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MAURITIUS: TERRORISM LEGISLATION

Prevention of Terrorism Act (POTA), 2002 was introduced to empower the Mauritian legal system adequately to deal with the phenomenon of terrorism. The Act makes provision for the prevention, suppression and combating of terrorism. It creates new offences in our criminal law relating to terrorism. It introduces measures with a view to gathering intelligence, carrying out investigations and ensuring enforcement in the matter. It provides for mechanisms of co-operation with foreign jurisdictions. At the same time, it seeks to implement the international commitments of Mauritius in respect of terrorism. Under the Prevention of Terrorism Act, there are strict restrictions and severe penalties for persons furnishing terrorists, terrorist organisations and other individuals, groups, undertakings and entities associated with such goods.1 Regulation 9 provides that no person shall, directly or indirectly, export, sell, supply or ship any arms, weapons, ammunitions, military vehicles and equipment, paramilitary equipment, spare parts and related material to any listed terrorist. Regulation 10 provides that no owner or master of a Mauritius ship and no operator of an aircraft registered in Mauritius shall, directly or indirectly, carry or cause or permit to be carried any arms, weapons, ammunitions, military vehicles and equipment, paramilitary equipment, spare parts and related materials for any listed terrorist. Regulation 11 provides that no person shall directly or indirectly provide any listed terrorist with technical advice, assistance or training related to military activities. Under Regulation 12 it is an offence to contravene these Regulations. The Prevention of Terrorism Act (Special Measures) GN 14 of 2003 The
regulations gives powers to the Central Bank, or the Financial Services Commission, to direct that any account, property or funds held by financial institutions under the relevant statutory authority on behalf of any listed terrorist be frozen and a report be made in such form and manner as it thinks fit. The Act provides for the freezing of assets and funds of suspected international terrorists and terrorist groups pursuant to Part II section 10(6) of the POTA 2002. Regulation 3 makes provision for the Central Bank, or the Financial Services Commission, to give directives to financial institutions under its regulatory authority to freeze any account, property or funds held on behalf of any listed terrorist by those institutions and cash dealers. Regulations 7 and 8 clearly list the offences purporting to funds, financial assets or economic resources that are made available, directly or indirectly, to listed individuals or entities or for their benefit, by nationals or by any person within the territory of Mauritius.2

The Geneva Conventions Amendment Act 2003 incorporates into our law the
humanitarian obligations assumed by Mauritius and which have been set out in the Geneva Conventions of 12 August 1949. The Conventions have to do with treatment of war victims rather than terrorism. However, the recent Protocols Additional to the 1949 Geneva Conventions extend the scope of the Convention. Thus, whereas Protocol I covers victims of international armed conflict, Protocol II covers victims of noninternational armed conflict. Provisions of the Geneva Conventions may become relevant: that is, when the authorities are dealing with persons detained for terrorist

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offences. The latest amendment affords extra-territorial competence to the Mauritian Courts and in this sense it joins the regime of extra-territorial jurisdiction provided for in the Act. The amendment also criminalises the act of using the Red Cross emblem, or any other emblem, without the consent of the Minister. The legislation also provides for the protection that a protecting power must ensure to a protected prisoner of war or a protected detainee under the Geneva Conventions (the First, Second, Third and Fourth Conventions) and their Protocol Additional (Protocol I and Protocol II).

Civil Aviation (Hijacking and Other Offences) Act 33 of 1985 (commonly referred to as CAHOOA) incorporates the following UN Conventions into national legislation: Convention on Offences and Certain Other Acts Committed On Board Aircraft, signed at Tokyo on 14 September 1963. Convention for the Suppression of Unlawful Seizure of Aircraft signed at The Hague on December 1970, entered into force on 14 October 1971. Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, which was signed at Montreal on 23 September 1971. Protocol for the Suppression of Unlawful Acts of Violence at Airports serving International Civil Aviation of 1971 that entered into force on 6 August 1989. The CAHOOA also brings within its jurisdiction other offences that exists in the penal law: namely, assault, larceny, manslaughter, murder, unlawful detention, wounds and blows, all of which are offences in our Criminal Code. It also claims jurisdiction over possession of a firearm, which is an offence under our Firearms Act. Continental Shelf Act 1982 Incorporates the Protocol for the Suppression of
Unlawful Acts against the Safety of Fixed Platforms located on the Continental Shelf. It was concluded in Rome on 10 March 1988 into Mauritius legislation and therefore adequately satisfies the legal requirements of the Convention.

