Prisoner’s medical transfer appeal to SA dismissed
Mpho Mokwape | Wednesday September 3, 2025 10:04
The court stressed that the matter involved questions about security, government authority, and the responsibilities of different departments and took the decision not to interfere with what had been set, though it recognised that it was the duty of the government to identify and implement any viable alternatives to help the inmates.
'The court does not have the power to override or second-guess decisions made by the Executive branch of government, unless those decisions are proven to be unlawful,' the CoA noted.
The prisoner, Chipo David, had requested to be sent to South Africa for reconstructive surgery that was not available in Botswana, and it came up that another prisoner had also made a similar request.
In both cases, the prison authorities had reportedly explained that such transfers had been stopped since April 2016 due to serious security concerns.
In the recent judgment, Justice Mercy Garekwe said the court took note that the decisions to stop the transfer of prisoners to outside the country were made by senior government officials and departments responsible for security, not by the courts.
She emphasised that as the CoA, it does not have the power to override or second-guess decisions made by the Executive branch of government, unless those decisions are proven to be unlawful, and that in the present case, David did not challenge the lawfulness of the government's decision to stop transfers, so the court could not review it in detail.
Garekwe stated that emails and meeting minutes from prison and hospital officials in the court record showed that the matter had already been handled by the relevant authorities.
'These documents made it clear that decisions about prisoner transfers for medical treatment involved complex security issues and required the input of several departments,' she said.
She also noted that when a previous court order was made in December 2017 (by the then Acting Judge Tshweneyagae), it was unclear whether the judge had all the information about the suspension of medical transfers, and that if she didn’t, the order might not have taken that key fact into account.
Although the appeal was dismissed, she recognised that David’s medical condition is serious and requires attention, urging the prison authorities to make every effort to find other ways to treat the prisoner within Botswana or at least reduce his suffering.
She explained that no information has been placed before the court as to whether alternative modalities of medical management exist that might, at a minimum, alleviate the prisoner's suffering in the absence of such specialised surgical intervention.
'It is therefore the court's earnest expectation, though not imposed as a binding directive, that the government redouble its efforts to identify and implement any viable solutions to alleviate the suffering of the prisoner in so far as practicable his plight, consistent with their obligations under the law and principles of humane treatment,' Garekwe said.
However, Garekwe maintained that this was only a recommendation and not a legal order and stressed that only the relevant government departments have the expertise and authority to decide on such sensitive matters, and that the judiciary must respect the boundaries set by the Constitution.