The Attorney-General and Others v Tapela and Others, In re: The Attorney-General and Others v Mwale

Author: Amrin Panjwani 

The Attorney-General and Others v Tapela and Others, In re: The Attorney-General and Others v Mwale 

Ms Panjwani is studying for a Masters degree in International Trade Law at the School for Advanced Legal Studies, University of Cape Town.   

Botswana has one of the highest HIV/AIDS prevalence rates in the world. Since the first reported infection in 1985, the HIV/AIDS pandemic has remained an area of the highest priority in government policy making. Whilst substantial progress has been made, the number of new infections per year remains extremely steep. Botswana has remained at the forefront of the global fight against HIV/AIDS and has consistently invested in new and advanced treatment methods to be made available within its borders. One of the many policies adopted by the Government of Botswana has been the 2008 Botswana National HIV/AIDS Treatment Guidelines. These guidelines provide for a new mechanism to contain HIV in the form of a combination of antiretroviral medications (ARVs) known as Highly Active Antiretroviral Therapy (HAART). HAART has been shown to completely suppress the replication of HIV in patients, to whom it was administered, thus leading to a better quality of life as well as increased lifespan. 

On the 26th August 2015, judgement was delivered by the Court of Appeal in the current case, which arose from a directive that had been issued to all public hospitals, clinics and medical personnel, prohibiting the provision of free HIV/AIDS treatment to non-citizen prisoners who were diagnosed as HIV positive. Two foreign prisoners, Dickson Tapela and Mbuso Piye, instituted review proceedings in the High Court of Botswana seeking an order setting aside the directive as being unconstitutional. They claimed that the directive was a contravention of several rights entrenched in the Constitution of Botswana, namely their right to life (Section 4), their right not to be subjected to inhuman or degrading treatment (Section 7) and their right to be treated fairly and without discrimination (Sections 3 and 15), as well as certain provisions of the Prisoners Act granting prisoners the right to adequate medical care. In addition they sought an order from the High Court providing not only them, but all HIV positive, non-citizen prisoners’ access to free ARVs and HAART. Justice Sechele duly granted the order sought and declared the directive as a contravention of the Constitution and hence invalid. He not only considered the directive discriminatory, but he also held that the Prisoners Act made the provision of adequate medical care compulsory for all prisoners regardless of their nationality. 

Government officials did not comply with the High Court order, but continued to deny foreign prisoners access to ARVs and HAART. This led to a second case, in which Gift Brendan Mwale applied for the ARVs and HAART relying on the Tapela High Court judgement, but was denied treatment on grounds of his nationality. He then instituted proceedings at the High Court praying for the same relief as was granted to Tapela and Piye. Justice Dingake reinforced the ruling in the Tapela case and ordered immediate provision of ARVs and HAART to all HIV positive, non-citizen prisoners. The approach followed by Justice Dingake was somewhat different, even though he reached the same conclusion as Justice Sechele.  He emphasised that the right to adequate medical care is necessary for the realisation of the constitutional right to life. He also found it necessary for the courts to read socio-economic rights into the existent rights entrenched in the Constitution, despite the explicit absence thereof.  

The Attorney-General of Botswana appealed both High Court decisions, on grounds that; i) Section 15(4)(b) of the Constitution allows for discrimination on grounds of citizenship, and ii) the doctrine of separation of powers prevents the Courts from adjudicating over the validity of directives as they are issued as a prerogative of Executive power. Both appeals were consolidated into one. The Court of Appeal led by Judge President Kirby, resolved the appeal by resorting to the Prisoners Act rather than the Constitution, in line with the principle of only utilising the Constitution as a last resort to determine the outcome of a case. The legal issue on appeal thus became whether the decision to withhold free HAART from non-citizen prisoners was unlawful as a contravention of the right to provide adequate medical care stipulated in the Prisoners Act. The Court found that Section 15(4) only referred to exceptions to non-discrimination in the context of laws passed, and also, the directive was not an exercise of Executive prerogative on matters of high policy, but a mere administrative decision which was subject to review if shown to be in contravention of any written law. In light of these findings, the Court deemed the defence of the Attorney-General to have fallen away. The Court of Appeal thus reached the same conclusion as the High Court judgments, albeit having adopted a different approach, and passed judgement in favour of the respondents, ordering the immediate provision of ARVs and HAART to all non-citizen prisoners free of charge.  

The issue of the justiciability of socio-economic rights, particularly on the African continent, has a rather rugged history. In the Mwale High Court decision, Justice Dingake attempted to read socio-economic rights, namely the right to adequate medical care into the Constitutional right to life. This approach was rejected by the Court of Appeal, Judge President Kirby opining that such was an inconsistent reading of the mainly civil and political rights entrenched in the Constitution. This illustrates Botswana’s continual reluctance to address socio-economic rights. In many countries where Constitutions only recognize civil and political rights, courts have developed purposive jurisprudence that make socio-economic rights enforceable, as did the Supreme Court of India in the case of Shantistar Builders v Narayan Khimalal Totame (AIR 1990 SC 630). It is of significant import that International and African human rights documents call for the recognition of socio-economic rights, many of which Botswana is party to. There is a need for their recognition in furtherance of Botswana’s international obligations, but also because rights are indivisible, whether they be civil, political, social or economic. What good is a right to life that offers no guarantees for the quality of life?  

By ignoring questions about the constitutionality of the denial of ARVs and HAART to HIV/AIDS positive prisoners who are not citizens, the Court of Appeal avoided an opportunity to settle hard questions around the constitutionality of socio-economic rights in Botswana. Whilst one may understand the Court’s caution disposition towards constitutional interpretation, it should not have refrained from resolving the constitutional challenge that the respondents in the appeal had raised.  As it is, the constitutionality of socio-economic rights in Botswana remains an unresolved issue.