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IN
THE COURT OF APPEAL OF THE REPUBLIC OF BOTSWANA

HELP
AT GABORONE

A.COURT
OF APEAL CIVIL CASE NO. CACGB-096-14

HIGH
COURT CIVIL CASE NO. MAHGB-000057-14

In the matter
between:

THE ATTORNEY
GENERAL……………………………………………………………………….1ST
APPELLANT

THE PERMANENT
SECRETARY, MINISTRY OF

HEALTH……………………………………………………………………………………………………..2ND
APPELLANT

THE PERMANENT
SECRETARY, MINISTRY OF

JUSTICE, DEFENCE
&
SECURITY……………………………………………………………3RD
APPELLANT

THE PRESIDENT OF
THE REPUBLIC OF BOTSWANA……………………………4TH
APPELLANT

And

DICKSON
TAPELA…………………………………………………………………………………..1ST
RESPONDENT

MBUSO
PIYE…………………………………………………………………………………………..2ND
RESPONDENT

BOTSWANA NETWORK
ON ETHICS, LAW &

HIV/AIDS…………………………………………………………………………………………………3RD
RESPONDENT

Attorney Ms Y.K.
Sharp (with Ms N.K. Sharp and Ms K.K. Mabote)

for the
Appellants

Adv. G J. Marcus
SC (with Ad. LA. Goodman, Mr T. Rantao and MrT. Gaongalelwe)

for the
Respondents

B.
COURT OF APEAL CIVIL CASE NO. CACGB-076-15

HIGH
COURT CIVIL CASE NO. UAHGB-000066-15

In the matter
between:

THE ATTORNEY
GENERAL……………………………………………………………………….1ST
APPELLANT

THE COMMISSIONER
OF
PRISONS…………………………………………………………2ND
APPELLANT

THE MINISTER OF
HEALTH…………………………………………………………………….3RD
APPELLANT

THE DIRECTOR OF
PUBLIC
PROSECUTIONS………………………………………….4™
APPELLANT

And

GIFT BRENDAN
MWALE ………………………………………………………………………………RESPONDENT

Attorney Ms Y.K.
Sharp (with Ms N.K. Sharp and Ms K.K. Mabote)

for the
Appellants

Attorney Mr K.G.
Motswagole (with Mr F.D. Leburu)

for the
Respondent

JUDGMENT

CORAM: KIRBY J.P.

FOXCROFT J.A.

LESETEDI J.A.

GAONGALELWE J.A.

LORD HAMILTON
J.A.

KIRBY J.P.

1. These two appeals
both deal with the same issue, namely the lawfulness of a Government
directive that anti-retroviral treatment,
which is provided free of
charge to HIV positive citizen prisoners, should not be so provided
to foreign prisoners. (HIV is the
acronym for the Human
Immuno¬deficiency Virus).

2. At the request of
all the parties the appeals have been heard together and will be
decided in a single judgment of the full

Court. To that end
the Attorney General no longer pursues her appeals in regard to a
number of preliminary issues raised in the
two matters, nor is the
issue of contempt before us,

THE PARTIES

3. I shall refer,
for convenience, to the first case as ‘the Tapela appeal’ and to the
second case as ‘the Mwale appear.

4. The Attorney
General represents the President and each of the Government officials
cited in the two appeals, She will be referred
to, as the context
requires, either as ‘the Attorney General’ or as ‘the appellant’.
Where they are mentioned, the other appellants
will be cited
according to their positions, suitably abbreviated where it is easier
to do so.

5. In the Tapela
appeal, the respondents are Dickson Tapela (‘Mr Tapela’), Mbuso Piye
(‘Mr Piye’), both of whom are Zimbabweans
nationals who were serving
prisoners at all relevant times in the Gaborone Central Prison, and
the Botswana Network on Ethics,
Law and HIV/AIDS (‘BONELA7), a

non-governmental
organization, involved in research, advocacy and litigation relating
to the well-being of people living with HIV
and AIDS. (‘AIDS’ stands
for Acquired Immune Deficiency Syndrome),

6. In the Mwale
appeal the sole respondent is Gift Brendan Mwale (‘Mr Mwale7) who is
also a Zimbabwean national, presently serving
a term of imprisonment
in the Gaborone Maximum Security Prison.

BACKGROUND

7. The introduction
to the Revised Botswana National Policy on HIV and AIDS (2012) (the
HIV/AIDS Policy’) reveals that Botswana’s
first case of HIV infection
was reported in 1985 and that since then prevalence rates have
steadily increased. Notwithstanding
the Government’s consistent
efforts to curb the pandemic, new infections were, at the date of the
report, estimated at 15,000 per
year. To quote the opening words of
that introduction,

“The HIV and
AIDS epidemic in Botswana represents the greatest developmental
challenge to the country. What had been decades
of socio-economic
gains is being reversed by the effects of the epidemic.”

8. Both the HIV/AIDS
policy and the expert affidavit filed in the Tapela case set out in
detail the deadly progression from initial
infection with HIV to
full-blown AIDS and, ultimately, to the death of the patient. HIV is
a retrovirus which compromises the immune
system of infected persons,
particularly by attacking the CD4 cells, which have a critical role
to play in that system. Left untreated,
the HIV infection spreads,
lowering the patient’s resistance to opportunistic infections (Ol’s),
such as tuberculosis, meningitis,
pneumonia, and certain forms of
cancer. During this progression patients suffer from debilitating
symptoms including diarrhoea,
weight loss, and bodily sores.

9. AIDS is not a
specific disease. It is categorized as the fourth and final stage of
the progression of HIV infection, when the
immune system has been so
compromised that opportunistic infections and illnesses begin to
overwhelm the body, leading almost invariably,
but over time, to the
death of the patient.

10. Botswana is
recognized as one of the- leaders in the fight against AIDS and,
subject to resource constraints, has kept abreast
of developments in
the care of HIV/AIDS patients, and in the administering of palliative
drugs. But while successes have been recorded
in the incidence of
mother to child transmission of the virus and in the improving
life-span of patients under treatment, new infections
continue to
occur at an alarming rate.

11. The progression
of the virus is monitored by means of what is known as a CD4 cell
count assessment, In the early stages of HIV
a patient’s CD4 count is
usually between 600 and 2000 cells/ul, but this steadily drops over
time as HIV progresses.

12. Various drugs
have, during the course of the AIDS pandemic, been developed to slow
the replication of HIV. There are now combinations
of antiretroviral
medications (ARVs), which can completely suppress the replication of
HIV, These combinations of drugs are known
as Highly Active
Anti-Retroviral Therapy or HAART. The treatment is expensive, costing
in the region of

P3500 per month for
each patient, and once begun, the treatment needs to be sustained
indefinitely, because withdrawal from it has
extremely negative
consequences. A patient who stops such treatment may become immune to
first- line HAART and if he fails to resume
the treatment he will
die. Patients on HAART are able more effectively to stave off
opportunistic infections, and both their quality
of life and
life¬span prospects are significantly improved, although there is
as yet no cure for AIDS.

