Explaining the Unexplained Wealth Orders: (Mauritius) Good Governance and Integrity Reporting Act

Abstract

This paper analyzes the scope and impact of the novel unexplained wealth order (UWO) in Mauritius and highlights potential issues and challenges arising from the recent enactment of a law providing for UWOs. The recent enactment of The Good Governance and Integrity Reporting Act 2015 (‘GGIR’ or ‘Act’) in Mauritius has been hailed by many as a ‘step in the right direction’ in the fight against white-collar crime both internationally and at home.1 Despite its commendable objectives, the Act underscores the tension between the rights of the individual and the interests of the community. Most notably, the GGIR raises the following three key concerns: first, the prospect of forced property deprivation, which is the essential feature of UWOs, may conflict with constitutionally protected rights of citizens and their civil liberties. Secondly, although focused on the recovery of presumed ‘ill-gotten gains’, UWOs are categorized as civil, and not criminal, law measures, thus enabling authorities to conveniently circumvent, and indeed undermine, due process rights which only apply in the criminal realm. Thirdly and last, UWOs have the effect of reversing the burden of proof by requiring the individual to prove the legitimacy of his ownership, possession, or control of property, and relieving the State of any requirement to prove wrongdoing. This paper posits that, given the quasi-criminal nature of UWOs, due process rights enshrined in the constitution and relied upon in the conventional criminal process should continue to apply in civil unexplained wealth forfeiture.