The government is looking to restore the old sedition law against the social activist arrested during the recent protests against fuel price hikes and inflation. His lawyers want the Supreme Court to strike down the sedition law as unconstitutional. Is the government right to resurrect the sedition charge to deal with the 31-year-old?
The onus of the case
Following the protests that broke out against the fuel price hikes and general runaway inflation, the government has dusted off the crime of sedition to charge 31-year old Darren Seedeeal in connection with the protests. This law is section 283 of the Criminal Code that dates back to 1838 where sedition is defined as anything which “holds or brings into contempt, or excites disaffection towards, the Government or the administration of justice”, or “raises discontent or disaffection among the citizens of Mauritius or promotes feelings of ill-will and hostility between different classes of such citizens”. The law says that anybody found guilty of sedition can go to prison for up to two years and be fined Rs100,000. In response, Seedeeal’s lawyers, on April 25, put in a motion at the District Court of Rose-Hill, where the 31-year old is being tried, to allow the Supreme Court to take a look at the sedition law to see whether it is constitutional or not.
Sanjeev Teeluckdharry, one of his lawyers speaking to l’express, said that the law of sedition went against sections 1, 3, 12 and 13 of the constitution, related to democracy and freedoms of expression and association. “We have a constitution and any law that goes against it is null and void,” Teeluckdharry says, “the Criminal Code was introduced during the colonial period and at the time the crime of sedition was introduced to combat any criticism of the colonial administration.” The problem, he adds, “is that the law on sedition is so vague that even if you take the Public Accounts Committee report and say that the government has been careless, technically that too can be sedition. Today, this law is being weaponized to silence political opponents and social activists. We are in a democracy and have the right to criticise and protest the price-fixing of petrol and extravagant government spending, freedom of expression means the right to criticise all that.”
Exactly what procedure Seedeeal’s lawyers want to use in their motion is one of two possible methods to challenge any law. “Since the Supreme Court is the only court able to decide on the constitutionality of a law, if you want to challenge it, you can either take a case directly to the Supreme Court,” explains constitutional lawyer Milan Meetarbhan, “or you can have a lower court refer it to the Supreme Court.” This is under section 84(1) of the Constitution. This does not, however, mean that Seedeeal’s case will automatically be heard at the Supreme Court. “If a lower court, such as a district or the intermediate court, feels that there is a constitutional question involved, they will send it to the Supreme Court, such a motion is not granted for the mere asking,” says former Supreme Court Judge Vinod Boolell, “the magistrate will look at the motion and then decide.”
This is not the first time that a law has been challenged in this way. In 2003, Abdool Rachid Khoyratty was arrested with three grams of heroin to allegedly sell. His bail was denied because of changes that were made to the constitution as well as the Dangerous Drugs Act 2000 that denied bail to suspects in drug-related cases. Just as what Seedeeal’s lawyers want the Rose-Hill court to do, in that case too, a district court referred the matter to the Supreme Court since it was argued that the change to the law stepped on the court’s constitutional prerogative to decide whether or not to grant bail.
The case made it all the way to the Privy Council, which in 2006, decided that the law to restrict bail in this way was unconstitutional. “The Khoyratty case became a major milestone in the judicial history of Mauritius,” says Meetarbhan. The difference this time round is that Seedeeal’s lawyers want the Supreme Court to take on the crime of sedition. “This is the first time that anybody has challenged the constitutionality of the crime of sedition,” recalls Rajen Narsinghen, senior lecturer in law at the University of Mauritius, “it’s all a question of interpretation and will depend on whether the courts take a conservative or progressive attitude on this”.
The problem with Mauritian sedition
One of the big problems with sedition in Mauritius is that the judiciary have had a big problem translating an archaic, colonial law into an independent, democratic state. Firstly, there is the fact that the law on sedition is too vague. “It’s couched in such a way that potentially no one can challenge the government,” says Narsinghen, “while we cannot allow people to call for violence, at the same time we cannot just shut people up completely either.”
