LGBT rights in Eswatini
LGBTQ rights in Swaziland | |
|---|---|
 | |
| Status | Male illegal since the 1880s Female always legal[1] |
| Discrimination protections | No |
| Family rights | |
| Recognition of relationships | No |
| Adoption | No |
Lesbian, gay, bisexual, and transgender (LGBT) persons in Swaziland face legal challenges not experienced by non-LGBT residents. According to Rock of Hope, a Swazi LGBT advocacy group, "there is no legislation recognising LGBTIs or protecting the right to a non-heterosexual orientation and gender identity and as a result LGBTI cannot be open about their orientation or gender identity for fear of rejection and discrimination."
Laws regarding same-sex sexual acts
According to Section 252(1) of the Constitution of the Kingdom of Swaziland, the principles and rules of Roman-Dutch Common Law that applied to Swaziland since 22 February 1907 (as those principles and rules existed on 6 September 1968, Independence Day) are applied and enforced as the common law of Swaziland.[2] The principal source of this common law in 1907 was the common law as then applied in the Transvaal Colony, which ultimately became a part of South Africa.[3] Sodomy was a crime under the 1907 common law, punishable with either death or a lesser punishment at the discretion of the court.[4]
By the mid-twentieth century, "sodomy" in South Africa had been defined by its courts as "unlawful and intentional sexual relations per anum between two human males."[4] This narrow definition left out a residual group of proscribed "unnatural sexual acts" referred to generally as "an unnatural offence", which included at a minimum those sexual acts between men that did not involve anal penetration[4] and apparently never included sexual acts between women.[4] Whether these developments in South Africa had an effect on Swaziland's common law is uncertain. The International Lesbian, Gay, Trans and Intersex Association claims that Swaziland's definition of "sodomy" is the same as South Africa's and that female same-sex sexual acts are legal, although the sources it cites cannot be verified through the Internet.[5]
Recognition of same-sex relationships
Same-sex couples are not allowed to marry.[6][7]
Adoption of children
Same-sex couples are prohibited from adopting Swazi children. Otherwise, prospective adoptive parents may be single, married, or divorced.[8]
Discrimination protections
In 2012, Minister of Foreign Affairs Mgwagwa Gamedze rejected a call by a United Nations working group to put up a law protecting LGBT people.[9] Gamedze said so few, if any, gays live in Swaziland that the bother of drafting such a law was not worth the effort.
In May 2017, the United Nations Human Rights Committee submitted a series of questions to the Swazi Government dealing with LGBT rights. The Committee wants to know what measures have been put in place "to protect persons from discrimination and violence based on sexual orientation and gender identity, including in housing and employment, and to promote tolerance."[10]
Living conditions
The United States Department of State's 2011 Human Rights Report found that,
Societal discrimination against the LGBT community was prevalent [in 2011], and LGBT persons generally concealed their sexual orientation and gender identity. Colonial-era legislation against sodomy remains on the books; however, it has not been used to arrest gay men. Gay men and lesbians who were open about their sexual orientation and relationships faced censure and exclusion from the chiefdom-based patronage system, which could result in eviction from one's home. Chiefs, pastors, and members of government criticized same-sex sexual conduct as neither Swazi nor Christian. Societal discrimination exists against gay men and lesbians, and LGBT advocacy organizations had trouble registering with the government. One such organization, House of Pride, was affiliated with another organization dealing with HIV/AIDS. It is difficult to know the extent of employment discrimination based on sexual orientation because victims are not likely to come forward, and most gay men and lesbians are not open about their sexual orientation.[11]
Positions of government officials
King Mswati III, one of the last absolute monarchs in the world, has reportedly called same-sex relationship "satanic" and Prime Minister Barnabas Sibusiso Dlamini has called homosexuality "an abnormality and a sickness."[12]
In February 2012, Swazi public health officials used a Valentine's Day campaign to urge gays to trust promises of confidentiality and test for HIV. Deputy Director of Health Simon Zwane acknowledged that in Swazi society gay sex is taboo but said that the Health Ministry was actively extending its reach to include same-sex couples in HIV counselling and testing. The move was applauded by LGBT groups who considered it a big step in acknowledging the existence of LGBT people.[12]
In June 2012, Prime Minister Barnabas Sibusiso Dlamini said that "church clergy say this (LGBT relationships) is not biblically acceptable. It is just now that some countries and communities allow it. It is still scary here in Swaziland when we see it happen. The country's laws do not allow this." The Prime Minister also said that "people of the same sex cannot even go to regional offices to get married. It will take time before we allow this to happen and include it in the country's laws. We are not even ready to consider it".[9]
In 2014, Press Secretary Percy Simelane told The Swazi Observer that the Government "has been closely monitoring the situation with a view to take a legal position".[9]
Societal discrimination
Reports of discrimination, harassment and violence against LGBT people are not uncommon in Swaziland. In March 2015, a 26-year-old lesbian woman from Nhlangano was murdered by a man who did not want to be in the presence of lesbians. A few months earlier, a gay man was also murdered in the town.[13]
Public opinion
A 2016 poll found that 26% of Swazi would like or not mind having an LGBT neighbor.[14]
Summary table
| Same-sex sexual activity legal |  For male /  For female
|
| Equal age of consent | For male / For female
|
| Anti-discrimination laws in employment only |
|
| Anti-discrimination laws in the provision of goods and services |
|
| Anti-discrimination laws in all other areas (Incl. indirect discrimination, hate speech) |
|
| Same-sex marriages |
|
| Recognition of same-sex couples |
|
| Stepchild adoption by same-sex couples |
|
| Joint adoption by same-sex couples |
|
| LGBT people allowed to serve openly in the military | 
|
| Right to change legal gender |
|
| Access to IVF for lesbians |
|
| Commercial surrogacy for gay male couples |
|
| MSMs allowed to donate blood |
|
See also
References
- ^ Where is it illegal to be gay?
- ^ Section 252(1), Constitution of the Kingdom of Swaziland 2005, page 115
- ^ "Update: The Law and Legal Research in Swaziland", authored by Buhle Dube and Alfred Magagula, GlobaLex, published by the Hauser Global Law School Program at the New York University School of Law, June 2012
- ^ a b c d "Before the law: Criminalizing sexual conduct in colonial and post-colonial southern African societies", appearing as an appendix to "More than a Name: State-Sponsored Homophobia and Its Consequences in Southern Africa", authored by Scott Long, Human Rights Watch and The International Gay and Lesbian Human Rights Commission, 2003 : page: 262, 263 and 267
- ^ "State-sponsored Homophobia: A world survey of laws prohibiting same sex activity between consenting adults" (PDF).
- ^ "Swaziland told to legalise prostitution, gay marriage", The Zimdiaspora, 19 August 2009
- ^ "Swaziland: Support Grows for Gay Hate MP", Swazi Media Commentary, authored by Richard Rooney, reprinted at allAfrica.com, 11 November 2012
- ^ "Intercountry Adoption: Swaziland", Bureau of Consular Affairs, United States Department of State, November 2012
- ^ a b c Govt to decide on gay relationships The Swazi Observer
- ^ Swaziland questioned over LGBTI rights Mambaonline.com
- ^ 2011 Country Reports on Human Rights Practices: Swaziland, Bureau of Democracy, Human Rights and Labor, U.S. Department of State, page 27
- ^ a b SWAZILAND GOVERNMENT REACHES OUT TO GAYS Mambaonline.com
- ^ Anti-gay attacks on the rise in Swaziland Mambaonline.com
- ^ https://www.gaystarnews.com/article/africa-gay-worst/#gs.rQCzDGI