ICAC & The Country’s Image

Editorial

The Leader of the Opposition’s publicly expressed objection to the reappointment of Navin Beekharry as Director General of the ICAC has once again focused attention on the anti-corruption agency.

Section 19 (4) the Prevention of Corruption Act 2002 (PoCA), as amended, provides for the appointment of the Director-General of ICAC by the Prime Minister after consultation with the Leader of the Opposition. Given the weight that is given to the “after consultation” proviso in the law, it is the Prime Minister who in fine decides who should head the institution. Successive governments seem to have taken comfort with this legal provision (rather than a more transparent and independent mechanism), that is open to the suspicion or the charge that it allows Prime Ministers to influence if not ‘monitor’ the performance of the institution.

Does this place the Director-General of ICAC in an uncomfortable position vis-à-vis the head of government? In an earlier contribution to our Qs & As column, Lex expressed the view that ‘the POCA 2002 guarantees the independence of ICAC. The law is there. Its proper functioning depends on the holders of power within the ICAC.’

Moreover, even if the POCA 2002 does not provide for any oversight mechanism that could have monitored the ICAC at its operational level, especially as regards the conduct of investigations, Section 20 (2) & (3) provides that ‘the Commission shall act independently, impartially, fairly and in the public interest’, and ‘subject to this Act, the Director-General shall not be under the control, direction of any other person or authority’ respectively.

To the question as to whether these legal provisions help further the public interest, Lex opined that ‘it is in the public interest, and for the sake of the integrity of investigations it is necessary that an institution that is mandated to fight financial crimes should be independent and not be under the control or authority of anybody or any other institution. The only monitoring mechanism resides in the people who man ICAC. How they do it and how the public react to their actions can be said to constitute a form of monitoring.’ He added however that ‘the perception in the public is that it is not functioning independently. Why, it may be asked, but this would be a rhetorical question.’

In fact, the performance of ICAC has been under the scanner since before Xavier Duval’s objection much earlier – even under the preceding government to date – with its handling of a large number of high-profile cases.

Its inexplicable turnaround in the MedPoint case threw doubt on its will to deal with corruption, as much as the list of affairs where it is yet to be known where its inquiries stand, such as the Dufry scandal (2015); the Alvaro Sobrinho scandal (2018); the Sugar Insurance Fund Board’s highly excessive overpayment of land v/s valuation scandal (2018); the Yerrigadoo/Bet 365 scandal (2018); the Glen Agliotti affair (2019), the Serenity Gate/Film Rebate Scheme scandal (2019), St Louis Power Station Redevelopment Project.

The actual list is too long to compile. But all these pending inquiries highlight the absence of a credible and respected investigative agency capable of handling white collar crime independently of political proximity.

Moreover, the Opposition’s dissatisfaction with the workings of the Parliamentary Committee, whose functions is to monitor and review the general manner in which the Commission fulfils its functions – but it cannot query progress being made, still less intervene or interfere in any specific case under investigation by the Commission. This situation as well as the recent case filed against ICAC by the Integrity Reporting Services Agency (another State agency) for allegedly failing to furnish it with detailed reports on cases of unexplained wealth do little to help the image of the ICAC.

It was always unlikely that Xavier Duval would have met with the same success as when he blocked the Prosecutions Commission Bill with his public objection to the reappointment of the current DG of ICAC, and he has indeed been ignored. But it is to be hoped that the government will do what is required to refurbish the poor image of the mauritius jurisdiction, especially after the drubbing by the FATF and the european Commission since 2020 and now the irritation of the IMF/WB tandem with key aspects of our public finance management during the pandemic.

* Published in print edition on 2 July 2021