Africa-Press – Mauritius. The “Private Prosecution” case brought to the Port Louis District Court by the widow of MSM agent Soopramanien Kistnen against Minister Yogida Sawmynaden seems straightforward, almost “clear-cut”.
However, the debates which were initiated by the lawyers of the two parties and the representative of the DPP, in the eyes of the common people, made things more complex. Tell us, Me Mohamed, is this “Private Prosecution” a valid procedure, according to you?
Me Yusuf Mohamed: There is no ‘Private Prosecution’ as such before the district court of Port-Louis, there is only ‘Provisional Information’, that is to say a provisional charge . And in my opinion, as a lawyer, I can tell you that NO, it does not hold water.
The ‘Avengers’, as they call themselves, perhaps realize now – I had the opportunity to talk to them about it – that it does not hold water and that it is necessary enter ‘Substantive Information’ – a formal charge before the competent court, ie the Intermediate Court because it is a matter of ‘bribery’…
The case must be brought before the Intermediate Court even before magistrate Casamally delivers her judgment on the debates which took place last Thursday in the district court of Port-Louis.
Ms Kistnen’s lawyers could, from then on, ask the magistrate to have the case before the district court struck out. According to my information, but I say this with reservation, it seems that the “Avengers” would be taking this legal route very soon .
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. if they haven’t already.
* According to lawyer Rama Valayden, Ms.
Kistnen gave a formal statement with supporting documents on December 8; and neither the police nor the ICAC are said to have initiated an investigation until December 20, which explains their push for “Private Prosecution”.
What is therefore is quite justified, isn’t it? The ICAC has demonstrated very often that it can initiate an investigation on its own, without a formal declaration or a complaint from anyone, as it did in the case of the former president of Mauritius.
Ports Authority (MPA), Siddick Chady, and ex-MPA director Prakash Maunthrooa, in relation to the Boskalis case. The Prevention of Corruption Act gives the ICAC the power to initiate an investigation even in the absence of a formal statement or from an anonymous source.
However, I see it strange that no investigation has been initiated despite a formal declaration made by Ms. Kistnen in due form to the ICAC and Central CID.
‘Nothing is done. Why? ’
The people of Mauritius must ask themselves the question: are our institutions really independent or are they there to serve the government of the same day in its detractions or its sins? The Police Commissioner, who enjoys the protection of our Constitution, and the forces under his command must not put themselves at the orders of the Government, whatever the regime in place.
The police have no right to say that they will not investigate such and such a case at the risk of embarrassing those in power. I remember my son Shakeel made a statement at the time against Anerood Jugnauth; no investigation had been made.
Do you see how it works when it comes to a declaration made against a minister: no investigation has ever taken place, this while the Republic of Mauritius is supposed to be a rule of law and all should benefit from the same treatment before the law.
No one is superior, whether you are a minister or not. At the time, some people like Messrs Daby and Badry had been prosecuted despite being ministers in Sir Seewoosagur Ramgoolam’s government.
I was a minister at that time and I remember the deliberations of the Council of Ministers then on these matters. MM Daby and Badry had been prosecuted, found guilty, and they had to resign afterwards .
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. Now let’s look at the current situation. The difference is that now Mr. Jugnauth is informing you that he has made an investigation and finds that there is no “case” against his Minister Sawmynaden.
When the Prime Minister says such a thing, do you see the Director General of ICAC being able to act otherwise? This is why I, who defended the ICAC in the past and believed in its independence, now say that I can no longer trust this anti-corruption institution. By the way, I have repeatedly said to Mr. Jangi: Your police has to be independent.
The Constitution provides for the police to comply with such general directions of policy with respect to the maintenance of public safety and public order as it may consider necessary as given by the Prime Minister, mais’ it shall not, in the exercise of its responsibilities and powers with respect to the use and operational control of the force, be subject to the direction or control of any person or authority ‘.
In other words, the police must carry out government’s policy decisions ’, but the conduct of investigations is the responsibility of the police and they alone.
However, in the case of Soopramanien Kistnen, the police concluded early in their investigation that he had committed suicide. Now, thanks to the ‘Avengers’ investigations and the interrogations of various witnesses, it is now clear that there has been ‘foul play’. With all due respect to the Prime Minister, I ask myself the question: Is he an investigator? So, it is better to let the police do their job.
At best, as Minister of the Interior, it is his duty to demand from the police an investigation into the death of Mr Kistnen, as well as that of this official at the Ministry of Health found dead in Gris- Gray and also this lady assigned to PMO, found dead in her apartment in Helvetia.
* Do you have any security concerns at the moment? After sixty years of practicing at the bar and the only one still practicing at my age, I must tell you that I am desperate for my country.
This, especially since I fought alongside the great tribunes of the time like SSR, Sir Guy Forget, Sir Harold Walter, Sir Veerasamy Ringadoo, the founder of your newspaper B. Ramlallah and so many others together for the independence of this country: I thought that all Mauritians would walk with their heads held high . . .
I am disappointed and alarmed at what is happening now in Mauritius where all the institutions are in the hands of a single man who has placed his men everywhere, except the judiciary which remains the only bulwark to ensure our freedom and our democracy.
As for Parliament, it is even worse: we have never had a Speaker like the one in office today. I congratulate him on his courageous and pro-government decisions.
I myself was deputy speaker and served as a member of the Assembly under Sir Harilal Vaghjee, the best Speakers the country has known, and under Ramesh Jeewoolall, Ajay Daby and others… I have never seen such a thing. It makes me miss Mrs. Hanoomanjee; she was criticized but Mr Phokeer passed her by several lengths.
