AFRINIC has been in prolonged legal disputes with Cloud Innovation Ltd, a company that deals with providing internet services. According to available information, “Cloud Innovation Ltd was a prominent and significant member of AFRINIC until their membership was terminated following a dispute over IP address allocations, which escalated into a prolonged legal and governance crisis for AFRINIC, with Cloud Innovation initiating legal processes to place AFRINIC under receivership and eventually supporting its winding up”.

The ongoing legal disputes involving AFRINIC concern governance issues. AFRINIC was placed in receivership. The Board of AFRINIC was not properly constituted, and the receiver was mandated with ensuring proper elections for the constitution of the board. In sum, AFRINIC has been the subject of several litigations.

A week after the receiver announced the new elections, the government of Mauritius issued an extraordinary notice in the Government Gazette that made AFRINIC a “declared company” under section 230 of the Companies Act. Under that section, when the Minister responsible for corporate affairs is satisfied that, for the protection of the public, the shareholders, or creditors of a company, it is desirable that the affairs of the company should be investigated; it is in the public interest that the affairs of a company should be investigated; or in the case of a foreign company, the appropriate authority of another country has requested that a designation be made under this section in respect of the company, he may, by notice published in the Gazette, designate the company or foreign company to be a declared company.

Once a company has been declared a company, the Registrar of Companies shall require an inspector to investigate the affairs of the company and to make a report on his investigation in such form and manner as the Registrar may direct. A “declaration suspends any existing court cases involving the declared company, and makes it hard to launch new ones, and initiates a governmentcommissioned investigation into the company’s affairs”.

Proclamation No. 10 of 2025 was published in the Legal Supplement of the Government Gazette on 25 July 2025. In the Proclamation, the President of the Republic states that AFRINIC has been the object of a spate of litigation, leading to it being placed in receivership in or about 2024. AFRINIC is now the object of a compulsory windingup petition, and the process leading to the company being placed in receivership and now being the object of a compulsory windingup petition is legally questionable and could have been the result of a misuse of the court process. This state of affairs has caused, and is continuing to cause, serious reputational damage to Mauritius as a jurisdiction internationally.

By virtue of section 229 of the Companies Act, an inspector designated or appointed under section 231(1) of the Act shall be either a qualified auditor of at least five years’ post-qualification experience or a person who holds or has held judicial office. According to the presidential Proclamation, as the matter involves complex questions of law and potential misuse of the court process, an appropriate inspector ought to be a sitting Judge of the Supreme Court. It will be noticed that emphasis is laid on sitting judge.

By appointing Judge Ohsan-Bellepeau as inspector, the President states that, having regard to his authority to appoint Puisne Judges under section 77(3) of the Constitution, he was releasing Judge Ohsan-Bellepeau from all judicial duties until Tuesday 30 September 2025 to effectively discharge his duties as inspector. The President also referred to section 7(3) of the Courts Act to authorise Justice Ohsan-Bellepeau to act as inspector. In fact, that section provides that no judge can undertake any work for remuneration without the authorisation of the President of the Republic.

Was the President right in invoking section 77(3) to release a judge from judicial duties on his volition on the ground that he has the power to appoint judges under that section? Section 77(3) provides that “the Puisne Judges shall be appointed by the President, acting in accordance with the advice of the Judicial and Legal Service Commission”. The Commission consists of the Chief Justice as chairperson, the Senior Puisne Judge, another Judge, and the Chairperson of the Public Service Commission. The President has no power to appoint judges on his own volition. He must act in accordance with the advice of the Commission.

Similarly, he cannot release a judge from his judicial duties without the advice or recommendation of the Commission, nor can he remove a judge from office without the procedure provided in the Constitution being complied with. To remove a judge, the Commission sends a recommendation to the President, who then appoints a tribunal to investigate the matter. If removal is recommended, the President suspends the judge, and the Judicial Committee of the Privy Council, as the final court of appeal, receives the matter for a decision on whether to remove the judge from office.

By relying on section 77(3) of the Constitution and acting without consulting the Judicial and Legal Service Commission, the President of the Republic, with due respect to him, acted in breach of the Constitution. It is the duty of the President, by virtue of section 28 of the Constitution, to uphold and defend the Constitution, and ensure that the institutions of democracy and the rule of law are protected; the fundamental rights of all are respected; and the unity of the diverse Mauritian nation is maintained and strengthened.

Some views have been expressed that the appointment of Judge Bellepeau was a violation of the concept of separation of powers between the Executive and the Judiciary. The principle of separation of powers refers to the constitutional demarcation of the three fundamental powers of government. As one American Judge put it, separation of powers means that the “Constitution has blocked, out with deft strokes and in bold lines, allotment of power to the executive, the legislative and the judicial departments of the government”. By virtue of the Constitution, only the Judicial and Legal Service Commission is mandated to recommend the appointment and removal of judges. This is a constitutional power. The Executive has no power in this respect except on the final decision of removal of a judge.

The Proclamation reads: “Having regard to my authority to appoint Puisne Judges under section 77(3) of the Constitution, I should forthwith release Honourable N. F. Ohsan-Bellepeau, Puisne Judge, from all judicial duties until Tuesday 30 September 2025 to effectively discharge his duties as inspector.” The Proclamation should instead have read: “Having regard to my authority to appoint Puisne Judges under section 77(3) of the Constitution, and after consultation with the Judicial and Legal Service Commission…” Even if it is considered that it was not a violation of the separation of powers, it was certainly a lack of deference towards the Commission.

Judge Ohsan-Bellepeau rightfully withdrew as the designated inspector on AFRINIC. He did that after an interim injunction was issued to halt all inspection. When the matter was made returnable, he withdrew in the name of the integrity of the judiciary. He should have realised when his appointment was made that the President acted in breach of the Constitution.