Weapons
Firearms Act provides administrative and legislative controls relating to firearms. They
are aimed at ensuring a more effective arms control, monitoring existing stocks, strengthening import and export control measures, reducing surplus arms, and preventing and detecting illicit trafficking.3 The Act is being reviewed, inter alia, to incorporate our obligations under the following Protocols of which Mauritius is signatory: i) United Nations Programme of Action to Prevent, Combat and Eradicate the Illicit Trade in Small Arms and Light Weapons in all its Aspects; ii) Bamako Declaration on an African Common Position on the Illicit Proliferation, Circulation and Trafficking of Small Arms and Light Weapons 1 December 2000; iii) Protocol against the Illicit Manufacturing of and Trafficking in Firearms, their Parts and Components and Ammunition, supplementing the United Nations Convention against Transnational Organised Crime; and

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Protocol on the Control of Firearms, Ammunition and Other Related Materials in the Southern African Development Community (SADC) Region signed on 14 August 2001 in Blantyre, Malawi. It is to be noted that although Mauritius does not produce weapons or ammunition, the following laws are in place: i) The Explosives Act; ii) The Firearms Act; iii) The Prevention of Terrorism Act and the Prevention of Terrorism (Special Measures) Regulations; and iv) The Chemical Weapons Convention Act. Under both the Explosives Act and the Firearms Act, a permit is required before importing items under the established arms embargo. Such a permit is to be issued by the Commissioner of Police when he is satisfied that requirements under existing laws have been respected. iv)

The Chemical Weapons Convention Act 2003 This Act gives effect to the
Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their destruction. The Act establishes the Mauritius National Chemical Weapons Authority, inter alia, to serve as the national focal point for effective liaison with other state parties to the Convention and the Organisation for the Prohibition of Chemical Weapons (OPCW). The statutory duty of the Authority includes supervision and monitoring of the enforcement of the Act; collection of data for reporting to the OPCW; supervision of domestic implementation of the Convention; collaboration with other state parties in subject-matter of the Convention. The Act, among other things, prohibits the development, production, acquisition, stock-piling or retention of chemical weapons; and dealing in them, using them or collaborating with any person for such activities.

The Radiation Protection Act 2003 This new Act repeals a previous one by the same name and provides for up-dated concerns about radiation. As with the administration of chemical weapons, it establishes a Radiation Protection Authority, with regulatory functions, including the formulation of policies, codes and standards of radiation protection. It also has the function of fulfilling the obligations of the State concerning Conventions ratified in the field of nuclear energy. Biological and Toxin Weapons Convention Act 2004 This Act incorporates the Convention on the Prohibition of the Development, Production and Stock-piling of Bacteriological (Biological) and Toxin Weapons and on their Destruction into our law. It prohibits the development, production, stockpiling, acquisition or retention of any microbial or other biological agent or toxin that cannot be justified for prophylactic, protective or other peaceful purposes. Likewise, the development, production, stockpiling, acquisition or retention of any weapon, equipment or means of delivery designed to use microbial or other biological agents or toxins for hostile purposes, or in armed conflict, are prohibited. Interestingly, this Act binds the State but there is no such provision in comparable legislation relating to chemical weapons under the Chemical Weapons Convention Act 2003.

Information Technology
The Computer Misuse & Cyber-crime Act 2003
This Act may be conveniently used to prevent or deal with cyber terrorism. It criminalizes unauthorised access to computer data, access with intent to commit offences, unauthorised access to and interception of computer services, unauthorised modification of computer material, damaging or denying access to computer systems, unauthorised disclosure of a password, unlawful possession of devices and data, electronic fraud etc. Under the same law a number of orders, such as preservation orders, orders for the disclosure of preserved data, and orders for production of data, may be obtained from a Judge in Chambers, for purposes of investigation and prosecution. The authorities are empowered to seize or secure a computer system and any information and communication technologies medium.

Data Protection Act, No. 13 of 2004 provides for the protection of privacy rights of
individuals in view of developments in techniques used to capture, transmit, manipulate, record or store data relating to individuals. The Act establishes a Data Protection Office which functions are set out in Article 5.