13. In 2012 there
were published and adopted the Botswana National Treatment Guidelines
Othe Guidelines7), which provide for patients
whose CD4 cel! count is
350 cells/ul or below to be put on HAART. HIV positive patients with
a higher CD4 count are to be regularly
monitored.

14. According to the
affidavit of Dr W.D.F. Venter, a respected expert in the field,
tuberculosis (TB) is the leading 01 which causes
the death of people
living with AIDS. The incidence of TB is significantly reduced by the
administration of HAART.

Pulmonary TB is
transmitted through airborne droplets which can survive in the air
for a long time when indoors or in ill-lit surroundings.
The disease
is highly infectious and is particularly prevalent among prisoners
due to overcrowding, poor ventilation, little sunlight
and
comparatively poor nutrition. According to Dr Venter, the denial of
HAART to non-citizen prisoners with HIV can result in the
premature
death of such prisoners, increase the likelihood of the transmission
of HIV to other prisoners, and hasten the spread
of TB and other Ol’s
to the prisoners and to their warders. Dr Venter’s affidavit has not
been challenged by the appellants.

15. Against this
background, there was, on 26th March 2004, dispatched to ail public
hospitals, clinics, and medical personnel an
internal directive, or
savingram headed

“PROPOSED
CHANGES TO PRESIDENTIAL DIRECTIVE CAB 13/C/2002 ON THE PAYMENT FOR
MEDICAL SERVICES BY NON-CITIZENS”

which provided,
insofar as is relevant to these appeals, that:

“Addressees are
hereby informed that the following have been approved through
Presidential Directive Cab 5/B1/2004 …… provision
of free
treatment to non-citizen prisoners suffering from ailments other than
AIDS.”

I shall refer to
this as ‘the directive7 or ‘the savingramyas the context requires,

16. There has been
some debate in the Courts below as to the reach of this directive,
including a finding by Sechele X that it did
not proscribe assessment
and ARV treatment of HIV positive prisoners, who had not yet
progressed to the stage of full-blown AIDS.
But it is not in dispute
that it has been interpreted by all involved to prohibit free
assessments and ARV treatment of HIV positive
foreign prisoners
whatever the stage of their infection. It has also been interpreted
to prohibit the free administering of HAART
to non-citizen prisoners,
although treatment of opportunistic diseases and infections is
provided to these prisoners at State expense.
Neither of the

Presidential
Directives referred to in the savingram has been placed before the
Court, so that details of the treatment accorded
to citizens both in
and out of prison and the terms thereof do not appear from the
papers. All parties argued, however, on the
basis that ARVs and
HAART, where these are available, are administered free of charge to
citizens, but that non-citizens have to
pay for such treatment. In
the absence of any contrary suggestion, we shall take that to be the
current position.

17. Initially it was
pleaded that review proceedings were not allowed at so late a stage
without the leave of the Court. This issue
was resolved on a
calculation of the time when treatment was refused to the affected
prisoners, and no issue of lateness is before
us on either appeal.

THE FACTS

18. Mr Tapela and Mr
Piye were both convicted of armed robbery in 2007 and were sentenced
to long terms of imprisonment. Subsequent
to their imprisonment each
was diagnosed as being

HIV-positive. When
they sought to have their viral loads assessed, with a view to
accessing ARV treatment, they were informed that
as foreign prisoners
they were not eligible to be assessed.

19. Later, they were
assisted by BONELA, who financed their CD4 count assessment.

20. Mr Piye was
assessed in 2008. His CD4 count was 208 cells/ul. Although his health
was deteriorating, he was refused ARV treatment,
on the grounds that
he was a non-citizen. In the months and years that followed he
suffered from dizziness, rashes, diarrhoea and
sores. He was assessed
again in 2009 and his CD4 count remained very low. He sought to be
enrolled on HAART, but was refused on
account of his Zimbabwean
citizenship. Later his parents funded his enrolment on HAART by
selling a cow. When the money ran out,
he was assisted by an
organization called the Prison Fellowship for a four month period. At
the time when the case was heard, that
period was due to expire, and
he feared for his life should the treatment be discontinued.

21. As for Mr
Tapela, it was only in 2010 that he managed to obtain the assistance
of BONELA in having his CD4 count assessed. It
was critically low at
98 cells/ul. He was refused enrolment on HAART as a non-citizen.
Since 2007 his health has steadily deteriorated.
He has developed all
the unpleasant symptoms already described, and in addition he was
diagnosed with TB in July of 2013. His sister
then assisted him with
funding to pay for HAART enrolment, but couid only afford to do so
for a short time. He too was then assisted
by the Prison Fellowship,
but only for the same limited period. He averred that:

“If I go off
treatment, my health will deteriorate and I may die. I am afraid of
what the future holds.”

22. Mr Mwale, too,
was convicted of robbery, although this was several years later. At
the time of lodging his High Court case early
in 2015, he had three
years of his sentence left to run, having served four years already .
While in prison, he contracted HIV,
which subsequently mutated into
full-blown AIDS. His CD4 cell count was at 266 cells/ul. He enlisted
on HAART at his own expense,
as he was told this treatment was not
available free of charge to non-citizens on the basis of the
savingram referred to above.
He subsequently learned of the judgment
of Secheie J. in the Tapela case and he then expected to be provided
with free HAART treatment,
but this was refused. That is when he took
the decision to challenge that refusal as being unlawful,
unconstitutional, and also
in contempt of the order of Secheie J.

THE HIGH COURT
PROCEEDINGS

23. On 3rd February
2014 the respondents in the Tapela appeal filed a Notice of Motion in
which they sought the following orders:

“1. Reviewing,
setting aside and declaring invalid the decision of the second
respondent (or anyone acting under his authority),
to refuse to
provide the first and second applicants with access to and/or to
enrol them on Highly Active Anti-Retroviral Treatment
(HAART).

2. Declaring that
the refusal to provide HAART to the first and second applicants is
unlawful and violates their constitutional
rights, including

2.1 The right to
life guaranteed by section 4;

2.2 The right not to
be subjected to inhuman and degrading treatment guaranteed by section
7; and

2.3 The right to
non-discrimination guaranteed by sections 3 and 15.

3. Declaring that
the refusal to provide HAART to the first and second applicants is in
breach of the National Policy on HIV and
AIDS and is unlawful.

4. Declaring that
the refusal to provide HAART to the first and second applicants is in
breach of the duty owed by the respondents
to the first and second
applicants and to similarly situated HIV-positive foreign inmates to
provide basic health care services
to prisoners.

5. To the extent
necessary, declaring that Presidential Directive number Cab 5(b) 2004
is unconstitutional, unlawful and invalid
to the extent that it
denies of HIV-positive foreign inmates access to and/or enrolment on
HAART.

6. To the extent
necessary, declaring the policy of denying HIV-positive foreign
inmates access to HAART to be unlawful and unconstitutional.

7. Ordering the
second and third respondents forthwith to provide the first and
second applicants with HAART.

8. Ordering the
second and third respondents forthwith to provide HAART to all
prisoners who are HIV-positive and who are not citizens
of Botswana.

