On August 22, 2014 Justice Bengbame Sechele of Botswana’s High Court ordered the government to provide treatment to foreign HIV+ prisoners at the expense of the State. The three applicants (two Zimbabwean prisoners and a local NGO advocating for the rights of people living with HIV/AIDS) argued that the denial of treatment violated the prisoners’ right to life, right not to be subjected to inhuman or degrading treatment and right to non-discrimination under the constitution of Botswana. The applicants also contended that the refusal to provide treatment “[ran counter to the letter and the spirit of the national policy on HIV and AIDS as well as the respondents’ duty to provide health care to inmates.”
In analyzing the issue, Justice Bengbame Sechele determined that the central question was “whether or not this exclusion is reasonably justifiable in a democratic society and or in the public interest.” In finding the exclusion unjustified and unlawful, he noted that the respondents did not produce evidence to support their argument that the provision of HIV treatment to non-citizen inmates would place an undue strain on their budget, that refusing treatment to foreign inmates indirectly extended the limits of their punishment by withholding certain services, and that the refusal of HIV treatment to certain inmates would increase the likelihood of HIV transmission and other deadly contagions amongst all prisoners.
The ruling helps pull Botswana into compliance with certain of its treaty obligations related to ensuring equality of treatment and protection of an individual’s under the African Charter of Human and Peoples’ Rights.
For more on this ruling, click here.