This 13th September 2021, Roshi Bhadain swore an affidavit of 73 pages requesting the Supreme Court for leave for Judicial Review against the Britam Report. The application was made against the three commissioners of the Britam Commission of Inquiry, namely; the ex-judge Bushan Domah, Mr Sattar Hajee Abdoula and Mr Imrith Ramtohul (herein referred together as the ‘respondents’). He intends for the whole report to be declared null and void.
As a refresher, the matter concerns the sale of Britam Kenya shares as part of the assets of the ex-BAI Group that collapsed in 2015. BAI owned 23.3% of the shares in Britam; which were evaluated at around Rs 4.3 billion in 2015 but were later sold for Rs 2.5 billion in 2016. The sale was subject to an investigation by the Britam Commission of Inquiry which was set up in 2017, with emphasis on the disparity of the alleged evaluation and actual selling price.
The Commission was composed of the Chairman, the ex-judge Bushan Domah and two assessors, namely, Mr Sattar Hajee Abdoula and Imrith Ramtohul. The Britam Report containing the findings of the Commission was released on 27th July 2021 and was heavily targeting the leader of the Reform Party and ex-minister, Roshi Bhadain.
By way of an affidavit on 13th September 2021, Roshi Bhadain maintained that the Britam report was tainted with bias and irrationality, unfairness and unreasonableness. It is alleged that the respondents were in breach of the Commission of Inquiry Act inasmuch as they failed to make an impartial inquiry and full and faithful inquiry and therefore, the report was to be declared null and void.
Issues of Appearance of Bias and Impartiality
The first ground set out in the affidavit focused on the issue of impartiality.
The leader of the Reform Party explained in the affidavit that he raised, in good faith, the issue of “appearance of bias” to the Commission in relation to the two Commissioners prior to the investigation being completed. The principle of “appearance of bias” considers whether there is a real possibility of bias from the perspective “of a fair-minded and informed observer.”
The ex-judge Domah was a policy holder of the single premium ‘Super Cash Back Gold’ policy of the ex-BAI Group, who was to be refunded for his investment. As for Mr Sattar Hajee Abdoula, he was appointed as an ‘Administrator’ by the directors of BAI in 2015. Due to the enactment of the Insurance (Amendment) Act which created the position of “Special Administrator”, he was ousted from his position. Consequently, he made a claim of Rs 26.2 million for the works he had completed for the directors of BAI, which was initially rejected by the FSC and Roshi Bhadain (then minister).
For these reasons, it is contended in the affidavit that both Commissioners were tainted with “appearance of bias”. It is further stated that the bias of the two Commissioners was apparent throughout the report.
Moreover, Roshi Bhadain argues that the statement within the report that he would have ‘earnt the beneficent warmth of the process rather than the scalding heat thereof’ was evidence of the bias against him.
Issue of Full and Faithful Inquiry
For the second ground, the leader of the Reform Party argued that the respondents failed to make a full and faithful inquiry. The ground is expounded through examples of materials disregarding evidences along with the manipulation and misleading use of information and the irrationality of conclusions made.
The affidavit makes it clear that, contrary to the findings of the report, there was never a firm offer of Rs 4.3 billion.
However, several material evidences in relation to the Rs 4.3 billion were disregarded, inter alia, evidences in a letter from the Government of Kenya, statement from Mr. Dev Manraj (senior officer of the Ministry of Finance and Economic Development [MOFED]) that the Kenyan did not make a firm offer and statement from Mr. Lutchmeeparsad (the then PS of MOFED) referring to the offer of Rs 4.3 billion as a mere probability.
Other anomalies pointed out in the affidavit is the alleged distortion and manipulation of evidences.
In one instance, it is argued that the contents of an email were partly quoted so as to justify the alleged conclusion of an alleged offer of Rs 4.3 billion. In another instance, a parliamentary question was presented in a misleading manner. The said question was asked by Hon. Paul Berenger to Hon. Lutchmeenaraidoo in relation whether there was a firm offer of Rs 4 billion. However, the report made it seem that the question was directed to and answered by Roshi Bhadain. The latter contends that “the respondents have distorted the facts to fit a predetermined conclusion…”
What’s Next?
The Affidavit was submitted in the Supreme Court on 13th September 2021. The hearing has been scheduled for 20th September 2021. It remains to be seen whether the Supreme Court will grant leave for Judicial Review as demanded by the Leader of the Reform Party.
