The inertia displayed by the judiciary on this matter shows an apparent disinterest in the human rights of LGBTI citizens. There can be no conditional commitment to justice under a constitution that is intends to protect all citizens from discrimination. 

Eswatini Sexual & Gender Minorities

It has been 365 days without a judgement in the case of Eswatini Sexual and Gender Minorities [ESGM] versus the Registrar of Companies and others. ESGM undertook to register as an organisation acting in the interests of LGBTI citizens of eSwatini, specifically focused on advancing the protection of human rights of Lesbian, Gay, Bisexual, Transgender, and Intersex persons in the Kingdom of Eswatini. 

In September 2019, ESGM applied to be registered with Eswatini’s Registrar of Companies. The Registrar refused to register the organisation, arguing that ESGM’s objectives were unlawful because same-sex intimacy is illegal in the country. ESGM and its members approached the High Court challenging the Registrar’s refusal to register the organisation.

“ESGM takes pride in the spirit of the Constitution with its intent to protect all of Emaswati, we should be free to speak our minds and to associate with whomever we want, there is no democracy when you cannot freely associate, assemble and express yourself.

Eswatini sexual & gender minorities

The matter was postponed twice, first scheduled for June 24, 2020; it was then scheduled for July 23, 2020. Eventually, the case was heard on October 20, 2020. 

The inertia displayed by the judiciary on this matter shows an apparent disinterest in the human rights of LGBTI citizens. Further, the lack of urgency to hear this matter demonstrated a lack of will to exercise the Constitution and deliver the justice it is meant to instruct. There can be no conditional commitment to justice under a constitution that is intends to protect all citizens from discrimination. 

Security for marginalised people is often thought of in terms of protection from violence. Resources invested in these protections are prone to exhaustion without addressing the source of violence and what defines violence. It is the very exclusion of marginalised people from structures that define, develop, innovate, formulate, comprises, and perpetuate violence. 

Therefore, in the current political turmoil, the LGBTI community is eager to finalise the registration case, which should pave the way for a structured inclusion of the LGBTI voice in the call for democratisation. 

Eswatini Sexual & Gender Minorities

The inclusion of true diversity in decision-making structures on all levels of society presents the first opportunity for making a safer and secure future. Therefore, in the current political turmoil, the LGBTI community is eager to finalise the registration case, which should pave the way for a structured inclusion of the LGBTI voice in the call for democratisation. 

It is incumbent on the courts to act in the interests of equality and respect for the Constitution, which protects the rights of all citizens. As a matter of urgency, ESGM calls for the court to hand down judgment on this matter, espousing the enjoyment of protection under the law. 

To delay this objective and ultimately, justice for LGBTI people in Eswatini is to deny justice. In the absence of registration, ESGM has faced multiple challenges that have hindered protecting those most vulnerable to human rights violations.

ESGM is represented by human rights lawyer, Thulani Maseko, and supported by the Southern Africa Litigation Centre.

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