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SAME-SEX RELATIONSHIPS ILLEGAL - PS

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MBABANE - Government says the mere fact that men having sex with men is mentioned in the NSF does not mean it has been legalised or that the country’s law can now recognise them.


NSF is the National Multi-sectoral HIV and AIDS Strategic Framework. It is a policy and planning document that has been developed to guide focused resource allocation, programming and implementation of HIV response in the Kingdom of Eswatini.


The State made these submissions in the matter where it is robustly opposing the application filed by the LGBTI community where it is seeking an order declaring that the registration of an association that seeks to promote their interests in Eswatini is not unlawful.


acronym


LGBTI is an acronym for lesbian, gay, bisexual, transgender and intersex.
In his answering affidavit, Principal Secretary (PS) in the Ministry of Commerce, Industry and Trade Siboniso Nkambule averred that the applicant (Eswatini Sexual and Gender Minorities) seems to rely on the Government of Eswatini’s Multi- Sectoral HIV and AIDS Strategic Framework .
The PS contended that this was an irrelevant consideration to the effect that the registration of the Eswatini Sexual and Gender Minorities would be entirely unrelated to the NSF.


“The study was only saying, we know that you are there and in the fight against HIV and AIDS we cannot turn a blind eye and act as if we are unaware of the fact that there is a group of men who are having sex with men out there,” averred the PS.


He said that was why the Government of the Kingdom of Eswatini decided to include men who were having sex with men in the fight against HIV because: “We want to be a country that is HIV free in 2023.”


PS Nkambule went on to contend that the applicants aimed to use judicial craft to legitimise gay and lesbian liaison and such other indecent offences and create  new breed of rights that did not exist in the Constitution of the Kingdom of Eswatini.
He said it was unsustainable to allege unfairness when society frowned upon persons who were deemed to engage in prohibited conduct which was totally against public interest.


“The law is an expression of moral inclinations in the society; that in the realm of our law as a country, there is no requirement that there has to be a collective victimisation for a prohibited conduct to be complete,” submitted the PS.
He informed the court that, the alleged violation of constitutional rights could not arise since the conduct in question was prohibited in the cultural values as well as in morality law.


Nkambule further stated that there was no evidence that was adduced by the applicants to show that persons who were engaged in same sex relationships were denied medical care.
He averred that the court could not compel the Eswatini Government to legalise LGBTIs by setting aside and reviewing the decision of the registrar of companies and allow Eswatini Sexual and Gender Minorities to register as an association not-for-gain in terms of Section 7 of the Companies Act.
Nkambule said by setting aside and reviewing the decision of the registrar of companies, the court would be overstretching its mandate. 


“If granted, the orders will have a drastic impact on cultural, religious, social interest and legislative functions in Eswatini as it will amount to legalising LGBTI through the back door,” contended the PS.
He told the court that the orders that were sought by Eswatini Sexual and Gender Minorities were incompetent, misconceived, misplaced and if they might be granted, it would be an abuse of the court process. 

 

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