04 October 2023 shall be forever engraved in the glittery and colourful pages of queer history for the Supreme Court of Mauritius decriminalised homosexuality after plaints were lodged challenging the constitutionality of Section 250(1) of the Criminal Code 1938.
Alas, often, as queer people and those whose work are grounded in social justice and societal change, overlook two, or maybe three, important aspects of this moment – first, that we were able to reach to this milestone because of a groundwork which started decades before, globally and locally; second, that the four years leading to the Supreme Court judgment was marked with a series of actions to which, the Court and the population may be oblivious; and third, the state of queer movements beyond the court win.
This said, to be fair, how can one know if one has not been involved or the information has not been made available? Two years after the decrim, it has remained a struggle for me, in being politically correct, in showing restraint, in letting institutions remaining unscathed – but the healing cannot happen for those involved and justice would not be complete if I chose to remain silent. With open heart, and minimal restraint.
Afterall, what are institutions and movements if not the people who make them? Power is in owning our narratives, and there is never a unique perspective to queer history. This has been the consistency in social change.
The small and big giants whose shoulders we stand upon
04 October 2023 would not have come in Mauritius had the queer movement not grown globally and had the legal landscape of human rights not evolved to be truly universal. Change in one society at one point in time, echoed across eons to reach Mauritius in 2023 and will continue reverbing the world until change is absolute. Society is cyclical, social change happens in patterns, the butterfly effect is real.
That said, locally, from my various engagements and encounters, and memory, queer rights in Mauritius reached this milestone, because queer people chose to be visible and a series of events laid the groundwork for this change.
To list, the late “King of the Creoles” (Gaëtan Duval) who was courageous enough to acknowledge his known homosexuality, the “sware bizar”; the organising of the trans community (including Mandel, Roland, late Madonne, among others) before 1995 in providing community support for gay and bisexual men, heterosexual men and trans folks alike with the support of the Ministry of Health to combat HIV/AIDS; the struggle for inclusion of the term ‘sex’ as a status for constitutional protection by Shirin Aumeeruddy-Cziffra and other women with the constitutional reforms in the 1990’s; between 1995 to 2000 with Joceline Minerve, who was a member of parliament and remaining very influential among the local kreole community who put the first parliamentary question on expanding HIV/AIDS services; the creation of PILS, CAEC and the YQA; the failed attempt by Rama Valayden and the Ramgoolam-led Government to come forward with a Sexual Offences Bill which would have amongst others decriminalised homosexuality as far back as in 2007 – a year in which Mauritius witnessed the biggest pride march at the Plaza in Rose-Hill with some 1,500 participants; in 2008 with Dr. Vasant Bunwaree the then Minister of Labour introducing the Employment Relations Bill and the Employment Rights Bill which included the term ‘sexual orientation’ for the first time and which were both enacted by parliament; the passing of the Equal Opportunities Act providing for equal opportunities and preventing discrimination amongst others on grounds of ‘sexual orientation’; efforts by the National AIDS Secretariat with Dr. Amita Pathack and her fabulous team (Sarah, Sashi, Monica, etc) to empower civil society in HIV/AIDS programming which included advocacy and community systems strengthening including for inclusion of queer people; the community efforts undertaken by late Dr Said Kinnoo (a dear queer friend) and his partner Chris in linking up with queer folks countrywide; various United Nations resolutions supported by Mauritius in relation to sexual orientation and gender identity between 2005 – 2014; in 2011 with the Mouvement Militant Mauricien stating their support for LGBT rights as human rights in Parliament and the ensuing changes in the constitution of the party, changes which were following an internal paper on equal opportunities prepared by Jenny Mootealloo and the changes in the party’s constitution led by Steven Obeegadoo to include sexual orientation (during those years, I was an executive of the youth wing advocating for the human rights of LGBTQIA+ people); and the resolution of the first case of discrimination on the basis of sexual orientation which I entered at the Equal Opportunities Commission in 2012, which is a quasi-judicial body, with regard to lifting the blood donation ban for homosexual and bisexual men – a case greatly supported within the Commission by Danisha Sornum and Brian Glover.