Access Control
The Immigration Act
Regulates the entry and stay of non-citizens in Mauritius. The Act provides for the establishment of a list of prohibited immigrants who shall not be admitted to Mauritius, especially persons involved in criminal activities, trafficking drugs, or reasonably suspected of being engaged in any subversive activity directed against Mauritius, or detrimental to the security of Mauritius or any friendly state. The Act also provides for the issue of residence permits, the refusal of admission to Mauritius, the prevention of unauthorised disembarkation, powers to inspect vessels and to examine passengers and members of the crew, and to detain for removal from Mauritius. The Immigration Act does not make provision for asylum. In fact, Section 8 of the Act has been amended by POTA to include non-citizens declared suspected international terrorists as Prohibited Immigrants.4

Constitution of Mauritius The Constitution spells out conditions under which

persons born in or outside Mauritius shall become citizens of Mauritius (Chapter III). It also provide for basic human rights under Chapter II.

Customs Act Under the Act customs officers are empowered to arrest persons
involved in the commission of smuggling, importing and exporting prohibited goods, which are criminal offences in Mauritius. Those powers are also conferred on police officers under the Police Act. Section (49) provides for the submission of information concerning international cargo and passengers:5

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(a) In the case of a ship: Arriving from neighbouring Reunion Island, not later than five hours before arrival; and Arriving from any other part, not later than 24 hours before arrival (b) In the case of an aircraft: Arriving from Reunion island, upon arrival; and Arriving from any other airport, not later than one hour before arrival.

FINANCING OF TERRORISM
The Convention for the Suppression of Financing of Terrorism Act 2003 The object of this new legislation is to give force of law to obligations taken by Mauritius when it became party to the International Convention for the Suppression of the Financing of Terrorism: Section 3. It amends the Prevention of Terrorism Act 2002 and gives a wide definition of funds to mean assets of every kind, including legal documents or instruments, electronic or digital, or otherwise. The Dangerous Drugs Act 2000 Part III of the Act creates the offences. Except for drug consumers who are allowed an opportunity for rehabilitation, the penalty for peddlars, importers and traffickers are heavy. Provision is also made for the forfeiture of assets upon conviction. The Dangerous Drugs (Amendment) Act 2003 The amended Act of 2003 gives
extensive powers to the Commissioner of Drugs to enter into the premises of persons suspected of offences related to drug dealing. The amendment aims to put in place improved legal provisions to combat dealing in dangerous drugs.

Dangerous Chemicals Control Act 2004 The main object of this new law is to
provide a better legal framework for the control of dangerous chemicals so as to prevent damage to health and the environment by chemical substances, and to provide better protection for workers, members of the public and the environment. The Act also sets up an Enforcing Agencies Co-ordination Committee for activities in the area. It classifies and labels dangerous chemicals. A licensing system is put in place for the proper control, management and administration of importing, exporting, manufacturing, sales distribution, trade, transport and storing of dangerous chemicals.

The Prevention Of Corruption Act 2002 A new Independent Commission Against Corruption has been set up, following recommendation of a Select Committee of the House. It has wide investigatory powers. It creates a set of new corruption offences, which includes, Traffic dinfluence. It is vested with powers for search and seizure, and powers of arrest in certain cases.
It provides for property restraint orders: sub-sections 6264. The Act also contains a number of provisions relating to Mutual Legal Assistance and Extradition. The manner in which these should be executed is set out in Sections 65 80. It also offers protection to witnesses and anonymity to informers under Sections 4849

6 The Financial Intelligence and Anti-Money Laundering Act 2002 (FIAMLA)

The Act provides for the establishment of a Financial Intelligence Unit and a Review Committee since financial intelligence gathering is crucial in the fight against money laundering and its linkage with the financing of terrorism. This Act is meant to deal with: Money-laundering: Sections 315. Section 14 of FIAMLA stipulates that banks, financial institutions, cash dealers and members of relevant professions or occupations have an obligation to make a Suspicion Transaction Report (STR) to the Financial Intelligence Unit on any transaction which they have reason to believe is a suspicious transaction.6 It offers a fairly wide definition of the concept money-laundering Section 3. Reporting obligations are imposed on financial institutions. It also establishes the aforesaid Financial Intelligence Unit and Review Committee. After gathering intelligence, it may refer them to investigatory or supervisory authorities: namely, the Commissioner of Police, ICAC and the Comptroller of Customs for inquiry and prosecution, if necessary. Mutual Legal Assistance and Extradition matters are provided for in Part VI of the Act. Under the Act dealings in the proceeds of terrorism amount to money laundering offences. Suspicious transactions in respect of terrorism are now dealt with in Section 2 of FIAMLA.

