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Court reserves judgement in ARV case

Justice Bengbame Sechele of Gaborone High Court has reserved judgement in the case in which two foreign prisoners want to be given  anti-retroviral drugs.

The case was taken to court by the two prisoners and Botswana Network on Ethics, Law and HIV/AIDS (BONELA), arguing that the government’s policy of denying ARV treatment to foreign prisoners living with HIV was unlawful and unconstitutional.

The applicants in the matter are two Zimbabwean prison inmates, Dickson Tapela and Mbuso Piye while the respondent is the Attorney General’s Chambers and others.

The applicants argued that the policy denied the prisoners’ rights to life, freedom from inhuman and degrading treatment and discrimination and equality.

When motivating their application, the lawyer representing the applicants Advocate Gilbert Marcus from South Africa argued that the policy was irrational in that it was more costly to treat opportunistic infections, as the government was currently doing, than to treat the prisoners.

He submitted that prisoners, particularly foreigners, were a vulnerable group who usually had no means to access life-saving medication if government did not supply it.

He said there were no international instruments that denied the right to life saving medical treatment on grounds of citizenship, adding that even the Prison Act did not prohibit inmates to be provided with medication and treatment.

Advocate Marcus also submitted that the 2004 Presidential Directive, which the respondent was using as its defence was unsustainable. He said the directive, which stated that foreign prisoners, who are HIV positive, were not entitled to HIV treatment, could not amend the Prison Act because it does not have any legal obligation.

He argued that the directive was just a separation of powers adding denying foreign prisoners treatment of HIV was unconstitutional as Botswana was a signatory to a number of statutes some of which are civil and political rights.

In response, Mr David Moloisi of the Attorney General’s Chamber argued that the court should not lose sight that the state wasnot denying the applicants the right to life.

He submitted that the applicants were alive and they were not being denied the right to life saying the deprivation to life occurred when they contracted the AIDS virus.

He said the applicants had no right to receive the ARVs and Section 57 of the Prison Act did not create a right in respect to the applicants or any other prisoner regardless of their citizenship.

Mr Moloisi said the only right the applicants had in the Prisons Act was  the right to medical care, which they received and the act did not state that foreign prisoners must be given treatment on HIV.

He said the President had the power to make directives which were meant to safeguard the interest of the public, be it the state, the public and public security, adding that public interest considerations were financial and that this treatment could not be extended to foreigners because the country was faced with a serious shortage of money.

Tapela was convicted and sentenced to 10 years imprisonment for armed robbery. Still in the same year, his girlfriend informed him that she had been diagnosed with an HIV and advised him (Tapela) to go for a test, which turned out to be positive. ENDS

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