Swaziland: Treatment of sexual minorities by society and authorities; recourse and protection offered to people subject to mistreatment; job opportunities and access to housing (2014-April 2015)
1. Legislation
Sources indicate that male same-sex activity in Swaziland is illegal (SWAPOL 7 Apr. 2015) or criminalized (AI Apr. 2013, 91; UN 22 July 2011, para. 42). Some sources specify that sodomy is considered a crime under common law (ibid.; US 27 Feb. 2014, 24; AI Apr. 2013, 91). In an article on the continuing influence of British common law in criminalizing homosexuality in former British colonies and territories, Consultancy Africa Intelligence (CAI), a South African firm providing research and analysis on Africa and African issues (CAI n.d.), explains that Swaziland is among countries which "have no stated anti-sodomy laws on their statute books but ... still subscribe to common law anti-sodomy presumptions" dating from British colonial rule, adding that as such laws are "technically still in effect and it would be possible to prosecute an individual under their provisions" (ibid. 14 July 2010). A country profile on Swaziland prepared by the Foundation for AIDS Research (amfAR) [1] and the Johns Hopkins Bloomberg School of Public Health similarly states that "[t]here are no laws in Swaziland that specifically prohibit homosexuality, but same-sex practices are understood to be illegal " (amfAR and Johns Hopkins Bloomberg School of Public Health 16 May 2013). The US Department of State's Country Reports on Human Rights Practices for 2013 likewise states that "colonial-era legislation against sodomy remains on the books" (US 27 Feb. 2014, 24-25).
The country profile on Swaziland also indicates that "same-sex practices can also be charged as indecent acts or a public nuisance under common law" but adds that "[n]o specific punishment" exists regarding same-sex acts (amfAR and Johns Hopkins Bloomberg School of Public Health 16 May 2013). Corroboration could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.
According to Country Reports2013, existing legislation "has not been used to arrest gay men and lesbians" (US 27 Feb. 2014, 24). In correspondence with the Research Directorate, the Director of Swaziland for Positive Living (SWAPOL), an NGO that works to improve the lives of people affected by HIV/AIDS, particularly in rural communities (SWAPOL n.d.), stated that "[t]he country has not been very active" in conducting arrests of men who have sex with men (SWAPOL 7 Apr. 2015). Similarly, in July 2010, CAI stated that in Swaziland or in near-by Lesotho, there were "few reported cases where sodomy laws have been applied" (CAI 14 July 2010).
Sources note that there are no anti-discrimination laws regarding sexual minorities in Swaziland (Pambazuka News 27 Nov. 2013; UN 22 July 2011, para. 42). In a 2011 joint submission received by the UN Human Rights Council in the context of the country's Universal Periodic Review, Swaziland NGOs stated that "no legislation recognising lesbian, gay, bi-sexual, transgendered and inter-sexed people (LGBTIs) or protecting the right to sexual orientation" was in place in the country (ibid.). According to Amnesty International (AI), the government of Swaziland "rejected recommendations that it decriminalize same-sex relations and prevent discrimination based on sexual orientation" during the country's Universal Periodic Review hearing in October 2011 (AI 2012, 322).
The Swazi Observer, a daily newspaper in Swaziland, reports that Prime Minister Dlamini told reporters in June 2012 that "gay and lesbian relationships were not allowed in Swaziland" (Swazi Observer 2 Mar. 2014). The same source adds that Dlamini also declared that "'[c]hurch 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'" (ibid.). The newspaper reports that, in 2012, former Justice and Constitutional Affairs Minister Mgwagwa Gamedze also rejected a suggestion by a UN working group that Swaziland enact a law to protect sexual minorities (ibid.). According to the same source, Gamedze, who later became Minister of Foreign Affairs and International Relations, had also stated that "'[i]t was difficult for government to formulate a policy on homosexuals or enact a law to recognise them because they actually formed a minority if ever they existed. Their numbers do not permit us to start processing a policy'" (ibid.).
