Article and Photo by Martin Ren,
Mark Twain once said: “Mauritius was made first and then heaven; and heaven was copied after Mauritius.” Charmed by the beaches, mountains and the smiles of Mauritians, Twain probably didn’t know that a Serpent had slithered into this Garden of Eden. That Serpent, s.250 of the Criminal Code Act of 1838, hisses that: “Any person who is guilty of the crime of sodomy or bestiality shall be liable to penal servitude for a term not exceeding 5 years.”
On September 2019, members of the Young Queer Alliance of Mauritius filed a claim before the Supreme Court challenging the constitutionality of s.250. They made two main claims:
First, s.250 has breached the members’ Right to Liberty under ss.3 and 3(a) of the Constitution. Read in combination, ss.3 and 3(a) say that “in Mauritius there have existed and shall continue to exist… the right of individual to… liberty.” The Supreme Court has observed to this extent that Mauritius is “well known for its traditional respect for freedom and liberty” and is “looked upon by many nations as an object of admiration and envy.”
The Right to Liberty sits close to the hearts of Mauritians. A mountain on the southern coast of Mauritius sits as a silent reminder of this: after Britain abolished slavery in 1834, authorities went to the mountain Le Morne to inform runaway slaves of their newfound freedom. But under the false impression that they were being recaptured, the same slaves committed suicide by leaping off the mountain into what is now known as the Valley of Bones—they would rather die free than live chained.
Second, it is claimed that s.250 has breached the members’ Right to Equal Protection under s.3 of the Constitution. Per s.3, there shall be no discrimination “by reason of… sex.” This claim assumes that non-discrimination on the basis of “sex” includes sexual orientation. The Supreme Court has never ruled on the soundness of this construction.
On the one hand, the Court observed that the Constitution must be “given a generous and purposive interpretation.” The conferral of the Right to Equal Protection is one of the Constitution’s broad purposes, in that non-discrimination “permeates the whole Constitution.” In addition, the Court observed that the Right to Equal Protection under s.3 is “similar” to the Equal Protection Clause under the 14th Amendment of the American Constitution and to the “equal protection of the laws” under art.14 of the Indian Constitution. Therefore, the Court observed that the “same principle[s] could be deduced from… [section] 3 of the Constitution of Mauritius.”
But at the same time, the Court cautioned that “[t]he American and Indian Constitutions were drafted in a different age and have tended, particularly with regard to fundamental freedoms of the individual and to a greater extent than more modern Constitutions, to make broad and wide-ranging formulations” (emphasis added).
Under s.81 of the Constitution, a decision of the Mauritian Supreme Court can be appealed to the Judicial Committee of the Privy Council in London, presided by Justices of the Supreme Court of the United Kingdom. Should the Privy Council hear the appeal here, the outcome of its decision is likely to echo across other former British colonies in Africa, where the same Serpent still hisses.