GOVT SAYS NO TO LGBTI REGISTRATION

MBABANE – Application rejected! Government has turned down the application for the registration of the association which seeks to advance the protection of the rights of lesbian, gay, bisexual transgender and interse (LGBTI) people in the Kingdom of Eswatini.

Giving reasons for rejecting the application, Registrar of Companies Msebe Malinga said: “The Constitution, in Section 27, clearly states that marriages must be between men and women, whereas this association wants to promote same-sex relations, which is explicitly prohibited in our Constitution.”

Section 27 (1) of the Constitution of the Kingdom of Eswatini stipulates that; men and women of marriageable age have a right to marry and establish a family.
The association wanted to be registered as Eswatini Sexual and Gender Minorities.

“It will be inappropriate for the registrar of companies to register an entity whose objectives are not provided for in the Constitution or any legislation,” reads part of Malinga’s responses to the lawyers representing the association.

Malinga stated that in contrast, the Constitution of the Republic of South Africa deals with equality in Section 9 where it clearly prohibits discrimination on the basis of sexual orientation in no uncertain terms. 

Discriminate

The Constitution of South Africa, according to Malinga, provides that: “The State may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.”

He said the Eswatini Constitution does not include sex or sexual orientation.
The registrar of companies highlighted that based on the aforementioned, it was clear that that discrimination on the basis of sexual orientation and sex was not protected by the Constitution of the Kingdom of Eswatini or in any of the country’s domestic laws.

He went on to State that the Eswatini Constitution, in Section 20, demonstrated or listed the grounds and rights which were protected by the section against discrimination.
“The Companies Act is not relevant legal authority to address the objectives of the Eswatini Sexual and Gender Minorities,” said the registrar of companies.
The association had applied for registration as a non-profit making association under Section 17 of the Swaziland Companies Act No.8 of 2009.

According to the articles of association attached to their application, some of the association’s objectives were to advance protection of the rights of LGBTIs in the Kingdom of Eswatini and reduce harm that affect their wellbeing based upon sexual orientation and gender identity.

It was also seeking among other things, to increase acceptance of LGBTI members of society in their respective families and communities.
The association further wanted to research on the issues that made LGBTI vulnerable to HIV/AIDS and further reduce prevalence by addressing the issues of prevention and treatment among others.

It also sought to address the challenges individual sexual and gender minorities came across in their daily livelihood and create a conducive policy environment of LGBTIs at a local and national level.

Malinga said: “I regret to inform you that the association cannot be registered under Section 17 of the Swaziland Companies Act.”
In his three-page response, Malinga went on to state that his office rejected the application for registration of the association in view of the fact that all companies and associations in Eswatini should be registered for a lawful purpose.  He said this was provided for under Section 17 and 27 of the Companies Act.

Incorporation

He stated that the purpose of the Act in its entirety was to regulate business through the Constitution, incorporation, registration, management, administration and winding up of companies and non-profit making associations that were to promote particular objectives that were business-oriented.

The registrar pointed out that this was aligned to the regulation of investment and value edition to the economy and community development in the country.
He further stated that the registration of associations not for gain was provided for in Section 17.

Malinga highlighted that the association which was the subject matter of the registration based on Section 17 of the Act, did not satisfy the ‘communal or group interest’ as defined in the Act.

The registrar of companies said Section 37(3) of the Act provides that: “Unless ordered by the minister, the registrar of companies shall not register a company by a name which in his opinion is calculated to mislead the public or to cause annoyance to any person or is suggestive of blasphemy or indecency or a name representing an occupation for which personal qualification are required.”

Malinga also cited Section 20 of the Constitution of the Kingdom of Eswatini which deals with equality before the law.
Section 20 stipulates that: a person should not be discriminated against on the grounds of gender, race, colour, ethnic, origin, tribe, birth, creed or religion, social or economic standing, opinion, age or disability.

“The Constitution made it clear which rights should be protected by this section,” said Malinga.
He further pointed out that subsection (3) of the Constitution provides that: For  the purposes of this section, ‘discriminate’  means to give treatment to different persons attributable only or mainly to their respective descriptions by gender, race, colour, ethnic, origin, tribe, birth, creed or religion, social or economic standing, political opinion, age or disability.

“Section 27(1) of the Constitution provides that ‘men and women’ of marriageable age have a right to marry and found a family.  Further, from the above section, marriage is between men and women,” reads part of Malinga’s responses.

Criminalisation

According to the registrar of companies, even though the common law criminalisation of same-sex relations between men was not enforced in practice, our laws had not decriminalised it. When reached for comment, the lawyer representing the association, Thulani Maseko, confirmed reception of the letter and said he was still to consult with his clients.

“I have no further comment on the matter save to confirm to have received the responses and I am still to meet with my clients,” said the well-known human rights lawyer. 

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