Posted: 26 March, 2025 Filed under: Lakshita Kanhiya, Michael Gyan Nyarko | Tags: 37th Ordinary Assembly, administration of justice, African Committee of Experts on the Rights and Welfare of the Child, African Court on Human and Peoples’ Rights, African Court Protocol, African Union, Anil Kumarsingh Gayan, beacon of democracy, colonial heritage, economic stability, historic declaration, human rights, Mauritian legal system, Mauritius, quest for justice, reparations, Year of Justice for Africans and People of African Descent Through Reparations
| Author: Lakshita Kanhiya Legal Associate, Initiative for Strategic Litigation (ISLA) in Africa |
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Author: Michael Gyan Nyarko Deputy Executive Director, Institute for Human Rights and Development in Africa (IHRDA) |
The Heads of States and Governments of the African Union (AU) have declared 2025 the ‘Year of Justice for Africans and People of African Descent Through Reparations’. This historic declaration, made during the 37th Ordinary Assembly held in Addis Ababa in February 2024, resonates deeply within the broader quest for justice, human rights, and the long-overdue reckoning with colonial legacies across the continent. As the continent prepares to collectively reflect on justice and reparations, it becomes imperative to critically assess the structures and systems that hinder the realisation of justice for African people. One such structural barrier lies in the reluctance of several African states, including Mauritius, to fully embrace the jurisdiction of the African Court on Human and Peoples’ Rights (African Court) through direct access for individuals and NGOs under article 34(6) of the Protocol establishing the African Court (African Court Protocol /Protocol).
Mauritius is often celebrated as a beacon of democracy, economic stability, and legal sophistication within the African continent. On the back of this reputation, Mauritius plays an important role in the African human rights system, currently having its citizens serving as members of both of the African Union’s quasi-judicial human rights monitoring bodies – the African Commission on Human and Peoples’ Rights (African Commission /Commission) and the African Committee of Experts on the Rights and Welfare of the Child (African Children’s Committee /Committee). While the members of these monitoring bodies serve as experts in their individual capacities, their election is often premised on nomination by the member states and diplomatic campaigning for support for these candidates. These monitoring bodies perform the all-important functions of promoting human rights, providing guidance to member states in the implementation of their treaty obligations and adjudicating on complaints of human rights violations. Having citizens serve on these two major human rights monitoring bodies therefore signals a commitment on the part of the government of Mauritius to play an active role in the promotion and protection of human rights across the continent.
On the political front, last year Mauritius proposed a candidate for the African Union Commission (AUC) election, fielding Anil Kumarsingh Gayan as the Special Envoy of the Mauritian Prime Minister and AUC Chair candidate. This move signalled the ambition of Mauritius to solidify its influence within the African Union’s governance structures. Yet, this ambition contrasts sharply with its hesitancy to fully engage with all of the African Union’s justice mechanisms and in particular its failure to make the article 34(6) declaration. Its legal system, however, reflects a complex colonial heritage that continues to shape the administration of justice in the country. Understanding the nuances of the Mauritian legal system and how it intersects with the African Court requires an appreciation of both historical context and contemporary developments.
The Mauritian legal system is a hybrid model, heavily influenced by its colonial past. Mauritius was successively colonised by the Dutch (1598–1710), the French (1715–1810), and the British (1810–1968), with each colonial power leaving its mark on the island’s legal and administrative structures. Under French rule, the island, then known as Isle de France, operated under the French Civil Code, the French Code de Commerce, and the French Code Pénal. These codes governed areas such as marriage, divorce, contracts, torts, succession, and property law. The British, upon taking control of the island in 1810 after the Napoleonic Wars, retained much of the French legal framework in civil matters. This decision was codified under Article 8 of the Capitulation Act 1810, which allowed the inhabitants to maintain their religion, customs, and existing civil laws. While French-inspired civil law remains dominant in areas such as marriage, contracts, and property, the British colonial administration introduced common law principles to regulate other aspects of legal life, particularly criminal law and procedure. Therefore, Mauritius’ legal system comprises elements of French civil law, British common law, and legislation passed by the Mauritian Parliament. Additionally, Mauritius has incorporated legislation inspired by foreign jurisdictions, including the New Zealand Act 1995 (implemented in the Mauritian Company Act 2001), Singaporean anti-corruption laws (in the Prevention of Corruption Act 2002), and Hong Kong’s counter-terrorism laws (adopted in the Prevention of Terrorism Act 2002).
