Types of criminalisation

  • Criminalises sex between men
Commonwealth member state
Common Law

Colonial-era common law continues to criminalise sodomy, defined as same-sex sexual relations between men, although there is no clear sentence specified for this offence. The situation regarding women is unclear, however, there appear to be no specific provisions criminalising sexual relations between females.

Enforcement

2017

The US Department of State Human Rights Report on eSwatini indicated that while sodomy is criminalised, there have not been arrests or prosecutions.

2013

Two men aged 18 and 21 were banished from their community by police after their aunt reported them. Speaking on the incident, the aunt told news reporters: “I was afraid of being labelled all sorts of names in the area and be accused of harbouring gay people in my house. My other problem was that local men would have ended up quarrelling with their wives and resorted to being gay because of the boys living under my roof.”

Statements by Public Figures

2017

Following the eSwatini’s first Pride, the King said same-sex relationships are “satanic”, while Prime Minister, Barnabas Sibusiso Dlamini, asserted that being gay is “an abnormality and a sickness.”

[Being gay is] an abnormality and a sickness.

Barnabas Sibusiso Dlamini, Prime Minister

2015

In July, the US and EU Ambassadors to eSwatini both made public comments calling for recognition of LGBT rights. Asked to comment on whether female same-sex relationships are legal in Swaziland, Principal Secretary in the Ministry of Home Affairs Anthony Masilela said “this is the first I hear of such; we probably need to investigate this matter further.”1

2014

In March, the Prime Minister of eSwatini articulated his position on gay relationships, remarking that: “Church clergy say this 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.” In remarking on same-sex marriage, the Prime Minister said: “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.”

2013

In December, the Ministry of Education and Training called for teachers and administrators to be more understanding and supportive of LGBT people in schools and the community: “Teachers and school administrators must be supportive to gays and lesbians because some of them also belong to the category but they are afraid to declare their status because they fear that their colleagues or headmasters were lacking confidentiality.”

2012

In February, Simon Zwane, Deputy Director of Health, encouraged HIV couples to get tested and “trust promises of confidentiality”. Zwane said “couples need to be consistently aware of their HIV status. This will result in them making joint decisions on risk reduction in their relationships.”

Persecution and Discrimination

2017

The US Department of State Human Rights Report stated that “LGBTI persons who were open regarding 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 government officials criticized same-sex sexual conduct as neither morally Swazi nor Christian.” It further added that LGBT advocacy organisations had difficulties in registering with the government.

2015

In March, a woman was reportedly murdered by a man in a bar in the southern town of Nhlangano after being identified as a lesbian.

2013

The 2013 US Department of State Human Rights Report indicated that LGBT people generally conceal their sexual orientation and gender identity, however, reports suggest that societal discrimination is prevalent.

One report in November indicated that less than 10% of the LGBT community who responded to a survey had talked about their sexual orientation with a person from outside of their immediate family.

In September, a gay man was attacked after being discovered having sex with another man in a toilet. The man was “inspected” to determine his gender, while the other man managed to flee.

Legislative News

2016

During its second UPR cycle, eSwatini noted one recommendation to decriminalise same-sex relations.

2012

In its first UPR cycle, eSwatini rejected recommendations to decriminalise consensual same-sex intimacy and actively prevent discrimination on the basis of sexual orientation or gender identity. In response to calls to decriminalise, Minister of Justice and Constitutional Affairs, Magwagwa Gamedze said: “It was difficult for government to formulate a policy on homosexuals or enact a law to recognise them… Their numbers do not permit us to start processing a policy.”2

Footnotes
1. Swazi Observer

Teetee Zwane, “No legislation against lesbianism”, Swazi Observer, 12 July 2015, accessed 24 September 2015.

2. Swazi Observer

Welcome Dlamini, “Govt to decide on gay relationships”, Swazi Observer, 2 March 2014, accessed 19 July 2014.

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