Submitted for the 121Stsession of the Human Rights Committee

Page 1 of 33

Alternative Report

Submitted for the 121stsession of the Human Rights Committee

Geneva, Switzerland

16 October 2017 – 10 November 2017

9/18/2017

Young Queer Alliance

Mauritius

CONTENTS

ABBREVIATIONS

LIST OF CASES

EXECUTIVE SUMMARY

1.0Introduction

1.1HRC “list of issues”, concluding observations, general comments and jurisprudence

1.2The State Party’s Reply

1.3YQA’s Response

2.0.Violence and hate speech against persons based on their sexual orientation and gender identity (Article 2, Article 9, Article 16, Article 17, Article 20, Article 23)

2.1Background

2.2Equal Opportunities Commission (EOC)

2.3Complaints received at the Equal Opportunities Commission

2.4Amendment of the Criminal Code Act 1838

2.5Brutality by Law Enforcement Agencies

2.6Recommendations by Other Institutions

2.7Recommended Questions

2.8Recommendations

3.0Blood donation ban (Article 2, Article 26, Article 27)

3.1Background

3.2Recommendations by Other Institutions

3.3Recommended Questions

3.4Recommendations

4.0Marriage equality/Civil partnership (Article 2, Article 14, Article 23, Article 26, Article 27)

4.1Background

4.2Registration of same sex marriage in Mauritius

4.3Recommendations by Other Institutions

4.4Recommended Questions

4.5Recommendations

5.0Decriminalisation of consensual same-sex sexual acts among people of age of consent (Article 2, Article 17, Article 24,)

5.1Background

5.2Recommendations by Other Institutions

5.3Recommended Questions

5.4Recommendations

6.0Concluding Remarks

REFERENCE

ABBREVIATIONS

LIST OF CASES

EXECUTIVE SUMMARY

The present submission is prepared by the Young Queer Alliance for the consideration of the United Nations Human Rights Committee as an additional source of information to the fifth periodic report of the Republic of Mauritius (CCPR/C/MUS/5).

This alternative report, therefore, aims to:

a)shed light on actions taken by the State Party in applying the International Covenant on Civil and Political Rights;

b)draw attention on cases of deviation from the Covenant if any;

c)cater for the absence of information in replying to the HRC’s ‘List of Issues’; and,

d)cover key issues affecting the LGBTQIA community in the Republic of Mauritius.

The sources of data used in the drafting of this Report includes Hansard, Government websites, newspapers, e-news, replies and statements from institutions, and documentation and publications from Non-Governmental Organisations (NGOs). A detailed list of sources has been compiled in the ‘Reference’ section of this Report.

1.0Introduction

The present report has been prepared by the Research Centre of the Young Queer Alliance (YQA) for the consideration of the United Nations Human Rights Committee as an additional source of information to the fifth periodic report of the Republic of Mauritius (CCPR/C/MUS/5).

YQA is a non-profit, non-governmental and apolitical organisation, which works against homophobia, biphobia and transphobia, and for the recognition and well-being of Lesbian, Gay, Bisexual, Transgender, Queer, Intersex, Asexual (LGBTQIA) community in Mauritius. The organisation was founded in 2014 and is open to young people aged 14 to 29 years. It counts around 50 members and more than 1500 beneficiaries from all regions across Mauritius.

Members of the YQA act on behalf of the organisation in a voluntary and unpaid capacity. People employed by the YQA on a full-time or part-time basis are remunerated from the Global Fund against AIDS. Other sources of revenue for the financing of activities of the YQA are membership fees, donations and sponsorship.

1.1HRC “list of issues”, concluding observations, general comments and jurisprudence

The United Nations Human Rights Committee (HRC) has requested the State Party, i.e. the Government of the Republic of Mauritius to:

a)explain whether it has taken any measures to fight homophobia and to empower affected individuals about their rights[1];

b)indicate whether it has taken measures to forbid discrimination based on sexual orientation or gender identity in contexts other than that of employment;

c)provide figures on complaints made to the Equal Opportunity Commission (EOC) and on investigations into any cases of discrimination based on sexual orientation and gender identity;

d)provide more information on section 250 of the Criminal Code, by virtue of which “any person who is guilty of the crime of sodomy or bestiality shall be liable to penal servitude for a term not exceeding five years” and to indicate whether the State Party plans to amend that section; and,

e)provide detailed information on the involvement of representatives of civil society and non-governmental organizations in the preparation of the State Party’s report.[2]

