'\frican Commission on —Iman & Peoples' Rights

Commission Africaine des Droits de l'Homme et des Peuples

(airaba Avenue >X). Box 673 3ANJUL, The çambia rel. ( 220) 39 29 62 'ax ( 220 ) 39 07 64 'elex 2346 OAU BJL GV

ACHPR/PR/MAURITIUS/XVIII

18EME SESSION ORDINAIRE

2 OCTOBRE — 11 OCTOBRE 1995

PRAIA, CAP VERT

RAPPORT PERIODIQUE DE L'ILE MAURICE

REPUBLIC OF MAURITIUS

COUNTRY REPORT

ON THE

LEGISLATIVE OR OTHER MEASURES

TAKEN WITH A VIEW TO

GIVING EFFECT TO THE

RIGHTS AND FREEDOMS RECOGNISED

AND GUARANTEED BY

THE AFRICAN CHARTER ON

HUMAN AND PEOPLE'S RIGHTS

NOVEMBER 1994

Draft Report

of the Republic of Mauritius

on the

Legislative or other measures

taken with a view

to giving effect

to the

rights and freedoms recognised

and

guaranteed by

the African Charter on Human

and People's Rights

November 1994

1

PART I

Introductory note

After the Napoleonic Wars, in 1810, France ceded the Island of Mauritius,

one of its prime territories to the British. At that time, it was agreed that the

existing laws and customs would continue to prevail and this with the aim of

causing minimal disruption to the lives of the "colons" who already lived on the

Island. As a result the Code Napoleon has remained an underlying feature of our

Mauritian substantive law. However inevitably with the operation of the British

administration, Mauritius inherited the British System of Justice whilst the

Mauritian courts adopted the English Laws of evidence. Thus Mauritius has

managed over the years to sustain this uneasy co-existence of these two basically

incompatible systems of law.

In 1968, when Mauritius became independent, it inherited a written

constitution which provides for a "westminister" style of Parliament. It was spelt

out in this Constitution that there would bè three main organs of the state namely,

the Judiciary, the Executive and the Legislature. Each organ was to operate

independently of the others such that it was the role of the legislature to make laws

that of the executive to implement them and eventually it was left to the courts to

interpret the laws on cause arising. Furthermore our Supreme Court has the

invidious task of determining the norms of a sovereign democratic government in

compliance with section 1 of the Constitution. In the case of Societe United

Docks V. Government of Mauritius 1981 MR 500, in a judgment delivered by the

then Chief Justice Rault, it was held "that every pronouncement of the

Constitution enshrines a principle of abiding value, and where human rights are

concerned those pronouncements must be given their full force and effect."

2

This present draft illustrates the Interpretation given to the relevant

provisions under Chapter II of our Constitution which deals with fundamental

rights and freedoms of the individual. The corresponding sections of the

Constitution of the Republic of Mauritius (CRM) to the African Charter of Human

and People's Rights (ACHPR) are referred to hereunder.

1. Fundamental rights guaranteed by our Constitution

Fundamental rights are protected in Chapter II of the Constitution of Mauritius.

These rights are regarded as crucial in society and constitute the fundamental

norms that should be enjoyed by any individual without distinction of race, place

of origin, political opinions, colour, creed or sex. By incorporating these

fundamental rights in Chapter II of the Constitution Mauritius has impliedly

endorsed the Universal

Declaration of Human Rights which sets out in its 30 articles the basic rules and

freedoms of all peoples, concerning civil, political economic, social and cultural

rights

2. Discrimination

ART 3 of ACHPR: Sections 3 and 16 of the CRM

In Jaulim v/s The Director of Public Prosecutions 1976 MR 96, the

Plaintiff who was charged with murder before the Court of Assizes raised an

objection to being tried by a jury of men only as provided in section 42(1) and (2)

of the courts Ordinance on the ground that those provisions, by excluding women

from jury service, violated sections 3 and 16 of the Constitution, the combined

3

effect of which was to forbid discrimination by reason of sex among other

grounds.

Under section 3 of the Constitution, it is declared that there has existed and

will continue to exist without discrimination by, among other grounds, reason of

sex, the fundamental rights and freedoms set out in paragraphs (a) (b) and (c) of

that section.

Section 16 of the Constitution which specially protects the citizen against

discriminatory laws and measures makes no reference to sex. Tt was the plaintes

contention that in view of the declaration in section 3, sex as a ground of

discrimination should be implied in section 16.

The court held, dismissing the Plaintiff s action that the omission of sex from the

grounds of discrimination in section 16 of the Constitution appeared to be

intentional. The implied guarantee against discrimination proclaimed in section 3

related expressly to the enjoyment of each of the rights and freedoms set out in

paragraphs (a) (b) and (c) of that section. The guarantee in section 3 had

consequently no separate existence but a measure which in itself conformed to the

requirements of the particular section of the Constitution affording protection to

the right or freedom concerned may nevertheless infringe that section when read in

conjunction with section 3 on the ground that it was discriminatory. Section 16

applied to all enactments whether they affected a right or freedom protected by the

Constitution.

