Abdool Ridwan Firaas Ah Seek v State of Mauritius
4th October, 2023
04 Oct 2023
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The Supreme Court of Mauritius (D. Chan Kan Cheong and K. D. Gunesh-Balaghee JJ) has today handed down a significant judgment, decriminalising sodomy and thereby removing the "threat of arrest, prosecution and conviction [that] hangs like the sword of Damocles over the heads of homosexual men".
Section 250 of the Mauritian Criminal Code criminalised anal sex between consenting male adults. The plaintiff, a gay man, submitted that the provision was unconstitutional. In particular, that it was discriminatory and violated, inter alia, the right to liberty, privacy, protection against inhuman and degrading treatment.
The Supreme Court noted that the case concerned the "most private and intimate aspects of the identity of homosexual men". They focussed their analysis on the constitutional protection from discrimination and drew upon a great range of international and foreign domestic authorities in doing so. They first found that the Mauritian constitutional prohibition of discrimination on the basis of "sex" included a prohibition of discrimination on the basis of "sexual orientation", noting that the Constitution was a living document and should be given a generous interpretation particularly where fundamental rights were concerned. They then considered whether s.250 was discriminatory on this basis. They noted that the law was a colonial import - not reflective of Mauritian values and "not the expression of domestic democratic will but [...] a course imposed on Mauritius and other colonies by British rule" - and that it had remained part of Mauritian law despite its being abolished in England in 1967. They recorded the plaintiff's unchallenged evidence that s.250 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 Court concluded that sexual orientation is an innate part of a person's identity and that s.250 indirectly discriminated against gay men in a manner that was not justifiable. They held, as a result, that s.250 was unconstitutional and should be read so as to exclude consensual acts of sodomy from the prohibition.
The plaintiff was represented by a Mauritian legal team led by Gavin Glover SC. They were supported by Tim Otty KC, Isabel Buchanan, the Human Dignity Trust and Herbert Smith Freehills.
The judgment is available here.