9. Ordering such
respondents as oppose this application to pay the costs hereof.

10. Granting the
applicants further or alternative relief.”

24. The founding
affidavit of Mr Tapela makes it clear that the dominant relief sought
is the review and setting aside of the directive,
so as to gain for
him, for Mr Piye and for others in

their predicament,
free access to HAART treatment on the same basis as their citizen
fellow prisoners. He commences his

overview of the
application with these words:

“In these
proceedings, the second applicant, Mr Piye, and I seek to review and
set aside the decision of the Permanent Secretary
Ministry of Health
and the Government to refuse to enrol us on, and provide us access to
Highly Active Anti-Retroviral Treatment
(HAART).”

25. The supporting
prayers for constitutional and other declarations serve to bolster
the review application by providing reasons
and grounds re-inforcing
their central argument that that decision is unlawful and ultra vires
the provisions of the Act under
which they derive their entitlement
to medical treatment and other rights, namely The Prisons Act Cap
21:03, and the Regulations
promulgated thereunder.

26. Full sets of
affidavits were exchanged, the Attorney General submitting that the
Government’s decision not to provide free ARV
and HAART treatment to
non-citizens was justified in the public interest due to resource
constraints, and was unimpeachable as
an exercise of executive power,
protected by the separation of powers between the Judiciary, the
Executive, and the Legislature.
She denied any breach of the
Constitution, and argued that section 15(4)(b) thereof specifically
permitted discrimination against
persons who were not citizens of
Botswana.

27. There followed
various interlocutory exchanges which are not relevant to the
appeals, and argument from both sides. On 22nd
August 2014 Secheie J.
handed down his judgment in which, after dismissing the preliminary
points raised, he ordered that:

“(a) The
decision of the 2nd respondent (or anyone acting under his authority)
to refuse to provide the 1st and 2nd applicants
with access to and/or
enrolment on Highly Active Anti-Retroviral Treatment (HAART) is
hereby set aside and declared invalid.

(b) The refusal to
provide HAART to the 1st and 2nd applicants is violative of their
rights as enshrined under sections 3, 4, 7
and 15 of the Constitution
of Botswana,

(c) The refusal to
provide HAART to 1st and 2nd applicants is in breach of the duty owed
to them by the respondents to be provided
with basic health care
services.

(d) The 2nd
respondent’s savingram dated 26th March 2004 is, to the extent that
it seeks to exclude the 1st and 2nd applicants from
HAART enrolment,
irrational and invalid.

(e) The respondents
shall enrol the 1st and 2nd applicants and other non-citizen inmates
whose CD4 cell counts has reached the threshold
for HAART enrolment,
under the treatment guidelines of HAART.

(f) The respondents
to bear the costs of this application and which costs are to include
the costs of two counsel,”

28. It is against
each of those orders that the Attorney General appeals, and her
grounds of appeal repeat the arguments advanced
by her in the Court
below. In particular, she

complains that
Sechele J. failed to deal with her argument relating to section
15(4)(b) of the Constitution which she categorizes
as being at the
root of her appeal.

29. It appears from
the record that the order of Sechele J. was not complied with for a
number of months. However, that order came
to the notice of Mr Mwale,
who then applied for, and was refused enrolment on free HAART. From
the prison, and without legal assistance,
he filed a Notice of
Motion, stated to be under section 18(1) and (2) of the Constitution,
in which he sought an order that his
sentence be set aside, and he be
discharged, as his rights under section 7 of the Constitution
(relating to inhuman or degrading
punishment or treatment) had been
infringed. Alternatively, he prayed for his sentence to be reduced to
4 years imprisonment so
that he could return to Zimbabwe forthwith
and obtain free ARVs. The respondent was cited as the State, and the
application was
served on the Director of Public Prosecutions (DPP).
Notice of Opposition was filed by the DPP, on 10th March 2015
together with
heads of

argument pointing to
various deficiencies in the application, including that the Attorney
General should have been cited, that the
application was, in effect,
a second appeal, which was impermissible, and that the appropriate
relief should have been an order
requiring compliance with the order
of Secheie J,

30. The application
came before Dingake J. on 12th March 2015, when Mr Mwale, having
obtained legal representation, was granted
leave to file fresh papers
citing “all the necessary parties”.

31. There was then
filed by Attorney Motswagole an entirely new application, not only
citing “all the necessary parties”
but seeking totally
different relief. What was now sought mirrored in the main the relief
previously sought by Mr Tapela and Mr
Piye before Secheie J. but with
the addition of a prayer that three of the respondents (the Attorney
General, the Commissioner
of Prisons and the Minister of Health) be
held in contempt for failing to supply Mr Mwale with HAART. The other
prayers were for
declarations that the decision of the

respondents to deny
HAART to Mr Mwale was in breach of their obligation to provide
medical care to all prisoners, and that this
denial violated Mr
Mwale’s rights under sections 3, 4, 7 and 15 of the Constitution.

32. Each of those
declarations had already been made, as the Judge was aware, by
Sechele J, not only in relation to Mr Tapela and
Mr Piye, but also to
all foreign prisoners, which would have included Mr Mwale. Since
Dingake J. agreed with the conclusions of
Sechele J, what remained
was to enforce his order and to deal with the contempt application.
It was unnecessary to cover the same
ground, although some additional
points were made.

33. In the event,
Dingake J. did grant a mandamus, but devoted the majority of his
judgment to constitutional matters. He issued
separate declarations
that the decision to deny HAART to Mr Mwale was in breach of each of
sections 3, 4, 7 and 15 of the Constitution.
He then added that:

“5. The
decisions of the 1st, 2nd and the 3rd respondents are in breach of
their obligations to provide medical care to those
in the care of the
2nd applicant in terms of the Prisons Act Cap 21:03.

6. The respondents
are directed to avail the requisite medication (ARVs) to the
applicant forthwith.”

An order for costs
was also made.

34. So, having
regard to both cases, the aim of Mr Tapela and Mr Piye was to gain
access for themselves and other foreign prisoners
to free HAART. The
aim of Mr Mwale was to enforce Sechele J’s order insofar as that
applied to him. Those aims were achieved by
Sechele J’s Orders (a)
and (e) (above) and by Dingake J’s Order (6) (above). The
constitutional and other declarations served to
bolster those orders,
but were not necessary to arrive at them. The central complaint was
of non- compliance with the provisions
of the Prisons Act which gave
ail the respondents the right to medical care along with their fellow
prisoners.

35. The Attorney
General’s grounds of appeal against this judgment (once her appeals
on preliminary issues were abandoned) were
the same in substance of
those in the Tapela appeal. She argued that the Judge erred in
finding that the refusal to enrol Mr Mwale
on HAART was unlawful and
discriminatory, as this was specifically permitted by Section
15(4)(b) of the Constitution, and was justified
on financial grounds
as a matter of public interest, and also that the Judge erred in
making a mandatory order which usurped an
executive prerogative, so
offending against the separation of powers. The Attorney General
accordingly relied upon the same Heads
of Argument in both appeals.

