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.'