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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.

Brief background

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.
 

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