Two Zimbabwean prisoners who successfully sued the government for refusing to provide them with free ARV want two responsible Permanent Secretaries (PS) jailed for contempt of court.
Last year August Justice Bengbame Sechele ordered the government to provide foreign inmates with ARVs free of charge.
Two Zimbabwean prisoners, with the help of Botswana Network on Ethics, Law and HIV/AIDS (BONELA) sued the government for refusing to provide them with free ARVs. Sechele ruled in their favour and agreed with the foreign inmates that refusal to provide them with ARVs was unconstitutional and a breach of human rights.
This week the two prisoners (names withheld) through their attorney Tshiamo Rantao filed an urgent application to ensure compliance with the court order.
According to the founding affidavit of Keikantse Phele, a BONELA legal advisor, this matter is urgent because the applicant [BONELA] only became aware of the fact that the Permanent Secretaries of Health [first respondent, Shenaaz El-Halabi] and Justice, Defence and Security [second respondent, Augustine Makgonatsotlhe] had not been complying with the terms of Sechele’s order last Wednesday.
“The whole point of civil contempt proceedings is to ensure compliance with court order.
This means that this application ought to be determined first before the stay of execution can be heard and determined by this Honourable Court because, as the common law on contempt of court provides, ‘‘you comply first and argue later,” said Phele.
She said the ongoing failure to treat foreign prisoners puts their lives at risk and undermines public health.
“Everyday that passes without medication is akin to a death sentence for a deserving foreign inmate.” She said the respondents have not taken court into their confidence by showing how many inmates currently deserve to be provided with ARVs and how much that would cost government so that the court could begin to understand their financial strain argument.
“In fact, it is too late to make that argument in the replying affidavit and, at any rate, the judgment of Sechele also finds that they have failed to do so in the main application,” she said.
In the application, Rantao wants Sechele to order that the two government officials are held in civil contempt of the Sechele’s judgment, in that they refused to enrol on Highly Active Antiretroviral Therapy (HAART) non-citizen inmates whose CD4 cell counts have reached the threshold.
Rantao also want the El-Shenaaz and Makgonatsotlhe to comply forthwith the court of August 22, 2014. He also wants the Attorney General to be ordered to file and serve a report showing that the respondents have compiled or are complying with the court order.
Rantao said should the permanent secretaries fail or refuse to comply forthwith, they should be committed to prison for contempt of court, and pay the costs of the application on an attorney and own client scale.