Tomorrow the Privy Council will be releasing its judgement in the case of Suren Dayal, which accuses prime minister Pravind Jugnauth, Leela Devi Dookun-Luchoomun and Yogida Sawmynaden of electoral bribery. Despite the political drama, here is why the stakes are not as big as they look.

The argument at the Privy Council

Tomorrow the Privy Council in London is scheduled to release its judgement on the case of Labour Party unreturned candidate Suren Dayal, which is seeking to invalidate the election of prime minister Pravind Jugnauth, education minister Leela Devi Dookun-Luchoomun, and former commerce minister Yogida Sawmynaden in constituency No. 8 at the 2019 general election. Dayal’s case accuses the three members of the ruling MSM Party of indulging in electoral bribery and is looking for the Privy Council to overturn a dismissal of Dayal’s case by the Mauritian Supreme Court.

Back on August 12, 2022, the Supreme Court rejected Dayal’s case that promises such as eventually hiking the basic retirement pension (BRP) to Rs 13,500, pushing forward the implementation of a Pay Research Bureau (PRB) report, and bonuses to policemen and firemen constituted electoral bribery. What the Supreme Court argued was that merely promising measures that would benefit voters financially is not enough to make such an argument. It pointed to promises in the Labour-PMSD manifesto at the 2019 elections such as removing VAT on certain products, reducing gas and electricity prices, raising the minimum wage or promising higher prices for small planters for their sugar cane crop, arguing that such promises were normal in the context of political campaigning.

When confronted by similar promises made by his own side, the Supreme Court judgement noted that Dayal “either did not answer or replied that two wrongs do not make one right or replied that the proposals of l’Alliance Nationale were part of its electoral manifesto whereas the proposals of l’Alliance Morisien constituted an electoral bribe. We must say that we were not impressed at all by the petitioner’s astounding answers and double standards”.

At the Privy Council in July this year, Dayal dropped two parts of his case. The first being about the Mauritius Broadcasting Corporation (MBC) and the second about alleged promises in relation to reimbursing the ex-BAI’s Super Cash Back Gold Scheme (SCBG). Both of these planks did not succeed at the Supreme Court either, with the part about the SCBG relying entirely on unsupported testimony by Salim Muthy in court.

(Guy Vassal-Adams (L), representing prime minister Pravind Jugnauth and his two running-mates, and Timothy Straker, representing Suren Dayal, made their arguments at the Privy Council in July this year.)

In his appeal against the Supreme Court’s rejection of his case, Dayal put forward a strict interpretation of the Representation of the People Act (RoPA). His lawyer Timothy Straker argued that since section 64 of the RoPA prohibited “any valuable consideration to induce a vote”, the promises made by the three MSM candidates could qualify “that this was made to electors, that it was made as part of electoral campaigning, and I take electoral campaigning to signify an inducement to vote, and it related to a valuable consideration, it related to money”. This argument was resisted by Guy Vassall-Adams whose counterargument essentially was that such a strict interpretation of the RoPA would make election campaigning impossible: “This is true of many bread-and-butter issues of politics, from pension rates and public sector pay to income tax cuts or benefits rises… this would make election campaigns impossible.” He added that “one can see that if any policy conferring a financial benefit on any class of citizens were off-limits, then mainstream political debate would be undermined. One of the ironies of the appellant’s construction of section 64 is that it wouldn’t be possible to campaign for lower taxes and higher benefits, because they do confer a financial benefit, but it would be possible to campaign for higher taxes and lower benefits because they do not confer financial benefits”. By doing so, Vassall-Adams argued, Dayal’s interpretation of the RoPA would also undermine the freedom of expression of candidates standing for elections.

The difference between Suren Dayal and Ashok Jugnauth

One problem with Dayal’s case is just how different it is from the case of Ashok Jugnauth, the only successful prosecution on electoral bribery in the history of independent Mauritius. The case against Ashok Jugnauth was brought by Raj Ringadoo, the unreturned candidate of the Labour-PMSD bloc in the 2005 elections. The Supreme Court’s verdict against Ashok Jugnauth rested on four main arguments: the first was in relation to the extension of the Muslim section of Circonstance cemetery. The issue had been flagged since 2002 and the government explored a deal with Mon Desert Alma Sugar Estate to buy 2 arpents of land for Rs 2 million to allow the cemetery to the extended. That did not work out.

In 2005 the deal was back with the cabinet on June 24, 2005, taking “note that the Ministry of Housing and Lands proposes to acquire a plot of land of 2 arpents adjoining the Circonstance cemetery”. On June 29, Ashok Jugnauth addressed a meeting in his constituency where he announced that the government had decided to buy the land to extend the cemetery. The Supreme Court in its decision of March 30, 2007 ruled that Ashok Jugnauth had “misrepresented a decision of cabinet and could only have done so with the intention of misleading and influencing the Muslim voters of Constituency No. 8 who constituted 10% of the voters, to vote for him and his party, in return for the land”.

