23 July 2015
Botswana Network on Ethics Law and HIV/AIDS (BONELA) and the Attorney General’s Chambers are each crossing their fingers hoping for the Court of Appeal’s favour on whether HIV positive foreign prisoners should have access to treatment.
Judgement on the matter was reserved today and it will be delivered on a date to be decided.
In August last year the High Court in Gaborone ruled in favour of BONELA and ordered that government should enroll HIV positive inmates on Highly Active Retroviral Treatment (HAART).
The High Court held that the policy violated the Prisons Act, the common law and the prisoners’ constitutional rights to life, freedom from inhuman and degrading treatment, and to equality.
It ordered that all HIV-positive foreign prisoners who meet the treatment criteria be provided with the ARVs.
The Attorney General then filed a notice of appeal and still did not comply with the High Court order, arguing that the State was not legally obliged to provide the treatment at its own expense and that it was financially constrained to do so.
Today all legal jargon on the matter was decoded as BONELA, represented by Advocate Gilbert Marcus SC, Advocate Isabel Goodman and Tshiamo Rantao of Rantao Kewagamang Attorneys argued that government is legally and constitutionally obliged to provide ARV treatment to all HIV-positive prisoners.
They also argued that denying the prisoners’ rights goes against public health interests.
Yarona Sharp who led the Attorney General’s team argued that the decision to refuse the prisoners with provision of ARVs does not conflict with the National Policy on HIV/AIDS and that it was not unconstitutional.
She further conceded that the State does have a duty to foreign inmates but argued that such prisoners are treated in accordance with the Prison’s Act which entitles them to medical care, only on availability, practicability, financially and reasonableness. “The right to medical treatment is not absolute in so far as treatment of all natures is concerned,” she said.