Mauritius - Global bribery offenses guide

What is the legal framework governing bribery in Mauritius?

Bribery is governed by the Financial Crimes Commission Act 2023 (hereinafter referred to as “FCCA” or the “Act”) in Mauritius. The Act provides for the prevention and punishment of financial crimes and any other ancillary offence connected thereto and for the establishment of a Financial Crimes Commission (FCC).

The Act applies to conduct occurring from the implementation date of 29 March 2024.

 

What constitutes a bribe?

A bribe is the offering, giving, agreeing to give, receiving, or soliciting gratification for the purpose of influencing the action of an official in the discharge of their public or legal duties; something, such as money or a favour, offered or given to a person in a position of trust to influence that person’s view or conduct.

The FCCA defines “gratification” as a gift, a reward, a discount, a premium or any other advantage, whether pecuniary or non-pecuniary, other than lawful remuneration; and includes – (i) a loan, fee or commission consisting of money or of any valuable security or of other property or interest in property of any description; (ii) the offer of an office, employment or other contract; (iii) the payment, release or discharge of a loan, obligation or other liability; (iv) the payment of inadequate consideration for goods or services; (v) the offer or promise, whether conditional or unconditional, of a gratification; and (vi) any favour or service.

 

What are the principal offenses under this legal framework?

• When a public official solicits, accepts or obtains from another person, for themself or for any other person, a gratification in the execution of their functions and duties (Section 19 FCCA).
• When a person gives, agrees to give or offers a gratification to a public official in the execution of their functions and duties (Section 20 FCCA).
• Any person who accepts or obtains, or agrees to accept or attempts to obtain, a gratification in consideration of concealing an offense or screening any other person from legal proceedings for an offense or not proceeding against any other person in relation to an alleged offense, or abandoning or withdrawing, or obtaining or endeavoring to obtain the withdrawal of, a prosecution against any other person (Section 21 FCCA).
• Any public official who makes use of their office or position for a gratification for themself or another person (Section 22 FCCA).
• Any person who gives, or agrees to give, or offers, to a public official, a gratification for:
  • voting or abstaining from voting, or having voted or abstained from voting, at a meeting of a public body of which they are a member, director or employee, in favor of or against any measure, resolution or question submitted to the public body;
  • performing or abstaining from performing, or aiding in procuring, expediting, delaying, hindering or preventing, or having performed or abstained from performing, or having aided in procuring, expediting, delaying, hindering or preventing, the performance of an act of a public body of which they are a member, director or employee; or
  • aiding in procuring, or preventing, or having aided in procuring or preventing, the passing of any vote or the granting of any contract or advantage in favor of any other person.

(Section 23(1) FCCA)

• Any public official who solicits or accepts a gratification for either (a), (b) or (c) as mentioned in section 23(1). (Section 23(2) FCCA))
• Any person who gives or offers a gratification to a public official in consideration of that public official using influence in:
  • promoting, executing, or procuring a contract with a public body for the performance of a work, the supply of a service, or the procurement of supplies;
  • the payment of the price provided for in a contract with a public body; or
  • obtaining for that person or for any other person, an advantage under a contract for work or procurement.

(Section 27(1) FCCA)

• Any public official who solicits, accepts or obtains from any other person, for themself or for any other, a gratification for giving assistance or using influence to (a), (b) and (c) as mentioned in section 27(1) FCCA. (Section 27(2) FCCA)
• It is an offense for any public official to solicit, accept or obtain a gratification for themself or for any other person:
  • from a person whom they know to have been, to be or likely to be interested or
  • related to the person interested, in any proceedings or business transacted or
  • about to be transacted; or
  • where they know that, or ought reasonably to know, that the proceedings or business has a connection with their functions or duties or those of any public official to whom they are subordinate or of whom they are the superior.

(Section 31 FCCA)It is an offense for any employee or member of a private entity to solicit, accept or obtain from another person for themselves or for any other person, a gratification for doing or abstaining from doing an act in the discharge of their functions or duties or in relation to the private entity’s affairs or business, or for having done or abstained from doing such act. (Section 32(1) FCCA)

• Any person who gives or agrees to give or offers, a gratification to an employee or a member of a private entity for doing or abstaining from doing an act in the discharge of their functions or duties or in relation to the private entity’s affairs or business or for having done or abstained from doing such act. (Section 32(2) FCCA)
• A foreign public official who, whether directly or indirectly, solicits, accepts or obtains from a person, for themself or for any other person, a gratification for the foreign public official to use his position:
  • to do or to refrain from doing an act in the execution of his functions or duties;
  • or to do an act or to refrain from doing an act facilitated by his functions or duties,

in order to provide business to, or retain business for, a person or any advantage to a person. (Section 34(1) FCCA)

• Any person who promises, offers or gives a gratification, whether directly or indirectly, to a foreign public official or for any other person for that foreign public official to use his position to (a) and (b) as mentioned in Section 34(1) FCCA in order to obtain or retain any business, or advantage in the conduct of international business. (Section 34(2) FCCA)
• Any person who:
  • solicits, accepts or agrees to accept any gratification, for themself or for another person, as an inducement or a reward of their influencing or having influenced the run of play or the outcome of any sporting event; or
  • offers or gives or agrees to give to another person any gratification as an inducement to influence or as a reward for influencing or having influenced the run of play or the outcome of a sporting event.

(Section 35 FCCA)

 

What is the jurisdictional reach of the legal framework?

