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Rapport de la Commission d’enquête sur Britam : voici les 31 recommandations de l’ex-juge Domah et de ses assesseurs 

31. C’est le nombre de recommandations faites par l’ex-juge Bushan Domah, président de la commission d’enquête instituée en mai 2017 pour faire la lumière sur la vente des 23 % d’actions que détenait l’ex-BAI au sein de Britam Holdings Ltd (Kenya). Il avait pour assesseurs Sattar Hajee Abdoula et Imrith Ramtohul. Le rapport a été déposé au Parlement ce mardi 27 juillet.

L’ex-juge Bushan Domah et ses deux assesseurs ont à la fin de leur rapport long de 352 pages recommandé, entre autres, une enquête pénale pour faux ou usage de faux contre les personnes, entités et sociétés suivantes :

1. M. Bhadain Sudarshan (Roshi Bhadain, NDLR) ;
2. M. Deerpalsing Akhileshwarnath ;
3. M. Ebrahim Afsar ;
4. M. Khapre Sandeep ;
5. BDO 
6. D'autres personnes que l'enquête permettra  de découvrir.

Le document concerné est le procès-verbal d'une réunion tenue le 14 novembre 2015 à Nairobi.

L’ex-juge Domah et ses deux assesseurs estiment aussi que des infractions à l’article 109 et l’article 215 de la loi sur l'insolvabilité auraient pu avoir été commises par les personnes spécifiées ci-dessous.

1. M. Afsar Ebrahim ;
2. M. Yacoob Ramtoola ; et
3. BDO.

“This relates to a prohibition by law to take up professional assignment in conflict of interest and/or giving false information to the Commission regarding the dates of professional engagements and/or giving false evidence in proceedings before the Commission”, écrivent l’ex-juge Domah et ses assesseurs.

Et d’ajouter : “We accordingly, recommend that the above be referred for criminal investigation by the relevant authorities”.

Voici leurs 31 recommandations : 

1)Every Mauritian worth his salt shall: 1. do a soul-search on what it means to be a Mauritian; 2. discharge his duty to himself, to his society, to the country and the world at large; 3. introspect on, and give effect to, the role he has to fulfil in meeting the high objective destined for him by the UNSC; 4. serve to live up to that expectation of the world at large in that it is not only possible but salutary to live in harmony and peaceful co-existence in a plural human society; 5. resist trading in hate; 6. strive to make what was once the Star and the Key of the Indian Ocean, henceforth the Star and the Key of the global village; and 7. retrace his step to be back on track.

2) Every Mauritian worth his salt regularly, more particularly on independence day, dedicate a short time for doing a soul search of whether he is giving to the nation what he takes from it, whether he is paying lip service to the national anthem, whether democracy proper really is his act of faith and whether by his act or omission, consciously or unconsciously, directly or indirectly, overtly or covertly, partially or otherwise, he is biting the very finger that feeds it. Our education system should ensure that these prime values do not vanish in the air over time.

3) Every power holder shall subscribe to a Personal Code of Democratic Governance. As such, he shall take concrete steps to grow the spine of a mini democrat in his field of action, resist the temptation of becoming a mini autocrat at all times. Accordingly, as per his personal code of democratic governance, he should exercise the power entrusted upon him • responsibly and not irresponsibly, • altruistically and not selfishly, • judiciously and not arbitrarily, • properly and not abusively, • independently and impartially, and • not ill-inspired by extraneous motives.

4) Cabinet as one of the three Arms of the State may seriously consider for whatever decision it may think fit following the example of the Judiciary which has introduced the concept of Abuse of Process. Our Cabinet system may not afford that its supreme authority to decide as the Government of the day be flouted by stealth. Border control of what goes in Cabinet for approval and what comes out of it is sacrosanct for a democratic system to function properly, mindful of the sanctity and gravity of procedure and substance.

5) The Legislature may seriously consider, for whatever decision the August Assembly may think fit, developing the concept of abuse of legislative process. Only such Bills should come to the NA which have been properly vetted by the State Law Office and approved by Cabinet. Where the nature of the Bills has required consultation with key-holders, consultation should be undertaken. In course of the parliamentary debates, sensible views of the Honourable Members should not be derided by other Honourable Members by means of threats, intimidation and menaces or otherwise. The risk should be averted that the shrine of democracy is desecrated through manipulation process and procedures.

