A High Court landmark case in which a Zimbabwean HIV patient is challenging government’s decision to refuse to provide HIV positive foreign inmates with ARVs despite a court order has sparked fears that Botswana may be sitting on a time bomb because of its decision to exclude immigrants from government free medical services.
Fears that Botswana may be sitting on a major health hazard in its prison facilities were heightened by an inmate’s revelations in fresh court papers passed to The Telegraph this week claiming that he contracted HIV while being incarcerated at the notorious Gaborone Maximum Security Prison.
Attorney General Dr Athalia Molokomme is cited as the First Responded, while the Commissioner of Prisons Colonel Silas Setlalekgosi is cited as the Second Responded. Minister of Health Dorcas Makgatho is cited as Third Responded and Director of Public Prosecutions Leonard Sechele is cited as Fourth Respondent.
Through his lawyers, Motswagole and Company, the inmate who was convicted on a charge of robbery and sentenced to seven years imprisonment says “in the period of my incarceration at Gaborone Maximum Prison, I contracted Human Immunodeficiency Virus ((HIV). The virus mutated, as expected,and became full blown AIDS.”
The inmate who still has to serve three more years says that after his viral load reached the appropriate level, he enrolled on highly active antiretroviral therapy (HAART) at his own cost and had to endure costs of about P3 500 a month for the said treatment.┬á
“All hope to getting any sort of medical assistance from Government of Botswana via the Ministry of Health did not exist as some years before my indictment, I’m informed Government issued a memorandum/savingram prohibiting the provision of HAART to non citizens present in Botswana,” states the inmate.
He states that his hope was rekindled during his incarceration when it came to his attention that some of his inmates and Zimbabwean citizens had taken up constitutional challenge against a law that excluded non citizen inmates from the provision of HAART with no basis provided except unexplained financial reason.
“In the months following a challenge by our fellow inmates, I understand a judgment was issued by the High Court under the hand of the Honourable Justice Sechele who ruled amongst other things that the Government, in particular the Commissioner of Prisons, has a duty to provide care for all in his custody.┬á Further that the prohibition against care by the Central Government cannot pass the Constitutional Muster,” states the inmate.
He said it was following the decision of Justice Sechele that he expected to immediately receive dosage of his HAART from Ministry of Health. The dosage, the inmate says, never came; government never followed Justice Sechele’s order to provide not citizens with HAART.
“I believe that the Constitution of the Republic of Botswana is meant to protect us all; citizens and non citizens alike, legally or illegally present in the country. Because of that, I’m of the view that certain rights that I should enjoy under the said Constitution are being breached, this would include the right to equal protection of the law, the right not to be discriminated, the right not to be deprived of life except by a superior court or by such allowable circumstances and the right not to be tortured, degraded and inhumanely treated,” said the inmate.┬á
On the issue of Government’s non compliance with Justice Sechele’s order, the inmate says that this is a matter that the court must rise to the occasion on more particularly that the contempt of his lordship order emanates from high echelons of power, the very purveyors of social order and presumably the rule of law.
Motswagole and Company lawyers argue that Molokomme, Setlalekgosi and Malesu are in contempt of Justice Sechele’s Judgment and Court order and since they had failed to comply with the court order they should be committed to prison for seven days. Alternatively, the lawyers argue that their client should be released from custody.
The government has since the Court praying for stay of execution order in relation to Justice Sechele judgment that directed government to provide free ARV to foreign prison inmates. Justice Terrence Rannowane of Gaborone High Court will deliver a ruling on the stay of execution case on April 29.