There would also have been engagements with Save the Children, learning about the Process Oriented Approach and Comprehensive Sexuality Education which we later rolled out in Mauritius empowering queer people year in year out; the exposure with the Gala Queer Archive which broadened my perspectives about queer liberation; the early engagements in decrim conferences in Durban, Pretoria, Johannesburg, and around; the press, especially l’Express; the European Union, the US Embassy and the British High Commission which were staunch supporters of moving forward queer rights and did not flinch a micromillimetre in their foreign policy to advocate with Mauritian Governments while altogether providing safety within their spaces to organise and funding for organisations to implement projects; and Minister Alain Wong who made it a must to attend activities organised by the Young Queer Alliance and lend his voice to our cause.
We have indeed been standing on shoulders of small giants and big giants.
The years leading to the Supreme Court judgment of 04 October 2023
The first community engagements as organisations around decrim started in 2012 perhaps or 2014 and central to it was the Human Dignity Trust (HDT). I remember that moment, where I met with late Jonathan Cooper who established together with Tim Otty, the HDT. It was during that time that I met with respectful figures leading the queer struggle in Africa, Sibongile, Lorna, Adrian, to name a few. Lorna Dias, a fine Kenyan lady, remains the one who continues to mark me with the strength she empowers in stillness and her loudness in silence. Over the days we engaged on decrim, for me, it was a promise for advancing LGBTQIA+ rights home, in Mauritius. Innocence at its best during my younger years, we returned from lunch one evening, and Jonathan stated: “Najeeb, you’ll be our plaintiff in Mauritius.”
We were to stay up late that night, myself, Lorna and other queer African folks drinking wine, and Jonathan made the barman open the bar (which was close by that time as it was past 23:00 hrs) and offered us a bottle of wine on the occasion. Lorna put me up to a challenge of drinking wine. The team regrouped in one of our hotel’s rooms, and we were up for a wine drinking challenge. The first glass, I swallowed all in one go – I am very tolerant to alcohol. I was puzzled looking at Lorna at that time. She said, “No my boy. This is not how we do it here. You sip and sip and sip till the early hours of the morning.” And we sipped and talked and sipped and talked, nothing mundane, strategy, how to go about with decrim and they warned me about moving forward with HDT, that Africa needs to own its struggles, that if HDT wishes to work within our communities, it should be according to our terms. I remained in my senses throughout the hours, it was around 04:00 hrs the next morning that our conversations came to an end. I upheld the drinking competition and went to bed. Needless to say, that we all woke up late, and although not drunk, my head aching and my tongue heavy and purple from the wine. That day, as we were made to reflect on moving forward, Lorna stood up, from the far back of the room where she was sitting, glided in an eye bat to the front of the room and drew on the board “panya route” this is how we proceed until we are ready to strike. I have to say, I have stopped taking alcoholic drinks for years now.
The conference empowered me but left me ever so confused. HDT did not offer outright any support for us to continue our struggles in Mauritius. The conversations stopped both with the YQA and CAEC for years, until, around 2016/2017 I received death threats at work for being homosexual. Those were in the local papers and HDT reached out, enquiring on my safety and altogether relaunching the conversation on decrim.
After a few years, I was more mature – though still too honest in believing in movements working together – and told HDT that I would be glad if we could also reach to CAEC and PILS and Gender Links with regard to the decrim, that women’s organisations should be allies to queer movements. The conversations happened, one thing led to another, a first meeting with regional activists was held at Labourdonnais Hotel, exploring various dimensions to decrim, and YQA, CAEC and PILS were on board. For me, each conversation and meeting was a step forward towards the Supreme Court.