It is to be noted that as a follow up to the abovementioned case, the Jury

Act has been amended and women are now eligible for jury service since the 15th

of March 1991.

4

3. Protection of Right to Life Slavery and Inhuman Treatment

Article 4 ACHPR

Section 4 of the Constitution of Mauritius lays down as follows:

(1) "No person shall be deprived of his life intentionally save in execution of

the sentence of a Court in respect of a criminal offence of which he has been

convicted.

(2) A person shall not be regarded as having been deprived of his life in

contravention of this section, if he dies as the result of the use, to such extent and

in such circumstances as are permitted by law, of such force as is reasonably

justifiable:-

(a) for the defence of any person from violence or for the defence of property:

(b) in order to effect a lawful arrest or to prevent the escape of a person

lawfully detained;

(c) for the purpose of suppressing a riot, insurrection or mutiny, or

(d) in order to prevent the Commission by that person of a criminal offence, or if

he dies as the result of a lawful act of war"

In addition to section 4 of the Constitution of the Republic of Mauritius,

there are several enactments which have been passed to deal with specific

circumstances for the protection of inter alia detainees and battered children. In

that respect section 5 of the Social Aid Act and Article 376 of our Civil Code

provide for the removal of a child who is illtreated by his parents from their

5

custody and under section 5(5) of the Social Aid Act, a parent who illtreats a child

commits an offence.

Section 12 of the Reform Institutions Act provides that no officer

shall use force against a detainee except as is reasonably necessary -

(a) in self defence;

(b) in the defence of another person;

(c) to prevent a detainee from escaping;

(d) to campe' obedience to an order which the detainee refuses to obey;

(e) maintain discipline in the institution.

In the case of Virahsawmy and Anor v/s The Commissioner of Police

1972 MR 255, the court observed that mental physical discomfort does not

constitute torture or inhuman treatment.

Further section 7 of the Constitution provides :

(1) No person shall be subjected to torture or to inhuman or degrading

punishment or other such treatment.

Slavery and slave trade were abolished in Mauritius since 1835. Section 6 of our

Constitution which provides for the protection from slavery and forced labour

reads out as follows:

(1) No person shall be held in slavery or servitude.

(2) No person shall be required to perform forced labour.

(3) For the purposes of this section, the expression :"forced labour" does not

include -

(a) any labour required in consequence of the sentence or order of court;

6

(b) labour required of any person while he is lawfully detained that,

though not required in consequence of the sentence or order of a court,

is reasonable necessary in the interests of hygiene or for the maintenance

of the place at which he is detained;

(c) any labour required of a member of a disciplined force in pursuance

of his duties as such or, in the case of a person who has conscientious

objections to service as a member of a naval, military or air force, any

labour that that person is required by law to perform in place of such

service; or

(d) any labour required during a period of public emergency or in the

event of any other emergency or calamity that threatens the life or well-

being of the community, to the extent that the requiring of such labour is

reasonably justifiable , in the circumstances of any situation arising or

existing during that period or as a result of that other emergency or

calamity, for the purpose of dealing with that situation.

4. The Right to Personal Liberty

Article 6 ACHPR: Section 5 CRM

In Mauritius, an individual may be arrested and detained where he is

reasonably suspected of having committed an offence. However there is a

presumption of innocence in his favour and his arrest and likely detention are

subject to safeguards provided by the Judges' Rules (as borrowed from the Judges'

Rules existing in the UK) and standing orders of the Police.

In the case of Sheriff v/s District Magistrate of Port-Louis 1989 MR 260,

the appellate Court held that

" the police have an undeniable right to arrest and detain persons suspected of

having committed an offence is almost axiomatic. But the basis of the involvement

7

of the suspect must reveal more than a mere hunch on the part of the police. " The

Court further stressed on the fact that "doubtless any person may face substantial

freedom restriction in the context of our criminal justice system. But this power

must be sparingly used and the court must be vigilant to check this power. Our

law relating to the freedom of the individual and the restriction on his liberty

should not be interpreted in such a way that arrest and detention become the rule

and freedom the exception.

Section 5(1) of the constitution mirrors in all senses and to all purposes Article 6 of

the African Charter by guaranteeing and safeguarding the right to liberty and to

the security of the person.

h states that no person shall be deprived of his personal liberty except as may be

authorised by law. However section 5(1) of the Constitution provides for

instances in which liberty may be infringed or curtailed. These are:

(a) in consequence of his unfitness to plead to a criminal charge or in execution

of the sentence or order of a Court, whether in Mauritius or elsewhere, in respect of

a criminal offence of which he has been convicted;

(b) in execution of the order of a court punishing him for contempt of that court

or of another court;

(c) in execution of the order of a court made to secure the fulfillment of any

obligation imposed on him by law;

(d) for the purpose of bringing him before a court in execution of the order of a

court.