Just to see how Mauritian courts themselves have trouble figuring out what sedition exactly is, we need to look at how the definition of sedition itself has been interpreted differently over time. In 1911, there was the Le Vieux case against a writer of a now-defunct newspaper Le Petit Journal. “In that case, an incitement to disorder was seen as a key part of establishing that sedition had taken place,” says Boolell. The reasoning was that since Mauritius’ own sedition laws had emerged from the UK’s sedition laws, sedition cases in Mauritius should be judged to the same standard as English ones; that is, it wasn’t enough to just criticize the government, but one also had to call for violence and disorder as well.
However, in the Millien case in 1949, the opposite was the case. “Here the court held that inciting to violence was not necessary to prove sedition,” says Boolell. The case was about an article in another paper L’Oeuvre that criticised the then-British governor Sir Donald Mackenzie-Kennedy. The reasoning was the complete opposite: since Mauritius was a colony, sedition laws could not be interpreted the same way as they would be in the UK and that they should be judged in the same way as Privy Council judgements from other British colonies concerning sedition. “Applying those principles to our law we have no option but to rule that seditious intent in our law does not mean an intent to cause disorder or violence. However much this proposition may seem retrograde or offend our cultural pride,” the Supreme Court lamented.
These however were cases when Mauritius was a British colony. After independence, on the rare instances when the charge of sedition was used, the contradictory definitions of the crime from the Le Vieux and Millien cases caused problems. The case going back to 1972 concerned Hervé Masson who wrote in Le Militant and criticised the government and the police for treating a strike as illegal even though a court had already allowed it. Masson was accused of sedition. But the question was: what is sedition in independent Mauritius? The Supreme Court recognized the problem: is criticising the government enough to prove sedition (as the Millien case ruled) or should that criticism be accompanied by calls for violence (as the earlier Le Vieux case held) for anything to be sedition? In the Masson case, the court argued that going by the approach in Millien, “even a criticism of the existing government or an expression of a desire for a different system might be an offence and a large number of persons would be guilty of sedition”.
For the crime of sedition not to openly contradict the Mauritian constitution, in the Masson case, sedition was defined as seditious speech accompanied by a call to violence and disorder. “The court ruled that Le Vieux was a better view,” says Boolell, “but given how vaguely sedition is defined in the law it would be interesting to see how the courts would see it after the Seegum judgement”, referring to the case in 2021 when certain parts of the old ICT Act were ruled as unconstitutional for being too vague.
But the Masson case was not without its problems either. For instance, in the same case, the court goes on to add, “No doubt the truth of the libel is no defence in cases of sedition and connected offenses…” In other words, it did not matter whether the alleged sedition dealt with facts. In a preliminary report looking at media law in Mauritius, Geoffrey Robertson stated that “it has been held in Masson v R (1972) that truth is not a defence and this is entirely unacceptable in the case of criticisms of government”.
Given how rarely sedition charges have been used in independent Mauritius, it’s not just the courts, but also politicians that seem to have trouble defining what sedition is. In 1982, MMM leader Paul Bérenger took then information minister Suresh Moorba to court over a 30-minute video that the then-government was running on the MBC scaring voters not to vote for the MMM by criticizing Bérenger and his opposition party ahead of elections that year. The MMM leader said that the film “constitutes a character assassination of my person, based on slander, libel and sedition”, asking a judge in chambers to prevent the film, or parts of it, being aired out again by the government. “I must say at once that I do not see how sedition can be involved,” the judge responded. The case ultimately failed, but on different grounds entirely.
