Eswatini LGBTI await crucial court ruling

by Roberto Igual 

The LGBTI community in Eswatini is waiting to hear if the nation’s high court will order the government to finally register an LGBTI rights organisation.

On 20 October, the Eswatini High Court heard oral arguments in a case centred on the government’s ongoing refusal to register Eswatini Sexual and Gender Minorities (ESGM), an NGO that advocates for the rights of the LGBTI community.

Legal representatives from ESGM and the state laid out their positions to a full bench of the court in Mbabane. In September 2019, the government, through the Registrar of Companies, officially rejected ESGM’s application for registration.

The state told the three judges that it cannot register the organisation because it is “pursuing an unlawful purpose” contrary to the Companies Act. The government further argues that the constitution prohibits same-sex marriage and that sodomy is outlawed. It also believes that the group’s aims violate the customary and traditional values of the kingdom, even citing biblical passages, including the story of Sodom and Gomorrah, to justify its stance.

While sodomy is illegal, responded ESGM, being gay and advocating for the interests of the LGBTI community is not and therefore its purposes is not unlawful. Read more via Mamba Online

A summary with some very brief comments on the government’s submissions in @EMinorities registration case. 1/19 

The government made 5 main submissions:
1.Registration vs reservation
2.The reason for refusal
3.Unlawful purpose
4.S25
5.S20
2/19 

1. Reg v res - Govt advocate began with a fairly lengthy exchange with the bench about the distinction between registration of an organisation and reservation of the organisation’s name. 3/19 

This argument didn’t appear to lead anywhere. The bench accepted it as obvious that reservation and registration were different but that this point did not go to the issue of whether the refusal of registration was lawful. Govt advocate appeared to accept this point. 4/19 

2. Reason for refusal - Govt advocate suggested that the reason for refusal was that @EMinorities was pursuing an unlawful purpose contrary to s17(a) of the Companies Act. 5/19 

The bench had difficulty with this argument as the Registrar did not explicitly give this as the reason in his decision letter. The bench said the reason for refusal had to be articulated in the decision letter and not imputed at a later date by the Govt advocates. 6/19 

The bench said, reading from the letter, that the reason for rejection appeared to be that @EMinorities did not promote a "communal or growth interest" contrary to s17(b) of the Companies Act. 7/19 

The bench asked the Govt advocate what a “communal or growth interest” was. Govt advocate struggled to answer this question. 8/19 

Govt advocate, when pressed further, said that because @EMinorities was advocating for a section of the community and not the whole community it could not be said they were promoting a communal interest. 9/19 

This seemed unconvincing as (1) the narrow interp of “communal” is not the ordinary meaning of the word, (2) no ref was made to anything in the wording of the legislation which supported this interpretation + 10/19 

(3) it would exclude most community orgs which, unlike govt, have a more narrower focus that advancing the interest of all people within the state. 11/19 

3. Unlawful purpose - @EMinorities had argued that whilst sodomy was illegal in SD, being gay and advocating for the interests of the LGBTI community was not and therefore its purposes were not unlawful. 12/19 

The Govt’s main response was that this was, “splitting hairs” and that the law criminalised “homosexual activity”. 13/19 

A concerning argument. The rule of law requires laws to be specific and clear enough so people can guide their behaviour to be within the law. That is one reason why criminal laws are specific and narrowly focused. 14/19 

If you are stopped for driving 65km/h in a 60km/h zone the police are unlikely to accept the argument that they are “splitting hairs” when it comes to your speed and they should let you off bcs it’s all driving activity. 15/19 

4. s25 - Gov submitted ESGM could not rely on freedom of association (s25) bcs S25(4) says laws for the reg of companies will not be held to be inconsistent with s25. This argument only helps the govt’s case if the decision to refuse reg was made lawfully under the Co. Act.16/19 

5. s20 - Govt submitted @EMinorities couldn't rely on s20 because (1) s20(2) does not list sexual orientation as a protected ground +(2) Discrim for the purposes of s20 is defined in a specific way in s20(3). 17/19 

Govt asserted that a purposive and generous approach to shouldn't be used. This argument requires an interp of s20 which reads s20(2) and S20(3) as cutting down the general equality protection in s20(1). 18/19 

S20 (2)+(3) could be providing an indicative list of protective characteristics. This interpretation would be consistent with a generous and purpose approach and is arguable a more natural reading of the section. 19/19