An LGBTQ+ group in Eswatini is once again taking the government to court after the Minister of Commerce defied a Supreme Court ruling ordering the registration of the organisation.
In June 2023, the Supreme Court of Eswatini ruled that the Registrar of Companies’ refusal to register Eswatini Sexual and Gender Minorities (ESGM) as a non-profit organisation was unjust and unconstitutional. The court ordered the immediate reconsideration of ESGM’s registration.
Despite this ruling, widely seen as a victory for freedom of association, the government has refused to comply. On 25 September 2024, the Minister of Commerce again rejected ESGM’s application, this time citing customary laws.
New Court Application
In response, ESGM has approached the High Court with a new application to address the government’s non-compliance.
According to the Southern Africa Litigation Centre (SALC), which is supporting ESGM’s case, the customary laws cited by the minister “are set out to exclude and oppress vulnerable groups by criminalising same-sex acts” and “have no place in a modern constitutional democracy.”
Broader Democratic Implications
SALC argues that the case is about more than just one organisation’s right to exist. It “serves as a crucial defence against the erosion of democratic values across Southern Africa.”
The organisation further contends that the Eswatini government’s refusal to accept judicial authority undermines the rule of law.
“This case is pivotal not only for advancing LGBTQ+ rights in Eswatini but also for defending civic space against escalating pushbacks. By upholding these freedoms, we strengthen democratic values and ensure marginalised communities can organise and advocate without fear,” said ESGM’s Executive Director, Mphile Sihlongonyane, in a statement.
Calls for Action
SALC has called on the judiciary to expedite the hearing of the application and enforce its previous ruling without further delay. It also urged the international community to intensify pressure on Eswatini to decriminalise same-sex acts.
“The government’s continued defiance of the Supreme Court’s ruling in the ESGM case is a direct assault on the rule of law and civic space in Eswatini,” said SALC Executive Director, Anneke Meerkotter.
“This landmark struggle underscores the vital role of courts in protecting the constitutional rights of marginalised LGBTQ+ communities to associate and express themselves freely, especially amid rising anti-gender movements and regional crackdowns on NGOs and media. Upholding these freedoms is essential to preserving democracy across Southern Africa,” she added.
Eswatini’s Human Rights Record
Eswatini remains one of the world’s last absolute monarchies and has a poor record on human rights, including restrictions on freedom of expression and the arrest and torture of political activists.
Although not actively enforced, men “suspected” of sodomy can be arrested in Eswatini without a warrant under the Criminal Procedures Act of 1938.
