Eswatini govt defies Supreme Court LGBTIQ+ ruling

The government of Eswatini is defying a Supreme Court ruling ordering it to reconsider its refusal to register an LGBTIQ+ rights organisation.

After a three-year legal battle, the court ruled in June that the reasons for the refusal by the country’s Registrar of Companies to register Eswatini Sexual and Gender Minorities (ESGM) as a non-profit organisation were invalid and unjust.

Supreme Court decision seen as a landmark moment

The minister responsible for company registration was ordered to reconsider ESGM’s application and provide a written decision within 60 days.

The ruling was seen as a major milestone in the recognition and protection of LGBTIQ+ rights in Eswatini.

However, almost four months later, the government has announced that it is sticking to its discriminatory position and is still refusing to register the group.

Government’s continued refusal based on homophobia

In a letter dated September 27, David Ngcamphalala, the Acting Minister for Commerce, Trade, and Industry, acknowledged the country’s constitutional prohibition against discrimination.

He claimed, however, that “there is nothing that suggests the intention of the Constitution to include sexual orientation and gender identity as grounds for discrimination under his section.”

He further stated that the name and objectives of ESGM “seek to offend against the customary principles as preserved in our Swazi Law and custom that a man and a woman shall start and maintain a love relationship.”

On this basis, Ngcamphalala again rejected the organisation’s application and ordered the Registrar of Companies not to register it.

ESGM considers the next steps

“We are distraught and feel neglected and let down by the government,” Melusi Simelane, founder and board chair of ESGM, told MambaOnline. “It’s a disaster for human rights, and disheartening as litigation is not cheap,” he said.

Simelane noted that marginalised people in Eswatini are often forced to seek redress through the courts, adding that “the LGBTIQ+ community has been reminded by this government that their humanity and dignity is not a priority.”

The organisation is now considering its options, including the possibility of further legal action.

ESGM first applied for registration as a non-profit organisation with the Registrar of Companies in September 2019. The Registrar denied the application, citing the alleged unlawfulness of ESGM’s objectives due to the country’s criminalisation of same-sex intimacy. While not actively enforced, Eswatini’s legal framework allows the arrest of men suspected of same-sex relations.

Eswatini remains one of the world’s last absolute monarchies and has a poor record on human rights, including limiting freedom of expression and arresting and torturing political activists.