0SALC worked with the Botswana Network on Ethics, Law and AIDS (BONELA) to challenge the Botswana government’s policy of refusing HIV treatment to non-citizen prisoners. Citizen prisoners were entitled to free HIV treatment. In addition, the government provided non-citizen prisoners with treatment for opportunistic infections, such as tuberculosis. However, non-citizen prisoners were expected to finance HIV treatment themselves. BONELA and two HIV-positive, non-citizen prisoners filed a challenge to the policy. A default judgment, issued in the applicants’ favour, was rescinded with the parties’ consent on 19 March 2014. On 22 August 2014, the High Court in Gaborone held that the denial of HIV treatment to foreign prisoners living with HIV violated their constitutional rights. The Attorney-General appealed the decision to the Court of Appeal.
On 1 April 2015, the Attorney General filed an urgent application to stay the execution of the High Court order, pending the appeal in the Court of Appeal. BONELA opposed the application and filed an urgent application to hold the State in contempt of the High Court’s order for failing to comply. On 29 April 2015, the High Court dismissed the applications on the basis that they lacked urgency, affirming that the August 2014 order remains enforceable.
The appeal was heard on 23 July 2015 before the Court of Appeal. On 26 August 2015 the Court of Appeal dismissed the appeal. The Court held that the policy was contrary to the Prisons Act and unlawful. The Court ordered the government immediately to provide free testing, assessment and ARV treatment to all foreign prisoners to the same extent as citizen prisoners. SALC continues to work with BONELA to ensure the judgment’s enforcement.
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Court of Appeal