Justice Terrence Rannowane of Gaborone High Court will, on April 29, deliver a ruling in the case in which the Attorney Generals (AGs) wants the court to grant a stay of execution order in relation to a ruling that directed government to provide free ARV to foreign prison inmates.
The AGs represented by the twin sisters, Yarona and Neo Sharps argued that it would be illogical for the government to start rolling out Highly Active Antiretroviral Therapy (HAART), while at the same time the government appealed the decision and was awaiting a roll call of July where the matter would be decided once and for all.
The AGs further argued that at the moment the government was not financially apt to roll out such lifesaving medication because it was costly and unsustainable, hence asked the respondents, Botswana Network on Ethics, Law and HIV/AIDS (BONELA) to wait for the next two months.
Yarona, who was the lead state counsel, noted that they have also brought this application under urgent motion after learning that one foreign inmate has lodged a contempt of court application that sought the permanent secretaries with the Ministries of Health and that of Defence, Justice and Security to be forced to comply with the order or otherwise face civil imprisonment.
Last year in August 22, Judge Bengbame Sechele ordered the government to provide foreign inmates with free ARVs after two Zimbabwean prisoners with the assistance of BONELA sued government for refusing to provide them with free ARVs.
In his ruling Judge Sechele agreed with the litigants that the refusal to provide them with ARVs was unconstitutional and a breach of human rights, henceforth ordered that all foreign inmates who have reached a threshold of those with CD4 count illegible for ARVs treatment should be provided.
In response attorney Tshiamo Rantao said there is no urgency on the part of this application because the government waited for seven months and only came running to the court when it learnt that an inmate has lodged a contempt of the court application after failure by the government to execute the order.
Mr Rantao said the so called urgent application was self-created purely to frustrate the application by the foreign inmate who wanted the two permanent secretaries to comply with the order and nothing else.
He said that he agreed with the state when it says the order is still enforceable but wondered why it was still procrastinating, adding that the state to take the court into its confidence by showing how it will be unable to provide AVRs instead of just saying it has no funds without proper justification or breakdown of figures.
Mr Rantao warned that further delay by the government to provide such medication was putting the lives of such inmates at risk because even in a medical practitioners REPORT in the main application has proved that and was never challenged. He contended that it would be wrong a setting a bad precedent for the court to listen to litigants whose hands are dirty and therefore said the jurisprudence of Botswana and abroad dictates that you obey the order and later argue.
Since the respondents had also filed an urgent application for contempt of court, Mr Rantao said their application was not in bad faith because BONELA had just been served with a stay of execution application and suddenly became aware that the government has not been complying with Judge Sechele’s order.
“What do you do when someone suddenly show up and informs you that he has not been honouring the court order while you yourself you were not aware?” he asked.
He maintained that once you become aware that the court order is not adhered to or complied with, the matter becomes urgent. Mr Rantao therefore said the court should treat the matter as constitutional as it borders on the right to life and dignity.