Tuesday, June 22, 2021

Hollow victory for HIV positive foreign prisoners

HIV positive foreigners who are doing time in Botswana prisons are unlikely to receive antiretroviral (ARV) treatment despite a High Court Order that government should provide them with medication.

In what comes across as Pyrrhic victory for the prisoners who need the life saving drugs, Gaborone High Court Judge, Terrence Rannowane last week dissmisse an urgent application by the Government to have a stay of execution of an order granted by High Court Justice Bengbame Sechele in August 2014, in which the Government was ordered to provide antiretroviral (ARV) treatment to foreign prisoners. The court however would not take punitive action against government for ignoring the order. The August 2014 order is currently on appeal in the Court of Appeal. Dismissing the urgent application, Rannowane noted that the court order sought to be stayed had been in existence for seven months and the government was aware of this fact.

“Any urgency perceived in this matter is self created. I find therefore that the applicants have failed to prove circumstances that render this application urgent,” he said. Rannowane said for seven months the government took no steps to stop the order’s execution but only sprang into action when a certain foreign inmate brought an application to be enrolled for highly active antiretroviral therapy (HAART). He said that from court records it is clear that the 22 August judgement of Justice Bengbame Sechele which ordered government to provide ARVs to HIV foreign inmates has been in force since its pronouncement. “The fact that the applicants have launched an appeal to have it set aside does not change the fact that it is and has been in force,” said Rannowane.

The judge noted that it is equally important that when one has appealed the court order it does not relieve that individual of the duty to relieve that decision or order. He said as matter of law, Sechele’s order of 22 August has been liable to be complied by the government whether or not they agreed with it or questioned its legal validity. The fact that they ignored it does not make it any less legal, the judge said. “In my view it is very unusual and very surprising that a litigant who seeks to lawfully enforce his right under an existing court order is viewed by the applicants as creating a crisis situation requiring an urgent application to frustrate and pre-empt the objective of such an application,” said Rannowane.

He said if Government felt that its was not ready to implement the 22 August 2014 order then, it should have made an urgent application to have its implementation stayed. “The applicants have known about this court Oder for roughly seven months and did not have it stayed until now. The urgency is self created. There was nothing disclosed in the papers before this court to convince it that the applicants experienced any difficult in experiencing any difficulty in acting earlier,” said Justice Rannowane.

In a related matter, Rannowane also dismissed an urgent application by Botswana Network on Ethics law and HIV/AIDS (BONELA) to have the government t be held for civil contempt in that it has failed or refused to enrol on HAART non citizens whose CD4 cell counts have reached the threshold. Rannowane said the judgement by Justice Sechele that government should provide prisoners with ARVs, is an important conferring rights of access of foreign inmates to critical life-saving drugs; BONELA lost interest and for seven months never bothered to ascertain whether its clients were getting drugs.

“I have some considerable disquietment about the claim that the applicant (BONELA) became aware that the order of the 22 August 2014 judgement was not being complied with on 01st April 2015 when they were served with papers for stay of execution. It is in my view inconceivable that the applicant that the applicant would embark on such a long and gruelling legal battle to have ARVs treatment availed to its clients and after obtaining a favourable judgement fail to make a follow up to ensure that the court order was complied with,:” said Rannowane.

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