Mauritius: Electoral spending - Why the ball won't be in the electoral commissioner's court

Rezistans ek Alternativ has asked the electoral commissioner to investigate the treasure trove of information regarding spending by the government side in constituency N°8 during the 2019 election campaign. The odds however, are stacked against them. Here's why what the ReA is asking the electoral commissioner to do will prove to be far more difficult and complicated than it seems.

ReA's argument

Rezistans ek Alternativ (ReA) has asked the Electoral Commissioner to launch an investigation into information contained in documents purported to be linked to spending by government candidates in constituency n°8 during the 2019 general elections. The demand was officially handed over by a delegation from the ReA to the Electoral Commissioner Irfan Rahman on Monday.

The ReA's Stephan Gua explains that the reason for the move, "is because it is the duty of the electoral commissioner and the electoral supervisory commission (ESC) to supervise and conduct elections, so they have a mandate to look into malpractices and potentially illegal conduct". He adds that, "there is now sufficient information in the public domain" to start such a process. The argument from ReA essentially boils down to this: section 51 of the Representation of People Act (RoPA) limits spending by candidates standing on behalf of a political party to Rs150, 000.

Since the RoPA was introduced back in 1958, the amount of money a candidate is allowed to spend in an election was revised up from Rs10,000 to Rs20,000 in 1985 and then set at Rs150,000 back in 1989. It has not changed since. Section 55 of the RoPA goes on to add that breaching such limits by a candidate constitutes an "illegal practice" with section 74 of the law going on to add that a candidate could lose his or her seat if found guilty of such an illegal practice. What the ReA is formally asking Rahman and the ESC to do is, "to carry an investigation and to determine whether any 'illegal practice' has been committed by any candidates in the last general elections, which might warrant a prosecution for an offence under the Act" (sic).

With the documents pointing to spending far exceeding the limits set by the law by the elections campaigns of Prime Minister Pravind Jugnauth and two of his ministers Yogida Sawmynaden and Leela Devi Dookun- Luchoomun, the stakes seem very high indeed. What is important to note is that the documents that have been publicized, if proved true, will have infused something new into Mauritian politics. "I am neither surprised nor shocked at the levels of spending outlined in those documents, we were all aware that parties spend way more than they are legally allowed to do in elections", Roukaya Kasenally, an academic who co-authored a study on money in politics in September 2020 says, "what is new is that so far these allegations were undocumented with no evidence or money trail to follow, these documents provide that and does so in a very systematic manner".

The two routes

Even before the documents alleging overspending came to light, the 2019 elections were already being subjected to allegations of wrongdoing by the three parliamentary opposition parties and has resulted in a number of electoral petitions in court demanding recounts across a number of constituencies.

The information contained in the documents regarding alleged over-spending - if substantiated - can be used in one of two ways by the legal system. "There are generally two ways in which elections where wrongdoing has been alleged can be challenged" explains Milan Meetarbhan, constitutional expert, "the first is through an electoral petition challenging the election of a candidate".

The door on the option of simply adding the information to the electoral petitions has long been closed. That's because section 45 of the RoPA specifically states that electoral petitions should be lodged within 21 days of the election results being announced, or if illegal practices are being alleged to challenge the election of a candidate, a maximum of 28 days in which to file such a petition. The narrow window has long since passed. Meaning it's too late to use the information contained in the documents to file an electoral petition or simply add it to an existing one.

But an electoral petition is not the only way that the documents - if substantiated - can be used. "The ultimate object of an electoral petition is to challenge the election of a specific candidate" Meetarbhan explains, "but a second option - and it's important not to confuse this with electoral petitions - is a prosecution for a criminal offense where the law has been broken, as a result of which a candidate may be disqualified from holding the seat". The difference is rather than challenging a particular election, if an offense under the law can be proved, that could pave the way for a criminal case, such as swearing a false affidavit.

The trouble, of course, is that there is a total lack of precedent regarding somebody losing their seat for over-spending during an election campaign. Sure, election results have been nullified in the past, but these were for vastly different reasons.

The first such case dates back to 1959 when Gaëtan Duval successfully managed to overturn the election victory of Romriky Ramsamy in Curepipe. In the election, Duval came in second with Ramsamy coming out on top (in those days, Mauritius was divided into 40 one-member constituencies and Curepipe was actually constituency number 29). Duval lodged an electoral petition in court stating that Ramsamy had put his name as Romriky Narain Ramsamy on his nomination paper rather than his official name of Ramriky Ramsamy and that therefore his election was not valid. The court agreed and nullified the election and ordered fresh polls to be held in Curepipe. The second case took place after the 1963 elections for more arcane reasons. Michael Leal won the elections in Grand River North West but was challenged via an electoral petition by Augustin Moignac, who came in second. The issue was that two other candidates who could not read or write English were somehow allowed to stand in the elections in that constituency and skewed the result. Since the court could not determine who would have won if those other two candidates had not taken part in the election, it simply invalidated the election result and ordered fresh elections in that constituency. And then of course there is the case of Ashok Jugnauth whose election in 2005 was declared invalid by the court following an electoral petition by Raj Ringadoo alleging electoral bribery. None of these instances of the courts overturning an election result was for exceeding legal spending limits on a campaign.