The Financial Intelligence and Anti-Money Laundering Regulations 2003

The Regulations provide for the verification of the true identity of all customers and other persons with whom banks, financial institutions and cash dealers conduct transactions, and reinforce the framework that was existing in the Banking Act.7

The Anti-Money Laundering (Miscellaneous Provisions) Act 2003 The main

object of the Act was to amend FIAMLA to provide for the formal setting up of the National Committee for Anti-Money Laundering and Combating the Financing of Terrorism and to replace the Review Committee of the Financial Intelligence Unit (FIU) by a Board. By this Act, the Financial Intelligence Unit is, moreover, empowered to issue guidelines to financial institutions, cash dealers and members of the relevant professions or occupations, on the manner in which they should submit Suspicious Transaction Reports (STRs) to the FIU. Moreover, through this Act, the Bank of Mauritius and the Financial Services Commission can issue codes and guidelines on anti-money laundering and the combating of financing of terrorism, and to enforce compliance with those codes and guidelines. A derogation from the duty of confidentiality is provided for banks to allow them to report suspicious transactions and supply information relating to a reported suspicious transaction to the FIU. Similarly, through this Act, the Bank of Mauritius and the Financial Services Commission are allowed to refer information suggesting a possible money-laundering offence or a suspicious transaction to the FIU. The Director of the FIU is also given the power to request further information in relation to a reported suspicious transaction.8

Banking Act, 1988 Section 3(2) of the Banking Act 1988 provides that no person
shall transact any category 1 and category 2 banking in Mauritius without a license from the Central Bank.

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Section 12(1) provides that no category 1 banking and category 2 banking shall be transacted except by a bank. Section 13 provides for the examination of books, records and accounts by the Central Bank in cases of suspected unlicensed banking. Section 13A(1) prohibits the business of deposit-taking without the written authorisation of the Central Bank,9

Banking Act 2004 and the Bank of Mauritius Act, 2004 were primarily designed
to instill discipline in the Banking, Non-Bank Deposit Taking Institutions and the Money Changers and Foreign Exchange Dealers sectors by encouraging institutions falling under the jurisdiction of the Central Bank to ensure that they are not abused by perpetrators of terrorist acts.10 Notwithstanding sections 30 and 31 of the Bank of Mauritius Act, but subject to subsection (2), no person shall make or accept any payment in cash in excess of 350,000 rupees (12,000 US dollars), or an equivalent amount in foreign currency, or such other amount as may be prescribed. To set best international practices in preventing the financing of terrorism, including subsection (1), every bank, financial institution or cash dealer shall a) Verify, in such manner as may be prescribed, the true identity of all customers and persons with whom they conduct transactions; b) Keep such records, registers and documents as may be required under this Act or any regulations made under this Act; c) Upon a Court order, make available such records, registers and documents as may be required, and d) Forthwith report every suspicious transaction.11

Financial Services Development Act 2001 provides for the establishment and
management of a Financial Services Commission to regulate non-bank financial services, the establishment of a Financial Services Consultative Council which will serve as a forum for discussions of the innovative developments and international trends in the field of financial services, and of a distinct and separate Financial Services Promotion Agency for the promotion of the development of the financial services industry in Mauritius.

Insurance (Amendment) Act, No. 22 of 1990

The Act defines offshore insurance business as insurance business conducted with non-residents in currencies, other than the Mauritian currency, in respect of risks outside Mauritius. Section 47 stipulates that the Minister may cancel the registration of an offshore insurer when such offshore insurer or its affiliate or the company of which it is a subsidiary, has been convicted by a domestic court, a court of the Commonwealth or any other court as may be prescribed for the purposes of the Banking Act 1988, of a crime related to the use, or laundering in any manner, of illegal drug proceeds or related to embezzlement or other illegal manipulation of funds, provided such conviction is a final conviction.

Securities (Central Depository, Clearing and Settlement) Act, No. 30 of 1996

provides for the establishment and regulation of a central depository, clearing and settlement service in order to facilitate dealings in securities.

Stock Exchange Act No. 38 of 1988 regulates Stock Exchange operations in

Mauritius and is therefore applicable in the irregular use of the stock exchange in the financing of terrorism.

Trusts Act No 14 of 2001

Differentiates between different types of trusts. Of importance: reference to a charitable trust, see Section 20

Unit Trusts Act No 26 of 1989 makes provision for the setting up, operation and
management of unit trust schemes.

