LGBTQI RULING: ESWATINI STILL IN DARK AGES - ICJ

MBABANE – “Eswatini remains in the dark ages in respect of equal treatment for all.”

This is according to the International Commission of Jurists (ICJ) and other international organisations following a ruling dismissing the application for the registration of an LGBTQI association last Friday. This ruling was issued by a full bench comprising of justices Mumcy Dlamini, Mzwandile Fakudze and Cyril Maphanga. The High Court dismissed the application for the registration of the association, which aimed to promote, protect and advance the rights and interests of the lesbian, gay, bisexual, transgender, queer and intersex community. The ICJ, reacting to the ruling, said it was hugely disappointed at the outcome.

Disappointing

“Hugely disappointing outcome as Eswatini High Court refuses to register an LGBTQI organisation. The court alluded to fundamental rights including, expression and assembly but denied registration anyway,” stated ICJ. It further said this confirmed that Eswatini remained in the dark ages in respect of equal treatment for all. Meanwhile, the Southern Africa Litigation Centre (SALC) in its news release, said the Eswatini High Court upheld the decision to refuse registration of Eswatini Sexual and Gender Minorities. The statement said the full bench affirmed the LGBTQI’s rights yet denied registration of the community’s organisation. It highlighted the dissenting opinion of Judge Maphanga, in which he agreed with the applicants that the decision of the registrar of companies was unreasonable.

According to SALC, the dissenting opinion notes with concern that in refusing to register ESGM, the respondents acknowledged that the ‘ministry usurped the registrar’s powers and that the decision to refuse the registration was in fact made by the ministry’. “The dissenting opinion accordingly, found the decision to refuse ESGM’s registration unprocedural,” stated SALC. In the Washington Blade, a news publication, SALC Executive Director Anneke Meerkotter said the verdict was lax and influenced by populist ideologies.
“The High Court’s judgment is a testimony on the anxiousness of Eswatini courts when dealing with matters relating to freedom of association and expression in the current political context,” said Meerkotter.

“The rights to freedom of association and expression are fundamentally important in a democratic society. These rights grant citizens the freedom to voice their views about all aspects of society and provides individuals with opportunities to engage in dialogue with the government, and to obtain information necessary for their protection and development as individuals,” added Meerkotter. The SALC executive director further said across the region, courts had emphasised that any limitation of these rights must be rational and proportional. In contrast, the majority opinion exercised mental gymnastics to find against the applicants, despite acknowledging that their rights had been violated. “The judgment highlights once again how hard it is for citizens to assert their rights to association and expression in Eswatini’s courts,” stated Meerkotter.

Judgment

Andrea Gillespie, an American Senior International Policy Advocate, took to Twitter on Monday, to state that the judgment demonstrated that some spaces had never been open to LGBTQI groups. “When talking about closing civil society space, we must remember that some spaces have never been open to LGBTQI groups fighting for the right to legally register,” she said. Traditionalist Elliot Mkhatshwa was reached for comment on the recent ruling, in his remarks he said the way in which things worked in the country warranted vast consultation of all relevant and diverse stakeholders. He said such rulings were based on analysis of all angles and it would not have been right for a decision to be made without all stakeholders being engaged. “When a ruling is made based on consultation or engagement with stakeholders it is usually not a problem. Therefore, this ruling was correct if indeed all possibilities were exhausted,” he said.

“Dialogue should be the answer in all circumstances. Such that if there is no consultation and just the issuing of a law without doing so, then that is not correct,” said Mkhatshwa.
Anglican Church Executive Member Bhekindlela Magongo said the church’s stance was that God was God for all and people were created in the image of God. “Whatever is destroying the image or dignity of a person, be it issues of human rights or anything that infringes on the dignity of a person, we do not support that. However, this was in general and not in particular to the recent ruling,” said Magongo. “That is why as the Anglican church we are vocal about issues of poverty because such issues impede on the dignity of the person. As the church we took the position that being the image of God, pertaining to the issue you are asking about, we haven’t arrived to a point where we have said that we endorse same sex marriages. However, what we resolved as the Anglican church is that the LGBTQI community is welcome, because the church belongs to everyone,” said Magongo.

He further said this community should not be segregated, however, they were going to continue upholding the principals of the scripture as the church. “We are going to continue teaching what the Word of God upholds, but whether a person is gay, lesbian or transgender it is not an issue to us. Everyone is welcome to church, that is a place for everyone,” he said.
Magongo said in terms of the ruling, it was unfortunate that they never really got the in-depth details of what exactly the courts considered.

Denied

“It is easier to respond when you have seen what the judgment truly entails. In what was considered you can then assess whether the person was denied their right or not. What is in the public domain is not as detailed. The courts usually consider the law in the country in order to issue rulings. As a church we uphold the rule of law and, therefore, we will not then go against what the courts have ruled as long as there is law in the country, which prohibits certain things,” said Magongo. He said if the courts ruled according to the law then it was okay but he said he could only comment accurately based on the judgment. “At the end of the day, they are part of us and we cannot segregate them. As a church we welcome everybody,” he concluded. In the majority judgment, Judge Dlamini said from its objectives, ESGM intended to sell information relating to affectionate or erotic matters of the LGBTQI.

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