Vivek Pursun’s attempt to bring a private prosecution against Attorney General Maneesh Gobin and former PPS Rajanah Dhaliah in the Eco Deer Park case ground to screeching halt after the DPP put a stop to it. Since 2020 the extra parliamentary opposition and activists have embraced an obscure legal tactic – the private prosecution. None of them succeeded. Here is why their embrace of private prosecutions was doomed to fail.

The use of private prosecutions

Vivek Pursun’s bid to bring a private prosecution at the Curepipe District Court against Attorney General Maneesh Gobin and former private parliamentary secretary Rajanah Dhaliah has ground to a halt after the Director of Public Prosecutions (DPP) decided to halt the case. On 28 November, the DPP lodged a motion to discontinue Pursun’s case that accused both Gobin and Dhaliah of allegedly being paid a bribe of Rs3.5 million to allocate 250 hectares of state land to the Eco Deer Park Association. The DPP explained its decision to halt the private prosecution of Gobin and Dhaliah on the grounds that the case forwarded by Pursun between August and September was just “hearsay evidence”. However the DPP insisted that it would look into any file against Gobin and Dhaliah that would be forwarded to it by the Independent Commission against Corruption (ICAC) or the police.

In many ways, Pursun’s attempt to bring in a private prosecution is a late entrant in using this legal tactic against the government. Since 2020 activists and the extra-parliamentary opposition have resurrected an obscure legal holdover within the Mauritian legal system – the private prosecution – as part their political and legal strategy against the government.

Private prosecutions were commonplace when Mauritius was part of the British empire. Under UK’s common law, private individuals were allowed to lodge private prosecutions in court based on private grievances. The use of private prosecutions fell out of fashion following Mauritian independence in 1968; private prosecutions made way for the understanding that prosecutions would be conducted by public authorities such as the DPP. The constitution of independent Mauritius does not contain any right of the citizen to prosecute, while private prosecutions survived in the Mauritian legal system only in scattered pieces of legislation such as the Criminal Procedure Act and the District and Intermediate Courts Act. While Private Prosecutions have been used in Mauritius since at least 1873, independent Mauritius took a wholly different view of private prosecutions. In 1994 the case of Nizam Edath-Tally against then-minister Michael Glover for allegedly bringing a kilo of heroin into the country, the court underlined just how different the Mauritian and British legal systems were. Unlike British common law based on an unwritten constitution, rights in independent Mauritius flowed out of a written one. If British common law allowed the courts to assume that a right to privately prosecute somebody existed in colonial times, since the Mauritian constitution did not confer a right to prosecute, Mauritian courts could not simply import British law and create rights not mentioned in the constitution. Put simply, the Mauritian constitution provides no right to start a private prosecution, nor approach the DPP to try to kickstart a prosecution.

(Attorney General Maneesh Gobin and former PPS Dhaliah were accused of corruption in the allocation of state lands to the Eco Deer Park Association.)

Nevertheless, beginning in 2020 private prosecutions began coming back into vogue starting with the private prosecution announced by Bruneau Laurette against fisheries minister Sudheer Maudhoo and environment minister Kavy Ramano over the 2020 Wakashio disaster. Laurette took his case directly to the Mahebourg District Court. There it meandered until it was finally put an end to by the DPP.

Then in November 2020 the leader of the Reform Party Roshi Bhadain announced his own private prosecution against Prime Minister Pravind Jugnauth in connection with the Angus Road case. Bhadain, however, wanted to take his case directly to the Supreme Court. The Edath-Tally case in 1994 also laid down the rule that any private prosecution being taken directly to the Supreme Court would have to be greenlit by the DPP. The logic behind this was simple: cases at the Supreme Court are expensive and the DPP is supposed to act as a gatekeeper to prevent the Supreme Court from being flooded by a deluge of weak but expensive attempts at private prosecutions. There have been cases such as that of Bhatoo in 1982 where the court had warned of private prosecutions being abused to settle private scores based on bad information.

The rule laid down works something like this; a person wanting to take a private prosecution directly to the Supreme Court would submit a file to the DPP, who would then issue a document saying that he declines to prosecute which would then allow the person to approach the Supreme Court directly as a private prosecutor. At any event, this attempt at a private prosecution also failed. But the prospect of the abuse of private prosecutions as an extension of politics is something that is evident even today. In late 2020 former Attorney General Rama Valayden – himself a part of the extra-parliamentary opposition – warned against the overuse of private prosecutions as a political tactic that might end up killing the private prosecutions entirely.

Pursun’s unsuccessful attempt resembled the tactic adopted by Laurette earlier by going through the district court level. However all of them ended when the DPP stepped in and put an end to their attempts.

How much power does the DPP have?

