The Botswana Network on Ethics, Law and HIV/AIDS is headed for an epic clash with the government of Botswana, as the date draws near for the case in which two Zimbabwean prisoners have dragged government to court for refusing to provide them with ARV treatment.
In their response to arguments filed by BONELA, the Attorney General (AG) argues that the constitution of Botswana allows for discrimination in some cases, and that government would be irresponsible if it incurs the additional costs of providing ARV’s to foreigners who, worse, have been found guilty of crimes.
In her answering affidavit, Dr Khumo Seipone, the Director of Health Services, said BONELA and the Zimbabwean inmates were wrong in arguing that the refusal to grant them ARV’s was made by the minister, as it was made by a nurse back in 2011.
In any case, she said, the nurse’s decision was rendered lawful by virtue of the Presidential directive No. 5 of 2004. She also said refusing to provide foreign prisoners with ARVs does not conflict with the national policy on HIV/AIDS and is not incompatible with the state’s duty of care.
“Government’s decision and the Presidential directive were not unconstitutional as alleged by BONELA. The foreign prisoners right to medical care is not absolute because prisoners are treated in accordance with the provisions of the prisons act and are entitled to medical care subject to availability, practicality, financially and reasonableness,” said Dr Seipone.
She said the National Aids Policy simply speaks about access to health services for all people in Botswana, and does not mention anything about treatment, the nature of such treatment or any obligation on government to provide such treatment.
She argued that the policy qualifies the circumstances under which provision of access to the said health services is to be undertaken through the statement “that notwithstanding government may confer preferential treatment on its citizens.”
She said the policy goes further to define persons who are eligible for ARV treatment as being “citizens of Botswana who meet the criteria established by government.”
Dr Seipone said the constitution further allows for discrimination in certain circumstances, more as it relates to non-citizens and people languishing in prison.
She added that the constitution permits for the invariable exclusion of certain persons’ rights. She accused BONELA of trying to mislead the court into believing that the policy prohibits discrimination when the policy is clear that preference will be given to citizens.
The state argued that the Presidential directive was motivated by national interest, especially lack of funds, especially since ARV’s are very expensive.
“Government is not able to provide treatment to all its affected citizens. To provide the same to foreign nationals, let alone those convicted of crimes, would result in a perception of irresponsibility to its citizens,” argued the AG’s.
Once again the issue of separation of powers emerged, with the state attorneys arguing that the BONELA application is incompetent as it wants the court to review a decision of the executive arm of government.
The state attorneys contend that this would amount to an encroachment beyond its bounds, an interference with an independent and separate arm of government, and consequently offensive to the doctrine of separation of powers.
“The executive is well within its power to make policies and directives that govern its nationals and those who reside within its boundaries. In this instance the executive acted lawfully and did not in any way contravene the constitution of the republic of Botswana. This application should be dismissed with costs,” argued the AG.
The state lawyers raised a few points in lime in response to the application filed by BONELA and the Zimbabwean prisoners.
They argued that the respondents were in breach of section 4 of the state proceedings act, which states that a statutory notice is a mandatory pre-requisite to every fresh application brought against the government.
They said the application also offends the provisions of Order 61 (8) which states that all applications for review must be brought within four months after the handing down of the decision complained of.
The state also said BONELA’s notice of motion and the filing thereof was incompetent as it should have been preceded by consent or leave of the judge.
In their replying affidavits, the respondents, Dickson Tapela, Mbuso Piye and Cindy Kelemi accused the AG’s of trying to frustrate ventilation of these important constitutional issues, saying the AG’s conduct justifies a punitive award of costs against them.
Through their attorney Tshiamo Rantao, BONELA insisted that the refusal to provide HAART to HIV positive prisoners and the Presidential directive are unlawful and in breach of section 3, 4, 7 and 15 of the constitution.
The accused government of failing to put up any facts regarding the practicality, availability, financially and reasonableness of providing HAART or other treatment to foreign prisoners. They challenged government explain the basis on which it could lawfully or justifiably restrict access to HAART or confer preferential treatment on citizens as opposed to foreign nationals, and to demonstrate to the court that they lack the resources to provide treatment to HIV positive foreign prisoners.