The Financial Crimes Commission Act 2023 ("the Act") has reshaped the enforcement landscape in Mauritius by consolidating the functions previously carried out by the Independent Commission Against Corruption, the Integrity Reporting Services Agency and the Asset Recovery Unit into one body — the Financial Crimes Commission ("FCC").

This reform responds to longstanding FATF and international concerns regarding the efficiency of Mauritius's anti-financial-crime framework. A single Commission, vested with wider powers and a unified mandate, is intended to reduce duplication and to provide clarity both for cooperating regulators and for those being investigated.

I. Scope of the Commission's mandate

The FCC is mandated to investigate and take action in relation to:

  • Corruption — in both the public and private sectors;
  • Money laundering and related predicate offences;
  • Fraud, including tax fraud and forgery where linked to proceeds of crime;
  • Unexplained wealth and asset recovery; and
  • Terrorism financing, in coordination with the FIU and the police.

II. Powers of investigation

The FCC is equipped with extensive investigative powers, including the ability to:

  • summon and examine persons under oath;
  • require the production of documents — including documents held by banks, accountants and law practitioners, subject to the protections of legal professional privilege;
  • apply to the Judge in Chambers for attachment, freezing and restriction orders over assets;
  • conduct searches and seizures under the authority of a warrant; and
  • enter into information-sharing and cooperation arrangements with foreign counterparts.

III. Unexplained Wealth Orders

One of the most significant features of the regime is the mechanism of Unexplained Wealth Orders (UWOs), which allow the FCC to require a respondent to explain the lawful origin of property that appears disproportionate to their known sources of income. A failure to provide a credible explanation may ground civil recovery proceedings.

Respondents should be advised at the earliest opportunity. A UWO is not a criminal charge, but the response becomes the foundation of any subsequent civil recovery — and, in some cases, of parallel criminal proceedings.

IV. Safeguards and the defence

The Act preserves several procedural safeguards that must be observed in any investigation:

  • the right against self-incrimination in criminal proceedings;
  • legal professional privilege — which continues to attach to communications genuinely made in contemplation of legal advice;
  • the obligation on the Commission to act proportionately and within the limits of its statutory mandate; and
  • rights of review before the Supreme Court, including judicial review of decisions to freeze assets or commence civil recovery.

V. Practical implications for officers and companies

Companies subject to regulated activities and their officers should, in our view, review the following before an investigation is opened:

  • the robustness of their AML/CFT policies, risk assessments and record-keeping;
  • the processes by which sensitive information is logged, preserved and, where appropriate, privileged; and
  • the identity of a nominated point of contact for engagement with the Commission, distinct from the MLRO and the Compliance Officer.
The consolidation achieved by the FCC Act is substantial and welcome. Its practical effect, however, will depend on how the Commission uses the wide investigative powers conferred on it — and on the discipline with which regulated entities prepare for, and respond to, the new regime.

Published by Lutchmenarraidoo Chambers · 22 January 2024

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