Next was to have more focused preparation for Mauritius. The timelines were already set. We went over a few names as to who would be plaintiffs, myself, Nicolas, etc. at the end only I agreed. Our next meeting, was around Le Suffren/Labourdonnais again, communication, safety matrices, among others and most importantly litigation. Which constitutional avenues to challenge. Achwin and Pauline were still at CAEC at that time, and when Achwin asked whether it would be ok if CAEC handles the organising here and there, I readily agreed preferring to be focused on the case. They looked for a lawyer, Jean Claude Bibi, and we had another potential plaintiff, Henry Coombes, an elderly queer artist, perfect to showcase that age does not determine queerness.
At that time, we also had, on the sidelines of the decrim strategy an advocacy strategy for legislative change, an awareness raising strategy at the University of Mauritius and a strategy for working with those from the legal profession to engage on the issue of decrim.
Grazia Carreccia, who was then from HDT, was the one bringing much to the table, and doing strides in making things happening. One of the days she told me that she had a talk with the Attorney General, Maneesh Gobin, who is agreeable to meet at Le Suffren if I come along. We had an honest conversation with Maneesh, who said that legislative changes would be challenging but for me to lodge the case in the Supreme Court for the decrim and he will give the necessary support.
Between the meeting with the Attorney General and the Court action, unfortunately, in 2018, Pride in Port Louis was to the detriment of the safety of Queer people. Pauline left CAEC shouldering the blame. I was there at the time of her selection, and she was never a proper fit for our fight. Achwin reached out again for the decrim and we had a last meeting with HDT and our lawyers at Palms Hotel in Quatre Bornes.
Amidst the planning and final arrangements, Jean Claude was very disturbed with HDT trying to ‘own’ the efforts. For Jean Claude, it should not be because of HDT’s money that Mauritian lawyers had to be bullied and cornered, and that plaintiffs’ narratives be controlled. Discussions were heated. Likewise, after my first engagements on decrim, I remained confused, that despite so much preparation and goodwill, human nature does not change. While for me it was about community and putting a case in court to advance rights, for HDT it was about them driving the effort, for CAEC it was about funding received as this was a project. Never was I even aware that I was a “Key Performance Indicator” in this whole process.
Jean Claude pulled out. The efforts with HDT came to a halt, again.
Jean Claude’s daughter lived in the States. Together with Jean Marie Leclezio, we had a trip to the States in view of the decrim supported by Thomas Watson from the Love, Honor, Cherish foundation. Thomas was genuine. He facilitated us greatly, hosting us at Harvard, facilitated meeting at the University of Columbia with the Indian Lawyers who were in the decrim case – Menaka Guruswamy and Arundhati Katju; meeting at the UN with Fabrice Houdart, meeting with Sean Strub who’s book remains an inspiration for me for the AIDS struggle and queer rights; meeting with Evans Wolfson from Freedom to Marry and also, meeting with folks from the American Civil Liberties Union. These meetings were personally very enriching.
New York is New York, but for me, it remained a culture shock, not really to my liking and too much concrete. The poverty that oozed every kilometre pained me – the young girl who sat on the floor at the doorsteps of a huge bank holding a card on which was written “I am 21 years old. I am homeless. Do you have a job for me?”, or the young person, maybe 16 years old, playing a guitar in the metro station to earn a living, or the maid who cleaned my room at Harvard, who ended up late, and but could not bring the food cooked home, food which were discarded instead of feeding people.
As the few days New York discovery trip was coming to an end, Thomas had a conversation with myself moving forward. That night, we walked the streets of New York, and between the bars, Stonewall Inn touched my heart. It was youthful, it was queer, it was vibing. While different, it had not lost its identity, since the riots. The vibe remained same. The New York trip reflected a stark difference between British Colonialism and American Liberties – that HDT continued to colonise queer struggles while in the States, grassroots movements, and freedom fighters had cultures to which I adhere.
