Court orders government to provide ARV to Zimbabwean

Attorneys who represented a foreign prison inmate who had taken the government to court for failing to provide him with free ARV have hailed a Gaborone High Court judge's decision for having ruled in their favour.

Attorneys Kabo Motswagole and Friday Leburu, who represented Gift Brendon Mwale, originally from Zimbabwe, said Justice Key Dingake's judgement that ordered the state to provide Mwale with free ARV was a step in the right direction as this would not only benefit their client but will also benefit other foreign prison inmates who qualified under the current ARV provision guidelines.

Daily News Botswana reported that the attorneys were squaring against Attorney General's Ms Yarona Sharp and had prayed that the court consider this case as it was a matter of life and death particularly that their client could no longer afford to buy ARV from his pocket.

The respondents in the matter were Attorney General as 1st respondent, Commissioner of Prisons 2nd respondent and the Minister of Health as 3rd respondent.

The applicant, who is a Zimbabwean national, had approached the court on a matter of urgency seeking relief on a number of issues, chief among them to be provided with free ARV or alternatively released from custody.

Mwale had stated in his court papers that the decision of the third respondent (Minister of Health) to deny him the provision of the Highly Active Antiretroviral Therapy (HAART) treatment is in violation of the equal protection clause of the Botswana Constitution viz Section 3 of the said Constitution.

"That the decision of the 1st, 2nd and 3rd respondents to deny the applicant the provision of HAART is in violation of the non-discrimination clause of the Botswana Constitution viz Section 15 of the said Constitution", he stated.

He also submitted that the refusal of the respondents to grant him HAART is in breach of his right to life; in particular Section 4 of the said Constitution and that is breach to their obligations to provide medical care to those in the care of the Commissioner of Prisons. He further argued that all the three respondents are in contempt of the Order of Judge

Bengbame Sechele, which directed that all foreign prison inmates who qualify to be enrolled for HAART treatment should be provided with free ARV.

In his judgement, Justice Dingake agreed with the arguments raised by the applicant, adding that the refusal of the respondents to grant the applicant HAART is in breach of the Constitution prohibition against torture, inhuman and degrading treatment viz Section 7 of the said Constitution.

Judge Dingake further said the decision of the respondents is in breach of their obligations to provide medical care to those in the care of the applicant in terms of Prisons Act Cap 21:03. The respondents were further directed to avail the requisite medication to the applicant forthwith.

In addition the respondents were ordered to pay the costs of this application, jointly and severally, the one paying the other to be absolved.

Before delivering the judgement, judge Dingake observed that it has been a tedious route for the applicant, who initially approached the court without the benefit of the legal representation to have this matter entertained on the merits. He however noted that the applicant case was fairly straightforward.

Mwale was convicted on charges of robbery and sentenced to seven years imprisonment. He has so far served four years and is currently held at Gaborone Maximum Prison. He averred that while in prison he contracted HIV, which mutated and became fully blown AIDS.

After his viral load reached the appropriate level, he enrolled in HAART, at his own cost. He averred that the cost of such enrolment came to P3 500 per month.

The applicant declared further that all hope of getting free medical assistance evaporated when he learnt of the existence of a Memorandum/Savingram prohibiting the provision of HAART to non-citizens present in Botswana.

He pointed out that his state of helplessness was reinforced when he came to know that his fellow inmates from Zimbabwe have mounted a constitutional challenge against the policy which excluded non-citizens from the provision of HAART.

He stated that that there was no basis for his exclusion, and other non-citizens, other than some unexplained financial reasons.

The applicant further said he came to know the decision of the High Court, of Justice Sechele, that held that the government had a duty to provide care to all those in its custody and was hopeful that he will receive his dosage, but none was forthcoming.

Mwale further complained that the government had failed to comply with the order of Justice Sechele and invited the court to show its disapproval of government's conduct.

On totality of papers filed it was established that the applicant is HIV positive and that his CD4 count is 266, which places him squarely within the qualifying criteria in terms of the HAART Guidelines.

HAART guidelines prescribe that a CD4 count of less than 350 entitles one to enrolment. It was also evident on papers that the respondents had not availed free medical assistance as sought.

It was established that the applicant's averment to the effect that government was in contempt of the Order of Justice Sechele, is not denied by the respondents, and therefore it must, by law, be taken as admitted.