In March 2014, according to the same source, the government's Press Secretary stated that he was "unaware of any legal position [by the government] that has been taken specifically to address LGBTI issues," adding:
"I am however aware that the State has been closely monitoring the situation with a view to take a legal position. You will recall that until recently these issues did not come to the fore as they seem to be doing now," [...]. He further commented: "They were regulated by the nation's moral obligations and biblical values. As soon as a legal position has been taken, the State will make it public." (ibid.).
2. Treatment by Society and Authorities
2.1 Discrimination
Sources state that sexual minorities in Swaziland are victims of discrimination (SWAPOL 7 Apr. 2015; Pambazuka News 27 Nov. 2013; UN 22 July 2011, para. 42). Sources characterize discrimination against sexual minorities as "widespread" (Freedom House 2014; CAI 14 July 2010), "prevalent" (US 27 Feb. 2014, 24) and "commonplace" (amfAR and Johns Hopkins Bloomberg School of Public Health 16 May 2013). According to the joint submission received by the UN Human Rights Council, sexual minorities were "discriminated and condemned openly" (UN 22 July 2011, para. 42). The Director of SWAPOL added that "[a]nyone who is openly gay ... is stigmatized" (SWAPOL 7 Apr. 2015). The country profile also states that gay men, other men who have sex with men (MSM), and transgender individuals face stigma (amFAR and Johns Hopkins Bloomberg School of Public Health 16 May 2013). In a 2011 submission to the UN Human Rights Council, House of our Pride (HOOP), an NGO advocating for the rights of sexual minorities in Swaziland, states that "[i]t is a common scene for LGBTI to be verbally insulted by by-passers in public places" (HOOP 2011).
The SWAPOL Director stated that "since [the] majority of Swazis are Christians, [the] practices of MSM ... are regarded a[s] ungodly and demonic. It is either blamed a[s] western influence or acts of demons" (SWAPOL 7 Apr. 2015). HOOP similarly states that "[f]aith houses have been known to discriminate against LGBTI, advocating for the alienation of LGBTI in the family and society, while maintaining that these LGBTI are possessed by demons" (HOOP 2011). For its part, Country Reports 2013 states that "[c]hiefs, pastors, and members of government criticized same-sex sexual conduct as neither Swazi nor Christian" (US 27 Feb. 2014, 24-25).
Sources report that it is common for members of sexual minorities to conceal their sexual orientation (Freedom House 2014; US 27 Feb. 2014, 24) and their gender identity (ibid.).
2.2 Access to Employment
In its 2011 submission to the UN Human Rights Council, HOOP stated that sexual minorities "are often discriminated against at work" (HOOP 2011). In an article by Pambazuka News, an online newsletter which focuses on issues of social justice, particularly in Africa (Fahamu n.d.), the HOOP Director also stated that sexual minorities "struggle" when applying for jobs (Pambazuka News 27 Nov. 2013). In an article on healthcare access for gay men, MSM, and transgender individuals, amfAR reports that according to the Director of the Rock of Hope, an NGO which advocates for the needs and rights of sexual minorities in Swaziland, "in many cases if they find out you are gay, you may lose a job" (amfAR 7 Aug. 2013). However, Country Reports 2013 states that the extent of employment discrimination based on sexual orientation is difficult to ascertain as "victims were not likely to come forward since most gay men and lesbians were not open about their sexual orientation" (US 27 Feb. 2014, 25).
2.3 Access to Housing
According to Country Reports 2013, "[g]ay men and lesbians who were open about their sexual orientation and relationships faced censure and exclusion from the chiefdom-based patronage system, which could result in eviction from one's home" (ibid.). Further details and corroboration could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.
Sources report that in 2013, two men were forcibly evicted by the police from their residence in Ezulwini, due to accusations related to their sexual orientation (ibid., 25; Times of Swaziland 17 Aug. 2013). According to Swaziland newspaper the Times of Swaziland, the men were reported by a relative with whom they had been living (ibid.).
