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Eswatini High Court acknowledges LGBTQ rights

April 29 ruling upheld decision not to allow group to register

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Members of the Rock of Hope gather outside the Eswatini High Court on April 29, 2022. (Photo courtesy of the Rock of Hope)

The Eswatini High Court on April 29 heard the case involving an LGBTQ rights group’s fight to register in the country.

Eswatini Sexual and Gender Minorities approached the High Court with the support of the Southern Africa Litigation Center to overturn a Registrar of Companies’ ruling that did not allow it to register.

The Registrar of Companies argued that allowing the Eswatini Sexual and Gender Minorities to register would violate the law because same-sex relations are considered illegal in the country. The High Court upheld the decision to deny Eswatini Sexual and Gender Minorities’ registration request, but said no person should be discriminated against because of their gender or sexual orientation.

“Having alluded to the fundamental rights, it is clear that our constitution guarantees the rights irrespective of gender or sex. So that it is safe to say that LGBTs have the rights conferred by Section 14 of the constitution. They have a right to life, liberty, privacy or dignity. They have a right not to be discriminated against or be subjected to inhumane and degrading treatment. They have a right to associate. They have a right to form a company. They have a right to freedom of expression,” reads the High Court ruling. “These rights are inherent in them not by reason of their sexual preferences as LGBTs but as human beings. These rights are, however, subject to the laws as prevailing in the kingdom and which have not been challenged anywhere.”

Southern Africa Litigation Center Executive Director Anneke Meerkotter said the verdict was lax and influenced by populist ideologies.

“The High Courtā€™s judgment is a testimony on the anxiousness of Eswatini courts when dealing with matters relating to freedom of association and expression in the current political context,” said Meerkotter. “The rights to freedom of association and expression are fundamentally important in a democratic society.”

“These rights grant citizens the freedom to voice their views about all aspects of society and provides individuals with opportunities to engage in dialogue with the government, and to obtain information necessary for their protection and development as individuals,” added Meerkotter. “Across the region, courts have emphasized that any limitation of these rights must be rational and proportional. In contrast, the majority opinion exercised mental gymnastics to find against the applicants, despite acknowledging that their rights have been violated. The judgment highlights once again how hard it is for citizens to assert their rights to association and expression in Eswatiniā€™s courts.”

Same-sex relations are prohibited under the common law, which criminalizes sodomy. The penalty for violating the law under which only men are criminalized is unknown.

The law dates back to the British colonial period. Eswatini retained this provision upon independence and continues to criminalize same-sex sex relations today.

According to Section 252(1) of Eswatini’s Constitution, the principles and rules of Roman-Dutch common law that have applied to Eswatini since Feb. 22, 1907, (as those principles and rules existed on Independence Day, Sept. 6, 1968) are applied and enforced as the common law of the country.

LGBTQ people in Eswatini regularly face societal discrimination and harassment. As such, most choose to remain in the closet or move to neighboring South Africa.

It remains to be seen whether or not new legislation will be enacted to specifically recognize LGBTQ people and protect them from stigma and victimization after the High Court verdict.

Daniel Itai is the Washington Blade’s Africa Correspondent.

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South Africa

South Africa groups offer muted response to president’s pledge to protect LGBTQ rights

Cyril Ramaphosa gave State of the Nation speech on Feb. 6

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South African President Cyril Ramaphosa speaks with attendees at the African National Congress Party Rally on May 10, 2024 in Tshwane, South Africa (Photo courtesy of Ramaphosa's Facebook page)

Several South African advocacy groups say they are not moved by President Cyril Ramaphosa’s pledge to protect LGBTQ rights during the State of the Nation speech he delivered in Cape Town on Feb. 6.

ā€œAs South Africans, we stand for peace and justice, for equality and solidarity. We stand for non-racialism and democracy, for tolerance and compassion,” said Ramaphosa. “We stand for equal rights for women, for persons with disability and for members of the LGBTQI+ community.”

Even though the president made the proclamation, LGBTQ South Africans continue to face hate crimes that often end in the loss of life, despite laws that include the Preventing and Combating of Hate Crimes and Hate SpeechĀ and the prohibition of discrimination based on sexual orientation enshrined in the constitution.

In addition, U.S. President Donald Trump’s 90-day moratorium on nearly all American foreign aid has impacted several LGBTQ organizations in South Africa.

ā€œThe cut in funding has really made a negative impact towards the way we run the organization,” said Sibonelo Ncanana, civil society engagement officer for OUT LGBT Well-Being. “Itā€™s more of a malfunction we are witnessing, so what the president said last Thursday has little relevance due to the ongoing predicament we are encountering.ā€

Bruce Walker, convenor of Pretoria Pride, said he appreciated Ramaphosa’s comments about the protection of LGBTQ rights, but added they were mere grandstanding.

ā€œWe really appreciate him saying this and itā€™s a good thing for an African leader to speak out about the rights of the LGBTI community. LGBTI rights are in our Bill of Rights and constitution,ā€ said Walker. ā€œHowever, the presidentā€™s utterances were just pure window dressing because the current government refuses to condemn the treatment of LGBTI communities in Africa, and are very quiet on the imprisonment and execution of LGBTI people in the world but fight and spend millions to condemn Israel.ā€

Iranti nevertheless said it expected the president to stay true to his word and ensure the rights of the LGBTQ community are protected as the country’s constitution outlines.

