24 March 2013
The Southern Africa Litigation Centre (SALC) has punched holes in Botswana’s Public Health Bill, warning it might result in human rights violations. The SALC has raised its own concerns in support of previous ones raised locally by human rights lawyer and director at the Botswana Network on Ethics Law and HIV/AIDS (BONELA), Uyapo Ndadi.
The government has repeatedly denied the Bill seeks to empower medical practitioners to force clients to undergo tests.
SALC has dissected some aspects of the Public Health Bill dealing with communicable diseases, notifiable diseases, HIV related provisions, rights of users of health services and complaints regarding health services and has come up with a list of recommendations on how the Bill can be amended.
Among its recommendations, SALC calls, for instance, for the proposed measures in the Bill relating to communicable diseases to be carefully considered. “The measures should not apply to everyone with a communicable disease, but be specifically tailored to address specific public health concerns. For example, it might make sense to detain people with some communicable disease, which is highly infectious and poses a severe public health risk and for which any other preventative measures are ineffective. However, it does not make sense to detain people who have sexually transmitted communicable diseases, especially not HIV,” according to SALC.
The regional law body acknowledges that there are a range of different types of communicable diseases – for example, diseases preventable by vaccination, sexually transmitted diseases, viral hepatitis, air-borne diseases and serious imported diseases. Having noted their existence, the regional law body says in many cases, prevention through measures such as site planning, adequate nutrition, good sanitation, personal hygiene, case management, housing, health education, insect and rodent control, and case management are more important than measures which risk stigmatising those who are infected with communicable diseases. SALC suggests that the Bill should include different schedules classifying communicable diseases in accordance with seriousness or risk of infection and apply certain provisions only to communicable diseases listed in those schedules.
Section 53 of the Bill states that a health officer or authorised officer may enter and inspect the premises of a person suffering from, having recently suffered from, or have been exposed to a communicable disease; and may then medically examine such person to establish if the person is, or has recently, suffered from that disease.
SALC argues the provision is broad, especially in its application to all communicable diseases saying it would be important for the section to only apply to specific communicable diseases. The regional law body says the section potentially violates section 9(1) of the Botswana Constitution which provides for the right to privacy.
Section 57(1) allows a medical practitioner, health officer or authorised officer to detain a person in a health facility or temporary place if that person has a communicable disease and they believe detention is necessary to prevent the spread of the disease. Such person can, in terms of section 57(2) be detained until the medical practitioner, health officer or authorised officer is satisfied that the person is no longer infected or that the discharge of the person will not endanger public health. A person who escapes such detention commits an offence [section 57(3)]. “Section 57 affects a range of rights. As the section now stands, it provides no remedies for a person who has been detained and no oversight over decisions to detain,” argues SALC. The regional human rights body offers that the section should state that detention must be authorised by the court, which should also set out the conditions of detention, specify the periods of detention and afford detainees legal representation. SALC argues that Section 57 potentially violates the right to freedom of movement guaranteed in section 14 of the Botswana constitution and article 12(1) of the African Charter on Human and People’s Rights (ACHPR) and the right to be free from cruel, inhuman and degrading treatment guaranteed in section 7(1) of the Botswana Constitution.
“The right to freedom of movement can be limited if it is in the interest of public health provided it can be shown that the limitation is reasonable and justifiable in an open and democratic society. A distinction can certainly be made between different types of communicable diseases,” says SALC.