BARRIER TO ADVOCACY

Eswatini still bears the mark of many colonial hangovers, evidence of which can be found in her laws. As an advocate for the equality of LGBTI persons, gaining access to a seat at the policy decision-making tables has taken time and the road to decriminalisation is still ahead.

Currently, LGBTI identities are not criminalised in Eswatini, but ancient colonial laws that included the ‘crime’ of sodomy criminalise homosexual sex, suggesting it is simply a sexual act rather than a broader issue of love and respect. These outdated laws violate Eswatini’s constitutional rights as supported by the International Covenant on Civil and Political Rights (ICCPR), as well as no longer being relevant in the country (United Kingdom) that first set them. Should anyone be suspected of having committed the sodomy offence, or even found to have had the intention to, they are liable to arrest without a warrant. This is in accordance with the Criminal Procedure and Evidence Act of 1938. Furthermore, a National Register for Sex Offenders will enlist them, under clause 56 of the Sexual Offences and Domestic Violence Act of 2018. The circumstances set out above impair and hinder advocacy in many ways and on many levels. In order to do advocacy constant consultation, discussion, demonstration and persuasion is necessary.

Ideally, advocacy is done at both societal and government levels. The main purpose laws such as this serve is fear mongering, aided by the narrative being perpetuated by traditional and religious authorities in the media. They serve to scare people into self-regulating their behaviour and also encourage a culture of secrecy which has devastating consequences for health practices. When seeking human rights and health services, these laws endorse homophobic government employees and healthcare providers to deny services or make it so difficult to access that LGBTI people do not seek them at all. This kind of secrecy creates an invisibility that also bolsters the narrative that LGBTI people do not exist in Africa and hence their rights are irrelevant to equality.

Violations

When addressing policymakers, evidence of human rights violations is necessary to make the case for LGBTI equality. In a society that scares people into silence and invisibility, evidence becomes a scarce commodity. The erasure caused by these laws fundamentally impact advocacy in that it stifles meaningful engagement with citizens who are not a part of the LGBTI, but are potential allies. Opportunities for learning become difficult to enable when sentiments of criminality are attached to the LGBTI, and fear of being identified as a part of the community stops people from learning or offering allyship. Although LGBTI voices have made inroads in many spheres of society, the energy to achieve full decriminalisation remains low and unprioritised. The challenges above continue to shut down or seclude civic spaces for engagement on LGBTI equality, thereby stifling impact and progress. Anyone seen as a criminal cannot fully engage power and authority on how to make society a better place for those like them. We must first be emancipated from the suspicion of unjust laws and societal stigma.

Another challenge, which recently presented itself as result of the challenges mentioned above, is that of freedom of association, expression and assembly. In September 2019, the Registrar of Companies refused to register the Eswatini Sexual and Gender Minorities (ESGM). ESGM’s members subsequent to the refusal to register their organisation, approached the High Court on the basis that the refusal violates their constitutional right to dignity, freedom of association and expression, and equality. The Eswatini High Court heard arguments in the registration case on October 20, 2020. We are keenly awaiting judgment on the case. In a context where all citizens are not equal, laws which do not specifically provide protection for marginalised groups are always prone to manipulation. The social stigma and prejudice enabled by the law allows members of society, as well those in powerful positions, to personalise their application of the law, under the guise of legality. With the common law of ‘sodomy’ in place, law application/enforcement comes to the seemingly fair conclusion that the Constitution does not protect LGBTI citizens.

Risk

This kind of manipulation remains a risk to all LGBTI advocacy as well as the ethos of basic and fundamental human rights. It is for these reasons that freedom of association is a fundamental human right which should be protected and not weaponised for political ends. When the State disregards the right to associate freely, it should be of concern to the whole society. If we ignore the rights of persons in society to associate with other like-minded individuals, we create and embark on a slippery slope where our ability to associate with and obtain support from others becomes more insecure. A country’s laws and the values of its people share relationships and feed each other constantly. In Eswatini’s case, laws are based on the preferences of a select few and citizens often have little choice but to abide, in the midst of private and public protest. If LGBTI advocacy is to progress beyond proclaiming the valid existence of LGBTI people in the country, decriminalisation of same-sex relations and the realisation of fundamental human rights must be prioritised as a matter of urgency.

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