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 are illegal in the country. ESGM and its members filed an application to contest these claims. They argue 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. ESGM is represented by human rights lawyer, Thulani Maseko and supported by the Southern Africa Litigation Centre (SALC).
On Tuesday October 20 2020, a full bench of The Eswatini High Court judges heard the application for the case.
In early 2019, ESGM applied for the reservation of name with the Registrar of Companies (Registrar). The name was duly reserved. Thereafter ESGM filed its Memorandum and Articles of Association together will all the supporting documents for the purpose of the registration of the association as one not for gain. The Registrar refused to register the association stating that purposes of the association are unlawful. The Registrar stated that the members of ESGM do not enjoy the protection of section 20 of the Constitution in that the association is not covered under section 27, which protects the right to found a family. The Registrar suggested that section 20 does not include gays, lesbians and or intersex persons.
Application to the Court
ESGM filed an application to the High Court for an order reviewing and setting aside the decision of the Registrar refusing to register ESGM. In the application ESGM argues that the decision of the Registrar is arbitrary, irrational and unreasonable. ESGM argues that the decision fails to take into account the provisions of the Constitution and it violates a number of constitutionally guaranteed rights in Chapter 3 of the 2005 Constitution of Eswatini. The rights at issue are: the right to dignity (s18), the right to freedom of association and assembly (s25), the right to equality before the law and equal protection under the law (20) as well as the right to freedom of expression (s24).
In its written submissions, ESGM contends that the decision of the Registrar should be reviewed and set aside. ESGM submissions include that:
- The Registrar ignored the supremacy of the Constitution.
- The fundamental human rights and basic freedoms in Chapter 3 of the Constitution apply to all persons without distinction.
- The Registrar was wrong to conclude that the purpose, aims and objectives of the ESGM are unlawful.
- The Registrar was wrong to impute criminality on the basis of membership.
- The Court should uphold the rights to freedom of expression and of opinion, freedom of association and of assembly the right to dignity and the right to equality.
What are ESGMs’ main arguments in this case?
ESGM argued that the Registrar misrepresented the law and that his refusal to register ESGM violated its members’ constitutional rights. ESGM argued 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 LGBTIQ+ 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 all fairly. Eswatini’s laws also do not make it a crime to campaign to protect the rights of LGBTIQ+ persons. All Swatis are free to speak their minds and to associate with – spend time with – anybody they want to.
ESGM disagreed with the Registrar’s argument that Eswatini’s constitutional rights were not violated by the Registrar. Constitutional rights in Eswatini belong to everybody, whatever the difference. Every person has the right to have their dignity respected and protected. The State can only limit Emaswati’s constitutional rights if it is reasonable to do so in a democratic society and if it is necessary to further a legitimate State aim.
On 20 October 2020, a full bench of the Eswatini High Court heard the arguments on the application for the registration of ESGM as a non-profit association. The matter was heard before Justice M. Dlamini (Presiding), Justice M. Fakudze and Justice C. Maphanga.
The decision of the High Court?
On 29 April 2022, the High Court handed down its decision. The High Court ruled against setting aside the decision of the Registrar and registering ESGM, with a dissenting judgment asserting that ESGM be registered as a not-for-profit company.
The Court held that LGBTIQ+ persons are entitled to constitutional rights, including the right to life, liberty, privacy, dignity, not to be discriminated against, the right to freedom of expression, to associate and form a company and the right not to be subjected to inhumane and degrading treatment. The Court held that these rights were inherent to all persons based on their status as human beings.
The High Court nevertheless upheld the refusal to register ESGM on a number of grounds:
- Since the applicants were not challenging the law criminalising same-sex intercourse, to allow its registration would be to, directly and indirectly, perpetuate the contravention of the law.
- The conduct of the applicants is prohibited by cultural values and morality both expressed by the law and that the Constitution.
- The Constitution does not provide for the right to sexual orientation.
- Since businesses operate in the public domain and the organization promoted sexual orientation, it could not benefit from the right to privacy.
The dissenting judge noted that the rights to freedom of expression, association and assembly form part of the fundamental freedoms of persons and that the rights “must be construed against international norms as pertains to the legal standards on the protection of human rights and in particular the right to freedom of association and assembly to which Eswatini has subscribed and made commitments to”.
In May 2022, ESGM filed a notice of appeal against the decision of the High Court. The appellants argue that the High Court erred in law and in fact in stating that the Applicants sought to create a new breed of rights that are non-existent. The court has set 26 April 2023 for the hearing of the appeal, but the matter got postponed to 5 May 2023.
5 May 2022 – Another ‘No’ for Eswatini’s LGBTI Community