Eswatini Sexual and Gender Minorities, an LGBTQ advocacy group, was denied registration by authorities in 2019, and even after seeking relief from the Supreme Court, which had ruled the group must be registered, its efforts have been unsuccessful.
Human rights lawyer Sibusiso Nhlabatsi said the harsh legal environment for LGBTQ individuals in the southern African kingdom causes significant problems.
“There is denial that they exist, so they do not have any form of protection as a group," Nhlabatsi said. "They only rely on protection from the law or enjoyment of any rights from the law as human beings under Chapter 3 of our Bill of Rights of our Constitution. So I can say it’s quite challenging, because there’s no instrument that seeks to protect them. There’s no instrument that seeks to recognize them as a group of people that exist. I don’t think there’s any progress that has been made.”
Besides the lack of legal recognition, LGBTQ individuals in Eswatini often face discrimination in gaining access to services, high rates of intimate partner violence, and exclusion from public discussions.
Sisanda Mavimbela, executive director of Eswatini Sexual and Gender Minorities, said the idea of LGBTQ rights is considered contradictory to traditional African values and religious beliefs, perpetuating a climate of exclusion and marginalization.
“The community cannot equally enjoy rights like all Swazis do, as per their birthright," Mavimbela said. ESGM has been denied "a right to associate, which is a right to all Swazis as per the Constitution."
Eswatini is also known by its former official name, Swaziland.
In the LGBTQ community, "justice comes hard and sometimes is not reached at all," for what are usually quoted as "non-African, unreligious or cultural” reasons, Mavimbela said.
Colonial-era laws
In refusing to register Eswatini Sexual and Gender Minorities, the government cited the country’s colonial-era laws, which still have a profound influence on the country’s legal framework.
Registration of the group would allow it to operate as a nonprofit organization with the ability to, among other things, open a bank account and receive international funding.
If the Ministry of Commerce, Trade and Industry continues to refuse to register ESGM despite the Supreme Court ruling, the court could issue a mandamus order requiring the government to carry out the action.
However, no such order has been issued, and it remains to be seen if the court will do so.
The ESGM case reached the Supreme Court after the group appealed a ruling by the High Court, a lower-level body. The appellants argued that the High Court had erred in law, and in fact, by stating that the applicants sought to create rights that don't exist.
On June 16, 2023, a five-panel bench of the Supreme Court set aside the High Court’s decision to dismiss ESGM’s application to register as a nonprofit organization.
But on September 27, 2023, the Minister of Commerce, Trade and Industry ordered the Registrar of Companies not to register ESGM, citing the organization’s name and objectives and asserting that it offends the customs and principles of Eswatini.
Despite the opposition to LGBTQ rights in Eswatini, Bishop Zwanini Shabalala, the former secretary-general of the Council of Swaziland Churches, has called for understanding and acceptance of the LGBTQ community without discrimination.
“This is an area that still needs more and more dialogue in churches and in society. ... Our position as the church is that we should welcome everyone who comes to church and also advocate for access to services that are rendered by the country from government to all other institutions," Shabalala said. LGBTQ citizens "should also be treated like anyone else, without looking at their sexual orientation.”
With little to no local support, the LGBTQ community finds solace and support in the Eswatini offices of the European Union and the U.N. Development Program.
The EU and the U.S. Embassy to Eswatini backed LGBTQ residents throughout the court battle, and the development program continues to run dialogue sessions and workshops.
The situation remains dire, however, as the community faces a lack of recognition, acceptance and equal rights.
