The case was brought by Abdool Ridwan (Ryan) Firaas Ah Seek with the aim of challenging the constitutionality of Section 250 of the Mauritian Criminal Code, a British colonial-era law dating back to 1838. The provision criminalised private sexual conduct between consenting males, with anyone convicted facing a maximum penalty of up to five years’ imprisonment.
In outlining its decision, the Court highlighted that its purpose "was to protect the rights of minorities and others who cannot protect their rights adequately through the democratic process”. The Court then found that "the fact remains that the threat of arrest, prosecution and conviction hangs like the Sword of Damocles over the heads of homosexual men [and] taking into consideration all of the above, we find that section 250(1) of the Criminal Code is discriminatory."
The State had averred that the Court should not intervene and should leave it to Parliament to pass amending legislation when there is general consensus and favourable public opinion on what it said is a highly sensitive issue in Mauritius. However, the Court found that “the State itself has enacted legislation to provide for protection against discrimination on the ground of sexual orientation [which] demonstrates that the State recognises that such discrimination is present in our society and that it is a ground worthy of protection”.
Originally filed at the Supreme Court in 2019, the case has been led by the Human Dignity Trust, with Herbert Smith Freehills providing pro bono integral legal support in the management of the case from its inception. This is part of Herbert Smith Freehills’ ongoing work with the Human Dignity Trust spanning well over a decade as they seek to decriminalise private, same-sex, consensual sexual activity in the 65 countries where it remains a criminal offence.
"This really is a momentous judgement that will make a huge and important difference to the daily lives of LGBTQIA+ Mauritians. It shines a bright spotlight on the progress that still needs to be made in support of the LGBTQIA+ community and is a step in the right direction towards a more inclusive global society," commented, John Whiteoak, partner at Herbert Smith Freehills.
"This case is a rare example where we can utilise our skills and experience as lawyers to create real, significant change and make a long term positive social impact for society as a whole,” Whiteoak added. “While there has been considerable progress in recent years on LGBT+ rights, there are 65 jurisdictions still criminalising private, same-sex, consensual sexual activity (albeit one less than yesterday) and 12 jurisdictions which can or do impose the death penalty for same-sex intimacy."
The full judgement can be seen here.
“The Supreme Court today overturned an obsolete colonial law and demonstrated its commitment to non-discrimination and leaving no-one behind,” said Lisa Singh, the United Nations Resident Coordinator in Mauritius. “The UN in Mauritius and internationally welcomes the decision of Mauritius to join the growing list of African countries protecting the human rights of everyone, including lesbian, gay, bisexual, transgender and intersex (LGBTI+) people.”
This case goes against the trend in some areas of Africa which has seen countries like Uganda, Kenya, Ghana, Tanzania and South Sudan enacting or proposing new harsh laws that target or criminalise the LGBT+ community. As things stand, homosexuality is outlawed in 32 African countries.
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