8

(e) upon reasonable suspicion of his having committed, or being about to

commit a criminal offence.

(f) in the case of a person who has not attained the age of 18 years, for the

purpose of his education or welfare;

(g) for the purpose of preventing the spread of an infections or contagious

disease;

(h) in the case of a person who is, or is reasonably suspected to be, of unsound

mind or addicted to drugs or alcohol, for the purpose of his care or treatment or the

protection of the community,

(i) for the purpose of preventing the unlawful entry of that person into

Mauritius, or for the purpose of effecting the expulsion, extradition or other lawful

numeral of that person from Mauritius or the taking of proceedings relating

there to.

(j) upon reasonable suspicion of his being likely to commit breaches of the

peace, or

(k) in execution of the order of the Commission of Police, upon reasonable

suspicion of his having engaged in, or being about to engage in, activities likely to

cause a serious threat to public safety or public order.

Subsections (2) (3) (4) which are pertinent to the individual's right to liberty

provide inter alia, the rights of a detainee and the obligations conferred on the

authorities to help the detainee in the enjoyment of those rights.

9

Any person who is arrested or detained shall be informed as soon as is reasonable

practicable, in a language that he understands, of the reasons of his arrests or

detention. The detainee has a right to consult a legal representative, of his own

choice and has to be brought before justice within a reasonable time and has a

right to be released either unconditionally or under certain conditions.

Legislative measures introduced to safeguard and protect the rights of person

arrested or detained include the Bail Act 1989 which lays down conditions on

which bail may or may not be granted and the District and Intermediate Court

(Criminal Jurisdiction) Act.

Breaches of Judges' Rules may render an arrest illegal or a conviction being

quashed as these mies have gained Constitutional status and importance.

5. Impartial tribunal and right of the individual to have his cause heard.

Article 7 ACHPR: Section 10 CRM

Section 10 of the Constitution provides protection of law to any person charged

with a criminal offence. Thus it is law that any person who is charged with a

criminal offence, then unless the charge is withdrawn, he shall be afforded a fair

hearing within a reasonable time by an independent and impartial court established

by law.

As stipulated in subsection Subsection (2) of Section 10 every person who is

charged with a criminal offence shall be presumed innocent until he is proved or

has pleaded guilty, and shall be informed as soon as practicable, in a language that

he understands, the nature of the offence for which he is charged. The accused is

provided with adequate time and facilities for the preparation of his defence and he

is also permitted to defend himself in person, on his own expense, by a legal

10

representative of his own choice, or where so prescribed, by a legal representative

provided at the public expense.

Through the legal Aid Act (1974) free legal aid may be provided to a party to civil

or criminal proceedings upon application to the Authority subject to a means-test.

The presumption of innocence is consolidated by the fact that the legal burden of

proof beyond reasonable doubt of the guilt of the accused rests solely on the

prosecution. Subsection (7) of S.10 of our constitution preserves the right to

silence stipulating that no person who is tried for a criminal offence shall be

compelled to give evidence at the trial.

The right to a fair hearing and right to have one's cause heard before an impartial

tribunal are also applicable to civil proceedings. Competent administrative and

quasi-judicial bodies have also been instituted to protect the rights of the citizen.

While these administrative bodies are guided by the principle of natural justice in

deliberating or taking a decision, the Ombudsman and most recently the Tribunal

Anti-Corruption are proper watchdogs of democracy and fairness in dealing with

the rights of individuals.

Under subsection (4) of section 10 of the Constitution which is similar to Article 7

(2) of the African Charter, it is clearly laid down that: "no person shall be guilty of

a criminal offence on account of any act or omission that did not, at the time it took

place, constitute such an offence, and no penalty shall be imposed for any criminal

offence that is severer in degree or description than the maximum penalty that

might have been imposed for that offence at the time when it was committed".

11

Mauritius firmly believes that in order for a law to be valid and effective, it must be

promulgated and prescriptive. A law which is retroactive tends either to condone

the reprehensible act of a body or individual or declare illegal that was formally

legal.

6. Freedom of conscience, the profession and practice of religion.

Article 8 ACHPR: Section 11 CRM

Article 8 of the African Charter guarantees freedom of conscience, the profession

and free practice of religion. These freedoms are guaranteed in the Constitution of

Mauritius under its section 11, which provides that:

(1) "Except with his own consent, no person shall be hindered in the enjoyment

of his freedom of conscience, and for the purposes of this section, that freedom

includes freedom of thought and of religion, freedom to change his religion or

belief, and freedom, either alone or in community with others and bath in public

and in private, to manifest and propagate his religion or belief in worship, teaching,

practice and observance".

