LGBT rights in Eswatini | |
---|---|
![]() | |
Status | |
Gender identity | No |
Military | No |
Discrimination protections | No |
Family rights | |
Recognition of relationships | No recognition of same-sex unions |
Adoption | No |
Lesbian, gay, bisexual, and transgender (LGBT) people in Eswatini have limited legal rights. According to Rock of Hope, a Swati 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 [LGBT people] cannot be open about their orientation or gender identity for fear of rejection and discrimination." Homosexuality is illegal in Eswatini, though this law is in practice unenforced. [2] According to the 2021 Human Rights Practices Report from the US Department of State, "there has never been an arrest or prosecution for consensual same-sex conduct." [1]
Despite the absence of legal enforcement against same-sex sexual activity, LGBT people in Eswatini regularly face societal discrimination and harassment, including violence. As such, most choose to remain in the closet or move to neighbouring South Africa.
However, Eswatini has a higher than average tolerance of LGBT people compared to most other African countries. [3] Eswatini's first pride parade was held in June 2018. [4]
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. [5] 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. [6] 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. [7]
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." [7] 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 [7] and apparently never included sexual acts between women. [7] 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. [8] [9]
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. [9]
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. [10] The kingdom's monarch is believed to be strongly opposed to repeal—he has been widely [11] [9] [12] [13] 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. [9]
There is no legal recognition of same-sex relationships. [14] [15]
Same-sex couples are prohibited from adopting children. Otherwise, prospective adoptive heterosexual parents may be single, married, or divorced. [16]
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. [17] 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." [18] 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. [9]
The United States Department of State's 2011 Human Rights Report found that: [19]
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.
King Mswati III, one of the last absolute monarchs in the world, has reportedly called same-sex relationships "satanic" [lower-alpha 1] and former Prime Minister Barnabas Sibusiso Dlamini has called homosexuality "an abnormality and a sickness." [11]
In 2009, Mangosuthu Simanga Dlamini, president of the Gays and Lesbians Association of Eswatini (Galeswa), was personally invited to the opening of the ninth Swati Parliament. [20]
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. [11]
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 Eswatini 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." [17] 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." [17]
Reports of discrimination, harassment and violence against LGBT people are not uncommon in Eswatini. 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. [21]
In March 2019, a pastor for an unknown church was suspended after being accused of being bisexual. [22]
In June 2019, officials refused to register Eswatini Sexual and Gender Minorities (ESGM) "on the grounds of morality." Melusi Simelane, the group's founder, took legal action to challenge the rejection. [23] The matter was heard in 2020 and in 2022 the High Court, in a split decision, upheld the decision to deny registration. While doing so, the court also accepted that the constitution protects the rights of LGBT persons to freedom of association, privacy and expression. [24]
Eswatini's first pride parade was held in June 2018 in Mbabane and was organised by Rock of Hope. The event began with a march (with police protection), following by a picnic and a party. About a thousand people attended. The event received considerable international and domestic media coverage, appearing on the front page of both major Swazi newspapers. U.S. Ambassador to Eswatini Lisa J. Peterson attended the march. [25]
Rock of Hope is an LGBT advocacy group, which seeks to raise awareness of the discrimination and stigmatisation faced by members of the LGBT community, to prevent the transmission of HIV/AIDS and to promote acceptance of LGBT people by society and by themselves. It was founded in 2012. It is also active in undertaking charity works in local communities. [26]
In November 2018, activists released a documentary focusing on the lives of a gay man, Mlando, a lesbian, Alex, and a transgender woman, Polycarp, in Eswatini. The documentary, called "Fighting For Pride: Swaziland", discusses the prejudices they face, the reactions of their families and the signification of LGBT activism. [27]
In December 2018, a branch of the Ark of Joy International Ministry, a religious organisation, was relaunched in Coates Valley. [28] The church welcomes gay and lesbian members. A spokesman for Rock of Hope said, "It is worth noting that many in the religious circles, continue to spew hate speech and show utter disregard for the deeds of the Lord, by being judgmental and expelling some of the LGBTI community from their places of worship. It is for that reason, we welcome the opening of such churches as those that show the love of God, and preach the spirit of oneness and togetherness."
