The Independent Commission Against Corruption (ICAC) never seems to be out of the headlines. We spoke to Anil Kumar Ujoodha, its director general, about the public’s perception of the institution and its investigation of high profile cases such as Boskalis, Medpoint and Rosewood.

? How does it feel to make the headlines and be the subject of parliamentary questions?

I think that in a way, it shows that the ICAC is important, that sometimes it doesn’t let certain people sleep at night and that sometimes it becomes the subject of, shall we say, demagogical comments. We need to sensitize and educate people about the dangers of corruption and these headlines do contribute to increasing awareness. I keep my head on my shoulders and continue to do my work.

? Well, not everybody’s happy with the way you work. You are aware of that, aren’t you?

I think that just a few people are unhappy but they trickle it through the media and make it the talk of the town for a particular period. A lot of people don’t agree with certain things, but we have to be smart enough to know why they don’t.

? The major criticism leveled against you is that you target the opposition and let government people off scot free.

I think it’s very easy to make comments like that without going to the root of the matter. It’s easy then to have such an opinion. There are laws in this country which specify the way we have to investigate and what counterbalances there are, such as what happens after investigation. Do certain people expect us to invent evidence against someone to comfort them or for gaining some sort of mileage?

? What law says that you should investigate only the opposition?

I believe certain people’s memories must be refreshed. We live in a country where there is the rule of law. Once there is a complaint or we get to know that an offence may have been committed, there has to be an investigation irrespective of who the person is. We have a system in place where every complaint is tracked. After completion of an enquiry, at further enquiry stage, we have to send the case together with all the evidence gathered to the Director of Public Prosecutions (DPP) who then gives his stand on our recommendations and decides whether to prosecute or not, look at the case from a different angle or sometimes to refer the matter to a different authority like the police, the Mauritius Revenue Authority (MRA) or even the Bank of Mauritius. The statistics are there and you can see the profiles of those being prosecuted or who have been convicted. One example is the case in court against the councilors of the municipality of Quatres Bornes. When the inquiry is closed, in each case, the parliamentary committee has the right to question the ICAC on issues involved in it.

? The parliamentary committee is a joke! It’s made up entirely of government people.

But the law provides for the committee to be made up of people from both sides of the House precisely to discuss such issues amongst others if the need arises. If there is any misconduct on my part, they can take me to task and have me sacked.

? But they’re saying that they’re not sitting on that committee because they think that, frankly, the ICAC hasn’t been doing a good job.

I won’t comment on that. The powers of the committee are there and whether they want to use them or not is up to them. I don’t want to make a polemic out of this issue. There is a forum set up legally to put questions and clear up everything. Files can be perused there too. I hope that one day the proceedings of the parliamentary committee are made public so that everyone gets to know what questions were asked and what answers were given. I would suggest that those criticizing take the trouble to follow the cases we investigate and see the outcome.

? But we followed the Boskalis case and saw again that you have been sleeping all these years and you suddenly woke up and pounced on a person who has just joined the opposition.

It seems that once again without having the facts, people jump to conclusions. Just for the record, the ICAC has been investigating the case since 2008, and everybody knows that we have to get mutual legal assistance which we have to get if need evidence from a different jurisdiction.

? But the evidence just so happened to come at a time when Chady joined another party…The case had been struck out!

That’s not true. When the magistrate in Port Louis struck out the provisional charge, that does not mean the case was over. The enquiry was still on and since the requests for mutual legal assistance in the Netherlands were subject to challenge in court there, we had to wait as the matter was outside our territory that is in the court of the Netherlands

? But you should have pressed for that evidence. How else did you expect to get it?

Who says we haven’t been pressing for it? You just have to look at the answer to the Private Notice Question to see the correspondence that has gone into this. Our first request was sent six weeks after the investigation had started, which is quite quick in that context. And we started to get replies very soon afterwards. We recently received a correspondence from the Netherlands authorities where they have explained why there have been delays and obstacles in attending to the mutual legal assistance request. Within the euro zone, the average request takes between 18 months and two years. When the request in the Netherlands started to be executed, the Boskalis Company filed a case against the remittance of certain documents to Mauritius we couldn’t do anything about that. What happened after November 2011 when the Dutch courts ruled in our favour was that certain Boskalis representatives approached the Mauritian authorities and said that they wanted to collaborate. When we heard what they had to say, we realised that more people were involved than we had thought before and the possible offences these people might be subjected to would be outside the mandate of the ICAC. We do not have the jurisdiction to investigate an offence of conspiracy or aiding and abetting for instance as they are found under the criminal code and not under the PoCA or the FIAMLA.

? But what I find hard to fathom is why it is now that you suddenly realize that the case had to be sent to the police.

This wasn’t a sudden realization. The case file was already with the DPP. Let me point out that as far back as march 2011 we had already sent the case file to the DPP’s office recommending prosecution against Mr. Chady on one limb of the investigation which was not really subject to mutual legal assistance requests in the meantime, judgment was given in favour of the request in November 2011 and subsequently there was the issues of new evidence. We don’t wake up one morning and decide to send a file to the police. We have to have good reason for that. People have to be serious in the way they talk about us. It is only since the beginning of the year that we got the confirmation for these possible offences.

? So who’s dealing with the case now?

The police. For issues stemming from the same set of facts, the investigation cannot be split, but there is one aspect of the case that’s still with us and that concerns certain limbs of money laundering offences which were subject to mutual legal assistance requests to the U.K.

? Two bodies investigating the same case? That is incongruous!

The problem is with the law. The law ought to have given the ICAC the jurisdiction if they are looking into money laundering or corruption offences, to investigate other offences that crop up. We have already made recommendations to that effect.

