A policy approved by Parliament, that denies provision of ARVs to foreign inmates, is in contravention of the Prisons and Rehabilitation Act.
This came to the fore at the Court of Appeal yesterday by the defence lawyers in a case in which the government is appealing last year’s High Court ruling that ordered it to provide ARVs for inmates.
To justify the appeal, state attorney Yarona Sharp argued before the bench that there was a policy in place that exempted foreign inmates from getting treatment and as such the respondents in the matter had failed to challenge that policy.
“In agreement with tha, government is bound by a policy approved by Parliament and the policy as of now is not being challenged by the respondents,” she said.
Sharp argued that they were working under a Presidential Directive Order issued in 2004 and reviewed in 2010 that did not allow the provision of ARV’s to foreign inmates as it was expensive.
“The Presidential order was clear in the sense that it allowed the provision of treatment to non citizens for any ailment except HIV/AIDS due to the budgetary constraints,” she said.
She further said that the government also could not act on the order because by the time it was issued the two applicants at the time who were represented by Botswana Networks on Ethics, Law and HIV/AIDS (BONELA) were already out of jail and no longer in the country.
In response BONELA senior counsel Gilbert Marcus and attorney Kabo Motswagole representing a foreign inmate argued that the state had failed to produce substantive evidence in regards to the budgetary constraints.
Marcus said the government had failed in three different litigations concerning the same matter at the High Court to show how much they would spend if they were to provide treatment. “There have been three litigations for the same matter and the government did not even produce any budget figures so we can understand when they say its expensive and at the same time they have failed to produce any copy regarding the Presidential Directive Order they have been referring to,” he said.
Marcus said the withholding of treatment was irrational adding that it posed a danger to the very citizen inmates the government has tried so hard to protect.
“Withholding of HAART makes HIV positive inmates more vulnerable to opportunistic infections including Tuberculosis, which is the leading cause of death in people living with HIV/AIDS and also treatment of opportunistic infections is more expensive in the long run than the actual treatment,” he said.
Motswagole also argued that the government had failed to establish that they were obligated under the Constitution to provide such treatment regardless of the argument of the budget.
“The Prisons and Rehabilitation Act that was approved by parliament is also non discriminatory and should be applied as long as it has not been amended,” he said.
In early 2014 two Zimbabwean prisoners, assisted by BONELA, had approached the courts and sued the government for refusing to provide them with free ARVs while providing them at no cost to its citizens.
BONELA had argued that by denying foreign inmates the treatment, the government was violating their constitutional right to equality, dignity and non-discrimination.
BONELA also accused the government of adopting a contradictory stance as it refused to provide foreign inmates with ARVs, but continued to give them free treatment of opportunistic diseases like tuberculosis and pneumonia.
They had also argued that refusing to provide foreign inmates with ARVs actually puts other inmates at risk of re-infection and becoming resistant to ARV treatment, given the sexual activity in the country’s prisons.
The CoA bench of Justices Ian Kirby, Monametsi Gaongalelwe, Isaac Lesetedi, John Foxcroft and Lord Arthur Hamilton reserved judgment to a later date. “This is a constitutional matter involving so many litigations and case studies therefore the bench would need to go deeper in its reading and deliberations for a fair judgment,” Kirby said.