Updated: Jul 23
Revealed: Lawyers warn that Number Resource Organization's desperate attempt to interfere in the rule of law in Mauritius could trigger a political and constitutional crisis.
Legal experts in Mauritius have raised alarm at the recent attempts by Number Resource Organization to influence the judiciary to evade ongoing corporate litigation in the Mauritius courts.
Lawyers believe that NRO's letter to the Attorney General of Mauritius on 12 July 2022 is a deliberate attempt by NRO to place the Attorney General and Government of Mauritius into a constitutional and legal crisis in a last-ditch attempt to stop court hearings outlining allegations of corruption and illegality in Mauritius headquartered AFRINIC from going ahead.
In their letter, NRO makes unfounded allegations about "a wealthy plaintiff to act in this vexatious manner". This is an attempt to try and influence the Attorney General of Mauritius to apply the controversial Article 197F of the Courts Act (2011).
Article 197F has never been invoked in Mauritius and by asking the Attorney General to consider their request, NRO is placing the government of Mauritius into a dangerous constitutional and political situation that has massive economic and political ramifications for the country.
The rule of law in any democracy is central to good governance. Asking the Attorney General to intervene in a corporate litigation process simply because the defendant does not like to be held to account in the Mauritian courts is a desperate attempt to try and influence and dictate a legal outcome and must be resisted.
NRO will have been advised by their legal representatives that Article 197F was introduced by the Labor coalition government of Dr. Navin Ramgoolam in 2011. At the time of insertion of the article by then-Attorney General Y N Varma, lawyers and lawmakers raised serious concerns that Article 197F could be open to abuse by bad actors including those with corrupt motives. Concerns were raised that the draconian law allows for political interference in the independence of the judiciary. It was also criticized for not providing any effective domestic remedy meaning that the law could be open to challenge at international human rights courts. The law was presented to Parliament under an urgent certificate measure (to deal with a specific allegation of an individual Barrister bringing cases against Judges) and was not given time to be scrutinized effectively by democratically elected representatives. It is considered by lawyers in Mauritius as dangerous and poorly drafted legislation. Lawyers believe the law is unconstitutional because it removes a person's right to access the justice system. These concerns have resulted in all subsequent Attorney Generals being unwilling to use this power for fear of the domestic and international legal challenges it would provoke. Despite NRO being aware of all of this, they still pushed ahead with their desperate intervention in an attempt to influence the judiciary.
The actions of NRO are a direct challenge to a democratically elected government and will raise concerns in the embassies and governments of the United States of America, members of the European Union, Africa Union as well as India, China, and other friendly nations to Mauritius.
The revelation that NRO is willing to attempt to use such tactics in commercial litigation has raised serious concerns among the legal community in Mauritius where lawyers defend the basic principle, that in a democracy such as Mauritius, no one is above the rule of law. Despite what the NRO may argue, this includes AFRINIC. In their desperation, AFRINIC has so far attempted (absurdly) to claim diplomatic immunity status for themselves and their senior staff and is now appealing directly to the Attorney General pleading that the commercial cases brought against AFRINIC are not heard by an impartial judge.
AFRINIC's desperation to hide from justice is indicative of serious problems in the organization. Concerns about corruption and other illegal activity have been raised and these issues must be heard by an impartial judge. It is suspected that the NRO has stepped in under the direction and supervision of the suspended CEO of AFRINIC, Eddy Kayihura. Mr. Kayihura has been suspended as CEO by the courts in Mauritius and instructed by court order and the bylaws of AFRINIC, not to perform any duties relating to his former position of CEO. If Mr. Kayihura is involved in this latest intervention, he will be in contempt of court and in breach of AFRINIC bylaws.
Mauritius has global standing in defending the rule of law. It is why so many international companies, finance companies, and individuals have offices and investments registered in Mauritius. It is why AFRINIC members choose Mauritius as their headquarters.
By suggesting to the Attorney General to apply Article 197F, NRO is asking the government to set a dangerous precedent that would damage Mauritius' reputation as a jurisdiction based on the rule of law without political interference. Lawyers have expressed concern that NRO's blatant attempt to interfere in the politics of Mauritius, via an unconstitutional and discredited law, has the potential to damage Mauritius' reputation internationally. At a minimum, NRO's actions are attacking the reputation of the Attorney General and the Government by placing undue influence on them.
The arrogance of NRO and AFRINIC in believing they are above the law is breathtaking. They wouldn't dare do such a thing in their home countries but they feel that they can act in such an arrogant manner against Mauritius. They are out of control and dangerous and must be stopped.
The signatories to NRO's letter Paul Wilson, John Curran, Oscar Robles, and Hans-Petter Hollen as well as AFRINIC's suspended CEO Eddy Kayihura must now withdraw their attempt at interference and apologize to the government, judiciary, and people of Mauritius for their attempts to influence the judiciary and the government.
Members of their respective organizations will have a poor view of their behavior. The global internet community deserves better.
Link to the Court Act of Mauritius:
197F. Vexatious proceedings:-
(1) Where, on an application made by the Attorney-General, a Judge is satisfied that any person has habitually, persistently, and without any reasonable grounds
(a)instituted vexatious legal proceedings against the same person or against different persons; or
(b)made vexatious applications in any legal proceedings instituted by him or another person,
the Judge may, after giving that person an opportunity of being heard, declare the person to be a vexatious litigant and order that-
(i)no legal proceedings shall, without the leave of the Supreme Court, be instituted by him in any Court;
(ii)any legal proceedings instituted by him in any Court before the making of the order shall not be continued by him without the leave of the Supreme Court; or
(iii) no application, other than an application for leave under this section, shall, without the leave of the Supreme Court, be made by him in any legal proceedings instituted by him or another person in any Court.