Botswana Court orders govt to provide foreign inmates with ARV treatment

The marathon case in which HIV+ foreign inmates were suing the government of Botswana for refusing to provide them with Highly Active Anti Retroviral Therapy (HAART), reached a resounding end this morning (Wednesday) when the Court of Appeal, the highest court in Botswana ruled that the inmates should be enrolled on ARV treatment.

A panel of three Court of Appeal Judges, led by Judge President Ian Kirby, delivered judgement in a case in which the government of Botswana was challenging a ruling by the lower court (High Court), declaring the decision by government to refuse to provide foreign inmates with ARV's as invalid and setting it aside. The High Court also said the refusal was a violation of the prisoners' constitutional right and a breach of the duty owed to them by the state to provide them with basic health services.

In its appeal, the state argued that the High Court erred in finding that the decision not to provide foreign inmates with ARV's was unlawful and unconstitutional as such a decision was specifically permitted by section 15 (4) (b) of the constitution and was justified on financial grounds as a matter of public interest. The state also argued that the High Court erred in making a mandatory order which usurped an executive prerogative, so offending against the separation of powers.

When delivering judgement, Justice Ian Kirby said the constitutional declarations that the foreign inmates sought only served to bolster the central complaint, which was that they were being denied the right to medical care as per the provisions of the Prisons Act. He added that the state has a responsibility to keep prisoners in good health because it forfeited their freedom and rendered them unable to fend for themselves. He further said while prisoners have their liberties curtailed by imprisonment, they remain entitled to enjoy the residuum of their constitutional and human rights. The Court of Appeal also found that the decision to deny foreign inmates ARV treatment while according it free of charge to citizen inmates was ultra vires the Prisons Act and its regulations as it discriminates unlawfully against foreign inmates.

On the state's argument that the decision to withhold ARVs from foreign inmates was taken in the public interest due to financial constraints, Justice Kirby said it is the responsibility of governments to budget for its legal obligations. He added that if the law requires a service to be provided, then funds must be availed to provide that service, adding that lack of funds will not in the normal course justify disobedience of the law. He further faulted the government for failing to provide any evidence to prove that providing ARV's to foreign inmates would be unaffordable. Also, he said, the state did not provide any comparative cost of treating opportunistic infections contracted by HIV+ prisoners who are denied ARV treatment. In his final ruling, Justice Kirby set aside government's decision to withhold free medical treatment from non-citizen prisoners and made an order for full compliance with the Prisons Act and its Regulations.