04 October 2023 is a historic day for the human rights of Lesbian, Gay, Bisexual, Trans and Queer (LGBTQ) people in Mauritius as we no longer need to live with the constant fear of being criminalised for being LGBTQ.
In the cases of Ah-Seek v/s the State of Mauritius and Fokeerbux & Ors. v/s the State of Mauritius in the presence of the Director of Public Prosecutions and the Commissioner of Police, the Supreme Court of Mauritius declared “that section 250(1) of the Criminal Code is unconstitutional and violates section 16 of the Constitution in so far as it prohibits consensual acts of sodomy between male adults in private and should accordingly be read so as to exclude such consensual acts from the ambit of section 250(1).”
Fokeerbux & Ors. v/s the State of Mauritius in the presence of the Director of Public Prosecutions and the Commissioner of Police
On the 06 September 2019, four young LGBTQ Mauritians, namely Najeeb Ahmad Fokeerbux, Vipine Aubeeluck, Imesh Fallee and Jürgen Soocramanien Lasavanne who come from all parts of Mauritian society, have approached the Supreme Court of Mauritius for leave to seek constitutional redress on the basis that Section 250 (1) of the Criminal Code Act of 1838 (as amended) violates their fundamental rights and freedom and is unconstitutional.
The Plaintiffs, who come from Hindu, Christian and Muslim backgrounds, are all members of the Young Queer Alliance, a youth-led NGO dedicated to advancing human rights of LGBTQ people in Mauritius. Three of the four plaintiffs are the first public officers to have openly declared that they are homosexuals. The fourth plaintiff is an artist.
The Plaintiffs are represented before the Supreme Court on a pro-bono basis by the team of lawyers of Dentons (Mauritius) LLP, comprising Me. Priscilla Balgobin Bhoyrul together with Me. Emmanuel Luchmun, instructed by Attorney B. Ramlochund and by Me. Sandy Bhaganooa, of the Franco-Mauritian Law Chambers LCMB et Associés, based in Paris and Mauritius.
Ah-Seek v/s the State of Mauritius
On 25 October 2019, Abdool Ridwan Firaas Ah Seek, a 29-year-old activist, filed a new case before the Supreme Court challenging the constitutionality of Section 250 of the Mauritian Penal Code.
Mr Ah Seek was supported in his endeavour by the Collectif Arc-En-Ciel (CAEC), working to uphold the human rights of LGBTQ people.
Abdool Ridwan Firaas Ah Seek was represented by a legal team comprising Gavin Glover SC, Yanilla Moonshiram, barrister-at-law, and Komadhi Mardemootoo, attorney-at-law, with support from the Human Dignity Trust, Tim Otty KC (founder of the Human Dignity Trust), Isabel Buchanan and international law firm Herbert Smith Freehills.
Section 16 of the Constitution
In its reasoning, the Supreme Court defined “sex” as including “sexual orientation” by drawing from different cases including Toonen v Australia (1992), Vriend v Alberta (1998), Orozco v The Attorney General of Belize (2010), Nevtej Singh Johar & Ors v Union of India thr. Secretary Ministry of Law and Justice (2018) and Lesweletse Motshidiemang v Attorney General (2019).
The Supreme Court also reiterated that the Constitution is a living document and must be given a generous and purposive interpretation. Therefore, the Supreme Court found that Mauritius has acceded to the International Covenant on Civil and Political Rights (ICCPR) and that it has accepted to adhere to international norms and standards regarding the fundamental rights and freedoms the ICCPR provides for and that interpreting “sex” as including “sexual orientation” in section 16 of the Constitution would be in conformity with the standard canon of constitutional interpretation.
The Supreme Court further reasoned that since the State of Mauritius has itself recognised through the enactment of the Equal Opportunities Act, the Workers’ Rights Act and the Employment Relations Act that it is unfair to discriminate on the ground of sexual orientation in the sphere of certain activities, there is no stronger evidence that it is illegitimate to discriminate against persons on the ground of their sexual orientation by reference to the expression of the most private and intimate aspects of their identity, which is the manner in which they choose to have sexual intercourse.
Human Rights Resolutions
In its Judgment concerning Fokeerbux & Ors. v/s the State of Mauritius in the presence of the Director of Public Prosecutions and the Commissioner of Police, the Supreme Court also highlighted the following evidence provided by the State of Mauritius and reiterated that the word “sex” in section 16 of the Constitution should be interpreted as including “sexual orientation”: (a) Resolution on “Human rights, sexual orientation and gender identity” adopted on 17 June 2011 by the Human Rights Council to which Mauritius voted in favour of; (b) the Statement made on 07 November 2018 by the Attorney-General and Minister of Justice, Human Rights and Institutional Reforms, Hon. Maneesh Gobin during the 3rd Universal Periodic Review and another Statement made on 14-15 March 2019; (c) the representative of the Clerk of the National Assembly with regard to the Sexual Offences Bill; and (d) the reply that the Attorney-General’s Office was finalising a revised version of the Sexual Offences Bill which would be re-introduced in the National Assembly.
Prevention of sexual violence
Although the Judgments do not refer to it, the State of Mauritius pleaded for the just and considerate ears of the Supreme Court to protect vulnerable people, particularly including women, children and disabled people, from abuses which may arise from striking down Section 250(1). It is to be noted that the Judgments of the Supreme Court, in effect, protect these vulnerable groups against sexual violence.
Broad community support
The cases saw robust support from local LGBTQ people, allies, human rights activists, embassies, donor agencies, development partners including but not limited to the Association VISA-G, RekonekT, Gender Links, Kolektif Drwa Imin, Dentons LLP, EU Delegation in Mauritius, the Canada Fund for Local Initiatives, the Equal Rights in Action / National Democratic Institute, the Love Honor Cherish Foundation, The Other Foundation, Kaleidoscope Trust, the Planet Romeo Foundation, the Human Dignity Trust, the US Embassy in Mauritius, the British High Commission, the Lesbian Gay Bisexual Trans and Intersex Association (ILGA World), Pan-Africa ILGA, the Human Rights Watch and GLAAD among others.
Young Queer Alliance