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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 Court’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 Eswatini’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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Africa

Kenya seeks to ban intersex athletes from lowering hormone levels to compete in sports

Country’s human rights body has put forth measure

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(Bigstock photo)

Kenya’s state-funded human rights body does not want intersex athletes in the country to lower their hormone levels as a requirement to compete in any sport.

The Kenya National Commission on Human Rights in a proposal to the National Assembly notes it will ensure non-discrimination and fairness for intersex people in sports.  

The proposal in the Intersex Persons Bill, 2024, is among numerous amendments to existing laws that seek to grant intersex people equal rights after the government in 2019 officially recognized them as a third sex.

According to the bill that would amend Kenya’s Sports Act of 2013, this will require the Sports and Youth Affairs Ministry’s Cabinet secretary and the National Council for Intersex Persons, which the measure would create, to develop measures that ensure fairness for sporting intersex people when enacted.            

“The measures shall not require a person to alter their biological hormonal composition as a condition to participating in any sporting activity or program,” reads the bill. 

Although the measures would apply nationally, they would contradict the World Athletics Council’s 2018 regulations that similarly bar female transgender athletes from participating in international competitions, such as the Olympic Games. Intersex Kenyan athletes have to abide by these rules at the global level.       

The World Athletics through the regulations noted trans women who naturally have higher levels of testosterone compared to ordinary women have to undergo medication or surgery to lower their testosterone levels as a condition before competing in races of between 400 meters and a mile. Kenya’s National Olympic Committee supports these rules.

Some top female trans athletes barred from competing in the Olympic events from the World Athletics regulations due to their high natural testosterone levels include Margaret Wambui of Kenya, Caster Semenya of South Africa, Aminatou Seyni of Niger and and Francine Niyonsaba of Burundi.

The trans athletes opposed the World Athletics regulations with Semenya challenging them in court, but lost the case, even though the U.N. Human Rights Council in 2019 criticized the rules. UNHCR cautioned sports bodies not to “force, coerce or otherwise pressure women and girl athletes into undergoing unnecessary, humiliating and harmful medical procedures.” 

Kenya National Commission on Human Rights Deputy Director Veronica Mwangi, who spoke with the Washington Blade about the bill’s controversial proposal, said Kenya, which is the only African country to recognize intersex people as a third sex, has started the conversation with a “bigger picture” for the international sporting bodies to create an alternative competition for them to exploit their talents without reducing their hormonal levels or interfering with their biological characteristics as the condition before competing.      

“As KNCHR, we are very clear that we cannot afford to continue discriminating and marginalizing persons who are born as intersex, but rather we can promote conversations of inclusivity where the Semenya of South Africa, an equivalent of Semenya in Uganda and an equivalent in the U.S. or Kenya can have a special sporting event like the Paralympics for persons living with disabilities,” Mwangi said. 

She also questioned the fairness of World Athletics and other international sporting bodies in demanding “the Semenyas or talented intersex persons” to undergo hormonal therapy which then affects the athletes’ well-being after interfering with their biological anatomy.   

“These governing sporting bodies should not come back to us that it is the intersex persons to carry the blame,” Mwangi said. “It is not the responsibility of the intersex (person) but they are duty-bearers and should think of mechanisms to grow their talents and not find an easy way out of demanding to change who they are.” 

Mwangi disclosed the proposal is driven by KNCHR’s special task force report that found most intersex school children are talented and perform well in sports. 

Kenya’s Intersex Persons Implementation Coordination Committee is already identifying talented intersex people, including those in schools, to support their growth in sports. Kenya’s 2019 Census found there are 1,524 intersex people in the country.

Other amendments to the Intersex Persons Bill include an employment provision that would cap an intersex person’s monthly income tax at 25 percent of wages, compared to other Kenyans whose maximum taxable income stands at 35 percent, depending on one’s monthly total earnings.  

“Capping the income tax or wages for intersex persons at 25 percent is a tax consideration in the form of an affirmative action to uplift them in economic development and it is similar to that of persons living with disability who are tax exempted as marginalized groups,” Mwangi said.

