Mwale�s fate in Dingake�s hands
Mpho Mokwape | Wednesday April 29, 2015 18:00
The judge is to deliver a ruling in the case in which Mwale wants the government to either provide him with free Antiretroviral drugs or free him from jail so he can find the treatment for himself.
Gaborone High Court judge Key Dingake yesterday reserved judgment in the case in which a Zimbabwean inmate, Gift Mwale, wants the Botswana government to provide him with free antiretroviral treatment or have his sentence squashed to fend for himself.
Mwale, currently serving a 10-year sentence for robbery, demands to be released from jail so that he can seek life-saving drugs.
The substantive matter was argued yesterday before Dingake after being marred by side litigations for a long time, including Mwale being ordered to produce his CD4 count to back his case.
During their submissions, Mwale’s attorneys Kabo Motswagole and Friday Leburu said they were open to the idea of deportation of their client.
Motswagole said if the government could not comply with the August 2014 order granted for the provision of ARVs to foreign prisoners, it was best for their client to be released.
“We are not opposing the idea of him being released because at the end he wont be in the care of the government and he can fend for himself but while he is still in their care he is entitled to be treated equally and be given the drugs,” he said.
Motswagole said the refusal by government to provide treatment was a constitutional violation of Mwale’s rights.
He said his client was being subjected to torture and human degrading by the government. Instead, said the lawyer, Mwale should be treated equally under the law regardless of his citizenship.
State attorney Yarona Sharp did not counter the argument of violation of the inmate’s rights. She said she was in agreement with Mwale’s attorneys as par outlined in the 2014 court order.
“The 2014 order by Bengbame Sechele have outlined the violation of the inmate’s rights for withholding treatment but as of now the determination would be whether he is entitled to treatment and that would be determined in pending judgment before another Judge and in the up coming appeal that we have lodged before the Court of Appeal,” she said.
However, Sharp said the government was dissatisfied with the court order, hence they recently applied for stay of execution and the appeal at CoA coming in the July session.
With regards to cost of the application, Sharp said should the judgment not go in their favour, the judge consider giving them fraction of the costs.
“We should be given fraction of the costs because had the applicant’s attorneys put their house in order and organised their papers we could have not gone this fair,” she said.
Mwale’s application comes when foreign inmates living with HIV are in court seeking the government to be held in contempt for defying an order issued by Justice Sechele in August that they should be provided with free ARV like local prisoners.
However the state made an application for stay of execution arguing that it was not sustainable to provide treatment to foreign inmates and that the matter has to be determined at the Court of Appeal.
Mwale’s fate lies in both Justice Terrence Rannoane’s judgment to be delivered today Justice Dingake’s reserved judgment.