Returning from New York, Chris Bhaganooa, who was friend on Facebook, reached out and queried about my trip. We had a short conversation and he linked me up with Dentons. Evans Wolfson was also from Dentons Global. Obviously, Dentons Mauritius took up the case probono, and at this point, there was no confusion. There were genuine people, genuine activists, genuine lawyers, who, beyond anything, wanted to further human rights.
After a few weeks’ preparation, Sandeep from Dentons reached out one day, telling me, “Najeeb, can you lodge the plaint tomorrow, not all plaintiffs need to be present in Court. They can give you the authority to represent them.” Within hours, I reached out to Vipine, Jürgen and Imesh, who all gave me the authority to lodge the plaint and next think I knew, 06 September 2019, our plaint was lodged at the Supreme Court.
The team more or less represented the diversity of the Mauritian society and for the YQA, this representation remains important in ensuring the participation of one and all. Little were we exposed to or little did we thought at that time that trans people were also affected by criminalisation. Reflecting now, we still feel that we should have had at least one trans person with us as plaintiff to also elevate their challenges in court.
A few weeks after, Henry Coombes also lodged a case with the support of Jean Claude Bibi followed by Abdool Ridwan Firaas Ah Seek who lodged his case on 25 October 2019 supported by CAEC and HDT having for lawyer Gavin Glover. Till date, I have maintained a cordial relationship with Jean Claude and we have many common friends.
Dentons together with Chris Bhaganooa engaged in the legal preparation and argumentation. As plaintiffs, the four of us acted as support systems to each other, at times under pressure with one or two not feeling at ease as the court hearings were nearing and fearing reprisals as the case is public. At the YQA, we supported with the changing of hearts and minds, with the advocacy, the media communication and the research. Our legal representatives approached CAEC to see whether cases could be joined, but I was told that Ryan refused.
Working in Public Administration, among the few people from within different structures of Government who supported my actions, was Ms. Asha Burrenchobay, another great lady, who worked as Senior Chief Executive at the Human Rights Division. At times some collaborators would reach out, as they were aware of interferences within the judiciary for our case to go on smoothly and on fixed schedule. Ms. Burrenchobay pulled in her weight to ensure that our case remained on track to the extent she could.
However, nearing the examination of the plaintiffs, it remained quizzical that the Ah Seek case was heard first, though on the same day. As reported by Stephen Brown of the University of Ottawa in his article of 2024 following an interview with Gavin Glover, “The latter [YQA case] had actually been filed first, but the other team had managed to have their case prioritized.” Institutions are what people make of them, and it would be simply unfathomable that our Judiciary would not reflect human flaws. Mamon and trickery are Gods for some. Trial by ambush is common practice among some learned counsel and within the Mauritian Judiciary, as often echoed by fellow practitioners in the field.
Moments from the Court
On the day that both cases were fixed for hearing, in court, one of the representatives of the Attorney General’s Office representing the Government was a colleague, and if it was not embarrassment, was it pity that Government stated that they were not prepared for the Ah Seek case. Agenda of judges simply changed overnight. There was not really any cross examination or re-examination of the plaintiff. Counsel in the Ah Seek case requested that their submission in law also be taken after the hearing of plaintiff and witness as it would not take more than one day and HDT representative, Tim Otty travelled to Mauritius to specifically plead in the case. And funnily enough, the situation was stretched over a few days, reaching the end of the term of the present sitting of Court. Our hearing had to be postponed for the next sitting of the Supreme Court, months after.
Prior to the case, the representatives of Government stated that a bill would be introduced to decriminalise homosexuality and therefore, to wait for the bill. My legal representatives as well as Glover turned to me. Working in Public Administration, it is only logical that Government cannot pass law. It was understood that Cabinet’s approval had not yet even been reached, let alone a draft bill ready for the National Assembly – yes, it is the National Assembly which can vote for a law, not Government. Therefore, for me it was a no, and for everyone, it became a no.
