Court of Appeal Reserves ARV Judgement

The Court of Appeal, led by judge president, Justice Ian Kirby has reserved judgement of the case in which government was appealing two judgements issued by different judges of the Gaborone High Court.

The judgements ordered that foreign prison inmates who qualified for ARV treatment should be provided with it just like their Batswana counterparts.

Justice Kirby said judgement on the matter would be delayed and not proclaimed with others on July 30 because the panel would have to read a lot of material that had been filed with the court, adding that the issue was complex.

In the first case, the government was appealing a judgement issued by Gaborone High Court judge, Justice Bengbame Sechele last year ordering the state to provide free ARV’s to foreign inmates, Dickson Tapela and another who had successfully sued the state with the help of BONELA.

The respondents had challenged the presidential directive of 2004 which stipulated that only local inmates should be provided with ARV treatment.

They argued that it was undue discrimination contrary to the Prison Act which does not condone discrimination, noting that it was also a violation to the right to life which was protected by the constitution of the country.

The inmates won the case but the government appealed the matter.

In the second case, another foreign prison inmate, Brendon Mwale, represented by Messrs Kabo Motswagole and Friday Leburu also approached the court demanding that he be provided with ARV treatment as per judge Sechele’s ruling moreso that he qualified because he falls within the threshold of national HIV/AIDS treatment guidelines.

The application succeeded but the state immediately appealed the ruling which was made by Judge Key Dingake.

Recently Justice Kirby agreed to consolidate the two appeal cases after the state lead counsel, Ms Yarona Sharp applied that they be consolidated because they were similar in nature.

Motivating her case, Ms Sharp said the state has not violated any of the inmates’ rights because though it does not provide them with ARV treatment it provides them with other medications for various ailments.

She further said the presidential directive was motivated by lack of funds although she did admit that she has not filed anything that explicitly detailed the costs associated with the provision of such lifesaving drugs.

However, the lead counsel for Tapela, Advocate Gilbert Markus from South Africa and the counsel for Mwale, Mr Motswagole said the matter was straightforward in that the Prisons Act was clear because it does not discriminate against racial lines and supersedes the presidential decree or directive which was not even a law.

They said the HIV/AIDS policy which was passed by Parliament should also not be disregarded as it plays an integral part in their case.

The two counsels, who were brief in their submissions and stood by their heads of argument which they had filed with the court, said the appellant also failed to justify why the state was in a position not to provide free ARV to the respondents except to only say it was unattainable.

Source : BOPA