The Wakashio disaster that hit the island in the last few weeks has brought to the forefront the incompetence of the government and its irresponsibility in dealing with it. It has also acted as the last straw, following a series of scandals, that has resulted in the citizens deciding to take to the streets again in protest. We speak to Rajen Narsingen, senior lecturer at the Faculty of Law, University of Mauritius, about his legal take on these issues.
A protest march is being organised for this coming Saturday. What is your take on that?
It's a good initiative. In July, there was another march organised by trade unions and civil society and in spite of what has been said on the MBC, I think it was a success. I was there and, according to me, there was easily a crowd ranging from 6,000 to 8,000 people. I think it's for the first time that without any of the main political parties, the trade unions could get such a crowd, which is great.
"The MSM supporters came with banners to protest and put pressure on the Judiciary. And we have a statement from one ministers thanking them for that illegal protest! An investigation has to be carried out. Potentially, he could have been an accomplice in that illegal protest in front of the court to exert pressure on the Judiciary."
The July march was a protest mainly against the Covid and Quarantine Acts, which include laws some of which can be considered unconstitutional. Which of the laws enacted actually are unconstitutional?
Many sections of these laws are unconstitutional and remove the acquired rights of workers. I will give you two examples. Before, the powers were in the hands of the Quarantine Authority and the minister of health. With these amendments, the prime minister decides the duration of any pandemic in Mauritius. This is dangerous as it is the head of the government who decides whether or not a pandemic prevails in Mauritius. The other dangerous law is allowing police officers to barge into anybody's house without a warrant.
Aren't the police already allowed to barge into people's home if they suspect criminal activity?
"A court of investigation will only be a technical investigation looking to situate the responsibility of those on the ship such as the captain and the first mate but not those outside it."
If the police catch me in the middle of committing a crime and I run into my house. Can't they arrest me?
Not if you are in your house. Previously, they needed to get a warrant to enter your house. What was allowed before was well thought out. What is new is that this time, the police can enter anybody's premises without any reasonable suspicion.
Is there a rationale behind changing these laws?
Roscoe Pound explained that in society you have competing interest and at the end of the day when you make a law, you should be able to strike the right balance. The crux is how legislators strike that balance.
What balance is there when you decide to give the prime minister such huge powers?
This is it! The government knows fully well that they don't have a majority in parliament to declare a state of emergency, so they use section 18 of the constitution. Right now, the prime minister is more than an elected monarch. What may happen is that he can postpone municipal elections, for example. More dangerous still is that he can announce restrictions on political activity under the guise of dealing with the pandemic. He can call an election in line with section 57(2) but then the election will not be meaningful because other parties will not be allowed to hold rallies or meetings while the government will have the MBC. This is utterly dangerous. The law can be abused.
"In any movement, you have what is called strategic allies. Now whatever objections left-wing political parties or NGOs may have against the mainstream political parties, now is not the time for that."
These are only hypotheses. So far, no laws have been abused, have they?
Yes, they have. When the laws were changed, people, and particularly the trade unions, made allegations that the new laws were enacted to deal with the situation at Air Mauritius. The minister of labour denied it but now it's clear that the government is using these laws to oppress and sack workers and do whatever they want. Air Mauritius is a good example. This is why people walked in the streets on July 11.
All this is very well. People were angry and they protested. And then they went home. What has changed?
At times in society, you need symbolic gestures. The first march was done; people were out on the streets and then two or three weeks later, the government did not change anything as it probably thought it was a one-off thing. Today, you saw another initiative being taken by one citizen - Bruneau Laurette - an initiative for which he should be commended. What is good also is that the trade unions are supporting it and the opposition parties are also giving their blessing to it.
Some people are objecting to the participation of political parties in the march. Is that a reasonable objection?
No, it is unreasonable. In any movement, you have what is called strategic allies. Now whatever objections left-wing political parties or NGOs may have against the mainstream political parties, now is not the time for that. You need to have a movement with everybody on board. When you look at struggles in the past, you see people from different horizons, cultures and parties coming together to attain an objective. If you believe that the government is guilty of nepotism as in the purchasing of PPEs and Rs1.2 billion being spent on medical supplies; if you believe it is guilty of a major scandal regarding Côte d'Or as revealed by Gérard Sanspeur. If you believe that the government is guilty of gross negligence and mismanagement, then you have to side with all similar thinking minds to reach a common purpose.
