Govt �tricks� Mwale in ARV case
Mpho Mokwape | Friday June 26, 2015 16:30
The appeal was made a day after the judgment.
On Monday, Attorney Chuchuchu Nchunga Nchunga, wrote to prisoner Gift Mwale’s lawyers requesting a meeting, which he said, was in order for the government to comply with Judge Key Dingake judgment in favour of the provision of ARVs to foreign prisoners.
“In compliance with the judgment of Justice Dingake, in the above mentioned case, we wish to notify you that there is an urgent need to meet in the presence of our clients to agree on the practicalities of providing your client with the requisite medication (ARVs) as ordered by the court. In this regard kindly arrange with my secretary to arrange a mutually convenient time when we can meet to progress implementation. We would be grateful if you respond immediately upon receipt of his letter,” reads the letter.
However, a day later, Yarona Sharp, an attorney with the AGs chambers, filed government’s appeal against Dingake’s judgment. The appeal was filed shortly before 1100hrs last Tuesday.
The urgent appeal will be presented before Court of Appeal president Justice Ian Kirby on Tuesday. In the appeal, Sharp noted that government is unhappy with Justice Dingake’s judgment, and does not see a constitutional basis for Mwale’s claims.
The AG’s grounds of appeal are that the Dingake gravely erred in proclaiming that Mwale was being unfairly discriminated against and that discrimination was unfair because it serves no legitimate purpose and bears no rationale connection, the differentiation and the purpose.
“The court completely misdirected itself when it held that the discrimination that the applicant (Mwale) has suffered is plainly unlawful because it is not mandated by the constitution, particularly section 15,” she said.
Sharp also said that Justice Dingake erred in finding that Mwale had presented a compelling case and ought to succeed in the relief he sought. ‘‘The court did not appreciate the appellants’’ pleadings and the evidence adduced before it in stating that it is justified
The AG also in its notice is appealing the interlocutory ruling issued on April 23, 2015 saying the court erred in granting the ruling.
Justice Dingake had given the ruling, which pronounced that Mwale’s application was different from the one that was before Justice Terrence Rannoane.” He had pointed out that Mwale was only joined as respondent in a contempt of court brought by a civic organisation. “It becomes plain therefore that the application that the applicant has brought seeks wide ranging relief, fundamentally different from the one brought by BONELA in the contempt application. The cause of action and the relief sought is fundamentally different,” she said.
This was after the AG had made an application stating that Mwale’s application was the same as that before Justice Rannoane and that he will benefit from its judgment.
Mwale, who is backed by BONELA and currently serving a seven year sentence for robbery, had filed an urgent application demanding among other things, to be either released from jail so that he can fend for himself and obtain ARV drugs, or that the state be forced to provide him with the treatment.
Mwale had filed the application citing that he was diagnosed with HIV while in prison, and it had progressed to full-blown AIDS, which had led him to self-enroll on treatment which set him back P3,500 per month. He had sought to be enrolled on government’s ARV programme as he said could no longer foot the costs for the expensive treatment as it had exhausted his savings.
Mwale’s application was lodged concurrently with that of other foreign inmates living with HIV, who had approached the courts seeking that government be held in contempt for defying an order issued by Justice Sechele in August, which had stipulated that they be provided with free ARV like local prisoners.