Being a pluri-cultural and pluri-religious society, Mauritius population comprises of

almost all religions of the world who co-habit peacefully and in brotherhood.

Every religious body enjoys total independence for its education and culture and

propagation. Besides religious teaching being a private concern, the Government

of Mauritius has instituted religious studies at primary and secondary level for their

promulgation.

12

The Government of Mauritius has indiscriminately provided financial support and

other assistances in form of granting state lands to societies for the implantation of

proper infrastructure which is actually used for propagation and education of

religious studies. Besides these assistance there are to date:

(a) the Indira Gandhi Centre for Indian Culture

(b) Chinese Cultural Centre

(c) Islamic Cultural Centre

(d) African Cultural Centre

(e) Mauritius Bhojpuri Institute

which are state funded, wholly or partially for the upliftment of tradition, ancestral

language and culture. All these efforts are also carried at consolidating the social

fabric towards unity in diversity.

In the case of Ameer v/s L'Assemble de Dieu 1988 MR 229, the court

reiterated section 11 of the Constitution and observed that the right of the citizen

to freedom of thought and of religion including his right to manifest and propagate

his religion is no doubt a fundamental one duly protected by the Constitution.

The Courts have however been careful in balancing out the practical

exercise of such a right against the protection of the rest of society from any abuse

of the exercise of the said right which may in turn disturb the exercice of other

fundamental Constitutional rights by other citizens.

7. Protection of freedom of assembly and association

Section 13 of the Constitution of Mauritius provides for the enjoyment of one's

freedom of assembly and association. This section provides the individual the

freedom to associate himself without any hindrance to any political or religious

group of his choice. Secondly the individual is also free to join a trade union or

other association for the protection of his interests.

In so far as association to any political party is concerned every Mauritian enjoys

the fundamental right and freedom to exercise his vote for a party of his choice.

Mauritius has a multi-party system based on a one man one vote and first part the

post system. Free and fair elections at national and regional levels are held every

five years under the supervision of the Electory Supervisory Commission an

independent body as provided by the Constitution.

Trade union activities which have been very helpful in moulding some of the

labour legislation have immensely contributed to the welfare of the workers and

improved the tripartite consultation in the best interest of the economy. The Trade

Unions and Labour Relations Bills which will replace the existing Industrial

Relations Act is actually being given due consideration by the Legislative

Assembly.

Under article 10 of the African Charter which stipulates that every individual shall

have the right to free association provided he abides by the law it is apt to note

that under subsection (2) of Section 13 of the Constitution of Mauritius a similar

provision does exists.

Derogations from freedom of association and assembly are permissible to the extent

that the law in question makes provision and must be reasonably justifiable in a

democratic society.

Such derogations are permissible:

(a) in the interests of defence, public safety, public order, public morality and

public health.

(b) for the purpose of protecting the rights or freedoms of other persons or

for the imposition of restrictions upon public officers

8. Freedom of Expression

Article 9 ACHPR: Section 12 CRM

The enjoyment of such freedom as provided under section 12 is

subordinated to the existing law protecting inter alia the reputations, rights and

freedoms of other persons. Under section 12(2), provisions are also made for

restrictions in the interests of defence, public safety, public order, public morality or

public health.

Under section 299 of the Criminal Code it is a criminal offence to diffuse

news which is false or which though true in substance has been altered or falsely

attributed to another person where the publication or diffusion is of such nature as

to disturb public order or public peace. In addition under the 1984 Newspaper and

Periodical (Amendment) Act newspapers are subject to the constraints of strict libel

laws.

15

The Government owns the two televisions and three radio stations, which

broadcast in twelve languages and dialects. Opposition, politicians are given more

air time than previously and new current events programs featuring interviews

with politicians from the political spectrum have been well received.

9. Protection from freedom of Movement

Article 12 ACHPR: Section 15 CRM

Article 12 of the charter concerns about the right of every individual to freedom of

movement and residence within the border of a state provided he abides by the

law, the right to leave his country at his will and to return without any hindrance.

Section 15 of the Constitution of Mauritius provides for the freedom of movement

which means the right to move freely throughout Mauritius, the right to reside in

any part of Mauritius, the right to enter Mauritius, the right to leave Mauritius and

immunity from expulsion from Mauritius.

No case of mass expulsion of non-nationals has been carried out in Mauritius

because of existence of sound legislative laws dealing with immigration and

immigrant workers. It is worth pointing out that Mauritius being an Island has no

border or frontier problems.

The Supreme Court in Mingard v/s the Commissioner of Police and

DPP 1988 MR 57 held that "we must bear in mind that when somebody is being

prevented from leaving the country, it is his freedom of movement which is being

infringed upon." So long as it can be shown that the restriction is permissible

under section 15 of the Constitution, there will be nothing wrong in limiting that

freedom.

16

Furthermore, any arbitrary interference with the individual liberty or civic

rights of an individual is an offence under section 77 of the Criminal Code.

