SECTION 250

As the LGBT community celebrates the International Day Against Homophobia, Transphobia and Biphobia, ‘Collectif Arc-En-Ciel’ appeals once again to our lawmakers to repeal Section 250 of the Mauritian Criminal Code which criminalizes sodomy between two consenting adults.
Like most provisions of our Criminal Code, section 250 was adopted from the ancient French penal code, at a time when sexual relationship between two men was considered to be sinful and a curse. In 1791, after the French Revolution, the offence of sodomy was abolished in France. In England, the law was amended in 1967 to decriminalize consensual homosexual activity in private. A later attempt by the Thatcher government in 1988 to bring back similar provisions was met with resistance and struck down by the courts. In India, homosexuality is still a taboo subject. Attempts to abolish section 377 of the Indian Penal Code criminalising homosexual intercourse, is yet to be fulfilled.
Social attitudes and personal morality have since shifted at a remarkable rate in today’s world of equal rights. The British High Commissioner to Mauritius is openly gay and attends official functions with his husband as his civil partner. In its issue of June 2007, the Law Reform Commission of Mauritius analysing the Sexual Offences Bill proposed by the then government, reminded us of Article 17 of the International Covenant on Civil and Political Rights to which Mauritius is a signatory. It provides that everyone has the right to the ‘protection of the law against unlawful interference with his privacy” and that it requires every State party to the Covenant to ensure that the right is enjoyed by its citizens without any discrimination on the grounds of sex.
 In an application made to the Human Rights Committee, an Australian citizen by the name of Toonen petitioned the Committee arguing that the Tasmanian Government was acting in breach of his right to privacy and the protection of the law by providing in its criminal code that a consensual act of homosexual activity amongst gay men was a crime. The Committee found in favour of Mr. Toonen holding that he was indeed a victim of discriminatory treatment and the laws criminalizing homosexual activities in Tasmania violated Article 17 of the Covenant.
The same reasoning was adopted by the European Court of Human Rights in the case of Dudgeon (October 1981) and in Norris (October 1988). The evolution of the law did not stop there. In the case of Sutherland v the United Kingdom (March 2001) before the European Court of Human Rights, the applicant complained that the fixing of the minimum age for lawful homosexual activities between men at 18 rather than 16 as for women violated his right to respect private life under Article 8 of the European Convention for Human Rights and was discriminatory, contrary to Article 14 of the Covenant. The Court held that no objective and reasonable justification  exists for the maintenance of a higher minimum age of consent to male
homosexual than to heterosexual acts. In addition, the application discloses discriminatory treatment in the exercise of applicant’s right to respect private life, under Article 8 of the Convention.
These authorities demonstrate that ‘Collectif Arc-En-Ciel’ makes an important and pertinent point as regard section 250 of our Criminal Code and the likelihood that the section may not pass the test of constitutionality is a high one.