Victory as Eswatini Supreme Court rules in favour of LGBTIQ+ rights group

In a landmark victory, the Supreme Court of Eswatini has ruled that the government must allow an LGBTIQ+ rights organisation to be registered.

After a three-year legal battle, the court on Friday overturned last year’s High Court decision and set aside the refusal by the country’s Registrar of Companies to register Eswatini Sexual and Gender Minorities (ESGM) as a non-profit organisation.

The five-panel bench of the Supreme Court unanimously declared the Registrar’s decision invalid. The court ruled that the Registrar’s approach did not meet the legal requirements outlined in Section 33 of the Constitution, which guarantees the right to administrative justice and fair treatment.

The Minister responsible for company registration has been ordered to reconsider ESGM’s application and provide a written decision within 60 days.

The Supreme Court also agreed with the appellants’ argument that the Registrar had unlawfully relied on advice from others, leading to an unjust refusal of registration.

“The judgement today brings hope to the organisation and its members as we witness the Supreme Court recognising the rights of all citizens by setting aside the decision of the Registrar,” commented Sisanda Mavimbela, ESGM’s Executive Director.

Melusi Simelane, who brought the application on behalf of ESGM, welcomed the judgement. “Once again, the judiciary has reminded the executive branch of government and its functionaries of the importance of Section 33 of the Constitution,” said Simelane.

“This is a monumental judgement and a constant reminder to the executive to exercise its powers with restraint and pay close attention to the rights and liberties of every citizen,” he added.

The ruling holds significant implications for the recognition and protection of LGBTIQ+ rights in Eswatini

Anneke Meerkotter, the Executive Director of the Southern Africa Litigation Centre (SALC), also voiced satifaction with the court’s decision. “We trust that the Minister will apply his mind properly to the matter, taking into consideration the appellants’ rights to association and expression,” said Meerkotter.

ESGM first applied for registration as a non-profit organisation with the Registrar of Companies in September 2019. However, the Registrar denied the application, citing the alleged unlawfulness of ESGM’s objectives due to the criminalisation of same-sex intimacy in Eswatini.

Although not actively enforced, men “suspected” of sodomy can be arrested in Eswatini without a warrant under the Criminal Procedures Act of 1938.

The High Court subsequently denied ESGM’s right to be legally registered by the government in April 2022. ESGM, supported by SALC, appealed the ruling to the Supreme Court.

This ruling holds significant implications for the recognition and protection of LGBTIQ+ rights in Eswatini. By setting aside the Registrar’s refusal and ordering a reconsideration, the Supreme Court has acknowledged the importance of constitutional rights for all citizens, regardless of sexual orientation or gender identity.

Eswatini is one of the world’s last remaining absolute monarchies. The government has violently clamped down on pro-democracy protests in the recent past. It also temporarily shut down the internet in a bid to stifle dissent.