(Re)Learning from the Ground-Breaking Judgement of the Supreme Court of Mauritius Decriminalising Sodomy: A Kenyan Perspective

by | Oct 30, 2023

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About Godfrey Mwango

Godfrey Mwango is a reader in law based in Mombasa-Kenya. He specialises in comparative constitutional law (with a focus on emerging jurisdictions), horizontal human rights, and judicial review and is currently supervised by Professor PLO Lumumba. Previously, Godfrey received training under the Honourable Peter Kaluma and George Miyare (Kenya's leading constitutional litigation experts). He is skilled in constitutional litigation and judicial review and can be contacted at mwangoadvocates@outlook.com.

On 4 October 2023, the Supreme Court of Mauritius delivered a ground-breaking judgment in the case of Abdool Ah Seek v State of Mauritius, which effectively ruled that a law criminalising sodomy is “unconstitutional.” The Court held that section 250 of the Criminal Code of Mauritius, which criminalises sodomy, discriminated against gay men based on sexual orientation. This judgment comes when anti-LGBTQ rhetoric is increasingly part of right-wing strategy in some African countries such as Uganda, which recently enacted the Anti-Homosexuality Act of 2023. While not binding on Kenyan courts, the Abdool Ah Seek judgment offers a greater comparative value, especially considering that Mauritius and Kenya enjoy a shared heritage as former British colonies, which inherited and still retain some outdated colonial provisions in their penal statutes.

In the Abdool Ah Seek case, the plaintiff, a gay man, brought a suit seeking constitutional redress under section 17 of the Constitution, which provides for a mechanism for enforcing rights. The plaintiff contended that section 250 of the Criminal Code, which provides for the offence of sodomy and criminalises anal sex between consenting male adults in private, was unconstitutional and breached sections 3, 5, 7, 9, 12, and 13 of the Constitution, which guarantee the right to liberty and expressly outlaw discrimination. The plaintiff asked the Court to rule that the offence of sodomy under section 250 was unconstitutional and that the section be declared unconstitutional.

Conversely, the State responded that section 250(1) of the Criminal Code did not breach the Constitution. It argued that the provision was not insensitive to the concerns of the LGBTQ community and that it had taken measures to enact laws that prohibit discriminative activities against LGBTQ people. Lastly, the defence contended that an amendment of section 250 to permit consensual activities between members of the same sex was on the government’s agenda.

The main issue before the Court was whether section 250(1) of the Criminal Code was unconstitutional. The Court interpreted section 250(1) of the Criminal Code against section 16 of the Constitution, which expressly offers protection against any discriminative law in its form or effect. Crucially, the Court grappled with whether to interpret the word “sex” in section 16 as including “sexual orientation” and, if the answer to the first question was in the affirmative, whether section 250(1) subjected the plaintiff to discrimination based on sexual orientation.

In a well-informed judgment drawing from the jurisprudence of Canada, South Africa, Belize, India, and Botswana, the Court ruled that “sex” under section 16 included “sexual orientation”. In so doing, the apex court observed that the Constitution is a living document and had to be interpreted purposively and generously; therefore, discrimination based on sexual orientation was outlawed. Ultimately, the Court held that section 250(1) of the Criminal Code was discriminatory and thus unconstitutional. The judgement reiterates that the State has a constitutional positive duty to protect against discrimination.

While the decision in the Abdool Ah Seek case represents a sound judicial anchoring of comparative anti-discrimination jurisprudence, there are at least three reasons why the case is relevant for equality law in Kenya. First, although Kenyan law does not expressly mention sodomy as an offence, Sections 162 (a) (c) and 163 of the Penal Code mirror the impugned section 250(1) of the Criminal Code of Mauritius by criminalising sex between males. Secondly, the Kenyan Constitution prohibits discrimination based on sex in Article 27(4), which mirrors section 16 of the Constitution of Mauritius, protecting from discrimination for, among other grounds, sex. Third, the judgment from the apex Court of Mauritius held that “sex” under section 16 of the Constitution included “sexual orientation,” which offers insights for the Kenyan Courts as a comparative jurisprudence on anti-discrimination law and equality. Towards this end, the ruling is instructive to Kenya as an emerging jurisdiction, especially regarding the findings that a law need not be discriminatory in itself but could be unconstitutional by being discriminatory in its effect, as held in the Abdool Ah Seek case.

In summary, from a purely jurisprudential perspective, the findings of the Supreme Court of Mauritius in the Abdool Ah Seek case, although not binding in Kenya, will inform the trajectory of judicial pronouncements relating to equality and anti-discrimination law. Crucially, Kenya’s Supreme Court already set a positive tone in a ruling delivered on 12 September 2023 in which it effectively ruled that it was unconstitutional to limit the right to association through denial of registration of an LGBTQ association, purely based on the sexual orientation. Notably, the judgment in the Abdool Ah Seek case reiterated the existence of a positive duty requiring the State to protect against discrimination. Against this background, Kenya will hopefully fast-track the efforts to review the Penal Code (Sections 162 (a) (c), and 163) as a lesson on the State’s positive (and proactive) duty from the judgement. Kenyan courts and the legislature would do well to (re)learn from the approach adopted by the apex court of Mauritius in interpreting equality and discrimination provisions.

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