Mbabane, Eswatini, 27 August 25: The Eswatini Sexual and Gender Minorities (ESGM) has approached the High Court on the case Simelane (N.O.) & Others v Minister of Commerce & Others, Case No. 2623/23, to counter a second rejection letter issued by the Minister of Commerce. The Minister’s second letter, dated 25 September 2024, raised customary law issues, contrary to the applicant’s original case, which is on the right to freedom of association.
This development comes amid the government’s persistent refusal to comply with the Supreme Court’s unanimous 2023 ruling, which declared the denial of ESGM’s registration unconstitutional and ordered an immediate reconsideration of its registration as a non-profit organisation. Despite this landmark victory for freedom of association, the Minister has persisted in blocking ESGM’s formal recognition, citing customary laws that, by their nature, are set out to exclude and oppress vulnerable groups by criminalising same-sex acts. These laws have no place in a modern constitutional democracy.
This case is not merely about one organisation’s right to exist; it serves as a crucial defence against the erosion of democratic values across Southern Africa. In Eswatini, where civic space is increasingly threatened, the government’s refusal to accept judicial authority undermines the rule of law. It sets a dangerous precedent for arbitrary restrictions on civil society. ESGM’s efforts to register have been met with systemic barriers since 2019, reflecting broader patterns of discrimination against marginalised communities, including LGBTQ+ individuals who face violence, exclusion, and legal persecution.
ESGM’s Executive Director, Mphile Sihlongonyane, says, “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.”
By upholding ESGM’s rights to freedom of association, expression, and non-discrimination, as enshrined in Sections 25, 24, and 20 of the Eswatini Constitution, the courts have the opportunity to reaffirm that these protections extend to all citizens, regardless of sexual orientation or gender identity. The significance of this pronouncement cannot be overstated, particularly in the face of rising anti-gender and anti-rights movements sweeping the region.
From Namibia to Zambia, governments are increasingly shutting down NGOs, media houses, and advocacy groups under the guise of “public morality” or national security, stifling dissent and marginalising vulnerable populations. In Eswatini alone, LGBTQ+ activists operate in a hostile environment where same-sex relations remain criminalised, leading to heightened risks of harassment and denial of basic services.
The Southern Africa Litigation Centre (SALC) stands in solidarity with ESGM and calls on the Eswatini government to immediately comply with the Supreme Court’s directive. We urge the judiciary to expedite the hearing of this supplementary application and enforce its prior ruling without further delay. The international community must also amplify pressure on Eswatini to decriminalise same-sex acts and align its laws with constitutional and human rights standards.
SALC Executive Director, Anneke Meerkotter says, “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. 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.”
A strong judicial stance on the right to association would safeguard civic space and promote inclusive democratic values, fostering accountability, pluralism, and human dignity. It would signal the region that courts must serve as guardians against executive overreach, ensuring that marginalised voices, often the first to be silenced, can organise, advocate, and thrive.
As anti-rights forces intensify their attacks, cases like ESGM’s remind us that fighting for equality is integral to sustaining democracy. We must continue supporting organisations like ESGM through legal assistance and advocacy, ensuring no community is left behind in pursuing justice.
ESGM is represented by human rights lawyer Sibusiso Nhlabatsi of Mavuso/Motsa Attorneys, supported by the Southern Africa Litigation Centre.
Find out more about the case here.