10. Right to participate freely in the Government of one's country

Article 13 ACHPR: Section 31 CRM

Under Section one of our Constitution Mauritius is defined as a sovereign

democratic state. Chapter V of the Constitution deals with the National Assembly.

Subsection (1) of Section 31 states that "there shall be a Parliament for Mauritius,

which shall consist of the President and a National Assembly".

Under Subsection (2) of Section - The Assembly shall consist of persons elected

in accordance with the First schedule, which makes provision for the election of 70

members.

Under section 41 of the Constitution the Election Supervisory Commission and the

Electoral Commissioner have the general responsibility for, and supervision, of, the

negotiation of elections for the election of members of the Assembly and the

conduct of elections of such members.

The qualifications for registration as an elector are laid down in Section 42 of the

Constitution.

Any Commonwealth citizen of not less than the age of 18 years, who either has

resided in Mauritius for a period of not less than 2 years hnmediately before such

date as may be prescribed by Parliament or he is domiciled in Mauritius and is

resident there on the prescribed date and who is not qualified under Section (43)

may register himself as an elector in a Constituency.

Elections are based on the democratic principles of multi-party system, one man

one vote, the first past the post system and majority rule.

For the election purposes Mauritius is divided into 21 Constituencies including

Rodrigues. For an "equal" representation the Electoral Boundaries Commission

has the task of reviewing the boundaries of the Constituencies at such time as will

enable them to present a report to the Assembly every ten years.

The Electoral Boundaries Commission are empowered to make recommendations

for any alterations to the boundaries of the Constituencies as appear to the

Commission to be required so that the number of inhabitants of each Constituency

is as nearly equal as is reasonably practicable to the population quota:

Subsection (5) of Section 39 which deals with "Constituencies" defines

"population quota" as "the number obtained by dividing the number of inhabitants

of the island of Mauritius, (including any island included in any Constituency in

the island of Mauritius, by virtue of any resolution under subsection (1)) according

to the latest official census of the population of Mauritius by 20". General

elections are held at an interval of five years or cesser in certain circumstances

18

Subsection (2) of Section 57 states:

"Parliament unless sooner dissolved shah continue for 5 years from the date of the

first sitting of the Assembly after any general election and shah then stand

dissolved".

Since Mauritius gained its independence, six general elections have been held

based on universal adult suffrage in 1971, 1976, 1982, 1983, 1987, 1991.

Elections of the Municipal and Village Councilors are also held every five years as

stipulated in subsections(1) of Section(8) and subsection(1) of Section 17

respectively.

11 Protection from Deprivation of Property

Article 14 and 21 ACHPR: Sections 3 and 8 CRM

Section 8 of the Constitution of Mauritius provides protection from deprivation of

property section 8 (1) provides that no property of any description shah be taken

compulsorily and no interest or right in property shah be compulsorily acquired by

the state, except under the conditions provided under section 8(1) (a) (b) (c) which

are consonant to the charter which states that "It may only be encroached upon in

the interest of public need and in the general interest of the community or in

accordance with the provisions of appropriate laws.

Under section 3 it is clearly spelt out that protection from deprivation of property is

a fundamental right. The Judicial Committee of the Privy Council, the highest court

of appeal when called upon to interpret sections 3 and 8 held that "section 3

recognised that there has existed and declares that these shah continue to exist, the

right of the individual to protection from deprivation of property without

compensation subject to respect for other and respect for the public interest".

19

Section 8 sets forth the circumstances in which the right to deprivation of property

can be set aside.

12. Right to work under equitable conditions

Article 15 ACHPR: Section 16 CRAN

Section 16 of the Constitution of Mauritius guaranteeing protection from

discrimination, states that no person shall be treated in a discriminatory manner

by any person acting in performance of any public function conferred by any law

or otherwise in the performance of the functions of any public office or any public

authority.

The section further defines "discrimination" as affording different treatment to

different persons attributable wholly or mainly to their respective description by

race, caste, place of origin, political opinion, colour or creed.

Protection of workers and cognisance of their right to work under equitable and

satisfactory conditions is affirmatively guarded in various Act of Parliament,

Regulations and Remuneration orders.

The Labour Act of 1975 regulates the conditions under which a worker shall be

employed, remunerated, dismissed or have his contract terminated. The Act also

provides for adjudicating bodies and other dispute settling mechanism in the desire

to protect workers from exploitation and dismissal without cause.

There are at present 26 Remuneration orders which are aimed at uniformizing the

conditions of work and the rate of pay for the work performed notwithstanding

the specific disparities in the nature of each category of job.

Workers are free to join and form trade unions and to organise in all sectors,

including the export processing zone which employs about 90,000 workers.

20

Forced or compulsory labour is prohibited by law and is not practised. Under the

Industrial Relations Act however the Minister of Labour can refer industrial

disputes to compulsory arbitration.

