The police is starting to look into documents showing alleged overspending in the 2019 elections – by ruling MSM party in the PM’s home constituency of No. 8. The trove emerged in the wake of the ongoing Kistnen case with ReA going to police to give statements. Its struggle might be an uphill one, but its case could also become a symbol in fighting the long-ignored problem of election financing in our legislation.

ReA’s complaint

Rezistans ek Alternativ (ReA) has gone to the police this week to give statements regarding the trove of documents that surfaced in the aftermath of the Kistnen case. Dubbed Kistnen papers, the documents purport to show alleged overspending by the three MSM candidates in No. 8 for the 2019 elections – prime minister (PM) Pravind Jugnauth, education minister Leela Devi Dookun-Luchoomun and former commerce minister Yogida Sawmynaden.

Earlier in January this year, ReA went to electoral commissioner Irfan Rahman calling for him and the ESC to open an investigation into the case. Citing the lack of any investigative powers of their own, the electoral commission forwarded the case to the police. “We went there because the Kistnen papers showed a mismatch between what these three candidates officially declared to the authorities and what these documents showed,” Stephan Gua of ReA tells l’express, “so when we went to the police this week; we explained what we saw in the Kistnen papers and demanded an investigation while having these three government candidates coming to the police to answer.” The strategy, he adds, “is to highlight the problem of how mainstream political parties don’t declare their real spending in elections, and through this case we want to highlight this issue that is corrupting our politics”.

How political parties get away with it

Despite occasionally raising the legal limit on how much a candidate can spend in an election, the skyrocketing sums being spent in elections has fast galloped ahead of such moves. When the Re- presentation of the People Act (RoPA) was introduced back in 1958, it set the legal spending limit per candidate at Rs10,000; then to Rs20,000 in 1985; and further on to Rs150,000 in 1989, where it has stayed since then.

The main problem of spending on elections by major parties has ballooned is because of some curiously placed legal loopholes left in the law. In 1976, the Mauritian government came up with section 46 of the RoPA to insulate themselves from having their elections challenged on the grounds of using state officials and public offices while campaigning. The second issue is section 55 of the RoPA which states: “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 in contraventions of sections 51, 52, 54 unless it is proved that such expenditure was incurred with his consent.” In simple terms this means that supporters and political parties are free to plough as many resources as they please into an election campaign. To get somebody to lose his or seat over it means proving that they greenlighted such lavish spending. Back in January 2002, a report on electoral reform in Mauritius was penned by South African Albie Sachs. Referring to just how seriously such loopholes compromised legal spending limits, the Sachs report lamented: “It is common knowledge that these ceilings on expenditure are observed only in their breach. Gross violations take place and false returns of expenses showing all expenditure within these ceilings are filed with impunity, everybody fully conscious of the fact that these returns do not reflect the true picture. Besides, expenditure by the political parties on behalf of the candidates in their constituencies and expenditure by candidates’ friends, associates etc. is not covered within the prescribed ceilings. This is a big loophole in the law and in fact makes a mockery of the whole issue of placing ceilings on expenses.’’

Why the impunity for political parties? Because legally speaking, they don’t officially exist. They are not listed with the registrar of associations, have no formal accounts. Political parties, Sachs argued, should operate “without secret headquarters, secret structures, secret personnel, and secret sources of finance”.

The results of all these legal issues are that the arms race in terms of money between the mainstream political parties fighting elections has only gotten worse. In a September 2020 report, The cost of parliamentary politics in Mauritius, academics Roukaya Kasenally and Ramola Ramtohul of the University of Mauritius concluded: “Competing in election costs a lot of money and with each passing election, it gets more expensive.” Just to take one example, in the 2019 election, “the asking price for a vote – depending on the constituency and whether the fight was a close one between contenders – could vary between Rs5,000 and Rs10,000. For a whole family the price could shoot up to Rs100,000”. There is no record of how much a party ploughs into an election campaign, with the report quoting estimates of as much as Rs330 million in a 30-day campaign for a single political party.

Unwilling or unable

The big problem is that so far, the major political parties have remained unable to agree on what form such reform of political financing laws should take. On the one hand, because getting public opinion on board is an uphill task. While the public largely recognizes the need to reform the system, just how to do that is another question. The Sachs Commission in 2002 recommended moving towards direct state financing of political parties. Two years later, a select committee headed by Emmanuel Leung Shing ditched the state funding model and proposed instead empowering the ESC to have greater control over the activities of political parties.

