Has anyone been charged for being gay, lesbian? - judge
as such for wages in or about a private house hold by the house holder
A member of the employer¶s fam
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ily dwelling in his house
Any class of persons whom the
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minister may by notice in the ga]ette declare not to be worNmen for the purposes of this act.”
7he proposed change here is that 6ection e) in the Act as it stands, which lists µa member of 8mbutfo 6wa]iland 'efence )orce¶, should be deleted in its entirety.
Another submission that piTued the committee¶s interest was that of the 8(') having a separate medical %oard that would evaluate claims, because of the uniTue nature of their occupation and any resultant injuries, and that this could be provided for in the WorNmen¶s &ompensation 5egulations.
7he army proposed the establish ment of the 0ilitary &ompensation 0edical %oard that would be inde pendent from the WorNmen¶s &om pensation 0edical %oard, and would
MBABANE – µ7here is something wrong with anybody who says there are no gays and lesbians in (swatini¶.
7his was said by -udge 3hesheya 'lamini yesterday during the hearing of the review application against the decision to register an association to advance the interests of the /*%74I community.
7he judge also asNed “'o we have anti lesbian, gay, trans gender, intersex and bisexual laws in this country?”
-udge 3hesheya also asNed if there was a person who was charged for being gay or lesbi an in the country.
“It is a serious Tuestion be cause it happens elsewhere. 'o we have similar laws in this country?”
3rincipal &rown &ounsel Ndabenhle 'lamini said, “I¶ll be honest, we don¶t have laws outlawing same sex activity, except for sodomy under the &riminal 3rocedure and (vi dence Act of .”
-udge 3hesheya said since there was no such law, the ex istence of the /*%74I was not prohibited by law.
DIFFICULTIES
“7hey exist. 7hey say we should not pretend that they don¶t exist? 7hey say they exist and suffer many difficulties. If you say once they are a group, they do what you say they do, but they do it now. Anybody who says there are no gays and lesbians in the country, there is something wrong with that person.”
-udge &loete enTuired, µwhich laws deal with these things?¶
Ndabenhle said the appellants had placed it on record that same sex activity was crimi nalised.
According to -udge 3hesheya, the appellants were not legis lators and had no competency to create new offences. “We all Nnow that sodomy is an offence. Among them are les bians. What offence do lesbi ans commit?” enTuired -udge include representatives with military bacNground as well as have all levels of command represented.
0embers of the committee recom mended that injury on duty should have a definition or interpretation in the Act so as to avoid any ambiguity or uncertainty.
7here was also a general consensus that since the country has several security forces, they might believe that they should also benefit in the same treatment that the 8(') would get from the provisions of the %ill 3hesheya.
Ndabenhle said there was an admission that in the other groups were mixed acts of men having sex with men and wom en having sex with women. -udge &loete wondered how that was unlawful. 7he judge said sodomy had a specific offence. “Is two men holding hands an offence? Is two men Nissing an offence?” asNed -udge &loete.
Ndabenhle said if they did that in public it was public indecency. -udge &loete said the law did not criminalise the /*%74I in (swatini.
-udge 0ajahenNhaba 'lamini said that was why he asNed if the objects of the association they intend to register or one of them was enough to refuse the registration of their association.
SPECULATING
-udge 3hesheya said if there was proper engagement on the matter and the issues were properly thrashed µwe would not be speculating. 7he issues would have been narrowed if consensus was not found¶.
6ome of the issues were said to be no longer at the level of the registrar of companies but at &abinet “while you blame the appellants, appreciate the difficulties that are with the leg islation,” said judge 3hesheya.
7he difficulty, according to Ndabenhle, was that there were no rules to operational ise the &ompanies Act, , which empowers the minister to perform certain acts. -udge 3hesheya said he had never seen an advisory %oard to ad vise the minister, yet it was provided for in the Act. +e said there was no such %oard. Nd abenhle told the court that the issue of the /*%74I should be narrowed to what outlawed what they intend to do. +e said freedom of association, expres sion, dignity and assembly shall be enjoyed by all.
“7hey contend that the regis trar discriminated against them by refusing to register them, based on sexual orientation. 7he rights are to be enjoyed
and that this may cause challenges in the future.
7he 8(') also proposed that the focus of the compensation to be of fered to servicemen should as far as possible be aimed at restoring the member to the condition they were in before the occurrence giving rise to the compensation.
“7his is more so in relation to com pensation for physical injuries,” sub mitted the army.
)urther, the army submitted that where a limb has been affected and adeTuate restoration is not reasonably achievable, efforts should be made to alleviate the effects caused by the loss of limb by providing the service man with such aids as necessary to alleviate the effects of the physical incapacity.
COMPENSATION
It was also the submission of the army that compensation should be such that it encourages servicemen to confront risNy situation, with the Nnowledge that if anything happened they or their families would be well taNen care of in case of an unfortunate eventuality.
2ne other submission was that the compensation should be payable for all service related occurrence whether same happened on official duty or away from official duty. by all but their enjoyment is subject to others¶ rights and public interest.
“As sodomy is clearly out lawed, it would be offensive to allow them to enjoy their right to sexual orientation in an envi ronment that outlaws sodomy. 7here is no act of indignity in refusing to register their asso ciation,” said Ndabenhle.
-udge 3hesheya said “ Ndabenhle said in so far as /*%74I included people who engaged in same sex, they could not be registered. 7he judge asNed Ndabenhle if he was aware of the annual 3ride 0arch also Nnown as the 3ride 3arade, 3ride (vent or 3ride )estival). +as anyone who participated in this march in this country been arrested? Ndabenhle said he was not aware. -udge 3hesheya fur ther asNed the principal &rown counsel if there was an asso ciation of former prisoners in the country. 7here is such an association. According to -udge 3hesheya “7he registrar of companies) is not scared of them rapists, robbers, murderers) coming to gether to share sNills on how to commit crimes. 7he registrar is scared of the /*%74I . 'oes he find their objects offensive?” 7he reservation of the name of the association, according to Ndabenhle was done online. +e said the reservation of a com pany name was an automatic result of government imple menting modern technology. +e said an issue came up upon the lodging of the memoran dum of articles and they could not be registered. -udge 3hesheya said the &ompanies Act referred to the registrar and not a machine. Ndabenhle acNnowledged that this was a breach of legislation but added that this did not mean that the registrar would not ver ify after the computer reserved the name of the company. 7he army went on to propose that the servicemen should be compensated under all the heads under which com pensation is awarded under the Act. 2ther proposals made concerned the nature of occurrences to be compen sated, wherein the 8(') submitted that servicemen must be compensated for all occurrences that are cause by an act of negligence, recNlessness or intention on the part of a third person, as long as they are service related. 7hese occurrences are sicNness, injury, death, disablement temporary or permanent), disfigurement, mental and or psychological conditions “7he main point to be made is that the nature of the worN of servicemen is such that anticipated injuries are almost always a result of an inten tional act by a third person. Where a Tuestion arises as to whether the injury is worN related, such Tuestion to be referred to the &ommander, 8('), whose decision shall be final,” the 8(') submitted. 2ver and above the heads under which compensation is awarded under the W&A, the army further submitted that medical attention and emergency evacuation, rehabilitation, psycholog ical counseling, and the provision of hearing aids and artificial limbs shoud be added.OFFENSIVE
INJURY