Why not leave it to a truly independent investigation to determine the true from the false, whether in relation to the ‘Kistnen Papers’ to find out whether the election expenses had exceeded the threshold allowed by law or whether these receipts from Bel Air Sugar Estate are fake? Why does the Prime Minister have to come and say this instead of the institutions that are supposed to investigate and find the truth? Let these institutions operate!
SSR has never done this.
I remember what he said to Badry and Daby in cabinet when he was about to set up a commission of inquiry: ‘I am going to appoint a commission of inquiry.
Do you agree? ”And Badry and Daby respond,“ Ok, Sir, you do what is required. ”This is the way SSR does it. This is why I no longer recognize my country.
It’s very sad and it’s a shame because the current government is here for another four years. Unless the Election Commission investigates whether these ‘Kistnen Papers’ are real or fake: then we could act accordingly .
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* In your opinion, is there sufficient information in these ‘Kistnen Papers’ for the Election Commission and the ‘Electoral Supervisory Commission’ to take an interest in it in order to see more clearly the conditions under which the election at No. 8 was held in November 2019?
These documents are now available in the public domain, mainly through social media, and it takes some investigation to see more clearly and determine if there is any offense, such as that of “declaring a false affidavit”.
Remember that in the case of Reza Uteem’s election, a man named Atchia made a statement. And the police had carried out an investigation which concluded that no crime had been committed.
So why not take the same approach in this case? If no crime has been committed, a police investigation will exonerate the three elected members of this constituency.
Several names have been mentioned in these “Kistnen Papers”. Let a truly independent police question these people! * What can these “Kistnen Papers” be used for in the Kistnen case and beyond?
‘There must be a motive to what happened to Kistnen.
‘ Initially, it was believed that it was linked to the contracts awarded during the containment for the supply of the equipment… but there would not be only that… ‘there is more to it than that ‘.
Other people are targeted by these Kistnen Papers ’. Today we know that Mr. Kistnen did not kill himself; there was ‘foul play’. Can so-called “Avengers” lawyers conduct investigations like seasoned police officers? They have neither the experience of detectives nor the logistics to carry out such an investigation .
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The day when experienced detectives within the police will be responsible for conducting an independent investigation in order to trace and arrest the guilty party / s of this ‘foul play’, then we will know that Mauritius, including his police force , operates independently of political power.
But if the Private Prosecution ’case filed by Simla Kistnen sounds straightforward, you have to admit that the Kistnen case is much more complex, given the absence of witnesses and Safe City data, right?
Yes, but it’s up to the police to do their job. Lawyers have neither the means nor the experience to do this. Having said that, however, I believe that the magistrate will conclude in foul play ’and submit her report to the DPP.
Subsequently, the latter can be expected to make a request to the police for a thorough investigation into the matter. Let’s wait and see. Moreover, in that it is about ‘Private Prosecution’ concerning Mr.
Sawmynaden, it is in my opinion as a lawyer, a very simple matter because of the abundant evidence available – ‘subject to the Court listening and appreciating it ‘. But the DPP must take a position once a ‘Private Prosecution’ has been lodged with its consent before the Intermediate Court.
Let me share my fears about the DPP, I fear for him to be attacked because he is the brother of Arvin Boolell, the leader of the Opposition, who is under attack from the majority in Parliament.
Derogatory remarks are made about him. It is disgusting because the DPP, which only acts within the parameters prescribed by law, does not sit in Parliament to defend itself .
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* Do you think that in case the situation gets stuck, a last resort to seek Supreme Court intervention could be considered?
I suggested to the Avengers lawyers to request a ‘writ of mandamus’ – which is a ‘prerogative writ’ that serves to ‘direct the behavior of another arm of government, such as an agency, official, or other court’ .
This will allow them to ask the Supreme Court to issue an order to the Police and the ICAC with a view to ‘carry out an inquiry independently into this matter’, and even more by ordering these two institutions’ to report to the Court where you have reached in your inquiry ‘.
At that time, the Police and the ICAC will be under an obligation to obey this order from the Supreme Court to perform their statutory duties ’. Personally, as the most senior practicing barrister ’, I have confidence in our judiciary – the last bastion of the rule of law.
If we lose faith in our judiciary or if it falters, then it will be over for the country. Fortunately the judiciary has never wavered, and I don’t think the judiciary is going to let us down.
* What do you do with the silence of the opposition during these rather disturbing times in the country? I don’t think the opposition is keeping silent.
I saw Shakeel speak on the radio last week, and during his speech he was very vocal in his comments about the troubling things that dominate the news these days.
Arvin Boolell, as the leader of the opposition, is doing what he can; Patrick Assirvaden also intervenes from time to time, but as Shakeel said recently, the opposition has to rebuild itself. I’m talking mostly about the Labor opposition.
I believe Navin Ramgoolam, as he said recently, needs to rejuvenate PTr; he cannot rejuvenate himself – ‘you do not become younger’, he lost two general elections twice in a row, so ‘I leave it to his discretion as somebody who is responsible as to whether he should find somebody else to succeed him and to guide that new leader ‘.
He could eventually settle as President of the Republic. So it is for him to see whether it is the interests of the country and of the Labor Party that should take precedence over his political ambitions.
“Does he want to wreak vengeance on the present Prime Minister and other ministers?” If that’s the point, don’t come!
* But let’s face it, the conditions are right now for him to make his comeback as the current prime minister’s main challenger, right? Yes, it’s true. Navin Ramgoolam’s best agent is the current Prime Minister and his ministers.
Having said everything I just told you, you are aware of the very dynamic nature of politics, I myself may change my mind in the days or weeks to come.
If the people find tomorrow that the country needs Ramgoolam, I would side with the people. In any case, for sure, if the current government continues to sin, Ramgoolam has every chance of coming back!