In fact there are only two examples that come close to the situation where we find ourselves today. But the trouble is that in both these instances, the tactics have been employed have been markedly different from what the ReA is asking Rahman and the ESC to do. The first of course was the case related to the byelection in 2009 in n°8 that resulted in the election of Pravind Jugnauth (a bit of history repeating itself). Following that election, an electoral petition was lodged by Pushpuwundut Mungtah, the election agent of Anil Gayan (who unsuccessfully ran in that election as a candidate of the Front National Mauricien). The petition quoted statements from MSM politicians themselves and estimates by Mungtah himself that purported to show that Pravind Jugnauth's campaign had exceeded the legal spending limit of Rs150,000 for an electoral campaign. The case ultimately failed because Mungtah had not deposited the Rs10,000 required under the RoPA as a deposit when lodging an electoral petition. In the case of Mungtah, it was an electoral petition that was lodged, albeit unsuccessful.

The second such instance where alleged over-spending was sought to be utilized to try to nullify an election took place following the 2010 elections. In this instance, Hossain Atchia, an unsuccessful candidate of the MMM, lodged a complaint at the CCID alleging that his former running mate Reza Uteem had spent more than Rs2 million on his campaign. Nothing came of that case. But here too, the strategy seemed to be different with Atchia and his lawyer Yousuf Mohamed opting to go directly to the police rather than filing an electoral petition or going to the ESC, as the ReA has done. In this sense, then, what the ReA is doing is something quite new.

The law

The novelty of the tactic is just the start of the problems that the ReA will face in getting results. One reason for the lack of prosecution of politicians for over-spending on elections (aside from the fact that they all do it) is that the law itself has been left deliberately vague to allow for illegal overspending by candidates to simply slip through the cracks. The first loop-hole is section 45 of the Ro- PA. In the case of Ashok Jugnauth, the Privy Council actually traced the genesis of this law back to India when then-Prime Minister Indira Gandhi was facing allegations in court over using her office and public resources for her election campaign in the 1971 elections.

The High Court in Allahabad found her guilty and she responded by declaring a state of emergency before her appeal was due to be heard in 1975 and passing a law with retrospective effect that barred challenges to her election on grounds that she used public resources. The following year, in 1976, the Mauritian government passed section 45 of the RoPA to similarly insulate Mauritian politicians from accusations of using state officials and offices during election campaigns as grounds for challenging their own elections as well. What the Mauritian government had in mind was to avoid the sheer number of electoral challenges that they faced the last time elections were held in 1967 when no less than 14 electoral petitions were lodged in court.

The other problem is section 55 of the RoPA (the same part which points to punishments for illegal spending) which reads, "A candidate shall not be guilty of an illegal practice by reason of any other person having incurred any expenditure in connection with the candidature of the candidate in contravention of sections 51, 52 or 54 unless it is proved that such expenditure was incurred with his consent". In other words, candidates cannot be held responsible for "donations" given by supporters without their consent. Proving that the expenses were done with the consent of the candidate may not be easy former Supreme Court judge Vinod Boolell observes.

These loopholes are not just some legal technicalities, they are actually quite important in allowing political parties to unaccountably continue to spend lavishly on electoral campaigns. In fact, section 55 was criticized by the Sachs Commission back in 2001 for making, "a mockery of the whole issue of placing ceilings on expenses". Just how reliant political parties have come to be on such legal loopholes can be seen from the fact that even in its bill introduced in 2019 to regulate party financing, the government did not close up the loophole of section 55.

Does the electoral commissioner actually have the power to investigate?

Going to court and overcoming legal loopholes, however is a far cry. The most immediate issue that ReA's demand will face is that Rahman and the ESC has neither the power nor the resources to do what is being demanded of it.

"We specifically asked the electoral commissioner to carry out an investigation, he and the ESC must make a proper enquiry" argues Gua. That is, carry out an investigation to find out whether the documents show that the law was broken during the 2019 elections in n°8. The problem, argues Kasenally, is that the ESC is just not equipped to carry out such an investigation. "Most of the boardmembers of the electoral supervisory commission are part-time, they have no full-fledged staff and no dedicated resources" she argues. During elections, for instance, electoral officials have to be seconded from other ministries. The second issue is that even if it had the resources, there is no legal power that Rahman or the ESC has to conduct such an investigation.

"The commission itself has no powers to investigate. None." according to Boolell. In fact, empowering the ESC to initiate its own actions was one of the recommendations of the Sachs Commission when it said, "where satisfied that a candidate has not adhered to the prescribed ceilings, it should be the duty of the Commission to apply to the Court seeking annulment of the election". This recommendation has never been acted upon. In fact, the law does not even say what the ESC is supposed to do with the electoral spending returns filed by political parties.

Even if the documents regarding over-spending in n°8 prove to be genuine, there is little the ESC can actually do on its own, having neither the legal authority nor resources to investigate. What it can do, however, is forward those documents - if proved to be genuine and show illegal spending by government candidates in n°8 in the last elections - to the police to investigate.

"So in the end, it's not necessary to talk about the powers of the electoral commission, ultimately, whether there has been a breach of the law will be something that will lay with the police to investigate and the commission can send the case to them just like any other public body can do where it will pass through the normal channel of a criminal investigation by the police" concludes Meetarbhan, "you don't need specific enabling legislation for that".

It's an assessment that Boolell agrees with. "If the electoral commissioner believes there has been a breach of any electoral laws that warrant an investigation, he may refer the matter to the police. That's just about it" he says. From there it will become a matter of poring over and authenticating documents, calling it people the document purport to show receiving money as witnesses and so on. Gua understands this limitation too, drawing a parallel between what the ReA is asking for today and the way the ESC referred the matter to the police to investigate allegations of ballot papers found outside polling stations.

Now it all depends on how much faith one would have in the police to carry out a complex financial investigation that could potentially implicate the Prime minister and two ministers (one of whom they have shown out in force to chaperone to court in another case). Most likely, the response that the ESC will give to the ReA on Friday is that the ball is actually not in Rahman's but in Servansing's court.

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