36. We are informed
that before this appeal was heard, both Mr Tapela and Mr Piye were
released from prison, having completed their
sentences. Counsel
assured us, however, that they both (and also BONELA) wish to pursue
their appeals, as these affect not only
themselves, but also all
other similarly circumstanced foreign prisoners. This consolidated
judgment concerns the rights of Mr
Mwale as well, who is still in
prison, so that the issues raised are not moot.

THE LAW

37. Constitutional
cases are of great moment. They are thus brought only in exceptional
cases, since the vast majority of disputes
can be resolved by
reference to the common law and

to the statutes
enacted by Parliament, and by review proceedings. It is for this
reason that it has been consistently held, as Mr
Marcus pointed out,
that where a case can be determined without resorting to the
Constitution, that is the

route which should
be followed. In RAMANTELE vs MMUSI & OTHERS CACGB-104-12 (as yet
unreported) a full bench of this Court held
(per Lesetedi J A at para
41) that:

“It is a
well-recognized rule of decision-making that where it is possible to
decide a case before the Court without having
to decide a
constitutional question, the Court must follow that approach. See
MHLUNGU & OTHERS [1995] ZACC 4; 1995 (3) SA 867 (CC) at 895E.”

38, This was
described in my concurring opinion at para 22 as “a firm rule of
practice”, where the words of Kentridge
A.J. in MHLUNGU’s case
were cited, namely,

“I would lay it
down as a general principle that where it is possible to decide a
case, civil or criminal, without reaching
a constitutional issue,
that is the course which should be followed.”

See also STATE vs
RODNEY MASOKO CLCGB-058-14 (full bench) at para 18.

39. The real
complaint in the applications which form the subject of the appeals
before us, although this was not stated in so many
words, is that the
decision of the authorities to withhold free HAART from foreign
prisoners while according it to citizen prisoners
was unlawful as
being ultra vires the Prisons Act Cap 21:03 fthe Prisons Act’), or
was reviewable as being irrational. It was argued
that that decision
was unconstitutional in several respects, and was in breach of the
affected prisoners’ common law rights. It
is trite that the Prisons
Act, as is the case with all legislation, must be interpreted, where
the language so allows, in line
with the common law (see MEDICAL
RESCUE INTERNATIONAL vs THE ATTORNEY GENERAL [2006] BWCA 6; (2006) 1

BLR 516 CA (full
bench) at 522/3); so as to comply with the Constitution (see ATTORNEY
GENERAL vs DOW (1992)

BLR 119 CA (full
bench) at 140); and also as far as possible, in line with Botswana’s
international obligations (DOW, supra at p.132).
So if the
applications (and accordingly the appeals) can be determined by
applying and interpreting the provisions of the Prisons
Act and the
Regulations made thereunder, then there will have been (and will be)
no necessity to address the constitutional questions
raised, and the
discussion and findings on these by the Judges a quo, although
interesting, will be obiter in nature.

THE PRISONS ACT AND
REGULATIONS

40. In terms of the
common law the State has the duty to keep in good health the
prisoners in its custody because, having forfeited
their freedom,
they are unable properly to fend for themselves. This duty is
reflected both in the legislation and in the legal
precedents of most
countries, Thus the South African

Constitutional Court
has held in LEE vs MINISTER FOR CORRECTIONAL SERVICES 2013 (2) SA 144
(CC) at para 17 that –

“A person who
is imprisoned Is delivered into the absolute power of the State and
loses his or her autonomy. A civilised and
humane society demands
that when the State takes away the autonomy of an individual by
imprisonment it must assume the obligation
to see to the physical
welfare of the prisoner.”

See also MINISTER OF
POLICE vs SKOSANA 1977 (1) SA 31 A at 40 A.

41. In the United
States of America Marshall J, in ESTELLE vs GAMBLE [1976] USSC 205; 429 US 97
reaffirmed the Governments obligation to provide basic medical care
for those it is punishing,

42. So too in
Botswana, notwithstanding that there is no constitutional right to
health care, as there is in South Africa and some
other countries,
the Prisons Act and its Regulations provide the statutory embodiment
of those common law principles. These include
the right to equal
treatment of all prisoners, as will appear from an analysis of its
relevant sections. And as Gaongalelwe J.A.
held in a recent judgment
of this Court (DLAMINI vs THE STATE CLCGB-070-13 at para 17)

“Those who
offend against the law within this jurisdiction must not only be
treated equally, but must be seen to be so treated.”

43. It is also so,
as Secheie J. held, that while prisoners have their liberty curtailed
by the sentence of the Court, they remain
entitled to enjoy the
residuum of their constitutional and human rights, subject only to
the lawful derogations permitted by the
Constitution. See GOLDBERG &
OTHERS vs MINISTER OF PRISONS & OTHERS 1979 (1) SA 14(A) at

39. And I concur
with the learned Judge that imprisonment equalizes all inmates,
regardless of their status or place of origin.

44. The Prisons Act
contains, insofar as is relevant to these appeals, the following
provisions:

– S.2 defines a
prisoner as “any person, whether convicted or not, under
detention in a prison;”

– S.65 provides that
“every prisoner shall be subject to the provisions of this Act;”

– S.56(1) obliges
the Permanent Secretary to appoint a medical officer responsible for
each prison;

– By section 56(2)
‘The medical officer shall be responsible for the health of all
prisoners and shall cause all prisoners to be
medically examined at
such times as shall be prescribed.”

– S.57(l) states
that:

“A medical
officer may, whether or not a prisoner consents thereto, take or
cause to be taken or direct to be taken such action
(including the
forcible feeding, inoculation, vaccination and any other treatment of
the prisoner whether of the like nature or
otherwise) as he considers
necessary to safeguard or restore the health of the prisoner or to
prevent the spread of disease.”
(my underlining)

45. The underlined
portions confirm that there is to be no discrimination between
prisoners, and that the medical officer is enjoined
both to minister
to the health of prisoners and to prevent the spread of disease where
possible. In my view, the use of the word
‘may’ in section 57(1) has
reference only to the limitations a doctor may encounter in his
ministrations. ‘May’ must be read in
the sense of “must where
practically and financially possible” rather than in the sense
of entitling him to withhold
treatment at his pleasure. So, in that
respect at least, this is one of the rare instances in which “may”
is used in
the directory sense. (See: KAGISO TIRO vs ATTORNEY GENERAL
CACGB-104-12 (CA) at para 42). This is made clear by the wording of
Regulation 13 of the Prisons Regulations which provides that:

“A medical
officer shall –

(a) examine all
prisoners who complain of illness;

(b) treat all sick
prisoners;

(c) notify the
officer in charge of all cases of serious illness or infectious or
contagious disease; and

(d) make in writing
to the officer in charge such recommendations regarding the
treatment, isolation or care of a sick prisoner
as he thinks fit.”

