HUMAN rights lawyers representing a group of HIV-positive Zimbabweans incarcerated in Botswana are set to file papers in the Gaborone High Court later this month to force the state to provide anti-retroviral treatment to foreign inmates.
The Botswana Network on Ethics, Law and HIV/Aids (Bonela), which advocates for the rights of people living with the disease, says the Zimbabwean detainees have gone without this essential medication for years because imprisoned foreigners are not allowed access to HIV treatment.
In the class action representing four men and a woman, Bonela wants the court to order the Botswana government to provide the life-saving drugs to all foreign prisoners.
One of the prisoners, George Vingaso, was extradited from South Africa's North West province and convicted of car theft in Botswana where he is now serving a 10-year sentence at Gaborone Central Prison.
Vingaso tested positive after being arrested in South Africa where he was put on ARV therapy, but the treatment stopped after his extradition and subsequent imprisonment in Botswana.
Without drugs, Vingaso's CD4 count dropped and his health is said to have deteriorated rapidly.
Doctors who first examined him in Botswana in 2010 discovered he had developed boils, swollen legs and breathing problems. Bonela then filed a court application requesting government to comply with a previous court order to supply Vingaso with ARVs, but that was ignored.
Human rights lawyers said government's inaction was risky as Vingaso's low CD4 count exposed him to deadly opportunistic infections such as tuberculosis, a common disease in overcrowded and poorly sanitised Botswana prisons such as Gaborone Central Prison.
Bonela executive director Uyapo Ndadi said the prisoners' state of health was serious with Vingaso's condition being the worst.
"All of them are sick and their situation is dire," said Ndadi in a telephone interview. "Their CD4 counts are low and this makes them vulnerable, but they are not yet sick. The other prisoner (Vingaso) has a very low CD4 count and he has been struggling with the illness for about three years now," he said.
Ndadi said Vingaso was not receiving ARVs, despite a 2008 court ruling by the Village Magistrates Court ordering the government of Botswana to provide the necessary treatment. "The government has ignored the order," said Ndadi.
In 2010, Vingaso's court application requesting the ministry of health to provide ARVs was successful, but the ministry refused to comply claiming it is too expensive to provide free ARVs for foreign prisoners.
Botswana's locally manufactured ARVs are provided free only to Batswana; foreign nationals have to pay for them.
A month-long supply of drugs retails for P180 (about US$22,90), slightly cheaper than in Zimbabwe where ARVs cost US$30.
Bonela argues that denying anyone ARVs constitutes inhuman treatment and discrimination under Sections 7 and 15 (3) of Botswana's Constitution, and intends to present medical evidence to show how going without ARVs has affected terminally ill prisoners.
"We have spent about a year compiling affidavits and obtaining medical tests," Ndadi said. "We are preparing to file our papers and if there is a material dispute then the matter will go to trial," he said.
Ndadi said he was hopeful of Bonela's chances of success this time.
According to defence and security expert, Martin Rupiya of the Pretoria-based Institute for Security Studies, many African governments have responded to the HIV pandemic in prisons like "ostriches with their heads buried in the sand". Speaking at an AU conference in South Africa in November last year, Rupiya said African governments had failed to effectively curb the HIV scourge.
He said ignoring infected foreign prisoners was risky as foreigners sometimes carry different or more complex strains of the HIV virus which can undermine a government's efforts to fight the disease.
"The hosting of foreign nationals sometimes brings different strains of the viruses that effectively challenge national programmes and existing drug protocols," Rupiya said.
"The result is the creation of a constituency within communities that remains excluded and therefore immune from the various public health campaigns, including the most recent ARV treatment and increased access campaigns," he said.
Challenging the right to access ARV treatment and protesting poor prison conditions appear to be a growing trend in southern Africa.
Beyond Botswana and a historic victory in 2006 by South African Aids activists, courts in Zambia and Zimbabwe are due to hear cases of imprisoned HIV patients claiming denial of ARVs constitutes an infringement of the right to health.