? You mean, you’re asking for more powers?

It has nothing to do with powers. It’s what the United Nations Convention against Corruption - also suggests. If a body has been created to investigate certain matters, there shouldn’t be any technical handicap preventing it from carrying on with the case. It was a very difficult decision to take let me tell you. It is not the first time that an investigation started by the ICAC had to be transferred to the police precisely due to jurisdiction issues. In such circumstances, there is full collaboration between our investigators and hose of the police even though there may remain a sense of sadness that the investigation had to be transferred.

? But why is there so much secrecy around everything you do?

The law requires me to maintain confidentiality. I could have spoken in the beginning of January and said that with the evidence we had, it seemed like the case needed to go to the police. Why the law requires discretion is very simple. If you make the public aware of issues that crop up in an investigation, such as money laundering, corruption or conspiracy, it becomes very difficult to gather evidence since those involved in the investigation would try to eliminate existing evidence. This is one of the reasons why we have to remain discreet. Secondly, in a small country like ours, it is easy to tarnish the reputation and integrity of people. Anytime we discuss a case in public, it may have an effect on the evidence in court.

? But your counterpart in Hong Kong, for example, does not suffer from such paranoia…

Check what the law in Hong Kong says. If anybody makes a complaint to
the ICAC of Hong Kong and he goes to the press or discloses it publicly, the investigation may stop irrespective of whether the complaint had merit in it or not. The person may even be prosecuted.

? The reason people get so exasperated is because things drag on for so long. Are we going to see the end of this Boskalis case anytime soon?

I explained why it has taken so long. And now the case is no longer with the ICAC it’s with the p and I cannot answer on their behalf. People should also do their homework and see what mutual legal assistance is all about and why it takes so much time.

? What about for example the Med Point case? There is no mutual legal assistance in that case so why is it taking so long?

The investigations contained many limbs of a complex nature. The case has now been referred to the DPP with the entailing recommendations, except that of the ex-minister of finance. We are all aware that he has entered a case before the supreme court seeking obtention of certain  documents.

? When are we going to see the ICAC producing some results, then?

Haven’t you seen any results yet? We have lodged some 270 cases since 2007 and since 2008, we have obtained 87 convictions involving 98 persons. But fighting corruption has nothing to do with fighting politicians. The law requires that we investigate all the pursuable complaints we receive.

? Have you for instance investigated the complaint about Dhiraj Khamajeet?

Oh yes.

? And what has happened to it?

I can’t discuss the case with you at this stage.

? I’m not asking you to discuss the case with me but I want to know whether it is over or not.

No, it is not over but now, in highprofile cases, we are looking into the possibility of issuing reports when there is no prosecution.

? In the case of Med Point, there are a lot of accusations of witch-hunting. You seem to be concentrating all your efforts on the people who are not in government.

This is an unfair criticism. The first people that were arrested were high-level public officers - ministers who were still in office. It is an organisation with a solid record that we put in place and I am proud to say that. We want to do our work and we don’t want people to point fingers at us since our investigations’ records guarantee transparency and accountability.

? What about the Rosewood case? Is that investigation still going on too?

We have to be cautious. The offence was committed in Madagascar and it involved smuggling most probably and may be corruption upon completion of the enquiry, we will have a better insight.

? Ask the World Bank. They might have things to say.

I can’t comment on that.

? Aren’t you working together?

If they ask us for our input, we will gladly collaborate with them.

? The leader of the opposition says that you should go because you are incompetent.

Unfortunately I can’t comment on that. If anyone feels that I’ve done something wrong, there is a forum provided under the POCA for the matter to be dealt with.

? Some people criticised you from the start because they felt that the law had to be changed for you to occupy this seat.

I disagree with the manner in which this issue is brought up. I would say there is a “nuance” in the law that needed correction. All they had to do was add a comma or an “and” in the law.

? Punctuation and words can change everything.

Yes, but it was just a technical issue. Somebody highlighted it and if the law has a technical problem, it needs to be dealt with. And this was voted in parliament. Just check the comments made by the members of parliament at that time in the Hansard and you would see that there was not a single objection. Let me put it this way, even though I usually prefer not to, who doesn’t want Mauritius to be a corruption-free country? If there is an issue that some people feel is not right, they should take the matter to court or to another relevant body instead of making derogatory comments week after week. We know what’s going on in the country we aren’t deaf and blind. We know how these issues build up and it is very easy for one to create a perception about something.

? The other criticism is that because you were appointed by the prime minister, you owe allegiance to him.

This is another example of a built up perception. There is a misconception about the whole appointment issue. The fact is that the law provides that the director general’s appointment is made by the prime minister after consultation with the leader of the opposition. In high profile positions, this is the case all over the world. Why does the issue of owing allegiance arise for the ICAC and not for other institutions?

? In developed countries, nominations are made by a board…

In many instances, the prime minister appoints after consultation with the leader of the opposition, or the president appoints after consultation or even recommendation of the prime minister. For example, the chief justice is appointed by the president after consultation with the prime minister. The issue of allegiance may become of concern if the person appointing you to such positions also has the power to sack you as per his whims and caprices.

? Can’t the prime minister sack you if he wanted to?

No, he cannot. Once he appoints me, it’s the parliamentary committee that need to make a recommendation to parliament and that too if a judge or a magistrate hears out the grievances about me. So again, this issue remains fallacious and it has been put in the minds of so many people even though it’s not true. The PoCA clearly provides that the director general shall not be under the control of any one. As head of the ICAC, I am not, I have never been and will never be under the control of anyone.

Touria PRAYAG
(l’express Weekly, Friday 13 July 2012)

Touria PRAYAG