LGBT rights in Eswatini

Lesbian, gay, bisexual, and transgender (LGBT) rights in Eswatini are limited. LGBT people face legal challenges not experienced by non-LGBT residents. According to Rock of Hope, a Swati LGBT advocacy group, "there is no legislation recognising LGBTIs or protecting the right to a non-heterosexual orientation and gender identity and as a result [LGBT people] cannot be open about their orientation or gender identity for fear of rejection and discrimination". Homosexuality is illegal in Eswatini, though this law is in practice unenforced.

LGBT rights in Eswatini
Eswatini
Status	Male: illegal since 1907 (unenforced) Female: legal[1]
Gender identity	No
Military	No
Discrimination protections	No
Family rights
Recognition of relationships	No recognition of same-sex unions
Adoption	No

LGBT people in Eswatini regularly face societal discrimination and harassment. As such, most choose to remain in the closet or move to neighbouring South Africa. Additionally, they face a very high rate of HIV/AIDS infections (Eswatini has the highest prevalence of HIV in the world, with reportedly 27% of the Swati population being infected).

Eswatini's first pride parade was held in June 2018.[2]

Laws regarding same-sex sexual acts

According to Section 252(1) of the Constitution of the Kingdom of Eswatini, the principles and rules of Roman-Dutch common law that have applied to Eswatini since 22 February 1907 (as those principles and rules existed on 6 September 1968, Independence Day) are applied and enforced as the common law of Eswatini.[3] The principal source of this common law in 1907 was the common law as then applied in the Transvaal Colony, which ultimately became a part of South Africa.[4] Sodomy was a crime under the 1907 common law, punishable with either death or a lesser punishment at the discretion of the court.[5]

By the mid-twentieth century, "sodomy" in South Africa had been defined by its courts as "unlawful and intentional sexual relations per anum between two human males."[5] This narrow definition left out a residual group of proscribed "unnatural sexual acts" referred to generally as "an unnatural offence", which included at a minimum those sexual acts between men that did not involve anal penetration,[5] and apparently never included sexual acts between women.[5] Whether these developments in South Africa had an effect on Eswatini's common law is uncertain. The International Lesbian, Gay, Trans and Intersex Association claims that Eswatini's definition of "sodomy" is the same as South Africa's and that female same-sex sexual acts are legal.[6]

Eswatini's sodomy law is in practice not enforced. The Minister of Justice has repeatedly said that their policy is not to prosecute consenting adults. Nevertheless, LGBT groups have been critical of this approach: "To us, it sounds like holding a gun and saying your policy is not to shoot." They have argued that the only way to repeal the country's sodomy law is to go through the courts.[7]

In June 2019, following the repeal of Botswana's sodomy law, an editorial for AllAfrica called on Eswatini to follow suit. However, the editorial noted that differences between the two countries—Botswana being a democracy and Eswatini being an absolute monarchy with a very poor human rights record and where political parties are banned—that there is very little opportunity for discussion and debate.[8]

Recognition of same-sex relationships

There is no legal recognition of same-sex relationships.[9][10]

Adoption and family planning

Same-sex couples are prohibited from adopting children. Otherwise, prospective adoptive heterosexual parents may be single, married, or divorced.[11]

Discrimination protections

In 2012, former Minister of Foreign Affairs Mgwagwa Gamedze rejected a call by a United Nations working group to put up a law protecting LGBT people.[12] Gamedze said so few, if any, gays live in Eswatini that the bother of drafting such a law was not worth the effort.

In May 2017, the United Nations Human Rights Committee submitted a series of questions to the Swazi Government dealing with LGBT rights. The Committee wanted to know what measures have been put in place "to protect persons from discrimination and violence based on sexual orientation and gender identity, including in housing and employment, and to promote tolerance".[13] Additionally, the Committee questioned Eswatini's adherence to the International Covenant on Civil and Political Rights, which protects private adult consensual sexual activity, and expressed concern that violence against LGBT people is widespread.[7]

Living conditions

The United States Department of State's 2011 Human Rights Report found that:

