Denial of ARVs, is denial of right to life – Justice Dingake


In another landmark case involving a foreign inmate against the state on the provision of Anti-retroviral (ARV’s) drugs, Gaborone High Court has yet again ordered that he be given the life saving drugs.

Justice Key Dingake of the Gaborone High Court yesterday ordered that government provide Zimbabwean inmate, Gift Brendan Mwale with the ARVs with immediate effect. Dingake’s order follows the one that was issued by Justice Bengbame Sechele in August 2014.

Sechele ordered that two foreign prisoners who had taken the government to court through a civic organisation, as well as other foreign inmates who qualified for the life-saving medication under the Botswana Treatment Guidelines be provided with free ARVs. When passing judgment yesterday, Dingake stated that the denial of medication to HIV positive foreign prisoners was a denial to their right to life, which is enshrined under the Constitution of Botswana.

“The denial to medication to HIV inmates is a denial to life of which the government has the obligation to protect anyone within its borders from inhuman treatment and degrading,” he said.

Justice Dingake further said the government was in violation of its own Constitution and also the international law on human rights saying that the courts in Botswana rely heavily on international law, which protects human rights.

“The Constitution needs to protect anyone and the protection of prisoners is the protection of the whole nation because failure to give prisoners the life-saving drugs could endanger the whole nation.

There is a relationship between HIV/AIDS and human rights and as courts we need to uphold human rights laws,” he said.

He said until the higher courts overturn Justice Sechele’s judgment that ordered for the provision of ARV’s to foreign inmates, the state should comply, and stop being insensitive.

Dingake pointed out that the state should also take into account that it recently ratified its law on torture and cruelty of all human beings therefore it is legally bound to do what is right.

Mwale who is serving a seven-year sentence for robbery had demanded among other things, to be either released from jail so that he can fend for himself and get HIV drugs, or the state provide him with treatment.

He had filed the application citing that he was diagnosed with HIV while in prison and had progressed to  full blown AIDS, of which he enrolled himself on the treatment costing him P3,500 per month. He also cited that he got to know about Sechele’s order through a savingram that was circulated in prison.

In his application he also sought to be enrolled in the ARV programme since it was expensive and that he had exhausted all his savings and could not afford it anymore. 

Mwale’s application came at a time when Justice Sechele was presiding on the other court case involving other foreign inmates living with HIV.

However the government has appealed Sechele’s judgment and the matter is pending before the Court of Appeal, and will be heard during the July Session.

Editor's Comment
What about employees in private sector?

How can this be achieved when there already is little care about the working conditions of those within the private sector employ?For a long time, private sector employees have been neglected by their employers, not because they cannot do better to care for them, but because they take advantage of government's laxity when it comes to protecting and advocating for public sector employees, giving the cue to employers within the private sector...

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