Mauritius occupies a unique position within the African human rights framework. The country continues to rely on the Judicial Committee of the Privy Council (JCPC) in London as its final court of appeal. This colonial relic, rooted in centuries-old traditions of imperial adjudication, persists as the ultimate arbiter of justice for Mauritian legal matters including human rights, and raise questions about the sovereignty of the Mauritian legal system and its alignment with regional judicial mechanisms.
Recent notable cases before the Privy Council include Surendra Dayal v Pravind Kumar Jugnauth and Others (JCPC/2023/0006), which arose from allegations of bribery and electoral misconduct against the former Prime Minister of Mauritius, Pravind Kumar Jugnauth, and other officials. The judgment dismisses Surendra Dayal’s appeal challenging the validity of the 2019 Mauritius National Assembly election results for Constituency No. 8 on grounds of bribery, treating, and undue influence. The Privy Council ruled that promises made by Prime Minister Pravind Kumar Jugnauth regarding pension increases, public sector pay adjustments, and bonuses were part of normal electoral campaigning, not bribery. Additionally, the court found no evidence of illegal treating in the provision of food and drink at an event for senior citizens. Another significant case is Eco-Sud and Two Others v Minister of Environment, Solid Waste and Climate Change and Another (JCPC/2023/0070), a climate justice litigation where the Privy Council dismissed the appeal by the Minister of Environment, Solid Waste Management, and Climate Change of Mauritius, affirming that Eco-Sud, an environmental association, has standing to challenge the issuance of an Environmental Impact Assessment (EIA) licence for a large residential project near Pointe d’Esny, a protected Ramsar site. The judgment highlighted that undue prejudice under the Environmental Protection Act 2002 is not limited to economic interests or private property but includes harm to environmental interests. The case was remitted to the Environmental and Land Use Appeal Tribunal for further determination on Eco-Sud’s standing based on this interpretation. Additionally, the case of Coomaravel Pyaneandee v Paul Lam Shang Leen and Others (JCPC/2022/0040) involved Coomaravel Pyaneandee, a prominent human rights advocate, who challenged the composition and procedural fairness of a commission of inquiry led by Paul Lam Shang Leen investigating drug trafficking and corruption in Mauritius. The appellant argued that the report unfairly implicated him in unethical and criminal conduct without proper disclosure of evidence or a fair hearing, violating the rules of natural justice. The Privy Council held that the impugned passages in the report were amenable to judicial review and that the Commission’s procedure lacked fairness, including failing to provide key documents and evidence in advance.
While Mauritius maintains the right of appeal to the Privy Council, its reluctance to engage fully with the African Court raises important questions about its full commitment to regional justice mechanisms. Mauritius has ratified the African Court but has not made the necessary declaration under Article 34(6) to allow individuals and NGOs direct access to the Court. This omission limits Mauritian citizens’ ability to seek justice at the regional level for human rights violations.
