Landmark case sees decriminalisation of same-sex intimacy between men in Mauritius

In a landmark decision, the Supreme Court of Mauritius has declared that legislation criminalising private, same-sex, consensual sexual activity is unconstitutional. The judgment brings an end to 185 years of discrimination against Mauritius' LGBTQIA+ community.

Originally filed at the Supreme Court in 2019, the case has been led by the Human Dignity Trust, with Herbert Smith Freehills providing pro bono legal support. Led by partner John Whiteoak alongside senior associates Thomas Jennings and Scott Warin, the firm provided integral legal support in the management of the case from its inception.

The case was brought by Abdool Ridwan (Ryan) Firaas Ah Seek with the aim of challenging the constitutionality of Section 250 of the Mauritian Criminal Code, a British colonial-era law dating back to 1838. The provision criminalised private sexual conduct between consenting males, with anyone convicted facing a maximum penalty of up to five years’ imprisonment.

In outlining its decision, the Court highlighted that its purpose "was to protect the rights of minorities and others who cannot protect their rights adequately through the democratic process." The Court then found that "the fact remains that the threat of arrest, prosecution and conviction hangs like the Sword of Damocles over the heads of homosexual men [and] taking into consideration all of the above, we find that section 250(1) of the Criminal Code is discriminatory."

The firm's support of Ah Seek is part of its ongoing work with the Human Dignity Trust spanning well over a decade as they seek to decriminalise private, same-sex, consensual sexual activity in the 65 countries where it remains a criminal offence. 

Commenting on the decision, John Whiteoak, partner at Herbert Smith Freehills, says: "This really is a momentous judgment that will make a huge and important difference to the daily lives of LGBTQIA+ Mauritians. It shines a bright spotlight on the progress that still needs to be made in support of the LGBTQIA+ community and is a step in the right direction towards a more inclusive global society."

Herbert Smith Freehills' support for the Human Dignity Trust is part of the firm's commitment to drive greater levels of inclusion for minority communities across the globe. 

Whiteoak adds: "This case is a rare example where we can utilise our skills and experience as lawyers to create real, significant change and make a long term positive social impact for society as a whole. While there has been considerable progress in recent years on LGBT+ rights, there are 65 jurisdictions still criminalising private, same-sex, consensual sexual activity (albeit one less than yesterday) and 12 jurisdictions which can or do impose the death penalty for same-sex intimacy."

The full judgment can be seen here.