The Government has also legislated the Occupational Health and Safety Act to set

minimum working standards and working conditions are inspected by Ministry of

Labour officiais.

13. Protection of Physical and Mental Health

Article 16 ACHPR

Mauritius has a national health policy which is under the responsibility of the

Ministry of Health. There are at present 26 Health Centres and 106 Community

Health Centres which cater for the needs of the population in Primary Health care.

In 1993 Government spending on national health represented 3.62% of the Grass

National Product of the Country compared to 1985 which was only 1.8% of the

GNP. Mauritius is among the rare welfare states which has still preserved free

health care to everyone. However, private health care centres and clinics do exist.

The national health programme is primarily preventive and curative, but emphasis is

also laid on education and information to bring to people's awareness of ail the ills

of any disease. In the wake of this move, specialised centres for research have

been set up at the Ministry of Health. Among them include the SSR Cardiac

Research Centre, a special division to report on the non transmissible diseases and

a National Aids Control Programme.

14. Right to Education

Article 17 ACHPR

21

Mauritius places great importance in the education of its citizens, without which

no progress may be possible. The pyramid of free education system is based as

follows.

(1) Pre-primary and primary education

(2) Secondary education

(3) Vocational Training schools

(4) Tertiary education

The pre-primary level of education is mostly a private concern but the Government

of Mauritius, has left no stone unturned in providing all the facilities in forms of

training, equipments, inspection and loans at a lower interest rate to those

interested in the establishment of such schooling.

The primary school begins from the age of six until 11 years. There are actually 281

primary schools for a school population of 125,000 aged 5 to 12.

Every year about 35,000 students participate in the certificate of Primary

education and the percentage of passes for the year 1993 was 58.6%.

The drop outs and those having failed the examination at CPE are diverted to

technical schools or to special schools.

Maintaining free education from primary to tertiary education is another eloquent

proof of the earnest desire of the Government of Mauritius, in maintaining the

Welfare State.

The annual budget voted for education is Rs 2,062,875,000 which represents

14.4% of the national budget of 1994/95.

22

Besides education being free for ail it is encouraging to note that section 14 of the

Constitution of Mauritius protects the freedom to establish schools at one's own

expense. The section mentions that:

(a) No religious denomination and no religions social, ethnic or cultural

association or group shall be prevented from establishing and maintaining schools

at its own expense.

However derogations from this right are possible in the interest of defence, public

safety, public morality or public health, provided those derogations being

reasonably justifiable in a democratic society.

To sum up, Mauritius has as to date 850 pre-primary schools 281 primary schools,

123 secondary school and a number of public and private funded vocational

Training schools:

The tertiary education is composed of

(1) The national University of Mauritius

(2) The Mauritius Institute of Education

(3) The Mahatma Gandhi Institute

The Education Act has undergone major amendment in 1991 by the Education

(Amendment) Act.

Section 37 of the principal Act has been repealed and replaced by the following

section:

23

37 - compulsory primary education

(1) every child who has attained such age as may be prescribed

for admission to a primary school shall attend a primary school.

(2) Where the responsible party of child referred to in subsection

(1), without reasonable cause, refuses or neglects to cause the child to

attend primary school regularly, he shall commit an offence and shall

on conviction, be liable to a fine not exceeding Rs 2000/. and to a

terra of imprisonment not exceeding 2 years".

This Act has corne into operation on 1 January 1993 by Proclamation.

15. Protection of the Family

Article 18 ACHPR

The Government of Mauritius spares no effort in protecting and providing the

rights and facilities to enjoy those rights as enhanced in the article.

The term family in our society is basically refen-ed to as a group of persons related

by birth or marnage who live together in the same household. It has, however, a

broad connotation which englobes extended as well as nuclear families.

Protection of the family unit is a great concern for the Government of Mauritius.

Assistance and protection to the family are given in both under the Family

Allowance Scheme and the Family counselling service which provides specialist

advice to families individuals in need.

24

There is a Ministry of Women's Rights Child Welfare and Family Protection with a

senior Cabinet Minister at its head.

Through the Social Aid Act and the Ministry of Social Security several allowances

are provided to children, orphan, widows and old persons who have attained sixty

years as well as handicapped people.

These allowances help to keep the family unit intact by alleviating the financial

burden on the individual.

On 15 May 1994 Mauritius celebrated the international year or the family to arouse

the conscience of every individual with the advent of new legislation. Many

types of benefits are being provided in order to protect in one way or another the

family unit. Among these may be quoted:

(a) Payment of Examination Fees in respect of needy students,

(b) Funeral Grant in the event to the death

(c) Allowance to fishermen during hard times

(d) Gift to centenaries,

(e) Allowance to fire victims

Section 3 of the Constitution of Mauritius while protecting the fundamental rights

and freedom of the individual stipulates clearly that these rights shall continue to

exist without discrimination by reason of race, place of origin, political opinion,

colour, creed or sex.