Societal discrimination against the LGBT community was prevalent [in 2011], and LGBT persons generally concealed their sexual orientation and gender identity. Colonial-era legislation against sodomy remains on the books; however, it has not been used to arrest gay men. Gay men and lesbians who were open about their sexual orientation and relationships faced censure and exclusion from the chiefdom-based patronage system, which could result in eviction from one's home. Chiefs, pastors, and members of government criticized same-sex sexual conduct as neither Swazi nor Christian. Societal discrimination exists against gay men and lesbians, and LGBT advocacy organizations had trouble registering with the government. One such organization, House of Pride, was affiliated with another organization dealing with HIV/AIDS. It is difficult to know the extent of employment discrimination based on sexual orientation because victims are not likely to come forward, and most gay men and lesbians are not open about their sexual orientation.[14]

Positions of government officials

King Mswati III, one of the last absolute monarchs in the world, has reportedly called same-sex relationships "satanic" and former Prime Minister Barnabas Sibusiso Dlamini has called homosexuality "an abnormality and a sickness".[15]

In 2009, Mangosuthu Simanga Dlamini, president of the Gays and Lesbians Association of Eswatini (Galeswa), was personally invited to the opening of the ninth Swati Parliament.[16]

In February 2012, Swazi public health officials used a Valentine's Day campaign to urge gays to trust promises of confidentiality and test for HIV. Deputy Director of Health Simon Zwane acknowledged that in Swazi society gay sex is taboo but said that the Health Ministry was actively extending its reach to include same-sex couples in HIV counselling and testing. The move was applauded by LGBT groups who considered it a big step in acknowledging the existence of LGBT people.[15]

In June 2012, Prime Minister Barnabas Sibusiso Dlamini said that "church clergy say this (LGBT relationships) is not biblically acceptable. It is just now that some countries and communities allow it. It is still scary here in Eswatini when we see it happen. The country's laws do not allow this." The Prime Minister also said that "people of the same sex cannot even go to regional offices to get married. It will take time before we allow this to happen and include it in the country's laws. We are not even ready to consider it".[12]

In 2014, Press Secretary Percy Simelane told The Swazi Observer that the Government "has been closely monitoring the situation with a view to take a legal position".[12]

Societal discrimination and incidents

Reports of discrimination, harassment and violence against LGBT people are not uncommon in Eswatini. In March 2015, a 26-year-old lesbian woman from Nhlangano was murdered by a man who did not want to be in the presence of lesbians. A few months earlier, a gay man was also murdered in the town.[17]

In March 2019, a pastor for an unknown church was suspended after being accused of being bisexual.[18]

In June 2019, officials refused to register Eswatini Sexual and Gender Minorities (ESGM) "on the grounds of morality". Melusi Simelane, the group's founder, is considering legal action.[19]

Activism

Eswatini's first pride parade was held in June 2018 in Mbabane and was organised by Rock of Hope. The event began with a march (with police protection), following by a picnic and a party. About a thousand people attended. The event received considerable international and domestic media coverage, appearing on the front page of both major Swazi newspapers. U.S. Ambassador to Eswatini Lisa J. Peterson attended the march.[20]

Rock of Hope is an LGBT advocacy group, which seeks to raise awareness of the discrimination and stigmatisation faced by members of the LGBT community, to prevent the transmission of HIV/AIDS and to promote acceptance of LGBT people by society and by themselves. It was founded in 2012. It is also active in undertaking charity works in local communities.[21]

In November 2018, activists released a documentary focusing on the lives of a gay man, Mlando, a lesbian, Alex, and a transgender woman, Polycarp, in Eswatini. The documentary, called "Fighting For Pride: Swaziland", discusses the prejudices they face, the reactions of their families and the signification of LGBT activism.[22]

In December 2018, a branch of the Ark of Joy International Ministry, a religious organisation, was relaunched in Coates Valley.[23] The church welcomes gay and lesbian members. A spokesman for Rock of Hope said, "It is worth noting that many in the religious circles, continue to spew hate speech and show utter disregard for the deeds of the Lord, by being judgmental and expelling some of the LGBTI community from their places of worship. It is for that reason, we welcome the opening of such churches as those that show the love of God, and preach the spirit of oneness and togetherness."

The country's second pride event was held on 22 June 2019.[24] The event, described as a "joyful success", included participants signing traditional Swati songs.

