[Blog] No Evidence H.E. President Ameenah Gurib-Fakim broke the Law

« When we occupy the post of President, Prime Minister or Minister, I think we have to be careful when using credit cards as it gives rise to speculations », Pravind Jugnauth, PM of the Republic of Mauritius. Pravind Jugnauth says that, even though he is PM, he has no right to request a bank to give him information on an individual as the law does not allow him to do so. If it is proven that President Ameenah Gurib-Fakim used a credit card issued in her name as an unremunerative Director of the charity Planet Earth Institute (PEI) to make personal purchases unrelated to the purpose of the account, this is not a government matter but rather a matter between her and PEI.

Prior to the general elections of 10 December 2014, since the then newly formed opposition MSM/PMSD/ML alliance, called l'Alliance de l'Avenir led by Sir Anerood Jugnauth, put forward Dr Ameenah Gurib-Fakim, scientist and academician, as future President if they got elected over the then newly formed government alliance between Navin Ramgoolam of the Parti Travailliste and Paul Bérenger of the MMM, there has been a systematic political campaign to tarnish her image in more ways than one. Even after the MSM/PMSD/ML Alliance won the elections and Dr Gurib-Fakim elected President by MPs, there has been no respite in this vitriolous campaign against her.

Yet the President broke no law. In fact, the President is well protected under the law, and any attempt to defame her through, for example, the manipulation of facts, innuendos, the spread of false news, the publication of her personal records obtained illegally and without a court order, do amount to criminal offences punishable under the law.

Planet Earth Instituto Ltd

PLANET EARTH INSTITUTO LTD (PEI) is a private company limited by guarantee (LBG) without share capital. Its Mission as detailed in its Articles of Association clearly states that it is a « Charity ». It was incorporated on 29 October 2010 in the UK. The founder Director was MR MAURICIO FERNANDES, who was a UK resident with Portuguese Nationality. « The Planet Earth Institute is accredited to the United Nations Environmental Programme and its mission is the ‘scientific independence of Africa’ as well as with a number of other Africa-focused charities and programmes, including the Duke of Edinburgh International Award and GAVI Alliance. »

Dr Álvaro Sobrinho works with numerous eminent people to carry this work through, such as with H.E. Dr Nkosazana Dlamini-Zuma, Chairperson of the African Union, and The Right Hon Lord Boateng, Trustee of the PEI.

Her Excellency Bibi Ameenah Gurib-Fakim, was appointed Director on 1 July 2015, after she became President on 5 June 2015. Her directorship was non-remunerative. She received no emoluments and no payslips. And, she terminated her appointment on 5 February 2017. Planet Earth Instituto Ltd was never « co-founded by Angolan businessman Alvaro Sobrinho and Ameenah Gurib-Fakim », as alleged in the Mauritian press.

It was made out that President Gurib-Fakim was involved with a suspected criminal in Álvaro Sobrinho and that Sobrinho was being investigated in many countries and prosecuted in Portugal. The Portuguese Press reported the following on 16 March 2017 :

« French-language newspaper [in Mauritius] reports that Mauritius’ ministry of good governance suspects Sobrinho set up a foundation on the French islands of Mauritius to ‘mask illicit activities’ », and that the said newspaper « has “dedicated pages and pages” to Sobrinho since the end of last month, writes Visão magazine, explaining not only who he is but “the suspicions” that are also facing him “in other countries”. »

The Portugal Resident said that this led :

« the Mauritian opposition to suggest underhand dealings with the republic’s president Ameenah Gurib-Fakim, a partner in the Mauritius’ based offshoot of Sobrinho’s foundation, Planet Earth Institute.  »

The Portuguese paper went on to say that :

« The Resident itself received questions from a source in Mauritius only last week, asking us to “please let us have the latest developments on Álvaro Sobrinho’s cases with Portuguese justice. “He is presently at the centre of a rather big financial affair in Mauritius”, the source continued. “The Financial Services Commission here affirms that there is absolutely no case against him in Portugal. Can you confirm?” »

« The truth, right now, is that the Financial Services Commission’s information is correct. »

« There is absolutely no case in Portugal against Sobrinho »

« The Planet Earth Institute is listed as an international NGO and charity, working for the scientific independence of Africa. »

« The Mauritian president is quoted as saying the money will be used to “highlight critical issues at the heart of Africa’s scientific agenda and create innovative platforms, online and offline, for leaders to come together and innovate for solutions”. »

Yet, in a press conference given on 18 March 2017, Paul Bérenger, leader of the Mouvement Militant Mauricien (MMM), attacked the President by saying that « Ameenah Gurib-Fakim was disqualified as President of the Republic » when the allegations of a criminal case against Dr Sobrinho in Portugal were false news and when there was no proof of wrongdoing on the part of the Mauritian President since her appointment as a Director of PEI was non- remunerative.

Election and Removal of the President

Article 28(2)(i) states that the President shall:

« be elected by Assembly on a motion made by the Prime Minister and supported by the votes of a majority of the members of the Assembly. »

Article 28(4) further states that :

« Where a person is elected to the office of President, he shall not, whilst in office -

(a) hold any other office of emolument, whether under the constitution or otherwise;

(b) exercise any profession or calling or engage in any trade or business. »

Article 30 deals with the circumstances under which a President can be removed from office, for example, for « violation of the constitution or any serious act of misconduct » (under (1)(a). But this can only be done upon a motion by the Prime Minister and the setting up of a tribunal to investigate the matter.

The Constitution offers no definition of emolument. Generally, emolument means : « A salary, fee, or profit from employment or office - ‘the directors' emoluments’ ». In Revenue Law, an emolument is an « income from employment », such as « salaries, fees, wages ». The President received no salaries from PEI.