2.4 Access to Health Care
Sources indicate that sexual minorities face challenges in accessing healthcare (HOOP 2011; Pambazuka News 27 Nov. 2013; amFAR and Johns Hopkins Bloomberg School of Public Health 16 May 2013), notably with regards to HIV prevention and treatment (ibid.; Pambazuka News 27 Nov. 2013; amfAR and Johns Hopkins Bloomberg School of Public Health 16 May 2013). Sources note that a quarter of adults in Swaziland are living with HIV (Pambazuka News 27 Nov. 2013; GlobalGayz 27 Feb. 2012; amfAR and John Hopkins Bloomberg School of Public Health 16 May 2013), and that the country has the highest rate of adult HIV infection in the world (ibid.; GlobalGayz 27 Feb. 2012). The country profile on Swaziland states that, due to the marginalization caused by the criminalization of same-sex practices, sexual minorities "struggle to obtain the most basic health services, such as condoms, lubricant, and HIV testing" (amfAR and Johns Hopkins Bloomberg School of Public Health 16 May 2013). According to HOOP, sexual minorities are treated differently than non-LGBTI people at medical facilities(HOOP 2011).
According to the country profile on Swaziland, there are few programs available to MSM living with HIV and "the government of Swaziland has not directed any public funding toward HIV programs specifically targeting MSM" (amfAR and Johns Hopkins Bloomberg School of Public Health 16 May 2013). However, the same source also notes that the Swaziland National Strategic Framework "has recognized that there is a gap in services for MSM" although it did not propose any specific actions (ibid.). The Director of SWAPOL also indicated that the Ministry of Health has recognized some specific health needs of MSM, notably HIV prevention services as well as the treatment of sexually transmitted infections (SWAPOL 7 Apr. 2015). According to a February 2012 article from Behind the Mask [2] republished by GlobalGayz, a travel and culture website about LGBT life in countries around the world (GlobalGayz n.d.), Swazi health officials were using Valentine's Day to reach out to gays through a campaign encouraging HIV testing as an act of love (GlobalGayz 27 Feb. 2012).
2.5 Treatment by Authorities
Some sources report that Prime Minister Barnabas Dlamini has previously characterized homosexuality as "'an abnormality and a sickness'" (Pambazuka News 27 Nov. 2013; GlobalGayz 27 Feb. 2012). Additionally, King Mswati has described homosexuality as "'satanic'" according to GlobalGayz (ibid.).
Some sources report that sexual minorities do not feel that they can turn to authorities for recourse in cases of abuse (Pambazuka News 27 Nov. 2013; PSI et al. 31 May 2012). HOOP states that while the freedom of association of sexual minorities is not infringed upon by authorities, sexual minorities are not protected from public and media ridicule and some sexual minorities avoid public gatherings due to concerns over harassment (HOOP 2011). The same source states that sexual minorities are treated differently by law enforcement and may "often" face ridicule when reporting cases of violence (ibid.). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.
2.6 Incidents of Violence
An article published by Iranti-org, a South African NGO that documents issues regarding sexual orientation and gender identity in South Africa and the African continent (Iranti-org. n.d.), reports that in March 2015 an openly gay woman was killed by an attacker wielding an axe "who did not want to be in the presence of lesbians" while she was in a bar in Nhlangano (ibid. 20 Mar. 2015). The attacker and his friends reportedly followed the victim to the hospital and chased the people who were with the woman (ibid.). According to the Swazi Observer, the alleged killer was released on bail of 50,000 Swazi Lilangeni [approx. C$5200] three days after his arrest (Swazi Observer 29 Mar. 2015). The Swazi Observer also reports that the victim's family has claimed that it has been harassed by the alleged killer's friends (ibid.). Iranti-org also states, without providing further details, that a gay man was also killed in Nhlangano a "few months" prior to the incident (Iranti-org 20 Mar. 2015).