The country's second pride event was held on 22 June 2019. [29] The event, described as a "joyful success", included participants signing traditional Swati songs.
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." [9]
A 2016 poll found that 26% of Swazis would like or not mind having an LGBT neighbor. [30]
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. [31]
Same-sex sexual activity legal | ![]() |
Equal age of consent | ![]() |
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 | ![]() |
The International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA) is a LGBTQ+ rights organization.
Gay-friendly or LGBT-friendly places, policies, people, or institutions are those that are open and welcoming to gay or LGBT people. They typically aim to create an environment that is supportive, respectful, and non-judgmental towards the LGBT community. The term "gay-friendly" originated in the late 20th century in North America, as a byproduct of a gradual implementation of gay rights, greater acceptance of LGBT people in society, and the recognition of LGBT people as a distinct consumer group for businesses.
Lesbian, gay, bisexual, and transgender (LGBT) people in South Africa have the same legal rights as non-LGBT people. South Africa has a complex and diverse history regarding the human rights of LGBT people. The legal and social status of between 400,000 to over 2 million lesbian, gay, bisexual, transgender and intersex South Africans has been influenced by a combination of traditional South African morals, colonialism, and the lingering effects of apartheid and the human rights movement that contributed to its abolition.
Lesbian, gay, bisexual, and transgender (LGBT) rights in Cyprus have evolved in recent years, but LGBT people still face legal challenges not experienced by non-LGBT residents. Both male and female expressions of same-sex sexual activity were decriminalised in 1998, and civil unions which grant several of the rights and benefits of marriage have been legal since December 2015. Conversion therapy was banned in Cyprus in May 2023. However, adoption rights in Cyprus are reserved for heterosexual couples only.
Lesbian, gay, bisexual, and transgender (LGBT) people in Zimbabwe face legal challenges not experienced by non-LGBT residents. Since 1995, the Government of Zimbabwe has carried out campaigns against LGBT rights. Sodomy is classified as unlawful sexual conduct and defined in the Criminal Code as either anal sexual intercourse or any "indecent act" between consenting adults. Since 1995, the government has carried out campaigns against both homosexual men and women.
Lesbian, gay, bisexual, and transgender (LGBT) people in Albania face legal challenges not experienced by non-LGBT residents, although LGBT people are protected under comprehensive anti-discrimination legislation. Both male and female same-gender sexual activities have been legal in Albania since 1995, but households headed by same-sex couples are not eligible for the same legal protections available to opposite-gender couples, with same-sex unions not being recognized in the country in any form.
Lesbian, gay, bisexual, and transgender (LGBT) people in Azerbaijan face significant challenges not experienced by non-LGBT residents. Same-sex sexual activity has been legal in Azerbaijan since 1 September 2000. Nonetheless, discrimination on the basis of sexual orientation and gender identity are not banned in the country and same-sex marriage is not recognized.
Lesbian, gay, bisexual, and transgender (LGBT) people in Cape Verde are afforded some legal protections, and Cape Verde is considered a gay tolerant country. Homosexual activity has been legal in Cape Verde since 2004. Additionally, since 2008, employment discrimination on the basis of sexual orientation has been banned, making Cape Verde one of the few African countries to have such protections for LGBT people.
Lesbian, gay, bisexual, and transgender (LGBT) people in Botswana face legal issues not experienced by non-LGBT citizens. Both female and male same-sex sexual acts have been legal in Botswana since 11 June 2019 after a unanimous ruling by the High Court of Botswana. Despite an appeal by the government, the ruling was upheld by the Botswana Court of Appeal on 29 November 2021.
