Of ‘Gopias’ and Insults
“Arresting a person who uses the word “gopia” without ascertaining in what context it was used may amount to an arbitrary arrest”
We have witnessed several recent occurrences of our police force arresting, booking and sometimes jailing members of public who were reported to have made use of derogatory descriptors against officials and Ministers of the land. The creole language is rich in such terms as “gopia” “sinoisnef” and others uttered in banter or in frustration. What does Lex make out of such usage in legal parlance and of the police actions?
*Is it a crime to offend someone?
Yes, depending on the words used and the context in which they are used. There may be crimes that deal with that like criminal defamation, insult, outrage.
Section 156 of the Criminal Code punishes outrage, and it reads:
(1) “Any outrage committed publicly, in any manner, whether against one or more members of the Cabinet or of the Assembly, or against a tribunal or court or one or more Magistrates, or a public functionary, or a minister of a religion recognised in Mauritius provided such outrage is committed against any of the aforesaid, whilst acting in the exercise of their functions, or on account of such functions, shall be punished by imprisonment, and by a fine not exceeding 100,000 rupees.”
Section 296 punishes insults and provides:
“Any injurious expression or any term of contempt or invective, or other abusive language, not carrying with it the imputation of a fact, is an insult (‘injure’) and any person who is guilty of the offence shall be liable to the following penalties –
(a) where the offence is committed by means of words, exclamations or threats not made use of in public, a fine not exceeding 50,000 rupees;
(b) where the offence is committed by means of words, exclamations or threats made use of in public, a fine not exceeding 100,000 rupees;
(c) where the offence is committed by means of any written or printed matter, drawing, picture, emblem or image, imprisonment for a term not exceeding 2 years and a fine not exceeding 100,000 rupees.”
* What is the legal definition of an insult?
The constitutive elements of the offence are any injurious expression or any term of contempt or invective, or otherwise abusive language, not carrying with it the imputation of a fact.
* Is there a marked difference between what would be construed to be an insult and a defamation?
In a case decided in 2000, the court explained the distinction as follows: “Defamation and insult are offences under Sections 288 and 296 respectively of the Criminal Code.The wording is borrowed from article 29 of the French Law of the Press of 29th July 1881, which defines defamation as:
‘toute allégation ou imputation d’un fait qui porte atteinte à l’honneur ou à la considération de la personne ou du corps auquel le fait est imputé; and l’injure as toute expression outrageante, terme de mépris ou invective qui ne renferme l’imputation d’aucun fait déterminé’.
* What is the punishment for insulting a person? And can I sue someone for insulting me in Mauritius?
Anybody can file a complaint with the police for insult as it is an offence under the Criminal Code. In addition, the person who feels insulted may enter a civil case and claim damages.
If the insult is not committed in public, the fine is Rs 50,000. If it is done in public, the fine goes up to Rs 100,000.
* Are there instances where offending words, which may be construed to be insulting, would not constitute an offence if and when uttered in an official capacity or by a witness in court or before a commission of inquiry?
Whatever a witness or counsel says in court cannot be the basis of a prosecution. Very often counsels or witnesses make serious allegations against a witness who is testifying. This is part of the cross-examination process. However a court has the power to put a stop to a cross-examination or a statement that verges on vulgarity.
The courts also have the power to punish for contempt if a statement is unjustified and amounts to an insult.
* What is the yardstick that the courts would use to determine whether a rude or offending remark amounts to an insult or not?
It depends on the word used and the context in which it is used.
The matter was comprehensively explained in a case decided in 1953 as follows:
“It is for the Judge to decide, as a matter of law, whether the words complained of are reasonably capable of the defamatory meaning ascribed to them. If they are not, the case must be withdrawn from the jury. If they are, it is for the jury to say whether, in the circumstances of the case, they are in fact defamatory.
When nothing is alleged to give the words cavilled at an extended meaning, they must be construed in their natural and ordinary meaning, i.e., in the meaning in which reasonable fair-minded persons of ordinary intelligence would be likely to understand them.
When the words are ambiguous, that is, reasonably capable of either an innocent or a defamatory meaning, it is a question of fact for the jury to determine in which of the two meanings they were understood by those to whom they were published.
In applying the test resulting from those principles the Judge ought not to take into account any mere conjectures which a person reading the words in question might possibly, though unreasonably, form. It is not enough to say that by some person or another the words mightbe understood in a defamatory sense. They must be susceptible of a libellous meaning in this sense that a reasonable fair-minded or right-thinking person could construe them unfavourably in such a sense as to make some imputation upon the person complaining.”
* What if a person were to use the word “gopia” or “sinois nef” in a heated exchange with a co-worker or a politician, would that in law be considered to be an insult and therefore an offence punishable by law?
Again, it depends onthe context in which the words are used. They may simply amount to a criticism made in good faith or may be disparaging or may be considered as a joke.
* Even if the words “gopia” and “sinoisnef” were deemed to be insulting, would they constitute arrestable offences?
Usually, arrestable offences are offences of a very serious nature that carry heavy prison sentences. Arresting a person who uses the word “gopia” without ascertaining in what context it was used may amount to an arbitrary arrest.
But then since a few years now in this country, there is a growing perception that the police would just arrest someone and then try to find a basis for the arrest. It’s a case of shoot first, then aim!
* Is the law with regard to insults, or even to offensive and abusive language, vague such that the best deterrent the authorities can have recourse to in the circumstances is the arrest and detention of deemed offenders?
There is nothing vague about the law. The offences have been interpreted and explained in many cases by the Supreme Court. The police are deemed to be aware of the constituent elements of the offences. There is therefore nothing that justifies an arrest for such offences when there is no evidence to substantiate a charge.
* If we were to go by the values – societal, philosophical, or even ideological, present in the Mauritian context, can it be anticipated what would be the likely position of our Judiciary on the alleged offence of insult conveyed in the word “gopia” as used recently at a citizens’ meeting – if ever the case is prosecuted?
Judges and magistrates are no fools. They are fully aware of the constituent elements of the offences of insults and outrage. They will consider the meaning of the word “gopia” as it is normally used in the creole language and then ascribe to it either the ordinary meaning of fool or something else.
If a minister is not living up to his mandate and is showing bias or partisanship in his dealings with some members of the public for reasons of different political allegiances, then the public may rightly consider the minister to be a “gopia” or a fool.
* What about the ‘insults’ traded on social media?
Day in and day out we witness statements that may amount to insults or outrage on social media platforms. Can the authorities track the authors? If they do, will they be selective and arrest only those who allegedly insult members of the government? When all is said, it is very difficult to control or even track down authors of insults on social media.
Mauritius Times ePaper Friday 22 April 2022
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