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09 July 2013

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BONELA SUES GOVERNMENT FOR PROVISION OF ANTIRETROVIRAL TREATMENT FOR FOREIGN INMATES


The Botswana Network on Ethics Law and HIV / AIDS (BONELA) intends to institute a law suit against the government, particularly the Commissioner of Prisons, to provide for free antiretroviral drugs to foreign inmates in need of them. 

Background

We received instructions from our two male Clients, all coming from Zimbabwe. Paradoxically, the instructions were supported by the Commissioner of Prisons, who lamented that the Botswana policy excludes foreign inmates from accessing antiretroviral drugs. BONELA has also decided to be a party to the proceedings to enable other similarly situated inmates to benefit from the decision in the event we are successful. In other words, BONELA will be the 1st Applicant in this matter. We have consciously taken this decision as we are a body representing the interests of the marginalized and the weak. Furthermore, the two other litigants will be 2nd and 3rd Applicant respectively. Currently, the litigants are in dire need of ARVs, but government authorities are refusing for our team of doctors and psychologists to assess them for purposes of assisting the court to know their exact medical situation. We have been moved from pillar to post by the authorities. We sought the interventions of the Ministry of Defence, Justice and Security Permanent Secretaries, Ms. Segakweng Tsiane, and Augustine Makgonatsotlhe who is mainly responsible for justice matters and the Commissioner of Prisons Colonel Silas Motlalekgosi. We met with them in April to share our frustrations and we were assured that access will be permitted. Today, we still grapple with the same issue.

Legal Issues

The case is going to be a groundbreaking matter in that it will give our courts the opportunity to decide on the following issues, amongst others: 

  1. 1.Whether the state in denying foreign inmates antiretroviral drugs is not violating their constitutional rights to equality, non-discrimination, and above all, dignity? 
  1. 2.Whether the state at common law has no legal duty to provide for care, support and treatment to all inmates under their control?

The Arguments

BONELA is going to advance several arguments. Inter alia, it is going to be argued that:

  1. 1.Prisoners enjoy constitutional rights too and their rights can only be limited when there is a sound justification to do so. For instance, the freedom of liberty is withheld so that inmates can serve their punishments and be rehabilitated. On the other hand the right to dignity has to remain impregnable throughout as it is at the heart of human life. 
  1. 2.The government has a common law duty of care and support concerning all inmates, irrespective of where they originate from. 
  1. 3.We anticipate that government will argue that ARVs are expensive. We intend to counter that argument by indicating that no cost benefit analysis was ever done to leading to that position. In fact, we argue that ARVs costs from as little as P180 per month and it is cheaper to provide ARVs than to continuously treat inmates for opportunistic infections such as pneumonia, TB and even cancer. Waiting for inmates to contact opportunistic infections is dangerous for our public health good because Batswana inmates and prison officials are also exposed and do contract the infections. If the government is not willing to spend on foreign inmates, it should release them or make arrangements with their countries of origin. 
  1. 4.Research does indicate that treatment is prevention these days. What this means is given that sex does take place in prisons, all inmates living with HIV would not easily or at all infect their sexual partners and thereby reduce costs of ARVs. 
  1. 5.We will also argue that the National AIDS Council, which is the upper body in advising government on matters of policy and the law around HIV issues, resolved that inmates be given ARVs irrespective of their country of origin.

 Our Team

We are pleased to inform you that we have assembled a solid team to handle this looming litigation. We have the Southern African Litigation Centre, (SALC) Advocate Gilbert Marcus SC, (one of the best advocates in South Africa and internationally) and our very own Tshiamo Rantao, of Rantao Kewagamang Attorneys handling the case. 

Timelines

It is our intention that the Attorney General and all the relevant parties shall be served with a Statutory Notice before the end of July 2013. We anticipate that the litigation may take time to complete as a panel of judges may have to be assembled whose diaries may be packed by now. We are informing you now about the case before we file it before our courts so that we have the opportunity to discuss the case without bordering on contempt of court (sub judice) and create a wider and deeper understanding of it amongst the people of Botswana. 

__________________________

Uyapo Ndadi

(Outgoing Executive Director)

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