An LGBTI rights group in Swaziland (eSwatini) is back
in the High Court to challenge a ruling that it cannot be allowed to operate in
the kingdom.
In September 2019, eSwatini’s Registrar of Companies
refused to register the organisation eSwatini Sexual and Gender
Minorities (ESGM).
The Registrar argued that ESGM’s purpose was unlawful
because same-sex sexual acts were illegal in the kingdom. ESGM and its members
filed an application to contest these claims. They argued that the Registrar’s
refusal violated ESGM members’ rights to dignity, to associate and express
themselves freely, to be treated equally and not to be discriminated against.
The Registrar also said that the right to equality in
the Constitution did not apply to lesbian, gay, bisexual, transgender and
intersex (LGBTI) people because sexual orientation and sex were not mentioned
explicitly in the Constitution.
Siboniso Nkambule, Principal Secretary in the Ministry
of Commerce, Industry and Trade, previously told
the High Court in an affidavit, ‘May I state that every
other sexual action other than what is in the order of nature, capable of
producing offsprings is unnatural and, therefore, prohibited in terms of our
laws.’
ESGM argues that the Registrar misrepresented the law
and that his refusal to register ESGM violated its members’ constitutional
rights.
ESGM is represented by human rights lawyer Thulani
Maseko and supported
by the Southern Africa Litigation Centre (SALC).
The case was due back in court on 24 June 2020.
In
a statement ESGM said, ‘ESGM argues that the Registrar was
wrong to assume that ESGM’s purpose was illegal when there was no evidence of
this. ESGM’s mission is to protect and advance the interests of LGBTI persons
through education and advocacy. Eswatini’s laws do not make it a crime to be
lesbian, gay, bisexual, or transgender.
‘The law is the same for everyone. It must treat us
all fairly. Our laws also do not make it a crime to campaign to protect
the rights of LGBTI persons. We are free to speak our minds and to associate
with – spend time with – anybody we want to.
‘ESGM disagrees with the Registrar’s argument that our
constitutional rights were not violated by the Registrar. Constitutional rights
in eSwatini belong to everybody, whatever our difference. We all have the right
to have our dignity respected and protected.’
ESGM
is an organisation which aims to advance the protection of
human rights of LGBTI people in Swaziland which is a deeply conservative
kingdom ruled by King Mswati III as an absolute monarch. The King has in the
past described
homosexuality as ‘satanic’.
Discrimination against LGBTI (lesbian, gay, bisexual,
transgender, intersex) people in Swaziland is widespread but in recent years
they have become more visible and vocal. The
first ever Pride march took place in 2018.
Melusi Simelane, Founder and Executive Director of
ESGM, writing
in a report on LGBTI experiences in Swaziland said LGBTI
identities were not criminalised in Swaziland but colonial laws that included
the crime of sodomy still existed. He said this suggested homosexuality was
‘simply about a sexual act rather than a broader issue of love and respect’.
He added the outdated laws violated constitutional
rights. He said despite the law the state did not prosecute consenting adults.
A
report published in 2019 written by two academics and the
Southern and East African Research Collective on Health found evidence of
serious human rights violations against Swazi people who were LGBTI. The report
concluded they suffered ‘social exclusion, marginalisation and stigma’ because
they were seen as being different from the rest of the population.
This, the report said, ‘has a negative impact on the
mental health and wellbeing of people who identify as lesbian, gay, bisexual,
transgender or intersex’.
In May 2016 four organisations jointly
reported to the United Nations about LGBTI
discrimination in Swaziland. Part of their report stated, ‘LGBT[I]s are
discriminated and condemned openly by society. This is manifest in negative
statements uttered by influential people in society e.g., religious,
traditional and political leaders. Traditionalists and conservative Christians
view LGBT[I]s as against Swazi tradition and religion. There have been several
incidents where traditionalists and religious leaders have issued negative
statements about lesbians.’
See also
LGBTI
discrimination in Swaziland leads to big mental health issues, report finds
LGBT
Pride film shows what it’s like to live with prejudice and ignorance in
Swaziland
https://swazimedia.blogspot.com/2018/11/lgbt-pride-film-shows-what-its-like-to.html
LGBTI Pride gets global attention
LGBTI Pride gets global attention
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