The other three arguments were quite similar: just ahead of the 2005 elections, Ashok Jugnauth’s ministry had interviewed 436 people from his constituency to be given jobs as general workers in the health ministry, 266 people from his constituency to be hired as hospital servants and recruited 388 people – out of which 101 were from his constituency – as health care assistants. The issue, the Supreme Court (and later on the Privy Council found) was that Ashok Jugnauth was making promises related to his own election, in his own constituency to potential voters for his own election rather than anything to do with the MMM-MSM election campaign in 2005. The difference in Suren Dayal’s case is that the promises that Dayal points to – hiking the BRP, the PRB or bonuses to certain types of civil servants – were part of a wider national election campaign and not restricted to potential voters in No. 8. This was the distinction that the Supreme Court made between an electoral bribe and a campaign promise.

(Labour Party’s Suren Dayal (L) accuses prime minister Pravind Jugnauth of electoral bribery at the 2019 general election.)

If Suren Dayal wins...

Despite the over-heated political rhetoric that has accompanied Suren Dayal’s case, the fact remains that there is very little actually at stake. Should Suren Dayal win his case, it would mean little for the way in which the electoral process itself functions. Unlike the other election petitions, which criticised the conduct of the 2019 elections, Dayal’s case only focused on electoral bribery. Should he win, it would not mean a vindication of any of the points contained in the other petitions – but absent in Dayal’s petition – in relation to the conduct of elections themselves.

Secondly, there is a big difference between the law in the UK and that of Mauritius about electoral bribery. In the UK, electoral bribery is classed as a criminal offense whereas in Mauritius it is not. All that a successful prosecution leads to is the invalidation of the election of a particular candidate. It certainly does not stop anybody being found guilty of electoral bribery from taking part in any future elections. Or indeed, from trying to win back his seat. In Ashok Jugnauth’s case, for instance, after the Privy Council confirmed the Supreme Court’s invalidation of his election in 2005, Ashok Jugnauth simply attempted to win back his seat by contesting the resulting by-election in 2009 where he lost to Pravind Jugnauth who bagged 52.46 per cent of the vote as compared to Ashok Jugnauth’s 42.04 per cent.

If Ashok Jugnauth’s star began to wane after the electoral bribery affair, it was not because of his prosecution for electoral bribery, but rather because the resulting by-election was seen as a proxy battle between the MMM who backed Ashok Jugnauth and Labour that backed Pravind Jugnauth to attempt to influence who would take over the MSM from Sir Anerood Jugnauth. Ashok Jugnauth’s defeat in that by-election put an end to any hopes he may have had of eventually taking over as leader of the MSM and muscling out Pravind Jugnauth. The MSM went on to ally itself with the Labour Party and the PMSD in the 2010 election. Until, that is, the MSM left government and went into the opposition in 2011.

Similarly, should the Privy Council find prime minister Pravind Jugnauth and his two running mates in No. 8 guilty of electoral bribery, it might be damaging politically going into the next election, but it does not really affect the prime minister’s hold on his party or his subsequent political career. Neither he nor his party would be obliged to turn to alternative leadership. And all the government would have to do is either go through a by-election with the MSM attempting to win back those three seats or call for a general election – where the three MSM candidates can contest just as any other candidates – with the government’s current term nearing its end anyway.

Alternatively, should Suren Dayal lose his case, it would be just the latest of the successive reversals that the parliamentary opposition parties have faced in court in their bid to challenge the veracity of the 2019 election. After the flood of election petitions that were put in after the last general elections by Labour, the MMM and the PMSD, all of them have either been voluntarily withdrawn (starting with that of Anil Bachoo and the latest being that of Cader Sayed Hossen) or have been defeated in the courts, such as that of Ezra Jhuboo.

In none of the petitions have the parliamentary opposition parties succeeded in convincing the courts of the misgivings about the 2019 elections. The only successful case, that of Jenny Adebiro in No. 19, only succeeded because during the case itself, counting errors were discovered leading the Supreme Court to concede the possibility that spoilt ballots had been counted as valid in the vote count and possibly affected the result. The judgement was careful to point out that it was not ordering the recount on any of the grounds that were detailed in the original petition.

At any rate, in the resulting recount, the result was re-confirmed (the leader of the ML Ivan Collendavelloo kept his seat) and the euphoria around that success soon melted away after Jenny Adebiro herself broke with the opposition and left the MMM. A fresh defeat at the Privy Council would not be anything new. In terms of political rhetoric, the opposition parties might still insist on their claims regarding the 2019 elections, but now they would be so without any legal leg to stand on. As the last remaining case coming out of the parliamentary opposition, a defeat for Suren Dayal at the Privy Council would finally close the chapter of their challenge to the 2019 election.