Who has decided that the government is guilty of gross negligence and mismanagement? We're still at the stage of allegations, aren't we?
At least nine credible international media are making similar allegations after verifying with their experts. The French minister for outer islands, while being very diplomatic, openly said there was gross mismanagement. Now Mr. Bruneau Laurette came up with a number of hypotheses why the reaction was delayed for 13 days.
The government said the weather was bad. Aren't you satisfied with that answer?
Has the government accompanied that statement with a meteorological report saying the weather was terrible for 13 full days? It is true that there were 4-5 days where the weather was bad but not for all the 13 days. And you saw that it took just three days to pump out all the oil so this could have been done. So, no, no one is satisfied with that answer.
How about the second argument about the right of innocent passage?
It is true that when we look at customary international law and section 17 of the UNCLOS, it provides for innocent passage but then when we look at our own Maritime Zone Act, what I gather from the press and ministers' statements is that the ship was penetrating Mauritian waters 48 hours before it wrecked. Now section nine of the Maritime Zone Act allows the prime minister to suspend the innocent passage.
The government says they needed the owner's authorisation before acting. Isn't that what the law requires?
This explanation does not stand: if the ship is there and there is a danger of oil spilling, you don't have to wait around for the response of the owner of the ship or the charterer for that. Also you cannot rely on the expertise of those polluting your water.
Did they actually say they were relying on the expertise of those people?
They were the only experts. We did not have any experts, so the owner sent a salvage master, and what is surprising is that one day before the wreck, some photos went viral and the police spokesperson, Shiva Coothen, came on radio and said this was fake news and threatened people who put them up and then said that that manoeuvre that led to the ship coming on the sand was not allowed. The question is whether this manoeuvre was wrongly done. You will see in section 147 of the Merchant and Shipping Act that the salvage master has a duty to carry out the salvage operation with due care.
There are allegations that the ship was carrying illicit products, perhaps even drugs, as there was a taxi ship that made several journeys to the wreckage and back. The allegations go as far as suggesting that that's why there was no attempt to act immediately. Is that too far-fetched in your opinion?
These allegations exist. Now if people are making allegations on the basis of circumstantial evidence, good governance dictates that you set up a commission of enquiry and give it broad and wide powers to investigate. That is the only way to find out. And if you have nothing to hide, why don't you?
What's wrong with the court of investigation they are saying they will set up instead?
A court of investigation will look at only the technical aspects; that is whether the captain took the right decisions etc. It will not look at the surrounding circumstances of the whole incident. It will only be a technical investigation looking to situate the responsibility of those on the ship such as the captain and the first mate but not those outside it.
You mean it won't be a complete investigation?
Yes, it will only investigate the conduct of those on board the boat; it will not be able to go outside its mandate and look at the decisions taken by ministers in response, whether the environment minister did the right thing, whether the director of shipping did the right thing or the talks that took place between the director of shipping and the owners of the ship and whether anything illicit was going on. Instead, the government should have said they have nothing to hide, there are questions and there are allegations, some unwarranted, so to put all this to rest, let's have a commission of enquiry.
While all this is going on, the opposition seems to be on a different planet. The population is asking for the prime minister to resign, the opposition is focusing on two irrelevant ministers. Is this a sign of weakness or is it deliberate?
I was surprised too. The prime minister, who is head of interior affairs, was for two weeks presiding the national crisis committee and the council of ministers. The opposition should have raised questions to situate his responsibility. What has happened is unprecedented and will have an impact that, according to experts, will last for 10 years to come. I think even in the opposition doesn't realise that this will continue to impact us for years to come. I am not saying the prime minister is guilty or not, nor the ministers, but it is important in the teeth of an ecological disaster to have answers. The Lam Shang Leen report on drug trafficking highlighted loopholes and made recommendations about the surveillance system and the need to track small boats and plug the loopholes in the law. My question is "did the government close all these loopholes and define sea lanes?" Yes, you have to respect innocent passage, but this does not prevent you from supervising your territorial waters. In order to clear the name of the government, it is important in a democracy to have a commission of enquiry.
