Botswana drops part of prison ARV challenge

The stage has been set for a grinding legal battle between the Botswana government and a Zimbabwean inmate over provision of antiretroviral drugs, after the State withdrew its application to appeal a High Court ruling on procedure granted recently in favour of the prisoner.

Gift Mwale, who is currently serving a 10-year sentence for robbery and buys the lifesaving drugs from his pocket, was last week given a chance by High Court Judge Key Dingake to file supplementary papers in his suit demanding that government either free him or provide him with the ARVs.

It was the second technical victory for Mwale after the supplementary papers were struck off when his attorneys, Friday Leburu and Kabo Motswagole, failed to pass them through the Commissioner of Oath for signing.

Last Friday, the State filed an urgent application for leave to appeal the granting of a fresh chance for Mwale to file his supplementary papers. Yesterday morning, Dingake dismissed the State's urgent application saying it lacked merit. The State then took its protests to the CoA in the afternoon where, Justice Elijah Legwaila advised the State to withdraw its challenge and rather await the substantive matter to be determined.

Dingake had in his earlier ruling granting Mwale a fresh chance, said that the issue was a constitutional matter and the applicant's life was on the line if not afforded the free medication by the government.

"It would be an unmitigated travesty of justice and a vicious assault to the court's conscience," Dingake said in his ruling.

Yesterday the State, represented by Yarona Sharp, conceded and withdrew the application for leave to appeal.

Earlier, Sharp had argued that Mwale was twice given leave to file supplementary papers and had failed to do so.

Sharp said Mwale had also failed to prove his eligibility for the lifesaving treatment under the Botswana Treatment Guidelines. His application, Sharp argued, should not have been entertained.

Sharp further argued that the Mwale was cited in another application before the High Court in which a local civic rights organisation is also suing government over provision of ARVs to foreign inmates.

"The applicant was part of the proceedings in another case whose judgment is pending before Judge Terrence Rannoane and we submit that the applicant could benefit from that judgment," she said.

Mwale's attorneys said the State had failed to prove the urgency of its case and had also failed to demonstrate that it would not be offered substantial redress at a hearing in due course.

"The State has failed to demonstrate a reasonably arguable case and prospects of success at the Court of Appeal. On this score alone the application for leave to appeal ought to be dismissed with costs," said Mwale's attorneys.

Mwale's application comes as foreign inmates living with HIV press on with a legal suit demanding that the government be held in contempt for allegedly defying a High Court order granted last August for the provision of ARVs to them.

In that particular case, the State has applied for a stay of execution arguing that it is not sustainable to provide treatment to foreign inmates.

Mwale's substantive matter, which involves hearing the merits of the case and counter-arguments, is scheduled to proceed today at the High Court.