The Mauritius Supreme Court ruled on Wednesday that a colonial-era law criminalising consensual sexual relations between men is “unconstitutional” and should be struck from the country’s criminal code with immediate effect.

According to Section 250 of the Mauritian Criminal Code, men convicted of same-sex relations could be jailed for a maximum of five years.

The judges noted that the law, which dates back to 1898, was “not the expression of domestic democratic will but… a course imposed on Mauritius and other colonies by British rule”.

They focussed on citizens’ constitutional right to protection from discrimination. They concluded that Section 250 discriminated against gay men involved in consensual sex in a manner that was not justifiable, and it was thus unconstitutional.

The legal challenge was initiated in 2019 by Abdool Ridwan (Ryan) Firaas Ah Seek, and the LGBTQI rights group, Arc-en-Ciel. Ah Seek presented evidence that the law had a “crippling effect” on his ability to express love and subjected him to psychological and moral harm, making him feel unworthy of recognition and protection by the State. 

The Human Dignity Trust, which supported the legal challenge, said in a statement that it “applauds this decision, as well as the ongoing work of the government to reform wider sexual offence laws to eliminate discrimination and provide proper protection against all sexual violence”.

‘Obsolete colonial law’

United Nations (UN) agencies operating on the small island off the coast of southern Africa welcomed the decision.

“The Supreme Court today overturned an obsolete colonial law and demonstrated its commitment to non-discrimination and leaving no one behind,” said Lisa Singh, UN 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 LGBTQI+ people.”

“UNAIDS applauds Mauritius for today’s decision which will mean that men who have sex with men will have much easier access to the health and social services they need without fear of arrest or criminalization,” said Anne Githuku-Shongwe of UNAIDS, Director of UNAIDS’ Regional Support Team for Eastern and Southern Africa. 

“Work will need to continue to break down the barriers of stigma and discrimination towards the LGBTQI community, but today’s ruling is a positive step in the right direction. It will save lives.”

Dr Mandeep Dhaliwal, Director of HIV and Health for UNDP, described the decision as “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”. 

Mauritius joins other African countries that have repealed anti-LGBT laws, including Angola, Botswana, Cape Verde, Gabon, Guinea-Bissau, Lesotho, Mozambique, Sao Tome and Principe, Seychelles and South Africa.

However, UNAIDS estimates that 66 countries still have laws which criminalize consensual same-sex relations. 

“In addition to contravening the human rights of LGBTQI people, these laws impede access to health and social services, including HIV services. Such laws fuel stigma and discrimination against LGBTQI people and put them under constant fear of being punished or detained,” according to UNAIDS.

Meanwhile, Uganda has moved in the opposite direction, with its parliament passing a punitive Anti-Homosexuality Act in May. The Parliaments of Kenya and Ghana are also considering similar punitive laws.

Image Credits: Human Dignity Trust.