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Recognition of same-sex unions in Eswatini

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Part of the LGBTQ rights series
Marriage

Recognized

Civil unions or registered partnerships but not marriage
Minimal recognition
See also
Notes
  1. ^ a b Performed in the Netherlands proper (including the Caribbean Netherlands), as well as in Aruba and Curaçao. May be registered in Sint Maarten in such cases, but the rights of marriage are not guaranteed.
  2. ^ Neither performed nor recognized in Niue, Tokelau, or the Cook Islands.
  3. ^ Neither performed nor recognized in six British Overseas Territories.
  4. ^ a b Neither performed nor recognized in some tribal nations. Recognized but not performed in several other tribal nations and American Samoa.
  5. ^ Registered foreign marriages confer all marriage rights. Domestic common-law marriages confer most rights of marriage. Domestic civil marriage recognized by some cities.
  6. ^ a b c d e The Coman v. Romania ruling of the European Court of Justice obliges the state to provide residency rights for the foreign spouses of EU citizens. Some member states, including Romania, do not follow the ruling.
  7. ^ A "declaration of family relationship" is available in several of Cambodia's communes which may be useful in matters such as housing, but is not legally binding.
  8. ^ Guardianship agreements, conferring some limited legal benefits, including decisions about medical and personal care.
  9. ^ Inheritance, guardianship rights, and residency rights for foreign spouses of legal residents.
  10. ^ Courts have recognised guru–shishya, nata pratha or maitri karar–type contractual relationships, but they are not legally binding.
  11. ^ Some cities and prefectures issue partnership certificates, but they are not legally binding.
  12. ^ Marriages conducted abroad between a Namibian national and a foreign spouse recognized for residency rights.
  13. ^ Hospital visitation rights through a "legal representative" status.
  1. ^ a b Not yet in effect.
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Eswatini does not recognise same-sex marriages or civil unions. The Marriage Act, 1964 does not provide for the recognition of same-sex unions.

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Background

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Same-sex sexual relations are outlawed in Eswatini under Roman-Dutch common law. Although the Minister of Justice has repeatedly stated that their policy is not to prosecute consenting adults,[1] discrimination and abuse "severely impact the lives of LGBT people in [Eswatini]".[2] In 2009, activists from the Eswatini AIDS Support Organisation reported that many LGBT people were forced into opposite-sex "marriages of convenience". "These people cheat on their spouses because they are not allowed to marry partners of the same sex", said Vusi Matsebula, a spokesperson for the organisation, who argued that "same-sex couples should be legally recognised and become involved in combating the disease."[3]

In 2009, a lesbian couple, Pitseng Vilakati and Thuli Rudd, were publicly engaged in a ceremony held in Manzini. The couple quickly made headlines, attracting significant media coverage. There was a massive public reaction which was "largely hostile, insulting and deeply disrespectful".[4]

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Same-sex sexual activity legal
  Same-sex marriage
  Limited recognition (foreign residency rights)
  No recognition of same-sex couples
Same-sex sexual activity illegal
  Prison but not enforced
  Prison
  Death penalty on books but not enforced
  Enforced death penalty

Eswatini law does not recognise same-sex marriages. The Marriage Act, 1964 (Swazi: uMtsetfo weMshado, 1964; Act 47 of 1964) does not expressly forbid same-sex marriages and does not contain a definition of marriage. However, it generally refers to married spouses as "bridegroom" and "bride".[5] In addition to civil marriages performed under the act, customary marriages are recognised through traditional unwritten Swazi law, allowing for polygamous marriages in Eswatini.[6] The Constitution of Eswatini does not explicitly address same-sex marriages. Article 27(1) of the Constitution states:[7]

Men and women of marriageable age have a right to marry and found a family.

Human rights attorney Sibusiso Nhlabatsi has argued that the article constitutionally bans same-sex marriage; however, the wording has not been challenged in the courts.[8] Nhlabatsi has called on activists to challenge the laws, "Therefore, the LGBTI community should push for the ammendment of the Constitution so that they are accommodated. After all the constitution guarantees the right to equality, the right to dignity and the freedom of choice or conscience."[8] Article 27(2) of the Constitution further states that:[7]

Marriage shall be entered into only with the free and full consent of the intending spouses.

Civil unions, which would offer a subset of the rights, benefits and obligations of marriage, are also not recognised in Eswatini. In May 2022, a spokesperson for the Communist Party of Swaziland, banned by King Mswati III in 2011 and headquartered in Mpumalanga, South Africa, criticised the government's opposition to LGBT rights. "The fact of the matter is that the Government is relying on colonial laws and colonial morality to deny the LGBTI community their fundamental rights. The laws still discriminate against all groups outside heterosexual relations, marriages of LGBTI people remain banned", the spokesperson said. They accused the government of "hiding the truth as the progressive Swazi society had long accepted the LGBTI community but it was Mswati's autocracy that was refusing to accept them as human beings."[8]

Religious performance

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In 2015, the General Synod of the Dutch Reformed Church voted by a 64% majority to recognise same-sex marriages, bless the relationships of same-sex couples and allow gay ministers and clergy (who are not required to be celibate). The decision applies to 9 of the 10 synods; with the Namibia Synod being excluded, but it does apply to the Eastern Synod, which includes all of Eswatini.[9] The decision caused backlash and objections, resulting in it being reversed a year later. A dozen church members subsequently took the denomination to court to restore the 2015 decision. In 2019, the North Gauteng High Court reversed the decision, ruling that while religious organizations have the religious freedom to define marriage the 2016 decision was not made in accordance with the church's own proper process.[10][11] Individual pastors are free to choose whether to bless same-sex marriages; a freedom of conscience clause allows pastors with objections to opt out of performing same-sex weddings.

