Conference on Litigating to Decriminalise Homosexuality in Commonwealth Africa

History

Mauritius is an island discovered by the Arabs, then visited by the Portuguese, first colonised by the Dutch which left the country due to severe cyclonic conditions that made life impossible in the country couple of centuries back.

In the early 1700’s, the country became a French colony and later became a British Colony in the years 1800’s till it got independence in 1968.

The country has a legal system which is a mixture of laws dating from the French colonisation and coupling with those from the British rule. After independence, the country laws changed with acts of parliament – a West ministerial parliamentary system. The Constitution is the Supreme Law of the country, with the highest local court being the Supreme Court. Appeal to the Privy Council can be made in case judgments by the Supreme Court are not accepted by parties involved in cases.

Section 250 of the Criminal Code

In Mauritius, there is no law per se which criminalises the identity of being a homosexual. However, as stated by the Equal Opportunities Commission Interim Report in 2012, homosexuality; i.e. Sodomy, is illegal. This is with regards to Section 250 of the Criminal Code of 1838 – the criminal code considered to be an act – which states that any person who is guilty of the crime of sodomy or bestiality shall be liable to penal servitude for a term not exceeding 5 years. However till date no homosexual person has been charged under this law.

Evolution of Sexual Orientation legislation and rights in Mauritius

In 2007, an attempt to introduce a Sexual Offences Bill which would provide for Sexual and Reproductive Health Rights, protection to the victims, specific and greater definition of rape and other such provisions for greater inclusiveness of SRHR was proposed. The draft bill did not mention sodomy and proposed for striking out Section 250 of the Criminal Code. The law did not pass through by fierce opposition from the Mouvement Socialist Mauricien (a small political party which had about just less than half of parliamentary seats in the opposition) due to no longer criminalising Sodomy and also, bringing down the age of consent for sex at tender ages which was considered to be violations of Rights of the Child.

In June 2007, the Law Reform Commission stated that Mauritius is signatory of the UNCCPR, CEDAW and CRC; and that article 17 of the UNCCPR makes for provision of right to privacy and protection under law. Also, it stated that the age of consent should be 18 instead of 16 due to the CRC.

In 2008, two laws passed through in Parliament; namely the Employment Rights Act and the Employment Relations Act, making provision for equal opportunities and non-discriminatory practices during recruitment, in workplaces, for working conditions and harassment with regards to various statuses (age, sex, religion.. including sexual orientation).

Again, in 2008, the Equal Opportunities Act was passed but not promulgated (promulgated in 2012). The act makes for provision for equal opportunities and non-discriminatory practices with regards to various statuses (including sexual orientation) and with regards to different services, institutions, companies.. both in private and public sector.

On June 2011, in Parliament, the Honourable Leader of the Opposition asked Private Notice Questions with regards to sexual orientation and gender identity. Both the Honourable Prime Minister and the Honourable Leader of the Opposition were on the same line of progressive legislations with regards to sexual orientation which led to the promulgation of the Equal Opportunities Act in 2012. The application of the EOA 2012 is that it is above any other law in the country. Also, the EOA 2012 makes provision for two structures: The Equal Opportunities Commission – a mediation and conciliation institution – and the Equal Opportunities Tribunal – a Court of Law in case mediation and conciliation fails. During the same session, the Honourable Leader of the Opposition inquired about the criminalisation of homosexuality through section 250 of the Criminal Code. Regarding which, the Honourable Prime Minister stated that Sections 3 and 16 of the Constitution speaks of fundamental Human Rights and Freedoms and Equal Protection under Law respectively.

On June 17th 2011, the UN Human Rights Council adopted the first ever UN resolution on the human rights of lesbian, gay, bisexual and transgender persons. This convention was ratified by Mauritius. However, despite this very interesting step taken by Mauritius, the country abstained from voting on a subsequent decree on the accreditation of the International Lesbian and Gay Alliance (ILGA) to the UN.

