JUDGMENT IN TAPELA AND OTHERS V ATTORNEY GENERAL AND OTHERS: HIGH COURT UPHOLDS RIGHTS OF FOREIGN PRISONERS

> Health Rights, Regional, Prisoners' Rights, Refugee and Migrant Rights > Botswana
Salc : Annabel Raw

On 22 August 2014, Judge Sechele of the Botswana High Court delivered a landmark judgment affirming the right of foreign prisoners to access HIV treatment at state expense.

Summary

The case was brought by two foreign, HIV-positive prisoners and the Botswana Network on Ethics, Law and HIV/AIDS (BONELA). They challenged the government’s policy of denying anti-retroviral (ARV) treatment to foreign prisoners. The Court ruled that the policy was unlawful in terms of the common law, statutory law and the Constitution and unjustifiably limited the rights of foreign prisoners to life, equality, and freedom from inhuman and degrading treatment. The government was ordered to enroll all foreign prisoners who meet the treatment criteria on ARVs.

Key aspects of the decision may be helpful to others litigating in Botswana and in the region.

Substance over form

In a jurisdiction in which the state often raises procedural objections that frustrate important constitutional issues being decided, the Court took a strong stand. It held:

“Rules of court … are intended to ensure that the field of litigation is level for all. The courts … will not sacrifice substance over form especially … where no demonstrable prejudice has been shown. … [C]onstitutional challenges are matters of grave importance and this court will be less inclined … to lay undue emphasis on technical inelegance, for a party who seeks shelter under the sanctuary of the constitution should not lightly be turned away.”

Affirming the science of ARV treatment

In the course of his judgment, Sechele J made several findings on the evidence that affirm the rationality and importance of ARV treatment. It held that ARVs are “not only a medical necessity but a life-saving therapy the withholding of which will take away the constitutionally guaranteed right to life.” The Court also found that withholding ARVs increases the likelihood of HIV transmission to other inmates and nationals. This is a critical statement in its implicit recognition that HIV transmission, through sexual contact or otherwise, can and does occur in prison: an assumption that can be difficult to establish in often conservative judicial contexts.

Protecting prisoners’ rights

The Court further set important precedent in fleshing out the state’s obligations towards prisoners, regardless of their citizenship status. In line with international standards, it held that inmates retain the residuum of their human rights when their liberty is taken away. The Court cited foreign case law holding that indifference towards the medical needs of prisoners can amount to torture and implied that the state was impermissibly withholding medication as a form of punishment.

The Court further held that the Prisons Act imposes upon prison authorities the obligation not only to take measures to “restore the health of prisoners” but also to “prevent the spread of disease.” This is a valuable interpretation to insist that preventative measures that are vital, but often considered taboo in prison environments, are undertaken. This would mean, for example, that there are grounds to enforce a legal obligation on prison authorities to provide condoms to inmates.

Impermissible discrimination

The Court held that the limit on the rights of non-citizens under the Constitution is only justifiable if it is reasonable in a democratic society and in the public interest. The Court held that it could never be justifiable in a democratic society to deprive a group of persons of life-saving treatment who through that deprivation become more infectious to others. This indicates the Court’s understanding of how interconnected public health is and may set the tone for reluctance to discriminate in the provision of medical care beyond the prison context.

Onus of proof and the excuse of budgetary constraints

In considering whether denying ARVs was a constitutionally justifiable limitation of the prisoners’ rights, the Court established important principles of onus of proof in constitutional litigation and in considering what weight, if any, budgetary considerations should play in that assessment.

Assessment

The judgment is valuable for future public interest litigation in Botswana and sets important precedent in establishing a human rights-based approach to the treatment of foreigners and prisoners. In a region in which access to treatment is frequently constrained, the judicial recognition of the life-sustaining impact of ARV treatment is a victory in Botswana’s commitment to advancing public health and the treatment of HIV/AIDS.

The state respondents have six weeks to consider an appeal to the Court of Appeal.

The full judgement can be read here.