3. Support Services
In its 2011 submission to the UN Human Rights Council, HOOP stated that NGOs associated or working with sexual minorities "do so without interruption by the government" (HOOP 2011). Corroboration or information on whether this continued to be the case could not be found among the sources consulted by the Research Directorate. However, the 2013 Pambazuka News article on sexual minorities in Swaziland states that "a general lack of support stifles the work of HOOP and other LGBT organisations" (Pambazuka News 27 Apr. 2013). According to Country Reports 2013, "LGBT advocacy organizations had trouble registering with the government" (US 27 Feb. 2014, 25).
HOOP, created in 2009, describes itself as a "support group for gay, lesbian, bisexual, transgender and inter-sex (GLBTI) people" that carries out capacity building and advocacy with the help of other NGOs (HOOP 2011). Pambazuka News states that HOOP is "an organisation fighting for the rights of Swazi Gay, Bisexual and Transgender people are also ensuring day-to-day care and survival, medical and otherwise, for LGBT people" (Pambazuka News 27 Nov. 2013). According to the same source, HOOP also has "trained peer educators who have campaigned on the rights and provided support for LGBT people, started reporting on LGBT issues, distributed condoms and lubricants, and improved the access of LGBT people to health services" (ibid.). The Secretary General of HOOP told Pambazuka News that his organization has collaborated with the Ministry of Health (HOOP 2011). According to Country Reports 2013, HOOP "is under the umbrella of another organization dealing with HIV/AIDS" due to trouble registering with the government (US 27 Feb. 2014, 25). In its submission to the UN, HOOP stated that it was housed within SWAPOL (HOOP 2011). Pambazuka News reports that, as of November 2013, the organization had approximately 300 members (Pambazuka News 27 Nov. 2013).
According to amfAR, another organization, the Rock of Hope, was founded in 2011 by activists working to get Swaziland to recognize GMT (gay men, other MSM, and transgender individuals) as well as other at-risk groups in the country's HIV reductions plans (amFAR 7 Aug. 2013). The same source reports that the Rock of Hope also provides training to health care workers to make them aware of the specific needs of GMT (ibid.). According to the Rock of Hope's website, the organization "has been supporting, fostering and celebrating the LGBTI community of Swaziland" since 2012 and "uses trainings, advocacy and communication strategies to influence changes in policy and social practices" (The Rock of Hope n.d.a). The organization provides counselling, peer education, health services, including free HIV testing and sexually transmitted infections and access to safer sex commodities such as condoms and lubricants (ibid. n.d.b).
GlobalGayz mentions that an organization named Gays and Lesbians Association of Swaziland (GALESWA), which was started in the 1990s, had only one known member as of February 2012 (27 Feb. 2012). Further information on this organization could not be found among the sources consulted by the Research Directorate.
According to the SWAPOL Director, most governmental or non-governmental organizations which cater to sexual minorities focus on HIV prevention and care services and include the Swaziland branch of PSI [Population Services International, a global health organization], the USAID-funded Health Communication Capacity Collaborative and the Alliance of Mayors and Municipal Leaders on HIV/AIDS in Africa (SWAPOL 7 Apr. 2015).
The country profile on Swaziland likewise states that
[s]ome civil society organizations have undertaken work of relevance to the greater LGBT community, including awareness raising and capacity building. Swaziland for Positive Living (SWAPOL) initiated a program in 2010 with support from the Open Society Initiative for Southern Africa aimed at creating awareness on LGBT issues. SWAPOL is also providing training on human rights and advocacy for MSM. PSI, with support from PEPFAR [the US President's Emergency Plan for AIDS Relief], has begun providing condoms and condom-compatible lubricant for distribution through peer networks in a limited number of settings. The Family Life Association has also opened two clinics to provide targeted treatment of STIs for MSM under the age of 24. (amFAR and Johns Hopkins Bloomberg School of Public Health 16 May 2013)
This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of sources consulted in researching this Information Request.