ā€˜President Ramaphosa affirmed that he stands with members of the LGBTQIA+ community, a very important act as we witness a regression of LGBTQIA+ rights and the growth of anti-gender movements across the globe,” said Iranti. “We urge the president to follow up on this commitment, with concrete strategies and actions that will improve the lives of LGBTQIA+ people in South Africa.”

South Africa is the only African country that constitutionally recognizes LGBTQ rights. Many South Africans, however, do not recognize the LGBTQ community because of cultural and religious beliefs and the idea that homosexuality is a Western import.

The suspension of nearly all U.S. foreign aid has impacted the Uthingo Network, OUT LGBT Well-Being, Iranti, and other advocacy groups. Trump on Feb. 7 signed an executive order that limits American financial assistance to South Africa because of the Expropriation Act that Ramaphosa signed last month.

Though the Expropriation Act involves compensation, some of the land the government has deemed of public interest ā€” for infrastructure projects, public service expansion, and environment conservation ā€” can be expropriated without permission. Trump said the law violates South Africans’ rights.

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Kenya

Kenyan president defends Trump executive order on two genders

Advocacy groups criticized William Ruto’s Jan. 26 comments

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Kenyan President William Ruto speaks at joint press conference with then-President Joe Biden at the White House on May 23, 2024. (Livestream screen capture)

Kenyan President William Ruto is facing backlash for backing U.S. President Donald Trump’s executive order that recognizes only two genders: Male and female.

Rutoā€™s support for Trumpā€™s decision to ban transgender people from serving in the U.S. military and competing on women’s sports teams has drawn criticism from human rights defenders, lawmakers, lawyers, and intersex activists.

Rutoā€™s critics cite Kenyaā€™s 2022 landmark decision to officially recognize intersex people as the third gender with an “I” gender marker after years of court battles for recognition and their inclusion in a national Census for the first time in 2019.

ā€œWe are very proud that contrary to what has been happening in the past, this year we got some very welcoming developments in the United States that as a leading democracy, we have gotten to understand that the policy direction of the U.S. supports what we believe in,ā€ Ruto stated during a Jan. 26 speech at the Global Cathedral Church’s annual convention in Nairobi. “Boys must remain boys, men must remain men, women must remain women and girls must remain girls.ā€

Rutoā€™s position to side with Trump on sex and gender identity contradicts his previous stance during the Biden-Harris administration when he was cautious about speaking about transgender and queer rights in order not to jeopardize his relationship with Washington.

Trump on Jan. 21 signed an executive order that directed the U.S. federal government to only recognize male and female genders. This directive revoked the Biden-era policy that recognized trans rights and allowed trans servicemembers.

Trump on Feb. 6 signed another executive order that bans trans athletes from competing on female sports teams

ā€œThe war on womenā€™s sports is over,ā€ he said.   

ā€œWe’re putting every school receiving taxpayer dollars on notice that if you let men take over women’s sports teams or invade your locker rooms, you will be investigated for violations of Title IX and risk your federal funding,ā€ Trump warned. “From now on, women’s sports will be only for women.”

His executive order relies partly on the U.S. Justice Department’s authority to bring enforcement actions under Title IX, which bars sex discrimination in education and requires schools to offer girls an equal opportunity to play sports. The law, under Trump’s interpretation, forbids trans girls from playing in girls’ sports.

Trump in 2017 banned trans people from serving openly in the U.S. military.

ā€œWe thank God that this year the first very news from the U.S. in the new administration is to confirm what the Bible says, what our faith believes in, and what our tradition firmly is grounded on,ā€ Ruto said in his speech.

The Kenya National Commission on Human Rights (KNCHR), a government-funded body, described Ruto’s comments as “embarrassing and unfortunate.”

ā€œIn Kenya, the law is very clear and the Childrenā€™s Act recognizes the intersex because they are unique persons as they have no issues based on sex identity or gender orientation,ā€ said an intersex rights activist who asked the Washington Blade to remain anonymous. ā€œHis sentiments are likely to increase stigma against the intersex persons and if they are discriminated against, anyone will just go to court because they are also protected by the law.ā€

Esther Passaris, an opposition MP who represents Nairobi County, maintained there are not two sexes in Kenya.

ā€œLetā€™s face it, we have intersex children with two or incomplete sexes. These children require our love as a society,” she said. “Let God deal with the genders.”

Since the recognition of intersex people, several policy measures to tackle discrimination have been implemented to ensure their protection and equal treatment. 

Kenya last week officially recognized intersex people at birth, allowing them to receive birth certificates with an “I” gender marker. The KNCHR described this decision as ā€œa historic milestoneā€ that aligns with the Kenyan constitution and other existing policy measures that include the Children Act and the proposed Intersex Persons Bill, 2024.

ā€œThis is a major step towards securing rights, dignity, and equal opportunities for all intersex persons in Kenya,ā€ KNCHR stated.

