Rannowane Dismisses ARV Case

| May 4, 2015

Justice Terrence Rannowane of Gaborone High Court has dismissed a case in which the Attorney Generals (AGs) wanted the court to grant a stay of execution order in relation to a ruling directing government to provide free ARV to foreign prison inmates.

The AGs represented by Yarona and Neo Sharp had argued that it would be illogical for the government to start rolling out Highly Active Antiretroviral Therapy (HAART), while at the same time government had appealed the decision and was awaiting a roll call of July 2015 where the matter will be decided once and for all.

However, in his judgement of April 29, 2015, Justice Rannowane noted that since the application was brought under urgent motion by the applicant, this was a self- created urgency as the case could be filed in a normal way. He therefore dismissed the case and said he will furnish the full judgement in due course.

Judge Rannowane also dismissed contempt of court application made by Botswana Network on Ethics, Law and HIVAIDS (BONELA), noting that the applicant ought to have known that the government had not been providing ARV to foreign prison inmates in the past seven months.

He, therefore, said the applicants had been sleeping on their rights for seven months and thus dismissed the application with costs. Full judgement and reasons will be availed in due course.

In the main case during submission of the arguments, Yarona argued that at the moment the government is not financially apt to roll out such lifesaving medication because it is costly and unsustainable, hence asked the respondents, BONELA to wait for the next two months.

Yarona, who was the lead state counsel, noted that they have also brought this application under urgent motion after learning that one foreign inmate has lodged a contempt of court application that sought the permanent secretaries with the Ministries of Health and that of Defence, Justice and Security to be forced to comply with the order or otherwise face civil imprisonment.

Last year in August 22, Judge Bengbame Sechele ordered the government to provide foreign inmates with free ARVs after two Zimbabwean prisoners with the assistance of BONELA sued government for refusing to provide them with free ARVs.

In his ruling Judge Sechele agreed with the litigants that the refusal to provide them with ARVs was unconstitutional and a breach of human rights, henceforth ordered that all foreign inmates who have reached a threshold of those with CD4 count illegible for ARVs treatment should be provided.

In response then attorney Tshiamo Rantao said there was no urgency on the part of this applicant because the government waited for seven months and only came running to the court when it learnt that an inmate has filed contempt of the court application after failure by the government to execute the order.

Mr Rantao said the so called urgent application was self-created purely to frustrate the application by the foreign inmate who wanted the two permanent secretaries to comply with the order and nothing else.

Mr Rantao warned that further delay by the government to provide such medication was putting the lives of such inmates at risk because even in the medical practitioner’s report in the main application has proved that and was never challenged.

He contended that it would be wrong and setting a bad precedent for the court to listen to litigants whose hands are dirty and therefore said the jurisprudence of Botswana and abroad dictates that you obey the order and later argue.

Since the respondents had also filed an urgent application for contempt of court, Mr Rantao said their application was not in bad faith because BONELA had just been served with a stay of execution application and suddenly became aware that the government has not been complying with Judge Sechele’s order.

Source : BOPA

Source : Botswana Daily News

Category: Medical/Health Care

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