Botswana court orders Zimbabwean inmate to produce CD4 count proof

A Botswana court has ordered a Zimbabwean man who sought to be released so that he is able to get HIV drugs on his own to produce proof of CD4 count to determine whether he can be provided the drugs by the government for free or not.

On Friday last week, Gift Mwale who demands to be released from jail so that he can fend for himself and get HIV drugs was ordered by the High Court in Gaborone to back up his case with proof of his eligibility for ARV by presenting the CD4 count. Justice Key Dingake instructed attorneys representing Mwale who is already on ARV treatment, to file supplementary papers with regard to his CD4 count. Dingake said that to determine whether or not to make an order that the inmate be enrolled on the life saving treatment pending the outcome of the main case, he should provide the crucial information.

"The matter was brought on urgency in respect that the applicant was providing his own treatment and that in a month it would be finished, and this is a constitutional matter that have side litigations that might delay it further. Therefore, there is need for a remedy that can be put in place pending the outcome of the case," he said.

Dingake stated that had the attorneys representing Mwale, Friday Leburu and Kabo Motswagole provided information on paper in regard to his CD4 count, he could have considered making an order that he be enrolled on free treatment pending the outcome of the case. The state through Yarona Sharp argued that the government could not assist even if it wanted because Mwale did not provide crucial information such as his CD4 count.

"Our contention is that we do not know if he is eligible even if the order can be made. For one to qualify for ARV treatment in the public health system, someone must have his or her CD4 count assessed and one enrolled only when he/she is eligible," she argued.

Mwale's attorneys had countered that it was moot to provide such information as their client was already on treatment. They said the inmate started taking ARV drugs when he reached the eligibility stage according to the treatment guidelines. "As a result he sponsored himself and as such the state should not have raised the issue of CD4," they argued.

Mwale's application comes at a time when foreign inmates living with HIV are in court seeking the government to be held in contempt for defying an order issued by Justice Bengbame Sechele in August that they should be provided with free ARV like local prisoners.Sechele had ordered government to provide HIV treatment to Mwale and all foreign inmates who are HIV positive and in need of the life saving treatment. Justice Terence Rannoane will deliver judgment on April 29 while Mwale's return date is on Friday.