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is very heartwarming and offers a glimmer of hope that our constitutional jurisprudence may improve.
Eswatini being a predominantly Christian country, this judgment can be viewed largely as controversial. It can be seen as running against the grain of society’s normative values, regard being had to the widely-held prejudices against this special population. It is important though that the man and woman on the street understand what the essence of this judgment is.
The Registrar of Companies is empowered by the Companies Act to register for profit and not-for-profit organisations. In its application, this law, as with all other laws, must be, in letter and spirit, in conformity with the national Constitution, which is the supreme law of the land. Without getting too deep into the legal intricacies of the case, at the court of first instance (High Court), the legal questions the court was called to answer was whether or not the Registrar had acted within the ambits of the law (Companies Act), correctly interpreted through the Constitution in reaching his decision.
Guaranteed
The applicants in the matter contended that their right to peacefully assemble and associate was guaranteed by the Constitution, as was their right to freedom of expression. The applicants further pointed out that the objectives of the association were lawful and that they were intended to safeguard the rights of lesbians, gay, bisexual, transgender and intersex persons; to provide support for advocacy.
They further contended, and correctly so, that there was no law in the kingdom that prohibited LGBTIs per se but only one that prohibited same sex sexual intercourse.
The Principal Secretary of the Ministry of Commerce and the Registrar, on the other hand, relying partly on the preamble of the Constitution,
which acknowledges the supremacy of the Almighty God, contended that ‘registering the organisation under its current name would be overstretching its mandate and have a drastic impact on the cultural, religious, social interest and legislative functions in Eswatini as it would amount to legalising LGBTI through the back door’. Notably, there was a dissenting judgment to the High Court order.
In setting aside the decision of the High Court, the Supreme Court held, inter alia, that ESGM’s objectives were not unlawful; that refusal to register the organisation amounted to a violation of the fundamental rights of the applicants as enshrined in the Constitution and that there was no justification of the limitation of the rights of the appellants.
Distinction
Members of the public need to make a distinction between religion and human rights. These two will not always be in tandem. The principle that this judgment has helped highlight is that of non-discrimination, which has pride of place in the Constitution and should always be upheld. EmaSwati, even if they are minorities, are entitled to equal enjoyment of the full menu of rights guaranteed by the Constitution and other international instruments the country is party to, like all others.
This progressive judgment has also helped remove the unnecessary barriers to registration of not-for-profits due to interpretation and application of the Companies Act by the Registrar through limited lenses that, as the Supreme Court observes, fall short of elements of interpretation advocating for a broad, generous and liberal interpretations when it comes to sections pronouncing on human rights and freedoms.
This judgment should be lauded. Kudos to lawyers Thulani Maseko, may his soul rest in peace, Sibusio Nhlabatsi and the entire legal team that supported them for the sterling work in assisting the court make a just finding in this matter that augurs well for the Judiciary.