Chapter 1 of the 1968 Constitution of the Republic of Mauritius contains the “fundamental rights and freedom of individual”.Chap. II, 1968 Constitution.Among the rights that must be protected is “the right of the individual to life, liberty, security of the person and the protection of the law”.S. 3(a), 1968 Constitution.The Constitution states, however, that a violation of the right to life shall not occur if a person:
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.S. 4(2), 1968 Constitution.
The Constitution further states that: “No person shall be subjected to torture or to inhuman or degrading punishment or other such treatment.S. 7(i), 1968 Constitution.
Article 3 guarantees the right to freedom of assembly.
The Constitution creates the public office of the Commissioner of Police whose duty is “to command the Police Force”.S.71(2), 1968 Constitution.The Commissioner of Police takes and complies with “general directions of policy with respect to the maintenance of public order” from the Prime Minister or a Minister acting on behalf of the Prime Minister.S.71(3), 1968 Constitution.The Commissioner of Police is also responsible for “for determining the use and controlling the operations of the Force".S.71(4), 1968 Constitution.Mauritius does not have a national armed force. All military, police, and security functions are carried out by the police.
1966 Covenant on Civil and Political Rights (ICCPR)
|ICCPR Optional Protocol 1||State Party|
|1984 Convention against Torture (CAT)||State Party|
|Competence of CAT Committee to receive individual complaints||No|
|CAT Optional Protocol 1||State Party|
|1998 Rome Statute of the International Criminal Court||State Party|
1981 African Charter on Human and Peoples' Rights
|1998 Protocol to the African Charter on the African Court||State Party|
|Article 34(6) declaration regarding individual petitions||Yes|
|Malabo Protocol on the African Court of Justice and Human Rights||Not party|
Police Use of Force
The 1974 Police Act allows a police officer, in effecting an arrest, to "use such force as may be necessary to ensure compliance".S. 13E(4), 1974 Police Act No. 19 (as amended).The Act further states that a “police officer who has reason to suspect that a person has committed or is about to commit an offence which will endanger public safety or public order, may arrest that person and use such force as may be necessary for that purpose".S. 13F(1)(a), 1974 Police Act No. 19 (as amended).
The constitutional provisions cited above seemingly allow the use of firearms to protect property, which does not comply with international law and standards.
Use of Force in Custodial Settings
Section 12 of the 1988 Reform Institutions Act governs the use of force and firearms in custodial settings. The Act states as follows:
(1) No officer shall use force against a detainee except such force as is reasonably necessary—
(a) in self-defence;
(b) in the defence of another person;
(c) to prevent a detainee from escaping;
(d) to compel obedience to an order which the detainee wilfully refuses to obey; or
(e) to maintain discipline in the institution.S. 12(1), 1988 Reform Institutions Act No. 35.
The Act further provides that:
An officer may, where he has reasonable cause to believe that he cannot otherwise deal with the situation, use any weapon or firearm which has been issued to him against a detainee who is—
(a) escaping or attempting to escape from an institution or from lawful custody and refuses, when called upon to return;
(b) engaged with others in riotous behaviour in an institution and refuses to desist when called upon; or
(c) endangering the life of, or is likely to inflict serious injury on, any person.S. 12(2), 1988 Reform Institutions Act No. 35.
According to Standing Order No. 46, issued in 1980 by the Commissioner of Prisons, the use of force, including the use of weapons, will only be resorted to in cases of serious attacks, mutiny, or uprisings in a prison. Only such force as is necessary in the circumstances may be employed.
The Standing Order states that baton strikes to the head "should be avoided as far as possible", but does not exclude them. Tear gas is considered "humane" and there are no restrictions on its use in confined spaces, which means that the guidance is not consonant with international standards.
Section 4 of the 2012 Police Complaints Act establishes the Police Complaints Division whose function is to—
(a) investigate any complaint made by any person, or on his behalf, against any act, conduct or omission of a police officer in the performance of his duty, other than a complaint made in relation to an act of corruption or a money laundering offence;
(b) investigate the death of any person which occurred when the person was in police custody or as a result of police action;
(c) advise on ways in which any police misconduct may be addressed and eliminated;
(d) perform such other function as may promote better relations between the public and the police and as may be conferred upon it by any other enactment.
In 2016 this body was functionally replaced by a new Independent Police Complaints Commission.
In addition to the Police Com,plaints Commission, the 1988 Protection of Human Rights Act established the National Human Rights Commission as an external complaints mechanism. The purpose of the Human Rights Commission is, “for the better protection of human rights, for the better investigation of complaints against members of the police force.”
Views and Concluding Observations of United Nations Treaty Bodies
In its 2017 Concluding Observations on Mauritius’ implementation of the 1966 International Covenant on Civil and Political Rights (ICCPR), the Human Rights Committee expressed concern
about reports of ill-treatment inflicted by security forces on persons deprived of their liberty. The Committee regrets the lack of clear information about the overall number of complaints lodged, the nature and authors of the alleged acts, investigations carried out, convictions, sanctions imposed on those responsible and reparation granted to victims. The Committee notes the establishment of a new Police Complaints Division within the National Human Rights Commission that is tasked with investigating complaints against the security forces; however, it regrets the lack of details on the human and financial resources at its disposal.Human Rights Committee, Concluding Observations on Mauritius, UN doc. CCPR/C/MUS/5, 11 December 2017, para. 33.
The Committee called on Mauritius to ensure that
in all cases of ill-treatment by security forces (police and prison officers): (a) victims can complain; (b) impartial, thorough and effective investigations are carried out into allegations; and (c) those responsible are prosecuted and, if convicted, punished with appropriate sanctions and victims have access to effective remedies. The State party should provide the Police Complaints Division with adequate and sufficient human and financial resources to enable it to properly carry out its mandate, and it should extend the use of video recordings to all police and detention settings so as to prevent ill-treatment.Human Rights Committee, Concluding Observations on Mauritius, UN doc. CCPR/C/MUS/5, 11 December 2017, para. 34.
DPP v. Jagdawoo (2016)
This 2016 judgment by the Supreme Court of Mauritius concerned alleged inhumane treatment of a murder suspect in police custody. Mr Ramdoolar Ramlogun was arrested and detained on 12 January 2006 and died two days later while in custody. The Supreme Court ruled that:
The right to life and protection from torture and any form of inhuman or degrading treatment are fundamental constitutional rights guaranteed under section 4 and section 7 of our Constitution respectively. The peremptory nature both of the right to life and of the right to freedom from torture and other cruel, inhuman or degrading treatment is further highlighted by the fact that these rights cannot be derogated from. In international human rights law, there can be no derogation to the protection of these rights even in the gravest of crisis situations as are laid down in Article 4(2) of the International Covenant on Civil and Political Rights...
The treatment of detainees who are placed in a vulnerable position is a matter of even greater concern when it comes to protection of these human rights. The detainee is virtually cut off from the outside world and is placed in a situation of weakness and vulnerability being left to a considerable extent to the mercy of police or prison officials. The State has positive obligations to afford security and protection of the law and human rights to all categories of its citizens. The State has a duty to secure and not to violate the right to life and the right to protection from torture and inhuman treatment. The more so, in respect of its more vulnerable citizens.