Notes
[1] amfAR is an American NGO that describes itself as "one of the world's leading nonprofit organizations dedicated to the support of AIDS research, HIV prevention, treatment education, and the advocacy of sound AIDS-related public policy" (amfAR n.d.).
[2] Behind the Mask is a "media NGO that publishes a news website, covering news about lesbian, gay, bisexual, transgender and intersex people's affairs in Africa" (OSISA n.d.).
References
amfAR, The Foundation for AIDS Research. 7 August 2013. "Rock of Hope-Swaziland: Strengthening Healthcare Access for GMT." <http://www.amfar.org/rock-of-hope-swaziland/> [Accessed 9 Apr. 2015]
_____. N.d. "Introduction and History." <http://www.amfar.org/About-amfAR/Introduction-and-History/> [Accessed 9 Apr. 2015]
amfAR, The Foundation for AIDS Research, and Johns Hopkins Bloomberg School of Public Health. 16 May 2013. "Country Profile: Swaziland." Achieving an AIDS-free Generation for Gay Men and Other MSM in Southern Africa. <http://www.amfar.org/uploadedFiles/ _amfarorg/Articles/Around_The_World/GMT/2013/MSM%20Global%20Report%20051613.pdf> [Accessed 2 Apr. 2015]
Amnesty International (AI). April 2013. Making Love A Crime: Criminalization of Same-sex Conduct in Sub-Saharan Africa. (AFR 01/001/2013) <https://www.amnesty.org/en/documents/AFR01/001/2013/en/> [Accessed 2 Apr. 2015]
_____. 2012. "Swaziland." Amnesty International Report 2012: The State of the World's Human Rights. <http://files.amnesty.org/air12/air_2012_full_en.pdf> [Accessed 2 Apr. 2015]
Consultancy Africa Intelligence (CAI). 14 July 2010. Frederick Cowell. "Colonial Sodomy: Homophobic Threat Within Common Law." <http://www.consultancyafrica.com/index.php?option=com_content&view=article&id=472:colonial-sodomy-homophobic-threat-within-common-law&catid=91:rights-in-focus&Itemid=296> [Accessed 9 Apr. 2015]
_____. N.d. "About Consultancy Africa Intelligence." <http://www.consultancyafrica.com/index.php?option=com_content&view=article&id=46&Itemid=245> [Accessed 9 Apr. 2015]
Fahamu. N.d. "Pambazuka Programme." <http://www.fahamu.org/pambazuka/> [Accessed 9 Apr. 2015]
Freedom House. 2014. "Swaziland." Freedom in the World 2014. <https://freedomhouse.org/report/freedom-world/2014/swaziland#.VSBSJdzF_-s> [Accessed 2 Apr. 2015]
GlobalGayz. 27 February 2012. Richard Ammon. "Gay Life in Swaziland." <http://www.globalgayz.com/gay-life-in-swaziland/> [Accessed 2 Apr. 2015]
_____. N.d. "Home." <http://www.globalgayz.com> [Accessed 17 Apr. 2015]
House of Our Pride (HOOP). 2011. Hoop Submission. <http://lib.ohchr.org/HRBodies/UPR/Documents/session12/SZ/HOOP-HouseOurPride-eng.pdf> [Accessed 2 Apr. 2015]
Iranti-org. 20 March 2015. Jabu Pereira. "Anti-gay Attacks on the Rise in Swaziland." <http://www.iranti-org.co.za/content/Africa_by_country/Swaziland/01_Swaziland.html> [Accessed 8 Apr. 2015]
_____. N.d. "About Iranti-org." <http://www.iranti-org.co.za/about.html> [Accessed 9 Apr. 2015]
Open Society Initiative for Southern Africa (OSISA). N.d. "Behind the Mask (BtM)." <http://www.osisa.org/lgbti/regional/behind-mask-btm> [Accessed 17 Apr. 2015]
Pambazuka News. 27 November 2013. Peter Kenworthy. "We Are not Victims, Says Swaziland's Gay Movement." <http://www.pambazuka.net/en/category.php/comment/89759> [Accessed 2 Apr. 2015]
