Seychellois courts and the protection of the right to equal protection of the law
| DOI | 10.1177/1358229118810107 |
| Date | 01 December 2018 |
| Published date | 01 December 2018 |
| Subject Matter | Articles |
Article
Seychellois courts
and the protection
of the right to equal
protection of the law
Jamil Ddamulira Mujuzi
Abstract
Unlike the constitutions of other African countries such as Uganda, South Africa, Kenya,
Mauritius, Zimbabwe and Namibia which expressly provide for grounds on which a
person may not be discriminated against, the Constitution of Seychelles, although pro-
hibits discrimination, does not provide for grounds on which a person may not be dis-
criminate against. Article 27 of the Constitution of Seychelles provides for the right to
equal protection of the law. In this article, the author analyses the jurisprudence of the
Supreme Court and the Court of Appeal of Seychelles to illustrate how these courts
have dealt with the following issues: defining ‘equal protection of the law’ and ‘dis-
crimination’ and giving the grounds on which a person may not be discriminated against,
alleging discrimination, locus standi to challenge discriminatory laws or programmes and
permissible discrimination. The author recommends, inter alia, that the Constitution
may have to be amended to enumerate the grounds on which a person may not be
discriminated against.
Keywords
Seychelles, discrimination, Article 27 of the Constitution, Article 46 of the Constitution,
equal protection of the law, equality before the law, African countries
Faculty of Law, Department of Criminal Justice and Procedure, University of the Western Cape,
Cape Town, South Africa
Corresponding author:
Jamil Ddamulira Mujuzi, Professor of Law, Faculty of Law, Department of Criminal Justice and
Procedure, University of the Western Cape, Cape Town 7535, South Africa.
Email: djmujuzi@gmail.com
International Journalof
Discrimination and theLaw
2018, Vol. 18(4) 237–258
ªThe Author(s) 2018
Article reuse guidelines:
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DOI: 10.1177/1358229118810107
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Introduction
Unlike the Constitutions of other African countries such as Uganda,
1
South Africa,
2
Kenya,
3
Mauritius,
4
Zimbabwe
5
and Namibia
6
which expressly provide for grounds
on which a person may not be discriminated against, the Constitution of Seychelles,
although prohibits discrimination, does not provide for grounds on which a person may
not be discriminate against. Article 27 of the Constitution of Seychelles provides for the
right to equal protection of the law in the following terms:
(1) Every person has a right to equal protection of the law including the enjoyment
of the rights and freedoms set out in this Charter without discrimination on any
ground except as is necessary in a democratic society.
(2) Clause (1) shall not preclude any law, programme or activity which has as its
object the amelioration of the conditions of disadvantaged persons or groups.
Twomey has argued that Article 27(1) provides for ‘the right to be free from all forms
of discrimination’.
7
In the preamble to the Constitution of Seychelles, the people of
Seychelles reaffirm that the rights provided in the Constitution ‘include the rights of the
individual to life, liberty and the pursuit of happiness free from all types of discrimina-
tion’. Apart from Article 27, other constitutional provisions also prohibit discrimina-
tion.
8
The right to freedom from discrimination is also provided for in the regional and
international human rights in struments ratified or acceded t o by Seychelles.
9
These
include the African Charter on Human and Peoples’ Rights,
10
the African Charter on
the Rights and Welfare of the Ch ild
11
and the International Covenan t on Civil and
Political Rights.
12
In their endeavour to protect the right to equal protection of the law,
Seychellois courts, in particular, the Supreme Court
13
and the Court of Appeal,
14
have
dealt with the following issues: defining discrimination, providing for grounds on which
a person may not be discriminated against, defining the concept ‘equal protection of the
law’ and expanding the circumstances in which a person may approach court when his or
her right has allegedly been violated. The purpose of this article is to analyse the
jurisprudence of the Supreme Court and the Court of Appeal dealing with the above-
mentioned endeavours and suggest ways in which the right to equal protection of the law
may be better protected in Seychelles. The author will start with the definition of
discrimination.
Defining ‘equal protection of the law’ and ‘discrimination’ and
giving the grounds on which a person may not be discriminated
against
Unlike the constitutions of Uganda
15
and Mauritius,
16
for example, the Constitution of
Seychelles does not define the term ‘discrimination’. The Constitution does not also
define or describe what ‘equal protection of the law’ means. The task to give meaning to
these phrases has been undertaken by courts. The author will first examine the courts’
attempt to define or describe the concept of ‘equal protection of the law’. In Bradburn &
238 International Journal of Discrimination and the Law 18(4)
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