LGBT rights in Eswatini

According to Section 252(1) of the Constitution of the Kingdom of Eswatini, the principles and rules of Roman-Dutch common law that have applied to Eswatini 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 Eswatini.[6] 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.[7] Sodomy, defined as same-sex sexual relations between men, was a crime under the 1907 common law, punishable with either death or a lesser punishment at the discretion of the court.[8]

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."[8] 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[8] and apparently never included sexual acts between women.[8] Whether these developments in South Africa had an effect on Eswatini's common law is uncertain. The International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA) asserts that Eswatini's definition of "sodomy" is the same as South Africa's and that female same-sex sexual acts are legal.[9][10]

Eswatini's sodomy law is in practice not enforced.[1] The Minister of Justice has repeatedly stated that their policy is not to prosecute consenting adults.[1] There are no known arrests or prosecutions for consensual same-sex sexual activity.[1] Nevertheless, LGBT groups have been critical of this approach: "To us, it sounds like holding a gun and saying your policy is not to shoot." They have argued that the only way to repeal the country's sodomy law is to go through the courts.[10]

Following the repeal of Botswana's sodomy law in June 2019, an editorial for the human rights website Swazi Media Commentary, republished in AllAfrica, called on Eswatini to follow suit. The editorial noted, however, that differences between the two countries—Botswana is a democracy, while Eswatini is an absolute monarchy—were likely to make such a transition difficult in Eswatini's case. The author, Richard Rooney, pointed out that Eswatini has a poor human rights record and political parties are banned there. As a consequence, in his view, there is very little opportunity for discussion and debate, in contrast to the Botswana experience.[11] The kingdom's monarch is believed to be strongly opposed to repeal—he has been widely[12][10][13][14] reported as having described[lower-alpha 1] homosexuality as "satanic". As he must authorise all laws passed by Parliament before they can come into effect, the courts may be the most likely avenue for repeal of the country's sodomy law.[10]

There is no legal recognition of same-sex relationships.[15][16]

Same-sex couples are prohibited from adopting children. Otherwise, prospective adoptive heterosexual parents may be single, married, or divorced.[17]

In 2012, former Minister of Foreign Affairs Mgwagwa Gamedze rejected a call by a United Nations working group to put up a law protecting LGBT people.[18] Gamedze said so few, if any, gays live in Eswatini 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 wanted 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".[19] Additionally, the Committee questioned Eswatini's adherence to the International Covenant on Civil and Political Rights, which protects private adult consensual sexual activity, and expressed concern that violence against LGBT people is widespread.[10]

The United States Department of State's 2011 Human Rights Report found that:[20]

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.

According to a 2013 survey, 43% of lesbian and transgender respondents had tried to commit suicide within the past year, and 78% regularly took "intoxicating substances to feel normal and forget".[10]

A 2016 poll found that 26% of Swazis would like or not mind having an LGBT neighbor.[31]

A 2019 survey showed that 59% of LGBT Swazis had been discriminated against or treated disrespectfully at public health facilities, with 30% being denied healthcare services.[32]

• Human rights in Eswatini
• LGBT rights in Africa

• "Where is it illegal to be gay?". BBC News. 10 February 2014.
• "Judgement". Melusi Simelane & 5 Others v Minister for Commerce and Industry & 2 Others (PDF). High Court of Eswatini. 29 April 2022. (1897/2019) {2020} SZHC 66.
• "25th Universal Periodic Review (UPR) session: Swaziland (Cycle 2)", ARC International, Document number: A/HRC/33/14, retrieved 2 October 2022