Gaborone–The Botswana High Court ordered the government to provide anti-retroviral (ARV) treatment to HIV-positive, foreign prisoners at state expense. The court held that the denial of ARV treatment to foreign prisoners violated their constitutional rights. 

 “This court decision has affirmed that the government is legally obligated to immediately provide life-saving ARV treatment to foreign prisoners living with HIV. The court further affirmed that providing ARV treatment to all prisoners who need it is critical to effectively addressing HIV,” says Cindy Kelemi of the Botswana Network on Ethics, Law and HIV/AIDS (BONELA), one of the applicants in the case. 

In reaching its decision, the court highlighted the importance of ensuring that all prisoners have access to ARV treatment, not only for their own health, but also to protect other prisoners from acquiring HIV and other opportunistic infections, such as tuberculosis. 

The court further rejected the government’s argument that it did not have adequate funds to provide non-citizen prisoners with ARV treatment, holding that the government had not raised any evidence to support the contention. 

“This landmark decision not only makes clear Botswana’s legal obligations with respect to providing access to ARV treatment, but also confirms that government cannot just argue that it is too expensive—they must provide evidence to support such an argument, which they did not do in this matter,” says Priti Patel of the Southern Africa Litigation Centre (SALC), which provided assistance with the case. 

The applicants were represented by Advocate Gilbert Marcus SC, Advocate Isabel Goodman and Tshiamo Rantao.

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