Credit: Collectif Arc-en-Ciel/Facebook
By Inés M. Pousadela
MONTEVIDEO, Uruguay, Oct 27 2023 – In response to lawsuits brought by LGBTQI+ activists, the Mauritius Supreme Court has issued two landmark judgments striking down the criminalisation of consensual sex between adult men as unconstitutional. Its reasoning turned upside down the argument used by anti-rights forces to attack LGBTQI+ activists in many African countries: it acknowledged that criminalisation is the foreign import rather than gay sex, and a relic of colonialism it’s high time to shake off.
A damning colonial legacy
As in so many other Commonwealth states, criminalisation of consensual sex between men in Mauritius dated back to the British colonial era. Former colonies inherited criminal provisions targeted at LGBTQI+ people and typically retained them on independence and through subsequent criminal law reforms long after the UK had changed its laws.
That’s exactly what happened in Mauritius, which declared independence in 1968 but retained Criminal Code provisions criminalising homosexuality dating from 1838. Section 250 of this law punished ‘sodomy’ with penalties of up to five years in prison.
Around the Commonwealth, same-sex sexual acts remain a criminal offence in 31 out of 56 states, often punishable with harsh jail sentences, and in three cases – Brunei, north Nigeria and Uganda – potentially with the death penalty.
Even if extreme punishments are unlikely to be applied, as was the case in Mauritius, they have a chilling effect. Legal prohibitions stigmatise LGBTQI+ people, legitimise social prejudice and hate speech, enable violence, obstruct access to key services, notably healthcare, and deny them the full protection of the law. As a result, LGBTQI+ lives remain shrouded in uncertainty and fear.
Conflicting trends
Only in two Commonwealth states – Rwanda and Vanuatu – were same-sex relations never criminalised. In others, decriminalisation has come over time. A few – Australia, Canada, Malta and the UK – began processes leading to decriminalisation in the 1960s and 1970s, followed by New Zealand in the 1980s and the Bahamas, Cyprus and South Africa in the 1990s.
As some of these states went on to make further progress, notably in equal marriage rights, civil society activism continued to fuel the decriminalisation trend in the 2010s, starting in Fiji, with nine countries following over the next decade. Four more – Antigua and Barbuda, Barbados, Singapore and St Kitts and Nevis – followed suit in 2022.
The visible backlash against LGBTQI+ rights in Commonwealth states such as Ghana, Kenya and Uganda, where small gains in rights and visibility are bringing a disproportionate anti-rights response, tend to grab the headlines. The struggles of LGBTQI+ people in these countries are vital. But this shouldn’t obscure an overall trend of progress.
There are conflicting processes at play, with a tug of war between forces struggling for the realisation of rights and those resisting advances in the name of tradition and a supposedly natural order. In this struggle setbacks are inevitable – but in the long term, the side of rights is winning.
A rights-ward trajectory
Things started to change in Mauritius in the mid-1990s, when the issue of healthcare for LGBTQI+ people was first raised in the National Assembly in relation to HIV/AIDS prevention, care and treatment. The country’s first public Pride event was held in 2005, and soon afterwards, in 2008, the Employment Rights Act banned discrimination based on sexual orientation. In 2012, the Equal Opportunities Act came into force, mandating protections in employment, education, housing and the provision of goods or services.
In October 2019 LGBTQI+ rights activist Abdool Ridwan Firaas Ah Seek, backed by his LGBTQI+ organisation Collectif Arc-en-Ciel (Rainbow Collective), filed a lawsuit challenging the constitutionality of section 250. Two similar challenges had been filed the previous month, including one by Najeeb Ahmad Fokeerbux of the Young Queer Alliance, alongside three other plaintiffs.
On 4 October 2023, the Supreme Court delivered its historic decisions. In the Ah Seek case, it ruled that the constitution’s ban of discrimination based on sex includes sexual orientation, and that the prohibition of sex between consenting adult men was discriminatory and therefore unconstitutional. In the Fokeerbux case, it sustained the plaintiffs’ argument that the sodomy provision treated gay men as criminals and their sexuality as a crime and disrespected their relationships.
Legal and social change
Having decriminalised same-sex relations, Mauritius now places 54 out of 197 countries on Equaldex’s Equality Index, which ranks countries on their LGBTQI+-friendliness. The island nation scores 58 out of 100 points, a measure of all that remains to be done, even though it ranks far above the African region as a whole, which averages 28 points.
Outstanding issues in Mauritius include full protections against discrimination, marriage equality and adoption rights and recognition and protections for transgender people.
Mauritius scores higher for its legal situation than it does for public attitudes towards LGBTQI+ people. A recent survey showed that tolerance towards LGBTQI+ people has increased but there’s still work to be done. For the LGBTQI+ rights movement, it’s clear that while legal advances help normalise the existence of LGBTQI+ people, changing laws and policies is not enough.
A welcome opportunity for visibility came three weeks after the Supreme Court ruling, when the Pride march returned to the streets of Mauritius after a two-year absence. But the opportunity was also seized by an anti-rights group to stage a demonstration against advances in LGBTQI+ rights.
Who’s next?
The Mauritius Supreme Court ruling was welcomed by United Nations human rights experts and agencies, which encouraged the state to continue along the reform path and called on the 66 countries that still criminalise gay sex – almost half of them in Africa – to follow suit.
The landmark Mauritius court ruling is part of a global trend that’s likely to continue. Civil society’s successes should offer further inspiration for advocacy efforts elsewhere. But given the potential for backlash, there’s also a need to protect and defend rights and take violations of LGBTQI+ people’s rights seriously wherever they occur.
Inés M. Pousadela is CIVICUS Senior Research Specialist, co-director and writer for CIVICUS Lens and co-author of the State of Civil Society Report.
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