President vs government: The constitutional crisis explained

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For the benefit of our readers, Weekly is publishing features that have appeared in its print edition in the past. These features have been selected for their relation with current events, to re-ignite the interest of our readers in matters they may have missed or simply to present a blast from the past that readers might find interesting to re-explore.

For the benefit of our readers, Weekly is publishing features that have appeared in its print edition in the past. These features have been selected for their relation with current events, to re-ignite the interest of our readers in matters they may have missed or simply to present a blast from the past that readers might find interesting to re-explore.

(This article was published in  Weekly's magazine in march 2018 when  Ameenah Gurib-Fakim was still the president)

The president, Ameenah Gurib-Fakim, has ended speculation about whether or not she will resign over the credit card scandal. In a statement on Wednesday, she categorically refused to resign, totally contradicting the prime minister, Pravind Jugnauth’s earlier statements that Port Louis and Reduit had come to an agreement that the president would step down after the 12 March celebrations. The president faces allegations of corruption, the government wants her to go but she refuses, plunging Mauritius into a constitutional crisis and unchartered territory. So where do we go from here? And what can the government do now?

The president, Ameenah Gurib-Fakim, has dug her heels in. In a statement released by the president’s office, Gurib-Fakim says that she has, “nothing to reproach herself with, and being able to bring corroborating evidence, Her Excellency Ameenah Gurib-Fakim rejects any prospect of resignation”. The statement brings to an end speculation about whether or not the president will step down and flies in the face of a statement made on 9 March by Pravind Jugnauth that he had managed to reach a deal with Gurib-Fakim where apparently the president had agreed to resign, but only after the 12 March Independence Day celebrations were over. In the meantime, Government House was busy basking in rumours of who would replace Gurib-Fakim, Sam Lauthan and Ahmad Jeewah were named as potential candidates. GuribFakim’s statement, and refusal to countenance resignation, however, has thrown a spanner in the works and, as they say, all deals are off.

The statement is particularly grating for the government and looks set to plunge the country into a constitutional crisis, with Government House in Port Louis and the State House in Reduit looking to directly clash. Part of the problem is that the presidency seems to be flying by the seat of its pants with little indication of any discernable strategy coming out of Reduit. Fakim has faced calls for her resignation ever since details of her spending spree using a credit card supplied by the Planet Earth Institute (PEI) headed by controversial Angolan billionaire Alvaro Sobrinho (himself facing allegations of embezzling millions from the Angolan branch of the Banco Espirito Santo) were published by l’express. On 7 March, at a book launch, the president asked, “what crime did I commit?” before adding that she was the victim of a trial by the press. Then on 8 March, she denied reports that she had told reporters that she was refusing to resign.

The next day, after meeting with Jugnauth, the prime minister announced that they had reached a deal where Fakim would resign after 12 March, that very same day, two tweets came out of Reduit stating that the president was still in office. A day later, businessman Mubarak Sultangos, reported to be in the president’s inner circle, in an interview, stated that there was no question of the president resigning and that she should resist calls for her ouster. 12 March came and went. The next day, the president’s garden party was snubbed by the government as well as the opposition (with just the speaker Maya Hanoomanjee making an appearance).Then, on 14 March, came the president’s statement refusing to resign, embarrassing the government still further. In the meantime, the Planet Earth Institute (PEI) came to the president’s defence, with a brief statement denying any wrongdoing on Fakim’s part and backing up Fakim’s claims that whatever she had spent on the card, she reimbursed.

Terra Nova

It’s not only on the question of whether she would be resigning or not that inconsistencies have emerged but, rather, on the credit card spending itself. The president’s statement on 14 March admits that she had been given a PEI credit card from Barclays Bank in May 2016. However, the president’s statement then goes on to explain that Fakim had “inadvertently” used the card as she “already had an identical bank card issued by the same bank” hinting that Fakim did nothing more serious than get her cards mixed up. On multiple occasions. Over many months. And she paid all that back (she admits to spending US$27,000 on the card) in March 2017. And the only one backing up that claim is the Sobrinho-led PEI. Sultangos, on the other hand, argued that the president faced “technical problems” with her card which led to use the PEI one. All of which suggests that the presidency is scrambling for cover and making up its stance on the hoof.