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In 1984 Mauritius ratified the convention on the Elimination of all forms of

Discrimination against women thereby internationalising the equal rights and

freedom of women.

It is pertinent to note that job opportunities tend to favour female workers and out

of a workforce of 84,000, 70% of the workforce in the textile industry were of the

female sex in 1993.

Legislative measures for the improvement of the status of women include:

(a) the presence of female sex in the jury system

(b) the right of the spouse to hold property and account in her own name.

(c) the right to contract loan for business purposes on her own name.

Along with these measures women representation in all fields of activity in

Mauritius is quite remarkable. Women are engaged not only in the Export

Processing Zone, but also in teaching, banking, legal departments, health and

sanitation, agriculture and the police.

16. Equality of All Peoples

Article 19 ACHPR (see also above on Discrimination)

Section 16 of the Constitution of Mauritius provides protection from discrimination

which states that no person shall be treated in a discriminatory manner by any

person acting in performance of any public function conferred by any law or

otherwise in the performance of the functions of any public office or any public

authority. Subsection 3 of the same section gives, the meaning of discrimination as

affording different treatment to different persons attributable wholly or mainly to

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their respective description by race, caste, place of origin, political opinions, colour

or creed whereby persans of such description are subjected to disabilities or

restrictions to which persons of another such description are not made subject or

are accorded privilege, or advantages that are flot accorded to persons of another

such description.

17. Right to Self-Determination

Article 20 ACHPR

The right to existence and self-determination is an undeniable right of both the

individual and the State. Mauritius has solemnly undertaken to preserve and

protect such right as embodied in the United Nations Charter and other

international covenants protecting these fundamental rights.

Mauritius became an independent sovereign democratic state since 1968. Almost

one and a half centuries of colonialism was brought to an end in 1968 when the

people of Mauritius decided to take the destiny of their country in their own

hands.

After 1968 the territories of Mauritius comprised the Islands of Mauritius,

Rodrigues, Agalega, the Chagos Carajos Islands mainly St Brandon. It should be

noted that at the Constitutional conference held in London in 1965 between

colonial office and political representatives of Mauritius, the Chagos Archipelago,

including Diego Garcia, was excised from the territory of Mauritius.

Mauritius lias constantly claimed its sovereignty on the Chagos Archipelago.

Meaningful dialogue between United Kingdom and Mauritius is the only hope for

an early and satisfactory settlement of the matter. A number of confidence

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building measures have been undertaken in this respect, amongst which the

establishment of a British-Mauritian Fisheries Commission which aims at

promoting, facilitating and coordinating conservation and scientific research in the

Chagos waters. The recent visit to Diego Garcia in May 1994 by a delegation led

by the Minister of External Affairs brings a beam of legitimate expectation for the

steady transfer of control to Mauritius of Diego Garcia.

It is mandatory under the constitution to hold elections every five years. The

legislature consists of a National Assembly comprising of 62 elected members and 8

under the proportional representation thus correcting any communal imbalance in

the results of the elections. This proportional representation is another important

means to protect the interest and rights of the 4 communities as described in the

constitution. The right to vote is extended to those who have attained 18 years.

Besides the General elections which are held to vote for a Government with the

Prime Minister at its head, Municipal and local elections are also held at regular

intervals so that more transparency be shown in the exercise of the democratic

government.

Self determination has also been enhanced by the pursuit of an independent

foreign policy well characterised by the straight forward approach of Mauritius on

international issues.

Mauritius has also participated as observer status in the general election's held in

South Africa and Senegal for conferring right to self-determination to the peoples.

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Article 21

Section 8 of the Constitution of Mauritius provides, that no property of any

description shah be compulsorily taken possession of, and no interest or right over

property of any description shall be compulsorily acquired.

However derogations from this right have been provided in the interest of public

health, public interest public order and public morality. A further condition for

such derogation to be permissible is that it should be reasonably justifiable in a

democratic society.

While no such case of spoliation has ever been registered in Mauritius legislative

and constitutional measures are provided for adequate compensation or

repos session of the property.

In order to promote international economic co-operation and regional trade

relation the Government of Mauritius has corne up with a series of measures at

national and international level. Thus the abolition of Exchange Control and the

liberalisation of the Exchange Rate Mechanism will boost up the flow of

international currencies in and out of country. Secondly the establishment of

Freeport and Offshore Banking Authority with a solid Stock Exchange

Commission the Government has envisaged to have as many Double Taxation

Agreements which will help foreign investors in the transfer of capital, and

purchase of plant and machinery.

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18. Right to Economic Social and Cultural Development

Article 22 ACHPR

Since the dawn of independence and institution of a democratic sovereign state,

the Governments' policies have centred primarily on the development and

emancipation of the individual for the benefit of the Mauritian Society.

