High Court Judge Bengbame Sechele on Friday ordered the government of Botswana to provide non-citizen inmates with Highly Active Anti-Retroviral Treatment (HAART). Delivering judgment in a case in which 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, Justice Sechele said such a decision was a violation of the applicants’ constitutional right to life as guaranteed by sections 3, 4, 7 and 15 of the constitution of Botswana.
He declared government’s decision as invalid and set it aside, saying the state has a duty to provide inmates with basic health services. He also declared that the state’s savingram of 26 March 2004, which sought to exclude non-citizen inmates from HAART, was irrational and invalid. Justice Sechele ordered that all non-citizen inmates whose CD4 cell counts has reached the threshold for HAART should be enrolled under treatment guidelines on HAART. The state was also ordered to bear the costs of the application.
Justice Sechele said the presidential directive on which the decision to exclude foreign inmates from HAART was based was never put before him. Instead, he said, the state attorneys produced a savingram from government confirming approval of provision of free treatment to non-citizen inmates suffering from ailments other than AIDS. He said AIDS on its own is not an ailment but a conglomeration of opportunistic infections that descend on an HIV infected person whose immunity has been compromised, adding that the savingram only excludes foreign inmates whose condition has deteriorated to the clinical stages known as AIDS and not necessarily those who are HIV positive.
“An HIV positive person is not suffering from AIDS merely by being HIV positive,” he said.
He added that withholding HAART from non-citizen inmates would enable their HIV to replicate and thereby relegate them to the terminal stage known as AIDS. He said HAART is not only a medical necessity but a life saving therapy, the withholding of which will take away a constitutionally guaranteed right to life.
“I must state that constitutional challenges are matters of high importance and the court will be less inclined in matters such as this to lay emphasis on technical inelegance. A party who seeks shelter under the sanctuary of the constitution should not lightly be turned away,” said the Judge.
He faulted the state for failing to provide evidence of a report from a medical officer from the prisons department detailing his findings on the circumstances connected with treatment of the applicants or any information that could support their argument that provision of HAART to non-citizen inmates will place an undue strain on the state’s budget. The Judge also said the state had failed to provide information on the number of non-citizen inmates who require HAART enrolment and the costs associated with such enrolment as well as information that could juxtapose the costs of providing HAART to that of treating recurrent opportunistic infections on non citizen inmates.
Justice Sechele also shot down the moral argument raised by the state to the effect that the foreign inmates were convicted criminals who should not benefit from their crimes by enjoying free HAART treatment at the expense of those they have wronged, saying such an argument loses sight of the factor that incarceration and deprivation of liberty is all that was subtracted from the constitutional rights of these people.
“Punishment in the form of imprisonment equalizes all inmates regardless of their status and place of origin. It is impermissible for the state to indirectly extend the limits of punishment by withholding certain services to which inmates are lawfully entitled on account of their status as convicted non-citizen inmates,” said Justice Sechele.
He added that the assertion that they should not be granted treatment because they are convicted criminals also casts aspersions on the state’s position that treatment was withheld because of lack of resources.
“The deprivation of HAART treatment to non citizen inmates runs counter to the letter and spirit of section 4 of the constitution and is unlawful,” he said.
He added that it would be wrong for Botswana’s courts to interpret legislation in a manner which conflicts with the international obligations that the country has undertaken. Justice Sechele also said the non-treatment of foreign inmates poses a danger to the very citizen inmates that the state is trying so hard to protect.
“Upon contracting opportunistic infections the costs of treatment will be escalated. It can never be in the public interest nor can it ever be reasonably justifiable in a democratic society that provision of life saving medication like HAART is withheld with the ultimate result that the group of people so deprived become more infections to others or die in our hands. The actions of the state in so far as they deny non-citizen inmates access to HAART enrolment are unlawful,” he said.