12/13/2023 0 Comments Thirty one todayHangs like the sword of Damocles over the heads of homosexual men. Referring to a judgment by the South African Constitutional Court, the Mauritius court held that the mere threat of arrest, prosecution and conviction The second issue was whether the rarity of prosecutions removed the need for the court to decide. It said that, as a state party to the International Covenant on Civil and Political Rights, Mauritius was expected to interpret its constitution in line with this treaty. The court also emphasised the country’s international human rights commitments. The Mauritian court concluded that the word “sex” in section 16 of the constitution includes “sexual orientation”. The relevant provision ( section 16) forbids discrimination on the basis of seven specified grounds, including sex. The first issue was the contention that Mauritius’ constitution does not explicitly prohibit discrimination based on “sexual orientation”. This judgment held that the constitutionally protected ground of “sex” in the Botswana constitution encompassed “sexual orientation”.īotswana court ruling is a ray of hope for LGBT people across Africa The 2021 judgment by Botswana’s Court of Appeal was particularly relevant. In addressing two issues that could militate against a finding in Ah Seek’s favour, the court relied on the approach of other courts in the SADC region. However, the court based its decision on the most directly relevant ground: the right not to be discriminated against. The litigant, Ah Seek, a gay Mauritian man and board member of the Mauritian NGO Collectif-Arc-en-Ciel, invoked a number of constitutional grounds. The Mauritian Supreme Court found that section 250 of the 1838 Mauritius Criminal Code, which criminalises anal sex between two consenting adult men, violates the 1968 Mauritius constitution. It should build on its 2014 guidance to African states on eradicating violence based on sexual orientation and gender identity. Its 77th ordinary session, starting on 20 October 2023 in Arusha, Tanzania, is an opportunity to do so. The commission has not yet expressed its view on the decision. This is particularly significant as attempts are made to further criminalise and stigmatise sexual minorities in parts of Africa. The African Commission, as the continent’s human rights custodian, should lend its unequivocal support to the decriminalisation trend. I have researched and taught human rights law in Africa, including the rights of sexual minorities, for over three decades, and closely follow the work of the African Commission on Human and Peoples’ Rights. Now, a slight majority – nine out of 16 member states – do not prohibit gay and lesbian sexual relations. The decision boosts the trend in the Southern African Development Community (SADC) region towards decriminalisation. The Mauritius Supreme Court has declared unconstitutional a law that criminalises consensual same-sex acts between adult men.
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