In 2012, the first case concerning sexual orientation was filed at the EOC with regards to the right to donate blood. The case was against the Mauritius Blood Donors Association and the Ministry of Health. Thus, the MBDA and the MoH are considered to be service providers thus, falling under the jurisdiction of the EOA 2012 if discrimination or anti-equal opportunities practices are involved. The case was won mid-2014 where homosexuals now have the right to donate blood. However, the ban remains on Men having anal or oral Sex with Men. Also, the interim report of the EOC in 2012 stated that the blood donation case raises a constitutional point with regards to Section 250 of the Criminal Code, and the EOC not being a court of law cannot interpret the law to the extent of its application and that advice of the State Law Office should be sought. Whether same has been done needs to be confirmed.

Discussion about possibilities of Litigation

The hierarchy and multi-level application of laws

The hierarchy of laws would logically mean that the Constitution is above all other laws. However, concerning certain fundamental human rights and freedoms, the provisions of the constitution are read with regards to other laws. This can lead one to believe that despite the Constitution being supreme, when it comes to application with regards to other laws, fundamental rights and freedoms are not absolute but relative and being relative and thus, being subjected to other laws, the logic can follow that if the other laws are discriminating and not providing for equal opportunities, the EOA 2012 takes the upper hand than the Constitution.

A well-illustrated example would be with regards to application of Section 250 of the Criminal Code. Consider a person engaging in homosexuality (anti-sodomy law with regards to sexual orientation). Naturally, if found guilty of the charge of homosexuality, the person would be sentenced to 5 years imprisonment thus prohibiting the person the Freedom to movement; trespassing over the person’s right to freedom and equal protection under law.. and right to privacy. Can the person apply the EOA 2012?

Given that an interpretation can be that the EOA 2012 can take the upper hand than the constitution if discrimination and non-equal opportunities principles are applied, the anti-sodomy law can be challenged with regards to Sexual Orientation since the EOA 2012 makes provision for services provided by the State, and activities of the State, by employees/public officers of the State; and the police, the police station, the court being instruments of the State and services provided for respect of law.

The wideness of application of the Constitution with regards to statuses

The Constitution with regards to fundamental human rights and freedoms does not mention sexual orientation in the different statuses of non-discrimination. However, a term ‘wholly or mostly’ is used, which can give meaning to two interpretations:

  1. That discrimination should completely be based only on one of the various statuses OR among the statuses, the discrimination should be at most from one, OR;
  2. That discrimination is from cited statuses only or mostly or more to these statuses; which then leaves the door open to other statuses including sexual orientation.

Protection under law

Section 282 of the Criminal Code does not provide for aggravating circumstances with regards to hate crimes based on sexual orientation. Can the EOA 2012 be applied to include sexual orientation and with regards to principles to equal protection under law.. since violations of human freedoms and dignity at police quarters with regards to sexual orientation are present.

Classification of population

In Mauritius, quizzically, the population is classified in an ethnic group, a religious group and the rest. The classification is as follows: Hindus and Muslims (religious groups), Chinese (ethnicity/race) and General Population (the rest). The UNHRC stated recently that individuals do not declare their religious/ethnical appurtenance during a general election. Thus, with regards to classification of the population, naturally and legally, religion should not be a problem or an argument during litigation; if any.

Conclusion

In Mauritius, should litigation be made through the EOA 2012? Should litigation be made through constitutional challenge? While the EOA 2012 poses lesser risks due to it being a mediation and conciliation preliminary step, but with good chances of success, it can be one of the most preferred strategies for national level. Yet, if Mauritius is to look for a regional strategy of Commonwealth, then the regional approach and the Privy Council is the best way forward.

FOKEERBUX Najeeb A.

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Others about us

  • Eric Whitaker (U.S. Department of State)

    I find the youngsters of Young Queer Alliance very creative and I welcome this shelter project in Mauritius. Congratulations for this beautiful project that I will surely narrate at Washington. 

  • Saarvesh Doorjean (Peer Outreach, YQA)

    I am so proud of us. I have learnt many things and got to know many people working with the Young Queer Alliance. A big thank you and the team at YQA.

  • Aldo Dell'Ariccia (European Union)

    I took the opportunity to comment the initiative of the Young Queer Alliance for launching a national campaign theme "Equality for All", and thank the members of the association for their determination and dynamism.

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