59% OF LGBTIQS DISRESPECTED, INSULTED

MBABANE – About 59 per cent of the LGBTIQ community in Eswatini has been treated with disrespect and insulted in public health facilities.
This is according to a study undertaken by Associate Professor Alexandra Muller who is under the Department of Pathology, in the Faculty of Health Sciences at the University of Cape Town in South Africa.

LGBTIQ is an acronym for lesbians, gays, bisexual, transgender, intersex and queer.
The study titled ‘Are we alright’ was conducted between April and June 2017 where 104 people participated.

It states that the LGBTIQ have experienced discrimination, access to health care, experiences of violence and mental health well-being.
The study was attached as an affidavit to court papers presented by the Eswatini Sexual and Gender Minorities wherein they are now challenging the decision by the Registrar of Companies for the registration of their association which was rejected in September 2019.

The study showed that 50 per cent of the LGBTQI have been treated disrespectfully in health facilities because of their sexual orientation or gender identity.
“A total of 42 per cent have been called names or been insulted in a health facility because of their sexual orientation or gender identity,” reads the report.
It was also highlighted that 30 per cent had been denied health-care because of their sexual orientation or gender identity.

Violence

The finding further showed that the levels of sexual violence experienced by the LGBTIQ  people living in Eswatini, including men who have sexual intercourse with other men, and women who have sexual intercourse with women, were higher than the levels of sexual violence experienced by women in the general population.

A study by Tsai found that 11 per cent of women in Eswatini’s general population had experienced rape in their lifetime.
In the ‘Are We Alright’ study it was stated that 50 per cent of the LGBTIQ community had experienced sexual violence in their lifetime and that 17 per cent of those had experienced it within the year of the study.

The community stated that the violence against them was motivated by their sexual orientation or gender identity.
However, Muller found that only 21 per cent had reported the violence to the police.

Meanwhile, the study also stated that the LGBTIQ  community had higher levels of mental health concerns than the general population of Eswatini.
“The LGBTIQ  community have higher levels of depression among the general population of Eswatini,” reads the report.
He stated that in 2017, the World Health Organisation reported that the level of depressive disorders among Eswatini adults was 4.2 per cent and in the Are we Alright study 48 per cent of the LGBTIQ were classified as depressed.

“The Global Burden of Diseases Study by the WHO (2017) estimates the prevalence of anxiety disorders in Eswatini at three per cent while the ‘Are We Alright’ study states that the LGBTIQ community 16 per cent showed signs of moderate or severe anxiety,”
The study further shows that community-based organisations are the most important source of sexual and reproductive health care as well as psychological support for the LGBTIQ community.

It stated only 24 per cent accessed barrier methods at Voluntary Counselling and Testing at public healthcare facilities.
The study further showed that LGBTIQ community organisations were an important source of social support for lesbian, gay, bisexual, transgender and intersex people living in Eswatini.

It was also found that the LGBTIQ  community experienced marginalisation and discrimination in everyday life and it was crucial to highlight the importance of community building, education and advocacy.
The LGBTIQ community now wants the High Court to declare that the registration of the association that seeks to promote their interest in Eswatini is not unlawful.

Melusi Simelane who is the director of the association which seeks to advance the protection of the rights of lesbian, gay, bisexual and intersex (LGBTIQ) people in the Kingdom of Eswatini has filed yet another application. 

In essence, the LGBTIQ,  community is now challenging the Eswatini Government after its refusal to register their association.
Other applicants in the matter are Sanele Mdluli, Mbali Nokwanda Dlamini, Thuthu Magagula, Mary Pais Da Silva and Thandeka Maziya.
They also want the court to review and set aside the decision of the Registrar of Companies of refusing to register their association, Eswatini Sexual and Gender Minorities.

When rejecting the application for the registration of the association the Registrar of Companies, Msebe Malinga, pointed out that that 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.
 “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 basis of sexual orientation in no uncertain terms. 

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 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.

Malinga further stated that the Marriage Act of 1964 recognises marriage between men and women.
Meanwhile, in the fresh application Simelane argued that nothing in the country’s law prevented them to associate and form an organisation that promotes, advocates and protects their interest and the human rights of the LGBTQI community.

Refused

He highlighted that on September 9, 2019, the Registrar of Companies refused the registration of Eswatini Sexual and Gender Minorities as a not for gain association in terms of Section 17 of the Companies Act.
“The Registrar’s reliance on the common law prohibition of consensual same-sex sexual acts to deny us to register an association is therefore unreasonable and irrational,” he argued.

According to Simelane, the registrar’s decision was misdirected in terms of the law.
“In a similar vein, the Registrar seems to rely on Section 27(1) of the Constitution which speaks about the right to marriage. This is an irrelevant consideration.
He told the court that the aforementioned section of the Constitution was in fact entirely unrelated to the registration of Eswatini Sexual and Gender Minorities.
Simelane claimed that the Eswatini Sexual and Gender Minorities aimed to promote human rights of vulnerable persons, including men who have sex with men.
He went on to allege that the registrar misdirected himself in terms of the text of the Companies Act to the extent that he seemed to suggest that he could only register the Eswatini Sexual and Gender Minorities if they satisfied a communal or group interest.

“I am advised and submit that each of the reasons advanced by the Registrar of Companies are unreasonable, irrational, unlawful and unable to pass the constitutional muster in that they violate several of our constitutional rights,” he argued.
He told the court that the decision of the registrar stands to be reviewed and set aside by the High Court.

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