High Court Judge Key Dingake last week rebuked the government of Botswana for failing to obey an order of the court compelling it to provide HIV positive foreign inmates with Highly Active Antiretroviral Therapy (HAART). In a strongly worded judgment read to a packed courtroom on Thursday, Justice Dingake warned the government of Botswana that its continued disregard for the orders of the court will breed contempt of law and incite anarchy.
“If the government becomes a law breaker, it breeds contempt for law, it invites every man to become a law unto himself, and ultimately invites anarchy,” he said.
The Judge was delivering judgment in a case in which a Zimbabwean national, Gift Brendan Mwale was challenging the decision of the Minister of Health to deny him access to HAART even though his health condition was deteriorating; and his CD4 count was at 266, below the threshold of 350, which qualifies him for enrolment. In his application, Mwale wanted the court to send the Assistant Minister of Health and his Deputy to jail for seven days for denying him access to HAART. Justice Dingake reminded government that if it is unhappy with the decision of the courts, it is entitled to appeal and approach the court for stay within a reasonable time after receipt of the adverse decision. However, he warned that the option to ignore a court order because an appeal has been filed was not open for any litigant, no matter how unhappy. He further reminded the state that it is not a special litigant that is entitled to choose whether to obey or not to obey the court.
“It is important and in the public interest that government must lead by example in obeying orders issued by the country’s judiciary. Government should stop exerting tension between the judiciary and the executive as they all have the responsibility to ensure that all human rights laws are respected,” he said.
He reiterated the courts’ position that once a prisoner contracts HIV; the government is obliged to immediately carry out an assessment of whether such a prisoner is eligible for enrolment for HAART.
“Government cannot behave as if nothing has happened with the knowledge that a prisoner is HIV positive. Government cannot be allowed to exacerbate the prisoners’ condition by being indifferent, insensitive or simply inflicting pain and suffering by dragging its feet before coming to the rescue of a person it has imprisoned,” he said.
Violation of the constitution
Judge Key Dingake said the decision of the Minister of Health to deny Gift Brendan Mwale HAART was in violation of the equal protection clause of the constitution of Botswana, which deals with violation and non discrimination. He added that by denying foreign inmates HIV treatment, government was violating sections 3, 4, 7 and 15 of the national constitution which deal with non-discrimination, the right to life and prohibition against torture and inhuman and degrading treatment.
He acknowledged that Mwale had already served four years of his seven year jail term for robbery at Gaborone Maximum Prison. In the period of his incarceration, said Justice Dingake, Mwale contracted HIV and his condition deteriorated to a point where his viral load reached the appropriate level for ARV treatment. He further said Mwale was forced to spend P3, 500 from his pocket per month on ARV medication. He then ordered the state to avail requisite medication (ARV’s) to Mwale and pay the cost of the application.
Absence of international treaties on HIV
Justice Dingake also said the absence of HIV specific international treaties is a serious indictment on the international community, which has turned a blind eye to a matter that is so deserving of their attention. This failure by the international community to fashion appropriate treaties, said Justice Dingake, confirms wide spread concern by human rights practitioners and scholars that HIV/AIDS is embedded in the discourse of failure of legislation, jurisprudential and more significantly failure of our global leaders.
“The case of Mwale is a typical example of how our leaders are blinded by the ‘soft laws’ that Botswana relied on, which are not actually binding. However ‘soft law’ although not binding may sometimes have normative value because in certain circumstances it provides evidence of the existence of the rule or the emergence of opinio juris,” he said.