6) Every public officer as well as independent professional delivering service to Elected Executives or any public office be bound by a strict fiduciary duty; resist becoming a conduit for his appointer; and albeit appointed by the government of the day, discharge that duty with an independence of mind and action, sans peur et sans reproches.

7) Concrete measures be taken to define, demarcate and set the boundaries as regards the duties and responsibilities amongst the Elected Executives, the Public Officers, the Political Advisers and any independent professional assigned a task in the respective decision making process so that there is clarity of roles and accountability of actions all along the line.

8) Governments of the day shall ensure that political advisers are not appointed to influence decisions of State Regulators; that State Regulators exercise their functional and operational independence; that public officers and professionals forming part of those institutions are able to progress the entities with an independence of mind and action, if in the interest of the nation, fulfilling their statutory roles pro-actively on government policy but not unethically.

9) Anyone appointed to carry out a public duty shall owe allegiance to the State and not to the appointer, subscribe to an oath and his commitment to his profession and not otherwise. He should have in mind the need of the appointer to his independent professional advice and deliver in line with Government policy but without compromising his professional integrity and expertise.

10) All Self-Regulating Organisations carry out a self-audit of their strengths, weaknesses, opportunities and threats as regards themselves, their members, society and in general to the country as a whole, take concrete and visible steps to upgrade their professional and normative activities and establish state of the art enforcement monitoring, mentoring capacities and logistics so that they may play a primary role as robust SROs in public interest.

11) Every decision-maker in public affairs exude and inculcate a culture of constitutionalism through concrete, explicit actions such as development of such citizen’s charters, protocols, guidelines, best practices, benchmarks or guidance notes as may be necessary, at all levels, hierarchical and vertical, demarcating on what is permissible and what is prescriptive in the conduct of public affairs. These should be enforced by discipline, monitoring and mentoring programmes so that these become the DNA of the nation.

12) The Civil Service shall ensure that every milestone in the discharge of public service is reduced in writing in real time in a public record faithfully and that the institutional memory of relevant and material events be kept and preserved for as long as the law requires.

13) Boundary lines be drawn with regard to the roles of the entourage of elected Executives to ensure, being so near the corridors of power, that power does not go into their heads; that they work within the strict bounds set for them; that actual and potential abuses are nipped in the bud; that in the context of public affairs, they defer to public officers; and that they fully apprise themselves of the do’s and don’ts of public service and public administration.

14) Institutions, professionals and public service identify, list and review periodically the threats that come their way in the proper discharge of their functions and address them with appropriate remedial actions for the purpose of negating any inroad into their independence, impartiality and neutrality

15) The Civil Service should undertake a re-appraisal of the proper role it should play in the effective functioning of modern government, the values it represents, the manner in which it should give effect to those values, the means by which it will empower itself to strike a healthy, efficient and effective working relationship with the Elected Executives, develop sound work ethics and draw the appropriate demarcation lines between itself and the Elected Executives while at the same time delivering on government policy.

16) Those entrusted with the responsibility for proposing Bills and applying ethics should remind themselves that as laws inhere the principle of legality so do ethics inhere an ethical principle in their application. All laws shall comply with the principle of legality inherent in every amendment to the law and any application of ethics shall comply with the principle of ethics.

17) The office of the Attorney-General being a Constitutional Office of the highest order under section 69 of the Constitution, take measures to dispel any perception that it is advised by Government rather than advising Government. It shall develop and adhere to a protocol of the manner in which Elected Executives relate to the Office. While it should lend a ready ear to the myriad of concerns generated from a myriad of quarters, it should avoid becoming vulnerable to any extraneous pressure; exercise institutional scepticism on advice emanating from sources other than the established trusted sources; do whatever it takes to watch the interest of the State but without compromising on its image of being apolitical and independent.

18) The State Law Office may consider issuing a Protocol to all Ministries or authorities reminding them of the number of phases which are involved in the procedure for the passing of sound laws and caution them that the gestation period may be short-circuited only at the risk and peril of the proposer.

19) Each political party should ensure that those taking on such honourable titles to their names are fully grounded and well-groomed in living up to public expectations. Parties fielding candidates may wish to consider undertaking some up-front risk assessment so that no candidate, after an election, becomes so intoxicated with power that, through sheer inexperience and immaturity, he becomes his own victim in the honourable and noble task of serving the country.

