HIV-positive Zimbabwean prisoners and the Botswana Network on Law and HIV/AIDS (BONELA) challenged the Botswana government’s refusal to cover the cost of anti-retrovirals (ARVs) for non-citizen prisoners. The case was consolidated with an appeal against contempt proceedings through which another HIV-positive Zimbabwean prisoner sought to enforce the lower court’s order that non-citizens meeting the treatment criteria be provided with ARVs.
The Ministry of Health has issued an internal directive ordering the provision of ARV treatment to non-citizen prisoners. BONELA has reported that since the judgment was delivered it has not received any complaints from non-citizen prisoners regarding denial of ARVs.
According to UNAIDS (http://www.unaids.org/en/regionscountries/countries/botswana), Botswana has a 25.2% HIV and AIDS prevalence rate for adults age 15 to 49 (2014). The Institute for Criminal Policy Research (http://www.prisonstudies.org/country/botswana) estimates that non-citizens make up 14.1% of the prison population (2013). The recognition of the government’s duty of care over prisoners regardless of their national origin has significant public health implications for HIV-positive non-citizen prisoners. Even more broadly, the decision sets an important precedent by recognizing the justiciability of all prisoners’ health rights under the Prisons Act and Regulations. At the same time, the decision imposes a duty on the government to obtain the financial resources to meet its legal obligations. Resource constraints cannot justify derogation from such obligations.
(Updated December 2015)
Botswana Network on Law and HIV/AIDS (BONELA) and Southern Africa Litigation Centre (SALC)