With the establishment of the Welfare State, successive governments have

unsparingly legislated in favour of the needy and the poor. Among the legislative

strides towards the enhancement of the life and preservation of the right to the

people's economic, social and cultural development are:

(a) right to the free education from primary to tertiary level;

(b) right to freedom of association and religion;

(c) free movement of labour;

(d) free health care from womb to tomb;

(e) Social Benefit in terras of;

Family allowances for children, widows and orphans pension, old-age pension etc.

Mauritius has a consistent programme of action to bring the necessary

infrastructure at the threshold of every individual. Thus, a programme of action has

been set up in order to achieve the aim projected by "Vision 2000". With the

collaboration of public and private sector and also of Non-Governmental

Organisations, the target for 2020 and above has been formulated and in this

endeavour several changes are being brought in the Management and distribution

system at regional and international level.

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The establishment of a solid economic base in the African region, the Preferential

Trade Agreement, the African Development Bank and the South Africa

Development Countries (SADC) trade and investment among African nations will

rapidly grow and most of trade barriers will be lifted steadily for easy access to

market and uniformisation of tariff. Mauritius has already shown its keen interest

to enter the SADC to give a boost to this laudable economic move.

Mauritius has also participated at the World Conference held in Kingston in

Jamaica in May 1994 on sustainable Development of Island States.

19. Right to National and International Peace

Article 23 ACHPR

Having a very high regard to the respect for human rights, Mauritius is guided by

the cardinal principle of peace and solidarity as enshrined in the United Nations

Charter and that of the Organisation of African Unity. Mauritius has always

condemned at international level and at regional fora any political manoeuvres

used for the purpose of destabilising any Government or state. Mauritius has also

been very active in the process of decolonisation which led to the granting of

independence to many African States.

Mauritius condemns all terrorist activities that are used to subvert and topple down

a democratically elected government.

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20. Right to a General Satisfactory Environement

Article 24 ACHPR

Mauritius strongly believes that a sound political, economic, social , Cultural and

physical environment is the backbone of the individuals` progress, hence national

security and solidarity. Mauritius jealously guards upon the existing assets as,

socially integrated population, unity in cultural and religious diversity and an

island fraught with the rare fora and fauna. At the same time it provides legislative

boosts up to preserve and consolidate these existing Mauritian miracle.

21. Duty to promote the respect of Rights and Freedoms in the ACHPR

Article 25 ACHPR

Mauritius having a democratically elected government with a written constitution

to preserve the fundamental rights and freedom of individual, and effective and

confidence building measures through strict legal rules and legislation, does not fail

to imbibe in the heart of every Mauritian the guiding principles of brotherhood,

peaceful co-existence and social cohesion which are inherent in the United

Nations as well as the African Charter.

22. Duty to guarantee the Independence of the Courts

Article 26 ACHPR

Mauritius Judicial System consists of a Supreme Court, which has also appellete

powers an Intermediate Court and lower Courts more commonly known as District

Courts.

The final appeal may be made to the Judicial Committee of the Privy Council in

United Kingdom.

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The President in consultation with the Prime Minister, nominates the Chief Justice

and in consultation with the latter nominates Senior Puisne Judges. The President

nominates other judges on the advice of the Judicial Legal Service Commission.

The legal system is totally independent of the executive branch of Government

and has consistently provided fair, public trial for those charged with crimes.

The Judiciary is also charged under the Constitution with ensuri;ng that new laws

are consistent with democratic principles. Whilst legal specialist have warned of

the danger of the influence of the executive over the judiciary, there have

nevertheless been a number of recent legal decisions against the Government, the

most recent one being a Supreme Court rejection of an attempt of strip the leader

of opposition of his seat.

Chapter II

Duties

Far from being prescriptive the Constitution of Mauritius is also power conferring

and duty imposing. h is the state's duty to see that the fundamental rights of each

individuel is respected and safeguarded and that those rights are exercised in such

a manner as not to infringe the liberty of others.

Peace and security and the prevalence of harmonious relation do not depend

solely on the state but also on the individuals' selfless and most willing attitude

towards these goals.

Although being a cultural Laboratory or a mosaic of the world where almost all the

ancient cultures and religion reside, democracy, self respect and freedom of all are

the "atout" most jealously preserved in order to provide a sound and healthy family

environment.

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The Constitution of Mauritius not only shares the powers between the state

organs and the individuals but also believes in the glorious idea of "partages de

responsibilités à chacun en fonction de ses capacités".

While it remains an axiom that unfettered freedom does not exist and that freedom

is a relative factor which is clothed with various geographical and ideological

livings, it remains the prime objective of the State of Mauritius to bring a balance

between the freedom of our individual and that of another. Secondly freedom of

one

individual is not meant to infringe the liberty of another.

However, checks and derogations from freedom are permitted under the

constitution in the interest of preserving public peace, public health and public

morality.