The African Court was established to complement the protective mandate of the African Commission and functions similar to the European Court of Human Rights and the Inter-American Court of Human Rights. Unlike the African Commission, which makes recommendations that some consider non-binding, the African Court has the explicit power to issue binding decisions, thereby providing a more effective means of ensuring states’ compliance with their human rights obligations. The African Court Protocol came into force on 25 January 2004 and the Court was established in 2006 following the election and swearing in of ita first judges. Composed of eleven judges who are elected by the African Union (AU) Assembly of Heads of State and Government, the African Court has its permanent seat in Arusha, Tanzania. For individuals and NGOs to be able to access the African Court directly, a state that ratifies the Court’s Protocol is required to make a declaration under Article 34(6) of the Protocol. States that have ratified the Protocol but have not made the declaration under Article 34(6) only allow cases to reach the Court indirectly, through the African Commission. However, this route is rarely utilised due to institutional reluctance and capacity, resulting in very few cases being referred from the Commission to the Court. To date, only seven countries namely Burkina Faso, Ghana, Guinea-Bissau, Malawi, Mali, Niger, and The Gambia permit their citizens direct access to the African Court under Article 34(6). The African Court’s track record handling cases on minority rights, political freedoms, and socioeconomic justice as reflected in Mtikila and Tanganyika Law Society v Tanzania (2011), Norbert Zongo and Others v. Burkina Faso (2014), Actions Pour Ia Protection des Droits de l’Homme (APDH) v Cote D’lvoire (2016), African Commission on Human and Peoples’ Rights v Kenya (2017), Association Pour le Progrès et la Défense des Droits des Femmes Maliennes (APDF) and Institute for Human Rights and Development in Africa (IHRDA) v. Mali (2018) and Centre for Human Rights and Others v. United Republic of Tanzania (2025) amongst others, illustrates its potential to serve as a bastion of justice for marginalised and oppressed populations.
The coexistence of access to the Privy Council and the denial of direct access to the African Court creates a fragmented and inconsistent legal framework. This duality sends conflicting messages regarding Mauritius’ stance on human rights accountability or perhaps its faith in the African Union’s main judicial organ. On one hand, Mauritius retains an institution rooted in colonial rule, while on the other, it refrains from fully engaging with a continental judicial mechanism designed to advance African justice. This dichotomy not only hinders the development of a unified African human rights system but also perpetuates a perception of neo-colonial allegiance at the expense of African unity and solidarity. The refusal to accept Article 34(6) erodes Mauritius’ credibility as a champion of human rights and a leader within the African human rights architecture. It reflects a preference for Eurocentric adjudication over regional solidarity and this undermines efforts to build a resilient and coherent system of human rights protection in Africa.
Direct access to the African Court by individuals and NGOs is more than a procedural formality. It is a fundamental element of justice and accountability. Most cases brought before the African Court have been through direct access, underscoring its vital role in securing redress for human rights violations. By denying individuals and NGOs the ability to directly approach the Court, Mauritius not only restricts avenues for justice but also diminishes the relevance of the African Court itself. While indirect access through the African Commission remains theoretically possible, the practical challenges and institutional reluctance to forward cases make this an unreliable route. Consequently, individual access becomes not just desirable but indispensable.
Mauritius, having ratified the Protocol, must now demonstrate genuine political will by making the necessary declaration under Article 34(6). The 2025 AU theme of justice and reparations for Africans and people of African descent presents Mauritius with a historic opportunity to shed colonial relics and champion African-centered justice. In a period when a number of African states have withdrawn access to the African Court (most recent being Tunisia), this is an opportune moment for Mauritius to rise to the occasion, affirming its full commitment to the democratic and human rights ideals it is often reputed for. Such commitment can be shown through full participation in African human rights mechanisms including allowing direct access to the African Court. This solidarity is important now, more than ever. Continued reliance on the Privy Council while denying direct access to the African Court sends a conflicting message, suggesting a preference for outdated colonial structures over progressive, regional solutions. It’s time for Mauritius to step forward as an active architect of regional justice, not a passive observer.
About the Authors:
Lakshita Kanhiya is a Legal Associate at the Initiative for Strategic Litigation (ISLA) in Africa and a Doctoral Candidate and the Centre for Human Rights, University of Pretoria.
Michael Gyan Nyarko is the Deputy Executive Director of the Institute for Human Rights and Development in Africa (IHRDA)