46. Under the common
law, as under the Prisons Act and its Regulations, prisoners are
entitled to be provided with basic health
care which equates, in my
view, with the expression “adequate health care” as used,
for example, in the Constitution
of South Africa, at section 35(2).
It will not extend to advanced or cosmetic procedures not normally
available to or affordable
by the ordinary populace. But in the
context of prisoners, adequate medical treatment will cover, at the
very least, the free treatment
which is made available to citizen
prisoners in Botswana’s gaols. The Attorney General concedes that
that is the proper yardstick
to be employed. It follows that
enrolment on HAART of prisoners whose CD4 cell count is below 350
cells/ul forms part of the adequate
medical treatment to which all
prisoners are entitled in Botswana.

47. Part V of the
Regulations also provides for the other entitlements of prisoners for
which the State assumes responsibility upon
taking a prisoner into
its custody. These include prison clothing, bedding, food, and
washing facilities. All of these, including
medical treatment, are
provided free of charge, and are not so available to others outside
the prison walls. So the Prisons Act
and Regulations properly provide
for all the entitlements of a prisoner in terms of the common law,
and it is not necessary to
look to the Constitution for these.

Nowhere in the Act
or in the Regulations is any mention made of citizenship or of place
of origin, so that discrimination on those
grounds (or unfair
discrimination on any other grounds) is not permitted by the statute.

48. It is against
that backdrop that the savingram of 26th March 2004, and all
subsequent refusals by the authorities to provide
HAART to foreign
prisoners, including the respondents, is to be assessed.

49. The headline
grounds upon which administrative and quasi¬judicial decisions
may be reviewed and set aside in Botswana are
illegality,
irrationality, and procedural impropriety. See: ATTORNEY GENERAL vs
KGALAGADI RESOURCES (1995) BLR 234, in which THE COUNCIL OF CIVIL
SERVICE UNIONS & OTHERS vs MINISTER FOR THE CIVIL SERVICE [1983] UKHL 6; (1984)
3 All E.R. 935 (H.L.), and JOHANNESBURG STOCK EXCHANGE vs
WITWATERSRAND NIGEL LTD 1988 (3) SA 132 AD were applied. The word
‘irrationality’ is used in the sense of

‘Wednesbury
unreasonableness’ as characterised by Lord Greene in ASSOCIATED
PROVINCIAL PICTURE HOUSES LTD vs WEDNESBURY CORPORATION
[1947] EWCA Civ 1; (1947) 2 All
E.R. 680 C.A. at 683 as “a decision on a competent matter … so
unreasonable that no reasonable authority could ever have come to
it”, and by Corbett J.A. in the WITWATERSRAND NIGEL case at p.
152 as “(a decision) so grossly unreasonable as to warrant
the
inference that he (the decision-maker) had failed to apply his mind
to the matter …” The ground of illegality, or unlawfulness,

embraces also the doctrine of ultra vires, and in this case the
complaint is that the directive conveyed by the savingram, is ultra

vires the Prisons Act, and is also irrational.

50, Certainly, but
subject to the defences which the Attorney General has raised, and
upon which she relies in the two appeals,
with which I shall deal
presently, the decision to deny HAART to foreigners while according
it free of charge to citizens is, in
my judgment, ultra vires the
Prisons Act and Regulations, in that it discriminates unlawfully
against foreign nationals in a manner
not permitted either by the Act
or by the Regulations.

51. The respondents
argue that it is also irrational in that it permits treatment for
opportunistic infections and diseases, such
as TB while forbidding
treatment (ARVs and HAART) for HIV, which is the underlying cause of
these. This, it is argued, will be
far more expensive than HAART in
the long run as the HIV will be allowed to progress to full-blown
AIDS without being suppressed
by ARVs. It will thus facilitate the
infection of others within the prison both with HIV and with
infectious Ols, like TB. This
is contrary to the Prisons Act, which
requires action to prevent the spread of communicable diseases,

52. The directive,
and its application by refusing free treatment to HIV positive
foreign prisoners may, on the expert evidence
presented, be both
unwise and ill-advised, but it is not, in my judgment, irrational. As
Lord Greene pointed out in the WEDNESBURY
case, wrong decisions may
be made in good faith upon due consideration, but those will not be
reviewable

on the grounds of
irrationality because they are unwise. The HIV/AIDS Policy provides
in its terms for preferential treatment to
be given to Botswana
citizens, notwithstanding its overall objective of providing ARV
treatment to all where resources allow this.
Genuine concerns may
have been that where treatment was not available in their countries
of origin for HIV and AIDS, foreigners,
and in some cases illegal
immigrants, might commit crimes in Botswana to gain entry to prison
and the free ARV treatment available
therein. Those fears might
render the decision to withhold ARV treatment from foreign prisoners
rational, but it would not cure
the unlawfulness of the decision in
the light of the provisions of the Prison Act. This Court has the
added advantage, as had the
Courts below, of comprehensive expert
evidence on the effect of HIV and AIDS on the prison population,
although it does not appear
on the papers that a full cost/benefit
analysis of the effect of this decision has been conducted. I will
deal in more detail with
the legal effect of Government directives
and of national policies adopted by Parliament/ when I address the
defences/grounds of
appeal raised by the Attorney General, which
follow.

THE ATTORNEY
GENERAL’S DEFENCES

53. The main defence
raised by the Attorney General to justify the admittedly
discriminatory treatment of foreign prisoners, is
that such
discrimination is authorized by section 15(4)(b) of the Constitution,
and that the Constitution, as the supreme law,
takes precedence over
the Prisons Act and Regulations. It is necessary, in order to test
that defence, to examine section 15 of
the Constitution in more
detail. This provides, in the relevant portions, as follows:

“15(1) Subject
to the provisions of subsections (4), (5] and (7) of this section, no
law shall make any provision that is discriminatory
either of itself
or in its effect.

(2) Subject to the
provisions of subsections (6), (7] and (8) of this section, no person
shall be treated in a discriminatory manner
by any person acting by
virtue of any written law or ir the performance of the functions of
any public office or any public authority.

(3) In this section,
the expression “discriminatory” means affording different
treatment to different persons, attributable
wholly or mainly to
their respective descriptions by race, tribe, place of origin,
political opinions, colour, creed, or sex, whereby
persons of one
such description are subjected to disabilities or restrictions to
which persons of another such description are
not made subject or are
accorded privileges or advantages which are not accorded to persons
of another such description.

(4) Subsection (1)
of this section shall not apply to any law so far as that law makes
provision –

(a)

(b) with respect to
persons who are not citizens of Botswana.

(c)

(d)

(e) where persons of
any such description as is mentioned in subsection (3) of this
section may be subjected to any disability or
restriction or may be
accorded any privilege or advantage which, having regard to its
nature and to special circumstances pertaining
to those persons or to
persons of any other such description, is reasonably justifiable in a
democratic society.

(6) subsection 2 of
this section shall not apply to anything which is expressly or by
necessary implication authorized to be done
by any such provision of
law as is referred to in subsection

(4) or (5) of this
section.

(7)

(8)

(9)

54. It is not
suggested that any part of the Prisons Act is either discriminatory
or unconstitutional, so subsection 15(1), which
refers to laws, is
not applicable.

55. The refusal of
free enrolment on HAART to non-citizen prisoners when this is
afforded to citizen prisoners clearly discriminates
against the
non-citizens on account of their place of origin, and that is
prohibited by subsection (3).