Given that the DPP can shut down a private prosecution at any time – as happened most recently in the case of Pursun – the question that arises is just how much power does the DPP have? And can his decisions be challenged?

(The DPP has the power to end private prosecution at any time.)

Section 72 of the Constitution is clear on this allowing the DPP not just to take over any criminal prosecution, but also the power, “to discontinue at any stage before judgement is delivered any such criminal instituted or undertaken by himself or any other person or authority”.

But just how much accountability the DPP has when it comes to such decisions has been in constant evolution within the Mauritian courts. Until quite recently the assumption within the Mauritian judiciary was that any decision of the DPP concerning a criminal prosecution could not be challenged. This was epitomized in the 1988 Maingard case where a Swiss woman was barred from leaving Mauritius because of a private prosecution looming over her for allegedly stealing Rs1000. The Supreme Court refused to interfere in the case by flatly arguing that the DPP decision in the case, “is not subject to review”.

This changed in 2006 with the Mohit case. The 1996 Gorah Issac murders led to several attempts to bring a private prosecution against MMM leader Paul Bérenger who was accused of helping one of the accused in the murders, Toorab Bissessur, to flee to Madagascar between August and September 1997. Most of these attempts were struck down by the DPP until the Mohit case made its way to the Privy Council in 2006. The Privy Council stated that, “the evidence will include any reasons the DPP may choose to give. But it is for the DPP to decide whether reasons should be given and, if reasons are given, how full those reasons should be”. While the Privy Council decided that its wholly up to the DPP to choose whether or not explain why he shuts down a private prosecution, nevertheless the decision itself could be challenged via a judicial review. It was a landmark in Mauritian legal history even though the Mohit case itself was eventually dropped by the Supreme Court in 2007 anyway. The reasoning of the Privy Council was simple: since the DPP does not answer to parliament, unlike the Attorney General, then the courts are the only road to ensure accountability of the DPP. Since the Mohit case, the DPP’s Office in Mauritius has often come up with explanations of its decisions particularly in controversial or high-profile cases.

The lack of a track record

The biggest problem with private prosecutions is its lack of a track record of success. That’s because there is a significant disadvantage baked into it; since this is not a case brought in by an investigative institution such as the ICAC or the police, private prosecutions led by individuals are often weak when it comes to evidence. Just as Pursun’s case was discontinued by the DPP for what it deemed to be based on just “hearsay evidence”. The result is that most private prosecutions that are directed against the government or an institution usually collapse in court or see the DPP pulling the plug on it.

After 1968 there is only one case where a private prosecution succeeded in getting a prosecution: that of the 1975 case of former employment minister Alex Rima. A French woman staying at a bungalow at the Paul et Virginie Hotel in Grand Gaube when she said that Rima came in demanding that she vacate the hotel and threatened to have her deported. When he asked for the hotel keys, she refused to give them. Rima then grabbed the keys. The trouble was that some of the keys that Rima grabbed belonged to the woman, leading to the private prosecution at the district court of Rivière du Rempart. Taking too many keys was what resulted in Rima’s conviction for larceny and being sentenced to a Rs500 fine. Rima appealed against the conviction but did not succeed.

(There is only a single instance of a private prosecution succeeding in Mauritian courts since independence.)

This is the only case of private prosecution to succeed in the independent history of Mauritius. And even here the Rima case was significantly different from the types of private prosecutions that the extra-parliamentary opposition and activists have looked to bring against the government in recent years, with Pursun’s attempt being only the latest one. The case against Rima was not a political one, nor was it contesting a government policy or decision, as Laurette’s case was. And it certainly was not a case involving any allegations of corruption within government, as was the case with Bhadain and Pursun’s attempts. All of these would have involved extensive investigations, access to internal government documents that can only be subpoenaed by investigative agencies and resources that are beyond the reach of just an individual bringing in a private prosecution as a parallel investigation process. If the Rima case was about any of these, it would have failed as all other private prosecutions failed. The real reason the Rima case in 1975 succeeded at all was because it was about none of this, it was a private dispute and a private grievance brought by an individual much along the lines of private prosecution cases that were in fashion during the British period. Not surprisingly, when this legal tool was used to try to hammer the government over much bigger issues on the political arena all of these private prosecutions signally failed. It’s just not the type of case that can succeed in court when much bigger issues are involved.

Reaching out to a colonial-era legal mechanism designed to settle personal grievances is not likely to succeed when injected into larger political battles. And the string of unsuccessful private prosecutions since 2020 is evidence of that. For the smaller parties in the opposition and activists, attempting to wield private prosecutions as a weapon against the government may generate headlines but at the end of the day has been a tree that has yielded no fruit.

(Bruneau Laurette and Roshi Bhadain came up with their own private prosecutions to try to nail the government. None of them succeeded.)