Gov�t to comply with Prisons Act in ARV provision
Mpho Mokwape | Thursday August 27, 2015 17:24
The Prisons Act and Regulations through some of its Sections states that a prisoner is any person, whether convicted or not, under detention in a prison, and provides that all prisoners shall be subject to the provisions of the Act and that a medical officer shall be responsible for the health of all prisoners and shall cause all prisoners to be medically examined at such times as shall be prescribed.
The law provides that a medical officer shall examine all prisoners who complain of illness and treat all prisoners. The CoA made the order when dismissing an appeal by the government, against provision of ARVs to foreign inmates.
Judge president Ian Kirby said the state should fully comply with the law and regulations as there were outlined portions that confirmed that there was to be no discrimination between the prisoners whether foreign or local. “There is to be full compliance with the Prisons Act and Regulations by the provision to the applicant/s or such of them as remain in the custody at the date of the order, and to other HIV positive foreign prisoners, on the same basis as to citizen prisoners, of free testing, assessment and treatment with ARVs and HAART where appropriate,” he said.
Kirby explained that the matter was not necessarily a constitutional matter, saying that under the common law, as under the Prisons Act and its regulations, prisoners were entitled to be provided with basic health care, which equates to the notion of adequate healthcare, therefore it was not necessary to look to the constitution.
He explained that under the law and regulations, there was no mention of citizenship or place of origin, adding that part five of the regulations also provided for other entitlements of prisoners for which the state assumes responsibility upon taking a prisoner into its custody.
“In Botswana, not withstanding that there is no constitutional right to healthcare, as there is in South Africa and some other countries, the Prisons Act and its regulations provide the statutory embodiment of those common law principles,” he said.
On the defence that the state was acting on a presidential directive to withhold treatment, Kirby said the argument could not be sustained because the directive was not a law, and that it was not even produced before the court for a better informed discussion.
“Before us is only an administrative direction given by the permanent secretary by means of a savingram, certainly that does not amount to a law and in any event, Presidential Directives convey government decisions, taken by president acting on the advice of the cabinet,” he said.
Justice Kirby also dismissed the state’s contention that they were not in a position to afford treatment for foreign inmates.
He said no evidence was placed before court of the material facts upon which it would be necessary to base a finding that the provision of HAART to non- citizen prisoners would be unaffordable.
“We have not been enlightened on the number of foreign inmates suffering from HIV/AIDS in our prisons at present. In both appeals we have before us only three prisoners. We have not been provided with the comparative cost of treating the opportunistic illnesses and infections contracted by prisoners who are HIV positive and are not enrolled on HAART,” he explained.
He further said there was no evidence on the cost of treating other patients to whom HIV or other illnesses such as TB were passed by foreign prisoners as a result of not being enrolled on HAART. He further said that there was no suggestion that the state’s budget for care of prisoners was made between funds allocated in respect to foreign inmates.
“All we have is a statement that the provision of HAART to foreign inmates is unaffordable. That cannot suffice,” he said.
Nine hundred and nineteen foreigners are imprisoned in Botswana.