Assuming that my government does go ahead and say we are no longer providing ARV drugs for free or alternatively my government says to Batswana, let us share the costs of the ARV treatment? Will these actions be lawful or constitutional?
It is important to point out that we do not have socio-economic and cultural rights enshrined in our constitution. These are human rights that aim to secure for all members of a particular society a basic quality of life in terms of food, water, shelter, education, health care and housing. In my view, these rights are fundamental to the quality of life. Imagine life without water, food, shelter and above all, health care? My submission is that these are the sort of rights that make the right to life meaningful. All the rights that we have as human beings emanate from the mere fact that we have life. If you cease to live, you cease to have the right to life. Without sounding like I am downplaying the importance of rights that are protected and recognised by the constitution – the civil and political rights - it seems to me that one can still survive without them. In fact, many have survived without them. For instance, one can survive without the freedom of assembly, association, speech and even the right to vote. But can we really survive without food and/or shelter? How about living without medicines or treatment, especially life saving drugs such as ARV drugs?
If I were to ask you, which of these types of rights will you go for over the other, which ones would you immediately choose? Certainly, and without any shadow of doubt, I would go for the socio-economic and cultural rights so that I am alive to pursue the political and civil rights. But why do many governments, including mine shy away from doing the obvious? That is, ensuring that the rights that matter to the majority are enshrined in our constitution. Governments are afraid of responsibility and accountability. Should these rights be part of our constitution, it will mean that our government is obliged, to the extent that it can, to ensure that everyone in Botswana has rights such as the right to good health and shelter. We have seen our neighbours in South Africa, through the Treatment Action Campaign, (TAC) successfully take their government to court over provision of ARV drugs. In Botswana, should government withdraw the ARV supply, it will be difficult if not impossible to make a case for the violation of the right to health. This right, as the lawyers would say, is not justiciable. It simply means it is not a basis to take the matter to court for redress. If you do, your matter would naturally be thrown out by the courts.
As it currently stands, our government is doing Batswana a favour by providing ARV drugs for free. Government is not under any obligation in law to do so. But should we really leave our lives in the hands of politicians? Assuming that tomorrow, the government decides to stop giving free ARV drugs, and scales up supporting constituency football, because it thinks Batswana drink too much alcohol and it serves us well to have contracted HIV and we therefore have to pay the ultimate price. Would that be justified? NO! Priorities of governments all over the world change and normally the leaders drive what they believe in. In the absence of protective laws, the people are left in weak positions to champion their cause. I submit that it is high time Botswana makes socio-economic and cultural rights part of their laws so that government can be held accountable. My next blog will be about various options that are available to my government to avert or mitigate against stopping free ARVs supply.