Monday, January 24, 2022

Government makes U-turn on ARV treatment case

After assuring the defense team that that they will not appeal a case in which government has been ordered to provide anti-retroviral (ARV) treatment to HIV-positive foreign prisoners at state expense; the government through attorney general has on Friday, 3 October served the foreign prisoners attorneys with notice and grounds of appeal.

Those who are close to the case said the decision to appeal the case was influenced by the government leadership as they argued that it was going to be costly for the country.

The case came about after two Zimbabwean inmates, Dickson Tapela and Mbuso Piye, together with Botswana Network on Ethics Law and HIV-AIDS (BONELA) had brought a constitutional challenge against a decision by the government of Botswana not to provide them with ARV treatment.

In her grounds of appeal government stated that she is against the whole judgment that was delivered by Justice Bengbame Sechele of Gaborone high court on 22 August, 2014. Government said Sechele gravely erred in holding that dispensing medicinal drugs is an administrative matter and cannot, by any stretch of imagination be classified as a matter of High Policy exclusive to the executive. Government attorneys are of the view that the High court went completely astray and misdirected itself when it held the court’s interpretation of the directive or rather the saving gram from the government, means that the applicants and other non citizen inmates who are HIV positive are not excluded from free medical treatment which includes HAART therapy. “The said court justice erred in his finding that the withholding of HAART takes away the foreign prisoners, constitutionally guaranteed right to life,” Government noted in her grounds of appeal.

Government argues that the High court again erred in relying on the South African constitution which is distinctively different from the Botswana constitution.

“The judge erred in his interpretation of the facts of the matter in relation to section 15 (4) of the constitution of Botswana in holding that the exclusion of the non citizen from HAART therapy cannot be justified as reasonably justifiable in a democratic society and in the public interest,” government noted.

Furthermore, the government said the court misdirected itself when it stated that actions of the government, in so far as they deny the foreign prisoners and other non citizen inmates’ access to HAART enrolment, are unlawful. On their grounds of appeal government also prayed that the High Court Judgement delivered by Sechele must be set aside and judgement be entered in favour of the government dismissing foreign prisoners.

BONELA Executive director Cindy Kelemi said they remain hopeful, “it is something that we expected, it is part of the legal process and as an organisation that adheres to legal process we are of the view that it is within their rights to appeal therefore we can only wait for the court to decide on the outcome. We remain hopeful,” she said.

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