56. In terms of the
Savingram of 26th March 2004, and no doubt in terms of the
Presidential Directive it implements, the Permanent
Secretary, who is
a public officer performing his functions as such, directs that
foreign prisoners shall be treated in a discriminatory
manner by the
refusal of free enrolment on

HAART, Subsection
(2) is thus engaged and contravened. This applies equally to prison
officers or doctors who implement that direction.

57. The effect of
subsection 4(b) is that subsection (1) does not apply to any law
which discriminates against persons who are not
citizens of Botswana.
Such discrimination is constitutionally permitted, provided that this
complies with the general boundaries
set by section 3, as the
substantive umbrella section, namely that this is in the public
interest or for the protection of the
rights of others. (See
RAMANTELE’s case, SUPRA at para 65). Subsection 4(b) is applicable
only to laws and does not excuse discrimination
in the performance of
public functions, contrary to section 15(2). It accordingly does not
excuse the discrimination inflicted
by the Savingram of 24th March
2004, and those implementing this.

58. Subsection 4(e)
also refers back to subsection (1) and applies only to laws. It too
does not excuse discriminatory treatment
under subsection (2). So in
this case the question of discrimination which is reasonably
justifiable in a democratic society does
not arise. Sechele J. was in
error to address the application on this basis, although his decision
on the review was correct.

59. It is subsection
6 which gives the exceptional circumstances when subsection 2,
relating to discriminatory treatment by public
officers, does not
apply. However, the exclusion applies only to discriminatory
treatment authorized by any law made in terms of
subsections (4) and
(5). It does not excuse discrimination in the performance of the
functions of a public office or authority,
unless such discrimination
is expressly or by necessary implication authorized by a law. So the
question is: is such discrimination
so authorized?

60. Counsel for the
appellant sought, but without much conviction, to categorize a
Presidential Directive as a law, so as to bring
it within the compass
of section 15(1) as read with 15(4)(b) of the Constitution, but that
argument cannot be sustained. First,

neither of the
Presidential .Directives referred to has been produced, and so no
informed discussion of these is possible. Before
us is only an
administrative direction given by the Permanent Secretary by means of
a savingram. Certainly that does not amount
to a law. Secondly, and
in any event, Presidential Directives convey Government decisions,
taken by the President acting on the
advice of Cabinet. These are an
exercise of executive power under section 47(1) of the Constitution
as read with section 50(1)
and (2). They are binding on public
officers but do not amount to a law. See: MURIMA & ANOTHER vs
KWENENG LAND BOARD (2002) 1 BLR 18 at 26. The exercise of executive
power is subject to the Constitution and subject to the laws of the
land. That is the essence
of the rule of law, to which Botswana is a
proud adherent. The discrimination practiced here, far from being
authorized by any
law, flies in the face of the Prisons Act and the
Regulations made under it (both of which are dearly laws).

61. It follows that
the Attorney General’s main ground of appeal cannot avail her.

62. The Attorney
General sought further to argue that Presidential Directives
constitute an exercise of executive, or prerogative
power, and are
not subject to review. That may be so in matters of high policy, such
as the declaration of war, or of a state of
emergency, or the making
of appointments to Cabinet or to other high offices (See PATSON vs
THE ATTORNEY GENERAL (2008) 2 BLR 66 at 82). But it is certainly not
so here, where an administrative decision not to provide free anti-
retroviral medicine to foreign
prisoners was conveyed by the
Permanent Secretary. Section 47(1) of the Constitution, which confers
executive power on the President,
states expressly that this power is
to be exercised “subject to the provisions of this
Constitution.” Further, it is
upon Parliament, and not upon the
President, that the power to make laws is conferred by section 86 of
the Constitution. So, in
my judgment, executive power is, by
extension, to be exercised subject to the laws made by

Parliament as well.
(See: MINISTER OF HOME AFFAIRS & ANOTHER vs BOTSWANA PUBLIC
EMPLOYEES UNION & OTHERS CACGB-083-12 (full
bench) at para 81 and
100).

63. It follows that
in terms of the wide powers granted to the Courts by sections 18(2)
and 95(1) of the Constitution an executive
decision conveyed through
a Presidential Directive will be reviewable if it is shown to be
ultra vires either a law passed by Parliament
or the Constitution. We
need not, however, go as far as that in the present appeals, because
what has been set aside is a Government
decision conveyed through a
Permanent Secretary’s savingram. I leave open the question of whether
certain of the executive decisions
taken under section 47(1) of the
Constitution are reviewable also on grounds other than unlawfulness
(in the sense that such a
decision was ultra vires).

64. I agree with
Dingake J. when, in his judgment in MWALE’s case, he states that the
relationship between the three branches of
Government embraces the
shared responsibility of ail three of these – the Executive,
Parliament and the Judiciary

– to uphold the rule
of law, and that (in his words):

“This dialogic
model of constitutionalism views the judiciary and the executive as
partners in a common enterprise, rather
than adversaries in a
perpetual contest for supremacy.”

65. But that is not,
as he suggests, a characteristic of “modern constitutionalism”
introduced by his “contemporary
generation of jurists.” It
is the very foundation of democracy in Botswana, a partnership
principle which has been promoted
by successive administrations since
Independence Day and by the Judges of our Courts (including ‘the
Judges of yesteryear’ to whom
he makes an unseemly reference). It is
only in recent years that some tensions between the executive and
legislative branches relating
to the roles of each and of the
Judiciary have been suggested by some litigants. But the constructive
partnership between the three
branches of Government to promote
adherence to the rule of law remains firm and unshaken.

66. The Attorney
General’s submission that the review here sought is impermissible as
offending against the doctrine of the separation
of powers cannot be
sustained.

67. Finally, the
Attorney General argues that the decision to withhold free HAART from
foreign prisoners was taken in the public
interest due to financial
constraints, and was thus

rendered lawful by
section 3 of the Constitution, notwithstanding the provisions of
section 15. It will be recalled that section
3, which is the umbrella
section embracing the

complete bouquet of
human rights which are accorded in Botswana, provides that:

“Whereas every
person in Botswana is entitled to the fundamental rights and freedoms
of the individual, that is to say, the
right, whatever his or her
race, place of origin, political opinions, colour, creed or sex, but
subject to respect for the rights
and freedoms of others and for the
public interest to each and all of the following, namely –

(a) life, liberty,
security of the person and the protection of the law;

(b) freedom of
conscience, of expression and of assembly and association; and

(c) protection for
the privacy of his or her home and other property and from
deprivation of property without compensation, the
provisions of this
Chapter shall have effect for the purpose of affording protection to
those rights and freedoms subject to such
limitations of that
protection as are contained in those provisions, being limitations
designed to ensure that the enjoyment of
the said rights and freedoms
by any individual does not prejudice the rights and freedoms of
others or the public interest.”

68. The subjection
of all human rights to the public interest and to respect for the
rights and freedoms of others has been held
in RAMANTELE’s case
(supra) to extend also to the derogation clauses set out in the other
sections of Chapter II of the Constitution.