KNCHR asked Kenyans, state, and non-state institutions to support awareness, policy reforms, and the inclusion of intersex people for the latest reform to be implemented successfully.

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Africa

Suspension of US aid forces PEPFAR-funded programs in Africa to close down

Funding freeze is ‘matter of life and death’

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(Bigstock photo)

The suspension of nearly all U.S. foreign aid has forced a number of programs that the President’s Emergency Plan for AIDS Relief funds in Africa to shut down.

Secretary of State Marco Rubio on Jan. 24Ā directedĀ State Department personnel to stop nearly all U.S. foreign aid spending for 90 days in response toĀ an executive orderĀ that President Donald Trump signed after his inauguration. Rubio later issued a waiver that allows PEPFAR and other ā€œlife-saving humanitarian assistanceā€ programs to continue operating after bowing to pressure.

A message on the U.S. Agency for International Development’s website notes “all USAID direct hire personnel will be placed on administrative leave globally, with the exception of designated personnel responsible for mission-critical functions, core leadership, and specially designated programs.” The announcement is scheduled to take place on Friday at 11:59 p.m. ET.

One of the PEPFAR-funded healthcare programs in Kenya still impacted by the funding freeze, despite Rubio’s waiver, is the Fahari ya Jamii (“joy of the community” in Swahili) initiative that began in 2022. The University of Nairobi was jointly implementing the project.

The Sh4.2 billion ($32,558,139.52) project sought to coordinate and manage high quality, cost-effective, and accessible HIV services in Nairobi, neighboring Kajiado County, and other parts of Kenya. Fahari ya Jamii was scheduled to end in May 2026, but it has closed indefinitely because of a lack of U.S. funding.

More than 700 staff, mostly healthcare workers, on Jan. 31 were placed on unpaid leave for three months, or until Washington decides whether to unfreeze funding. More than 150 Fahari ya Jamii clinics that offer HIV treatment to at least 72,000 people on antiretroviral drugs have also shut down.

The initiativeā€™s target groups include children, adolescents, and adults living with HIV; young people, men, and women at risk of HIV; and key populations that include men who have sex with men and female sex workers.  Fahari ya Jamii since 2022 has offered HIV tests to more than 257,500 people, connected 94 percent of those who tested positive to treatment, distributed condoms and lubricants, and disseminated safter sex messages to their target groups.

Faith Ndungā€™u, advocacy manager for Kenya’s Health NGOs’ Network (HENNET) said the Trump-Vance administration should have used a humane approach to engage with countries that benefit from U.S. funding, instead of abruptly suspending it.

ā€œWe are feeling the magnitude of the suspension in the health sector because these are lives; these are people,” said Ndung’u. “When such an abrupt decision is made, we are talking about more than one million people living with HIV being affected.ā€

HENNET is an umbrella group with 112 members from local and international NGOs, faith-based organizations, and research institutions that focus on health-related issues inĀ Kenyaā€™s 47 local governments.

ā€œThis is now a wakeup call for Kenya and Africa to invest in the health sector by funding it more not to be in a similar crisis when a donor pulls out or forfeits his commitment,ā€ Ndungā€™u said.  

Local governments that also rely on USAID to run PEPFAR programs have suspended their U.S.-funded activities and phased out the stand-alone comprehensive HIV care centers by integrating treatment and care into general health care services. This move has forced hundreds of health care workers to go onto unpaid leave and wait for further guidance.

Pema Kenya, a Mombasa-based queer lobby group, said the decision to suspend funding means “uncertain times” for the LGBTQ community and Kenyans at large who depend upon U.S.-funded groups for their health care.

ā€œMany queer organizations rely heavily on USAID funding for vital services such as HIV/AIDS prevention and treatment, mental health support, and legal aid,ā€ Pema Kenya stated.

Pema Kenya noted the suspension of U.S. aid could severely cripple queer organizations and leave vulnerable people with limited access to crucial resources.

ā€œThis would be a significant setback in the fight against HIV/AIDS and other health crises disproportionately affecting the LGBTQ+ community,ā€ Pema Kenya stated.   

GALCK, a coalition of 16 Kenyan LGBTQ rights groups, was even more blunt.

“This isn’t just a policy decision; it’s a matter of life and death,” it said in a statement.

OUT and Engage Man’s Health ā€” two South African organizations that provide HIV services to MSM, transgender people, sex workers, and other vulnerable groups through PEPFAR ā€” have also been impacted by the U.S. funding freeze.

OUT and Engage Manā€™s Health, which provides HIV services to MSM, announced on Jan. 27 that it will stop offering services ā€œuntil further noticeā€ due to a lack of funding. The organization asked its clients to seek services from the nearest public health facilities.

ā€œWe deeply value our clients and remain committed to safeguarding your health,” said the announcement. “We sincerely apologize for the inconvenience and disruption this may cause. Unfortunately, we are unable to provide further details at this time.ā€

Kenya and most other African countries have said a permanent suspension of U.S. aid will adversely impact progress made in the health sector, particularly the fight against HIV/AIDS. Botswana and some other nations on the continent that use their national budgets to purchase antiretroviral drugs, have assured their citizens the supply of these medications will not be interrupted.

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