Foreign Exchange Dealers Act, 1995 provides for the orderly operation and development of the foreign exchange market in Mauritius. Foreign exchange dealers and other related businesses are regulated under this Act. Banks and deposit taking institutions are regulated under the Bank of Mauritius Act and the Banking Act 1988 and Non-Bank Financial service providers are regulated under the Financial Services Development Act 2001.12
Section 3(1) of the Foreign Exchange Dealers Act 1995 provides for specified types of legal persons to carry out the business of a foreign exchange dealer or a moneychanger, if they obtain authorisation from the Minister to whom responsibility for finance is assigned.13

Financial Reporting Act No. 45 of 2004 regulates the reporting of financial matters
and to establish the: Financial Reporting Council (section 3). Under Section 72 the Council shall develop, issue and keep up-to-date financial reporting and accounting standards, and ensure consistency between the standards issued and the International Financial Reporting Standards. The Councils powers to investigate are provided under Section 76. The Mauritius Institute of Professional Accountants includes those registered as professional accountants under Section 51 The National Committee on Corporate Governance established under Section 63. Its objects are set out in Section 64 while its functions are stipulated under Section 65.

MUTUAL LEGAL ASSISTANCE AND EXTRADITION

The Extradition Act of 1970
Section 7 of the Extradition Act provides that an offender shall not be surrendered to a foreign state where: a) The offence in respect of which the request for his surrender is made is one of a political character; or b) He proves to the satisfaction of the Minister that the request for his surrender has in fact been made with a view to trying or punishing him for an offence of a political character. It is clear from those provisions that mere claims of political motivation will not suffice as a basis for refusing requests for extradition of alleged terrorists.14

Mutual Legal Assistance in Criminal and Related Matters Act, 2003 The
object of this new legislation is to enable optimum international co-operation and collaboration between the Republic of Mauritius and a foreign state or an international criminal tribunal, on investigation, prosecution, trial and enforcement of orders in serious offences and related civil matters. It provides for the widest range of international cooperation to be given and received by Mauritius, promptly and to the fullest extent possible, in investigations, prosecutions and other proceedings concerning serious offences.15
United Nations Security Council, Reply pursuant to Letter 3 from the UNSC Counter-Terrorism Committee, S/2004/159, 27 February 2004, p. 16 2 United Nations Security Council, Reply pursuant to Letter 3 from the UNSC Counter-Terrorism Committee, S/2004/159, 27 February 2004, p. 4 3 United Nations Security Council, Mauritius response to the questions contained in the letter from the Chairman of the Counter-Terrorism Committee dated 15 April 2002, S/2002/880, 1 August 2002, p. 8 4 United Nations Security Council, Mauritius response to the questions contained in the letter from the Chairman of the Counter-Terrorism Committee dated 15 April 2002, S/2002/880, 1 August 2002, p. 9 5 United Nations Security Council, Reply pursuant to Letter 3 from the UNSC Counter-Terrorism Committee, S/2004/159, 27 February 2004, p. 1314 6 United Nations Security Council, Reply pursuant to Letter 3 from the UNSC Counter-Terrorism Committee, S/2004/159, 27 February 2004, p. 56 7 United Nations Security Council, Reply pursuant to Letter 3 from the UNSC Counter-Terrorism Committee, S/2004/159, 27 February 2004, p. 4 8 United Nations Security Council, Reply pursuant to Letter 3 from the UNSC Counter-Terrorism Committee, S/2004/159, 27 February 2004, p. 4 9 United Nations Security Council, Reply pursuant to Letter 3 from the UNSC Counter-Terrorism Committee, S/2004/159, 27 February 2004, p. 9 10 United Nations Security Council, Mauritius response to the questions contained in the letter from the Chairman of the Counter-Terrorism Committee dated 15 April 2002, S/2002/880, 1 August 2002, p. 3 11 United Nations Security Council, Report of the Republic of Mauritius on the actions taken by the Government to implement Security Council Resolution 1373 (2001), S/2001/1286, 27 December 2001, p. 7 12 United Nations Security Council, Mauritius response to the questions contained in the letter from the Chairman of the Counter-Terrorism Committee dated 15 April 2002, S/2002/880, 1 August 2002, p. 7 13 United Nations Security Council, Reply pursuant to Letter 3 from the UNSC Counter-Terrorism Committee, S/2004/159, 27 February 2004, p. 9 14 United Nations Security Council, Mauritius response to the questions contained in the letter from the Chairman of the Counter-Terrorism Committee dated 30 October 2002, S/2003/260, 10 March 2003, p. 5 15 United Nations Security Council, Report of the Republic of Mauritius on the actions taken by the Government to implement Security Council Resolution 1373 (2001), S/2001/1286, 27 December 2001, p. 10
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