Lesbian, gay, bisexual, and transgender (LGBT) people in Somalia face severe challenges not experienced by non-LGBT residents. Consensual same-sex sexual activity is illegal for both men and women. In areas controlled by al-Shabab, and in Jubaland, capital punishment is imposed for such sexual activity. In other areas, where Sharia does not apply, the civil law code specifies prison sentences of up to three years as penalty. LGBT people are regularly prosecuted by the government and additionally face stigmatization among the broader population. Stigmatization and criminalisation of homosexuality in Somalia occur in a legal and cultural context where 99% of the population follow Islam as their religion, while the country has had an unstable government and has been subjected to a civil war for decades.
Lesbian, gay, bisexual, and transgender (LGBT) rights in Namibia have expanded in recent years, although LGBT people still have limited legal protections. Namibia's colonial-era laws criminalising male homosexuality were historically unenforced, and were overturned by the country's High Court in 2024.
Lesbian, gay, bisexual, and transgender (LGBT) rights in Africa are generally poor in comparison to the Americas, Western Europe and Oceania.
Lesbian, gay, bisexual, and transgender (LGBT) people in Guinea-Bissau face legal challenges not experienced by non-LGBT residents. Same-sex sexual activity is legal in Guinea-Bissau, but same-sex couples and households headed by same-sex couples are not eligible for the same legal protections available to opposite-sex couples.
Lesbian, gay, bisexual, and transgender (LGBT) people in Lesotho face legal challenges not experienced by non-LGBT residents. Lesotho does not recognise same-sex marriages or civil unions, nor does it ban discrimination on the basis of sexual orientation or gender identity.
Lesbian, gay, bisexual, and transgender (LGBT) people in Mozambique face legal challenges not faced by non-LGBT people. Same-sex sexual activity became legal in Mozambique under the new Criminal Code that took effect in June 2015. Discrimination based on sexual orientation in employment has been illegal since 2007.
Lesbian, gay, bisexual, and transgender (LGBT) people in North Macedonia face discrimination and some legal and social challenges not experienced by non-LGBT residents. Both male and female same-sex sexual activity have been legal in North Macedonia since 1996, but same-sex couples and households headed by same-sex couples are not eligible for the same legal protections available to opposite-sex married couples.
The majority of the countries of the Commonwealth of Nations, formerly known as the British Commonwealth, still criminalise sexual acts between consenting adults of the same sex and other forms of sexual orientation, gender identity and expression. Homosexual activity remains a criminal offence in 29 of the 56 sovereign states of the Commonwealth; and legal in only 26.
This is a timeline of notable events in the history of non-heterosexual conforming people of African ancestry, who may identify as LGBTIQGNC, men who have sex with men, or related culturally specific identities. This timeline includes events both in Africa, the Americas and Europe and in the global African diaspora, as the histories are very deeply linked.
Caine Youngman is a human rights activist and member of the LGBT rights movement in Botswana. He first gained international attention in 2011 when he tried to overturn the country's ban on same-sex relations. He worked for human rights group LEGABIBO until December 2022 and served on the board of Pan Africa ILGA, the regional chapter of the International Lesbian, Gay, Bisexual, Trans and Intersex Association.
Eswatini does not recognise same-sex marriages or civil unions. The Marriage Act, 1964 does not recognise same-sex unions.
While there are colonial-era common law prohibitions against sodomy, no penalties are specified, and there has never been an arrest or prosecution for consensual same-sex conduct.
Same-sex sexual activity is criminalised despite no law explicitly outlining this, as Section 252(1) of the Constitution (2005) states that Roman-Dutch Common Law, as interpreted in 1907, applies to any regulations or laws in place prior to independence in 1968 and not subsequently overturned. As such, "sodomy" remains a crime.
Simelane said ... '... the anti-sodomy law is not used to prosecute consenting adults,' he said. The police used the law to prosecute those accused of raping underage males.
Same-sex sexual activity is prohibited under the common law, which criminalises acts of 'sodomy'. The penalty provided under the law is not known. Only men are criminalised under this law.