Public opinion

According to a 2013 survey, 43% of lesbian and transgender respondents had tried to commit suicide within the past year, and 78% regularly took "intoxicating substances to feel normal and forget".[7]

A 2016 poll found that 26% of Swazis would like or not mind having an LGBT neighbor.[25]

A 2019 survey showed that 59% of LGBT Swazis had been discriminated against or treated disrepectfully at public health facilities, with 30% being denied healthcare services.[26]

Summary table

Same-sex sexual activity legal	(For male, unenforced)/ For female
Equal age of consent	(For male, unenforced)/ For female
Anti-discrimination laws in employment only
Anti-discrimination laws in the provision of goods and services
Anti-discrimination laws in all other areas (Incl. indirect discrimination, hate speech)
Same-sex marriages
Recognition of same-sex couples
Stepchild adoption by same-sex couples
Joint adoption by same-sex couples
LGBT people allowed to serve openly in the military
Right to change legal gender
Access to IVF for lesbians
Commercial surrogacy for gay male couples
MSMs allowed to donate blood

See also

• Human rights in Eswatini
• LGBT rights in Africa

References

1. "Where is it illegal to be gay?". 10 February 2014 – via www.bbc.com.
2. "LGBT Activists Plan First-Ever Pride March in Swaziland". 12 April 2018.
3. "Section 252(1), Constitution of the Kingdom of Swaziland 2005, page 115" (PDF).
4. "UPDATE: The Law and Legal Research in Swaziland - GlobaLex". www.nyulawglobal.org.
5. ""Before the law: Criminalizing sexual conduct in colonial and post-colonial southern African societies", appearing as an appendix to "More than a Name: State-Sponsored Homophobia and Its Consequences in Southern Africa", authored by Scott Long, Human Rights Watch and The International Gay and Lesbian Human Rights Commission, 2003 ^{:page: 262, 263 and 267}" (PDF).
6. "State-sponsored Homophobia: A world survey of laws prohibiting same sex activity between consenting adults" (PDF). Archived from the original (PDF) on 11 June 2012.
7. The LGBT Heroes Fighting to Hold the First Ever Pride in Swaziland, DailyBeast, 4 April 2018
8. "Botswana: Time for Swaziland to Follow Botswana's Lead and Decriminalise Gay Sex". AllAfrica.com. 13 June 2019.
9. ""Swaziland told to legalise prostitution, gay marriage", The Zimdiaspora, 19 August 2009". Archived from the original on 28 September 2017. Retrieved 27 December 2012.
10. ""Swaziland: Support Grows for Gay Hate MP", Swazi Media Commentary, authored by Richard Rooney, reprinted at allAfrica.com, 11 November 2012".
11. ""Intercountry Adoption: Swaziland", Bureau of Consular Affairs, United States Department of State, November 2012". Archived from the original on 15 February 2013.
12. Govt to decide on gay relationships The Swazi Observer
13. Swaziland questioned over LGBTI rights Mambaonline.com
14. "Country Reports on Human Rights Practices: Swaziland" (PDF). Bureau of Democracy, Human Rights and Labor, U.S. Department of State. 2011. p. 27.
15. Swaziland government reaches out to gays Mambaonline.com
16. "Times Of Swaziland". www.times.co.sz.
17. Anti-gay attacks on the rise in Swaziland Mambaonline.com
18. "Swaziland: 'Bisexual' Pastor Suspended By Swaziland Church in Latest Example of LGBTI Discrimination". AllAfrica. 5 March 2019.
19. "Eswatini government refuses to register LGBTI group". Mambaonline. 6 July 2019.
20. "History made as first eSwatini Pride declared a "perfect" success". Mambaonline. 2 July 2018.
21. "The rock of hope eSWATINI". Archived from the original on 10 July 2018. Retrieved 10 July 2018.
22. "Swaziland: LGBT Pride Film Shows What It's Like to Live With Prejudice and Ignorance in Swaziland". AllAfrica.com. 15 November 2018.
23. "Church in Swaziland welcoming LGBTIQ people reopens, but no let-up on discrimination in the kingdom". Swazi Media Commentary. 13 December 2018.
24. "Second eSwatini Pride a "joyful" success". Mambaonline. 26 June 2019.
25. "What are the best and worst countries to be gay in Africa?". 1 March 2016.
26. "59% of LGBTIQs Disrespected, Insulted". Times of Swaziland. 2 December 2019.