Attorney General and Others v. Tapela and Others, Court of Appeal Civil Case No. CACGB-096-14; Attorney General and Others v. Mwale, Court of Appeal Civil Case No. CACGB-076-15
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.
In 2004 Botswana’s Secretary of Health circulated an internal directive to public medical facilities informing them of a Presidential Directive authorizing “provision of free treatment to non-citizen prisoners suffering from ailments other than AIDS.” HIV-positive Zimbabwean prisoners filed lawsuits challenging this directive after being denied free Anti-Retroviral Therapy (ARV). They argued that the refusal to provide ARV contravened the National Policy on HIV and AIDS, the government’s duty to provide basic health care to prisoners, and that it violated the rights to life and non-discrimination, and constituted inhuman and degrading treatment (under Sections 4, 3,15 and 7 of the Constitution).
The Court of Appeal set aside the directive as unlawfully discriminating against non-citizen prisoners contrary to the Prisons Act and Regulations and ordered the government to immediately provide free assessment and ARV treatment to non-citizen prisoners as appropriate. While the prisoners’ constitutional arguments “bolster[ed]” their primary claims, they were not necessary to the determination that the directive was illegal. Rather, the Prisons Act and Regulations embody common law principles including “the right to equal treatment of all prisoners.” Thus, the government’s refusal to provide ARVs to non-citizens, as it does for citizens, was a breach of its duty to provide adequate health care services to all prisoners.
The court rejected the government’s arguments about permissible discrimination, the violation of separation of power principles, and resource constraints. First, the court found that because the directive was not a law and because the Prisons Act and Regulations forbid discrimination, the directive was not “reasonably justifiable” in the public interest or to protect the rights of others. Moreover, Section 15(4)(b) of the Constitution does not justify discrimination in the performance of public functions unless authorized by law, which was not the case here. Second, the court found that the directive was an administrative decision and not an executive one and, as such, was subject to review. Finally, the court found that the government did not adequately demonstrate that it could not afford to cover the cost of ARVs for non-citizen prisoners.The court emphasized that “[i]t is the responsibility of Government to budget for the fulfilment of its legal obligations. If the law requires a service to be provided, then funds must be found to provide that service, or Parliament must be engaged to amend that law. Lack of funds will not in the normal course justify disobedience of the law.”
With reference to the lower court’s decision which had rested on constitutional grounds, the court cautioned against reading socio-economic rights into the Botswana Constitution which does not guarantee such rights, including the right to health. Accordingly, the court narrowly limited its holding to non-citizen prisoners entitled to medical treatment rather than reading a right to health for all HIV-positive foreign residents.
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.
Botswana Network on Law and HIV/AIDS (BONELA) and Southern Africa Litigation Centre (SALC)
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)