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The Mauritius Supreme Court recently issued two landmark judgments that struck down the criminalisation of consensual sex between adult men as unconstitutional. It did so in response to two lawsuits brought by LGBTQI+ activists and their organisations.

The Supreme Court’s reasoning turned upside down the argument used by anti-rights forces to attack the gains made by LGBTQI+ activists in much of Commonwealth Africa: it acknowledged that criminalisation is the foreign import rather than gay sex, and a relic of colonialism that it’s high time to shake off.

A damning colonial legacy

As in so many other Commonwealth member states, in Mauritius criminalisation of consensual sex between men dated back to the British colonial era. Former British colonies inherited criminal provisions targeted at either LGBTQI+ people in general or gay men in particular, and typically retained them on independence and through subsequent reforms of their criminal law long after the UK had changed its laws.

That’s exactly what happened in Mauritius, which declared independence in 1968 but retained in its Criminal Code provisions criminalising homosexuality dating from 1838. Section 250 of this law punished ‘sodomy’ with penalties of up to five years in prison. While the law was in principle applicable to both same-sex and opposite-sex activity, it was broadly perceived and applied as criminalising gay men.

Today, same-sex sexual acts remain a criminal offence in 31 out of 56 Commonwealth states: 14 in Africa, six in the Caribbean and the Americas, six in the Pacific and five in Asia. This crime is often punishable with harsh jail sentences: up to 10 years plus hard labour in Jamaica, 14 years in Kenya, 20 years plus flogging in Malaysia and up to life imprisonment in Bangladesh, Guyana, Pakistan, Sierra Leone and Tanzania. In three cases – Brunei, north Nigeria and Uganda – it can potentially mean the death penalty.

Even if such extreme punishments are unlikely to be applied, they have a chilling effect. In Mauritius, custodial sentences for ‘sodomy’ have rarely been imposed in recent decades. But legal prohibitions have stigmatised LGBTQI+ people, legitimised social prejudice and hate speech and enabled violence against them, obstructed their access to key social services, notably healthcare, and denied them the full protection of the law.

As a result of criminalisation, LGBTQI+ lives have remained shrouded in uncertainty and fear. A plaintiff in the case that led to the decriminalisation ruling in Mauritius expressed this clearly: ‘Because of this law, the threat of arrest hangs constantly over my head. I’m just a normal person, I pay my taxes. I don’t want to be considered a criminal’.

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 to decriminalise early 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 in 2010, with nine more countries following over the next decade: Belize, Botswana, Gabon, India, Lesotho, Mozambique, Nauru, Seychelles and Trinidad and Tobago. Four more, three in the Caribbean, followed suit in 2022: Antigua and Barbuda, Barbados, Singapore and St Kitts and Nevis. Now they’re joined by Mauritius.

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 defensive response by anti-rights forces portraying LGBTQI+ rights as an imported western agenda, 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, reflecting 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 – a measure of the LGBTQI+ movement’s boldness and growing visibility – was held a decade later, in 2005.

Soon afterwards, in 2008, the Employment Rights Act banned discrimination based on sexual orientation. Also passed in 2008 and coming into force in 2012, the Equal Opportunities Act mandates protections in employment, education, housing and the provision of goods or services. And in 2021, with the lawsuit challenging criminalisation already in the Supreme Court, an amendment to the Civil Status Act allowed for the registration of sex at birth of intersex persons as ‘undetermined’.

After years of work to build momentum, 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 legal challenges had been filed the previous month – one by Edward Henry Richard Coombes and another by Najeeb Ahmad Fokeerbux, of the Young Queer Alliance (YQA), alongside three other plaintiffs.

Two years later, in November 2021, the Supreme Court started hearing evidence. And within a further two years, on 4 October 2023, it delivered its historic rulings.

In the Ah Seek case, the Supreme Court 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. This ruling referred to prior court decisions in several Commonwealth states that had decriminalised same-sex relations, including Botswana and India, and emphasised Mauritius’s commitment to interpret its constitution in line with the International Covenant on Civil and Political Rights.

In the Fokeerbux case, the Supreme Court agreed with the plaintiffs’ argument that the sodomy provision treated gay men as criminals and their sexuality as a crime and disrespected their relationships, reaffirming that the ban on gay sex was discriminatory and unconstitutional. The fact that prosecutions under section 250 were rare wasn’t viewed as a reason not to rule on the matter: the judges agreed that the mere threat of arrest and prosecution was an unfair ‘sword of Damocles’ hanging over the heads of gay men.

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 according to their LGBTQI+-friendliness. The island nation scores 58 out of 100 points, a revealing 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.

On the Equality Index, Mauritius scores more highly for its legal situation than it does for public attitudes towards LGBTQI+ people. A recent survey showed that tolerance towards people in same-sex relationships in Mauritius had increased, but social attitudes continue to lag behind changes in laws.

For the LGBTQI+ rights movement, this poses the challenge of replacing the vicious cycle of legal prohibition that strengthened social stigma with a virtuous circle, where legal advances normalise the presence of LGBTQI+ people and their social acceptance, helping enable effective access to the rights enshrined by law.

Changing laws and policies is never enough. To fend off the anti-rights resistance that’s to be expected, the need is to shift opinions.

A welcome opportunity for visibility and normalisation came three weeks after the Supreme Court ruling, when the Pride march returned to the streets of Mauritius after an absence of two years. Organised by Collectif Arc-en-Ciel, it convened under the motto ‘Always together: united in diversity’. It included a ‘community village’ where civil society groups and private sector and governmental partners, including representatives of other countries, set up shop to speak about their work and present their services. But the opportunity was also seized by an anti-rights group to stage a symbolic demonstration against advances in LGBTQI+ rights.

Who’s next?

The Mauritius Supreme Court ruling was welcomed by United Nations (UN) human rights experts and by the UN Development Programme and other UN agencies, which encouraged the state to continue along the reform path and called on the 66 countries in the world that still criminalise gay sex to follow suit.

Almost half of those – 32 – are in Africa, and many are part of the Commonwealth. A prominent role should therefore be played by the African Commission on Human and Peoples’ Rights, the continent’s main human rights body, and the Commonwealth – whose roots, as with the criminalisation of LGBTQI+ people in Africa, are in the British Empire.

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.