Where the bribery occurred outside Mauritius, a court in Mauritius shall, regardless of whether or not the act constitutes an offense at the place of its commission, have jurisdiction in respect of that offense if the person to be charged:

• is a citizen of Mauritius;
• is ordinarily resident in Mauritius;
• was arrested in Mauritius or in its territorial waters or on board a ship or aircraft registered or required to be registered in Mauritius at the time the offense was committed;
• is a private entity.

(Section 143(1) FCCA)

When an act of bribery is committed outside Mauritius by a person, regardless of whether or not the act constitutes an offense or not at the place of its commission, be deemed to have been committed also in Mauritius if that:

• act affects or is intended to affect a public body, a business or any other person in Mauritius;
• person is found to be in Mauritius; or
• person is, for any reason, not extradited by Mauritius, or if there is no application to extradite that person.

(Section 143(2) FCCA)

 

Who may be liable for bribery? (public officials, private individuals, legal entities etc.)

In Mauritius, public officials (Section 19 FCCA), private individuals and employees/members of legal entities including private entities (Section 32 FCCA) can be prosecuted for bribery offenses.

Further, any entity, including a private entity, can be held liable to a fine not exceeding 20 million rupees if any of its directors, senior managers or any other persons involved in its management, or any of its officers, agents or representatives having authority to act on its behalf, commits an offence under the Act, including a bribery offence, for the benefit of the legal person. (Section 53 FCCA).

 

Can a parent company be liable for its subsidiary's involvement in bribery?

The law in Mauritius does not specifically provide for the liability of a company for its subsidiary's involvement in bribery.

 

Are facilitation payments (i.e. small payments to speed up routine governmental action) considered bribes?

Yes, facilitation payments can be considered as bribery as such payments are a sort of gratification to a public official in order to expedite the performance of an act in the execution of the public functions or duties. (Section 20 FCCA)

 

Does the legal framework restrict political and charitable contributions?

The legal framework does not expressly restrict political and charitable contributions; however, any contribution that is given or received with the intention of inducing a person to act improperly, or as a reward for having done so, shall be considered as a bribe under the Act.

 

Does the legal framework place restrictions on corporate hospitality?

The law does not provide any restrictions on corporate hospitality.

Whether hospitality amounts to a bribe would be assessed on the basis of whether there was sufficient evidence to show that it was a bribe as described in this note.

 

Are there any defenses for bribery offenses?

There are no specific statutory defenses to charges found under Sections 19, 20, 21, 22, 23, 27, 31, 32, 34, 35 FCCA.

The statutory defence available under section 53 of the FCCA is as follows: It shall be a defence for a legal person if the legal person, proves, on a balance of probabilities, that it has adequate procedures in place designed to prevent any of its directors, senior managers or any other persons involved in its management, or any of its officers, agents or representatives having authority to act on its behalf, from undertaking such conduct.

The Independent Commission Against Corruption, the precursor of the FCC, had put into place a Zero Influence test, which is to be considered by the public officials when accepting any gift or hospitality. Public officials should ensure that the two conditions found in the test are met, namely (i) the offeror giving the gift or hospitality has no intent to influence a decision or start a “sweetening process” with the ultimate aim of influencing a decision-making process; and (ii) the gift or hospitality offered should be available to others such as other public officials or members of the public. Any gifts or hospitality accepted should therefore satisfy the test. However, in any event, the public official must always report to their immediate supervisor or senior officers, any offer of gratification whether accepted or not (Guidelines on Gift and Gratifications for public officials - ICAC).

 

What are the key regulatory or enforcement bodies with regard to bribery?

Where in the discharge of his functions (a) a judicial officer; (b) the Director of Public Prosecutions; (c) the Commissioner of Police; (d) the Director-General of the Mauritius Revenue Authority; (e) the Governor of the Bank of Mauritius; (f) the Director of the Financial Intelligence Unit; (g) the Ombudsman;(h) the Director of Audit ; (i) any public official of a public body; or (j) any other person, has reasonable grounds to suspect that any offence under the Act, including any bribery offence, has been, is being or is likely to be committed, he shall refer the matter to the FCC for investigation. (Section 56 FCCA)

Where the Director of Public Prosecutions is dissatisfied with the reasons for discontinuing an investigation, he may request the Commission to proceed with a further investigation. (Section 57(3A)(b) FCCA)

No prosecution for bribery offenses can be instituted except by, or with the consent of, the Director of Public Prosecutions. (Section 142(1) FCCA)

 

What are the legal consequences of being found guilty of bribery offenses?

• An individual shall, on conviction, be liable to penal servitude for a term not exceeding ten years for the following bribery offenses:

  • Bribery by public official (section 19 FCCA)

  • Bribery of public official (section 20 FCCA)

  • Taking gratification to screen offender from punishment (section 21 FCCA)

  • Public official using his office for gratification (section 22 FCCA)

  • Bribery of or by public official to influence the decision of a public body (section 23(1) and 23(2) FCCA)

  • Bribery for procuring contracts (section 27 FCCA)

  • Receiving gift for corrupt purposes (section 13 FCCA)

  • Corruption in private entities (section 32(1) and 32(2) FCCA)

  • Bribery by or of foreign public official (section 34(1) and 34(2) FCCA)

  • Corruption in relation to sporting events (section 35 FCCA)

 

Are deferred prosecution agreements (DPAs) or other similar settlement mechanisms available?

Neither Deferred Prosecution Agreements nor any other similar settlement mechanisms in the case of bribery are available in Mauritius.

Summary provided by Juristconsult Chambers, a member of DLA Piper Africa, a Swiss Verein whose members are comprised of independent law firms in Africa working with DLA Piper.