Mauritius is a laggard
The problem with Mauritius reviving the sedition law now – there has never been a successful sedition prosecution since Mauritius became independent in 1968 – is that it increasingly hurts Mauritius’ democratic credentials. The United Kingdom – which invented the crime of sedition and from where Mauritius gets its own sedition law – abolished it back in 2009 as did other states such as South Korea in 1988, Indonesia in 2007 (which branded its sedition law as a relic of Dutch colonialism), Kenya in 1997, Ghana in 2001, New Zealand in 2007, Jamaica in 2013, the Maldives in 2018, Sierra Leone in 2020, and Singapore in 2021. In others such as Uganda in 2017 and Eswatini, the courts have chucked out sedition laws stating they were unconstitutional.
Having Mauritius revive its sedition law also puts it out of lockstep with regional courts within Africa. In 2018, the ECOWAS Community Court of Justice ruled that Gambia’s sedition laws violated international standards on free speech and urged their repeal. The following year, in 2019, the East African Court of Justice judged that Tanzania’s sedition laws needed amending. In keeping sedition on its law books, Mauritius joins countries such as Saudi Arabia, Malaysia, Iran, Uzbekistan, Sudan, Senegal and Turkey.
In looking to dust off and use its own sedition laws, a report in April this year by Trial Watch, noted that Mauritius would be joining habitual abusers of sedition laws such as China which has revived British-era sedition laws in Hongkong to prosecute figures linked with pro-democracy protests that broke out in 2019; Thailand which has used sedition laws to prosecute critics of its monarchy during protests in 2020; and India which has lodged more than 800 sedition cases since 2010 against government opponents.
The case for the law’s repeal
Given the difficulties of enforcing the crime of sedition in a democratic state, it’s no surprise that Robertson’s preliminary report took the stand on sedition that it did: “The preliminary report called for its repeal,” Narsinghen argues. Here is what the report had to say; “It is wrong to have a crime carrying a prison sentence for ‘exciting contempt or disaffection towards the government’ – in a democracy, this is often what the opposition will do!” The problem with sedition, Robertson’s report continued, is that it also gives the President the power to ban books deemed to be ‘seditious’, or the courts to ban newspapers for printed, or even possible future sedition (sections 287 and 287 A of the Criminal Code).
“It’s the Law Reform Commission that should be looking at old laws to see whether they are still compatible with the constitution,” says Teeluckdharry, “there are still quite a few such crimes, but this has not been done.” Aside from sedition, other archaic laws criminalise the publication of false news (which the government mulled extending into the social media realm through amending the ICT Act), outrage against religious morality, criminal libel – prosecuting anything “prejudicial to honour, character or reputation” – even if it is true. Like sedition, the Robertson report recommended getting rid of that too arguing, “there appear to be no recent prosecutions in Mauritius and if there were any in the future then section 288 (on criminal libel -ed.) might, if unreformed, be held by the Privy Council to be contrary to section 12 of the constitution”. Unlike countries like Kenya in 2017 and Jamaica in 2013 which abolished criminal libel.
Then there are others such as section 284 of the Criminal Code (inciting civil disobedience or resistance to law) which, the report warned, because it was so vague, risked, “its possible use against legitimate protest or trade union activity” or section 296 of the Criminal Code (the offense of insult) which the report slammed as “a relic of the Napoleonic insult laws, passed to protect public officials from criticism and which has no place in a modern democracy”. Sedition is just another one of those survivors from an earlier age. But coming back to sedition, although the government is keen on reviving it in the Seedeeal case, the current prime minister, Pravind Jugnauth, should be especially aware of just what a double-edged sword it can be.
After all, he was arrested after a press conference on December 21, 2012, where he criticised the then- Labour-led government’s handling of the MITD case where a staff member was accused of having had sexual intercourse with minors. Jugnauth calling the administration a “paedophile government” was enough for then-minister Sheila Bappoo to lodge a police complaint, with the government thinking about charging Jugnauth with sedition. It was only after the case made it to the Office of the Director of Public Prosecutions in March 2014 that the DPP refused to lodge a sedition charge against Jugnauth, advising no action against the MSM leader. The difference, of course, was that the MSM was in the opposition and on the receiving end. Now it is in power and looking to dole out the same medicine against its own critics.