criminal justice is administered objectively rather than being influenced by executive considerations.

At the same time, some legal experts and political groups have argued that all public offices, including the DPP, should be subject to appropriate oversight and accountability mechanisms to guard against potential abuse or arbitrary decision-making. The Judicial Committee of the Privy Council has previously held that decisions of the DPP are, in principle, amenable to judicial review, thereby confirming that prosecutorial independence does not amount to absolute legal immunity.

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Mauritius Times ePaper Friday 17 july 2026

Tags:Abuse of Process, Appeals Against Acquittals, Attorney General, Baboolall Appeal, Constitution of Mauritius, Constitutional Checks And Balances, Constitutional Review Commission Act, Criminal Appeal Act, Criminal Proceedings, Director of Public Prosecutions, DPP, Fair Trial, Judicial Committee of the Privy Council, Judicial Review, Legal Certainty, LEX, Mauritius Times, Parliamentary Committee, Privy Council, Prosecutorial Independence, Public Confidence, Reasonable Time, Rule of Law, Separation Of Powers, Supreme Court, Thierry Lagesse Case