CoA to decide ARVs appeal

SHARE   |   Sunday, 26 July 2015   |   By Othusitse Tlhobogang
BONELA members after the ARV court case at the Court of Appeal BONELA members after the ARV court case at the Court of Appeal PIC: RICARDO KANONO

The Court of Appeal has reserved judgement in a case which government is appealing the judgement of the High Court in which they were directed to provide free antiretroviral (ARV) drugs to foreign inmates incarcerated in local prisons. Court of Appeal president Ian Kirby who is one of the five judges presiding over the land mark case said the judgement will be given at a date to be set by the court. 
Kirby said the judgment is reserved to allow for further reading on the matter before passing it. The state legal representative team led by Yarona Sharps are seeking to challenge the decision of High Court that ordered government to start providing free ARVs to foreign inmates.
In her argument Sharps said according to the judgment of the High Court it is like the government has failed on its obligation while in the actual fact they have not. The main argument for the state team is that there is no legal obligation binding government to provide free ARVs for foreign inmates.
Sharps also advanced that government is constrained by budgetary measures which make it difficult to provide free ARV’s to foreign inmates. She said the government is not financially stable to take such action because it is costly as well as unsustainable. Court of Appeal judge Justice Isaac Lesetedi however pointed that the court was not furnished with such information on how much it cost to provide such lifesaving medication to inmates. 
Advocate Gilbert Marcus who was standing in for Botswana Network on Ethics, Law and HIV/AIDS (BONELA) pointed the government’s refusal to provide ARVs for foreign inmates is an impediment to the prisoners’ rights. Marcus maintained that failing to provide ARVs for these prisoners does not only infringe on their rights but also goes against public health interest.
Furthermore Marcus pointed that the state has failed or intentionally did not provide further supporting documents on their heads of argument. He therefore said because of that lack of evidence before court the court should dismiss the case with costs. 
The case started in August 2014 when, two foreign prisoners and BONELA succeeded in a High Court challenge against the government’s policy refusing to provide HIV-positive foreign inmates with ARVs. The High Court ruled in favour of the two pointing that the policy violated Prison’s Act, the common law and the prisoners’ constitutional rights. This is exactly what BONELA is maintaining in its argument. They feel that the government’s act is an act of discrimination, the one which impedes on the rights of individuals.

The respondents (BONELA and the foreign inmates) opposed the appeal and asked court confirm the High Court’s order, in line with the relief sought by them in the notice of motion. They submitted that that is appropriate because the decision to refuse to enrol HIV-positive foreign prisoners on HAART, and the policy underlying that refusal, are in breach of the State’s duty, under the common law and in terms of the Prisons Act 28 of 1961, to provide adequate healthcare to prisoners without discrimination.They further argued that that obligation is bolstered by the provisions of the National HIV/AIDS Policy which, properly interpreted, requires the provision of HAART at State-expense to foreign HIV-positive prisoners.  "If it does not, then the Policy is unlawful and the provisions of the Prisons Act must prevail," they argued.
Government contends that they are entitled to withold HAART from HIV-positive foreign inmates because of the wording of a Presidential Directive that purports to allow free treatment to be provided to foreign prisoners in respect of “ailments other than AIDS”.  But they failed to place the Presidential Directive before this court and consequently could not rely on its terms, submitted lawyers representing the foreign inmates.  "In any event, the Directive must be interpreted so as not to exclude the provision of HAART to foreign prisoners.  If the Directive is not capable of such interpretation, then it is unlawful and ultra vires.The refusal to provide HAART to foreign HIV-positive prisoners is an unjustifiable limitation of constitutionally entrenched rights to life, equality, freedom from discrimination, and freedom from inhuman and degrading treatment," they said.


The foreign inmates are represented by Advocate Marcus, Advocate Isabel Goodman and Tshiamo Rantao, instructed by BONELA.

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