Reflecting now upon this puzzling situation, today, the reasons for this negotiation prior to the hearing, are clear. Government had secured technical assistance from the Human Dignity Trust, which was one of the members of the Equality and Justice Alliance based in the UK, to, among others, draft and amend legislation with a view to promoting the human rights of the LGBTI community in Mauritius. In the end, for the worshipers of Mamon, the queer community is just a means to an end.
Anyways, moving forward, on 02 June 2022, myself, Vipine, Imesh and Jürgen had our hearing. This day was perhaps the most intense moment of the journey. A hearing which started early and ended late. My colleague from the Attorney General’s Office appeared with other colleagues for Government, but could not cross-examine me. Instead, Ms. Ramsoondar was the one who cross-examined me from the State. The experience was disdainful during the cross-examination with Ms. Ramsoondur, bordering loathsomeness towards her. To think that, from one public servant to another, a sense of ethics should have prevailed.
The whole process for me was around two hours being in the witness box. During our hearing, in essence, it was a moment to share our lived experience in detail in the courts. With discomfort, but less inhibitions. For myself or Vipine, it was declaring in the court we love each other, our journey and challenges we faced. Vipine also depicted that having sodomy and bestiality in the same section of the law treated homosexuals as animals. For Imesh, it was the trauma he lived and the ensuing challenges he faced in public hospitals and how it impeded him from expressing his creativity as an artist. For Jürgen it was about how he knew that he was queer since the age of six, how he represented the Mauritian queer community in Geneva, how he faced the biblical condemnation and how he obtained the support of his dear teacher, Françoise, from secondary school.
Our hearing also enabled to shed light on the inaction of Government authorities on reported cases of homophobia that we faced as plaintiffs. It also enabled us to simply state, that for laws which include references to sexual orientation to exist and to hold true, they have to be aligned to the Constitution.
On behalf of the witnesses from defendants, they agreed that the law should be amended, that the Sexual Offences Bill in 2007 would have repealed the act of sodomy from the laws and a Select Committee was set but parliament was dissolved in 2010, that HIV prevention would have been easier should homosexuality no longer being criminalised and that society is more accepting towards homosexuals.
In court, the police officer standing as witness for the defendants also contradicted the legal representatives of the police in stating that in case there is a declaration of an act of sodomy, an enquiry would be initiated, medical examination would be made, and if there was sexual intercourse, there would be an offence.
On the day the judgments were delivered another hiccup. Early morning, someone from the Attorney General’s Office reached out to inform that the judgments were out congratulating us. While both cases were to hold Section 250 unconstitutional as it is discriminatory – our judgment was wrongly drafted. Fortunately, the correction was made moments after.
Queer rights beyond decrim
Since 04 October 2023, homosexuality is no longer criminalised in Mauritius. For me, we have two reflections to make, what next in terms of our movements and what next in terms of our rights?
While acknowledging HDT and its initial contribution, its modus operandi left the queer movement fragmented in Mauritius. And from my interactions with other queer folks, many queer movements in Africa have been fragmented following the involvement of HDT. Colonisers at their very best. Today, I can fully recognise the warnings that Lorna and queer African folks echoed during our toddler steps strategizing around decrim. Our folks need to see us for who we are; our institutions and Governments as well. Subjects of His Majesty the King cannot parade in independent nations to lead social change. We have to own our struggles; our actions have to determine our narratives, local and African queer people for queer rights in Africa.
Yet, with the way things have become stale, would there ever be any reconciliation among local queer organisations, which are four now? Are we mature enough? Are we humble enough? Can we respect each other? Can we give each other space to thrive and can we support each other to grow?
Second, in terms of rights, as we would continue standing on the shoulders of small and big giants, and uplift others, rights such as the legal recognition of trans people and marriage equality for queer people to have families of their choosing are more than ever pressing.
Today, as we are focusing on these two rights, and as I am writing this narrative of mine, I am hopeful for our future as queer folks living in Mauritius, that we would be inspired, resilient, and continue to move forward achieving greater heights and living authentically as queer people.
Fokeerbux Najeeb Ahmad
President & Founder
Young Queer Alliance
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