'\frican Commission on
—Iman & Peoples' Rights
Commission Africaine des Droits
de l'Homme et des Peuples
(airaba Avenue
>X). Box 673
3ANJUL, The çambia
ACHPR/PR/MAURITIUS/XVIII
( 220) 39 29 62
'ax ( 220 ) 39 07 64
'elex 2346 OAU BJL GV
rel.
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 wellbeing 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)
court.
for the purpose of bringing him before a court in execution of the order of a
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.
25
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
26
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
27
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.
28
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.
29
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.
30
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.
31
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.
32
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.
33
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.