While such reports have been penned in the past, in July 2019, the MSM-led government came out with a bill to reform political financing. Just how it took place showed just how complicated public opinion and the differences between the major political parties can be. When the bill came out, it was a shock to then-leader of the opposition and PMSD Xavier-Luc Duval who had earlier, when he was part of the government had headed a committee that had made its own proposals of what the bill should look like. His proposal was to allow the state to fund political parties: “We had in mind, if my memory serves me well, a sum of Rs150 million that the state would have to put aside every five years,” Duval said while debating the 2019 bill.

That there was a wide gulf between what the MSM’s proposal and what the PMSD had proposed was obvious. In six months, the bill had turned into its opposite: no state funding, although raising legal limits for candidates to spend Rs1 million on an election campaign. That figure was simply lifted from Leung Shing’s report. So, while in its bill, the MSM stuck to a variation of Leung Shing’s proposals, Labour Party, MMM and PMSD backed the state funding of political parties. A hard sell in a country where, according to a February 2015 survey by AfroBarometer, 90 percent of Mauritians said they believed that political parties should be responsible for raising their own money.

But this was not the only issue with the bill: by raising spending limits so high, it allowed a party to spend up to Rs83 million in an election campaign. The bill came under criticism on several fronts, both within and outside parliament. “The bill would have turned the ESC into a bureaucracy, auditing and fining political parties,” says Lindsay Collen of Lalit, “it gives the state more power over opposition parties.” The opposition pointed to an earlier attempt by PM Pravind Jugnauth to get his own lawyer Sharmila Sonah-Ori put on the ESC. When a national outcry made that impossible, he succeeded in shoe-horning another of his lawyers, Amaanah Saya Ragavoodoo, instead.

Leaving the loophole open

Another problem: in 2018 the Duval-led proposals left the names of private companies giving cash to political parties out of the public domain. In the 2019 bill, all this information would be furnished. “On the one hand, no public funding at all; on the other, frighten to the maximum private firms because their names would be known” was how MMM leader Paul Bérenger summed up the proposal when talking about the bill. This, coming just four years after the dismantling of the BAI conglomerate in 2015 which government critics pointed to as motivated by BAI’s perceived closeness with Labour Party, MSM’s key rival.

The biggest problem with the 2019 bill, however, was that it seemed not to solve the biggest problem at all. “The bill just spoke about controlling the raising of money but did not talk about controlling spending by parties during elections,” says Collen. Specifically, the bill did not close the loophole of section 55 of the RoPA that allows ‘supporters’ to continue raining cash on candidates’ campaigns so long as it cannot be traced directly back to the candidate. The bill seemed to be showing to the public the government’s intention to regulate the problem of political financing, while doing little to solve the biggest problem in practice. Unsurprisingly, the bill failed to get the 3/4ths supermajority required and did not come to fruition. For many it showed just how unwilling and unable mainstream political parties are to resolve this issue.

What can the police do

The problem is that despite wide recognition that candidates of all mainstream political parties habitually submit false returns on election spending, there are few precious times where the issue has led to legal challenge. The first was after the by-election in 2009 in constituency No. 8 that saw Pravind Jugnauth’s election. Pushpuwundut Mungtah, then-electoral agent of Anil Gayan, who lost that by-election as candidate of Front National Mauricien, lodged an electoral petition. The petition itself quoted MSM politicians and Mungtah produced estimates to show how Pravind Jugnauth’s campaign had exceeded the legal spending limit of Rs150,000. The petition failed because Mungtah did not pay the Rs10,000 deposit required under the RoPA when lodging an electoral petition.

The second time was after the 2010 election. Then, Hossain Atchia, who had stood as MMM candidate lodged a complaint at the CCID alleging that his former running mate Reza Uteem had spent more than Rs2 million on his campaign. The result? Nothing. Now it seems that ReA’s complaint following the Kistnen papers has also ended up at the same place, the CCID. Except this time, as it touches the PM and his two party running mates, the stakes are much higher. And it remains to be seen whether this complaint will lead to a first in Mauritian history: finally leading to a successful prosecution for violating election finance laws. Or will it simply, as in the case Atchia, go nowhere at all.