The LGBTI community will have to wait a little longer to know if they would be tolerated in the country. This follows the deferment of judgment in the matter, where a high court full bench comprising justices Mumsy Dlamini and Cyril Maphanga is expected to determine whether discrimination based upon gender identity and sexual orientation is covered by the country's laws.
They are further expected to determine whether the companies Act criminalizes advocacy for the rights of the LGBTI community.
The dispute where the country's Registrar for companies Msebe Malinga refused registration of an organization that seeks to promote and further protect the interests of the LGBT community in the kingdom raised questions around the tolerance for this particular sector of society. In his refusal to register the organization, the registrar of companies raised grounds of religion, morals, and unlawful behavior which he feels could be promoted if the organization were be allowed to operate in the country.
Even though the registrar did not specify which laws would be violated by the existence of the organization, it was clear that the decision was based on his opposition of sex between persons of the same gender. In his opposition, the registrar noted that the country still punishes those who engage in same sex, hence he was compelled not to allow the registration of an entity that would promote such behavior and mislead the nation.
However, legal counsel for the applicants led by human rights lawyer Thulani Maseko adamantly objected to the assertion. Maseko argued that the assertions fall outside of the registrars mandate and the legal considerations which ought to apply in deciding whether to register an organization or not.
"Respondents contended that their decision to refuse registration was informed by religious morality. They justify this reasoning based on the preamble of the Constitution, which they claim acknowledges the supremacy of the Almighty God who is the objective moral law giver. Finally, the respondents seek to justify the decision by asserting that the applicants seek to "legitimize gay and lesbian liaisons as such other indecent offenses", that the law is an expression of moral expressions in society and that the ESGM will promote unnatural actions which will be detrimental to the public interest and that every sexual act which does not result to procreation is a natural and prohibited under the law," noted Maseko.
To counter this, Maseko put it clear that the ESGM did not advocate for a particular individuals to engage in unlawful activity. He said there was a distinction between LGBTI advocacy (which ESGM wishes to engage in) and same sex sexual activity. In his argument he said the respondents failed to show that the ESGM would encourage individuals to break the law, as it had been asserted. In his submission Maseko maintained that a SGM word for promoting the LGBT iMessage while presenting that community as part of wider Eswatini society, and not just a lot preoccupied with sexual activity among members.
Turning to the issue of religious morality, Maseko cited extensive caselaw rejecting the application of religious and moral believes in constitutional analysis.
For an example in the case of Jason Jones versus Attorney General of Trinidad and Tobago he said the High Court eloquently explained why notions of religious morality could not be entertained in constitutional analysis.
"This is not a case about religious and moral beliefs but is one about the inalienable rights of a citizen under the Republican Constitution of Trinidad and Tobago any citizen or all citizens. This is a case about the dignity of the person and not about the will of the majority or any religious debate. History has proven that the two do not always coincide.
To my mind, religious debates are best left to be discussed and resolved in other quarters with persons who subscribe to those particular ideals and for the followers of those ideals to be convinced as to the religiousness, sanctity, or morality of those ideals..."
"This conclusion is not an assortment of denial of the religious beliefs of anyone this court is not qualified to do so. However this conclusion is a recognition of the beliefs of some, by definition is not the beliefs of all and in the Republic of Trinidad and Tobago, all are protected and are entitled to be protected under the constitution. As a result, this court must and uphold the Constitution to recognize the dignity of every citizen whose rights and freedoms have been taken away."
The attorney for the returned to the Philippines Supreme Court case of Any Landlad LGBT Party v Commission on Elections, where the court considered the refusal to register a lesbian, gay, bisexual, and transgender organization as a party for the elections. In that case the court noted that the respondent had failed to explain what societal ills were sought to be prevented or why it was of the view that admission of the organization as a party would be so harmful as to irreparably damaged the moral fabric of society.