69. It is generally
accepted, particularly in developing countries, that the Courts have
no role to play in dictating to the Executive
or to the Legislature
on issues of policy or on budgetary matters involving the use or
distribution of public funds. These are
matters properly within the
province of the Government, with all the expertise and resources
available to it.

This is particularly
so in a Constitution such as ours which does not provide for
judicially enforceable socio-economic rights,
such as the right to
health, the right to education and the right to housing.

70. So normally the
Courts will defer to the Executive and to the Legislature in matters
of that sort. But it will not always be
so. There will be many
decisions of the Court that by their very nature carry financial
implications for the Government. Examples
are the award of damages
payable by the Government, the re-instatement of wrongly dismissed
public officers (in appropriate circumstances),
and even the
imprisonment of offenders. There are many others. It 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.

71. But those legal
obligations too must be carefully construed.

They do not extend,
for example, to the implementation of Government policies, even when
approved by Parliament, such as the HIV/AIDS
Policy. Laws are passed
by Parliament in the

manner provided in
the Constitution. Policies, on the other hand provide the compass by
which the Government and its organs are
guided. They normally express
ideal and intended eventual outcomes, but make reservations on
availability of

human and financial
resources. They are guidelines to be followed to the extent possible.
They are not laws. The HIV/AIDS Policy
does not, as the respondents
have argued, require the universal enrolment of all present in
Botswana on HAART. It expresses that
as an ideal, but makes it clear
that

the realization of
that ideal will be subject to financial

constraints. In
Clause 5.1 it states that:

“… all such
procedures and parameters, and the services they direct will, to the
extent possible, be rendered to all residents
of Botswana based on
accepted criteria and costs” (my emphasis).

72. Many of its
provisions (such as 4.3, 5.2.1, 6.1.1, 6.2, and 7.1.1)

provide for health
interventions to be provided to ‘citizens of Botswana’, and 7.1.4
provides that:

“Every person
in Botswana shall not be discriminated against in terms of access to
health services. That notwithstanding Government
may confer
preferential treatment on its citizens” (again, my emphasis).

73. Sight must also
not be lost of the fact that constitutional rights do not extend in
Botswana to socio-economic rights, such
as the right to health, the
right to shelter, and the right to clean water. This is deliberate
and is appropriate in view of the
manpower and financial constraints
experienced particularly by developing countries. Some countries, by
their own choice, have
included such rights in their Constitutions.
Botswana has chosen not to do so, but strives nonetheless to achieve
those ideals
where resources allow. Any attempt by the Courts to
confer socio-economic rights, such as universal access to health
care, by the
overbroad construction of sections of the Constitution
such as section 4 (the right to life) and section 7 (the prohibition
on
inhuman or degrading punishments or other treatment) as Dingake J.
appears to suggest, would, in my judgment, be overstepping the
bounds
of judicial discretion. That would be venturing into policy areas and
budgetary concerns which are properly to be addressed
by the other
arms of Government,

74. Finally, on the
issue of affordability, no evidence whatever has been placed before
the Court of any of the material facts upon
which it would be
necessary to base a finding that the provision of HAART to
non-citizen prisoners would be unaffordable. We have
not been
enlightened on the number of foreign prisoners suffering from
HIV/AIDS in our prisons at present. In both appeals we have
before us
only three such prisoners. We have not been provided with the
comparative cost of treating the many opportunistic illnesses
and
infections contracted by prisoners who are HIV positive and are not
enrolled on HAART. No evidence has been led on the cost
of treating
other patients to whom HIV or other illnesses such as TB have been
passed by foreign prisoners as a result of their
not being enrolled
on

HAART. And there is
no suggestion that in Government’s budget for the care of prisoners
any distinction has ever been made between
funds allocated in respect
of citizen prisoners,

and those allocated
in respect of foreign prisoners. All we have before us is a bald
statement that the provision of HAART to non-citizens
is
unaffordable. That cannot suffice. See:

WIGHTMAN t/a JW
CONSTRUCTION vs HEADFOUR (PTY) LTD & ANOTHER [2008] ZASCA 6; 2008 (3) SA 371 SCA
at 375, where HEHER J A held that:

“A real genuine
and bona fide dispute of fact can exist only where the court is
satisfied that the party who purports to raise
the dispute has in his
affidavit seriously and unambiguously addressed the fact said to be
disputed. There will, of course be instances
where a bare denial
meets the requirement because there is no other way open to the
disputing party and nothing more can therefore
be expected of him.
But even that may not be sufficient if the fact averred iies purely
within the knowledge of the averring party
and no basis is laid for
disputing the veracity or accuracy of the averment. When the facts
averred are such that the disputing
party must necessarily possess
knowledge of them and be able to provide an answer (or countervailing
evidence) if they be not true
or accurate but, instead of doing so,
rests his case on a bare or ambiguous denial the court will generally
have difficulty in
finding that the test is satisfied.”

75. The same
principles apply to a bare averment such as the present one. It is
peculiarly within the ability of the Government,
as represented by
the Attorney General, to provide information on the number of HIV
positive foreign prisoners held in Botswana,
on the cost of providing
ARVs to these, and of the cost to Government (in the form of
treatment of Ol’s) of not providing such
ARVs. If Government fails to
provide such information as the basis for its averment that the
treatment is unaffordable, then it
will fail to discharge its onus to
prove that averment. So unaffordability has not been adequately
demonstrated in this case, and
the Attorney General’s final ground of
appeal must also fail, as must the whole appeal,

76. Since the
applications (and the appeals) could be definitively decided without
reference to the constitutional issues, it was
not necessary for the
Courts below to deal with these, and nor is it appropriate for this
Court to do so. It may well be that the
refusal of HAART to foreign
prisoners constitutes an additional and unusual punishment in respect
of those prisoners, contrary
to section 7 of the Constitution. It may
also be that such refusal endangers the health of other prisoners and
so cannot be said
to be in the public interest or necessary for the
protection of the rights of others, so as to be admissible as an
exception to
section 3 of the Constitution. Persuasive arguments have
been presented to that effect both by counsel in this appeal and in
the
judgments of Sechele J. and Dingake J, but the learned Judges’
opinions on those matters are obiter in their nature, and do not
at
present stand as binding precedents for the future.

77. I have dealt in
more detail with the aspect of discrimination contrary to section 15
of the Constitution, because the Attorney
General sought refuge under
one of its provisions as a defence to the review application. So far
from establishing that defence,
an examination of the section merely
re-inforces the finding that such discriminatory treatment was
unlawful and ultra vires the
Prisons Act.

78. As regards the
suggestion that the refusal of HAART to foreign prisoners contravenes
their rights to life, that is a much more
complex issue, in view of
the constitutional prohibition referring to the deliberate deprival
of life. That argument too must await
a case where its resolution is
necessary for the determination of an issue before the Court,

79. It follows that
the judgments and decisions in the Courts below should have been
confined to the review ground of ultra vires,
which was decisive of
the case, and should not have proceeded to the various declaratory
orders made. I will adjust the orders
accordingly in due course.
Before concluding this judgment I should add a few cautionary remarks
concerning aspects of the judgment
of Dingake J.