Coming back to the protest march, you can see it has taken an ugly, racist turn. Who is behind this campaign?
You don't have to a detective to know who is doing the mudslinging and stirring up communalism. Now maybe Mr Laurette made one or two mistakes in his life and said things he shouldn't have said. Who does not make mistakes in life? But when the boy is trying to speak the truth and bring a private prosecution against two ministers, I think that has to be commended. Trade unions, NGOs and all the opposition parties are behind him. Who is left to stir up communalism? Dictators in Africa use tribalism, which results in the tragedies we see across the world. Here, communalism is being used to continue to trample the rights of citizens.
What do you expect the outcome of the march to be?
There have been so many scandals, breach of democracy, breach of freedom of expression and the advent of a totalitarian regime. Most people would like the government to organise fresh elections and get a new mandate if people agree with them.
Can the country count on the Judiciary to speed up the process for the pending petitions?
I don't blame the Judiciary. Unfortunately, the laws are such that barristers on the opposing side can use delaying tactics. If you look at Malawi and Kenya, within six months, all these constitutional cases were thrashed out. Given that we don't have a separate constitutional court, the court should give a decision as soon as possible. In the case of Ashock Jugnauth versus Ringadoo, within two and a half years, the case was thrashed out, including at the Privy Council. Now it's sad that with a challenge put up by Roshi Bhadain, the Labour Party, the MMM and the PMSD, nothing is happening. How is it that this does not take time in African countries? We used to claim to be the champions of African democracy, in terms of our Judiciary. It's sad to see us regressing like this. Justice delayed is justice denied in criminal and civil cases and more so in human rights and constitutional cases.
The protests in Mahebourg have resulted in the arrest of two skippers without a court warrant. What are they guilty of?
They are not guilty of any arrestable offence. Some fishermen and skippers spontaneously protested in front of the court but only when they saw MSM supporters carrying banners and pretending to be fishermen from the area. Now what is interesting is that the two ministers who were in court came on the radio and thanked their 'supporters'! What for? For carrying out an illegal protest? The police has to question the two ministers and see whether they were not accomplices in trying to organise the illegal protest. To organise a protest of more than 11 people, you have to comply with section three of the Public Gathering Act, which they did not. There were at least 30 asking not to touch the ministers. That's a breach of the Public Gathering Act and more so a potential contempt of court.
The police said there were not just MSM supporters there.
Possibly. There were other members of the public. Two or three of those arrested were genuine skippers and fishermen and not from political parties. When a court case is held in public, there is nothing in the law stopping people from gathering outside to follow what's going on in the court, but the MSM supporters came with banners to protest and put pressure on the Judiciary. And we have a statement from one ministers thanking them for that illegal protest! An investigation has to be carried out. Potentially, he could have been an accomplice in that illegal protest in front of the court to exert pressure on the Judiciary.
And it is two genuine skippers who were arrested instead...
Yes, using the same modus operandi as the previous commissioner of the police did: barging into their homes at 5 a.m. and preventing them from getting bail. Fortunately, we have an independent judiciary, in this case a magistrate who accepted that they post bail on Sunday.
What are you marching against this Saturday?
I am marching against the fact that I see no democracy in Mauritius. For example, denying Mauritians the right to come back to their own country is a crime against humanity. I have not seen any other government denying their own citizens the right to go back to their own home. I am also marching against the way the government is trampling the rights of workers, unionists and the press. As for institutions, the less said the better. Just look at the incredible things happening at the Mauritius Standards Bureau: somebody who's qualified and been running that institution as an acting general manager for eight years being forced to go to make way for someone who is not qualified in that field. If you look at the FSC, the BoM and our crown jewels Air Mauritius and the SBM you realise how deep in the hole we are. Look at the ICAC. Nothing is functioning. And don't forget the amount of hard drugs that came in the backhoe loader and gas cylinders. Not heard anything since. The country is prey to all sorts of ills and nothing is functioning. I am marching to say enough of all that!
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