Read judgment
Given controversial anti-gay laws in some parts of Africa, and the rationale for those laws, it’s perhaps important to start off by spelling out what this significant new judgment, delivered last week by the supreme court of Mauritius, does not do.
It does not permit sex with children; it does not permit bestiality; it does not permit gay rape, or sex that isn’t consensual; it does not permit sex in public. All these actions are still unlawful.
In short, its only change is to decriminalise gay sex, between consenting adults, in private. More specifically, the judgment declares that section 250(1) of the criminal code of Mauritius is unconstitutional because it discriminates against gay men.
Homophobia
The judgment was written in response to an action brought by Abdool Ah Seek, a gay Mauritian man, together with a local non-government association that campaigns against all forms of homophobia, and that was admitted as an interested party.
Seek argued that the offence of sodomy, created by section 250, was unconstitutional because it violates various provisions of the constitution, and that section 250 (1) should be declared null and void.
The state’s response to Seek’s case was particularly interesting. It turns out that Mauritius has already enacted a number of legal changes to make sure that gay people aren’t discriminated against in other parts of social life. These changed laws now prohibit discrimination in employment, education, and the provision of goods and services, among others. Further, said the state in its response to the application, it also has plans to amend the criminal code to allow ‘consensual sexual activities between members of the same sex’, but the time isn’t quite right to do so at this stage.
Sensitive issue
Counsel for the government denied ‘insensitivity’ to the concerns of the gay community about the criminal code. The legal team said that amendment of the penal code to allow for ‘consensual sexual activities between members of the same sex’ was on its agenda. But it was a ‘highly sensitive issue’ in Mauritius. Envisaged changes to the penal code could thus be introduced in parliament only ‘when the necessary conditions favourable to its adoption’ were present.
Seek said he had brought the application because he is a homosexual and part of the LGBT community. He was directly impacted by section 250 (1) of the criminal code, ‘which criminalises an act committed in private between two consenting male adults.’ Summarising his case, the judges note that, according to Seek, while being homosexual is not in itself illegal in Mauritius, ‘yet the act of sodomy, which is an expression of love between two men, is an offence.’
Seek said that he realised he was gay from the time he was 13. He had ‘tried to behave like a heterosexual’ but quickly discovered that his true nature was homosexual. He has a partner with whom he has lived for the past 10 years.
Liberty jeopardised
‘Although the acts of sexual intimacy between him and his partner are consensual and conducted in private, he lives in constant fear of being arrested’, wrote the judges. He was a law-abiding citizen but his liberty was jeopardised because while the constitution guaranteed ‘the right to be who he is’, yet under section 250 (1) he is considered a criminal.
That law ‘enables the police to enter his house on the mere suspicion that two adult homosexual men may be engaged … in consensual sexual intercourse in private. If the police were to investigate him for an alleged act of sodomy, the police would be empowered, by virtue of section 250 (1) to investigate intimate aspects of his private life and an intrusive, undignified and humiliating search could be carried out on his person.’
Sexual orientation
In response, the state didn’t put up any evidence, and the judges said that while Seek claimed that several constitutional principles were infringed by the disputed sections, the key question for them to decide was whether section 250 (1) violated the constitution right to protection from discrimination.
This, in turn, meant they had to consider whether the constitutional right not to be discriminated against on the basis of ‘sex’ should be read as including the right not to be discriminated against on the basis of ‘sexual orientation’.
Quoting from international law and related decisions made by the courts of several other countries including South Africa and Botswana, the Mauritian judges concluded that, indeed, sex should be read as including sexual orientation. They said it was a ‘well settled principle’ that the constitution was a living document that had to be given a ‘generous and purposive interpretation, especially when it comes to the interpretation of provisions which enshrine fundamental rights’.
British colony
While the government had undertaken in international human rights forums to amend section 250 (1), it had so far failed to do so. Given that failing, Seek had asked the court to act and enforce his fundamental rights. ‘As guardian of the constitution, the supreme court has the duty to ensure that any other law is consistent with the constitution,’ and the court’s responsibility to do so could not be abdicated, said the judges.
They then explained the background to the disputed section. It was not introduced in Mauritius ‘to reflect any indigenous Mauritian values, but was inherited as part of our colonial history from Britain. Its enactment was not the expression of domestic democratic will but was a course imposed on Mauritius and other colonies by British rule.
Mauritius became a British colony in 1810, and section 250, in its present version, was promulgated in 1898. But while homosexual consensual acts in private were decriminalised in England in 1967, section 250 remained on the statute book of Mauritius when it became independent in 1968.’
Secular state
The court found that section 250 (1) was discriminatory against Seek ‘and other homosexual men on the basis of their sexual orientation. It proscribes in effect the only mode of sexual expression available to [Seek]. It has the effect of criminalising [his] sexual orientation which is an innate attribute of his identity and over which he has no choice. We, however are of the view that [his] choice of a sexual partner cannot be the basis of discrimination and it is not for the state to make such a choice for him.’
The state hadn’t argued that there were legitimate state interests like national security to keep the disputed section, apart from its claim that this wasn’t the right time to change the law because it was a ‘highly sensitive issue’, given the ‘delicate socio-cultural and religious fabric of Mauritian society’.
Against that argument, said the court, ‘we simply wish to point out that Mauritius is a secular state’ and that the constitution provides for freedom of conscience, which includes freedom of thought and of religion. Moreover, for an interference with constitutional rights to be justifiable in a democratic society, it had to be for a legitimate purpose. And yet, in this case, the state did not point to any such purpose.
Worthy of protection
The fact that the state had already passed laws to prohibit discrimination on the grounds of sexual orientation meant that it recognised that such discrimination was present in society and that ‘it is a ground worthy of protection’. And while it was true that these changed laws aimed to eliminate discrimination against gay people, the laws only dealt with a limited sphere of activities ‘and are patently no answer to [Seek’s] claim which concerns the discriminatory character of section 250 (1) in the sphere of his sexual life.’
In conclusion, the judges said that since they had found that the section violated the constitutional right to be discriminated against, there was no need to consider the other constitutional rights that Seek alleged had been violated by this part of the penal code.
Positive trend
The judgment was hailed, not only in Mauritius, but also by international human rights groups including various UN bodies.
Dr Mandeep Dhaliwal, director of HIV and health for the UN Development Programme (UNDP) commented, ‘This is an important victory for human rights, dignity and public health, as there is strong evidence that removing criminal laws on consensual adult homosexual sex results in reduced new HIV infections and increased access to prevention and treatment.’
The UNDP added, ‘While some countries in Africa have recently introduced bills to exacerbate criminal penalties against LGBTI+ people, the broad trend is positive. Mauritius has now joined a growing number of countries such as Angola, Botswana, Cape Verde, Gabon, Guinea-Bissau, Lesotho, Mozambique, Sao Tome and Principe, Seychelles and South Africa in repealing anti-LGBTI+ laws, while many other countries have never criminalized homosexuality.’