It is to be highlighted that as at date,

a)Since there has been no complaints from individuals of Mauritius concerning sexual orientation and gender identity to bodies of the United Nations, there has hence, been no jurisprudence emanating from the United Nations Treaty Bodies on sexual orientation and gender identity for Mauritius (OHCHR, 2017);

b)following its consideration of the fourth periodic report of Mauritius (CCPR/C/MUS/2004/4), the HRC has issued no concluding observations, concerning sexual orientation and gender identity at its 2278th meeting (CCPR/C/SR.2278) held on 31 March 2005. Nevertheless, at the above-mentioned meeting, the HRC, regarding the ill-treatment and deaths of persons in custody and in prisons attributable to Police Officers, has:

1. recommended to the Republic of Mauritius to ensure that investigations into all violations under articles 6, 7 and 10 of the International Covenant on Civil and Political Rights are carried out;
2. advised that, depending on the findings of the investigations, the perpetrators of such violations should be prosecuted and compensation paid to the victims;
3. stated that the Republic of Mauritius should ensure that the victims have access to genuinely independent bodies for investigating those complaints; and,
4. further invited the Republic of Mauritius to provide in the ensuing report, a detailed statistics on the number of complaints against State officials, the nature of the violations, the State departments involved, the number and nature of the investigations and the action taken, as well as the compensation granted to the victims.[3]

c)in its General Comment No. 35 (HRC, 2017), the HRC has, in respect to Article 9 of the International Covenant on Civil and Political Rights, explained that the Article guarantees the right to the security of persons – including lesbian, gay, bisexual and transgender persons. The right to security of person protects individuals against intentional infliction of bodily or mental injury, regardless of whether the victim is detained or non-detained. This right obliges States parties to, inter alia, take measures to prevent future injury and to take measures in response to past injury such as by enforcing criminal laws or for example, by responding “appropriately to patterns of violence against categories of victims such as […] violence against persons on the basis of their sexual orientation or gender identity”; and to take appropriate measures in response to death threats against persons in the public sphere.

1.2The State Party’sReply

The State Party, in its reply[4] to the “list of issues”,

a)stated that one legislative measure has been taken through the Equal Opportunities Act 2012 to prevent discrimination including on the grounds of sexual orientation;

b)informed that since the Equal Opportunities Act 2012binds the State, changes can be effected in form of changes in policies and regulations or even amendments to existing acts;

c)gave a tabular breakdown of cases on the grounds of sexual orientation at the EOC;

d)gave a brief on Section 250 of the Criminal Code of Mauritius (point 50);

e)mentioned probable unspecific amendment to the Criminal Code to provide for a better legal framework for dealing with sexual offences (point 51);[5] and,

f)reported at paragraph 102, that the preparation of the periodic reports on all Human Rights Conventions, including that of the Covenant was prepared in consultation with all the stakeholders, including representatives of the civil society and non-governmental organisations.

However, the State Party

a)did not respond to the request made by the HRC, in particular, measures taken per se by the State Party, to fight homophobia and measures taken to empower the victims of homophobia about their rights;

b)did not indicate whetherit has taken measures to forbid discrimination based on sexual orientation or gender identity in contexts other than that of employment;

c)has remained evasive on the nature of investigations into any cases of discrimination based on sexual orientation and gender identity at the EOC;

d)provides a misconstrued and unsubstantiated brief on Section 250 of the Criminal Code of Mauritius (point 50);

e)gives no information with regards to the amendment and/or decriminalisation of sodomy through repealing of Section 250 of the Criminal Code;

f)does not provide information as to whether amendment to Criminal Code in State Party reply point 51 consists of decriminalisation of consensual sodomy among of age of consent persons;

g)provides no details regarding measures taken to empower affected individuals about their constitutionally guaranteed rights as per Articles (3), (5) and (9) of the Constitution of Mauritius;

h)submits no information on measures to include gender identity and expression in legislations and policies;

i)makes no mention of the harmonisation of legislations in a non-discriminatory manner on equal age of consent for consensual sexual-acts among persons of any sexual orientation or gender identity;

j)gives no information with regards to gender identity and gender expression as requested; and,

k)has failed to provide detailed information of the involvement of all the stakeholders involved, including representatives of the civil society and of non-governmental organisations, in the preparation of the Report.

