Office of the Director of Public Prosecutions ‘To No One Will We Sell, To No One Deny or Delay Right or Justice’ Chapter 40,Magna Carta 1215 E-newsletter - Issue 112 April 2021 In this Issue Editorial 3 ODPP Podcast 5 ODPP Video 7 ARTICLES • Tackling corruption in the time of Covid-19 9 • Ecocide – Criminalising the mass-destruction of ecosystems and the environment 14 • ODPP Training Sessions 17 Quick Facts 20 Case Summary 23 Editorial Team Ms. Anusha Rawoah, Ag. Principal State Counsel Ms. Veda Dawoonauth, State Counsel Ms. Neelam Nemchand, Legal Research Officer Ms. Pooja Domun, Legal Research Officer Ms. Genisha Raudhay, Communication/Liaison Officer The views expressed in the articles are those of the particular authors and should under no account be considered as binding on the Office. E-newsletter - Issue 112 April 2021 Page 2 Editorial Dear Readers, We have the pleasure to bring to you the April issue of our e-newsletter. In this issue, you will listen to a podcast where Mr Satyajit Boolell, SC, Director of Public Prosecutions, brushes a picture of the Constitution of Mauritius. You will also listen on the legal issues pertaining to the offence of ‘issuing cheque without provision.’ In the wake of the numerous cases of domestic violence, in the ODPP Video, our law officer explains this offence as well as the incidence of social media on domestic violence. Furthermore, the Deputy Director of Public Prosecutions, Mr Rashid Ahmine addresses the issue of ‘corruption’ during the pandemic. ‘Ecocide’, is another topic which will arouse the readers’ interest. It is criminalized human activity that Anusha Rawoah violates the principles of environmental justice. This topic Ag. Principal State Counsel assumes all its importance as debates are being carried out to make ‘Ecocide’ as a fifth crime under the Rome Statute of the International Criminal Court (ICC) We have also included a review on the training sessions provided by the ODPP to different Ministries in order to better ensure enforcement of the law. In our ‘Quick Facts’ section, we address the various provisions and penalties under the ‘Environment Protection (Control of Single Use Plastic Products) Regulations 2020’. Finally, you will read our Supreme Court judgments summary at page 23. We wish you a pleasant read and welcome your feedbacks on [email protected]. E-newsletter - Issue 112 April 2021 Page 3 ODPP PODCAST E-newsletter - Issue 112 April 2021 E-newsletter - Issue 112 Click on following link to listen to the Podcast: April 2021 Page 5 https://youtu.be/NByO24o3op8 ODPP VIDEO E-newsletter - Issue 112 April 2021 Click on the ‘Play’ icon ODPP VIDEO below to view the video or view video on : ‘Incidence of Social Media on Domestic https://youtu.be/IPZKWy0r Violence’ D68 Pareemala Devi Mauree Principal State Counsel E-newsletter - Issue 112 April 2021 Page 7 ARTICLES E-newsletter - Issue 112 April 2021 Tackling Corruption in the Time of Covid-19 It is no secret that the Covid-19 pandemic impacts directly on the health and livelihoods of millions of people around the world. It presents an unprecedented challenge both to public health and the world of work. It is a tragedy to many, particularly those who are involved in the informal economy who cannot earn an income during lockdowns and consequently, cannot feed themselves and their families properly. Governments as well, are struggling with lockdown measures to tackle the spread of the virus whilst at the same time trying to bring economic relief to those in need to alleviate sufferings. With the development of new vaccines, there is a light of hope on the horizon but the virus is still raging in many parts of the world. Currently in India, the number of Covid-19 cases is growing rapidly and its health care system, in many cities, is overwhelmed. The situation is described as a perfect storm hitting the country. Brazil, which has registered the second highest death toll in the world, is still in a chaotic situation today and fears that the worst is still to come. Sadly, the pandemic does not bring with it only health and medical Mr Rashid Ahmine, risks. While many are enduring difficult times, a few corrupt Deputy Director of Public individuals, in many parts of the world, are misusing this unfortunate Prosecutions occurrence to enrich themselves. During a crisis where lives are at risk and death is a real threat presenting itself on one’s doorway, all governments need to act rapidly (in view of the high demand but limited supplies on the world market) to buy personal protective equipment, medical supplies such as ventilators, and pharmaceuticals to respond to this deadly infection. Public funds are used for this purpose. It involves awarding public contracts and adhering strictly to the rules of public procurement. If we were to follow the normal procedures, it would make it almost impossible to secure all required equipment on time and the reasons