This week, we talk to Jean Claude de l’Estrac, journalist, political analyst and former minister. We are particularly interested in the views he expressed on the report of the Britam Commission on the sale of BAI shares. These views elicited a strong reaction from the leader of the Reform Party and former minister of Financial Services and Good Governance, Roshi Bhadain.

Former Minister of Financial Services, currently leader of the Reform Party, declared in an interview on Radio Plus his intention to sue you for defamation in relation to the allegations you made after the publication of the report of the Commission on the Sale of Britam Shares. What did you base your allegations on? 
Which allegations? First, an allegation is not a defamation per se. From my experience of more than 50 years of public life in the media and in politics, I have come to learn what a defamation is and what it is not. Our judges have emphasised time and again what is a “fair comment on a matter of public interest”.

Roshi Bhadain says you alleged that he had bypassed the council of ministers, which is not true… 
I think our friend Bhadain has overreacted. In fact, I have never said that he had bypassed the council of ministers to convene a meeting of the National Assembly. I know from experience that a minister can’t do that. What I have said, and which I maintain, is that the rep ort of the commission of inquiry ignores the fact that ex-Minister Bhadain wielded so much influence and power because he was enjoying the unwavering support of then Prime Minister Anerood Jugnauth. At one time, during the course of the inquiry, Financial Secretary Dev Manraj even revealed that the prime minister had called to ask him to meet Minister Bhadain and “discuss” with him all the issues pertaining to the BAI. Anerood Jugnauth was the real source of power of Roshi Bhadain.

Irrespective of the power Bhadain may have wielded for the reasons you gave, don’t you think the commission’s report is undermined by the perception of bias primarily because of the choice of the assessors? 
There is definitely an issue. And the members of the commission themselves are very aware that there could be a perception of bias because of the avowed close links of the commissioners with the prime minister. This is why they went into great length in the first pages of their report to explain why they believe there is none. Chapter 3 of the report is entitled “Depoliticising the Commission”. Chapter 5 is “Application of Law of Bias to Facts”. Apart from the academic arguments raised by the commissioners, their main argument to counter the perception of bias raised by Bhadain is that the commission of inquiry has been nominated by… the president.

And who names the president and ‘suggests’ the nomination of the commissioners to him? 
A weak point indeed!

The bias also applies to the terms of reference and the fact that the commission conveniently found a guilty party but absolved everyone it wanted of any malpractice… 
As pointed out by the commissioners themselves, the role of a commission of inquiry is not to find a guilty party. It is a non-judicial body. It is an investigatory exercise, all about digging out facts. Before a commission of inquiry, there is no accused. Mr Bhadain and others deponed as witnesses.

The commission did point to the ones who should be investigated by the police, didn’t it? 
True it is that in the end, the faisceau of facts highlighted by the report seems to pinpoint one clear responsible party. But guilt is yet to be proved by a court of justice. It will be a very different game. You may also note that the commissioners have been very critical of the role played by a number of professionals, lawyers, auditors, public servants, heads of public sector institutions. And rightly so in many cases.

But no investigation was recommended against them, was it? 
The police can still do its job. The question now is for the police to decide who can be sued under the law and for the courts eventually to find out who is guilty of what under our laws.

According to the report, there was no firm Rs4.3 billion offer by the Kenyans and the offer by MMI Holdings of South Africa was “non-binding”. So how can Roshi Bhadain be blamed for that? 
This is the crux of the matter. Certainly, Badhain cannot be blamed for the refusal of the Kenyans to sell shares to the South Africans, whatever their reasons, ideological, xenophobic or commercial. What is disturbing to me is what has been revealed by the Permanent secretary of the Ministry of Finance, Mr. Vidianand Lutchmeeparsad. He explained that he had attended a meeting in Nairobi at the request of then Minister of Finance Vishnu Luthmeenaraidoo. The meeting was chaired by the Chairman of Britam Kenya, Peter Munga and a number of Kenyan officials whose names he mentioned. Mr. Lutchmeeparsad’s key statement is that, after conferring privately with the Kenyan officials present, Mr Munga came back to the table of negotiations to state that “there is a probability that the Britam Kenya shares would be purchased by themselves, by their shareholders at the same price of Rs 4,3 bn” as offered by the South Africans. This offer was considered as great news by the Mauritians who celebrated the “successful” outcome of the mission by participating in a dinner party attended by Kenyan officials. He mentioned two witnesses: Mr Sandeep Khapre, the BDO representative and Mr Kris Lutchmeenaraidoo. The Permanent secretary further added that the notes of this meeting were handed to the then minister of Finance and the Financial secretary.