The bill further seeks to amend the Health Act for any parent with an intersex child born at home to report the birth at the nearest government administration office or risk a fine of not more than $1,000 or a six-month prison term, or both, after being found guilty of concealing an intersex child’s identity.

The proposed law, moreover, seeks to create the National Council for Intersex Persons, whose mandates would include the creation of initiatives and programs to prevent discrimination against intersex people, creating a database for all intersex people and accrediting the group for employment purposes.  

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South Sudan refugee camp is ‘not a safe haven’ for LGBTQ residents

Gorom Refugee Settlement is outside country’s capital of Juba

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U.S. Ambassador to South Sudan Michael Adler visits the Gorom Refugee Settlement on Oct. 25, 2023. The camp's LGBTQ residents remain marginalized. (Photo courtesy of the U.S. Embassy in South Sudan)

LGBTQ people who live at a refugee camp in South Sudan say the mistreatment they are suffering because of their sexual orientation and gender identity has left them even more marginalized.

The U.N. Refugee Agency runs the Gorom Refugee Settlement, which is roughly 16 miles from Juba, the country’s capital, in partnership with ACROSS and other South Sudanese NGOs.

UNHCR says more than 20,000 refugees live at Gorom, with the Anyuak people from Ethiopia making up the largest group. They have been there since 2011 when South Sudan became its own country after it broke away from Sudan.

Although this is not the first time the plight of LGBTQ people has been raised; the challenges seem to continue unabatedly and grow worse as each year passes. They are denied employment opportunities, with some of their children unable to access education.

Yaga Piuson, an LGBTQ activist for Gorom, says the situation has become even more dire.

“The immediate challenges faced by LGBT persons within the camp are severe and pervasive,” said Piuson. “They endure daily attacks, lack of police assistance, death threats, stoning, abuses, discrimination, bullying, denial of medical care, and the inability for their children to access education. Many are also deprived of proper shelter, leading to health risks such as pneumonia.” 

Piuson added UNHCR and ACROSS have done little to address these challenges, while the South Sudanese government has turned a blind eye.

“As of now, both the UNHCR and ACROSS have not provided a durable solution,” said Piuson. “While they have initiated interviews with LGBTQIA+ individuals, the options presented, relocation to other camps within South Sudan or urban areas, pose significant risks due to the country’s stance against homosexuality.”

“Unfortunately, the South Sudanese government and civic organizations have yet to offer any substantial assistance in alleviating these challenges,” added Piuson.

Piuson added some of the refugees have fled Gorom because of the continued persecution they face. Piuson said the settlement was no longer safe for LGBTQ refugees who include Anyuak, Darfurians from Sudan, Congolese and Burundians.

“Many of these nationalities have fled because of wars,” noted Piuson. “However, LGBTQIA+ individuals have fled solely due to persecution based on their sexual orientation.”

“Resolving the plight of LGBTQIA+ persons within the settlement requires providing them with a safe environment to freely exercise their rights, including freedom of movement and access to basic needs such as shelter and education for their children,” added Piuson. “It’s crucial to emphasize that the Gorom Refugee Settlement is currently not a safe haven for LGBTQIA+ individuals.”

ACROSS Executive Director Elisama Daniel in response to the Washington Blade’s request for comment said the organization did not have the mandate or jurisdiction to answer questions on the plight of LGBTQ people at Gorom, and directed questions to UNHCR. The agency did not respond to a request for comment.

Consensual same-sex sexual relations in South Sudan remain criminalized with up to 10 years in prison, although there is little to no evidence that anyone has been charged with homosexuality. The South Sudanese government, however, is contemplating an anti-homosexuality bill that is similar to those pending in neighboring Kenya and other countries.

Ugandan President Yoweri Museveni in May 2023 signed his country’s Anti-Homosexuality Act that prompted worldwide outrage.  

South Sudanese Minister of Information, Communication, Technology and Postal Services Michael Makuei Leuth ahead of Pope Francis’s visit to the country last year said marriage is between a man and a woman and added any form of same-sex marriage violates the constitution. The government spokesperson also emphasizes there would not be any discussions around LGBTQ-specific issues. 

