Dismantling the discriminatory practices left by colonial Great Britain.
In Mauritius, the Supreme Court declared Article 250 of the country’s penal code – which criminalized consensual same-sex sexual relations – as unconstitutional.
In 2019, Abdool Ridwan Firaas (Ryan) Ah Seek, a gay man, challenged the constitutionality of Section 250 of the Mauritian Criminal Code. Dated back to 1838, this provision criminalized “sodomy”, with anyone convicted to face a maximum penalty of five years’ imprisonment.
This antiquated law was inherited from the British during the colonial period, with the English criminal law imposed on the people of Mauritius, and was sadly retained upon independence in 1968.
Interestingly, England itself removed the corresponding law was from the statute books in 1967, meaning the “mother” country already saw that this law was erroneous, and yet its former colonies continue/d to still implement this.
The legal team included lawyers Gavin Glover, Yanilla Moonshira and Komadhi Mardemootoo. Human Dignity Trust and the organization’s founder, Tim Otty, and Herbert Smith Freehills supported the case.
In its judgment (https://www.humandignitytrust.org/wp-content/uploads/2023/10/Judgment-AH-SEEK-.pdf), the Supreme Court judges stressed the constitutionally protected right to non-discrimination.
“(A)re there any valid reasons for the State to discriminate against the plaintiff having sexual intercourse in the only way available to him? The present case concerns the most private and intimate aspects of the identity of homosexual men, namely the manner in which they have sexual intercourse. Accordingly, there must exist particularly serious reasons for the State to justifiably interfere with the manner in which homosexual men choose to have consensual sexual intercourse in private,” the ruling stated.
The judges also overtly recognized the legacy of colonial-era laws.
“Section 250 was not introduced into Mauritius to reflect any 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.”