PEI Barclays Credit Card/s with Rs1m Limit

Through legitimate investigative journalism to inform the public, the newspaper l'Express received some documents, including bank statements, about the public figure President Ameenah Gurib-Fakim, documents which it rightly felt the public should be informed about. 

According to one document published in l'Express of 28 February 2018, Members of the PEI Council authorised the opening of a USD current account called  "PEI Foundation AA Account"  with Barclays Bank Mauritius Limited to be operated singly by signatory Dr Bibi Ameenah Firdaus Gurib Fakim or Dr Alvaro de Oliveira Madelano Sobrinho, and  « The purpose of the account will be to promote the HE Ameenah Ghurib-Fakim, PEI - Bill and Gates Foundation PhD Programme ». [section (ii) & (iii)]

It was further proposed under (ix) that Dr Bibi Ameenah Firdaus Gurib Fakim « would be given a credit card (limit equivalent to 1,000,000 mauritian Rupees) linked to the above-mentioned USD bank account ». The same is repeated under section (e) with the name of Dr Álvaro de Olivera Madaleno Sobrinho added.

The case against President Ameenah Gurib-Fakim

The case against the President Ameenah Ghurib-Fakim is that, when she was a Director of Charity PEI, she was given two Barclays Bank Credit Cards with a limit of Rs1m each. This allegation needs clarification. The proposal under (ix) was for Dr Gurib Fakim alone, and the proposal under (e) was for both Dr Gurib Fakim and Dr Sobrinho - one credit card for two?

This copy document dated 11 May 2016 is signed by Dr Sobrinho (Chairman) and by Mr Fernandes (Member of Council). It also shows a Barclays Bank Mauritius Ltd stamp with an unidentified signature. It is not known whether Barclays approved the request and whether those credit cards were really issued. In law, the burden of proof is on the organisation or person making the allegation and not on the alleged card holders. This document needs authentication with the original and proof of the credit cards produced.

The daily newspaper stated being in possession of several copies of the President's Barclaycard statements and published two of them dated 10 Oct 2016 and 10 Nov 2016 respectively, both addressed to Mrs Bibi Ameenah Firdaus Gurib Fakim, with what appears to be her private home address, and not to « Dr » Bibi Ameenah Firdaus Gurib Fakim as stated in the PEI proposal.

The report details some of the purchases of 'personal items' allegedly made by Mrs Gurib-Fakim, purchases which they say have nothing to do with promoting the « HE Ameenah Ghurib-Fakim, PEI - Bill and Gates Foundation PhD Programme ». But those bank statements make no connection between PEI and the President Gurib-Fakim. They look like the personal statements of the President, and those too need to be authenticated by those who rely on them.

If those statements do indeed belong to PEI, there is nothing abnormal about organisations issuing credit cards to their Directors. In this case, this matter concerns PEI only and no one else. It is up to PEI to complain if they feel that their card has been misused. This does not mean that the President received any emolument as stated in the Constitution and that she should resign as opposition politicians like Shakeel Mohamed of the Parti Travailliste and Aurore Perraud of the PMSD are making out.

Aurore Perraud seems to always have her fangs out for the President Gurib-Fakim. Perraud even attacked the President when she alleged that Showkutally Soodhun, then Minister for Housing and Lands, requested the removal of Nirmala Maruthamutu who was disrupting his NHDC workshop in September 2017 allegedly because Nirmala was a woman and that the woman President Gurib-Fakim did nothing to defend women. Heaven knows what this incident has to do with the President! But when Xavier-Luc Duval, leader of the PMSD, told the woman Speaker Hon. Maya Hanoomanjee that he had « no respect » for her and was suspended from Parliament, Aurore Perraud was awfully quiet.

Now, without any corroboration of the veracity and authenticity of the documents published on 28 February 2018, the very next day by letter dated 1 March 2018,  MP Shakeel Mohamed, a barrister by profession, tabled a motion of no confidence against the President Ameenah Gurib-Fakim. Realising that the President is apolitical and any motion to remove her can only be made by the Prime Minister under Article 30 of the Constitution, in a declaration to the press Mohamed MP now says that he has requested the PM to set up a tribunal to investigate the President who, incidentally, did nothing unconstitutional.

Paul Bérenger, leader of the MMM, [...] added his two pennies worth by requesting the President to resign and be replaced by the Vice-President Barlen Vyapoory for whom he pretends to have a special liking.

While it is the job of the press to investigate and inform, it would not be improper to say that certain opposition politicians are behaving like vultures deserving the contempt of the people.

Perhaps the wisest comments have been made by PM Pravind Jugnauth when he said that :

« When we occupy the post of President, Prime Minister or Minister, I think we have to be careful when using credit cards as it gives rise to speculations ». [Défi 03 March 2018].

Pravind Jugnauth also said that he is not in any position to authenticate the said documents as he does not have access to the bank statements of anyone, that there are laws and bank secrets. He says that, even though he is PM, he has no right to request a bank to give him information on an individual as the law does not allow him to do so.

Conclusion

There is no evidence whether the Barclaycard statements in question relate to Mrs Gurib-Fakim personal credit card or to the one given to her by the Foundation PEI. The statement copies published are not very legible, but one is at pains to find on the statement if the account is related to PEI. Even if it did, this does not mean that the expenses therein necessarily amount to any wrongdoing as this matter concerns PEI, and they filed no complaint. 

This is not a government matter. In a radio interview to the press, the President requests the Sentinelle Group, owners of l'Express, to prove the authenticity of the documents they published. Also, it has to be established whether those documents were obtained lawfully to be admissible. PM Pravind Jugnauth says he has no access to the bank statements of anyone and that he has no right to request a bank to give him information on an individual as the law does not allow him to do so.

M Rafic Soormally

London

03 March 2018