Nevertheless, the more childish aspects of this crisis, the contradictory statements from the presidency, the PEI strategically popping up now and again and the government’s intellectual acrobatics, do not detract away from the fact that Mauritius is sleepwalking into a constitutional crisis. All this is Terra Nova, constitutionally speaking. Never before has a sitting president been accused of corruption. Presidents may have developed differences with governments in the past – Cassam Uteem over the PoTA in 2002 and Anerood Jugnauth over the Mouvement Socialiste Militant’s (MSM’s) exit from government following the MedPoint scandal in 2012 – but these led to these presidents voluntarily resigning. What is different this time around is that the president’s own government wants her to go, but Fakim wants to stay put. This is new and nobody – let alone the government itself – seems to have much of an idea of what to do. “Nobody can force her to go; the government cannot simply send in an army in there to overthrow her,” former Supreme Court Judge Vinod Boolell says caustically

The government seems to have reportedly toyed with the idea of introducing a constitutional amendment to more easily secure Fakim’s exit without having to take the matter to the courts. The idea, or so the thinking went, was that with such a bill being passed in parliament, the president would naturally refuse to give her assent. Parliament would send it to her again and again; she would either pass the bill (that would lead to her exit anyway) or resign, just as Uteem had done over refusing to approve the PoTA in 2002. But the idea seems to have been shelved because of the obvious difficulties: the government would have needed a 2/3rd-majority to get it passed and there is no telling whether the opposition, and even its own Muvman Liberater (ML) ally – that handpicked Fakim during the 2014 election – would vote. Such a debate could also have led Fakim to go straight to the court and argue that the whole thing was nothing but a ‘colourable device’ targeting her personally and designed to kick her out of office. “There is some precedent for that,” says Sanjit Teelock, former deputy speaker of the National Assembly. “That was the argument used by Navin Ramgoolam in 1993 when the government wanted to deprive him of a parliamentary seat and it could apply here.” A defeat whether delivered in parliament or in court would have been a political hammer blow to the government. So the idea of changing the constitution seems to have been set aside.

The Nuclear Option

That leaves us with the nuclear option of section 30 of the constitution: the prime minister calling for a judicial tribunal to decide on the fate of the president. Under that specific bit of the constitution, never before exercised in Mauritian political history, the prime minister will have to table a motion of impeachment against the president. The grounds will have to be explicitly defined by Jugnauth. “It can focus on the fact that the president received emoluments, but the president will contest the definition of that term which so far has only been defined properly by the Mauritius Revenue Authority,” explains Teelock, “or it can focus on the fact that the president pursued another ‘calling’ while in office, which the president seems to have admitted in her statement when she referred to her ‘mission’ with their PEI and the fact that she had travelled on its behalf.” This motion will have to be debated in the National Assembly, contrary to what Mouvement Militant Mauricien (MMM) leader Paul Bérenger has maintained. Teelock highlights that the constitution allows a president to be nominated without debate, but it says nothing about whether or not a debate is required when impeaching one. “This is all new,” Teelock says, “but I would think that in that circumstance, a debate would be needed.”

To pass the impeachment motion, which can also contain a clause about suspending Fakim from the presidency while all this is going on, a 2/3rd-majority would still be needed. That, however, can only be triggered by the prime minister and goes some way in explaining why the Labour Party’s Shakeel Mohamed decided to withdraw his own motion against the president. Technically, it wasn’t a motion against the president herself, but one that would have suspended the parliamentary prohibition on parliamentarians criticising the president or the chief justice. In any case, it would have been non-binding and purely symbolic. Now that the government has clearly come out in arms against Fakim and wields the power to initiate an impeachment, it has rendered Mohamed’s motion largely moot. That was the point made by Yousuf Mohamed when explaining the decision to withdraw the motion. And the Labour Party itself seems to be in a waitand-see mode. “We have not discussed this yet, we are going to see what the prime minister’s position on all this is and how they take things forward,” says the Labour Party’s Patrick Assirvaden.

Once that impeachment motion has been passed, that sets up a tribunal made up of anywhere between three to five sitting or retired judges. If limited to Fakim and the question of the credit card, it can come to a decision in a few months. Boolell specifies that it can also be based on ethical violations not merely the letter of the law. In the end, if the tribunal decides in favour of Fakim, that will be the end of the matter and from that point, Fakim will be untouchable. But if the tribunal decides against her, then the matter will be brought once again to the National Assembly. The tribunal’s decision itself is just a recommendation. The real action will be in parliament. The prime minister will have to float a second motion to confirm Fakim’s impeachment and, this time around, he will only need a simple majority (not a 2/3rdmajority unlike the last one). And the MSM alone has the numbers to push that through.

But letting an impeachment run its course will mean that Fakim will be entering a great gamble. If things don’t work out her way, she will not only be the first president in Mauritian history to be impeached, but it will entail other costs as well, specifically her post-presidency perks. The constitution mentions that these become available to presidents who resign or complete their term. Impeachment will be a different matter altogether. “Like any other civil servant found guilty of a crime, she will lose her pension which is 75 per cent of her salary, her bodyguards and free car,” Boolell points out. In other words, Fakim’s gamble might leave her ending up with nothing but ignominy. Unless, that is, she decides to take another u-turn and abruptly resign. Now it’s all a question of who will blink first.

For more views and in-depth analysis of current issues, Weekly magazine (Price: Rs 25) or subscribe to Weekly for Rs110 a month. (Free delivery to your doorstep). Email us on: [email protected]

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