20) Elected representatives should draw a Chinese wall between statesmanship comprising their fiduciary duty to public office and statecraft comprising the pursuit of personal and/or parochial interest by making use of the apparatus of the State for the underlying purpose.

21) There be a re-appraisal and a reinvention of the manner in which synergy is set for public affairs to be given their pride of place with due regard to political advisers whose specialist professional role may not be underrated so that government becomes more aligned to the eight principles laid down in a UN document: i.e., participatory, consensus oriented, accountable, transparent, responsive, effective and efficient, equitable and inclusive.

22) State Regulators should ensure that they fulfil the objective for which they have been set up, identify threats to their functional and operational independence and parry them in good time. Those at the head should ensure that the corporate culture of independence and impartiality are inculcated right across the institution from the Board to the base.

23) Self Regulatory Organisations and members comprising SROs redouble their efforts to become robust SROs with dedicated and committed members, regularly updating and enforcing their codes, enhancing their professional activities, placing professionalism above other considerations, avoiding to run professions along business lines and dedicating a part of their time and resources to serve. If called upon to provide service to or in a public office, a professional should Commission Report keep his relationship strictly professional. Should a service provider face threats to his independence, he should define himself, cross the t’s and dot the i’s. If he cannot, he should simply recuse himself in a timely and discreet manner.

24) Elected Executives and Establishment Executives create the necessary synergy so that there is mutual trust in the various human components of a Ministry in the modern form of government and where Advisers bring in their specialized skills in their area of expertise but without marginalizing public officers in the public service who are neutral officers of the State working to deliver as per government policy.

25) Those responsible for conceiving, preparing and tabling laws should make sure that the laws have been forged in the five fires of the legislative process: consultation, legal drafting, SLO vetting, proper Cabinet approval as well as opportunity to parliamentarians for open and free debate.

26) Elected Executives should limit themselves to taking policy decisions, entrust technical matter to technicians and the discharge of public affairs to public officers. An Elected Executive, if a professionally qualified, shall resist wearing his professional hat along with his Ministerial hat in the discharge of his portfolio as a Minister.

27) The nature of the up-coming new generation of Young Professionals be properly nurtured through proper guidance from such peers who are role models; establish themselves to play their proper roles as professionals, having in mind the public interest as opposed to their personal interest; continually upgrade the quality of their profession; ensure that the ethics of the professions are continually and continuously assimilated; avoid travestying their professions; identify and parry the threats to the independence of mind and action that go with their professions; and above all, avoid running their respective professions along business, unethical or unprofessional lines.

28) A Code of conduct be drawn for Advisers so that they fill the gap in the specialist areas of need in any Ministry so that they become a boon to the Civil Service rather than a bane and they deliver their services in mutual trust but without mutual encroachment in the respective domains.

29) Section 110 A and 110B of the Insurance (Amendment) Act should be amended to remove the Minister from having anything to do with the work of the independence of action of the Special Administrator. If public interest is to be taken into account, it should be through an independent body in the manner other jurisdictions have done in identical situations.

30) A Professional Centre be set up, the prime objective of which will be: to drive professionalism in modern-day Mauritius to its required heights; to provide an overarching professional cross-disciplinary environment for all Self Regulatory Organisations and its members; to ensure and sustain excellence in professional culture and services; and to engage in international exposure, networking and exchanges. As an umbrella organization, its function will be to ensure that all SROs live up to their names and their public duties and responsibilities as well as meet the expectations public has on them and carry out some public sensitization on material issues relating to the respective professions. It should accompany all SROs in doing their duties and building a professional culture to be duly passed on to the up-coming generations, mentoring those going astray and disciplining serious or recurrent offenders. The Centre should be endowed with a faculty to produce peer professional materials for the consumption of other professionals as well as the public. This centre should be set up with seed money from Government. Whether Commonwealth Foundation would still be interested in assisting Mauritius in the process some 60 years later is anybody’s guess.

31) Every Mauritian under the sun adopts and abides by a culture of fairness all across the board in all aspects of his living, bent upon building a fair society where everyone can breathe on an equal measure according to his just deserts so that he may move by natural impulse to wealth creation with regard to human values and the meaningfulness of being a responsible Mauritian living in a free country.

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