1.3YQA’s Response

The YQA would like to bring to the attention of the HRC that (a) as an organisation that is officially and legally registered with the Registry of Association since the year 2014 and having one of its main objectives, to advocate for LGBTQI rights and promote better conditions for LGBTQI persons; (b) as an organisation that is actively involved in the fight against homophobia, biphobia and transphobia, and for the recognition and well-being of the LGBTQIA community in Mauritius and which is regularly liaising with different governmental bodies, it was at no point approached by the State Party or involved in the preparation of its report.

The absence of detailed information on the involvement of representatives of civil society and non-governmental organizations in the preparation of the State Party’s report demonstrates that the report was prepared in an arbitrary and unilateral manner.

For the purpose, this Report will examine five specific areas as follows:

1. violence and hate speech against persons based on their sexual orientation and gender identity;
2. blood donation;
3. marriage equality/ civil partnership; and,
4. decriminalisation of consensual same-sex sexual acts among people of age of consent.

2.0.Violence and hate speech against persons based on their sexual orientation and gender identity (Article 2, Article 9, Article 16, Article 17, Article 20, Article 23)

2.1Background

Violence due to homophobia and transphobia is a lived reality for many LGBT persons living in Mauritius. The YQA recently carried out a survey[6]on the “Socio-economic conditions of LGBT people in Mauritius” (YQA, 2017). The aim of the survey was, inter alia, to understand how LGBT rights and queer youth issues can better be addressed in the Republic of Mauritius

An alarming 60.2% of respondents of the survey reported being victims of discrimination, stigmatisation and/or violence due to their sexual orientation and/or gender identity. Furthermore, from among the top five priorities proposed to be included on the LGBT agenda in Mauritius during the next five years, protection from violence, hate crimes and discrimination (61.0%) was ranked as second priority by respondents while anti-bullying policies at schools/universities was voted as the third priority (58.8%) by the respondents, hence, depicting the actual need faced by LGBT persons in Mauritius.

Respondents reported that cases of violence against them as a result of their sexual orientation and/or gender identity occur in various spheres of the society but mainly at home, in schools, in public transport and on the streets. Few respondents reported that such cases of violence occur in universities, at workplaces, at hospitals or at police stations.

Two such cases are reported in the boxes below.

1. Names and identifying details have been changed to protect the privacy of individuals and ensure their security.
2. The narration was done by David in creole, the local language spoken in Mauritian. The translation has been done by YQA as accurately as possible.
3. A ‘Mandir’ is a Hindu temple.

The findings of the above-mentioned survey is corroborated by the results of the “Integrated Biological and Behavioural Surveillance Survey (IBBS) for Men having Sex with Men (MSM)” conducted in 2012 by the Ministry of Health and Quality of Life and other stakeholders of the Republic of Mauritius, which reports that 80% of MSM are victims of verbal harassment and around 10% of MSM are victims of physical abuse.

In addition to the above, human rights defenders and organisations are also the targets of hate crimes as a result of their work of defending the rights of LGBT persons. A case of a death threat (among others) received by the President of YQA is detailed in the Box below.

Furthermore, on the 29January 2017, an e-mail was sent to the Minister of Public Infrastructure and Land Transport, and some of its staff to tarnish the image of N. A. F., President of the YQA. Despite several staffs of the Ministry being in copy of the e-mail, no action were taken.

The findings and cases at section 2.1 above clearly demonstrate the need for concrete actions to be taken by the Government of the Republic of Mauritius in applying the International Covenant on Civil and Political Rights.

2.2Equal Opportunities Commission (EOC)

The Republic of Mauritius has undertaken a legislative measure with the enactment of the Equal Opportunities Act in 2012 to prevent discrimination including on the grounds of sexual orientation. However, this is not tantamount to either measures taken to fight homophobia orto measures taken to empower the victims of homophobia about their rights.

As highlighted by the State Party in its report, “an act of discrimination would mean a less favourable treatment suffered by any individual”. An act of homophobia, on the other hand, would be defined as prejudice against LGBT persons. Homophobia often has the potential consequence of leading to hate crimes. Therefore, LGBT persons, who have been victims of discrimination as a result of homophobia, may refer their case to the EOC, which, may after investigation, make such recommendations for redress and to empower the victim’s rights. However, LGBT persons, who have been victims of homophobic acts, for example bullying on social media as a result of that person’s sexual orientation and/or identity, would not be able to seek protection or redress from the EOC.