The Anglican Church of Southern Africa, which has one diocese in Eswatini, does not permit same-sex marriages. Its marriage policies state that "holy matrimony is the lifelong and exclusive union between one man and one woman". In 2016, the synod voted against blessing same-sex unions. The decision split the church, with several dioceses deciding to nonetheless proceed with the blessing of same-sex relationships, notably the Diocese of Saldanha Bay in South Africa.[12] Archbishop Thabo Makgoba expressed disappointment with the decision not to bless same-sex unions, but added that "all is not lost", expressing hope that the matter would be debated again in the future. Former Archbishop Njongonkulu Ndungane also expressed his disappointment with the decision.[13] In early 2023, the church once again refused to allow its clergy to bless same-sex unions, but directed the synod to develop "guidelines for providing pastoral ministry to those in same-sex relationships".[14] In May 2024, Archbishop Makgoba released a document recommending prayers for same-sex couples,[15] which the synod rejected in September.[16]

The Catholic Church, which has one diocese in Eswatini, opposes same-sex marriage and does not allow its priests to officiate at such marriages. In December 2023, the Holy See published Fiducia supplicans, a declaration allowing Catholic priests to bless couples who are not considered to be married according to church teaching, including the blessing of same-sex couples.[17] The Southern African Catholic Bishops' Conference, representing bishops in Botswana, South Africa and Eswatini, released a statement saying that "the document offers suggestions for when and how the blessings might be given. The Southern African Catholic Bishops Conference will guide further on how such a blessing may be requested and granted to avoid the confusion the document warns against. In the meantime, the suggestions offered by the declaration may be taken as a guide with prudence."[18][19]

In 2015, the synod of the Evangelical Lutheran Church in Southern Africa discussed same-sex unions but concluded that "a marriage is understood as a union only between a man and a woman. Furthermore the valid and unchanged position of our Church is that the blessing of same sex unions is rejected."[20] In 2020, the Methodist Church of Southern Africa voted to allow members, including ordained clergy, to enter into same-sex unions, while retaining the denomination's teaching that marriage is a union "between a man and a woman".[21][22]

See also

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References

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  1. ^ 2021 Country Reports on Human Rights Practices: Eswatini (Report). United States Department of State. 2021. Retrieved 18 June 2022. While there are colonial-era common law prohibitions against sodomy, no penalties are specified, and there has never been an arrest or prosecution for consensual same-sex conduct.
  2. ^ "An analysis of spaces for LGBTI activism in Swaziland" (PDF). The Other Foundation. June 2017. Archived from the original (PDF) on 30 June 2024.
  3. ^ "Swaziland Told To Legalise Prostitution, Gay Marriage". SWAN. Retrieved 23 August 2024.
  4. ^ "Pitseng's family emotional after lesbian lover's acquittal". Times of Swaziland. 17 December 2011.
  5. ^ "Marriage Act, 1964". eswatinilii.org. Retrieved 22 August 2024.
  6. ^ Rickard, Carmel (10 January 2024). "Eswatini's highest court reverses itself; holds customary marriages are 'lawful'". AfricanLII.
  7. ^ a b "Constitution of Eswatini, 2005". www.constituteproject.org. Retrieved 22 August 2024.
  8. ^ a b c "COMMUNIST PARTY:Gays and Lesbians not accepted as humans by Mswati's Government". Swaziland News. 31 May 2022.
  9. ^ "Dutch Reformed Church to recognise gay marriage". enca. 10 October 2015. Archived from the original on 11 April 2019. Retrieved 11 April 2019.
  10. ^ "Dutch Reformed Church's Decision Not To Recognise Gay Marriages Set Aside". Eyewitness News. 8 March 2019. Archived from the original on 11 April 2019. Retrieved 11 April 2019.
  11. ^ "Dutch Reformed Church loses court battle over same-sex unions". enca. 8 March 2019. Archived from the original on 11 April 2019. Retrieved 11 April 2019.
  12. ^ "More ructions in Anglican church over same-sex marriage". Iol.co.za. 16 September 2017. Archived from the original on 11 April 2019. Retrieved 11 April 2019.
  13. ^ "All Are God's Children: On Including Gays and Lesbians in the Church and Society". HuffPost. 11 August 2011. Archived from the original on 11 April 2019. Retrieved 11 April 2019.
  14. ^ "Bishops in Southern Africa agree to prayers but not blessings for same-sex couples". Church Times. 6 March 2023.
  15. ^ LeBlanc, Douglas; Michael, Mark (9 May 2024). "Eclectic Prayers for Same-Sex South African Couples". The Living Church.
  16. ^ Ahrends, Chris (1 October 2024). "Love over rules — it's time for disobedience in the Anglican Church of Southern Africa". Daily Maverick.
  17. ^ Flynn, JD (2023-12-22). "Is the 'false narrative' narrative a false narrative?". The Pillar. Archived from the original on 23 December 2023. Retrieved 2023-12-23.
  18. ^ Coppen, Luke (19 December 2023). "'Fiducia supplicans': Who's saying what?". The Pillar.
  19. ^ "In Nigeria and Much of Africa, Catholic Same-Sex Couples See No Blessings Soon". U.S. News. 29 December 2023.
  20. ^ "Homosexuality in South Africa – KZNCC". kzncc.blazanor.com. Retrieved 2016-08-01.
  21. ^ "SA Methodist Church won't 'prevent' members entering into same-sex unions". MambaOnline. 2020-10-08. Retrieved 2021-07-16.
  22. ^ "Methodist Church of SA 'clarifies' position on gay marriage". gatewaynews.co.za. 2020-10-09. Retrieved 2021-07-16.
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