Gaborone High Court Judge Key Dingake yesterday slammed the government of Botswana for disobeying orders issued by the court, saying such action will incite anarchy and later come back to haunt the state.
Justice dingake was delivering judgement on a case in which a foreign in-mate, Gift Ngwale was suing the state for failing to provide him with Anti Retroviral drugs. When delivering judgement, Justice Dingake ordered the state to pay the costs of the suit and learn to obey court orders, saying government is not a special litigant that has liberty to disobey court orders as it wishes.
He added that there is no reason why government has failed to comply with a court order that was previously issued by another High Court Judge, Bengbame Sechele compelling government to enrol foreign inmates on ARV treatment. Justice Dingake said the case was very straight forward because Ngwale contracted HIV/AIDS while incarcerated at Gaborone Maximum Prison, where he was serving a seven year prison sentence for robbery.
“The accused had approached the Ministry of Health (MoH) and informed them of his condition but they took the matter lightly. There is evidence before this court that the complainant, who is of Zimbabwean nationality, qualifies for ARV treatment following government testimony that his CD4 count stand at 266,” said Justice Dingake.
He further warned the government of Botswana to stop breaking the law, saying that will incite anarchy and later come back to haunt the state. Justice Dingake further called on the government of Botswana to stop being inhuman and follow the national constitution by providing medication to all people irrespective of their nationality. He then issued an order for the state to provide Ngwale with ARV treatment and stop violating section 3, 4 and 15 of the constitution of Botswana.
In August last year, another High Court Judge Bengbame Sechele ordered the government of Botswana to provide non-citizen inmates with ARV after two Zimbabwean inmates, Dickson Tapela and Mbuso Piye, together with Botswana Network on Ethics Law and HIV-AIDS (BONELA) brought a constitutional challenge against the state’s decision not to provide them with ARV treatment. At the time, 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 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 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.
“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.
However, government failed to comply with the court order, and in May this year BONELA applied for two senior government officials to be jailed for contempt of court, but lost the case as the judge felt that the matter was not urgent.