Strategic litigation and the decriminalization of homosexuality in Mauritius

An enduring legacy of British colonialism in much of Africa is the existence of laws that prohibit homosexual acts. After former British colonies gained independence, these “sodomy laws” remained on the books across the region. In recent years, some countries, such as Uganda and Nigeria, have reinforced those laws, while others, especially Lusophone countries, have rescinded them via the parliamentary route. In several former British colonies, however, LGBT+ rights defenders have taken their governments to court to try to get these laws declared unconstitutional. They have so far been unsuccessful in Kenya, while cases are pending elsewhere, such as Namibia. However, Botswana and Mauritius stand out as the two African countries where human rights defenders have succeeded in using strategic litigation to decriminalize homosexual acts, respectively in 2019 and 2023. Building on my prior study of the case of Botswana and based in large part on interviews to be conducted in Mauritius in January 2024, this paper analyses: 1) the Mauritian Supreme Court judgement itself, which drew heavily on international jurisprudence, how it framed its ruling (e.g., decolonisation, non-discrimination) and what its limitations were, as well as 2) how Mauritian human rights defenders fostered and drew on domestic, regional and international support for their strategic litigation. Among other issues, it examines how human rights defenders’ extralegal measures, including resource mobilization and the framing of the debate, helped influence the outcome of the court case. In doing so, the paper traces how Mauritian LGBT+ rights-focused actors benefited from the expertise and financial support of allies at home, elsewhere in Africa, donor countries and international nongovernmental organizations, while maintaining ownership of the agenda and the process.