Introduction
On the back of joining top-tier jurisdictions that are ‘compliant’ or ‘largely compliant’ with all the 40 FATF Recommendations, the Parliament has recently voted in favour of a new Financial Crimes Commission Act (the “FCCA”). The FCCA, which represents a significant step in the jurisdiction’s fight against financial crimes, received presidential assent on 21 December 2023. The FCCA is however not yet in force as of date, awaiting proclamation by the Parliament.
Henceforth, the Financial Crimes Commission (the “FCC”) will be the new apex agency that is tasked with the detection, investigation and prosecution of financial crimes in Mauritius. In that regard, the FCC has taken over the functions that were previously under the aegis of the Integrity Reporting Board in the Good Governance and Integrity Reporting Act (“GIRA”), the Enforcement Authority in the Asset Recovery Act (“ARA”) and the Independent Commission Against Corruption in the Prevention of Corruption Act (“POCA”).
Powers available to the FCC
The FCC has been granted wide powers that encompass the examination of documents, the right of entry and search on specified premises, seizure of property and the power of arrest. Of particular relevance is the ability of the FCC to apply for a ‘Telecommunication Order’ before the judge in chambers directing a public operator to intercept or withhold a message and disclose that message to the FCC. The ‘Telecommunication Order’ is only issued subject to certain safeguards, one of which is the materiality of the information to the investigation.
Another power that the FCC has is in relation to using intrusive surveillance techniques for the purpose of gathering intelligence. This includes intercepting electronic equipment and using covert human intelligence sources. Again, the use of such surveillance techniques is subject to the judicial scrutiny of a judge in chambers. It is expected that those specific powers of the FCC will be rigorously put to the test in our courts of law.
Highlights of the FCCA
Although the FCCA represents a substantial overhaul of the existing legislations, notably the GIRA, the ARA and the POCA, we unpack a few of its most notable features.
New definition of ‘Property’
‘Property’ now has a wider definition which, amongst others, also includes any right or interest in the property. Hence, even if a person does not own the property per se, an interest in a property that is alleged to be connected to the crime may still be get captured.
Compensation Order
A person against whom a property confiscation order or an attachment order has been issued now has the possibility of applying to the court for the issue of a compensation order. This order, which is subject to the principles of fairness and justice, may be issued by the court where it is satisfied that the value of the person’s recovered interest in the property is disproportionate to the offence with which he is charged. This ensures that the prejudice suffered by the accused is more or less proportional to the gravity of the offence that he has committed.
Bribery and corruption
The FCCA now criminalises the conduct of any person who induces another person to retract or refrain from making a tender. This is however only applicable to tenders from public bodies. Although this offence was arguably covered under the POCA, the legislator now makes it clear and unambiguous as the tendering process in public bodies is an area that is susceptible to unscrupulous conduct.
Corruption in private entities
Despite the inclusion of corruption as also capturing an act between private entities in the now repealed POCA, it suffered from several shortcomings. The lawmakers have now sought to address this concern by adding a whole new section on acts of corruption within the private space. It is expected that the FCC will now be in a much better position to fight against corruption in private entities.
Fraud
A series of new fraud offences have now been included in the FCCA. False representation, failure to disclose information, abuse of position, failure to pay for goods and services and electronic fraud are some of the offences that a person may be charged with under ‘fraud’. Previously, although fraudulent conduct was one of the offences which fell under the POCA, there was no specific section on fraud which clearly identified the offence.
Obligations of legal persons
A noteworthy addition to the FCCA is the obligation of legal persons to ensure that they have adequate procedures in place to prevent any corruption, money laundering, fraud offences and other ancillary offences from being committed. Although ‘reporting persons’ under the Financial Intelligence and Anti-Money Laundering Act already have an obligation to implement controls and procedures to mitigate risks of money laundering and terrorism financing, no such provision existed in relation to corruption and fraud offences.
Therefore, legal persons will henceforth be expected to put in place appropriate procedures and controls to ensure that their internal processes and systems are robust enough to flag any potential situation of non-compliance with the FCCA.
Conclusion
During parliamentary debates on the FCCA the Prime-Minister highlighted that the implementation of the FCCA will be a game-changer for Mauritius in its fight against perpetrators of serious financial crimes. Through this new legislation Mauritius expects to maintain its position as a clean and transparent jurisdiction in the next evaluation exercise of the FATF in 2027.