80. Firstly, he
characterised his whole judgment as concerning a matter “best
illuminated by a consideration of the position
of prisoners in
international law.” Much of his judgment is devoted to the
analysis of cases which have arisen in other countries
of the world,
whose Constitutions and socio-economic circumstances differ from our
own, and would require detailed analysis in
both respects before a
valid comparison with the law and prevailing conditions in Botswana
could be made. This Court has repeatedly
cautioned against over
reliance on such precedents (see, for example, ATTORNEY GENERAL vs
OATILE (2011) 2 BLR 209 CA (full bench) at 291 H). In the present
case the issues could be resolved by reference to the Prisons Act and
the local precedents.

81. Secondly, the
learned Judge devoted a substantial part of his judgment to the
application of what he referred to as ‘soft-law’,
or the body of
norms comprised in treaties, conventions and the like, whether
ratified or not, which have attained the status of
international
customary law or jus cogens. To that end he provided a list (without
analysis or further details) of no less than
twenty four
international instruments dealing directly or indirectly with the
care and medical rights of prisoners and particularly
those with
HIV/AIDS. The position in Botswana has been made clear by this Court,
namely that treaties and conventions entered into
or ratified by
Botswana, do not have the force of law in this country unless they
have been incorporated (as many have) in domestic
legislation.
Domestic laws will, however, be interpreted, where the language so
permits, so as to give effect to Botswana’s international
obligations
under such treaties and conventions. See: RAMANTELE’s case (supra) at
para 69; ATTORNEY GENERAL vs DOW (1992) BLR 119 (CA) at 132.

82. Counsel in the
MWALE appeal supports the application of ‘international customary
law’, and calls in aid the High Court judgment
in REPUBLIC OF ANGOLA
vs SPRINGBOK INVESTMENTS (PTY) LTD (2005) 2 BLR 159, in which I
applied what has come to be known as the doctrine of incorporation,
in approving an international consensus derived
from judicial
precedent, that in the absence of any provision to the contrary
diplomatic immunity does not extend to disputes arising
out of the
commercial activities of diplomats. In the absence of any provision
to the contrary under our law, I adopted that rule
as being
applicable too in Botswana. There was no appeal. I do not take the
decision on that narrow issue as having introduced
a general rule
expanding upon the principles laid down by the Court of Appeal. The
present case required no such treatment. It
could be determined
solely on local statutes and precedents.

83. Thirdly, there
is discernible in much of the judgment of Dingake

J, the learned
Judge’s view that socio-economic rights, and

particularly the
right to health care, should be read into the

constitutional
rights to life and to freedom from inhuman or

degrading treatment
as laid down in the Botswana Constitution.

He says at paragraph
104 that:

“In my
considered view, whilst the Constitution does not expressly provide
for the right to health, the section 4 protection
of the right to
life can be understood in a broad way to include measures that state
parties must take to safeguard health, and
thereby life.”

84. This, he says,
should follow from the ideals expressed as national obligations in
many international human rights instruments
to which Botswana
subscribes. Those instruments convey the hopes and aspirations of
most nations, including Botswana, but the country’s
legal obligations
derive from our own laws, which generally keep pace with what is
practical and affordable in our circumstances.
Some reliance has been
placed by counsel on the judgment of this Court in ATTORNEY GENERAL
vs MOSETLHANYANE & ANOTHER (2011) 1 BLR 152 CA. That case was
decided upon an interpretation of section 6 of the Water Act Cap
34:01. It was held that Government’s refusal
to allow the applicants
to recommission and utilize a disused borehole on land lawfully
occupied by them was ultra vires that Act
and thus unlawful. In that
case, as in this, the claim was bolstered by an additional prayer for
a declaration that Government’s
refusal was unconstitutional (on the
basis that this amounted to inhuman or degrading treatment contrary
to section 7 of the Constitution).
Having decided the appeal on the
initial point, Ramodibedi J.A. went on to state:

“It remains
then to deal briefly with the appellants’ point relating to section
7(1) of the Constitution.”

85. He proceeded to
do so, in a short and subsequent part of his judgment, in which he
opined that in terms of certain international
instruments the right
to clean drinking water was a fundamental human right, and the
deprival of this amounted to inhuman treatment.
Those findings were,
as in the judgments of the High Court in this case, obiter in nature,
and the learned Judge did not proceed
to make a declaratory order on
the constitutional point, as prayed, but merely made an order setting
out and enforcing the applicants’
rights under the Water Act, with no
reference to the Constitution. That obiter opinion should not be
taken as being authority for
the proposition that section 7 can be
construed in any circumstances as conferring the socio-economic right
to clean drinking water.
That is not a right granted by the Botswana
Constitution in its present form.

86. Finally, it must
be stressed that the decision in this case relates strictly to the
special circumstances of foreign persons
imprisoned by the State, and
the medical treatment to which they are entitled. It does not address
at ail the situation of foreign
residents, foreign visitors, or
illegal immigrants outside the prison walls, Their situation is
entirely different, and it may
well be argued that differential
treatment of foreigners is justifiable as being in the public
interest and necessary to safeguard
the rights of citizens in a
developing and landlocked country with unenviably porous borders. As
is the case with most sovereign
developing States the country’s
obligations to its own nationals take priority, and this is reflected
in many of our laws and policies,
such as the provision of old age
pensions, free schooling, free health services, destitute care, job
and business reservations,
citizen economic empowerment policies and
others. Suggestions by Dingake J. to the contrary are purely his own.
They too are obiter,
and any argument on the rights of visitors must
stand over for another day.

87. The appeal of
the Attorney General must thus be dismissed, but the orders of the
Courts below will be adjusted (as in MOSETLHANYANE’s
case, supra) to
exclude any references to the Constitution. The order of the Court is
as follows:

(1) The appeals are
dismissed with costs, including the costs of two counsel.

(2) The Orders of
the two Judges in the Court below are set aside and are replaced in
each case by the following Order:

(a) The decision to
withhold free medical treatment from non-citizen prisoners with AIDS
conveyed, in the Permanent Secretary’s
Savingram of 24th March 2004
is set aside.

(b) There is to be
full compliance with the Prisons Act and Regulations by the provision
to the applicant/s or such of them as remain
in custody at the date
of this Order, and to other HIV positive foreign prisoners, on the
same basis as to citizen prisoners, of
free testing, assessment and
treatment with ARVs and HAART where appropriate.

(c) The respondents
are to bear the costs of the application, which costs shall include
the costs of two counsel.

DELIVERED IN OPEN
COURT AT GABORONE THIS 26 DAY OF August 2015.

I.S. KIRBY

JUDGE PRESIDENT

I AGREE

J.G. FOXCROFT

JUSTICE OF APPEAL

I AGREE

I.B.K. LESETEDI

JUSTICE OF APPEAL

I AGREE

M.S. GAONGALELWE

JUSTICE OF APPEAL

LORD HAMILTON

JUSTICE OF APPEAL

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