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Kenyan advocacy group offers safety tips to LGBTQ hookup app users

Blackmail, kidnappings and assaults are commonplace

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(Bigstock photo)

The growing cases of queer people in Africa becoming victims of blackmail, physical and sexual assault from online hook-ups have compelled a Kenyan LGBTQ rights group to work with the community to help it stay safe when using digital platforms.

Upinde Advocates for Inclusion held a 3-day training from May 11-14 to teach queer people about unsafe social media and dating app hook-up practices that suspected homophobes exploit.

The Mombasa-based group of which Lizzie Ngina is executive coordinator noted lesbian, bisexual and queer women, and gender non-conforming people are the most frequent targets online and on Grindr and other dating apps.

 “LBQ women and GNC persons confront major challenges in terms of digital security and data protection, freedom of expression, assembly, association, speech, privacy, protest and online organizing,” Upinde Advocates for Inclusion stated.

Although the digital platforms were seen as convenient meet-up places for LGBTQ people in overcoming physical anti-gay attacks, Upinde Advocates for Inclusion said anti-gay discrimination, marginalization, gender-based violence, misinformation, and disinformation limits LGBTQ and gender non-conforming people from accessing the social media services.    

Queer people while using dating apps and social media for hookups were, however, urged to first trust their intuition before deciding to have a physical meeting with people with whom they chat online.

“If it does not seem like someone you are messaging is using their true identity, they probably are not. In this case, do not agree to meet them in person,” Upinde Advocates for Inclusion warned. 

It asked LGBTQ users to ensure the first in-person meeting with someone they met online is in a public place that is queer-friendly and known to them. Upinde Advocates for Inclusion also advised queer people to inform their trusted friends or family about their meeting plans, the place, and how long they expect it will take place in order to ensure someone can intervene if something goes wrong.

“Organize your own means of transport to and from the meeting, and do not accept a free ride from a stranger,” the group warned. “Also, do not move to a secondary location if you feel unsure during the meeting.” 

Upinde Advocates for Inclusion also warned queer app users to remain sober during the meeting and cautioned against leaving their food or drinks unattended in order to avoid any potential risks associated with spiking.

The National Gay and Lesbian Human Rights Commission, Ishtar-MSM and other Kenyan LGBTQ advocacy groups that offer legal aid to queer people last year reported about 100 cases of blackmail, extortion, physical and sexual assault against their members by suspected homophobes they met on dating apps and social media.

The two organizations this month noted 10 of the cases are expected before courts soon, although they said most victims of anti-gay attacks don’t report them to the authorities because they fear further stigmatization and discrimination. Consensual same-sex sexual relations also remain criminalized in Kenya. 

Targeting the LGBTQ community on digital platforms and dating apps is not unique to Kenya.

The Washington Blade last month reported it is still risky for queer Nigerians to search for a partner or to use gay dating apps infiltrated by homophobes who lure them to meet in-person and then rob or assault them. South African authorities last year arrested four men in connection with the targeting of Grindr users.

LGBTQ Kenyans urged to protect themselves at protests

Upinde Advocates for Inclusion in their workshop taught participants about the signs that suspected homophobes or their associates have compromised their devices. They include unusual activities on their cell phones that include calls with untraced history, disappearing blank messages, blinking screens, high data consumption, devices that overheat when not in use and echo when picking calls and quick battery depletion with minimal use.

“If you suspect your device is compromised, do not format or reset it, log out all the accounts, find an alternative device to use, change the password for the accounts on the device, and do not connect the gadget to any other devices,” Upinde Advocates for Inclusion warned. 

The group also taught queer people about how they should conduct themselves when taking part in street protests amid anti-gay attacks. Upinde Advocates for Inclusion advised them to always to identify safe alternative routes to and from the protests, wear comfortable running shoes, and always carry a spare outfit that is not LGBTQ-specific.

“If you are in a group, always strategize on having a meeting point should there be any danger or should you get separated,” the group stated. “Also, try to split up responsibilities among the group so that one person can’t be targeted.”

Upinde Advocates for Inclusion also urged queer people to always leave a protest before it ends, to have an emergency contact on speed dial or memorize it for immediate help in case of danger and to always to keep in touch with a trusted contact who is familiar with the protest but not attending it. 

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