therefore for resorting to the process known as the emergency procurement and direct procurement/award methods which are both provided for under the Public Procurement legislations of many jurisdictions in the world including Mauritius. Emergency Procurement Emergency procurement is commonly being used by many countries including the UK, France and China during the epidemic. There is no doubt that its use is highly justified during this scourge but it can, however, pose a potential threat to corrupt and fraudulent practices (especially in high risk countries exposed to corruption) because normal competitive procurement methods are not resorted to. Section 21(1) of the Mauritian Public Procurement Act (PPA) allows a public body to purchase goods, services or works from a single supplier without competition from others in cases of extreme urgency. This would include a situation where life could be seriously compromised. Basically it means that there is no open competitive E-newsletter - Issue 112 bidding process which, in some cases, can give rise to an extremely significant risk of abuse. April 2021 Page 9 Tackling Corruption Often now, we hear of low quality equipment and material supplied at exorbitant prices by companies with little or no expertise in the field. in the Time of There is an actual danger of substandard and fake medical equipment Covid-19 and pharmaceutical products entering the market. Public officials of relevant ministries and departments who are involved in the procurement exercise therefore play a key role in overseeing that the whole operation is free from dubious practices. In this respect, it is important to note that under section 51 of the PPA, a public official who is involved in public procurement proceedings is under a duty to act in the public interest and shall not commit or abet any corrupt or fraudulent practice. Failure so to act renders one liable to a fine not exceeding MUR 50,000 (which I believe is too low) and to penal servitude for a term not exceeding 8 years. Since the appearance of the Coronavirus in the beginning of 2020, we have witnessed several malpractices in some parts of the globe. Recently, four top Ugandan government officials were arrested after it was reported that they inflated Covid-19 relief food prices which resulted in government losses in excess of $528,000. It was found that they awarded contracts to unqualified suppliers at higher prices and rejected credible suppliers who offered lower prices. Last year, in Zimbabwe, the health Minister was involved in a suspected case of illegally awarding a multi-national-dollar contract for Covid-19 testing kits, drugs and personal protective equipment to a shadowy company. The case was discovered as a result of investigative journalism. These cases show that wrongdoings can happen at a time when everybody is focusing on the pandemic to save lives while less time is devoted to fighting corruption and the carrying out of necessary monitoring. In May 2020, Delia Ferreira, Chair of Transparency International, made the following pertinent remarks: ‘’We are deeply concerned that the need for governments to act quickly to address the Covid-19 crisis is leading to increased corruption risks. Even at this stage, serious corruption scandals that jeopardize lives and livelihoods have been exposed.’’ Oversight and Monitoring In order to minimize the risks for fraud, waste and abuse, it is essential to urgently introduce additional safeguards for emergency procurement procedures. Those who are involved in procurement should report on their activities on a regularly and timely manner. Existing or new oversight bodies should do real-time external E-newsletter - Issue 112 monitoring. April 2021 Page 10 Many argue that civil society activists can equally contribute their Tackling Corruption part in this process by being an integral part of official oversight bodies. Checks and balances at procurement level must be in the Time of increased. More robust scrutiny together with cost, quantity and Covid-19 capability comparisons are needed. The OECD (The Organization for Economic Co-operation and Development), for example, generally and in normal times advocates for integrity, transparency, stakeholder’s participation and more access to public procurement contracts in order to minimize the risk of corruption in public procurement. In a recent paper (Tackling Covid-19 Contributing to a Global Effort) issued by the Organization, it made several recommendations for Public Procurement Entities and others to address and the most pertinent ones are: 1. To follow national and international rules and guidelines on emergency and Covid-19 related procurement. 2. To use direct awards only to respond to current, urgent and unforeseeable needs. 3. To ensure that the supplier with whom one intends to contract is the only one able to provide the required goods, services and/or works on time.