Population Services International (PSI), USAID Project SEARCH and Research to Prevention (R2P). 31 May 2012. MARPS Bio-behavioral Surveillance Survey (BSS) Results: Men Who Have Sex With Men (MSM) and Sex Workers (SW). Presentation made at a stakeholders dissemination meeting, 31 May 2012. <https://www.k4health.org/sites/ default/files/Swaziland_MARPS_BSS_results_presentation_to_stakeholders_31M.pdf> [Accessed 2 Apr. 2015]
The Rock of Hope. N.d.a. "About Us." <http://therockofhopesd.com/programs.html> [Accessed 2 Apr. 2015]
_____. N.d.b. "Programs." <http://therockofhopesd.com/programs.html> [Accessed 2 Apr. 2015]
Swazi Observer. 29 Mar. 2015. Teetee Zwane. "Kayla Glover Murder: So Many Unanswered Questions." <http://www.observer.org.sz/news/71647-kayla-glover-murder-so-many-unanswered-questions.html> [Accessed 9 Apr. 2015]
_____. 2 March 2014. "Govt to Decide on Gay Relationships." <http://www.observer.org.sz/news/59355-govt-to-decide-on-gay-relationships.html> [Accessed 8 Apr. 2015]
Swaziland for Positive Living (SWAPOL). 7 April 2015. Correspondence from the Director to the Research Directorate.
_____. N.d. "SWAPOL: Swaziland for Positive Living." <http://swapol.net/> [Accessed 8 Apr. 2015]
Times of Swaziland. 17 August 2013. Sisho Magagula. "Evicted for Being Gay." <http://www.times.co.sz/news/90485-evicted-for-being-gay.html> [Accessed 9 Apr. 2015]
United Nations (UN). 22 July 2011. Human Rights Council. Summary Prepared by the Office of the High Commissioner for Human Rights in Accordance with Paragraph 15 (c) of the Annex to Human Rights Council Resolution 5/1: Swaziland. (A/HRC/WG.6/12/SWZ/3) <http://daccess-ods.un.org/TMP/9853940.0100708.html> [Accessed 2 Apr. 2015]
United States (US). 27 February 2014. Department of State. "Swaziland." Country Reports on Human Rights Practices for 2013. <http://www.state.gov/documents/organization/220377.pdf> [Accessed 2 Apr. 2015]
Additional Sources Consulted
Oral sources: The following were unable to provide information for this Response: PSI Swaziland.
Attempts to contact the following were unsuccessful within the time constraints of this Response: Alliance of Mayors and Municipal Leaders on HIV/AIDS in Africa; The Family Life Association of Swaziland; Director, Iranti-org; Swaziland Action Group Against Abuse; Swaziland Association of Human Rights; Rock of Hope.
Internet sites, including: 76 Crimes; African Commission on Human and Peoples' Rights; AIDS & Rights Alliance for Southern Africa; AllAfrica.com; ARC International; ecoi.net; Factiva; GlobalLex; The Government of the Kingdom of Swaziland; Health Research Web; Human Rights Watch; Institute for African Affairs; International Gay & Lesbian Human Rights Commission; International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA); Interpol; IRIN; Legal Information Institute; NATLEX; NewsTime Africa; Open Society Initiative for Southern Africa; Pink News; Swaziland National Network of People Living with HIV and AIDS; Swaziland News; SwaziLII; United Nations – Refworld; United Kingdom – Foreign and Commonwealth Office; United States – Law Library of Congress; WorldLII.